Abdul Karim Khan v. State of M. P. — 1995 DIGILAW 263 (MP)

ORDER 1. The order passed in this revision shall also govern the disposal of Criminal Revision No. 127 of 1992 (Ali Sher Khan v. The State of Madhya Pradesh). 2. The two revisions are directed against the order dated 21.4.1992 passed in Sessions Trial No. 234/91, in a trial under section 307/34 of the Indian Penal Code, by the VIth Additional Sessions Judge, Gwalior, Camp Dabra, whereby on the application of the complainant the Court ordered under section 319 of the Code of Criminal Procedure 1973 (for short 'the Code'), to add 3 persons, namely, Abdul Karim Khan, Yusuf Khan and Ali Sher Khan, as additional accused to be tried together with the other accused to stand trial. 3. Facts giving rise to the two revisions are that Abdul Rashid, the complainant, lodged the first information report at the Police Station Pichhore, on 26.12.1990 skating therein that when the complainant with his son Maqbool and 3 others, Mohan Pandey, Ghanshyam Singh, Chhakka, was returning to his home, in the intervening night of 25th and 26th December, 1990, after attending the Qabali programme in Ursa, in Pichhore, near the flour mill of Jahoor, Niyamat Beg, Habib, Sultan beg Yusuf Khan, Abdul Karim and Shakeel, son of Latif Khan, armed with swords came out of the house of Ali Sher Khan and surrounded him with an intention to kill him, inflicted incised wounds on different parts of the body of which specific injuries were assigned to each of the accused. On his report a case under section 147/148/149 and 307 of the Indian Penal Code was registered at Crime No. 151/90 by Police-Station Pichhore. During the investigation the Investigating Officer found that the two revision-petitioners, namely, Abdul Karim Khan and Yusuf Khan were not present at the spot at the time of occurrence as were not in the village being on duty in the office of Superintendent of Police Morena, being the members of the Police Force. Similarly Ali Sher Khan was also not at the spot and was on duty in Sugar Factory at Dabra. Certificate of attendance in the office of the Superintendent of Police, Morena and at Sugar Factory was also made a part of the documents of the investigation. Similarly Ali Sher Khan was also not at the spot and was on duty in Sugar Factory at Dabra. Certificate of attendance in the office of the Superintendent of Police, Morena and at Sugar Factory was also made a part of the documents of the investigation. After completion of the investigation, a charge sheet under section 173 of the Code was filed against Niyamat Beg, Abdul Habib, Abdul Shakeel and one Sultan Beg under section 307/34 of the Indian Penal Code and not against the three revision-petitioners. The Magistrate under section 209 of the Code committed the case to the Court of Sessions. After committed of the case and on perusal of the challan papers the charge under section 307/34 of the Indian Penal Code was framed against the four accused. After the charge was framed, the complainant filed an application under section 319, 209 and 193 of the Code for additing and to summon the three additional accused to be tried for the offences together with the accused persons who are stand to trial. The trial Court on perusal of the material of the challan papers, that is, the first information report, statement recorded during the investigation, having been prima facie satisfied, that it appears from the material that the three accused also are the offenders but the investigating agency has not sent them for trial, ordered addition and summoning of the revision-petitioners to stand their trial together with the accused persons against whom the trial is proceeding. Aggrieved of this order the petitioners have filed these revisions. 4. Shri J.P. Gupta, Sr. Advocate with Shri A.K. Dwivedi counsel for the petitioners in Criminal Revision No. 112 of 1992, Shri B.L. Bhargava, counsel for the petitioner in Criminal Revision No. 127 of 1992, Shri J.D. Suryavanshi, Govt. Advocate for the State and Shri Mahesh Haswani for the complainant, heard. 5. Contention of the learned counsel for the petitioners is that the power under section 319 of the Code is an extra-ordinary enabling power and has to be exercised sparingly only if compelling reasons exists for taking cognizance against the person of whom no notice has so far been taken in the police report. 5. Contention of the learned counsel for the petitioners is that the power under section 319 of the Code is an extra-ordinary enabling power and has to be exercised sparingly only if compelling reasons exists for taking cognizance against the person of whom no notice has so far been taken in the police report. The power to add any person not being the accused can be exercised only when it appears in the course of any inquiry into or trial of an offence from the evidence tendered that any person not being the accused has committed the offence and for which such person should be tried together with the accused. In the present case, the Investigating agency after investigation having found that there was no complicity of the three accused in the commission of the offence put up the charge sheet under section 173 of the Code dropping the petitioners as offenders. Therefore, when after filing of the charge sheet the case was committed under section 209 of the Code to the Court of Session only in respect of the accused who were the offenders and on taking cognizance by the Court of Session, on perusal of the documents and papers of the charge the Court did not summon the three revision-petitioners to be added as additional accused and framed the charge against the accused persons who were put to stand trial, therefore, the three petitioners could nut have been added and summoned as additional accused to be tried together with the accused who were put to trial without first recording of evidence in the trial. Learned counsel for the petitioners cited two decisions of the Supreme Court in cases of Municipal Corporation of Delhi v. Ram Kishan Rohatgi and others ( AIR 1983 SC 67 ) and Kishun Singh v. State of Bihar ( 1993 CrLJ 1700 = (1993) 2 SCC 16 ). 6. Learned Govt. Learned counsel for the petitioners cited two decisions of the Supreme Court in cases of Municipal Corporation of Delhi v. Ram Kishan Rohatgi and others ( AIR 1983 SC 67 ) and Kishun Singh v. State of Bihar ( 1993 CrLJ 1700 = (1993) 2 SCC 16 ). 6. Learned Govt. Advocate and the counsel for the complainant contended that after taking the cognizance of the case, committed to him, under section 193 of the Code, the Sessions Judge comes to the conclusion that there are other persons named in the record of the investigating agency and being not sent up for trial and finds that there is material on record before him to indicate that accusation is well founded, then in such a situation, he can summon such person to be joined with the accused persons to stand in the trial. After the amendment in the Code and change having been brought in section 193 of the Code by substituting the word 'accused' with the word 'case' the Court of Session, now under the new Code takes cognizance of the case and not that of the accused and, therefore, is entitled to summon an additional accused, who, on materials contained in the final report appears to be guilty of such an offence to stand the trial before it. Reliance was placed on a decision of the Supreme Court in the case of Joginder Singh v. State ( AIR 1979 SC 339 = 1979 CriLJ 333). 7. After hearing counsel, in the facts and circumstances of this case, I am of the opinion that the power of summoning the three petitioners as an additional accused to be tried together with the accused who are standing the trial, could not have been exercised under section 319 of the Code. To appreciate the contention it would be appropriate to refer section 319 of the Code which reads thus- "319. Power to proceed against other persons appearing to be guilty of offence -- (1) Where, in the course of any inquiry into or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court ma y proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds, against any person under sub-section (1), then -- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." A bare reading of sub-section (1) of section 319 of the Code shows that the power to add and summon an accused to be tried together with the accused who are put to trial can be exercised only if it appears from the evidence tendered during the inquiry or trial of an offence. Evidence does not mean charge sheet or material contained therein, as it is not an evidence. 'Evidence' as defined in section 3 of the Indian Evidence Act means and includes -- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of the fact under inquiry; such statements are called oral evidence; (2) all documents which produced for the inspection of the Court; such document are called documentary evidence. The position has been set at rest in a recent decision of the Supreme Court in the case of Kishunsingh (supra) wherein the Supreme Court after referring to its earlier decisions and section 190, 193, 209 and 319 of the Code has observed that section 319 of the Code covers the post cognizance stage where the power to arrest or summon a person can be exercised under section 319 of the Code from the evidence tendered in the course of inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused and observed in paragraph 11 and 12 thus - "11. On a plain reading of sub-sec. On a plain reading of sub-sec. (1) of S. 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission or the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by S. 319 of the Code. Therefore, stricto sensu, S. 319 of the Code cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in the commission of the crime along with those already sent up for trial by the prosecution. "12. But then it must be conceded that S. 319 covers the post cognizance stage where in the course of an inquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. S. 319 can be invoked both by the Court having original jurisdiction as well as the Court to which the case has been committed or transferred for trial. The sweep of S. 319 is, therefore, limited, in that, it is an enabling provision which can be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it. If this is the true scope and ambit of S. 319 of the Code, the question is whether there is any other provision in the Code which would entitle the Court to pass a similar order in similar circumstances. If this is the true scope and ambit of S. 319 of the Code, the question is whether there is any other provision in the Code which would entitle the Court to pass a similar order in similar circumstances. The search for such a provision would be justified only on the premises that S. 319 is not exhaustive of all post cognizance situations. Now as pointed out earlier S. 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded in the course of an inquiry or trial. This may happen not merely in cases where despite the name of a person figuring in the course of investigation the investigating agency does not send him up for trial but even in cases where the complicity of such a person comes to light, for the first time in the course of evidence recorded at the inquiry or trial. Once the purport of S. 319 is so understood it is obvious that the scope of its operation or the area of its play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the inquiry or trial. Thus, the section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court." 8. In view of the aforesaid position of law so far the summoning of three petitioners by exercising the power under section 319 (1) of the Code, the order of the trial Court cannot be sustained. However, it was submitted by the learned Govt. In view of the aforesaid position of law so far the summoning of three petitioners by exercising the power under section 319 (1) of the Code, the order of the trial Court cannot be sustained. However, it was submitted by the learned Govt. Advocate that when it is apparent from the challan papers, as in the present case is, which demonstrate the complicity of the three petitioners without adverting to the fact which was found by the Investigating Officer that the three petitioners were not present at the spot which is a matter to be decided by the Court trying the offence, the three petitioners should not be left because the matter being into the hands of the Investigating Officer who mayor may not send up the accused for trial even if the prima facie material exists; the submission deserves consideration whether in such circumstances the Court of Sessions to which the case is committed for trial would be powerless. This question has also been dealt with by the Supreme Court in Kishwlsingh's case (supra) in paragraph 16 of the judgment. Therefore this Court need not deal with much. It would be appropriate to quote paragraph 16 from the report which reads thus: "16. We have already indicated earlier from the ratio of this Court's decision in the cases Raghubans Dubey (AIR 1967 SC 11(7) and Hareram (AIR 197t; SC 1568) that once the Court takes cognizance of the offence (not the offender) it becomes the Court's duty to rind out the real offenders I and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the Court's duty to summon them to st.1nd-trial along with those already named, since summoning them would only be a part of the process of taking cognizance. We have also pointed out the difference in the language of S. 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a Court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus on a plain reading of S. 193 as it presently stands once the case is committed to the Court of Sessions by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of original jurisdiction gets lifted. On the Magistrate committing the case under S. 209 to the Court of Session the bar of S. 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record. The Full Bench of the High Court of Patna rightly appreciated the shift in S. 193 of the Code from that under the old Code in the case of Sk. Lutfur Rahman (1985 Cri.L.J. 1238 at p. 1244) (supra) as under: "Therefore, what the law under S. 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima-facie guilty or the crime as well. xx xx xx xx Once the case has been committed, the bar of S. 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon any individual accused of the crime. 9. xx xx xx xx Once the case has been committed, the bar of S. 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon any individual accused of the crime. 9. Though, the application was filed by the complainant under section 319, 209 and 193 of the Code but the trial Court summoned the accused persons by exercising its extra ordinary power under section 319 of the Code which in the opinion of this Court could not have been exercised, therefore, I have no option but to set aside the order and to send back the case to the trial Court to consider the application of the complainant under section 193 of the Code and to decide the same after giving an opportunity of being heard to the parties as this Court need not to express opinion on that. 10. In the result the revisions are allowed. The order of the trial Court dated 21.4.1992, passed in Sessions Trial No. 234/91 is set aside. The trial Court is directed to proceed with the trial and to consider the application filed under section 319, 209 and 193 of the Code afresh in accordance with law. Record of the Court below be sent back post haste. The parties shall appear before the trial Court on 27th April, 1995.