Ram Deo Roy v. Ram Dhyan Roy — 1992 DIGILAW 49 (PAT)

Judgment BINODANAND SINGH, J. 1. Initially this application was filed u/s. 439 (2) of the Code of Criminal Procedure (hereinafter referred to as "the Code"). However, subsequently the learned counsel appearing for the petitioner by order dated 30-10-1990 was permitted to convert this application into an application u/s. 397; read with sec. 401, of the Code and to make necessary amendment wherever required in, tire petition since earlier a prayer was made to cancel the bail granted to opposite party No. 1 Ram Dhyan Roy by the impugned order dated 30-7-1990 passed by the learned Sessions Judge, Sitamarhi, in Sessions Trial No. 197 of 1990 and direct him to be committed to prison or surrender before the Judicial Magistrate 1st class, Sitamarhi. Accordingly, amendments have been made and now the prayer of the petitioner has been confined only to the part of the impugned order by which the learned Sessions Judge has considered the case of the opposite party No. 1 as an accused on the trial before him, being Sessions Trial No. 197 of 1990 and in that capacity on appearance of the opposite party No. 1 has released him on bail and further has fixed 68-1990 for framing of the charge against all the accused persons including opposite party No. 1 and has transferred the case to the Court of 4th Additional Sessions Judge, Sitamarhi. It has also been contended on behalf of the petitioner that the trial of the opposite party No. 1 by the Court of Session without being properly committed u/s. 209 of the Code if held shall be illegal and without jurisdiction. 2. The facts relevant for the decision of the application are that the opposite party No. 1 Ram Dhyan Roy is the son-in-law of the petitioner Ram Deo Roy. Daughter of the petitioner, namely Gita Devi (deceased) was married to opposite party No. 1 on 23.2.1987. Due to non-fulfillment of the demand of dowry in the shape of motor cycle the petitioners daughter was subjected to torture by opposite party No. 1 and ultimately she is alleged to have been poisoned to death by in-laws and opposite party No. 1. Due to non-fulfillment of the demand of dowry in the shape of motor cycle the petitioners daughter was subjected to torture by opposite party No. 1 and ultimately she is alleged to have been poisoned to death by in-laws and opposite party No. 1. The petitioner having come to know about the murder of his daughter lodged a written report before the Officer-in-charge of Nanpur Police Station on 27-5-1989, on the basis of which Nagpur P.S. Case No. 62 of 1989 under sections 302/201/34 of the Indian Penal Code and u/s. 34 of the Dowry Prohibition Act was instituted. After completing the investigation the investigating Officer submitted final report mistake of fact but the learned sub-divisional Judicial Magistrate did not agree with the conclusion of the police and ultimately he took cognizance of the offence under sections 302/201/34 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act against the opposite party No. 1 and others and accordingly issued summons to them. 3. Henceforth, I will deal with the case of the opposite party No. 1 since the question to be decided relates to him only. 4. Ram Dhyan Roy, Opposite party No. 1, filed a petition for grant of anticipatory bail before the learned Sessions Judge, Sitamarhi which was dismissed by order date 10.6.1990. Thereafter, he moved the High Court in Cr. Misc. No. 6431 of 1990 for grant of anticipatory bail which was also rejected on 3-7-1990. Even after rejection of the anticipatory bail by the High Court the opposite party No. 1 did not prefer to surrender before the Magistrate concerned as a result of which in order to avoid delay in passing the necessary orders relating to commitment enquiry. Shri P.N. Tiwary, Judicial Magistrate 1st Class, Sitamarhi, committed the case to the Court of Session by order dated 7-7-1990 showing opposite party No. 1 as absconder. It will be useless to state that other accused persons presented themselves before the learned Magistrate concerned at the time of passing of the commitment order. 5. So far as this opposite party No.1 Ram Dhyan Roy is concerned he strainghway on 30-7-1990 appeared in the Court of learned Sessions Judge, Sitamarhi where the Session Trial No. 197 of 1990 was pending in which this opposite party No. 1 was also wanted as an absconding accused and made a prayer for bail. 5. So far as this opposite party No.1 Ram Dhyan Roy is concerned he strainghway on 30-7-1990 appeared in the Court of learned Sessions Judge, Sitamarhi where the Session Trial No. 197 of 1990 was pending in which this opposite party No. 1 was also wanted as an absconding accused and made a prayer for bail. The learned Sessions Judge by the impugned order after going into the merits of the allegation against the opposite party No.1 and others has granted bail to opposite party No. 1 and has further ordered as stated in the very beginning. 6. At the time of argument the learned counsel appearing for the petitioner also challenged the propriety of the impugned order of the learned Sessions Judge by which bail was granted to opposite party No. 1 contending that the learned Sessions Judge has no power to grant bail to opposite party No. 1 u/s. 439 of the Code since heat the time of passing of that order was not an accused in custody. According to him for an accused to be in custody is a condition precedent for making prayer for bail u/s. 439 of the Code, besides the illegality in the other part of the impugned order. But subsequently after submission having been made on behalf of opposite party No. 1 in course of which the learned counsel appearing for opposite party No.1 placed reliance on the case of Niranjan Singh and another V/s. Prabhakar Rajaram Kharote and others wherein it has been held by the Supreme Court that an accused can be in custody not merely when the police arrests him, produced him before a Magistrate and gets a remand to Judicial or other custody. He can be stated to be in Judicial custody when he surrenders before the Court and Submits to its directions. The learned counsel appearing for the petitioner, however has while making submission has made distinction between the case of Niranjan Singh (Supra) and the case in hand on facts. However, ultimately the ratio decendi of the reported decision is that the appearance of the accused in Court and his submission to the jurisdiction will amount to custody. On this score the order of the learned Sessions Judge to that extent, which relates to the grant of bail to opposite party No. 1 does not require any interference. However, ultimately the ratio decendi of the reported decision is that the appearance of the accused in Court and his submission to the jurisdiction will amount to custody. On this score the order of the learned Sessions Judge to that extent, which relates to the grant of bail to opposite party No. 1 does not require any interference. The main part of which the learned counsel appearing for the petitioner has challenged the legality of the impugned order is the order by which the learned Sessions Judge has fixed a date for framing of charge and has transferred the case taking the opposite party No. 1 as an accused of the Sections Trial before him in Sessions. Trial No.1 97 of 1990. In this connection it has been contended by the learned counsel appearing for the petitioner that the learned Sessions Judge has adopted a novel procedure of his own, by passing the procedure for Sessions trial laid down in the Code of Criminal Procedure. 7. In order to find out the procedure for trial of an accused in a sessions trial, it appears desirable to take into consideration the various sections of the Code of Criminal procedure in this connection. 8. The case starts from the state of taking of cognizance, i.e. sec. 190 of the Code and the accused comes in picture for the first time after action is taken u/s. 204 of the Code by issuance of processes against the accused. Thereafter, the relevant provision for the purpose is sec. 208 of the Code which relates to the supply to the accused of copy of police report and other documents in police cases and in the cases instituted otherwise than on police report, the supply of copies of the papers as mentioned in the section has to be made u/s. 206 of the Code, when the stage of commitment of the case to the Court of Session comes. In. this connection sec. 193 of the Code will also be relevant since this section deals with the cognizance of offences by Courts of Session and provides that except as otherwise expressly provided by this Code or any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. So this provision necessitates the commitment of the case. Now the manner in which a case of an accused or all the accused persons can be committed has been prescribed in sec. 209 of the Code which reads as follows: "209. Commitment of case to Court of Session when offence is triable exclusively by it - 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 Session, he shall. (a) Commit, after complying with the provisions of sec. 207 or sec. 208 as the case may be, the case to the court of section, and subject to the provisions bf this Code relating to bail, remand the accused to custody until such commitment has been made....... etc. " 9. Thus from the reading of sec. 209 of the Code, it follows that in a case instituted on a police report it is necessary that either the accused appears or is brought before the Magistrate, which makes it clear that in absence of an accused no commitment order can be passed. Besides, that time Court has also to see as to whether the provisions of sec. 207 or sec. 208 of the Code, as the case may be, has been complied with or not. For compliance of sec. 207 or sec. 208 of the Code, as the case may be, requirement of the statue is that the copy of the papers, as mentioned in sections 207 and 208 are to be furnished to the accused. This shows that furnishing of such copies to the counsel or to any person on behalf of accused shall not be a proper compliance of the provisions of sections 207 and 208 of the Code. This also presupposes the appearance of the accused before the Magistrate. In eventuality the case is committed to the court of Session, the procedure as laid down for session trial has to be followed. Chapter XVIII of the Code deals with the trial before a Court of Session. This also presupposes the appearance of the accused before the Magistrate. In eventuality the case is committed to the court of Session, the procedure as laid down for session trial has to be followed. Chapter XVIII of the Code deals with the trial before a Court of Session. Sec. 226 of the Code lays do in that when the accused appears or is brought before the Court in pursuance of Commitment of the case u/s. 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. S9 according to the provisions contained in this section as well, it is clear that at the time of opening of the case for Sessions trial presence of the accused is must which may be by appearance or by being brought before the Court and that also in pursuance of commitment of the case under section 209 of the Code. So it is clear that the presence of the accused must be in pursuance of the commitment of the case of the accused to the Court of Session as provided u/s. 209 of the Code. The appearance of the accused other wise cannot be deemed to be an appearance for the purpose of sec. 226 of the Code if it is not in pursuance of the commitment of the case under Sec. 209 of the Code for starting with the trial of the case. Judicial functions discharged by a Magistrate under Sec. 209 of the Code has been held to be an enquiry tinder the Code for the purpose of commitment of the case to the Court of Session. 10. A confusion may, however arise from the word "Case" used in various sections of the Code. The Word "accused" presupposes a case against him. Under the Old Code of Criminal Procedure (hereinafter referred to as "the Old Code") at several places instead of word "Case", which is now found in the present Code the word "accused" was there, such as under sections 163, 207-A and 213 of the Old Code, which are relevant for the purpose in hand. It appears that after introduction of the present Code, the commitment enquiry proceeding- as provided under Chapter XVIII of the Old Code, has been abolished. It appears that after introduction of the present Code, the commitment enquiry proceeding- as provided under Chapter XVIII of the Old Code, has been abolished. Under Chapter XVIII of the Old Code the committing Magistrate has the power to discharge an accused and frame charges against them according to the material available. In the Enquiry proceeding which was to be conducted under the old Code as full dressed enquiry, rather a preliminary trial the Magistrate had wider power which respect to each accused on the basis of the materials available. Now under the Present Code that privilege of the accused of being discharged at the stage of commitment enquiry has been withdrawn and the inquiring Magistrate has no such power. Under the present Code the power of the inquiring Magistrate is very much limited, that is only to the extend of finding out whether the offence is exclusively triable by the Court of Session or not. Perhaps in view of this the Legislature did not consider it necessary to use the word "case", wherever the words "accused" were under the Old Code in the sections referred to above. But in view of such change now some times confusion arises as to whether the whole case is committed by the Court of Magistrate to the Court of Sessions u/s. 209 of he Code or the case of particular accused who has appeared or has been brought before him, as required u/s. 209 of the Code, can be committed under this provision. In every case there are allegations against each and every accused, otherwise he cannot be declared to the an accused in the Case. Therefore, it has to be held that unless a particular accused appears or is brought before the committing Magistrate his case cannot be committed to the Court of session. This view is fortified from sec. 207 of the present Code also, wherein observation of section 207 is dependant upon the appearance of the accused or his production in the Court of the Magistrate. Thus if all these provisions are read together a conclusion has to be drawn that appearance of the accused in the Court of the Magistrate and his commitment by a competent Court under the provisions of the Code is essential, otherwise the Court of Sessions will have no jurisdiction to entertain the case of that accused. Thus if all these provisions are read together a conclusion has to be drawn that appearance of the accused in the Court of the Magistrate and his commitment by a competent Court under the provisions of the Code is essential, otherwise the Court of Sessions will have no jurisdiction to entertain the case of that accused. This becomes further clear from the provision contained in sec. 226 of the Code which lays down that when the accused appears or is brought before the Court (i.e. Court of Session) in pursuance of a commitment of his case u/s. 209, the prosecutor shall open his case etc. This view further finds support from certain observations made by the Supreme Court in the case of State of U.P. V/s. Lakshmi Brahman and another, 1983 Cr. LJ 834, where similar view has been expressed. 11. Thus to sum up it is a condition precedent for trial of an accused before a Court of Session that he should present himself before the Magistrate for observance of the provisions of sec. 207 as well as the procedure laid by sec. 209 of the Code by the Committing Magistrate. His appearance before the Court of Session directly for the first time by passing the provisions of sections 207 and 209 of the Code shall not be deemed to be his appearance before the Sessions Court as an accused in the sessions case in question and cannot be allowed- to join the trial. The Sessions Judge has no power to try the case of an accused in a Sessions trial unless the accused has been committed to the Court of Session, except as provided u/s. 319 of the Code, which also does not deal with an accused in the case but is for those persons who have not been accused in the case. 12. For the aforesaid reasons, this application is allowed and the order dated 3-7-1990 passed by the learned Sessions Judge, Sitamarhi, in Sessions Trial- No. 197 of 1990 is hereby set aside. Opposite Party No.1 is hereby directed to appear before the Magistrate concerned for observance of sections 207 and 209 of the Code, prior to joining the Sessions trial. 13. For the aforesaid reasons, this application is allowed and the order dated 3-7-1990 passed by the learned Sessions Judge, Sitamarhi, in Sessions Trial- No. 197 of 1990 is hereby set aside. Opposite Party No.1 is hereby directed to appear before the Magistrate concerned for observance of sections 207 and 209 of the Code, prior to joining the Sessions trial. 13. However, it shall be open to the trial Court either to stay the further proceeding of the Sessions trial in question in anticipation of the opposite party No. 1 Ram Dhyan Roy being committed to the Court of Session or to proceed with the trial of the other accused persons, whose case has been committed and have appeared or have been brought before him in pursuance of commitment u/s. 209 of the Code as the circumstances of the case demand.