LILADHAR HARJIVANDAS SONI v. STATE — 1995 DIGILAW 378 (GUJ)

D. G. KARIA, J. ( 1 ) AN important and interesting question of law as to the interpretation and application of the provisions of Sec. 319 of the Code of Criminal procedure, 1973 arises in both these petitions. Both the petitions are, therefore, heard together and are being disposed of by this common judgment. ( 2 ) IN Special Criminal Application No. 1151 of 1995, Mr. K. P. Raval, learned additional Public Prosecutor, waived the service of rule, whereas Mr. H. M. Prachchak, learned Advocate, waived service of rule on behalf of respondent Nos. 2, 3 and 4. ( 3 ) THE aforesaid neat question of law arose as a result of the order dated June 15, 1995 passed by the learned Additional Sessions Judge, Mehsana, Camp at Patan, below Exh. 31 in Sessions Case No. 95 of 1993, whereby the petitioners are ordered to be arraigned as the accused persons along with the accused already arraigned in the said Sessions Case, in the backdrop of the following facts and circumstances. Both the petitioners have questioned the legality and validity of the said order passed by the learned Additional Sessions Judge. ( 4 ) THE petitioner of Special Criminal Application No. 991 of 1995, Shri ishwarlal Harjivandas Soni, lodged a complaint on 2-12-1992 with Sami Police station against Soni Girishkumar Amrutlal and four others for the offences punishable under Secs. 147, 148, 149, 307 and 302 of the Indian Penal Code, alleging that on account of dispute of fire-crackers, the accused persons forming an unlawful assembly and with common object of causing death of son of the complainant, Kishan, carried deadly weapons and caused about 9 stab injuries on the complainant, Ishwarlal Harjivandas Soni, and 19 stab injuries to his son, Kishan, who later on succumbed to the injuries, while on way to the hospital. That complaint is recorded as I-161 of 1992. The unfortunate incident wherein the complainants son, Kishan, was done to death was said to have taken place, at about 6-30 p. m. on December 1, 1992. That complaint is recorded as I-161 of 1992. The unfortunate incident wherein the complainants son, Kishan, was done to death was said to have taken place, at about 6-30 p. m. on December 1, 1992. ( 5 ) A complaint being C. R. No. I-162 of 1992 also came to be lodged in Sami police Station by Soni Amrutlal Virchandbhai against the complainant of the aforesaid C. R. No. I-161 of 1992, Soni Ishwarlal Harjivandas, Soni Kishanlal ishwarlal (now deceased) and Soni Liladhar Harjivandas (who is the petitioner of special Criminal Application No. 1151 of 1995), alleging that on account of enmity resulting from dispute in past, the accused persons caused death of Gaurangkumar alias Girish intentionally, and threw away the dead body of the deceased Gaurang on road near village Jilawana and thereby the accused committed offences punishable under Secs. 302 and 114 of the Indian Penal Code. ( 6 ) ONE of the accused persons of the aforesaid C. R. No. I-161of 1992 for which Sessions Case No. 94 of 1993 and Sessions Case No. 49 of 1994 are filed, shailesh Bachubhai Kadia, filed a complaint of dacoity and robbery against unknown persons at Mehsana Rural Police Station. The said complaint came to be lodged and numbered as C. R. No. I-362 of 1992. The above named Amrutlal V. Soni had also filed Special Criminal Application No. 1988 of 1992 in this High Court praying to transfer the investigation of the aforesaid offence from the Additional director General of Police to the C. I. D. The same petition came to be withdrawn. In the meanwhile, the investigation was transferred to the C. D. I. Branch. The petitioner, Ishwarlal H. Soni, therefore, had filed a Special Criminal Application no. 303 of 1993 for quashing and setting aside the order of the Government in transferring the investigation from Police Department to that of C. I. D. Crime. This High Court (Coram : K. G. Shah, J. , (as he was then) admitted the said petition and granted stay of the said order on March 16, 1993. The abovenamed, Amrutlal v. Soni, had also filed a petition, being Special Criminal Application No. 239 of 1993 on March 2, 1993 for implementing the order of transferring the investigation to C. I. D. Crime and for other ancillary interim reliefs. The abovenamed, Amrutlal v. Soni, had also filed a petition, being Special Criminal Application No. 239 of 1993 on March 2, 1993 for implementing the order of transferring the investigation to C. I. D. Crime and for other ancillary interim reliefs. ( 7 ) THE abovenamed Amrutlal V. Soni had also filed a private complaint against the petitioners herein, among other, for the offences under Secs. 302, 307 and 114 of the Indian Penal Code in respect of the aforesaid incident of 1-12-1992 wherein his son, Gaurang, was done to death, in the Court of Judicial Magistrate, First Class, at Sami-Harij. This private complaint was necessitated, according to the complainant, amrutlal V. Soni, as there was no proper and speedy investigation in his complaint, which came to be lodged as C. R. No. I-162 of 1994. The learned Judicial Magistrate, first Class, Sami Camp, Harij, by his order dated December 21, 1993 directed the superintendent of Police, Crime, New Mental, Ahmedabad to investigate the offence committed under Secs. 302, 307, 114 of the Indian Penal Code and submit his report within a month. ( 8 ) THE petitioner, Ishwarlal Harjivandas Soni, had filed Special Criminal application No. 532 of 1994 in this High Court challenging the aforesaid order of the learned Judicial Magistrate, First Class, Sami Camp, Harij, directing the superintendent of Police, C. I. D. to investigate into the offence. The said petition was dismissed by this Court on July 19, 1994. The petitioners and the other side had also filed several other petitions arising out of the aforesaid incidents, being misc. Criminal Application No. 3442 of 1994 in Special Criminal Application No. 532 of 1994; Misc. Criminal Application No. 2206 of 1993; Criminal Revision application No. 17 of 1995 and Special Criminal Application No. 1381 of 1994. This group of seven matters came up for hearing before this Honble Court on january 30, 1995. On withdrawal of all these pending petitions, my learned Brother, j. N. Bhatt, J. passed the following order :-"in this group of seven matters, learned Advocates appearing for the parties have jointly submitted that the matters pending here may be permitted to be withdrawn at this stage giving the following directions in the interest of justice : the joint request made on behalf of the learned Advocates for the applicants in the aforesaid seven matters is granted. The parties are permitted to withdraw the aforesaid matters with the following directions : the trial Court before proceeding with the trial in Sessions Case No. 94 of 1993 and Sessions Case No. 49 of 1994 (arising out of C. R. No. I-161 of 1992 of Sami police Station, District Mehsana) and in Sessions Case No. 95 of 1993 (arising out of C. R. No. I-162 of 1992 of Sami Police Station, District Mehsana) is directed to consider all the papers of investigation (entire record) done by the police earlier and upon completion of which the charge-sheets are submitted by the local police and also the entire record and all papers prepared by the Gujarat State C. I. D. (Crime) submitted, if any, in or in course of the investigation, pursuant to the directions contained in the order passed by the learned J. M. F. C. , Sami in Cri. Misc. Case No. 5 of 1994 and after examining the record, if any, submitted to the learned J. M. F. C. , Sami, by the Gujarat State C. I. D. (Crime) and after hearing the parties, the trial court shall pass appropriate orders as to the cognizance, if any, required to be taken against any other persons as accused and whether the charges, if any, framed against the present accused in cross-cases, be dropped or not or he should proceed further with the trial of the Sessions Cases (cross-cases ). In other words, the trial Court shall hear the parties and shall consider the aforesaid material and decide, as directed in the foregoing paragraph, in accordance with law and also expeditiously in view of the long delay. Criminal Revision Application No. 17 of 1995 filed against the order of the learned Sessions Judge for rejecting the request for transfer of the Sessions Case from patan to Mehsana Court is permitted to be withdrawn, as requested. The interim orders passed in the aforesaid group of matter obviously shall stand vacated in view of the aforesaid directions. Direct service permitted. "pursuant to the aforesaid order, an application Exh. The interim orders passed in the aforesaid group of matter obviously shall stand vacated in view of the aforesaid directions. Direct service permitted. "pursuant to the aforesaid order, an application Exh. 31 was submitted in the sessions Case No. 95 of 1993, which was pending in the Court of learned Additional sessions Judge, Mehsana, praying that the petitioners be arraigned as the accused persons in that Sessions Case, as prima facie they are involved for intentionally causing death of Gaurang and to drop Shailesh Bachubhai Kadia and Pankaj chimanlal Sathwara and Mahendra V. Prajapati, as the accused from the said Sessions case. The learned Judge, by his impugned order dated June 15, 1995, rejected the prayer as regards the dropping of the accused persons who were already arraigned and charge-sheeted. The learned Judge, however, ordered to join the petitioners as the accused persons in that Sessions Case, in exercise of his powers under Sec. 319 of the Code of Criminal Procedure. It is against this order that the petitioners have filed both these petitions. ( 9 ) MR. A. J. Patel, learned Advocate appearing for the petitioner in Special criminal Application No. 991 of 1995, submitted that the learned Judge committed an error of law in construing the provisions of Sec. 319 of the Code of Criminal procedure, for the learned Judge could only order to arraign the petitioners as the accused persons if the trial had commenced and from the evidence recorded during such trial it transpires that the petitioners were involved in the offence. According to Mr. Patel, that stage had not reached and in absence of any evidence on record, the petitioners could not have been impleaded as accused persons in the Sessions case. ( 10 ) IN order to appreciate and deal with the aforesaid submission of Mr. Patel, it is necessary to refer to and reproduce Sec. 319 of the Code of Criminal Procedure, 1973, which reads as under :-"319. (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 may proceed against such person for the offence which he appears to have committed. (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 may 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 sumuons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offences which he appears to have committed. (4) Where the Court proceeds against any person under sub-sec. (1), then - (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (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. " ( 11 ) SECTION 319 of the Criminal Procedure Code contemplates the power of the Sessions Court to proceed against the other persons who appear to be guilty of the offence. In the course of an inquiry into, or a trial of, an offence, if 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 may proceed against such person for the offence which he appears to have committed. The power to proceed against any such other persons other than the accused is not limited or restricted only as a result of the evidence being recorded in the trial. The term any inquiry occurring in the aforesaid provision of Sec. 319 does indicate that the learned judge had relied upon the other permissible materials of the case. The submission of Mr. Patel that the inquiry refers to the evidence recorded during the trial, cannot be accepted. The word "inquiry" occurring in Sec. 319 has to be given general and not narrow meaning. The submission of Mr. Patel that the inquiry refers to the evidence recorded during the trial, cannot be accepted. The word "inquiry" occurring in Sec. 319 has to be given general and not narrow meaning. In my view, the term cannot be limited to evidence recorded by the Court during the course of inquiry into or trial of the case and not only the statements recorded by police or the documents filed along with the chargesheet. Thus, where the accused were charge-sheeted for offences under the Penal code and the petitioners who were prima facie offenders in respect of the said offence on basis of the inquiry report and the other materials on record, it was open for the learned Additional Sessions Judge to arraign the petitioners as accused persons in the Sessions Case. ( 12 ) SECTION 319 occurs in Chapter XXIV of the Code dealing with the General provisions as to inquiries and trials. The procedure laid down in that Chapter is, therefore, applicable to all criminal Courts and not restricted to the Court of Session. Therefore, it could not be argued that there is no inquiry in Sessions Court and therefore, it is only after trial that the power under Sec. 319 (1) can be invoked. The term inquiry has been defined in Sec. 2 (g) of the Code to mean every inquiry other than a trial conducted under the Code by a Magistrate or Court. In view of this definition of inquiry, the learned Sessions Judge is quite justified in examining and assessing the reports and material available on record and to find out that the petitioners are prima facie offenders in respect of the offences alleged against them. In this view of the matter, I do not see any substance in the submission of Mr. Patel. ( 13 ) MR. A. J. Patel, learned Advocate for the petitioner, has relied upon the case of Smt. Sislius Stephens v. State of M. P. , reported in 1991 (2) Crimes 215 . In that case, the Madhya Pradesh High Court held the application filed by the mother of the accused, who was sought to be arraigned as accused for the offences under secs. 397, 376 and 342 of the Indian Penal Code, to be premature in the facts and circumstances of the case. In that case, the Madhya Pradesh High Court held the application filed by the mother of the accused, who was sought to be arraigned as accused for the offences under secs. 397, 376 and 342 of the Indian Penal Code, to be premature in the facts and circumstances of the case. In that case, an application purporting to be under Sec. 319 of the Code was submitted by the prosecution for arraigning the accuseds mother. Therefore, the accuseds mother challenged the maintainability of that application as no prosecution witnesses were examined nor documents were produced or exhibited on behalf of the prosecution. The Court, therefore, held that the application filed by the prosecution was premature. In the facts of the present case, the ratio laid down in the Madhya Pradesh case (supra) could not be made applicable, inasmuch as in the instant case, the learned Additional Sessions Judge has disposed of the application Exh. 31, pursuant to the order passed by this High Court on January 30, 1995, as stated hereinabove. ( 14 ) MR. Patel then placed reliance on the decision in the case of Nisar and Anr. v. State of U. P. , reported in JT 1995 (1) SC 135, wherein the Supreme Court has held that the power under Sec. 319 (1) can be exercised only in those cases where involvement of persons other than those arraigned in the charge-sheet comes to light in the course of evidence recorded during the enquiry or trial. As that stage has not yet reached the appellants could not have been summoned invoking Sec. 319 of the Code. That decision was in the facts of that case and the powers to be exercised as a result of inquiry in arraigning the other persons as accused is not barred or prohibited and that cannot be ruled out from that decision. ( 15 ) MR. P. M. Raval, learned Advocate appearing for the petitioner in Special criminal Application No. 1115 of 1995, submitted that the impugned order would be contrary to the provisions of Sec. 193 of the Code of Criminal Procedure and the jurisdiction of the Sessions Court is barred by virtue of Sec. 193 in respect of committing other persons as accused persons. P. M. Raval, learned Advocate appearing for the petitioner in Special criminal Application No. 1115 of 1995, submitted that the impugned order would be contrary to the provisions of Sec. 193 of the Code of Criminal Procedure and the jurisdiction of the Sessions Court is barred by virtue of Sec. 193 in respect of committing other persons as accused persons. He also submitted that as a result of the inquiry in the private complaint of Amrutlal V. Soni, being No. 9 of 1993, report and documents were not submitted by the C. I. D. Inspector in the Court of the Judicial Magistrate, First Class at Sami-Harij and therefore, unless on examination of those documents the petitoners are committed to the Court of Session, the impugned order is bad in law. He lastly submitted that the impugned order is violative of principles of natural justice, as no opportunity of hearing was given to the petitioner of that case. He also submitted that the inquiry papers cannot be looked into by the learned Additional Sessions Judge, as it would amount to taking the cognizance which could only be done by the learned Judicial Magistrate, First class. Sec. 193 of the Code of Criminal Procedure relates to cognizance of offences by Courts of Session. It provides that except as otherwise expressly provided by the Code or by 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 the Code. In the facts of the case, the learned Additional Sessions Judge has not assumed the original jurisdiction of the Magistrate Court, inasmuch as the petitioners are ordered to be arraigned as accused persons in exercise of powers under Sec. 319 (1) of the Code. The point raised by Counsel for the accused is dealt with and disposed of in the case of Kishun singh and Ors. v. State of Bihar, 1993 Cri. LJ 1700. The point raised by Counsel for the accused is dealt with and disposed of in the case of Kishun singh and Ors. v. State of Bihar, 1993 Cri. LJ 1700. The question that arose in the said case was whether a Court of Session to which a case is committed for trial by a Magistrate can, without itself recording evidence, summon a person not named in the Police Report presented under Sec. 173 of the Code of Criminal Procedure, 1973 to stand a trial along with those already named therein, in exercise of power conferred by Sec. 319 of the Code ? The Supreme Court also considered Sec. 193 of the Code and held that once the case is committed to the Court of Session 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 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 the record. In this view of the settled legal position, I find no merit in this submission of Mr. Raval. ( 16 ) THE submission of Mr. Raval that the report and the documents submitted before the Sessions Court as a result of the inquiry in Inquiry Case No. 9 of 1993 could not have been looked into by the Sessions Court, is also devoid of any merit. The learned Additional Sessions Judge, pursuant to the aforesaid order passed by this Court, examined all the material available and found that the complicity of the petitioners was prima facie evident from the statements of the prosecution witnesses recorded during the course of investigation of C. R. No. 161 of 1992 and that the petitioners had caused injuries to the deceased. In this connection, there are three reports of the Investigating Agency available on record, being dated 9-1-1994, 23- 2-1995 and 1-4-1995 on basis of which the involvement of the petitioners is prima facie found in the incident. In this connection, there are three reports of the Investigating Agency available on record, being dated 9-1-1994, 23- 2-1995 and 1-4-1995 on basis of which the involvement of the petitioners is prima facie found in the incident. The learned Judge has rightly relied upon these reports and in exercise of the powers under Sec. 319 of the Code of Criminal Procedure, ordered to arraign the petitioners as accused persons in the Sessions Case. ( 17 ) I also do not find any merit in the submission of Mr. Raval that the petitioners had no opportunity of being heard. Paragraph 1 of the impugned order, when translated into English, reads as under :-"heard. Shri S. M. Shah, learned Advocate for the accused, and Shri K. M. Parekh, learned Advocate for the suspected accused, Ishwarbhai Harjivandas and Lilachand harjivandas and on behalf of the Government the learned D. G. P. Shri Shirishbhai modi and learned Advocate for the original complainant, Shri K. M. Kaji. "in paragraph 5 of the impugned order, it is recited that the argument of Shri K. M. Parekh, the learned Advocate for Ishwarbhai Harjivandas and Lilachand harjivandas (who are the petitioners herein) is that. . . . . . . . . . . . . . . . . . . . . . . . " ( 18 ) THUS, the impugned order clearly mentions that the petitioners were given opportunity of being heard in the matter and after hearing only the impugned order came to be passed. At the stage of dictating this order, the learned Counsel for the petitioner of Special Criminal Application No. 1151 of 1995 filed the affidavit, contending inter alia that the petitioner, Liladhar Harjivandas Soni, had not retained mr. Ashok M. Parekh as his Advocate, nor he was given any notice before hearing of the proceedings. He had also annexed the zerox copy of Vakalatnama wherein the other petitioner Ishwarlal Harjivandas Soni only has signed. It, however, appears from the record that the petitioners were given opportunity of hearing. The learned judge has disposed of the application Exh. 31 on the basis of the material available on record. Before this Court, the petitioners have been heard at length. It, however, appears from the record that the petitioners were given opportunity of hearing. The learned judge has disposed of the application Exh. 31 on the basis of the material available on record. Before this Court, the petitioners have been heard at length. In this view of the matter, I do not find substance in the grievance that there was no opportunity available to the petitioners and that the impugned order is passed without hearing them. ( 19 ) FOR the aforesaid reasons, the petitions are liable to be rejected, as there is no substance therein. Accordingly, the petitions are rejected. Rule discharged. Ad interim relief stands vacated. ( 20 ) AT this stage, Mr. P. M. Raval, learned Counsel, requests to stay the execution and operation of this order for a period of two weeks to enable the petitioners to approach the higher forum. The trial is delayed in respect of the incidents that took place on 1-12-1992. In facts of the case, the request for staying the execution and operation of this order cannot be accepted. Hence, the request is rejected. .