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1989 DIGILAW 319 (MP)

Narendra Kumar Dubey v. State of M. P.

1989-09-15

S.AWASTHY

body1989
ORDER S. Awasthy, J. -- 1. This revision-petition is directed against the order dated 2.2.1989, passed in Sessions Case No. 53 of 1988 pending in the Court of 2nd Additional Sessions Judge, Hoshangabad. 2. An offence under section, 302 of the Indian Penal Code was registered vide Crime No. 270 of 1988 against Arun Kumar and Atul Kumar who were arrested in connection with the offence for causing the death of Laxmi Prasad Brahman. The police filed a charge-sheet in the Court of Magistrate First Class and the aforesaid two accused persons were committed to the Court of Sessions. An application was moved on behalf of the prosecution and it was pointed out that in the statement of Satish Kumar recorded under section 161 of the Criminal Procedure Code and also in the affidavit of Mahesh Kumar there are allegations against them hence a case under section 302 of the Indian Penal Code is made out against the applicants (herein) also. The trial Court directed to arrest the applicants for their appearance in the Court on 24.2.1989 under section 319 of the Criminal Procedure Code. 3. Shri V.K. Tankha with Shri Mukesh Agrawal, learned counsel for the applicants, argued that the Sessions Judge had no power under section 319 CrPC to make the applicants as co-accused unless there is some evidence against them. Since no evidence has been recorded by the trial Court, such an order could not have been passed. He relied on the case of Hukamaram v. State of Rajasthan 1982(2) CrLJ 2341 and submitted that evidence for purpose of section 319 CrPC does not include statements recorded under sections 161, 164 and 202 of the Code of Criminal Procedure. The evidence must be recorded by the Court on the basis of which that Court gets jurisdiction under section 319 of the Code of Criminal Procedure. He also relied on the cases of Joginder Singh v. State of Punjab AIR 1979 SC 339 , Delhi Municipality v. Ram Kishan AIR 1983 SC 67 and Shri Mahant Amar Nath v. State of Haryana AIR 1983 SC 288 . 4. He also relied on the cases of Joginder Singh v. State of Punjab AIR 1979 SC 339 , Delhi Municipality v. Ram Kishan AIR 1983 SC 67 and Shri Mahant Amar Nath v. State of Haryana AIR 1983 SC 288 . 4. Shri Singh, learned counsel for the State, assisted by Shri D. V. Pendharkar and Kumari Chanchal Sharma, argued that the Sessions Court, prior to framing of the charge, can, without recording evidence, summon a person as an additional accused on the basis of documents and the final report of the investigating officer under section 173 of the Code of Criminal Procedure independently of the provisions under section 319 CrPC. Reliance was placed on the cases of Raghubans Dubey v. State of Bihar AIR 1967 SC 1167 and Hareram v. Tikaram AIR 1978 SC 1568 . 5. The following question was referred to in the case of Latfuf Rahman v. State 1985(2) CrLJ 1238 for consideration : "Whether the Court of Sessions, without itself recording evidence, can summon a person to stand trial as an accused (along with others committed to it by a Magistrate) on the basis of documents in the final report of the Investigating Officer under section 173 of the Code of Criminal Procedure, 1973 independently of the provisions of section 319 of the said Code?" The Full Bench replied in the affirmative holding that if a Magistrate or the Court of Sessions takes cognizance of the offence, it is not only within the Court's powers to summon anyone who, on the adequate materials, appears to it to be prima facie guilty of the said offence but indeed it is its duty to do so. Further, a Magistrate trying a warrant case, when considering the question of the framing of the charge under sections 239 and 249, can summon an offender as an additional accused without recording evidence, if he were satisfied on the basis of the report under section 173 that a prima facie case was made out against him. Once it is so, there is no rationale whatsoever for holding that under identical and, in any case, similar power under sections 227 and 228, the Court of Sessions should be denuded of the right to summon an additional accused. 6. The said Court gave the answer as under: ".... Once it is so, there is no rationale whatsoever for holding that under identical and, in any case, similar power under sections 227 and 228, the Court of Sessions should be denuded of the right to summon an additional accused. 6. The said Court gave the answer as under: ".... the Court of sessions prior to the framing of the charge, can, without itself recording evidence; summon a person as an additional accused on the basis of the documents in the final report of the investigating officer under section 173 of the Code independently of the provisions of section 319 thereof and further that the substitution of section 319 of the new Code in place of section 351 of the old one has not brought any radical change in the law by making the former as the sole repository of such power". 7. It was further observed that the Court of Sessions takes cognizance of the case or the offence as a whole and, therefore, is entitled to summon anyone who, on the material before it, appears to be guilty of such offence to stand trial before it. To highlight, what is committed to the Court of Sessions by the Magistrate is the case or the offence for trial and not the individual offender therefor. To hold otherwise would be again relapsing into the fallacy that cognizance is taken against individual accused persons and not of the offence as such. This was the evil which the amendment sought to remedy in express terms. 8. Section 319 operates in the narrow field where the trial has already proceeded or an inquiry has already been commenced. Indeed, the key words are the opening ones "where, in the course of any inquiry into, or trial of, an offence". It is thus patent that section 319 is designed to meet the specific and limited situation of a Court discovering in the midst of a trial or inquiry that some additional accused should also 'be tried' together with the persons already before it. This provision, indeed, has no relevance whatsoever with the pre-trial or the pre-inquiry stage, i.e., before the framing of the charge after cognizance has been taken or before any inquiry has as yet commenced. This provision, indeed, has no relevance whatsoever with the pre-trial or the pre-inquiry stage, i.e., before the framing of the charge after cognizance has been taken or before any inquiry has as yet commenced. Therefore, section 319 operates in a field or an arena altogether different from that of the taking of the cognizance of the offence and procedure which are part and parcel thereof under the rule of Raghubans Dubey's case (supra). Again the earlier provisions of sections 209, 227, 228, 239 and 240 pertain to the stage before the actual framing of the charge and commencement of the trial and, therefore, operate in a field distinct from that under section 319. 9. It was never intended nor do the provisions of section 319 remotely convey that the section was sought to be enacted now as the sole repository of power or summoning the additional accused in all situations. Section 319 was in no way intended to make any radical or drastic departure from the law on this point under the old Code. It was not even remotely intended to override the salutary rule in Raghubans Dubey's case (supra) which the Supreme Court has reiterated at least twice in the context of the new Code as well. 10. In the case of Dr. Shamim Ahmad Khan v. State of Bihar 1968(2) CrLJ 1383 it was observed : "Section 319 does not prescribe that the Court should be convinced or totally satisfied that the person who has been summoned has committed the offence. It suffices for the exercise of the power that it appears to be so to the Court." Sections 226 to 228 pertain to the very threshold stage of the beginning of a Sessions trial. Consequently, their field of operation is altogether different from what may follow much later during the course of such a trial. The relevant provisions, therefore, operate in an entirely different field one at the threshold stage of the opening of the trial and the other in the subsequent stage of recording evidence in the course thereof which might even be nearing the close of a trial. There is thus no occasion of any conflict or contradiction in the provisions under section 319 and 226 to 228 of the Code of Criminal Procedure. 11. There is thus no occasion of any conflict or contradiction in the provisions under section 319 and 226 to 228 of the Code of Criminal Procedure. 11. For the reasons aforesaid, I am of the view, that a Judge can summon an offender as an additional accused without recording any evidence, if he were satisfied on the basis of the report under section 173 of the Code of Criminal Procedure. Such power flows from sections 227 and 228 of the Code of Criminal Procedure, as held above. 12. The revision has, therefore, no substance and it is accordingly dismissed. However, it is made clear that the learned Sessions Judge shall hear the parties before framing a charge, in order to find out, if any case is made out against the applicants (herein).