CRIMINAL REVISION NO.1799 OF 2002 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 26, 2008 Suman Kanta Duggal and others .....Petitioners VERSUS State of Punjab ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.N. K. Jain, Advocate, for the petitioners. Mr. A. S. Brar, DAG, Punjab, for the respondent. **** RANJIT SINGH, J. This case reflects the sodded state of affairs where proceedings are pending before the criminal Court for framing of a charge for a period over nine years. Challan in this case was presented on 11.9.1999 but the charges are yet to be framed. This delay can not be justified. The present revision has been filed by the petitioners against an order summoning them for facing the prosecution CRIMINAL REVISION NO.1799 OF 2002 :{ 2 }: alongwith the other accused, though they were found innocent and kept in column No.2 in the challan presented before the Court. Notice in this revision petition was issued on 6.9.2002 by noticing the submissions made by the counsel that Magistrate can not take cognizance of an offence against the petitioners time and again. Thereafter, the revision petition had been adjourned from time to time on request made by counsel on one ground or the other. In between, the case also could not be put up for hearing as it got mixed up with other cases. In this background, when the case came up for hearing on 28.8.2008, this fact came to the notice of the Court that the charge in this case has not been framed for over nine years. Noticing this inordinate delay in criminal proceedings, the Trial Magistrate was asked to furnish comments for this delay. Communication now is received, which would show the officers dealing with the case in poor light. Having disclosed that the challan was presented on 11.9.1999 and the case was fixed for 5.10.1999, for consideration of charge, it is mentioned that it remained pending, on the request of the counsel for the accused, for consideration of charge till 5.10.2001. Would this be a valid justification for a Court not to go ahead and frame a charge merely on the asking of a counsel representing a party and that too for a period of two years? On this date i.e. 5.10.2001, Public Prosecutor statedly filed an application under Section 319 Cr.P.C. for summoning the petitioners shown in column No.2 of the challan. This application was allowed on 5.2.2002 and that is how the present petitioners were ordered to be summoned. The reasons for which this case remained pending for nearly six years, rather would sound shocking to any judicial CRIMINAL REVISION NO.1799 OF 2002 :{ 3 }: conscious. As per the Trial Magistrate the case remained pending for service of the present petitioners till 16.1.2008. The petitioners, five in number, have impugned the order summoning them as accused through the present petition on 4.9.2002 and still they would not appear before the Court as they were not served. Six years went past in this manner. What an approach to deal with a criminal case? It would rather sound strange. The petitioners knew the order summoning them as an accused and they had impugned the same before this Court but still would not choose to appear before the Court on being so summoned. This is a clear case of avoiding service deliberately and a delaying tactics par excellence not only to help themselves but their co-accused, who were challaned. Are the Courts so helpless? Are not there enough provisions in the procedural Code to deal with such situation? The officers dealing with the case could certainly be expected to conduct the case better and with promptness. They have allowed this case to drag endlessly. The case, when fixed for 8.3.2008, for consideration of the charge had to be adjourned on the ground that the Court was busy in Mega Lok Adalat. The petitioners and their co-accused, however, had been smart enough to file an application seeking exemption and, thus, the case was adjourned to 10.5.2008. On this date, again an exemption application was filed, which was allowed and the case was fixed for 7.7.2008, when again an exemption application was filed and the Court conveniently allowed the said prayer also and adjourned to case to 17.9.2008. What happened on that date is not known as comments are dated 15.9.2008. The District and Sessions Judge, Ludhiana, has forwarded these CRIMINAL REVISION NO.1799 OF 2002 :{ 4 }: comments on 18.9.2008 without bothering to know the progress of the case on 17.9.2008. This state of affairs is certainly unacceptable. This would need to be further dealt with separately. Learned counsel for the petitioners would make reference to the facts in this case to urge that the petitioners could not have been joined as accused and the impugned order can not be sustained, having regard to the role attributed to them. This is a case where the Punjab National Bank, Gill Road, Ludhiana, had sanctioned credit facilities to proprietorship concern owned and controlled by Shri Arihant Kumar by the name of M/s Vishwanath Industries. The petitioners had stood as guarantors for the repayment of loan facilities availed by this concern and had deposited their title deeds of various properties as security. M/s Vishwanath Industries failed to repay the loan and recovery proceedings were initiated. Ultimately, the challan was presented against Arihant Kumar, Proprietor of M/s Vishwanath Industries, in which case the petitioners have now been summoned as additional accused. The primary grievance of the petitioners appears to be that this application under Section 319 Cr.P.C. was moved, summoning the petitioners whereas no evidence was recorded. This, however, was not the submission made before the Court at the time of issuance of notice of motion. At that stage, the submission was that the Magistrate could not take cognizance of offence against the petitioners on more than one occasions. A perusal of the impugned order would show that the Magistrate has not exercised jurisdiction under Section 319 Cr.P.C. to summon the petitioners as additional accused. At the time of CRIMINAL REVISION NO.1799 OF 2002 :{ 5 }: taking cognizance, the Magistrate had perused the challan papers and had, thus, summoned the petitioners in exercise of his jurisdiction under Section 190(1)(b) of Cr.P.C. The question, which requires consideration, thus, is whether the Magistrate would have power to summon any person as an additional accused, whose name is shown in Column No.2 while taking cognizance under Section 190 (1)(b) Cr.P.C. There does not appear to be any scope of debate in regard to the power and jurisdiction available with the Magistrate to summon anyone as an additional accused while taking cognizance of the offence under Section 190 of Cr.P.C. In Hareram Satpathy Vs. Tika Ram Aggarwal, AIR 1978 Supreme Court 1568, the Hon'ble Supreme Court has held that where Magistrate on perusal of record and after satisfying himself that there were prima-facie grounds for issuing process and thus issued process against them, he could not be said to have exceeded the power vested in him under law. In fact, the Hon'ble Supreme Court found that this point is no more res- integra and was squarely covered by earlier decision in the case of Raghubans Dubey Vs. State of Bihar, AIR 1967 Supreme Court 1167. In this case, it was held as follows:- “In our opinion, once the cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence, it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the CRIMINAL REVISION NO.1799 OF 2002 :{ 6 }: proceeding initiated by his taking cognizance of an offence.” Reference can also be made to the case of Smt.Nagawwa Vs. Veeranna Shivalingappa Konjalgi, AIR 1976 Supreme Court 1947, wherein, it is observed as under:- “It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.” It would, thus, be seen that the Magistrate has not only the power to issue process in exercise of his jurisdiction under Section 190 Cr.P.C. but the scope of revisional Court, including the High Court, is also limited. In this regard only a reference can be made to the decision of the Hon'ble Supreme Court in the case of Chander Deo Singh Vs. Prokar Chandra Bose, AIR 1963 Supreme Court 1430, where again it is held that at the time of taking a decision, whether a process is to be issued against the accused or not what the Magistrate has to see is whether there is evidence in support of the allegation of the complaint so as to justify the issue of process and commencement of proceedings against the accused and not whether the evidence is sufficient to warrant his conviction. CRIMINAL REVISION NO.1799 OF 2002 :{ 7 }: In case of Hareram Satpathy (supra) the Supreme Court has held that, it is crystal clear that under Section 190 of the Code of Criminal Procedure, the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offender at that stage as to who actually the offender involved in the case might have been, has to be decided by the Magistrate after taking cognizance of the offence. Observations of the Hon'ble Supreme Court in M/s India Carat Pvt. Ltd. Vs. State of Karnataka and another, AIR 1989 Supreme Court 885, can also be noticed in this regard and are:- “The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take a cognizance of the case, if he thinks fit, in exercise of his CRIMINAL REVISION NO.1799 OF 2002 :{ 8 }: powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.” Thus, the power of a Magistrate to take cognizance of an offence under Section 190(1)(b) of the code, even when the police report was to the effect that the investigation has not made out any offence against an accused does not seems to be in any doubt. In Abhinandan Jha Vs. Dinesh Mishra, AIR 1968 Supreme Court 117, this question was considered and answered from somewhat different angle. The question arose in this case was whether a Magistrate to whom a report under Section 173 (2) is submitted to the effect that no case had been made out against the accused, could direct the police to file a charge sheet, on his disagreeing with the report submitted by the police. The Hon'ble Supreme Court held that the Magistrate has no jurisdiction to direct the police to submit a charge sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he comes to the conclusion CRIMINAL REVISION NO.1799 OF 2002 :{ 9 }: that further investigation was necessary, he might make an order to that effect under Section 156(3) Cr.P.C. and if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence, he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. Thus, the power of the Magistrate to issue process to a person, who has been shown in column No.2 without reaching the stage of recording evidence, is well recognised and settled. There is no scope of any doubt in this regard when the trial is also a magisterial trial. Subsequently, some issues have arisen in regard to the power of Sessions Judge to add an additional accused before the stage of 319 Cr.P.C. is reached but there has never been any doubt expressed in regard to the powers of the Magistrate to summon an additional accused to be joined while taking cognizance of the offence under Section 190(1)(b) especially in the case of magisterial trial. Merely because this application was moved under Section 319 Cr.P.C., would not make any difference. The impugned order clearly shows that the Magistrate has exercised his jurisdiction and power under Section 190(1)(b) Cr.P.C. And merely wrong mention of a section would not go to effect the jurisdiction or power of the Magistrate to summon the petitioners as additional accused. The present revision petition is without merit and is dismissed. The Trial Court can now be expected to show expediency in disposing this case, which is pending for framing of a charge for a period of over nine years. Apparently, Trial Magistrate is not showing any urgency even now, knowing the fact that this Court has expressed itself with anguish in inordinate delay in framing the CRIMINAL REVISION NO.1799 OF 2002 :{ 10 }: charge itself. This matter would need attention of the Administrative Judge of Ludhiana Sessions Division and for this purpose, a copy of this order be placed before His Lordship by the Registry. September 26,2008 ( RANJIT SINGH ) khurmi JUDGE