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2002 DIGILAW 236 (PAT)

Yogeshwar Singh v. State Of Bihar

2002-02-15

NARAYAN ROY, P.K.SINHA

body2002
Judgment 1. This matter has come up before us on reference made by one of the learned single Judges of this Court. 2. The question for consideration is as to whether power envisaged under S. 319 of the Code of Criminal Procedure (hereinafter referred to as "the Code") is exercisable at the stage of framing of the charge. 3. It appears that a first information report was lodged by one Bisheshwar Singh for an offence under S. 302 read with other ancillary section of the Indian Penal Code and S. 27 of the Arms Act where the petitioner was one of the named accused. The police after investigation submitted charge-sheet against other accused persons except the petitioners and one Birendra Narayan Singh. On submission of the charge-sheet, the learned Chief Judicial Magistrate took cognizance of the offence and at the same time, discharged the petitioner and Birendra Narayan Singh vide order dated 21-2-1991. The order taking cognizance by the learned Chief Judicial Magistrate, however, was challenged in Criminal Revision No. 33/91 and the learned Sessions Judge vide order as contained in Annexure-4 dated 8-4-1991 dismissed the revision application with a liberty to the informant to agitate the matter at the time of framing of charge in the light of the decision in the case of Sk. Latfur Rahman V/s. The State, 1985 SBCJ 470. 4. The informant, pursuant to the direction of the learned Sessions Judge, as referred to above, filed a petition on 26-2-1996 before the learned trial Court at the stage of framing of charge praying therein for issuance of summons against accused Yogeshwar Singh the petitioner. 5. The petition aforesaid was heard by the learned trial Court and by the order impugned, the learned trial Court having found sufficient grounds for framing charge against the petitioner and one Birendra Narayan Singh, directed for issuance of summons to them and at the same time, set aside the order of discharge passed by the learned Chief Judicial Magistrate. 6. The question, as referred to above, is no more res integra and it is settled by various decisions of this Court and those of the Apex Court. 6. The question, as referred to above, is no more res integra and it is settled by various decisions of this Court and those of the Apex Court. In the case of Kishun Singh V/s. State of Bihar [ (1993) 2 SCC 16 : 1993 Cri LJ 1700], the Apex Court held that operation of S. 318 of the Code is limited only to post-cognizance stage when complicity of persons other than those named as offenders, comes to light from the evidence recorded in the course of inquiry or trial. It further held that even the accused persons, who were already discharged earlier, will come under the sweep of S. 319 of the Code at the stage of evidence. It further held that Court of Session after commitment of the case under S. 209 of the Code is also empowered to take cognizance of the offence under S. 193 of the Code and if sufficient materials surface before it showing involvement of some of the offenders who were not sent up for trial, the Court may summon them to face trial. In the case of Ranjit Singh V/s. State of Punjab [ (1998) 7 SCC 149 , three Judges Bench of the Apex Court held that power of Court of Session to array a new person or persons as accused under S. 319 of the Code cannot be invoked prior to evidence collection stage. It further held that there is no power except that in S. 319 of the Code by which it can array a new person as an accused and therefore, there is no intermediary stage at which Court of Session can add to the array of accused. Besides this, it was held by the Apex Court that in case the Sessions Judge notices from the materials produced the positive involvement of any person, it may refer the matter to the High Court detailing the situation so that the High Court can, in its inherent or revisional power, direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. Their Lordships, however, gave a note of caution in exercise of this power and held that this power is only exercisable to rectify or to correct grave mistakes in extremely rare cases. 7. Their Lordships, however, gave a note of caution in exercise of this power and held that this power is only exercisable to rectify or to correct grave mistakes in extremely rare cases. 7. The scope of S. 319 of the Code, thus, appears to be a power exercisable by the Court of Session to array some of the persons who were not accused at the stage of recording of the evidence and there is no stage to do so in between commitment of the case under Ss. 209 and 319 of the Code. In the case of Sk. Latfur Rahman, 1985 BBCJ 470 , a Full Bench of this Court held that Court of Session can summon any person not already summoned or discharged by the police on perusal of the records before it after commitment. The Court has jurisdiction to issue summons to those persons who are sought to be arrayed as accused in this case and the Court necessarily need not wait till the stage of S. 319 of the Code. 8. The ratio laid down in the case of Sk. Latfur Rahman (supra), however, was upheld by the Apex Court in the case of Kishun Singh (supra) but the ratio laid down, as referred to above, was not followed by the Apex Court in Ranjit Singhs case (1998 Cri LJ 4618) and their Lordships in the case of Ranjit Singh (supra) held that power under S. 319 of the Code can be invoked by the learned Sessions Judge only at the stage of collection of evidence to array persons in the category of the accused and power, as envisaged under S. 193 of the Code, can be exercised in extremely rare cases to rectify or to correct grave mistakes but the power is not exercisable by the Court of Session in summoning the accused and this can only be exercised by the High Court in its inherent jurisdiction on the matter being referred to it by Sessions Court. 9. In the case at hand, it appears from the materials on record that names of this petitioner and one Birendra Narayan Singh were incorporated in the first information report saying that they were members of the unlawful assembly. However in course of investigation, their complicity was not found by the Investigating Officer and therefore, they were not sent up for trial. However in course of investigation, their complicity was not found by the Investigating Officer and therefore, they were not sent up for trial. Even then the trial Court in case finds certain materials against the petitioner showing his complicity in the case at the stage of recording of the evidence under S. 230 of the Code, it would be entitled to summon the petitioner and not otherwise. In the given case, we do not find it a case where certain grave mistakes were rectified. 10. Considering the facts and circumstances of the case and legal proposition, as referred to above, we hold that the power, as exercised by the learned trial Court by the impugned order, is wholly without jurisdiction and not sustainable in law. This application, accordingly, is allowed and the order impugned is set aside. The reference stands answered accordingly. However, it is observed that in case the learned trial Court will find evidence showing complicity of this petitioner, it will be at liberty to exercise his power under S. 319 of the Code. Order accordingly.