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2005 DIGILAW 2942 (RAJ)

Jaswant Singh v. State of Rajasthan

2005-11-10

H.R.PANWAR

body2005
JUDGMENT 1. - The instant criminal revision petition under Section 307/401 of the Code of Criminal Procedure, 1973 (for short 'the Code' hereinafter) is directed against the order dated 15.3.2004 passed by the Additional Sessions Judge, Raisinghnagar, District Sri Ganganagar (for short, "the Revisional Court" hereinafter) whereby the Revisional Court allowed the revision petition filed by Non-Petitioners No. 2 to 5 against the order dated 23.6.2003 passed by the Judicial Magistrate, Raisinghnagar (for short, "the Magistrate" hereinafter) in Criminal Case No. 26/2003. By the order dated 23.6.2003, the Magistrate took the cognizance of the offences under Sections 323, 325, 447, 307, 147, 148, 149 IPC against Non-Petitioners No. 2 to 5. Aggrieved by the order of the Magistrate, the Non-Petitioners No. 2 to 4 filed a revision petition before the Revisional Court. By the impugned order dated 15.3.2004, the Revisional Court set aside the order of the Magistrate and allowed the revision petition. Aggrieved by the order of the Revisional Court, the complainant - Petitioner has filed the instant revision. 2. I have heard learned counsel for the parties. Perused the orders of the Magistrate as well as of the Revisional Court. 3. The Revisional Court allowed the revision petition on the ground that one of the offences, i.e. offence under Section 307 IPC is exclusively triable by the Court of Session and, therefore, at the time of committal of the case against the accused persons who have been challenged by the police, the Judicial Magistrate was not competent to arraign the other persons as accused who have not been challenged by the Police and while arriving at this finding, place reliance on a decision of the Hon'ble Supreme Court in Rajkishore Prasad v. State of Bihar, 1996 SCC (Cri.) 772 ; and a number of decisions of this Court. 4. In the instant case, after investigation, the police filed challan against accused Ajayab Singh for the offences under Sections 307, 447, 323, 325 IPC. At the time of committal of the case under Section 209 of the Code to the Court of Sessions, an application was filed before the Magistrate seeking arraigning of Non-Petitioners No. 2 to 4 as the accused. That application came to be allowed by the Judicial Magistrate's Court. From the facts available on record, it is clear that the Non-Petitioners No. 2 to 5 were not challenged by the police. 5. That application came to be allowed by the Judicial Magistrate's Court. From the facts available on record, it is clear that the Non-Petitioners No. 2 to 5 were not challenged by the police. 5. Learned counsel for the petitioner submits that even though the offence is triable exclusively by the Court of Session and if the persons who were named in the FIR have been left out by the police and they have not been challenged, the Magistrate, at the time of committing the case to the Court of Session under Section 209 of the Code, can arraign other persons as accused and take cognizance of the offence under Section 190 of the Code. 6. A similar question came up for consideration before the Hon'ble Supreme Court in Rajkishore Prasad's case (supra) as to whether a Magistrate undertaking committal under Section 209 of a case triable by a Court of Session, associate another person as accused, in exercise of powers under Section 319 of the Code, or under any other provision. The Hon'ble Supreme Court, while considering the provision of Section 209 of the Code, held as under: "The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as 'committal proceedings' have been abolished in cases triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the public prosecutor etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being an adjudicator. It is thus manifest that in the sphere of the limited functioning of the Magistrate, no application of mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or. otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straightaway with the trial and that nothing is lacking in content, as per requirements of Sections 207 and 209 of the Code of Criminal Procedure. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straightaway with the trial and that nothing is lacking in content, as per requirements of Sections 207 and 209 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of 'inquiry' as defined in Section 2(g) of the Code of Criminal Procedure, which defines that 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court', because of the prelude of its being 'subject to the context otherwise requiring.' As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209 Cr.PC. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need to added or subtracted up face trial before the Court of Session." 7. The Apex Court further held that the power under Section 209 of the Code to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceeding not being an 'inquiry' and material not being 'evidence'. When such power was not so vested, his refusal to exercise it cannot be corrected by a Court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, summon the accused to stand trial, alongwith the accused meant to be committed for trial before it. 8. In the case before the Hon'ble Apex Court, Rajkishore Prasad, appellant therein, was sought to be impleaded as an accused, but the police, after investigation, did not find his involvement and, therefore, he was not challaned, however a challan was filed against Avadh Kishore aliqs Pagava. 8. In the case before the Hon'ble Apex Court, Rajkishore Prasad, appellant therein, was sought to be impleaded as an accused, but the police, after investigation, did not find his involvement and, therefore, he was not challaned, however a challan was filed against Avadh Kishore aliqs Pagava. Before the Judicial Magistrate, the first informant made an application requiring the Magistrate to exercise this powers to summon Rajkishore Prasad, appellant therein, so as to send him to stand trial alongside the accused sent up by the police, before the Court of Session. That application came to be dismissed by the Magistrate. The first informant challenged the order of the Magistrate by revision before the Court of Session. The Session Court allowed the revision and directed the Magistrate for issuance of warrant of arrest of Rajkishore Prasad to face trial. That order came to be challenged by Rajkishore Prasad before the High Court under Section 482 of the Code. The petition under Section 482 of the Code came to be dismissed by the High Court and the matter was carried to the Hon'ble Supreme Court. The Apex Court set aside the orders passed by the Court of Session as well as the High Court and held that in a case exclusively triable by a Court of Session, the stage for adding a person, who has not been challenged by the police is under Section 319 of the Code. 9. In Kishori Singh & Ors. v. State of Bihar & Anr., 2004(4 Crimes 158 (SC) , the question came up before the Hon'ble Supreme Court regarding taking of cognizance of offence against the accused-Persons not named in the charge-sheet but named in the FIR in a case exclusively triable by the Court of Session. The Hon'ble Supreme Court has held that the Magistrate could not have issued process against those persons, who may have been named in the FIR as accused-Persons but not charge-sheeted in the charge-sheet filed by police under Section 173 of the Code. The Hon'ble Supreme Court has held that the Magistrate could not have issued process against those persons, who may have been named in the FIR as accused-Persons but not charge-sheeted in the charge-sheet filed by police under Section 173 of the Code. So far as those persons against whom charge-sheet has not been filed, are concerned, they can be arrayed as "accused persons" in exercise of powers under Section 319 of the Code when some evidence or materials are brought on record in the course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing the order of commitment or by the Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet. 10. In Kishori Singh's case (supra), three appellants though were named as accused in the FIR, but had not been charge-sheeted under Section 173 of the Code. The offence in that case was one which was triable by the Court of Session. The Magistrate in that case came to,the conclusion that there appears sufficient grounds to proceed against accused-Persons and as such cognizance be taken under Sections 302/34, 324 and 448 IPC and Section 24 of the Arms Act. That order came to be challenged by the appellants therein before the Sessions Judge in revision. The Sessions Judge held in revision that the order of magistrate is without jurisdiction and revision was allowed. The matter was carried to the High Court by way of appeal. The High Court interfered with the order of Sessions Judge and thereby the appellants therein carried the matter to the Hon'ble Supreme Court. Relying on the decision of of Rajkishore Prasad (supra), and Three Judge Bench decision of Hon'ble Supreme Court in Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 , the Hon'ble Supreme Court held that where offence was triable by Sessions Court, the Magistrate cannot issue process against those persons, who may have been named in the FIR as accused-Persons, but not charge-sheeted in the charge-sheet that was filed by the police under Section 173 of the Code. 11. 11. Thus, the instant case, on facts and law, squarely covered by the two decisions of the Hon'ble Supreme Court in the Rajkishore Prasad (supra) and Kishori Singh (supra) and, therefore, the impugned order dated 15.3.2004 passed by the Revision Court setting aside the order dated 23.6.2003 passed by the Magistrate is in consonance with the legal position culled out from the aforesaid two decisions of the Hon'ble Supreme Court and it does not require any interference. 12. Consequently, I do not find any merit in the revision petition and it is dismissed accordingly.Revision Petition dismissed. *******