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1996 DIGILAW 210 (GAU)

Mirhussain Khan and Ors. v. State of Meghalaya

1996-09-06

D.N.CHOWDHURY

body1996
To halt or not to halt the criminal proceeding is the question involved in this revision petition. 2. If a fair trial is not possible on the facts situation it is the duty of the Court to stay the proceedings and pass appropriate order affording justice and arrange for a fair trial in accordance with law. If, however, the Court stays the proceedings liberally without any valid reason it may incur the reproach of its own conscience in failing to protect the public from a serious crime. The Court has a discretion - the discretion to weigh counter-veiling considerations of policing and justice to ascertain as to whether there has been any abuse of the process of the Court. 3. The Officer In-charge, Laitumkhrah Beat House at about 8.05 PM of the 1st of April, 1991 received a telephonic message from the Nazarath Hospital that a dead body was brought from Khar Malki to the hospital and the Officer In-charge accordingly deputed SI T. Lyngdoh alongwith 2 Constables for investigation vide GD Entry No.IX of Laitumkhrah Beat House. The said officer on completion of the inquest forwarded the dead body to the Shillong Civil Hospital for post mortem. 4. One Karimullah Khan lodged First Information before the O/C Laitumkhrah Beat House on 3.4.91 naming the petitioner No.2 Noor Alam Khan as the accused who committed murder of his wife Jahanara Khanam, the niece of the informant on 1.4.91, which was later on numbered and registered as Shillong Police Station Case No.212 (4)/91 under section 302 of IPC. 5. After a long lapse of four years and 4 months the police charge sheeted the accused Md. Noor Alam Khan and Mehboob Alam Khan - the petitioner Nos.2 and 3 respectively of the revision peition under section 302 of IPC. 6. By an order dated 16.12.95 the learned Judicial Magistrate First Class, Shillong committed the case to the Court of Sessions Judge under section 209 of CrPC. 7. The learned Public Prosecutor before the Court of Sessions addressed the Court to take cognizance of the offence under section 302 IPC against the father-in-law of the deceased Mohamad Mir Hussain Khan (petitioner No.1). According to the Public Prosecutor, on the basis of the materials on record the Court should also proceed against the aforesaid Md. 7. The learned Public Prosecutor before the Court of Sessions addressed the Court to take cognizance of the offence under section 302 IPC against the father-in-law of the deceased Mohamad Mir Hussain Khan (petitioner No.1). According to the Public Prosecutor, on the basis of the materials on record the Court should also proceed against the aforesaid Md. Mir Hussain Khan as an accused and he should also be tried together with the two other accused persons. The learned Sessions Judge upon considering the materials on record and also upon hearing the Public Prosecutor as well as Mr. MY Ciddikie, learned counsel for the accused, found prima facie case against the accused persons, and, therefore, decided to proceed with the trial. Accordingly the learned Sessions Judge issued summons to Md. Mir Hussain Khan (petitioner No.1) to appear before the Court before the charge is framed. 8. The aforesaid order dated 11.7.96 passed by the learned Sessions Judge is thus under challenge before this Court. Mr. MY Ciddikie, learned counsel for the petitioner, has apart from questioning the legality and validity of the order dated 11.7.96 also questioned the continuance of the proceedings against all the accused persons as an abuse of the process of the Court. Mr. Ciddikie firstly submits mat from the materials on record no offence is disclosed against all the accused persons, and, therefore, according to Mr. Ciddikie, the continuance of the criminal proceeding is wholly without jurisdiction. Mr. Ciddikie, further, submits that so far against the petitioner No.1 no materials are discernible to connect the said petitioner with the offence. The learned counsel further submits that the learned Sessions Judge fell into serious error in arraigning the petitioner No.1 as accused and summoning him as such under section 319 of CrPC. Mr. Ciddikie, learned counsel, further, submits that the trial of the petitioner No.3 Mahboob Alam Khan cannot proceeed along with two other accuseds so much so and in view of the embargo created by Juvenile Justice Act, 1986. Mr. KS Kynjing, learned Public Procsecutor, on the other hand submits that there is sifficient materials against the accused persons, therefore, the Court should allow trial to proceed in accordance with the law. The High Court at this stage should not embark upon the enquiry as to the sufficiency of the materials and adjudicate as to whether the accused are liable to be convicted. The High Court at this stage should not embark upon the enquiry as to the sufficiency of the materials and adjudicate as to whether the accused are liable to be convicted. The trial is yet to proceed, and witnesses are yet to be examined. Mr. Kynjing, further, submits that since no illegality or infirmity has been committed by learned. Sessions Judge, the revision application is liable to be dismissed. 9. I have gone through the police papers submitted by the prosecution under section 173 of the CrPC. On perusal of the records it cannot be said that no prima facie case is made out against the accused persons. Since the trial is yet to proceed, I refrain from making any comments about the merits of the materials on record. Save and except regarding my view that there are materials against all the three accused persons to proceed with the trial. Before examining the merits of the decision of the learned Sessions Judge in regard to summoning of the petitioner Mir Hussain Khan the relevant provisions of law are set out below: "Section 193 of CrPC : "193. Cognizance of offences by Courts of Sessions. Except as otherwise expressly provided by this Code or by any other law for the time being in force no Court of Sessions 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. 209. Commitment of case to Court of Sessions 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 Sessions, he shall: (a) commit the case to the Court of Sessions; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to the Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case of the Court of Sessions. 319. 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 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 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." 10. Mr. Ciddikie, learned counsel for the petitioners, strenuously submits that the only power to proceed against other persons appearing to be guilty of offence can be traced in section 319 of the Code and in the instant case the learned Court decided to proceed against petitioner No. 1 in the absence of even without recording the evidence of the witnesses. Mr. Ciddikie submits that the stage for exercise of the power under section 319 will come into play only if it appears to the Court from the evidence that any person not being accused has committed any offence for which such person could be tried together with the accused. The expression 'evidence' as used under section 319 is 'evidence of witnesses' examined before the Court and not the evidence recorded under section 161 CrPC by the police. Section 319 of the Code corresponds to the section 351 of the old Code. Section 351 of old Code was as follows: "351. The expression 'evidence' as used under section 319 is 'evidence of witnesses' examined before the Court and not the evidence recorded under section 161 CrPC by the police. Section 319 of the Code corresponds to the section 351 of the old Code. Section 351 of old Code was as follows: "351. Detention of offenders attending Court : (1) Any person attending a criminal Court although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as through he had been arrested or summoned. (2) When the detention taken place in the course of an inquiry under Chapter XVIII or after a trial has begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard." 11. On the recommendation of the 41st Report of the Law Commission, section 319 has been incorporated in place of section 351 of the repealed Code with a view to enlarge the power of the Court to arrest or summon any person, who appears to be involved in commission of crimes alongwith others, but who is not present in the Court. Besides the words "of which such Court can take cognizance" have been omitted by the legislation. Instead the newly added sub-section (4) (b) expressly stated that the case against the added accused may proceed as if such person has been an accused person when the Court took cognizance of the offence. In other words the legislature has sufficiently made clear that the cognizance against newly added person would be deemed to have been taken as if such person had been an accused persons when the Court took cognizance of the offence, upon which enquiry or trial was commenced. From perusal of the provision of sub-section (1) of section 319 of CrPC, it is apparently clear that when it appears from the evidence in the course of an enquiry or trial of an offence that a person not being the accused has committed any offence for which such person can be tried together with the accused. From perusal of the provision of sub-section (1) of section 319 of CrPC, it is apparently clear that when it appears from the evidence in the course of an enquiry or trial of an offence that a person not being the accused has committed any offence for which such person can be tried together with the accused. Thus, it should appear only from the evidence during the course of the trial so that Court can come to a prima facie conclusion that the person is involved in the commission of the crime, for which he could be tried with the other accused. This Court already expressed its opinion in this regard in clear terms in Gunaram Tanti & another vs. State of Assam reported in 1983 CrIJLJ 289. Justice BL Hansaria, as he then was sitting singly, held as follows : (para 8) "Thusi I have no doubt that the word' evidence' in section 319 read alongwith other provisions of this section means the statement of the witnesses as recorded by the Court, I and the same would not include a police statement. I have now to deal with Saifar ( AIR 1962 Cal 133 ): (1962 (l) CrlLJ 283) where a contrary view was expressed and which has been relied on by the learned Sessions Judge. What weighed with the Bench in this case was the amendment introduced in the old Code in 1955 which did not require the Magistrate to record evidence before framing charge and permitted this to be done on perusal of police statements. The Bench felt (ses para 6) that if on the basis of those statements the Magistrate would decide whether there was prima facie case against the persons sent up, the Magistrate could also decide on the basis of same materials whether there was a prima facie case against the persons not sent up. With respect, it seems that the Bench did not bear in mind that the old secction 351 had permitted proceeding against non sent up persons only on the basis of evidence. With respect, it seems that the Bench did not bear in mind that the old secction 351 had permitted proceeding against non sent up persons only on the basis of evidence. While amending the Code in 1955 and doing away with the recording of evidence prior to framing of charge in warrant cases instituted on police report, no amendment was made in the language of section 351.1 would not, therefore, think that the amendment of 1955 permitted a Magistrate to summon some other persons as accused without examination of witnesses in Court. No doubt cognizance in such a case even against the added accused is under clause (b) of section 190 which is another reason given by the Bench and which aspect has been made clear by clause (b) of new section 319 (4), but that is not conclusive. This only takes care of the bar placed by sections 193 and 209 (see Joginder Singh, (1979 Crl LJ 333) (SC) (supra)." In Kishun Singh & others vs. State of Bihar reported in (1993) 2 SCC 16 made the position clear. It was held "this power, it seems clear to us, can be exercised only of 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 where from the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of 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 section 319 of the Code. Therefore stricto sensu section 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 alongwith those already sent up or trial by the prosecution." 12. The decision cited by Mr. The decision cited by Mr. Ciddikie reported in 1996 (II) Crimes 142 Raj Kishore Prasad vs. State of Bihar) also support the contention of the learned counsel for the petitioner that section 319 of CrPC cannot be invoked in case no evidence has been laid on their trial wherefrom it can be said that the accused other than the one facing trial appeared to have been involved in the commission of the crime. 13. The next question, therefore, comes for consideration is as to whether the summoning of the accused No.1 by the learned Sessions Judge can be supported by any other provision in the Code. Whether dehors the provision of section 319 of the Code can the power be not traced in any other provision of the Code ? We have already referred the provision of section 319 of the Code. Section 193 of the new Code is an improved version of the old Code under the section 319 of the old Code. The Court of Sessions Judge cannot have taken cognizance of any offence as Court of original jurisdiction unless the accused was committed to such Court. So much so under the old provisions the Court of Sessions was not allowed to take cognizance of any offence as Court of original jurisdiction unless, the accused was committed to it by a Magistrate. In the new Code the expression 'accused' has been substituted by the words 'the case'. Therefore the Parliament has shifted its emphasis from the expression offender to the offence. Thus it appears that the moment the case is committed under section 193 the Sessions Judge is entitled to take cognizance of any offence as the Court of original jurisdiction after committal once a cognizance of an offence is taken by the Court of Sessions an obligation is charged on the Court of find out the real offender and if from materials on record the Court arrives at the findings that apart from the persons challenged by the police some other persons are also involved, it is obligatory on the part of the Court to proceed against those persons by summoning those persons by taking cognizance of the offence. (Reference Raghubans Dubey vs. State of Bihar reported in AIR 1967 SC 1167 ; Hareram Satpathy vs. Tikaram Agarwalla & others reported in AIR 1978 SC 1568 ). (Reference Raghubans Dubey vs. State of Bihar reported in AIR 1967 SC 1167 ; Hareram Satpathy vs. Tikaram Agarwalla & others reported in AIR 1978 SC 1568 ). The law in this point is now settled by the decision of the Supreme Court in Kishun Singh & others (supra). Justice AM Ahmadi, as he then was pithily made the following observation : (para 16) "16. We have already indicated earlier from the ratio of this Court's decisions in the case of Reghubans Dubey and Hareram mat once the Court takes cognizance of the offence (not the offender) it becomes the Court's duty to find out the real offenders 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 stand 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 section 193 of the two Codes; under the old Code the Court of Sessions 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 replacement of the words the accused by the words the case. Thus, on a plain reading of section 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 Sessions to take cognizance of an offence as a Court of original jurisdiction gets lifted. On the Magistrate committing the case under section 209 to the Court of Sessions the bar of section 193 is lifted thereby 'investing the Court of Sessions 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 section 193 of the Code from that under the old Code in the case of Sk. The Full Bench of the High Court of Patna rightly appreciated the shift in section 193 of the Code from that under the old Code in the case of Sk. Luftur Rahman as under : "Therefore, what the law under section 193 seeks to visualise and provide for now is that the whole incident constituting the offence is to taken cognizance of by Court of Session on commitment and not that every individual offender must be so committed or that in case it is hot 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 of the crime as well ... Once the case has been committed, the bar of section 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." We are in the respectful agreement with the distinction brought out between the old section 193 and the provision as it now stands." 14. Thus, therefore, the learned Sessions Judge is even competent to summon the petitioner No.1 in exercise of powers conferred under section 193 of the Code as in the involvement of the commission of the crime as appeared from the record. 15. The controversy regarding the applicability of the provisions of the Juvenile Justice Act, 1986 was raised by the petitioner for the first time in this Court. Whether the petitioner No.3 - Mehboob Alam Khan - is a juvenile or not cannot be ascertained by this Court on the basis of materials so far made available. The learned counsel appearing for both the parties also could not place before me the notification so far made in the Official Gazette on appointed date of commencement of the Act in the State of Meghalaya. The learned Public Prosecutor, however, stated that the Juvenile Court within the meaning of section 2 (i) was not constituted in the State of Meghalaya. If the Act is enforced in the State of Meghalaya there cannot be any discernible reason for not constituting a Court under section 5 of the Act in the State of Meghalaya. 16. The learned Public Prosecutor, however, stated that the Juvenile Court within the meaning of section 2 (i) was not constituted in the State of Meghalaya. If the Act is enforced in the State of Meghalaya there cannot be any discernible reason for not constituting a Court under section 5 of the Act in the State of Meghalaya. 16. It may be pertinent to point out that under section 4 of CrPC all offences under the Indian Penal Code are to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. Sub-section (2) of section 4 provided that all offences under any law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Therefore the investigation, inquiry and trial is required to be dealt with according to the provisions of the Code subject to enactment for the time being in force. 17. Bare reading of the provisions of the Act particularly section 1 8 and 32 appears that it is for the Court of first instance to satisfy itself that the accused is 'apparently' a juvenile, i.e. by bare appearance of the accused it must satisfy the Court that the person concerned has not attained the age of 16 years or a girl, who has not attained the age of 18 years. The Court thereafter is obligated to make a due enquiry as to the age of the persons and for that purpose is duty bound to take such steps that may be so required in finding out whether the person is a juvenile or not stating his age as nearly as may be. Therefore the Act has given an mandate on the Courts-to ascertain as to whether the person is a juvenile or not. 18. Considering the facts and situation, I am of the view that the learned Sessions Judge shall examine the matter and first ascertain as to whether the Act in question is made applicable to the State of Meghalaya. Therefore the Act has given an mandate on the Courts-to ascertain as to whether the person is a juvenile or not. 18. Considering the facts and situation, I am of the view that the learned Sessions Judge shall examine the matter and first ascertain as to whether the Act in question is made applicable to the State of Meghalaya. The parties, more particularly the Public Prosecutor, shall place necessary notifications before the learned Sessions Judge stating the date of appointment of Act in question in the State of Meghalaya..The learned Sessions Judge shall also simultaneously make an enquiry in conformity with the section 32 of the Act and determine the age of the petitioner No.3 - Mehboob Alam Khan. If necessary, the learned Sessions Judge, to arrive at his decision, may take appropriate medical opinion, like the opinion of the concerned Civil Surgeon, etc. If the learned Sessions Judge finds that the petitioner No.3 (Mehboob Alam Khan) is a juvenile and that the Act is applicable in the State in that event, the learned Sessions Judge may direct a separate trial of thejuvenile and the other persons in conformity with the section 24 of the Act. The offence has taken place as far back as in 1991, and therefore, considering those aspects of the matter the learned Sessions Judge shall complete the trial as expeditiously as possible. 19. Subject to the directions as made above, the revision petition is dismissed.