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Showing contexts for: section 351 in Rasila Ram And Anr. vs State Of J. And K. on 7 November, 1997Matching Fragments
4. That there is no provision in the Criminal Procedure Code which authorises the trial Magistrate to implead a person as an accused on the basis of evidence recorded during the trial. Undoubtedly Section 351, Cr.P.C. deals with impleadment of a person as an accused but it does not empower the Magistrate or the trial Judge to array a person as an accused who is not before it attending the proceedings. To buttress.his arguments he has cited the case of State v. Mohd. Zaman 1981 KashLJ221 :(1981 CriLJ783)and Ghuiam Mohi-ud-din Mir v. State 1987 Kash U 753.
5. A reference to Section 190, Cr.P.C. reveals that under it every Chief Judicial Magistrate and any other Judicial Magistrate specially empowered in this behalf can take cognizance of an offence in the manners prescribed therein. In the instant case cognizance was taken upon a report made in writing under Section 173, Cr.P.C. but in this report petitioner No. 7 was not impleaded as an accused. The point to be considered is whether the Magistrate has the power to implead a person as an accused in case during trial the evidence incriminates him. In the past this Court in the case of State v. Mohd. Zaman (1981 Cri LJ 783) (supra) had consideered the scope of Section 193 Cr.P.C. as well as Section 351, Cr.P.C. and held that Sessions Judge can try an accused without a formal order of committal. It was also held that three conditions must be satisfied before Section 351, Cr.P.C. may be applied to a case. There are-
(1) the person sought to be proceeded against must be attending the Court;
(2) the Court must be competent to take cognizance of the offence for which he is tried; and (3) There must be evidence before the Court that the person is prima facie guilty of the offence.
6. It was also held that the evidence of which Section 351, Cr.P.C. speaks is the evidence recorded by the Sessions Judge himself and not any other evidence. In that case the learned Sessions Judge had proceeded against the petitioner without recording the evidence himself so the order was found defective and it was ordered that a supplementary challan be produced before the competent Magistrate. This Court recently in the case of Tariq Mehmood v. State 1997 SLJ 73 : (1997 Cri LJ 3141) has held that Sessions Judge could add any person as an accused before it and direct him to be tried with other accused if such person appeared to be involved in the commission of offence from the evidence recorded at the trial. Such trial could be ordered on the basis of evidence recorded during the trial and not on the basis of evidence collected by the Investigating Agency. The case of Ghulam Mohi-ud-din Mir v. State of J. & K. (1987 Kash LJ 753) (supra) deals with statutory duty of the police to hold further investigation in terms of Section 173(8), Cr.P.C. and has no bearing with the facts of the present case. It can be said here that the provisions of Section 351, Cr.P.C. are not attracted to the facts of present case because petitioner No. 7 was not attending the Court before he was arrayed as an accused. Prior to its amendment vide Act No. 2 of 1974 the provisions of Section 351, Cr.P.C. of the Central Code (now Section 319 were identical to those of Section 351 of the J. & K. State Cr. Procedure Code and there was conflict in judicial opinion as to whether a Sessions Judge was competent to try an accused in the absence of formal committal order by a Magistrate by involving the provisions of Section 351, Cr.P.C. The matter was considered by the Law Commission in its entire gamut and necessary amendments were suggested to be made in Sections 193, 207-A and 351 of the Central Code. Besides doing away with the contention of his presence before the Court Sub-section (4) was added to the newly enacted Section 319 under which such a person would be deemed to be an accused before the Court even at the time it took cognizance of the offence; no matter whether he was actually present before it then. A correspondent amendment was also made in Section 193 and the expression "unless the accused has been committed to it by a Magistrate" was substituted by the expression, "unless the case has been committed to it by a Magistrate". Drastic changes were made in the procedure relating to cases exclusively triable by a Court of Session and the High Court and provision made in Section 209 for committal of the "case" instead of "accused" as ordained by Section 207-A which was repealed. Keeping these amendments in view their Lordships in AIR 1979 SC 339 : (1979 Cri LJ 333) held that Section 193 was no bar against the trial of a person under Section 319, Cr.P.C.
7. A large scale amendments were also made in the State Code vide Act No. XXVIII of 1978, but no change was made in Section 193 or Section 190 or Section 351. Section 190, Cr.P.C. is an independent provision not governed by what is contained in Section 351, Cr.P.C. It is advantageous to produce Section 351, Cr.P.C. of the State Code as well as amended section incorporated in the Central Code as Section 319 and both run as under:
351- Detention of offenders attending Court-- (1) Any person attending a Criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed and may be proceeded against as though he had been arrested or summoned.