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2005 DIGILAW 279 (JK)

Mohd. Aslam v. State Of J. &K.

2005-10-15

Y.P.NARGOTRA

body2005
1. Whether the Sessions Judge can add a new person to the array of the accused in a case pending before it at a stage prior to collecting of any evidence? is the question arising for consideration in this revision petition. 2. The petitioner herein was cited as a prosecution witness in the calender of witnesses in a challan case entitled State Vs. Abdul Majid in the Court of learned Chief Judicial Magistrate, Rajouri for commission of offences under sections 420, 467 and 468 RPC. The learned Chief Judicial Magistrate by his order dated 28th December 2001 committed the case for trial to the court of learned Sessions Judge, Rajouri as offence under section 467 RPC was exclusively tri able by the Court of Session. At the time of framing of charge, the learned Sessions Judge noticed that story of the prosecution case in nut shell was that gift deed in respect of land out of khasra No. 251-m was a make believe and false document to which the accused had got attached revenue map of that portion of land on which the department had constructed a tower and was comprised of Khasra No. 251, which was done in order to show that the land on which the tower has been constructed was in fact the land bearing khasra No. 251-m and son of the accused was entitled to get compensation thereof. In view of the learned Sessions Judge, if gift deed in question was a false document and the land out of Khasra No. 251- m was not intended to be bequeathed thereby possession of which remained with the doner Mohd. Aslam (petitioner herein) then it was a clear case of involvement of the petitioner also in the commission of crime. Therefore, learned Sessions Judge by his order dated 31st July 2002 arrayed the petitioner as an accused in the case and issued bailable warrants for procuring his appearance. 3. Aggrieved by his arraignment as an accused, the petitioner has filed this revision petition. I have heard learned counsel for the petitioner and Mr. B. S. Salathia, learned Additional Advocate General for the State. 4. The contention of learned counsel for the petitioner is that power vested with the Sessions Judge for arraying a person as an accused in a pending case could be exercised only after recording evidence and not before that. Mr. I have heard learned counsel for the petitioner and Mr. B. S. Salathia, learned Additional Advocate General for the State. 4. The contention of learned counsel for the petitioner is that power vested with the Sessions Judge for arraying a person as an accused in a pending case could be exercised only after recording evidence and not before that. Mr. Harbans Lal, learned counsel for the petitioner submits that as the learned Sessions Judge has ordered for the arraignment of the accused be fore recording of the evidence of the prosecution, his order is bad in law. 5. On the other hand, contention of learned Additional Advocate General is that while taking cognizance in the case after being committed to the Court of Session, the learned Sessions Judge could order for the arraignment of the accused who on the basis of record appears to have committed offence. Section 351 of the Code of Criminal Procedure reads as follows: 357. 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 produced 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 witnesses rehered.� 6. From a bare reading of the section, it is manifest that any person attending the criminal court although not under arrest or upon summons may be detained by such Court for the purpose of inquiry into or trial of the offence of which the Court can take cognizance and which from the evidence may appear to have been committed and can be proceeded against as though he has been arrested or summoned as an accused. It is now well settled that evidence envisaged under section 351 J&K Cr.P.C. {which corresponds to section 319 of the Central Cr. P. C. (unamended)}� is the evidence tendered during the trial of the case if the offence is triable by the Court of Session. Ref. Raj Kishore Prasad Vs. State of Bihar, (1996) 4 SCC 495�. It is now well settled that evidence envisaged under section 351 J&K Cr.P.C. {which corresponds to section 319 of the Central Cr. P. C. (unamended)}� is the evidence tendered during the trial of the case if the offence is triable by the Court of Session. Ref. Raj Kishore Prasad Vs. State of Bihar, (1996) 4 SCC 495�. In 1993 AIR SCW 771, in Kishun Singh™s case, their Lord ships observed as follows: On a plain reading of sub-section (1) of Section 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. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom 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.� 7. In the same case, their Lordships, for tracing out the source of power of the criminal Court to add any other person to the array of the accused de hors section 319, held as follows: On the Magistrate committing the case under Section 209 to the Court of Sessions the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record.� 8. Under Section 193 of the Cr.P.C., a Court of Session can only take cognizance of an offence as a Court of original Magistrate duly empowered in that behalf. Committal of an accused to the Court of Session is made under Section 205-D of the Cr.P.C. by a Magistrate if the offence for which the case is instituted before the Magistrate appears to him exclusively triable by the Court of Session. Committal of an accused to the Court of Session is made under Section 205-D of the Cr.P.C. by a Magistrate if the offence for which the case is instituted before the Magistrate appears to him exclusively triable by the Court of Session. Thus, in view of the law laid down by the Supreme Court in Kishun Singhs case (supra), the Sessions Court is possessed with unfettered jurisdiction of the Court of original jurisdiction and is empowered to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of crime can prima facie be gathered from the material available on record. The aforesaid proposition of law came up for reconsideration before three judges Bench in case of Ranjit Singh Vs. State of Punjab, AIR 1998 SC 3148. Their Lordships did not agree with the observations made in Kishun Singh™s case (supra) and held as follows: Thus, once the Sessions Court takes cognizance of the 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 reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers. But then one more question may survive. In a situation where the Sessions Judge notices from the material produced but before any evidence is taken, that any other person should also have necessarily been made an accused (without which the framing of the charge would be defective or that it might lead to miscarriage of justice) is the Sessions Court completely powerless to deal with such a contingency? One such situation is cited by the learned Judges through an illustration narrated in Kishun Singh™s case (1993 AIR SCW 771) (supra) as follows: Where two persons A and B attack and kill X and it is found from the material placed before the Judge that a fatal blow was given by A whereas the blow inflicted by B had fallen on a non-vital part of the body of X. If A is not challaned by the police, the Judge may find it difficult to charge B for the murder of X with the aid of Section 34, IPC. If he cannot summon A, how does he frame the charge against B? Another instance can be this. All the materials produced by the investigating agency would clearly show the positive involvement of a person who was not shown in the array of accused due to some inadvertence or omission. Should the Court wait until evidence is collected to get that person arraigned in the case? Though such situation may arise only in extremely rare cases the Sessions Court is not altogether powerless to deal with such situations to prevent miscarriage of justice. It is then open to the Sessions Court to send a report to the High Court detailing the situation so that the High Court in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. But we hasten to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes.� 9. In view of the law laid down by the Supreme Court in Ranjit Singh™s case (supra), the learned Sessions Judge was not right in taking cognizance against the petitioner and arraying him as an accused. The order impugned, there fore, deserves to be set aside and the same is set aside. However, the learned Sessions Judge shall be at liberty to either keep the issue open till the involvement of the petitioner in the crime comes on the record on the basis of evidence which may be collected during the trial or in the alternative to make a report to this Court foe remitting the case back to the committal Magistrate for considering the question of issuance of the process to the petitioner by arraying him as an accused on the basis of record available. The revision is accordingly allowed. A copy of this order along with record be sent to the trial court forthwith.