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1971 DIGILAW 538 (ALL)

Bhopal Singh v. State of U. P.

1971-11-27

C.D.PAREKH

body1971
ORDER C.D. Parekh, J. - This revision has been preferred against the order dated 11-2-1971 passed by the IInd Addl. Sessions Judge, Muzaffarnagar. 2. It will be convenient to give few facts before I express opinion on the merit of the matter. The Applicants before this Court viz., Bhopal Singh, Shukhbir Singh, Charar Singh and Rajpal Singh, were committed to the court of sessions by order dated 17-12-1970 passed by Shri R.N. Srivastava, ADM (J), Muzaffarnagar, committing them for trial for offences Under Sections 120-B and 302 IPC. It is stated that they had conspired and committed the murder of one Dilawar Singh, in village Datiana, PS Kotwali, distt. Muzaffarnagar. As it appears from the record, that after the case was received in the court of the Sessions Judge it was transferred to the court of IInd Addl. Sessions Judge, Muzaffarnagar. The Applicants Bhopal Singh and Sukhbir Singh filed an application on 11th of February, 1971, before the IInd Addl. Sessions Judge praying that the committal order passed by the ADM (J) was an illegal order for the grounds given in the application and therefore, a reference be made to this Court for quashing the order u/s 215 Code of Criminal Procedure. It was contended that the trial should not proceed on such an order. The IInd Addl. Sessions Judge, Muzaffarnagar, has passed the impugned order on this application rejecting the prayer, hence this revision has been filed against the said order. 3. Two preliminary objections have been taken. The first objection taken from the other side is that the revision is in fact against the order dated 17-12-1970 passed by the ADM (J) and since no revision has been filed against that order this revision against the order passed by the IInd Addl. Sessions Judge could not have been entertained under the provisions of Section 435 read with Section 439 Code of Criminal Procedure. The second objection is that the revision, if any, is barred by the rule of limitation as provided Under Article 131 of the Limitation Act. 4. It will be convenient to dispose of both the preliminary objections together. It has been the long standing practice of this Court that before filing a revision u/s 435 Code of Criminal Procedure the Sessions judge or the DM should be moved and if no recommendation is made to this Court, thereafter revisions are filed to this Court. 4. It will be convenient to dispose of both the preliminary objections together. It has been the long standing practice of this Court that before filing a revision u/s 435 Code of Criminal Procedure the Sessions judge or the DM should be moved and if no recommendation is made to this Court, thereafter revisions are filed to this Court. In the instant case revision has been filed against the order of the IInd Addl. Sessions Judge rejecting the application in revision, which in my opinion is in accord with the practice of this Court. The order dated 17-12-70 passed by the ADM (J) purports to have beer, passed Under Sub-section (10) of Section 207A and not u/s 213 of the Code of Criminal Procedure. Section 215 of the Code applies to commitment made u/s 213 and not to commitment made u/s 207A(10). In fact and in law I, therefore, hold that the order passed on this application was an order u/s 435 Code of Criminal Procedure and a revision could have been filed against that order. It is another matter that directly no revision has been filed against the order dated 17-12-1970 passed by the ADM (J) but the order dismissing the application is sufficient enough to cover up the order of the ADM (J) as in that order the order of the ADM (J) has merged, although in dismissal. In the circumstances of the case I do not think that there is any material irregularity or illegality in filing this revision against the order passed by the IInd Addl. Sessions Judge, Muzaffarnagar. In my opinion Article 131 Limitation Act does not apply to the instant case. Article 131 Limitation Act applies to a case for filing revision, where the court is required to exercise its power of revision under the Code of Criminal Procedure. The Article prescribes the time and it is to be calculated from the date of the decree, order or sentence sought to be revised. In this case the order sought to be revised is the order passed by the IInd Addl. Sessions Judge, Muzaffarnagar and this revision against that order is well within time and if the order of the IInd Addl. Sessions Judge is revised it will mean that the matter may again be sent back to the Sessions Judge for disposal or this Court may resolve the controversy. Sessions Judge, Muzaffarnagar and this revision against that order is well within time and if the order of the IInd Addl. Sessions Judge is revised it will mean that the matter may again be sent back to the Sessions Judge for disposal or this Court may resolve the controversy. In the instant case I am satisfied that the matter need not be sent back to the Addl. Sessions Judge once again as in my opinion, which I will express hereafter, the order passed by the ADM (J) is not according to law. The revision is maintainable and is within time. 5. On the legal aspect of the order passed by the ADM (J) the facts may briefly be stated. A first information report dated 6-7-1969 was lodged by one Ved Singh against unknown accused persons stating that his brother Dilawar Singh was shot at and died as a result of gun-shot injuries. No one was named by the informant, as accused, in that first information report. After registering the case the police appears to have investigated the case and during the course of investigation the police suspected the Applicants to be connected with the crime but ultimately the police submitted final report on 18-1-1970. The ADM (J), Muzaffarnagar, did not accept the final report and summoned the Applicants on the perusal of the police papers. The perusal of the committal order will show that ADM (J) committed the Applicants to the court of sessions to stand their trial Under Sections 302/120-B IPC as if it was a case covered by Section 207A of Code of Criminal Procedure. The ADM (J) in his committal order has observed that a litigation was going on between Pitam Singh and Sukhbir Singh, one of the Applicants before me. Dilawar Singh (deceased), a resident of the same village, was giving financial aid to Pitam Singh. In that litigation, it was further alleged that 9th of July 1969, was fixed for the hearing of the case. Dilawar Singh (deceased), a resident of the same village, was giving financial aid to Pitam Singh. In that litigation, it was further alleged that 9th of July 1969, was fixed for the hearing of the case. About 20 days prior to 9th of July, 1969, one Sukhbir son of Lal Singh while he was passing in front of the cattle shed of Sukhbir Applicant at about sun-set, all the Applicants were seen there and Sukhbir son of Lal Singh heard Sukhbir Applicant saying that till Dilawar was done away no purpose will be served and that Dilawar should be finished prior to the date of the hearing of Pitam Singh's case. Thereupon Chhattar Singh Applicant replied that he, Rajpal and Bhopal would do this on receiving a thousand rupees for each of them. Sukhbir Applicant is said to have agreed. On 5th of July, 1969, Birham Singh was passing from near the house of Sukhbir Applicant at about 9 P.M. and he also heard Sukhbir Applicant saying to the other Applicants that they have not removed Dilawar and the date of the case was approaching near Chhattar Singh accused Applicant replied that he would do away with Dilawai Singh prior to that date. The other witnesses examined by the police u/s 161 Code of Criminal Procedure also made similar statements Dilawar was done to death on 6th July, 1969. After going through the statement recorded u/s 161 Code of Criminal Procedure in the opinion of the ADM (J) a prima facie case Under Sections 120-B and 302 IPC was made out against the Applicants and he accordingly committed them to stand trial before the court of sessions. This commitment therefore is covered by Sub-section (10) of Section 207A Code of Criminal Procedure and is not covered by Section 213 Code of Criminal Procedure. 6. The short question, therefore, is that whether the ADM (J) has taken cognizance of the case u/s 190(1)(b) Code of Criminal Procedure or u/s 190(1)(c) Code of Criminal Procedure. In the instant case it is an admitted fact that a final report was submitted by the police and no charge-sheet was submitted against the Applicants or against any other person. The short question, therefore, is that whether the ADM (J) has taken cognizance of the case u/s 190(1)(b) Code of Criminal Procedure or u/s 190(1)(c) Code of Criminal Procedure. In the instant case it is an admitted fact that a final report was submitted by the police and no charge-sheet was submitted against the Applicants or against any other person. The ADM (J) could, therefore, take cognizance of the case after the submission of the final report u/s 190(1)(c) Code of Criminal Procedure and it was no more open to him to take cognizance of the case u/s 190(1)(b) Code of Criminal Procedure. The matter has now been concluded by the Supreme Court in a case reported in Abhinandan Jha v. Dinesh Misra 1967 SCR 3 668 wherein it has been held that if the police report is of the action taken u/s 169 then the magistrate may agree with the report and close the proceeding. If he disagrees with the report he can give directions to the police u/s 156(3) to make a further investigation. If the police, after further investigation submit a charge-sheet, the magistrate may follow the procedure where the charge-sheet u/s 170 is filed; but if the police are still of the opinion that there was no sufficient evidence against the accused, the magistrate may agree or disagree with it. Where he agrees, the case against the accused is closed. Where magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence, he can take cognizance u/s 190(1)(c). The provision of Section 169 enabling the police to take a bond for the appearance of the accused before a magistrate if so required is to meet such a contingency of the magistrate taking cognizance of the offence notwithstanding the contrary opinion of the police. The power u/s 190(1)(c) was intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police either want only or through a bonafide error do not submit a charge-sheet. But the magistrate cannot direct the police to submit a charge-sheet, because the submissions of the report depends entirely upon the opinion formed by the police and not on the opinion of the magistrate. But the magistrate cannot direct the police to submit a charge-sheet, because the submissions of the report depends entirely upon the opinion formed by the police and not on the opinion of the magistrate. The magistrate, if he disagrees with the report of the police, can himself take cognizance of the offence u/s 190(1)(a) or (c), but, he cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion. In the instant case no complaint appears to have been filed by the informant and therefore, the magistrate, as it appears, took cognizance of the case u/s 190(1)(c) Code of Criminal Procedure on his own suspicion after perusal of the police papers. In the circumstances of the case the magistrate could not have, therefore, committed the case to the court of sessions after perusal of the police papers only but the procedure prescribed for such an enquiry contemplated by Section 207 Code of Criminal Procedure should have been followed. Section 207A Code of Criminal Procedure applies only to cases where a magistrate takes cognizance of a case u/s 190(1)(b) Code of Criminal Procedure and it does not apply to any such case where cognizance has been taken Under Sub-clauses (a) and (c) of Section 190(1) Code of Criminal Procedure. Section 190(1)(b) Code of Criminal Procedure reads thus: Upon a report in writing of such facts made by any police-officer: Under Sub-section (a) of Section 207 Code of Criminal Procedure the magistrate in any proceeding instituted on a police report should follow the procedure specified in Section 207A and not otherwise. Under Sub-section (1) of Section 207A when, in any proceeding instituted on a police report, the Magistrate receives the report forwarded u/s 173, he shall for the purpose of holding an inquiry under this section, fix a date which shall be a date not later than fourteen days from the date of the receipt of the report, unless the Magistrate, for reasons to be recorded, fixes any later date. Under Sub-section (3) of that section at the commencement of the inquiry, the magistrate shall, when the accused appears or is brought before him, satisfy himself that the document referred to in Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished. Thus it is clear that Section 207-A Code of Criminal Procedure apply to a case where proceedings have been initiated and cognizance has been taken upon a report in writing of the facts constituting the offence made by any police officer and not otherwise. In cases covered by Sub-sections (a) and (c) of Section 190 of Code of Criminal Procedure, Section 207(a) has no application as is clear from its opening words. Section 207 has been divided into two parts which runs thus: 207. In every inquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall,- (a) in any proceeding instituted on a police report, follow the procedure specified in Section 207-A; and (b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter. The other provisions of this Chapter as stated in Sub-clause (b) of Section 207 relate to Section 208 and onwards and not to any other section. Section 207(1) therefore specifically speaks of proceedings instituted on a police report and if we read this expression with the expression used in Sub-clause (b) of Section 190(1) the position of law is clear that it only speaks of initiation of proceedings on charge-sheet and not otherwise. In the circumstances, I, therefore, hold that the ADM (J) was not right when he committed the Applicants to the court of sessions without taking resort to the proper procedure. 7. It has been contended on behalf of the Applicants that this illegality adopted in the procedure has not only resulted in a wrong committal having been made but it has caused prejudice to the Applicants as well. 7. It has been contended on behalf of the Applicants that this illegality adopted in the procedure has not only resulted in a wrong committal having been made but it has caused prejudice to the Applicants as well. It has been argued on behalf of the Applicants that if the procedure u/s 208 and onwards would have been followed the Applicants would have been able to show to the magistrate that there was no prima facie case made out from the evidence which the prosecution might have led under the provisions of Section 208 and the Applicants would have been able to get their discharge from the court of the magistrate himself. I can very well see the prejudice caused to them by adopting the other procedure. In my opinion when the ADM (J) took cognizance of the case u/s 190(1)(c) he should have proceeded with the case according to the proper procedure instead of committing them straight away to the court of sessions after perusal of the police papers. 8. In the circumstances of the case I set aside the order passed by the sessions judge and also the order of the ADM (J) committing the Applicants to the court of sessions. The ADM (J) is directed to proceed with the case according to law.