Crl.Misc.No.M-22349 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-22349 of 2009 Date of Decision:- 22.12.2011 Joginder Singh ....Petitioner(s) vs. State of Punjab and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Manuj Nagrath, Advocate, for the petitioner. Mr.Vishal Munjal, Addl.AG, Punjab. Mr.H.N.S.Gill, Advocate, for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) Challenge in this petition is to the summoning order dated 15.7.2006 (Annexure P-5) passed by the Judicial Magistrate, Ist Class, Malerkotla, exercising powers under Section 190 Cr.P.C. Challenge is also to the order dated 14.7.2009 (Annexure P-8) passed by the Additional Sessions Judge (Ad hoc) Fast Track Court, Sangrur, dismissing the revision petition preferred by the petitioner against the summoning order as also to the order dated 11.5.2009 (Annexure P-6) vide which charges have been framed against the petitioner. It is the contention of the counsel for the petitioner that on commencement of the trial by the Magistrate under Chapter XIX in a warrant case and after the framing of the charge under Section 240 Cr.P.C. Crl.Misc.No.M-22349 of 2009 -2- against the persons who have been named as accused in the police report submitted under Section 173 Cr.P.C. and on fixing the case for prosecution evidence, Magistrate cannot exercise its powers under Section 190 of the Code of Criminal Procedure which falls under Chapter XIV of the Code of Criminal Procedure. He contends that the application moved by the prosecution under Section 190 Cr.P.C. itself is not maintainable once the trial has commenced, as provided under Chapter XIX and the Magistrate could during the trial and that too if some evidence comes against the petitioner, can summon him in exercise of powers under Section 319 Cr.P.C. and in the absence thereof, the present summoning order dated 15.7.2006 being violative of the provisions as contained under the Criminal Procedure Code cannot sustain. For the same reasons, he contends that the dismissal of the revision petition by the Court below is not in accordance with law and further the charges framed against the petitioner also cannot be sustained. Prayer is thus made for setting aside the impugned orders. He submits that under the Code of Criminal Procedure, once cognizance has been taken, the Court cannot, in the absence of any further new material, take cognizance again and in case the same is done, it would be barred by the provisions contained under Section 362 Cr.P.C. as the stage for exercising powers under Section 319 Cr.P.C. had yet not reached as the evidence of the prosecution is yet to commence. Counsel has placed reliance upon the judgment of the Supreme Court in the case of Kishori Singh and others vs. State of Bihar and another, AIR 2000 Supreme Court 3725, Raj Kishore Prasad vs. State of Bihar and another, AIR 1996 Supreme Court 1931 and Ranjit Singh vs. State of Punjab, AIR 1998 Supreme Court 3148. Crl.Misc.No.M-22349 of 2009 -3- On the other hand, counsel for the respondent has contended that under Section 190 Cr.P.C., Magistrate can take cognizance of any offence as provided therein which includes upon a police report. Till the recording of evidence starts in the trial, the Magistrate has the powers to take cognizance. Once the recording of the evidence of the prosecution commences, the stage for exercising of powers under Section 190 Cr.P.C. ceases and it is only thereafter that the trial Court can exercise its power under Section 319 Cr.P.C. and that too when it appears from the evidence that a person has committed any offence, he can be summoned to face trial. Support has been placed upon the judgment of the Supreme Court in the case of Swil Ltd. vs. State of Delhi and another, 2001 (6) SCC 670. Accordingly, it is prayed that the present petition is devoid of any merit and deserves to be dismissed. I have heard counsel for the parties and gone through the records of the case. Briefly, the facts of the case are that on the statement made by Bhupinder Singh son of Nand Singh, respondent No.2- complainant (hereinafter referred to as the complainant), FIR No.104 dated 5.8.2004 was registered under Sections 452, 506, 427, 323, 148 and 149 IPC against Mohinder Singh, Bhinder Singh, Manjit Singh all sons of Gurcharan Singh, Bhinder Kaur wife of Mohinder Singh, Malkit Singh son of Chand Singh, Sukhdev Kaur wife of Malkit Singh and petitioner- Joginder Singh son of Gurnam Singh. On investigation of the case, prosecution presented challan on 24.11.2004 in the Court of Judicial Magistrate, Ist Class, Malerkotla against Mohinder Singh, Bhinder Singh, Manjit Singh, Bhinder Kaur, Malkit Singh and Sukhdev Kaur. But Crl.Misc.No.M-22349 of 2009 -4- petitioner was not challaned nor his name was mentioned in column No.2 of the challan. On the basis of a cross-version on the application moved by accused Mohinder Singh son of Gurcharan Singh, challan was presented for trial under Section 308 IPC against Bhupinder Singh son of Nand Singh-complainant, respondent No.2 in this petition, for causing injury on the person of Surjit Kaur, mother of Mohinder Singh. Name of the petitioner did not appear in the list of witnesses in this challan based on cross-version. Charges against the above-mentioned six persons, who had been challaned, were framed on 14.2.2005 under Sections 323, 506, 427, 148 and 149 IPC. The accused pleaded not guilty to the charges and claimed trial. The case was fixed for prosecution evidence and witnesses were ordered to be summoned for 19.4.2005. On 19.4.2005, an application under Section 190 Cr.P.C. for summoning Joginder Singh-petitioner was filed by the complainant- Bhupinder Singh. The case was adjourned to 12.5.2005, 13.6.2005, 31.8.2005, 11.10.2005 and 19.11.2005 and thereafter to 19.1.2006 for hearing of application filed under Section 190 Cr.P.C. On 19.1.2006, it was recorded in the order that no prosecution witnesses were present and they were summoned for 10.3.2006. Thereafter, on various dates, the case was adjourned for hearing of the application filed by the prosecution under Section 190 Cr.P.C. Finally, vide order dated 15.7.2006, Judicial Magistrate, Ist Class, Malerkotla disposed of the application by summoning the petitioner as an accused for offences under Sections 323, 506, 452, 427, 148 and 149 IPC on the ground that the petitioner is named in the FIR and in the statements recorded under Section 161 Cr.P.C. of the witnesses, Crl.Misc.No.M-22349 of 2009 -5- namely, Sukhwant Singh, Rashid Ahmed, Dr. Shiddit, Bhagwant Singh and Tarsem Kaur, who had categorically stated that accused Joginder Singh- petitioner along with other accused caused injuries to Bhupinder Singh, Sukhwinder Kaur, Bhinder Kaur and Shivdit. It was further alleged that Joginder Singh also made assault upon the injured persons. Relying upon this material which was part of the police record, the Court had proceeded to summon the petitioner under Sections 323, 506, 427, 148 and 149 IPC. Petitioner challenged this order through a revision petition which was decided by the Additional Sessions Judge, Fast Track Court (Ad hoc), Sangrur vide order dated 14.7.2009 upholding the order passed by the Judicial Magistrate, Ist Class, Malerkotla by rejecting the contention of the petitioner that the Magistrate was not competent to exercise his powers under Section 190 Cr.P.C. as that stage has been crossed and that the petitioner could only be summoned on exercise of powers under Section 319 Cr.P.C. which stage has not yet come as there was no evidence before the Court as no evidence was recorded as yet. As there was no stay granted by the revisional Court, trial Court proceeded to frame charge against the petitioner along with others vide order dated 11.5.2009. It is at this stage that the petitioner approached this Court through the present petition challenging all these three orders. The question which requires to be determined by this Court in the present case is whether the trial Court could in exercise of its powers under Section 190 Cr.P.C., summon the petitioner as an accused when the trial has commenced and the charges stood framed against the persons who had been sent to trial through the police report submitted in Court wherein Crl.Misc.No.M-22349 of 2009 -6- the petitioner was not shown as an accused nor was his name mentioned in column No.2 ? Section 190 of the Code of Criminal Procedure finds existence in Chapter XIV of the Code of Criminal Procedure which is titled as 'Conditions requisite for initiation of proceedings'. This Section deals with cognizance of offences by the Magistrate and the same reads as follows:- “190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c ) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.” Criminal proceedings are initiated by a Magistrate taking cognizance of the offence or offences alleged to have been committed and mere presentation of a complaint by a private individual or the charge-sheet Crl.Misc.No.M-22349 of 2009 -7- by the police under Section 173 Cr.P.C. does not constitute the institution of criminal proceedings. It is clear from the Section that the initiation of the proceedings commences on taking of the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in sub-section (1) of Section 190 Cr.P.C. The first contingency apparently is in respect of offences which are non-cognizable offences as defined in the Code on the complaint of an aggrieved person and/or where police does not take cognizance despite the offence being a cognizable one on the basis of the facts. The second contingency is on a police report when in a case of cognizable offence, police after completion of its investigation approaches the Magistrate for issue of process. The third is when the Magistrate himself takes notice of an offence and issues the process. It needs mention here that this Section is subject to the provisions of the other Sections of Chapter XIV only and none else, meaning thereby the power to take cognizance continues and it never ceases till the conclusion of the trial but it varies in its scope and ambit as subjected and qualified by the Code itself depending upon the stage of the case at which the cognizance is to be taken under the Code by the Court. If the Magistrate takes cognizance under Clause (a) of sub- section (1) of Section 190 Cr.P.C., he should proceed under Chapter XV and examine the complainant under Section 200 Cr.P.C. If cognizance is taken under clause (b) or (c), the Magistrate should issue process under Section 204 Cr.P.C., Chapter XVI, if accused is not before him, and if the accused is already before him, he should proceed under Chapter XIX. Trial follows cognizance and cognizance is ordinarily preceded by enquiry/investigation. Crl.Misc.No.M-22349 of 2009 -8- Hon'ble Supreme Court in the case of Raghubans Dubey vs. State of Bihar, 1967 (2) SCR 423 has held that the Magistrate takes cognizance of the offence and not of the offenders. Once he takes cognizance of an offence, it is his duty to find out as to who are the real offenders and once he comes to the conclusion that apart from the persons sent by the police to face trial, some other persons are also involved, it is his duty to proceed against those persons. Summoning of the additional accused is part of the proceedings initiated by taking note of a cognizable offence. A Magistrate when takes cognizance under Section 190(1)(b) Cr.P.C. on a police report, he takes cognizance of the offence and not merely of a particular person or persons named in the charge-sheet and, therefore, the Magistrate is entitled to summon additional accused against whom he considers that it was good evidence after perusal of the statements recorded by the police under Section 161 Cr.P.C. and other documents referred to in the report under section 173 Cr.P.C. This clearly spells out the power of the Magistrate under Section 190 of the Code of Criminal Procedure. The Magistrate is not bound by the report submitted by the police under Section 173 Cr.P.C., he can, on the basis of the material available which has been submitted under Section 173 Cr.P.C., proceed to discharge a person sent up by the police to face trial under Section 239 of the Code of Criminal Procedure. Similarly, before the actual commencement of the recording of the prosecution evidence under Section 242 Cr.P.C., the Magistrate can on exercise of its powers under Section 190 Cr.P.C. proceed to summon a person under Section 204 Cr.P.C. as an accused by applying his mind to the facts emerging from the police report and taking into account the statements of Crl.Misc.No.M-22349 of 2009 -9- witnesses examined by the police and the material available. At this stage, there is no question of application of Section 319 Cr.P.C. which stage would only come after the recording of the evidence of the prosecution had started under Section 242 Cr.P.C. The Magistrate can ignore the conclusion of the Investigating Officer and take cognizance of the offence under Section 190 (1)(b) of the Cr.P.C. at any time but prior to the commencement of the recording of the prosecution evidence and summon a person as an accused. Once this stage is crossed and the actual recording of the evidence of the prosecution starts, jurisdiction of the Magistrate to take cognizance under Section 190 (1)(b) Cr.P.C. ceases to exist as thereafter power to proceed against other persons appearing to be guilty of the offence can only be exercised by the Court, if from the evidence led before the Court it appears that any person not being an accused has committed any offence for which such person could be tried together with other accused under Section 319 Cr.P.C. Merely because the trial has commenced as per Chapter XIX of the Cr.P.C., power of the Magistrate to take cognizance under Section 190 (1)(b) Cr.P.C. shall not cease except when the actual recording of the evidence of the prosecution has commenced. The judgments relied upon by the counsel for the petitioner in the cases of Kishori Singh (supra), Raj Kishore (supra) and Ranjit Singh (supra) are all cases where the Magistrate had already committed the case to the Court of Sessions as the offence was triable by the Sessions Court and it was in this context that the Hon'ble Supreme Court had held that the cognizance could not be taken by the Court at a stage prior to the one under Section 319 Cr.P.C. The present case would be one where the stage for issue of process under Section 319 Cr.P.C. has not reached Crl.Misc.No.M-22349 of 2009 -10- yet as the recording of the evidence of the prosecution has not commenced. This Court in Rohin Kumar Sachdeva vs. State of Punjab, 2004 (2) R.C.R. (Criminal) 964 while considering this preposition on consideration of the Division Bench judgment of the Andhra Pradesh High Court in R.C.Kumar vs. State of Andhra Pradesh, 1991 Cri.L.J.887 and judgment of the Supreme Court in Swil Ltd. (supra) held in paras 22 and 23 as follows:- “22. Here, somewhat similar question was considered by the Hon'ble Apex Court in SWIL Ltd.'s case (supra). In that case, the police submitted a report under Section 173 of the Code to a Magistrate against certain accused in which one of the accused was put in column No.2. On the basis of the said report, the Magistrate issued summons against all the accused shown in the charge-sheet. On the next date of posting, the Magistrate also issued summons to the person shown in column No.2. Then a question was raised that once the Magistrate took cognizance of the matter and issued summons to the accused mentioned in the police report, then subsequently on the next date of posting, he was not authorised to summon the accused who was shown in column No.2 and against whom summons were not issued at the time of initial stage of taking cognizance of the offence. The said order was challenged by the subsequent summoned accused in the High Court. The Crl.Misc.No.M-22349 of 2009 -11- High Court allowed the said petition while holding that the trial Court was not justified at all in summoning the accused when he was not shown in the column of accused persons in the charge-sheet. As such, an accused could have been summoned by the Court only under Section 319 of the Code after recording of the evidence. While setting aside the said judgment of the High Court, the Hon'ble Supreme Court has held as under: “At the stage of taking cognizance of the offence, provisions of Section 190 Cr.P.C. would be applicable. As per this provision, the Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under Section 204 Cr.P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge- sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with charge-sheet. Further, upon receipt of police report under Section 173(2) Cr.P.C. the magistrate is entitled to take cognizance of an offence under Section 190 (1)(b) even if the police report is to the effect that Crl.Misc.No.M-22349 of 2009 -12- no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At this stage, there is no question of application of Section 319 Cr.P.C. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case, neither the Magistrate was holding enquiry as contemplated under Section 2(g) Cr.P.C. nor had the trial started. He was exercising his jurisdiction under Section 190 by taking cognizance of an offence and issuing process. There is no bar under Section 190 Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge- sheet.” 23. Thus, it is clear that the Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even though the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the Investigating Officer and Crl.Misc.No.M-22349 of 2009 -13- independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At that stage, there is no question of application of Section 319 Cr.P.C. That provision would come into operation in the course of any enquiry into or trial. In the aforesaid case, it was not the stage when the Magistrate was either holding the inquiry as contemplated under Section 209 of the Code or the trial had started, therefore, it was held that there is no bar under Section 190 of the Code that when a process is issued against an accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but whose name was not included as accused in the charge-sheet. So, as far as the observations made by the Division Bench of the Andhra Pradesh High Court in R.C.Kumar's case (supra), that after taking cognizance of an offence, the Magistrate cannot summon the other accused on the basis of the material submitted along with the police report, can not be accepted in view of the above decision of the Supreme Court. But one fact is very much clear that the power of the Magistrate to summon an additional accused under Section 190 of the Code definitely ends, particularly with the regard to the person mentioned in column No.2 of the police report with the starting of the stage of recording the evidence Crl.Misc.No.M-22349 of 2009 -14- during trial. If some evidence is being collected against such an accused during the trial, he can be summoned under Section 319 of the Code, but at that stage of the trial such person cannot be summoned under Section 190 of the Code on the basis of the material placed by the police along with the final report submitted under Section 173 of the Code.” Observations of the Supreme Court in the cases of Raghubans Dubey (supra), Swil Ltd. (supra) and of this Court in Rohin Kumar Sachdeva (supra) would support the conclusions reached by this Court as recorded above. In the present case although charge against the persons, who had been sent to Court to face trial by the police under the report submitted under Section 173 Cr.P.C., stood framed under Section 240 Cr.P.C. but actual recording of evidence of the prosecution had not commenced although when application under Section 190 Cr.P.C. was moved by the complainant. The case after framing of charge on 14.2.2005 was adjourned to 19.4.2005 for prosecution evidence. Magistrate still had power to summon a person as an accused as per Section 204 Cr.P.C. while exercising its powers under Section 190 Cr.P.C. till the stage of commencement of actual recording of the evidence under Section 242 Cr.P.C. had passed, which was not the case in hand. The Magistrate had thus not committed any illegality which would call for exercise of discretionary powers of this Court under Section 482 Cr.P.C. In view of the above, the summoning order dated 15.7.2006 Crl.Misc.No.M-22349 of 2009 -15- (Annexure P-5) passed by the Judicial Magistrate, Ist Class, Malerkotla exercising powers under Section 190 Cr.P.C. and order dated 14.7.2009 (Annexure P-8) passed by the Additional Sessions Judge (Ad hoc) Fast Track Court, Sangrur, dismissing the revision petition preferred by the petitioner against the summoning order are in accordance with law and do not call for any interference by this Court. As the order framing charges against the petitioner dated 11.5.2009 (Annexure P-6) has been challenged on the same grounds as the other two orders and no other arguments have been raised independent of those dealt with earlier, this order also deserves to be upheld. Ordered accordingly. Finding no merit in the present petition, the same stands dismissed. December 22nd , 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE