Criminal Revision No.996 of 2006 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.996 of 2006 Date of Decision: December 24, 2008 Dharam Pal & others ...Petitioners VERSUS State of Haryana & another ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Rajiv Trikha, Advocate, for the petitioners. Mr.Yashwinder Singh, AAG, Haryana, for the State. Mr.Ashit Malik, Advocate, for respondent No.2. ***** RANJIT SINGH, J. The petitioners have been summoned to face trial for the commission of offence punishable under Section 302 read with Section 34 IPC by Judicial Magistrate Ist Class, Panipat. The petitioners have challenged this order on the ground that the Criminal Revision No.996 of 2006 : 2 : Magistrate would not have power under Section 190 Cr.P.C. to summon the petitioners and accordingly would pray that the order be set-aside. FIR No.397 was lodged on 25.12.2005 under Sections 302/148/149 IPC and under the provisions of the Arms Act. The allegations are that Dharampal and Rajpal raised lalkara by saying that Bhupinder be not allowed to escape and he be caught and shot dead. Allegation further is that Partap and Kuldeep had caught hold of Bhupinder and made him fall to the ground, but he somehow managed to free himself and ran away. While he was trying to escape, Ranbir and Pardeep fired shots with their respective katas injuring Bhupinder and leading to his death. The matter was investigated and the present four petitioners, namely, Dharam Pal, Rajpal, Kuldeep and Partap were found innocent. Challan in this case was filed against Ranbir and Pardeep. Complainant filed an application under Section 190 Cr.P.C. before the Judicial Magistrate Ist Class, Panipat while he was to deal with the final report submitted by the police. Notice was issued to the accused and they filed reply. Thereafter, the Magistrate passed the impugned order summoning the petitioners to face trial for the commission of offence under Section 302 IPC and under the Arms Act in exercise of his powers under Section 190 Cr.P.C. Learned counsel for the petitioners would contend that impugned order would be without jurisdiction as the case is exclusively triable by the Court of Sessions and as such Magistrate would not have power to issue process against those persons, who may have been named in the FIR but not charge sheeted. The Criminal Revision No.996 of 2006 : 3 : contention of the counsel is that these persons can be summoned only in exercise of powers available to the court under Section 319 Cr.P.C. and as such counsel contends that the impugned order is without jurisdiction. In support of his submission, the counsel has referred to some precedents. The counsel for the petitioners would refer to the case of Kishori Singh and others Vs. State of Bihar and another, AIR 2000 Supreme Court 3725, wherein it is observed that in an offence triable only by Court of Sessions, at a stage prior to one under Section 319 Cr.P.C., the Magistrate could not have issued process against those persons, who may have been named in the FIR, but not charge sheeted. It appears that an identical proposition as is arising in the present case was dealt with by the Hon'ble Supreme Court in Kishori Singh's case (supra) as can be seen from para 6 of the judgment as re-produced below:- “Mr.B.B.Singh, learned Counsel appearing for the State of Bihar, however, contended that though the stage under Section 319 of the Code of Criminal Procedure had not reached in the case in hand, but the original order of the Magistrate dated 10-6-1997 must be held to be an order in exercise of power under Section 190(1)(b) of Cr.P.C. and at that stage there was no fetter on the powers of the Magistrate to take cognizance of the offence and also to issue process against those who might have been arrayed as accused persons by the police while filing the charge sheet. In support of this contention reliance has been placed on a decision of this Court in M/s. India Criminal Revision No.996 of 2006 : 4 : Carat Pvt. Ltd. v. State of Karnataka (1989) 2 SCC 132: (AIR 1989 SC 885: 1989 Cri LJ 963).” The Hon'ble Supreme Court, however, answered this question by saying that the same is squarely answered by two earlier recent decisions of the Supreme Court in this regard as can be seen from paras 8 and 9 of the judgment, which are re-produced below:- “8. The questions involved in this appeal are now squarely answered by the two recent decisions of this Court in the case of Raj Kishore Prasad v. State of Bihar (1996) 4 SCC 495: (1996 AIR SCW 2273: AIR 1996 SC 1931: 1996 Cri LJ 2523) and a three Judge Bench judgment of this court in the case of Ranjit Singh v. State of Punjab (1998) 7 SCC 149: (1998 AIR SCW 3249: AIR 1998 SC 3148: 1998 Cri LJ 4618). In the latter case their Lordships have considered the earlier two-Judge Bench decision of this Court in Raj Kishore Prasad's case (supra). 9. After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments and on examining the order dated 10-6-1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the F.I.R. as accused persons, but not chargesheeted in the chargesheet that was filed by the police under Section 173 of Cr.P.C.” Criminal Revision No.996 of 2006 : 5 : Accordingly, the orders passed by the High Court as well as by the learned Magistrate were set-aside. This very precise question arose before the Hon'ble Supreme Court and was answered by the Hon'ble Court in the case of Raj Kishore Prasad (supra). The question that arose for consideration in this case is noticed at the very beginning of the judgment and is mentioned as under:- “Can a Magistrate undertaking commitment under Section 209 Cr.P.C. of a case triable by a Court of Session, associate another person as accused, in exercise of power under Section 319 of the Code of Criminal Procedure, or under any other provision, is the significant question which crops up for consideration in this appeal.” After referring to the provisions of Section 209 Cr.P.C. and so also to the objects and reasons given for enacting the provisions of Code of Criminal Procedure, 1973, concerning the preliminary enquiry and to the 41st report of Law Commission, the Hon'ble Supreme Court held as under:- “Thus we come to hold that power under Section 209 Cr.P.C. to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an `inquiry' and material before him not being `evidence'. When such power was not so vested, his refusal to exercise it cannot be corrected by a court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session Criminal Revision No.996 of 2006 : 6 : can, in any event, summon the accused to stand trial, alongwith the accused meant to be committed for trial before it. Presently it is plain that the stage for employment of Section 319 Cr.P.C. has not arrived. The Order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant alongwith the accused proposed to be committed to stand trial before it is patently illegal and beyond jurisdiction since the Magistrate has no such power to add a person as accused under Section 319 Cr.P.C. when handling a matter under Section 209 Cr.P.C., the Court of Session, in purported exercise of revisional powers cannot obligate it to do so. The question posed at the outset is answered accordingly in this light. When the case comes after commitment to the Court of Session and evidence is recorded, it may then in exercise of its powers under Section 319 Cr.P.C. on the basis of the evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the purpose, to stand trial alongwith the accused committed, providing him the necessary safeguards envisaged under sub- section (4) of Section 319. Such course is all the more necessary in the instant case when expression on merit have extensively been made in the orders of the Magistrate, the Court of Session and that of the High Court. Any other course would cause serious prejudice to the appellant. We order accordingly.” Criminal Revision No.996 of 2006 : 7 : While taking this view, the Hon'ble Supreme Court observed that Section 209 Cr.P.C. is the product of expert deliberation followed by legislative exercise and as a result of which “committal proceedings” have been abolished in cases triable by a Court of Session. It was accordingly observed that “it would be legitimate for us to conclude that the Magistrate at the stage of Section 209 Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need to be added or subtracted to face trial before the Court of Session”. It would be of some significance to notice that while taking this view, Hon'ble Supreme Court in the case of Raj Kishore Prasad (supra) made reference to the case of State of U.P. v. Lakshmi Brahman and another, AIR 1983 SC 439, where the Hon'ble Court had taken a view which prima-facie was not in accordance with the view expressed in Raj Kishore Prasad's case (supra). The view expressed in Lakshi Brahman's case (supra) did not find the approval of the Hon'ble Supreme Court as can be observed from the following:- “From the text of the judgment it is clear that the statement of “Object and Reasons” reflecting legislative policy as to the quality of `inquiry' was not laid before this Court as well as the report of the 41st Law commission recommending abolishing of “inquiry” before the Magistrate, which was responsible for the change. Had the Bench been apprised of the historical perspective, we have no doubt in our mind that the comprehension of the word “inquiry” as meant for Section 209 Cr.P.c., would Criminal Revision No.996 of 2006 : 8 : have been the same as gathered by us on becoming cognizant of the legislative scheme for early disposal of cases triable by a court of Session.” Hon'ble Supreme Court also expressed its reservation in regard to the law laid down in the case of Kishun Singh and others vs. State of Bihar, JT 1993(1) SC 173, which had been approved in Nisar and another v. State of U.P. 1995(2) SCC 23. The Supreme Court, however, did not take this matter further as the facts situation in the case of Raj Kishore Prasad (supra) did not warrant its resolution a dire necessity. It may be noticed that the Hon'ble Supreme Court in Kishun Singh's case (supra) has held that though additional accused could not be summoned to face trial under the provisions of Section 319 Cr.P.C. prior to recording of evidence, yet the Sessions Court could legally do so by invoking the provisions of Section 190 Cr.P.C. This view was re-affirmed by the Hon'ble Supreme Court in Nisar's case (supra). Apparently, in view of reservation expressed by the Hon'ble Supreme Court in regard to the cases of Kishun Singh (supra) and Nisar (supra) in the case of Raj Kishore Prasad (supra), the question was referred for consideration to a larger bench and it is in this background, the Hon'ble Supreme Court has expressed itself in the case of Ranjit Singh Vs. State of Punjab, 1998(4) RCR (Criminal) 552 (SC). In regard to the powers of the Court of Sessions to add an additional accused, the Hon'ble Supreme Court held as under:- “16. It is clear that during the said stage the Court of Session can deal only with the accused who is referred to Criminal Revision No.996 of 2006 : 9 : in Section 209. The accused who can appear or can be brought before a Session Court at that stage is only that accused who is referred to in Section 209. Section 227 deals with the power of the court to decide whether that accused is to be discharged or not. If he is not discharged the Session Court is obliged to frame a charge against the accused as per Section 228 of the Code. Thereafter the plea of that accused has to be recorded as enjoined by Section 229. The stage of evidence collection commence only next. (vide Sections 230 & 231 of the Code); 17. So from the state of committal till the Session court reaches the stage indicated in Section 230 of the Code that Court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Session Court to add any other person to the array of the accused. 18. Thus, once the Session Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Session Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.” Criminal Revision No.996 of 2006 : 10 : Having so held, the Hon'ble Supreme Court noticed that one question still survived for an answer. Hon'ble Court then referred to a situation where the Sessions Judge was to notice from the material produced but before any evidence is taken, that any other person should also have necessarily been made an accused, without which the framing of the charge would be defective. It went on to notice that would the Sessions Judge then be completely powerless to deal with such a contingency? In this regard, the Hon'ble Supreme Court referred to another situation where the material produced by the investigating agency was to show positive involvement of a person who had not been arrayed as an accused due to inadvertence or omission, then was the Court to wait until the evidence was collected? Answering these situations, the Hon'ble Supreme Court held as under:- “21. Though such situations may arise only in extremely rare cases the Session Court is not altogether powerless to deal with such situations to prevent miscarriage of justice. It is then open to the Session Court to send a report to the High Court detailing the situation so that the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. But we hasten to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes.” It is to be noticed that even Ranjit Singh's case (supra) has been doubted by the Hon'ble Supreme Court and the matter has been referred to a larger bench in the case of Dharam Pal and others Criminal Revision No.996 of 2006 : 11 : v. State of Haryana and another, 2006(1) Supreme Court Cases 273. It is, thus, noticed that there may be a doubt in regard to the powers of the Sessions Court to add an additional accused till the stage of 319 Cr.PC. is reached. Learned counsel for the petitioners has referred to the case of Gulam Hussain v. Aamina Bano, 2003(1) RCR 340, where it has been viewed that when the offence is exclusively triable by Sessions Judge, Magistrate has no power to add some other accused persons against whom challan has not been filed by the police. The High Court after making reference to the judgments, like Raj Kishore Prasad (supra) and Ranjit Singh (supra) has held as under:- “It may further be stated here that a distinction has to be drawn between the cases triable by the Magistrate or exclusively triable by the Sessions Court. The Magistrate has power to add some other accused against whom challan has not been filed by the police. Thus, I am clearly of the view that when the Magistrate, after taking cognizance of the case on police report summons the charge-sheeted accused and subsequently, he found on consideration of material on record that prima facie case is also established against other accused persons, he can issue summons against those accused persons not arraigned as accused in the charge sheet filed by the police and this power can be exercised at any time, but before framing of the charges against the accused persons against whom challan was filed by the police and cognizance was taken by the Magistrate. But, that power Criminal Revision No.996 of 2006 : 12 : is not available to the Magistrate in the cases exclusively triable by the Court of Session and in such cases, the Magistrate had no power to add some other accused persons against whom challan has not been filed by the police. Therefore, that distinction has to be kept in mind before dealing with such matter and no confusion should be left.” This view has again been reiterated by Rajasthan High Court in the case of Kalamudeen Vs. State of Rajasthan, 2006(1) RCR 182. In addition to cases, like Raj Kishore Prasad (supra), Kishori Singh (supra) and Ranjit Singh (supra), the Court has taken note of another decision by the Hon'ble Supreme Court in the case of Swil Ltd. Vs. State of Delhi and another, 2001(6) SCC 670. In this case, power of the Magistrate to take cognizance of an offence under the provisions of Section 190 Cr.P.C. appears to have been recognised. It can be so noticed from the following observations of the Hon'ble Supreme Court:- “In our view, from the facts stated above, it is clear that at the stage of taking cognizance of the offence, provisions of Section 190 CrPC would be applicable. Section 190 inter alia provides that “the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence.” 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 CrPC is empowered to issue process to the accused. At the stage of issuing Criminal Revision No.996 of 2006 : 13 : 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) CrPC, 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 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 CrPC.” Reference has been made to the case of Raghubans Dubey v. State of Bihar, 1967 SC 1167, where it was observed that Magistrate takes cognizance of an offence and not the offenders. It is further held that once he takes the 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 by the police some other persons are involved, it is his duty to proceed against those persons. It is then observed that summoning of the additional accused is part of the proceedings initiated by his taking cognizance of an offence. High Court in the case of Kalamudeen (supra), distinguished the law laid down in Swil Ltd.'s case (supra) by Criminal Revision No.996 of 2006 : 14 : observing that offences in this case were under Sections 420, 406, 120-B IPC, which were triable by the Magistrate and, therefore, the decision turned on its own facts and would not be of assistance in cases which are exclusively triable by Court of Session. Accordingly, the ratio of law as laid down in Raj Kishore Prasad's case (supra) was followed by the Rajasthan High Court. Learned counsel for the respondents, however, would refer to the case of Rajinder Prasad v. Bashir and others, AIR 2001 (SC) 3524 to say that Magistrate can take recourse to provisions of Sections 192 to 199 of the Code for addition of offence and addition of accused. Referring to the provisions of Section 190, the Hon'ble Supreme Court observed that under this Section, a Magistrate has jurisdiction to take cognizance of offences against such persons also who have not been arrested by the police as accused-persons, if it appears from the evidence collected by the police that they were prima-facie guilty of offence alleged to have been committed. Reference has been made to the cases of Raghubans Dubey (supra) and Swil Limited (supra) to observe as under:- “Section 209 of the Code prescribes that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions he shall commit, after compliance with the provisions of S. 207 or S. 209, as the case may be the case to the court of Sessions and subject to the provisions of the Code, pass appropriate orders. This Section refers back to S. 190, as is evident Criminal Revision No.996 of 2006 : 15 : from the words “instituted on a police report” used in S. 190(1)(b) of the Code. While dealing with the scope of S.190, this court in Raghubans Dubey v. State of Bihar, (1967) 2 SCR 423 held that the cognizance taken by the Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well”. While taking this view in Rajinder Prasad's case (supra), the Hon'ble Supreme Court has referred to and relied upon Swil Ltd. (supra). As already noticed, in Swil Ltd. the offences were exclusively triable by Magistrate and in that eventuality, his jurisdiction and power to issue process to some other person against whom there is some material on record, but his name is not included as an accused in the charge sheet, can well be made out. This distinction while relying on the ratio of law in the case of Swil Ltd. appears to have escaped notice of the Hon'ble Supreme Court in Rajinder Prasad's case (supra). Hon'ble Supreme Court in Rajinder Prasad's case (supra) has also not noticed the cases of Raj Kishore Prasad (supra), Kishori Singh (supra) and Ranjit Singh (supra). In fact, this very precise submission on the basis of power under Section 190(1) (b) Cr.P.C. was raised by the counsel appearing in the case of Kishori Singh (supra) as can be seen from the portion re-produced above, but did not find favour as the question had earlier been answered in the cases