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2003 DIGILAW 257 (JK)

T. R. Kalra v. State

2003-08-29

Y.P.NARGOTRA

body2003
"Whether a Magistrate can on taking cognizance, implead a person as an accused in a case in which such person has not been arrayed as an accused by the investigating agency on the basis of record of the investigation submitted under sec.173 Cr.P.C.," is the question arising for determination in this criminal revision. 2. The petitioner was Director General of Prisons J&K and in connection with purchase of medicines for the jail inmates during the years 1991-1992 a case was registered by the Vigilance Organization for commission of offence under sec.5(2) P.C.Act, read with sec. 120.B RPC. The investigating agency found the commisssion of the said offences by the accused which included the petitioner and the case was submitted to the Government for according sanction under sec.6 of the P.C.Act. The Government after examining the case declined to accord sanction in respect of the petitioner but accorded sanction for the trial of other accused named in the F.I.R. Consequently a charge sheet for trial of the accused for whom the Government had accorded sanction was filed before the learned Special Judge Anti-Corruption Jammu. In the charge sheet the petitioner Sh.T.R.Kalra was not arrayed as an accused. When the case came up for consideration for framing of charge before the learned trial court the learned trail court, after examination of the record found the involvement of the petitioner also in the commission of offences. Therefore, by its order dated 20-12-2002 it issued warrants for summoning of the petitioner as an accused in the case and thus the petitioner came to be impleaded as an accused in the said case entitled State v. J.S.Kotwal and others. In the order the learned trial court observed as follows:- "Hence keeping in view the fact and circumstances of the case Shri T.R.Kalra, the then Director General Prisons J&K is ordered to be arrayed as accused in the case. A bailable warrant for an amount of Rs.20,000/- be issued against the accused Sh.T.R.Kalra for his appearance in the court on the next date of hearing. C.P.O. is directed to furnish address of Shri T.R.Kalra, the then Director General Prisons after verifying the same and office to issue process accordingly. Bail able warrants to the tune of Rs.20,000/- each be also issued against accused No.2 and 6 who have remained absent today. Put up on 17-1-2003." 3. C.P.O. is directed to furnish address of Shri T.R.Kalra, the then Director General Prisons after verifying the same and office to issue process accordingly. Bail able warrants to the tune of Rs.20,000/- each be also issued against accused No.2 and 6 who have remained absent today. Put up on 17-1-2003." 3. This order of the trial court was challenged by the petitioner in a criminal revision No.96/02 before this Court. This Court allowed the revision petition by order dated 10-2-2003. The order of the trial court was set aside and the trial court was directed as follows :- "The trial court is directed to pass a fresh order. When this is done, it would be apt that more explicit order indicating the material which has come on record, is adverted to., The general observation that record indicates something against the petitioner be elaborated." 4. Pursuant to the direction of this Court learned trial court passed fresh order dated 26-4-2003. The trial court after perusal of the material existing on the file against the petitioner observed that the record and the documents mentioned in the order, prima facie prove the involvment of Sh.T.R.Kalra, the then Director General of Prisons in the commission of the alleged offences and, therefore, ordered that he be arrayed as an accused in the case and a bailable warrant for the amount of Rs.20,000/- be issued against for his production in the court. This order dated 26-4-2003 passed by the learned Special-Judge Anti-corruption Jammu is the subject matter of challenge in this criminal revision. 5. I have heard the learned counsel for the parties and perused the record also. 6. Mr.Bakshi learned counsel for the petitioner has questioned the validity of the order of the learned trial court on the ground that the learned trial court was not justified in relying upon material of the investigation only for arriving at the conclusion that the petitioner was involved in the commission of the offence and as such should be arrayed as an accused. According to Mr.Bakshi in view of the provision contained in section 351 Cr.P.C. it is only after recording the evidence in the trial of the case that the question as to whether the accused petitioner should be arrayed or should not be arrayed as an accused, could have arisen. According to Mr.Bakshi in view of the provision contained in section 351 Cr.P.C. it is only after recording the evidence in the trial of the case that the question as to whether the accused petitioner should be arrayed or should not be arrayed as an accused, could have arisen. Mr.Bakshi argued that the learned trial court committed grave error of law by misconstruing the provision contained in sec.351 Cr.P.C. According to him the trial court misdirected itself in examining the investigational record so as to find out as to whether the petitioner was involved in the commission of offence or not. He has further submitted that indisputably no evidence of the prosecution has yet been recorded in the case and, therefore, there was no material in the shape of evidence available before the trial court to suggest the involvement of the petitioner in the commission of offence. Therefore, there was no occasion for the learned trial court to take cognizance of the offence against the petitioner and to implead him as an accused in the case. 7. On the other hand the contention of learned AAG , Mr.Salathia, is that there was sufficient material in the investigation record before the learned trial court which indicates prima facie involvement of the petitioner in the commission of offence alongwith other accused and, therefore, the learned trial court was justified in taking the cognizance and arraying the petitioner as an accused in the case. He further submitted that as the petitioner has already retired, there is no necessity of previous sanction for prosecution. 8. A perusal of the order passed by the learned trial court dated 26-4-2003 shows that no evidence has been recorded in the trial. Learned trial court has arrived at the conclusion that the petitioner was in the position of the accused on the basis of material collected during investigation, therfore, the question arises, was the trial court justified in arriving at the above said conclusion? Learned trial court has arrived at the conclusion that the petitioner was in the position of the accused on the basis of material collected during investigation, therfore, the question arises, was the trial court justified in arriving at the above said conclusion? Sec. 351 Cr.P.C. which corresponds to sec.319 of the central Cr.P.C. reads as under :- "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 though he had been arrested or summoned. (2) When the detention takes place after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the withnesses reheard." 9. The evidence which has been referred to in the section is the evidence recorded at the trial and not the evidence collected during investigation. In 2003 Cr.L.J.2456, Kavi Kumar v. State of Punjab it was held as follows:- " I am of the considered opinion that the order passed by the learned Additional Sessions Judge, Ferozepur is contrary to the provisions of section 319 of the Code of Criminal Procedure. In the case of Ranjit Singh v. State of Punjab, (1998) 6 JT (SC) 512, the Honble Supreme Court has held that from the stage of committal the court could deal with only the accused referred to in section 209 of the Code of Criminal Procedure, It has been further held that there is no intermediary stage till then for the Sessions court to add any other person to the array of the accused. The only other stage when the court is empowered to add any other person to the array of the accused is after recording the evidence. After recording evidence, Section 319 of the Code of Criminal Procedure empowers the court to summon any other person as an accused. The court in Sukhbir Singh v. State of Haryana, Criminal Misc. No. 18124. M of 1998 decided on 9.11.2001 (2002(1) Chand LR (Civ & Cri) 459) has quashed the summoning order for the same reasons. After recording evidence, Section 319 of the Code of Criminal Procedure empowers the court to summon any other person as an accused. The court in Sukhbir Singh v. State of Haryana, Criminal Misc. No. 18124. M of 1998 decided on 9.11.2001 (2002(1) Chand LR (Civ & Cri) 459) has quashed the summoning order for the same reasons. In that case the petitioner was summoned for the offence under sections 302/109/365/394 of the Indian Penal Code read with section 120.B of Indian Penal Code. The ratio of the aforesaid judgment is fully applicable to the facts and circumstances of this case." Likewise in 1999 Cr.L.J. 1801 case titled Abdul Qadir v. State of Karnatka, the Karnatka High court has held:- " The Court is empowered to take cognizance and issue summons to the additional accused only after the commencement of the evidence and that too if there is any evidence to proceed against the accused. The statement recorded under Section 161 Cr.P.C., by the police cannot be made use of. In the case on hand, the evidence is not yet commenced. Even the charge is not framed. Before framing of the charge the Public Prosecutor has filed an application under Sec. 319 Cr.P.C. and the court has made use of the statements recorded under Sec. 161 Cr.P.C. This is patently illegal." In the case Nisar and Anr v. State of U.P. 1995 Cr.L.J. 2118 their lordships of the Supreme Court held:- "8. As regards the second contention of the appellants it must be said that in view of the plain and unambiguous language section 319 of the Code, the earlier quoted reason which weighed with the high court in sustaining the order of the learned Single Judge is patently incorrect. The power under section 319 (1) can be exercised only in those cases where involvement of persons other than those arraigned in the charge sheet comes to light in the course of evidence recorded during the inquiry or trial. The power under section 319 (1) can be exercised only in those cases where involvement of persons other than those arraigned in the charge sheet comes to light in the course of evidence recorded during the inquiry or trial. As that stage has not yet reached, the appellants could not happy in summoned invoking section 319 of the code." In Kishun Singh and ors v. State of Bihar, 1993 Cri.L.J. 1700, the Apex court held :- "On a plain reading of sub Section (1) of S.319, there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therfore 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 S.319 of the code. Therfore stricto sensu S.319 of the Code cannot be invoked in a case like the present one where no evidence has been led at a trial, where from it can be said that the appellants appeared to have been involved in the commission of the crime along with those already sent up for trial by the Prosecution." 10. Thus there can be no dispute to the preposition of law pressed into service by Mr.Bakshi learned counsel for the petitioner that power vested by Sec.351 in a criminal court can be exercised for taking cognizance and summoning a person as an additional accused only when from the evidence recorded in the trial the court is satisfied that some offence appears to have been committed by such person. However, in the present case since the petitioner could not have been summoned by the learned trial court under sec.351 Cr.P.C. as admittedly no evidence of the prosecution has been recorded in the trial, therefore, the question arises whether there is any other source of power in the Code for enabling a Magistrate to summon an additional person as an accused, who has not been put up for trial by the investigating agency on the basis of the record of police report submitted under sec.173 Cr.P.C. but who in the opinion of the Magistrate appears to have committed the offence. 11. Under the provisions of section 173 Cr.P.C. after completion of the investigation when charge sheet/police report is laid before the Magistrate competent to take cognizance of the offence which is alleged to have been committed by a person or persons arrayed as accused, such Magistrate is required by the Code to act under section 190 Cr. P.C. which reads as follows:- "190-Cognizance of offence by Magistrates (1) Except as hereinafter provided any Chief Judicial Magistrate and any other Judicial Magistrate specially empowered in this behalf may take cognizance of any offence:- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicision that such offence has been committed." 12. From the bare reading of the section it is manifest that on the filing of the charge sheet Magistrate is required to take cognizance of the offence and not of the offender. `Taking cognizance means applying the mind of the Judge or Magistrate to the facts constituting the offence for the purpose of initiating judicial proceedings against the offender or taking steps to see whether there is any basis for initiating judicial proceedings. The occasion for taking cognizance by the Magistrate arises (a) when he receives a complaint of facts constituting an offence or (b) when a police report in writing of such facts is submitted before him (like report U/S 173 Cr.P.C.) or (c) upon information he received from any person other than a police officer, or upon his own knowledge or suspicision that any offence has been committed. 13. 13. On taking cognizance of the offence which in his opinion has been committed by a person who is not before him and there is sufficient ground for proceeding against him a Magistrate is empowered to issue process for summoning of such person U/S 204 Cr.P.C. 14. There is nothing in the section 190(1-b) Cr.P.C. which restricts the power of the Magistrate to proceed against such of the offender only who in the police report is alleged to have committed the offence. The power vested by this section is very wide. By the words `take cognizance of the offence used in the section it appears that the Magistrate is empowered to take cognizance of the offence and thereby summon any other person as an additional accused who may also appear to have committed the offence from the facts stated in the charge sheet of the police. In M/S SWIL Ltd. v State of Delhi and Anr, 2001 Cri.L.J. 4173, their lordships of the Supreme court have held:- "6. 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.Pc 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 of an offence and not the offender. After taking cognizance of the offender the Magistrate under Section 204 Cr.PC 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 the other documents tendered along with charge sheet. Further upon receipt of the police report under Sec. 173(2) Cr.PC 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 statements of the witmesses 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, AIR 1967 SC 1167. 1967 Cr.LJ 1081) by holding thus (para 9 of AIR Cr. LJ):- "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 person. The summoning of the additional accused is Part of the proceedings initiated by taking cognizance of an offence." 7. Further in the present case there is no question of referring to the provision of S.319 Cr.P.C. The 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 has started. He was exercising his jurisdiction under S.190 of taking cognizance of 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. 15. The learned trial court appears to have passed the order impugned in exercise of the power vested under s.190 (1-b) read with S.204 Cr.P.C. and viewed thus the order cannot be an order passed without jurisdiction. 16. Pursuant to the directions of this Court order dated 10-02-2003 passed in Cr.R.96/02 the learned trial court has indicated in the order the material from the investigational record on the basis of which the learned special Judge formulated the opinion about the complicity of the petitioner in the commission of the offence. Whether such material is sufficient to prima facie indicate the commission of the offence against the petitioner is the question, which has to be gone into by the trial court at the time when the accused appears and is heard at the stage of charge and discharge. Whether such material is sufficient to prima facie indicate the commission of the offence against the petitioner is the question, which has to be gone into by the trial court at the time when the accused appears and is heard at the stage of charge and discharge. Therefore, without returning any finding thereon it is held that there is no illegality, impropriety or irregularity in the order of learned Special Judge and as such it does not call for any interference. 17. The revision is dismissed. Copy of this order be sent to the trial court.