Israil Rai v. State Of Bihar — 1994 DIGILAW 192 (PAT)

Judgment Loknath Prasad, J. 1. All these references made under Sec. 395, Cr. P.C. by 2nd Additional Sessions Judge, West Champaran, Bettiah, were taken up together for the reason that all these references were made by a common order dated 15.7.1993 passed by the learned Additional Sessions Judge, West Champaran, Bettiah and in all these cases common question of law is involved, consequently, this common order will dispose of all these reference cases. 2. The facts, in short, giving rise to these references made by the Addl. Sessions Judge can be summarised that as many as five Sessions cases, namely, S. Tr. No. 133/91 under Sec. 364, S. Tr. No. 134/91 under Secs. 448, 323, 363, 366 and 376 I.P.C. S. Tr. No. 193/93 under Secs. 395 and 412, I.P.C. S. Tr. No. 242193 under Secs. 399, 402, 307, 212, 216 and 400, I.P.C. and Secs. 25 (a), 26 and 27 of the Arms Act and S. Tr. No. 258/93 under Secs. 364 and 307, I.P.C. and 27 of the Arms Act were pending before the 2nd Additional Sessions Judge for trial. 3. All these cases were committed to the Court of Sessions and there is no doubt about it that the learned Sessions Judge, Bettiah transferred those cases to the Court of 2nd Additional Sessions Judge for disposal. From the reference order dated. 15.7.1993 by the Court below it appears that in almost all the Sessions cases the charge-sheet was submitted before the concerned Chief Judicial Magistrate in respect of some of the accused persons and it has been mentioned that the investigation as against some of the accused persons could not be concluded as accused persons are absconding and the investigation against them are pending. The Chief Judicial Magistrate took cognizance of offence and committed the case to the Court of Sessions in respect of the accused persons against whom chargesheet was submitted. 4. The learned Additional Sessions Judge while making reference to this Court observed that admittedly in the new Cr. P.C. i.e. under Sec. 209, Cr. The Chief Judicial Magistrate took cognizance of offence and committed the case to the Court of Sessions in respect of the accused persons against whom chargesheet was submitted. 4. The learned Additional Sessions Judge while making reference to this Court observed that admittedly in the new Cr. P.C. i.e. under Sec. 209, Cr. P.C. now the entire case is to be committed to the Court of Sessions but admittedly the entire case has not been committed to the Court of Sessions because from the charge-sheet itself it appears that investigating in respect of some of the accused persons is going on and it is quite possible that supplementary charge-sheet will be submitted as against the absconding accused. It has also been observed that under Sec. 193, Cr. P.C. the Sessions Judge has also taken cognizance of the offence in respect of only partial accused persons and as such the entire commitment is definitely bad in law and expressed his doubt in respect of the partial commitment of the case by the Chief Judicial Magistrate and consequently taking cognizance of the offence by the Sessions Judge himself and thus invoked the provisions of Sec. 395 of the Cr. P.C. for seeking the opinion of the Court. 5. At the very outset it said that a reference may be made to this Court about the validity of any Act, Ordinance or Regulation or any of the provision contained in an Act, Ordinance or Regulation the determination of which is necessary for the disposal of the case and the Court concerned will make reference after setting out its opinion and the reasons regarding the same for decision. But in the instant case the Court has not observed that any of the provision of the new Cr. P .C. i.e. most probably Section 209 or 193 is invalid or in operative and the reason has not been assigned declaring these provisions to be invalid so it appears that the Court below apparently mis-directed himself and was under a very impression made these references. So validity of some of the provisions of the Cr. P.C. is not being challenged. However, it appears to me after going through the entire reference order dated 15.7.1993 passed in S. Tr. So validity of some of the provisions of the Cr. P.C. is not being challenged. However, it appears to me after going through the entire reference order dated 15.7.1993 passed in S. Tr. No. 133/91 that the Court below expressed his doubt only about the validity of commitment order passed by the Chief Judicial Magistrate and consequently the cognizance being taken by the Sessions Judge in some of the Sessions cases under reference appears to be bad in law. In such a situation if any particular order is bad in law then the aggrieved party should have set the law in motion be filing revision or quashing application challenging the validity of commitment order or cognizance order. So in order only to enlighten the Court and to remove the doubts these reference cases are being disposed of in the manner indicated below. 6. In Reference Case No. 1/94 on behalf of the accused persons Md. Khalil, an advocate, appeared. On the other hand in other Reference cases no appearance was made on behalf of accused persons by any advocate because it appears that some of the accused persons are in custody, so on their behalf Shri Prakash Chandra Pandey, a senior advocate was appointed by the Court as amicus curiae to assist the Court. In all these Reference cases on behalf of the State Mr. Bhola Nath Sen appeared. 7. Learned counsel for the petitioners appearing in Cr. Reference Cases No. 1/94 at the very outset submitted that the doubt expressed by the learned Additional Sessions Judge appears to be correct to some extent because the Code does not provide plurality of commitment in view of Sec. 209, Cr. P.C. On the other hand, Mr. Pandey and the learned A.P.P. appearing for the State submitted that even the new Code does not bar subsequent commitment order if the situation so arises and practically there is no illegality in the commitment and the trial Court can proceed and all these matters were completely decided in Full Bench decision of the Kerala High Court reported Kesavan Natesan V/s. Madhavan Peethambharan and others. 8. 8. It appears from the reference order dated 15.7.1993 that the court below expressed his doubt that the commitment order passed by the learned Chief Judicial Magistrate in as many as five Sessions cases under reference appears to be bad in law because in all these criminal cases only a preliminary charge-sheet was submitted and investigation in respect of some of the accused person is going on, and under Sec. 209, Cr. P.C. the court is required to commit the entire case and not only of some of the accused persons who were before the Chief Judicial Magistrate. In this connection it can be said that no doubt the old Code provided for multiplicity of commitment proceeding and the committing Court was required to commit the accused person and plurality of commitment was recognised under the Old Code but under the new Code the entire commitment chapter had gone a complete change.. But still under the new Code if the matters is to be examined in details then it can be said that new Code also envisage the plurality of commitment proceeding. Firstly after introduction of sub-clause (8) in Sec. 173 of the new Cr. P.C. the Investigating Officer is empowered to submit a report to the Court under Sec. 173(2) in respect of the accused persons for which the investigation has already been completed and further report or a supplementary charge-sheet can be submitted in respect of the other accused persons after collecting such evidence which the Investigating Officer may collect in due course and can be said supplementary charge-sheet and that report has to be considered. The validity of this provision has been dealt with by a Full Bench of this Court presided over by the then Hon ble the Chief Justice S.S. Sandhawalia and in view of the authority reported in Shankar Ram V/s. State, it was held that where there are several accused persons charge-sheet can be submitted against some on completion of investigation against them and later a supplementary or additional charge-sheet can be filed against others. If that is so there can be further investigation in respect of the same offence and if a charge-sheet is submitted then the Magistrate is required to take cognizance of the offence and it does not mean that such supplementary charge-sheet is only contemplated in respect of the offences triable by the Magistrate and not exclusively triable by the Sessions Court. The supplementary charge-sheet, if at all, is submitted in an offence triable by the Sessions Court then in such situation the case of those accused is also to be tried by the Court of Sessions. Thus there will be plurality of commitment proceeding. 9. No doubt Sec. 209, Cr. P.C. clearly prescribed that when in a case instituted on a police report or othrwise, 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 then he will commit the case to the Court of Sessions and so a doubt was expressed by the Sessions Court that Sec. 209, Cr. P.C. actually indicate that case as whole to be committed and that too at a time and in such a situation subsequent commitment order is bad. At the very outset it can be said that new Code also contemplates plurality of commitment proceeding and such situation is bound to occur in view of the provisions of Sec. 173(2). This matter was also examined by a Full Bench of Kerala High Court reported in 1984 Cr. L.J. 324: Kesavan Natesan V/s. Madhavan Peethambharan and others (supra), and it was held that there can be plurality of commitment proceeding if situation will so demand and Sec. 209. Cr. P.C. clearly says that when the accused is. before the Court and the offence is triable by the Court of Sessions, then the case is to be committed to the Court of Sessions. It was also held that word case in Sec. 209 of the "new Cr. Cr. P.C. clearly says that when the accused is. before the Court and the offence is triable by the Court of Sessions, then the case is to be committed to the Court of Sessions. It was also held that word case in Sec. 209 of the "new Cr. P.C. only means case presented to the Court and taken on file and nothing more and the expression case is not synonymous with occurrence of crime or transaction and as such the Court can commit an accused to the Court of Sessions but cannot commit a transaction or crime or an offence to the Sessions and thus the case only means the case taken on file by the Magistrate after taking cognizance. In such situation as held by the Full Bench if the accused is present before the committing court then the case presented to the Court and taken on file will be committed to the Court of sessions for trial and subsequently for other accused persons if after completion of investigation charge-sheet is submitted then in that contingency there can be a second committal order in view of the expression case already decided by the Full Bench. 10. Under the circumstances it can be said that the Magistrate is required to commit the accused persons who are before him and if an additional or supplementary charge-sheet is submitted against some of them in such situation there can be. a subsequent committal order and in any view of the matter subsequent committal is not prohibited under Sec. 209, Cr. P.C. and the doubt expressed by the learned Additional Sessions Judge on this point is answered in the manner indicated above. 11. So far other doubt expressed by the learned Sessions Judge is regarding taking of the cognizance by the Court of Sessions under Sec. 193, Cr. P.C. The Additional Sessions Judge has observed that the entire case is committed at a time to the Court of Sessions under Sec. 209, Cr. P.C. and Section 193 requires that the Court of Sessions can only take cognizance of the offence in respect of the case which has been committed to it by a Magistrate. P.C. The Additional Sessions Judge has observed that the entire case is committed at a time to the Court of Sessions under Sec. 209, Cr. P.C. and Section 193 requires that the Court of Sessions can only take cognizance of the offence in respect of the case which has been committed to it by a Magistrate. Meaning thereby unless a case is committed to the Court of Sessions, the Sessions Court has no right to take cognizance and if there will be plurality of the commitment then the Sessions Court is required to take cognizance several times. This order was also discussed by a Full Bench of the Kerala High Court as mentioned above and it was held that once the case in respect of the offence of those accused who are before the Court is committed then cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the way. Moreover, now it is well-settled principle of law that taking cognizance means only becoming aware of or taking judicial notice of an offence, whatever might be the situation in a given case, in law the Magistrate takes cognizance when he becomes aware of an offence only once. 12. Under the circumstances when a Magistrate or the Court of Sessions takes cognizance of an offence he becomes aware of the commission of the offence and that awareness will certainly continue or at any rate in the eyes of law, be deemed to continue even if subsequently some more accused in that very particular case committed to the Court of Sessions. In the circumstances it cannot be said that the Court of Sessions will take cognizance of the offence for the second time. 13. Having taken cognizance of an offence once, he applied his mind and followed the procedure by the Court and decides whether to proceed in the matter or to drop the case as against the accused. The Supreme Court in Raghubans Dubey V/s. State of Bihar, also held that cognizance is taken of the offence and not merely of particular persons named in the charge-sheet. The Supreme Court in Raghubans Dubey V/s. State of Bihar, also held that cognizance is taken of the offence and not merely of particular persons named in the charge-sheet. Moreover it also finds support from the view expressed by the Supreme Court Jogendra Singh V/s. State of Punjab, while dealing with the significance of committal of an accused and committal of a case, it was held that once the case is committed in respect of an offence there must be some accused suspected to be involved in the crime before the Court and the Sessions Court then takes cognizance of the offence and the bar of Section 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial must be regarded as incidental to such cognizance and a part of the normal process that follows it. So from the cases referred to above it can be said that if in respect of the some offence or transaction some more accused persons against whom the police will submit supplementary charge-sheet after completing the investigation and the case of those persons committed to the Court of Sessions then for the reasons mentioned above, there is no such illegality or irregularity in the eye of law. The Sessions Court certainly did not take cognizance of the offence for the second time rather technically he expressed his judicial power and proceeded with that case in pursuance of the cognizance already taken by him on the previous occasion. In such situation the doubt expressed by the learned Sessions Judge appears to be erroneous and without any basis. 14. After careful consideration of the entire facts and circumstances of the case and the law involved it can be said beyond doubt that practically there is no illegality in passing the second commitment order in respect of the some of the accused persons against whom the police will submit supplementary charge-sheet under Sec. 173(8), Cr. P.C. and consequently Court of Sessions will not commit any illegality if the Court of Sessions will proceed against those accused who were committed subsequently for the reasons mentioned above. 15. Accordingly Criminal Reference Nos. 1/94, 2194, 3/94, 4/94 and Cr. Ref. P.C. and consequently Court of Sessions will not commit any illegality if the Court of Sessions will proceed against those accused who were committed subsequently for the reasons mentioned above. 15. Accordingly Criminal Reference Nos. 1/94, 2194, 3/94, 4/94 and Cr. Ref. No. 5194 are hereby disposed of in manner indicated above and the learned Sessions Judge, West Champaran, Bettiah before whom Sessions Trial No. 133191, S. Tr. No. 134191, S. Tr. No. 193/92, S. Tr. No. 242193 and S. Tr. No. 258/93 and pending to proceed with those cases without any further delay. 16. Let a copy of this order be sent to the learned Additional Sessions Judge, West Champaran, Bettiah, along with the Lower Court Records for the needful.