Research › Search › Judgment

Punjab High Court · body

2001 DIGILAW 1110 (PNJ)

Karamjit Singh @ Kalan v. State Of Punjab

2001-10-10

NIRMAL SINGH

body2001
Judgment Nirmal Singh, J. 1. This order will dispose of Crl.Misc. Nos. 5631-M and 7524-M of 2001 arising out of FIR No. 45 dated 27.2.1999 registered at P.S. Malerkotla under Sections 447, 448, 149 IPC. 2. Briefly stated the facts of the case are that aforesaid FIR was registered against the petitioner on the statement of Inder Singh, complainant. During investigation, petitioner was found innocent. At the time of trial, Complainant Inder Singh filed an application under Section 319 Cr.P.C. before the trial Court that the petitioner be summoned alongwith the co-accused to face trial. The Sub Divisional Judicial Magistrate after recording the statement partly, summoned the petitioner to face trial alongwith the co- accused vide order dated 8.12.2000. 3. Petitioner has impugned the order dated 8.12.2000 on the following grounds :- 1) As per provisions of Section 319 only another person than the accused can be summoned on recording the evidence in course of enquiry or trial of an offence in view of 1991(1) Crimes Page 61 (P&H). So in this case the order has been passed without recording the evidence of the prosecution. 2) That merely recording the examination-in-chief of the complainant while part deferred cannot be considered admissible evidence upon which the petitioner can be summoned in view of 1987 Crl. Law Journal 729, 1991 Crl. Law Journal Page 21, 1994(2) Chandigarh Criminal Cases 223, 1998(4) Recent criminal Cases 315, 1997(1) RCC 797, 1996(1) RCR 699. 3) That the order dated 8.12.2000 is non-speaking order. No reasoning has been recorded from which the court be satisfied to summon the accused- petitioner. 4) That in the disputed land the father of the petitioner is co-sharer and case of trespassing cannot be registered against the father of the petitioner or any of his family members. 4. Mr. K.S. Chahal, learned counsel for the petitioner submitted that the petitioner was found innocent during investigation. He contended that the learned Magistrate has summoned the petitioner on the basis of the same evidence, on which, the petitioner has been found innocent during investigation. He further contended that statement of complainant has been partly recorded which cannot be read in evidence without cross-examination. He further contended that there was no legal evidence before the learned trial Court at the time of summoning the accused. He further contended that statement of complainant has been partly recorded which cannot be read in evidence without cross-examination. He further contended that there was no legal evidence before the learned trial Court at the time of summoning the accused. The learned trial Court has summoned the petitioner on the basis of the same evidence on the basis of which the petitioner has been found innocent. He submitted that trial court has no power to add the accused after recording part of the statement of the complainant. In support of his submissions he placed reliance on Ranjit Singh v. State of Punjab, 1998(4) Recent Criminal Reports 552. 5. On the other hand, Mr. RPS Athwal, learned DAG has supported the impugned order. He contended that the trial court can add the accused before recording the evidence, if from the evidence collected by the prosecution, it prima facie shows that the accused, who has been found innocent during investigation, has also participated in the commission of offence. He submitted that the Apex court has laid down that the accused can be added without recording the evidence. The law laid down in Ranjit Singhs case is not a good law. 6. Under Section 190 Cr.P.C. the Magistrate has the jurisdiction to take cognizance of the offence against such persons, who have not been arrested by the police as accused but from the evidence collected by the prosecution, a prima facie case is made out and the Magistrate has the power the commit the case to the Court of Sessions as the offence is exclusively triable by the Sessions Judge. In this regard, reliance can be placed in Rajinder Prasad v. Bashir and Ors., 2001(4) RCR(Crl.) 312 (SC) : JT 2001(7) SCC 652. The Apex Court has held as under :- "11. Under Section 190 a magistrate has jurisdiction to take cognizance of offences against such persons also who have not been arrested by the police as accused persons, if it appears from the evidence collected by the police that they were prima facie guilty of offence alleged to have been committed. The Apex Court has held as under :- "11. Under Section 190 a magistrate has jurisdiction to take cognizance of offences against such persons also who have not been arrested by the police as accused persons, if it appears from the evidence collected by the police that they were prima facie guilty of offence alleged to have been committed. Section 209 of the Code prescribes that 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 commit, after compliance with the provisions of section 207 or section 209 as the case may be, the case to the court of sessions and subject to the provisions of the Code, pass appropriate order. This section refers back to section 190, as is evident from the words instituted on a police report used in Section 190(1)(b) of the Code. While dealing with the scope of section 190 this Court in Raghubans Dubey v. State of Bihar, 1967(2) SCR 423 held that the cognizance taken by the magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent up by the police some other persons were also involved, it is his duty to proceed against those persons as well." 7. The authority cited by learned counsel for the petitioner in Ranjit Singhs case (supra) is not relevant with the facts of the present case. 8. In the instant case, the Magistrate has not held any enquiry as envisaged under Section 2(g) of the Cr.P.C. He has acted under Section 190 Cr.P.C. The Magistrate has the power to take cognizance of the offence under Section 190 Cr.P.C. and also has the power to commit the case to the Court of Sessions, when the case is exclusively triable by the Court of Sessions. Reliance in this regard is placed on M/s SWIL Ltd. v. State of Delhi and another, 2001(3) RCR(Crl.) 826 (SC) : JT 2001(6) SC 405 in which their Lordships have held as under :- "The Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At this stage, there is no question of application of Section 319 Cr.P.C. Similar contention was negatived by this Court in Raghubans Dubey v. State of Bihar, 1967(2) SCR 423 by holding thus : "In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once the 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." 9. For the reasons mentioned above, there is no merit in this petition. Hence, the same is dismissed. Petition dismissed.