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2000 DIGILAW 409 (PAT)

Sambhu Singh v. State Of Bihar

2000-03-13

INDU PRABHA SINGH

body2000
Judgment I.P.Singh, J. 1. This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 2.6.1994 passed by the second Additional Sessions Judge, Saran at Chapra in S.T. No. 486/92 by which the learned Additional Sessions Judge ordered for the issue of summons to the petitioner to face his trial in the said sessions case in exercise of the powers under Section 319 of the Code of Criminal Procedure. 2. From the prosecution case, it appears that the informant (opposite party No. 2) gave his fardbeyan to police on 29.6.1991 alleging therein that while his father was sitting on Chauki at his house all on a sudden, Sambhu Singh (the present petitioner) along with others came there. There was an exchange of hot words between the present petitioner and the father of opposite party No. 2. The present petitioner went back and returned with other accused-persons of this case and fired his pistol hitting at the neck of the father of the informant as a result of which he died. 3. On the basis of the fardbeyan of opposite party No. 2, the police registered the FIR and after completing the investigation submitted charge-sheet under Sections 302/34 of the Indian Penal Code and also under Section 27 of the Arms Act against three persons, namely, Ram Janam Singh, Ram Ekbal Singh and Ganesh Singh. However, the police did not submit the charge-sheet against the present petitioner and did not send him up for trial. This charge-sheet was placed before the learned Chief Judicial Magistrate, Chapra who by his order dated 24.10.1991 took cognizance of the offence against the persons named in column No. 4 of the charge-sheet. However, after perusing the charge-sheet he discharged the present petitioner named in column No. 2 of the charge-sheet since he found that the charge-sheet was not submitted against him and he was not sent up for trial. After the cognizance and necessary commitment proceedings the case was transferred to the Court of 2nd Additional Sessions Judge, Saran at Chapra where it was registered as Sessions Trial No. 486/92/61/93 4. After the cognizance and necessary commitment proceedings the case was transferred to the Court of 2nd Additional Sessions Judge, Saran at Chapra where it was registered as Sessions Trial No. 486/92/61/93 4. The further case of the petitioner is that before the Additional Sessions Judge who was holding the trial, the Additional Public Prosecutor filed a petition on 17.7,1993 under Section 319 of the Code praying to summon the present petitioner to stand his trial with other accused-persons. Subsequently this petitioner was not pressed and in its place another petition dated 17.5.1994 was filed with similar prayer. The learned trial Judge (2nd Additional Sessions Judge, Saran at Chapra) by the impugned order summoned the present petitioner under the purported exercise of the power under Section 319 of the Code after perusing the case diary and the FIR, although till the date of the passing of this order no evidence at all of any prosecution witness was recorded before the learned trial Court. 5. It has been submitted that the petitioner was a named accused in the FIR and after investigation the police did not submit the charge-sheet against him. Under the circumstances, he could not have been put on trial by the impugned order in exercise of the powers under Section 319 of the Code, as has seen held in the case of Sohan Lal and others V/s. State of Rajasthan, 1991 (1) PLJR 41 (SC), in which it was clearly held that the powers under Section 319 of the Code could only be exercised if a person did not figure at any stage as an accused in the case and that only after evidence was adduced before the trial Court showing complicity of that person in the alleged offence. In the present case, the petitioner was named as an accused in the FIR but the police did not sent him up for trial at the time of submitting the charge-sheet. The learned Chief Judicial Magistrate while taking cognizance of the offence discharged the petitioner by his order dated 24.10.1991. Under the circumstances, it was not open to the learned Additional Sessions Judge to summon the petitioner under the provisions of Section 319 of the Code without recording any evidence. Once a person is found to have figured as an accused in the case at any stage, he goes out of the reach of Section 319 of the Code. Under the circumstances, it was not open to the learned Additional Sessions Judge to summon the petitioner under the provisions of Section 319 of the Code without recording any evidence. Once a person is found to have figured as an accused in the case at any stage, he goes out of the reach of Section 319 of the Code. On these grounds amongst others it has been prayed that the impugned order be quashed. 6. Opposite Party No. 2 has filed a show cause in the matter contending that the petition filed by the petitioner is bad in law and wrong on facts. The learned Additional Sessions Judge has rightly summoned the petitioner who was the main assailant resulting in the death of the deceased to face his trial in accordance with the provisions of Section 319 of the Code. The fardbeyan of this opposite party was recorded without any loss of time according to which it was this petitioner who had fired at the neck of his father resulting in his death. Even from the case diary it would appear that the witnesses whose statements were recorded by the police have fully supported this allegation against the present petitioner. Section 319 of the Code empowers the Court to proceed against any other person appearing to be guilty of the offence at any stage of the trial by exercising the power under Section 319 of the Code. The Court has only to see whether a prima facie case has been made out against the person who was being summoned; even if he was discharged by the Magistrate taking cognizance of the offence since it is not violative of Section 193 of the Code. On these grounds, amongst others, it has been prayed that this show cause be accepted and the criminal revision filed by the present petitioner be dismissed. 7. A written note of argument has been filed on behalf of the petitioner. On these grounds, amongst others, it has been prayed that this show cause be accepted and the criminal revision filed by the present petitioner be dismissed. 7. A written note of argument has been filed on behalf of the petitioner. In this written note, to which I will refer to subsequently; the petitioner has taken two grounds, namely, (1) that in order to attract the provisions of Section 319 of the Code, it has to be seen that the person sought to be summoned in the case did not figure at any stage as an accused in the case; and (2) no such person can be summoned under Section 319 of the Code unless the trial Court has recorded some evidence in the case. The learned counsel appearing on behalf of the opposite party has, however, challenged these points raised in this written note of argument. 8. I have heard the parties in detail. I will firstly refer to the undisputed facts of this case. From Annexure 1 which is the FIR, it would appear that the present petitioner figured as accused No. 1 and he is said to have opened fire at the neck of the deceased resulting in his death. After completing the investigations the police submitted the charge-sheet (Annexure 2) from which it would appear that the present petitioner was not sent up for trial, only three persons named in its column No. 4 were sent up for trial excluding the present petitioner whose name figured in the column No. 2 of the charge sheet. Annexure-3 is the order dated 24.10.1991 passed by the learned Chief Judicial Magistrate by which he took cognizance of the offence only against three persons named in column No. 4 of the charge-sheet and not against the present petitioner who was shows in its column No. 2 as not sent up for trial and was discharged by this order. From the impugned order, it would appear that the learned Additional Sessions Judge without recording any evidence in course of the trial ordered for issuing summons against the present petitioner on the basis of the perusal of the FIR and the case diary. These are some of the facts about which there is hardly any dispute. 9. From the impugned order, it would appear that the learned Additional Sessions Judge without recording any evidence in course of the trial ordered for issuing summons against the present petitioner on the basis of the perusal of the FIR and the case diary. These are some of the facts about which there is hardly any dispute. 9. In the present revision application, a reference has made to the case of Sohan Lal (supra) which has also been reported in AIR 1990 SC 2198 and 1990 Cri LJ 2302. In this decision, the Hon ble Supreme Court has taken into consideration the ratio of the decisions in the case of Joginder Singh V/s. State of Punjab, AIR 1979 SC 339 , Dhandra Deo Singh V/s. Prakash Chandra, AIR 1963 SC 1430 , Municipal Corporation of Delhi V/s. Ram Kishan Rohtagi, AIR 1983 SC 67 and Dr. S.S. Khana V/s. Chief Secretary, Patna, AIR 1983 SC 595 . After referring to the aforesaid cases and their ratio of decisions the Hon ble Supreme Court in paragraph No. 33 of its judgment in the case of Sohan Lal (supra) has observed as follows : "33. The above views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of Section 319 had to be read in consonance with the provisions of Section 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the person discharged subject to revision under Section 398 of the Code may not be lost sight of. This should be so because the complainants desire for vengeance has to be tempered with though it may be, as Sir James Stephen says. The Criminal Law stands to the passing of revenge in much the same relation as marriage to the sexual appetite...". 10. I had occasion to consider the ratio of the decision of the case of Sohan Lal (supra) in my judgment in the case of Uma Shankar Sahay V/s. State of Bihar and another, 1998 Cri LJ 2807. The Criminal Law stands to the passing of revenge in much the same relation as marriage to the sexual appetite...". 10. I had occasion to consider the ratio of the decision of the case of Sohan Lal (supra) in my judgment in the case of Uma Shankar Sahay V/s. State of Bihar and another, 1998 Cri LJ 2807. After carefully analysing the provisions of law and also the ratio of the decision in the case of Sohan Lal (supra), I had held accordingly as mentioned paragraph 33 of the decision of Sohan Lal (supra), which I have reproduced above. From the aforesaid it would become perfectly clear that once a person has figured as an accused in a criminal case, at any stage he goes out of the reach of Section 319 of the Code. In the present case it has seriously been contended before me that the allegation against the present petitioner are very serious and it was he who had opened fire on the deceased resulting in his death. Under the circumstance, he was the main accused in the case and the police has committed a grave error in not submitting the charge-sheet against him. It has further been pointed out before me that the learned Chief Judicial Magistrate at the time of taking cognizance of the offence should not have confined himself only to the charge-sheet submitted by the police since the law fully authorised him to differ with the charge-sheet and to take cognizance of the offence even against such person who was not sent up for trial. No doubt, the law on this point is well-settled as has been held in the case of Raghubans Dubey V/s. State of Bihar, AIR 1967 SC 1167 . In this case the Hon ble Supreme Court has held that once cognizance has been taken by the Magistrate, he takes cognizance of the offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. The Special Bench of this Court in the case of Kuli Singh and others V/s. The State of Bihar and others, AIR 1978 Pat 298 (SB), also clearly held that on receiving a report under Section 190, a Magistrate has full jurisdiction to differ with the conclusion of the police and to direct the accused not named in the police report or not sent up for trial be also put on trial. There are other decisions on this point by the Hon ble Supreme Court but I did not consider it necessary to refer to them in view of authoritative pronouncement of the Apex Court in the case of Raghubans Dubey (supra). 11. In the present case as will appear from the order taking cognizance of the learned Chief Judicial Magistrate dated 1.10.1991, no cognizance was taken against the present petitioner since as per the charge-sheet he was not sent up for trial. If the informant had any grievance against this order of the learned Chief Judicial Magistrate it was open to him to move the Sessions Judge in revision in exercise of the power under Section 398 of the Code. It appears that this was not done and after necessary commitment the case was listed for hearing before the Additional Sessions Judge. Under this circumstances, the present petitioner could not be summoned under Section 319 of the Code and could not be put on trial since he had already figured as an accused in this case and cognizance of the offence against him was not taken. This has been so held in the case of Sohan Lal (supra) whose paragraph No. 33 has been reproduced in extenso to show that once a person has been found to have been accused in this case he goes out of the reach of Section 319 of the Code. In the case in which the accused is discharged under the relevant provisions of the Code he gets the protection of law and this order of discharge, of course, can only be made subject to Section 398 of the Code. In any view of the matter, he cannot be summoned under Section 319 of the Code. In the case in which the accused is discharged under the relevant provisions of the Code he gets the protection of law and this order of discharge, of course, can only be made subject to Section 398 of the Code. In any view of the matter, he cannot be summoned under Section 319 of the Code. This, to my mind, settles the matter so far as summoning of the present petitioner under Section 319 of the Code is concerned, inasmuch as at the earlier stage he had figured as an accused in the case. 12. I will next proceed to discuss the contention raised on behalf of the petitioner that the impugned order could not have been passed without recording any evidence by the trial Court. In this connection, a reference may be made to Section 319 of the Code itself whose subsection (1) runs as follows : "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." A bare reading of this sub-section will clearly show that before the order under Section 319 of the Code can be passed some evidence during the inquiry or trial has to be adduced before the trial Court without which no such order summoning any person under Section 319 of the Code can be passed. In this connection, a reference may be made to the case of Ranjit Singh V/s. State of Punjab, (1998) 7 SCC 149 . In this case, it was held that the Session Court cannot summon any person under Section 319 of the Code prior to evidence collection stage. Before any person can be summoned under Section 319 of the Code there must be some evidence adduced before the Sessions Court. In this case, it was held that the Session Court cannot summon any person under Section 319 of the Code prior to evidence collection stage. Before any person can be summoned under Section 319 of the Code there must be some evidence adduced before the Sessions Court. Thus, the law on this point has been very clearly laid down by the Hon ble Supreme Court in this decision in which a reference has also been made to another case from Patna, namely, Raj Kishore Prasad V/s. State of Bihar and another, (1996) 4 SCC 495 , in which it has been held that the Court of Sessions can exercise the jurisdiction under Section 319 of the Code only on the basis of the evidence recorded by it. 13 In the present case as will appear from the impugned order the learned Additional Sessions Judge had not recorded the evidence of any prosecution witness and has based the impugned order only on the statements of the witnesses recorded in the case diary as also the contents of the FIR. From the aforesaid decisions, it would become clear that the learned Judge was in the wrong for having based his decision on the aforesaid without recording any evidence in the case. Thus, on this score also the impugned order cannot be sustained. 14. From the discussions made above, it becomes perfectly clear to me that the impugned order summoning the present petitioner under Section 319 of the Code cannot be sustained in the eyes of law and has to be quashed. 15. In the result, this revision application is allowed and the impugned order dated 2.6.1994 passed by the 2nd Addl. Sessions Judge, Saran at Chapra in S.T. No. 486/92 is hereby quashed.