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2002 DIGILAW 330 (PNJ)

Davinder Kaur v. State Of Punjab

2002-03-21

R.C.KATHURIA

body2002
Judgment 1. Davinder Kaur, petitioner seeks quashing of the order dated 18-5-1998 (Annexure P-7) passed by the Additional Chief Judicial Magistrate, Kapurthala whereby the petitioner has been summoned to face trial in case bearing FIR No. 22 dated 18-4-1997 registered under Section 420 of the Indian Penal Code with Police Station, Subhanpur, order dated 6-4-1999 (Annexure P.9) passed by the Additional Chief Judicial Magistrate, Kapurthala whereby application moved by the petitioner for her discharge from the case was dismissed and the order dated 26-11-2001 (Annexure-P.10) of the Sessions Judge, Kapurthala affirming the above orders of the Additional Chief Judicial Magistrate. 2. The facts which can be gathered from the record briefly stated are that the case was registered on the statement of Harbans Singh son of Tara Singh, resident of Nadala, Police Station Subhanpur, District Kapurthala. According to the stand of the complainant, Baldev Singh and his wife Davinder Kaur had received Rs. 2,60,000.00 from Harbans Singh, Rs. 1,10,000.00 from Balwinder Kaur, Rs. 1,70,000.00 from Gurmej singh Subedar, Rs. 1,20,000.00 from Sucha Singh, Rs. 2,07,000.00 from Manj Singh, Rs. 1,11,000.00 from Gurmit Singh, Rs. 1,20,000.00 from Tara Singh and Rs. 1,20,000.00 from Puran Singh for sending their sons abroad. All these persons had submitted separate applications addressed to the Senior Superintendent of Police, Kapurthala, wherein it has been pointed out that the accused had constructed a big bungalow in the name of Davinder Kaur at Ludhiana. As their sons had not been sent abroad, a criminal case was got registered on the basis of the reports lodged. After the investigation of the case the police sent up accused Baldev Singh for trial while name of Davinder Kaur was kept in column No. 2 in the report submitted under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). Baldev Singh has been declared as proclaimed offender. 3. The Additional Chief Judicial Magistrate, Kapurthala proceeded to record the statements of Ex-Captain Puran Singh (P.W. 1) and Harbans Singh (P.W. 2), who were prosecution witnesses, in terms of the provisions of Section 299 of the Code. Thereafter application was moved from the side of the State with a prayer to summon Davinder Kaur, who had not been sent up for trial having been found innocent, to face the prosecution on the basis of her involvement spelled out from the statements of witnesses examined. Thereafter application was moved from the side of the State with a prayer to summon Davinder Kaur, who had not been sent up for trial having been found innocent, to face the prosecution on the basis of her involvement spelled out from the statements of witnesses examined. This application was accepted by the Additional Chief Judicial Magistrate, Kapurthala, as per order dated 18-5-1998 and Davinder Kaur, petitioner-accused was summoned to face trial for the offence under Section 420, I.P.C. On appearance before the Court Davinder Kaur, petitioner filed an application dated 7-10-1998 seeking her discharge from the case primarily for the reason that no opportunity for cross-examination of the witnesses examined had been afforded to her. The prayer made for discharge of the petitioner-accused was declined by the Additional Chief Judicial Magistrate, Kapurthala as per order dated 6-4-1999. Against that order Criminal Revision No. 57 dated 14-5-1999 was filed which too was dismissed by the Sessions Judge, Kapurthala as per order dated 26-11-2001. Hence, the present petition. 4. I have heard learned Counsel for the petitioner at length. 5. Learned counsel for the petitioner has submitted before me that the statements of witnesses, Ex.-Capt. Puran Singh and Harbans Singh had been recorded by the Additional Chief Judicial Magistrate in terms of requirement of Section 299 of the Code in the absence of the petitioner-accused and the statements made were not made during the course of any inquiry or trial, therefore, these could not be taken into consideration for forming an opinion to summon the accused under Section 319 of the Code. To support the stand taken reliance was placed by him on the observations made in U Ba Hlainq V/s. Balabux Sodani, AIR 1937 Rangoon 42 . The facts of the above mentioned case were that a report was lodged at Police Station Kyaukpyu under S. 408, I. P. C. against one Esoof, who was the serang of his boat. According to the allegations of the complainant, he had sent the serang with the boat containing 5,800 packets of paddy of Akyab to be delivered to a certain person but in violation of this trust Esoof took the boat to Kyaukpyu and sold the paddy to one Balabux Sodani for a sum of Rs. 2,544.10 and then sunk the boat and absconded. 2,544.10 and then sunk the boat and absconded. Balabux Sodani, respondent admitted purchasing the paddy from Esoof but denied that Esoof had sold the paddy in violation of any trust imposed upon him by the applicant-complainant and for that reason he is entitled to paddy. Proceedings in terms of Section 512(1) of the Code of Criminal Procedure, 1908 (hereinafter referred to as the old Code) were conducted before the Sub-Divisional Magistrate, Kyaukpyu and thereafter the Sub-Divisional Magistrate directed Balabux Sodani to deliver 5,800 baskets of paddy or the value of the same amounting to Rs. 2,544.10 to the applicant-complainant. This order was challenged before the Sessions Judge, Arakan Division and the order of the Sub-Divisional Magistrate was reversed and it was held that the respondent was entitled to the immediate possession of the paddy or in the event which have happened, the value thereof, and that the applicant-complainant must bring a civil action to establish his claim. The order of the Sessions Judge was challenged in a revision before the High Court. Apart from the other grounds raised one of the grounds taken was that proceedings under Section 512 of the old Code is an inquiry within the definition of that term as per the provisions of Section 4(1)(k) of the Code and at the conclusion of the proceeding an order for the disposal of property produced before the Court can be made under the provisions of Section 517 of the old Code. While dealing with the scope of Section 512 of the old Code, it was observed as under :- "Section 512(1) occurs in the Chapter headed "Special Rules of Evidence," and it provides that the depositions recorded under the provisions of the section may be given in evidence against the accused person on the inquiry into, or trial for, the offence, thereby plainly indicating that the proceedings under the section do not themselves constitute an inquiry. The object of the provisions of S. 512(1) is solely to record, in a particular way and under particular circumstances, deposition of witnesses which may in the future be used against the accused person when he is apprehended and brought to trial. There is no inquiry, for there is nothing into which an inquiry can be made. The sub-section is, in fact, directed merely to the record of evidence and nothing more. There is no inquiry, for there is nothing into which an inquiry can be made. The sub-section is, in fact, directed merely to the record of evidence and nothing more. It is in contradistinction with sub-s. (2), S. 512, under which there has to be an inquiry whether an offence punishable with death or transportation has been committed or not by some unknown person. It is urged that under sub-s. (1) there has to be an inquiry whether the accused person has absconded and there is no immediate prospect of arresting him, and this is so; but this preliminary inquiry is merely held in order to ascertain the fact necessary to bring the provisions of the sub-section into operation and to give the Court jurisdiction to record the depositions; there is no finding which is binding on anyone or for any purpose. Consequently it must be held that proceedings under S. 512(1), Criminal P. C., are judicial proceedings which are not an inquiry, and in this regard, with all due respect, the case in (1893-1900) LBR 324 was in our opinion, wrongly decided. Hence an order made at the conclusion of such proceedings, for the disposal of property produced before the Court, is made under the provisions of S. 523, and not under the provisions of S. 517 and, therefore, no appeal lies against such an order." 6. There can hardly be any dispute with regard to the principle laid down in the above mentioned case. As is clearly spelled out from the facts noticed earlier, the Police after completion of the investigation had submitted the report under S. 173 of the Code wherein name of the petitioner had been shown in column No. 2 for want of sufficiency of evidence collected during the investigation of the case and for that reason she has not been sent up for trial. It is also clear from the record that co-accused Baldev Singh had been declared as proclaimed offender. After the report was filed in the Court of Additional Chief Judicial Magistrate, Kapurthala, the Magistrate could take cognizance of the offence in terms of the requirement of Section 190 of the Code. This Section expressly lays down that the Magistrate may take cognizance of any offence upon a police report of such facts which constitute the offence. After the report was filed in the Court of Additional Chief Judicial Magistrate, Kapurthala, the Magistrate could take cognizance of the offence in terms of the requirement of Section 190 of the Code. This Section expressly lays down that the Magistrate may take cognizance of any offence upon a police report of such facts which constitute the offence. After taking cognizance, the Magistrate is empowered to issue process to the accused in terms of the requirement of Section 204 of the Code. In Swil Ltd. V/s. State of Delhi (2001) 3 Rec Cri R 826 , it was observed as under (Paras 6 and 7) :- "In our view, from the facts stated above it is clear that at the stage of taking cognizance of the offence, provisions of Section 190, Cr. P. C. would be applicable. Section 190 inter alia provides that : the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence" . As per this provision, Magistrate takes cognizance under Section 204, Cr. P. C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with charge sheet. Further, upon receipt of police report under S. 173(2), Cr. P. C., the Magistrate is entitled to take cognizance of an offence under Sec. 190(1)(c) 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 S. 319, Cr. At this stage, there is no question of application of S. 319, Cr. P. C. Similar contention was negatived by this Court in Raghubans Dubey V/s. State of Bihar (1967) 2 SCR 423 by holding thus (Para 9): "In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an 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." Further, in the present case there is no question of referring to the provisions of S. 319, Cr. P. C. That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated under S. 2(g), Cr. P. C. nor the trial had started. He was exercising his jurisdiction under S. 190 of taking cognizance of an offence and issuing process. There is no bar under S. 190, Cr. P. C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet." 7. The observation mentioned in the above case was relied upon by the Apex Court in Rajinder Prasad V/s. Bashir, (2001) 4 Rec Cri R 312 , wherein it was stated as under :- "Under this section, 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 any the Court of Sessions he shall commit, after compliance with the provisions of S. 207 or S. 209, as the case may be, the case to the court of Sessions and subject to the provisions of the Code, pass appropriate orders. 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 S. 190 this Court in Raghubans Dubey V/s. 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 by the police some other persons were also involved, it is his duty to proceed against those persons as well." 8. In the light of the principles laid down in the above mentioned cases, the facts of the present case has to be adverted to in order to decide the controversy raised in this petition. It is apparent from the record that the Additional Chief Judicial Magistrate after taking cognizance had not chosen to issue any process to the petitioner-accused. Rather, at the first instance he proceeded to record evidence in terms of the requirement of S. 299 of the Code. Thereafter, statements of Ex.-Capt. Puran Singh (PW-1) and Harbans Singh (PW-2) were recorded on 26-2-1998. It is thereafter the prosecution moved the application under S. 319 of the Code with a prayer to summon the petitioner-accused to face trial in respect of the offence under S. 420, I. P. C. It cannot be disputed that proceedings taken under sub-section (1) of S. 299 of the Code though judicial proceedings, cannot be construed as inquiry or trial because the statements of the witnesses recorded can only be accepted in evidence in the eventuality where the witnesses, whose statements had been recorded were subsequently found dead or whose presence could not be procured. This limitation flows from the provisions of S. 299 of the Code. 9. This limitation flows from the provisions of S. 299 of the Code. 9. But in the present case, the impugned orders would reveal that though application was filed by the prosecution under S. 319 of the Code, the learned Additional Chief Judicial Magistrate in his order dated 6-4-1999 and the Additional Sessions Judge, Kapurthala in his order dated 26-11-2001 had taken into account the police statements of Harbans Singh, Balwinder Kaur, Subedar Gurmej Singh, Sucha Singh, Mani Singh, Gurmit Singh, Tara Singh and Captain Puran Singh besides the deposition of Captain Puran Singh (PW-1) and Harbans Singh (PW-2). The Additional Sessions Judge has also taken into account not only the version recorded in the FIR but also the police statements of the witnesses recorded besides the statements of witnesses recorded in Court. The relevant portion of the order dated 6-4-1999 of the Additional Chief Judicial Magistrate, Kapurthala is as under :- "In the case in hand, the case has been instituted on the basis of police report and in the event, the prima facie case is made out on the basis of material collected during the investigation, the charge has to be framed. In the present case, no evidence prior to the framing of the charge has to be recorded." 10. After taking notice of the police statements reference to the statements of Captain Puran Singh and Harbans Singh had been made in these words :- "Besides, the allegations levelled against the accused have also emerged in the deposition of Captain Puran Singh PW 1 and Harbans Singh PW 2." 11. On the basis of above observations it was concluded by the learned Additional Chief Judicial Magistrate that a prima facie case under S. 420 read with S. 120-B, I.P.C. was made out against accused Davinder Kaur who is the petitioner in the present petition. The Additional Sessions Judge, Kapurthala in his order dated 26-11-2001 observed as under :- "In the FIR as well as in the statement of the witnesses recorded under S. 161, Cr. P. C. and also in their statements recorded in the Court, there is prima facie case made out against the accused and thus there is no scope to interfere in the impugned order." 12. P. C. and also in their statements recorded in the Court, there is prima facie case made out against the accused and thus there is no scope to interfere in the impugned order." 12. From the above observations, it is crystal clear that summoning order is not based primarily on the statements of Captain Puran Singh and Harbans Singh recorded in Court but mainly on the basis of police statements recorded during the course of investigation. Therefore, excluding the statements of Captain Puran Singh and Harbans Singh recorded in proceedings under S. 299 of the Code, there was sufficient material before the Additional Chief Judicial Magistrate to summon the petitioner-accused on the basis of the police statements of the witnesses recorded during the course of investigation. Nomenclature of the application filed under S. 319 of the Code would have no bearing because the orders referred to above clearly indicate that it is after taking cognizance of the case the impugned order dated 6-4-1999 has been passed by the Additional Chief Judicial Magistrate, Kapurthala which has been affirmed by the Additional Sessions Judge. 13. For the aforesaid reasons, I find no illegality in the impugned orders passed and consequently the petition is dismissed.