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2005 DIGILAW 118 (PAT)

Kaushlendra Singh v. State Of Bihar

2005-02-04

P.K.SINHA

body2005
Judgment 1. This is an application under Sec. 482 of the Code of Criminal Procedure (The Code" in short) for quashing order dated 12.1.2000 recorded by the learned Judicial Magistrate, Begusarai by which the learned Magistrate had summoned the petitioner to face trial along with other accused persons, and had issued non-bailable warrant of arrest against him for his appearance, as well order dated 25.9.2002 recorded by the learned 4th Additional Sessions Judge, Begusarai in Criminal Revision No. 35 of 2000 by which the learned Additional Sessions Judge had affirmed the order dated 12.1.2000. aforesaid, and had dismissed the revision. 2. Both sides are agreed on the following facts : (1) The case had been filed by Bandana Kumari, wife of the petitioner in Begusarai Muffassil P.S. Case No 228 of 1997 under Sec. 498-A read with Sec. 34 of the Penal Code making various allegations (2) The Police after investigation submitted charge-sheet against the father-in-law and mother-in-law of the informant and investigation was kept pending against the petitioner vide Annexure-2. (3) After further investigation the Police submitted final report in favour of the petitioner holding him to be innocent, uideannexure-3. The cognizance of the offence was taken against father-in-law and mother-in-law and the final report against the petitioner was also accepted, vide Annexure-4. 3. The case went to trial before the Judicial Magistrate who recorded the impugned order dated 12-1-2000 in which the accused persons facing trial had prayed to be discharged from the case under Sec. 239 of the Code on the ground that no evidence was collected in the case diary. The learned Magistrate, while discussing the materials, held that there were sufficient evidences on the case diary for framing charge against the two accused facing trial and in that context, rejecting their prayer also held that similar evidence stood against this petitioner also and ordered issuance of warrant of arrest against him for facing the trial. 4. Against that the petitioner moved in criminal revision bearing Criminal Revision No. 35 of 2000 disposed of by the learned 4th Additional Sessions Judge, Begusarai in which, taking into consideration certain decisions, the order of the learned Magistrate was upheld. 5. In this case opposite party No. 2, the informant, was also issued notice to show cause as to why this application should not be heard and, if possible, disposed of at this stage. 5. In this case opposite party No. 2, the informant, was also issued notice to show cause as to why this application should not be heard and, if possible, disposed of at this stage. It appears that notice having been served upon him, no one appeared on her behalf when the case was taken up for hearing. Therefore, learned Additional Public Prosecutor was heard. 6. Learned counsel for the petitioner has submitted that in a decision in the case of Kishun Singh V/s. State of Bihar, which was relied upon, it was held by Supreme Court that once the case was committed to the Court of Sessions, the Court of sessions was competent to summon accused not sent up for trial in view of Sec. 193 of the Code and it was not necessary to await examination of witnesses whereafter and accused could be summoned under Sec. 319 of the Code. However, that decision, by a larger Bench of the Apex Court; stands overruled in the case of Ranjit Singhv. State of Punjab. Their Lordships held that the powers of the Sessions Court under Sec. 319 of the Code to take cognizance of the offence did not include the summoning of the person or persons whose complicity in the commission of the crime, prima facie could be gathered from the materials available on the record. It was held that once the sessions Court takes cognizance of offence pursuant to the committal order, the only other stage when the Court is empowered to add any other person to the array of the accused is after recording evidence invoking the power vested under Sec. 319 of the Code. Their Lordships also observed that if, to the Sessions Court, it appeared that the materials produced by the-Investigating Agency showed positive involvement of a person who was not shown in the array of accused due to inadvertence or omission, then the only course open to the sessions Court was to send a report to the High Court dealing with the situation so that the High Court could, in its inherent powers or revisional powers, direct the committing Magistrate to rectify the committal order by issuing process to such left out accused, though also cautioning that such procedure need to be restorted to only for rectifying or correcting such grave mistakes. 7. 7. Another decision relied upon I was also of the Apex Court in the case of M/s SwilLimited V/s. State of Delhi. In that case the concerned Metropolitan Magistrate on the first day of taking cognizance issued summonses to all the accused and at the stage of issuing process to the accused, shown in, the, first information report for having committed the offence but on, the next date posting of the case, he also issued summons to the respondent No. 2 which order was challenged by him before the High Court which upheld the contention of the respondent No. 2. however the fact of that case are a bit different. The same Magistrate on the first date took cognizance of the offence and issued summonses to some accused their Lordships of the Supreme Court held that after taking cognizance of the offence, the Magistrate under Section 204 of the Code was empowered to issue process to the accused, it was 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 which he was required to consider the first information report and the statements recorded by the Police Officer and; other documents tendered alongwith the charge-sheet. Their Lordships also noted that upon receipt of the Police report under Sec. 173(2) of the Code the Magistrate was entitled to take cognizance of offence under Sec. 191(1)(b) even if the police report was to the effect that no case was made out against the accused, by ignoring the conclusion arrived at by the Investigation Officer and independently applying his mind to the facts emerging from the investigation by taking into account the statements of witnesses examined by the Police as at that stage there was no question of application of Sec. 319 of the Code. 8. The facts in this case are different so much so that after submission of the Police report under Sec. 173(2) of the Code the learned Magistrate had applied his mind, when charge-sheet was submitted against two accused only, to the materials on the record and had taken cognizance of offence summoning those two accused. Whereafter the Police submitted final report against the petitioner holding him innocent and then again the learned Magistrate, taking into consideration the facts of the case and the materials on record, accepted the final report. Whereafter the Police submitted final report against the petitioner holding him innocent and then again the learned Magistrate, taking into consideration the facts of the case and the materials on record, accepted the final report. The case, thereafter, was transferred to the Judicial Magistrate for trial under Chapter XIX of the Code where, while considering an application by those two accused for their discharge, and to find out whether charges could be framed against the two accused against whom charge-sheet was submitted and who were sent up for trial, the learned Magistrate while rejecting their prayer also held that there were materials on the record to direct this petitioner also to face the trial whereafter the Court issued non-bailable warrant of arrest against him. 9. In so far as the stage when the learned Magistrate was considering the matter of framing of the charge was concerned, obviously the stage of taking cognizance of offence by Magistrate had passed and matter was being considered under Chapter XIX of the Code, relating to trial. Provision under Sec. 319 of the Code is same whether the trial is being held by a Court of sessions or by a Judicial Magistrate. When the stage of taking cognizance has passed, then an accused not sent up for trial can be summoned only under Sec. 319 of the Code which power can be exercised if from the evidence adduced in the trial Court it appears that any person, not being the accused facing trial, has committed any offence and that such person should also be tried together the accused already facing trial. Therefore, a decision to summon the accused, once stage passed, can be taken only after some evidence has come on the record. 10. Sri Chandrasen Prasad Singh learned Additional Public Prosecutor, in course of arguments, admitted that in such a situation accused could be summoned to face the trial only under Sec. 319 of the Code. 11. However, it will also appear that the petitioner also had moved the Court of sessions in revision where he failed to get any relief. 10. Sri Chandrasen Prasad Singh learned Additional Public Prosecutor, in course of arguments, admitted that in such a situation accused could be summoned to face the trial only under Sec. 319 of the Code. 11. However, it will also appear that the petitioner also had moved the Court of sessions in revision where he failed to get any relief. Normally, this Court does not interfere when the matter has been taken to one of the forums (Court of Sessions), on the principle that two revisions for relief on the same point by the same party is barred under the provisions of the Code, even in the garb of exercising powers under Sec. 482 of the Code. However, in exceptional circumstances in which the lower Courts appear to have committed a mistake on the face of record or to have recorded and order which is not legal, this Court can, to correct that, exercise its powers under Sec. 482 of the Code. 12. In that view of the matter, this application is allowed and order dated 12.1.2000 recorded by the learned Judicial Magistrate as well order dated 25.9.2002 recorded by the 4th Additional Sessions Judge, Begusarai, as aforesaid are hereby quashed. However, if such evidence comes on the record during trial and it is found expedient, the trial Court may, in its discretion, exercise the powers conferred under Sec. 319 of the Code.