Anar Singh And Another Vs. State Of U.P.
Allahabad High Court (Single Judge)
APPLICATION U/s 482, 12717 of 2015, Judgment Date: May 20, 2015
HIGH COURT OF JUDICATURE AT ALLAHABAD
'AFR'
Court No. - 41
Case :- APPLICATION U/S 482 No. - 12717 of 2015
Applicant :- Anar Singh And Another
Opposite Party :- State Of U.P.
Counsel for Applicant :- D.K. Tiwari
Counsel for Opposite Party :- Govt. Advocate, M.C. Chaturvedi
Hon'ble Manoj Misra, J.
Heard Sri B.N. Rai, who has put in appearance on behalf of the applicants; Sri M.C. Chaturvedi, who appears on behalf of the informant; and the learned A.G.A. for the State.
The instant application has been filed challenging an order dated 28.02.2015 passed by the Chief Judicial Magistrate, Jalaun at Orai by which the learned Magistrate at the time of taking cognizance on the police report with reference to case crime no. 1356 of 2014, P.S. Nadigaon, District Jalaun, after taking cognizance of the offences punishable under Sections 147, 148, 149, 342, 304 I.P.C., has proceeded to summon the applicants who though were named in the first information report but not sent for trial by the police.
The facts, in brief, as they appear on record, are that a first information report was lodged against as many as seven persons namely, Anar Singh (applicant no.1); Ranveer Singh (applicant no.2); Shanker Singh; Ashok; Mangal Singh; Sunil; and Narendra. The allegation in the FIR (Annexure 1 to the application) was to the effect that in the morning of 23.11.2014 when the informant (Vinod Kumar) was travelling form Gopalpura to his village Nadigaon, near village Parasani, he found the accused armed with various weapons standing near their Safari vehicle. Seeing the informant, they stopped the motorcycle of the informant and, thereafter, forcibly took him inside the standing vehicle, which was resisted by Hakim and Giriraj, who were with the informant, but the accused fired at them and chased them away. It is alleged that thereafter the informant was taken by the accused to a house at Sikandarpur where he was assaulted by lathi/ danda and firearm butts including sharp edged weapon. Thereafter, according to the allegations, on exhortation of Anar Singh and Ranu, the informant was further beaten and later, Anar Singh and Ranu fired at the informant, which struck him on his chest thereby making him unconscious and when he regained consciousness he found himself in Nadigaon Hospital.
Initially the first information report was registered under Sections 147, 148, 149, 307, 308, 324, 395, 397, 342 I.P.C. but, subsequently, the informant died on account of the injuries received by him and the case was converted to one punishable under Section 304 I.P.C. The police investigated the matter and laid charge-sheet against three named accused, namely, Mangal Singh, Sunil and Narendra whereas the other four accused, namely, Anar Singh, Ranveer Singh, Shanker Singh and Ashok were not sent for trial by observing that sufficient evidence was not found against them. The learned Magistrate while taking cognizance on the police report found that since the informant died of the injuries received by him in the incident, therefore the statement made by him in the first information report would partake the character of a dying declaration in view of the Apex Court's decision in Babulal v. State of Madhya Pradesh : AIR 2004 SC 846: (2003) 12 SCC 490 and further, as there was evidence of other witnesses also disclosing the involvement of all the seven accused, after taking cognizance of the offences, he proceeded to summon the remaining four accused as well.
It appears that the Investigating Officer had not sent the aforesaid four accused for trial on the ground that there was evidence to suggest that those four accused were not on the spot but were elsewhere at the time of the incident and therefore they could not have participated in the incident. Thus, it could be said that the Investigating Officer accepted the plea of alibi for not sending those four accused for trial.
The impugned order has been assailed by the learned counsel for the applicants on the ground that since the offences for which cognizance has been taken are triable by a court of session, the learned magistrate had no jurisdiction to summon the additional four accused. He submitted that the only option available to the learned magistrate was to commit the case to the court of session and it was only the court of session which could have summoned the additional accused after the case had been committed to it. In support of his submission, the learned counsel for the applicants placed reliance on paragraph 35 of the decision of the Constitutional Bench of the Apex Court in the case of Dharam Pal and others v. State of Haryana and another reported in (2014) 3 SCC 306, which will be dealt with later.
The learned A.G.A. as well as the learned counsel for the informant submitted that the decision of the Apex Court in Dharam Pal (supra) does not support the case of the applicants rather it recognises the power of a magistrate to summon an accused put in column no.2 of the charge-sheet. It has been submitted that the decision of the Apex Court in Dharam Pal (supra) affirms the earlier decision of the Apex Court in the case of Kishun Singh and others v. State of Bihar : (1993) 2 SCC 16. It has been submitted that in Kishun Singh's case (supra), in paragraph 13, the view taken by the Apex Court in the case of Raghubans Dubey v. State of Bihar : AIR 1967 SC 1167 that once cognizance of an offence is taken it becomes the Court's duty to find out who the offenders really are and if the Court finds that apart from the persons sent up by the police some other persons are involved, it is its duty to proceed against those persons by summoning them because the summoning of the additional accused is part of the proceeding initiated by its taking cognizance of an offence, was affirmed and it was observed that the aforesaid legal position did not undergo a change even after coming into force of the present Code of Criminal Procedure as was held in the case of Hareram Satpathy v. Tikaram Agarwala : (1978) 4 SCC 58. It has also been submitted that the Apex Court has also affirmed the said view in the case of SWIL Limited v. Union of India : (2001) 6 SCC 670 where the power of a Magistrate to summon an accused placed in column no. 2 of the charge-sheet was recognised even without taking recourse to the power under section 319 of the Code of Criminal Procedure.
I have considered the submissions of the learned counsel for the parties and have carefully perused the record.
The issue raised in this case is no longer res integra. A Constitutional Bench of the Apex Court in the case of Dharam Pal and others v. State of Haryana and another (supra) was required to decide the following questions as would be clear from paragraph 7 of the report, which is being reproduced herein below:-
"7. The questions which require the consideration of the Constitution Bench are as follows:
7.1 Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session?
7.2 If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report?
7.3 Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?
7.4 Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction?
7.5 Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?
7.6 Was Ranjit Singh's case (supra), which set aside the decision in Kishun Singh's case(supra), rightly decided or not?"
While dealing the questions nos. 1 and 2 above, the Apex Court, in paragraph nos. 31 to 35 of the report, observed as follows:-
"31. The issue in the reference being with regard to the powers of the Magistrate to whom a report is submitted by the police authorities under Section 173(3) of the Code, it is necessary for us to examine the scheme of Chapter XIV of the Code, dealing with the conditions requisite for initiation of proceedings.
32. Section 190, which has been extracted herein before, empowers any Magistrate of the First Class or the Second Class specially empowered in this behalf under Sub-section (2) to take cognizance of any offence in three contingencies. In the instant case, we are concerned with the provisions of Section 190(1)(b) since a police report has been submitted by the police, under Section 173(3) of the Code sending up one accused for trial, while including the names of the other accused in column 2 of the report. The facts as revealed from the materials on record and the oral submissions made on behalf of the respective parties indicate that, on receiving such police report, the learned Magistrate did not straight away proceed to commit the case to the Court of Session but, on an objection taken on behalf of the complainant, treated as a protest petition, issued summons to those accused who had been named in column 2 of the charge- sheet, without holding any further inquiry, as contemplated under Sections 190, 200 or even 202 of the Code, but proceeded to issue summons on the basis of the police report only. The learned Magistrate did not accept the Final Report filed by the Investigating Officer against the accused, whose names were included in column 2, as he was convinced that a prima facie case to go to trial had been made out against them as well, and issued summons to them to stand trial with the other accused, Nafe Singh. The questions which have arisen from the procedure adopted by the learned Magistrate in summoning the Appellants to stand trial along with Nafe Singh, have already been set out herein before in paragraph 4 of this judgment.
33. As far as the first question is concerned, we are unable to accept the submissions made by Mr. Chahar and Mr. Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate had no other function, but to commit the case for trial to the Court of Session, which could only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr. Dave, there could be no intermediary stage between taking of cognizance under Section 190(1)(b) and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Session Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event, the Session Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same.
34. The view expressed in Kishun Singh's case, in our view, is more acceptable since, as has been held by this Court in the cases referred to herein before, the Magistrate has ample powers to disagree with the Final Report that may be filed by the police authorities under Section 173(3) of the Code and to proceed against the accused persons dehors the police report, which power the Session Court does not have till the Section 319 stage is reached. The upshot of the said situation would be that even though the Magistrate had powers to disagree with the police report filed under Section 173(3) of the Code, he was helpless in taking recourse to such a course of action while the Session Judge was also unable to proceed against any person, other than the accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross-examined on behalf of the accused.
35.In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter."
(Emphasis Supplied)
A conspectus of the observations made in paragraphs 33, 34 and 35 of the judgment of the Apex Court in Dharam Pal's case, extracted herein above, would go to show that the view taken in Kishun Singh's case (supra) was affirmed and power of the learned magistrate to summon the accused placed in column no.2 of the charge-sheet, while disagreeing with the police report, was recognised. The Apex Court further proceeded to hold that if the case is committed to a court of session then, in that event, the court of session would have power to summon accused shown in column no.2 of the police report even before the stage under Section 319 Cr.P.C. is reached provided that there is sufficient material available on record. It is only after the magistrate commits the case to the court of session that the magistrate loses his power to summon the accused placed in column no.2 of the report because after committing the case to the court of session, the Magistrate would have no jurisdiction over the matter as, by such commitment, by virtue of section 193 of the Code of Criminal Procedure, the session court would derive not only the power to take cognizance of any offence but also the ancillary power to proceed against an accused. However, it may be clarified that the Magistrate would not have the power to summon additional accused at the stage of committal proceeding as has been observed in a subsequent Constitutional Bench decision of the Apex Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 where, in paragraph 47 of the report it was observed as follows:
"Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session."
(Emphasis Supplied)
The learned counsel for the applicant placed reliance on the observations made in paragraph 35 of Dharam Pal's case (supra) that "thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter", so as to contend that if the case is triable by a court of session, the magistrate would have no power to summon accused placed in column 2 of the charge sheet, but the only option available to him is to refer the matter to the court of session.
I am afraid that the interpretation as accorded to the observations of the apex court, noticed herein above, by the learned counsel for the applicant, cannot be accepted, inasmuch as, the aforesaid observations have been made in the context of proceeding further with the trial and not with respect to an inquiry to proceed against the accused under section 204 (1) (b) of the Code of Criminal Procedure. It would be useful to observe that cognizance is taken of an offence under Chapter XIV of the Code of Criminal Procedure, 1973 whereas proceedings are initiated against a person under Chapter XVI of the Code. Therefore, once cognizance of an offence is taken it becomes the Court's duty to find out who the offenders really are and if the Court finds that apart from the persons sent up by the police some other persons are involved, it is its duty to proceed against those persons by summoning them because the summoning of the additional accused is part of the proceeding initiated by its taking cognizance of an offence, as has been held in Raghubans Dubey's case (supra), which was followed in Kishun Singh's case (supra), which has been affirmed in Dharam Pal's case (supra). Even in the case of Hardeep Singh (supra) the Constitutional Bench of the Apex Court has acknowledged that the Court at that stage can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. The relevant observations are there in paragraph 54 of the report, which is being reproduced herein below:
"54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 CrPC."
(Emphasis Supplied)
As, in the instant case, the learned Magistrate has summoned the applicants at the stage of taking cognizance, on the basis of the material available in the case diary/police report, and by that date the case had not been committed to the Court of Session, the order passed by the learned Magistrate does not suffer from any legal infirmity.
The application is dismissed.