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2005 DIGILAW 868 (MP)

JAGDISH SINGH v. STATE OF M. P.

2005-08-17

RAKESH SAKSENA

body2005
( 1 ) THIS revision has been preferred by the accused Jagdish Singh against the order dated 14-10-1998 passed by learned 7th Additional Sessions Judge, gwalior. In Sessions Trial No. 215/98, whereby the learned trial Court has taken cognizance against the petitioner under the provision of Section 193, Cr. P. C. ( 2 ) IN brief, the prosecution story is that in the night of 29-11-1997 complainant wakil Singh and his maternal uncle rameshwar Gurjar (injured) were going to sleep in their garage situated in village sunarpura. When they were talking, suddenly accused Kalla alias Kalyan Singh gurjar armed with 'katta', Kartar Singh armed with 'lathi', Ramesh Gurjar and jagdish Gurjar (petitioner) armed with 'katta' came at the window of the garage and on exhortation of Kartar Singh, Ramesh fired his 'katta' at Rameshwar causing injury on his left hip. When Rameshwar got up and sat on the cot, then accused Kalla fired another shot, which hit on the right side of his chest. It is said that Jagdish Singh also fired his 'katta' at Rameshwar, but his shot did not find its mark and bullet hit at the wall of the garage. Accused persons then ran away. FIR of the incident was lodged by Wakil singh, wherein he had named the petitioner along with others as one of the accused. On such report, a case under Section 307 of ipc was registered. During investigation, statements of Wakil Singh, Kirshen, Ram prakash, Dashrath, Sarju Bai and Uday singh were recorded under Section 161, Cr. P. C. They also named the petitioner as one of the assailants. ( 3 ) AFTER investigation, the charge-sheet under Section 307, IPC was filed against the accused persons in the Court. However, the petitioner was not arrayed as accused. Learned Magistrate committed the case to the Court of Session for the trial. At this stage, the complainant as well as the prosecution filed application before the Court of session for taking cognizance against the petitioner, who was not arrayed as accused in the charge-sheet by the police. Learned sessions Judge on the basis of allegations made in the FIR as well as in the statements recorded under Section 161, Cr. P. C. wherein the name of the petitioner was mentioned as one of the assailants, took cognizance against the petitioner in exercise of jurisdiction under Section 193, cr. Learned sessions Judge on the basis of allegations made in the FIR as well as in the statements recorded under Section 161, Cr. P. C. wherein the name of the petitioner was mentioned as one of the assailants, took cognizance against the petitioner in exercise of jurisdiction under Section 193, cr. P. C. and ordered the issue of warrant against the petitioner. ( 4 ) BEING aggrieved by the impugned order of taking cognizance against the petitioner, he has preferred this revision petition. Learned counsel for the petitioner has submitted that in view of the law laid down by the Apex Court in the case of Ranjit Singh v. State of Punjab, 1998 (3) Crimes 258 (SC): (1998 Cri LJ 4618) learned Sessions Judge had no jurisdiction to add a new person in a case pending before it at a stage prior to recording of the evidence, therefore the order of taking cognizance under Section 193, Cr. P. C. passed by the learned trial Court against the petitioner is illegal and without jurisdiction. ( 5 ) PER contra, learned counsel for the state has submitted that 'he Magistrate takes cognizance only of the offence and not of the offender, therefore since the cognizance of the case had already been taken by the Magistrate under Section 190, Cr. P. C. and the case was committed to the Court of session for the trial, it cannot be said that the Court of Session had no jurisdiction to take cognizance against the petitioner under Section 193, Cr. P. C. and add him as an accused in the trial. ( 6 ) I have heard the counsel of both the sides and have perused the record. ( 7 ) BEFORE adverting to the facts and the evidence in the case, it is pertinent to refer to the law laid down by the Apex Court in the case of Ranjit Singh (supra) :-"14. Now, we may look at the procedure for trial before the Court of Session as laid down in Chapter XVII of the Code which contains practically all the provisions relating to such trial. The commencing Section 225 of the Chapter only says that prosecution shall be conducted by a Public Prosecutor. Now, we may look at the procedure for trial before the Court of Session as laid down in Chapter XVII of the Code which contains practically all the provisions relating to such trial. The commencing Section 225 of the Chapter only says that prosecution shall be conducted by a Public Prosecutor. The next Section 226 says that "when the accused appears or is brought before the court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused". 15. It is clear that during the said stage the Court of Session can deal only with the accused who is referred to in Section 209. The accused who can appear or can be brought before a Sessions Court at that stage is only that accused who is referred to in section 209. Section 227 deals with the power of the Court to decide whether that accused is to be discharged or not. If he is not discharged the Sessions Court is oblige to frame a charge against that accused as per Section 228 of the Code. Thereafter the plea of that accused has to be recorded as enjoined by Section 229. The stage of evidence collection commences only next, (vide sections 230 and 231 of the Code ). 16. So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 of the Code that Court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions court to add any other person to the array of the accused. 17. Thus, once the Sessions Court takes cognizance of the offence pursuance 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 cf 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. We are unable to find any other power for the Sessions Court to permit addition cf 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. "in view of the above settled legal position, it is amply clear that the Sessions Court has no jurisdiction to add new person of its own, unless he has been sent for the trial through the committal order passed by the Magistrate. ( 8 ) THE ratio of the case of Ranjit Singh (supra) was followed by this Court in Criminal Revision No. 128/98 (Dilip Sahu v. State of M. P.) decided on 12-2-2003, wherein it was considered that as far as Section 190 is concerned, it was in respect to the cognizance by the Magistrate and not by the Sessions Court and thus it dealt with the powers of Magistrate and did not give any power to the Sessions Judge. It was also observed by the Apex Court in the said Ranjit Singh's case (supra) (1998 Cri LJ 4618) that the power of the Sessions Court under Section 193 also did not include the powers to summon persons whose complicity in the commission of the offence could be gathered from the materials available on the record. Therefore, in view of the above legal position, the impugned order of adding the petitioner by taking cognizance under Section 193, Cr. P. C. by the trial Court was clearly against the law. ( 9 ) ACCORDINGLY, this revision petition is allowed and impugned order is hereby set aside. ( 10 ) HOWEVER, it is made clear that learned sessions Court is free to proceed in accordance with law against any person if during the trial of other accused some evidence comes against the present petitioner. Petition allowed. .