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2012 DIGILAW 1732 (DEL)

Ravinder v. State

2012-05-08

M.L.MEHTA

body2012
JUDGMENT : M.L. Mehta, J. 1. This is a criminal revision petition against the order dated 11th January, 2012 of the learned Addl. Session Judge. FIR No. 351/2010 was registered under Section 302/34 IPC with Section 25/27 or Arms Act. The name of the present Petitioner was mentioned in Column No. 12 of the charge-sheet. The learned Metropolitan Magistrate vide order dated 21st May, 2011 committed the case to the Court of Sessions. Since the name of the Petitioner and Devinder @ Tape was kept in Column No. 12 of the charge-sheet, the learned Metropolitan Magistrate did not commit the names of these two persons to the Court of Sessions while committing the other co-accused persons. The learned Addl. Sessions Judge vide impugned order dated 12th January, 2012 sent the matter back to the Court of Metropolitan Magistrate for summoning the Petitioner and Devinder @ Tape. The learned Addl. Sessions Judge in the order observed that though the Petitioner and Devender have been placed in Column No. 12 of the charge-sheet, as per the statements of the witnesses and other relevant evidence specially the mobile phone call records, there is sufficient evidence against them for summoning them. This order of the learned Addl. Session Judge has been assailed by the Petitioner mainly on the ground that the learned Addl. Sessions Judge had no power to summon the Petitioner and Devender @ Tape since the learned Metropolitan Magistrate had not taken cognizance against them and committed them for trial along with the other co-accused persons. Learned counsel for the Petitioner placed reliance on Randhir Singh Rana vs. State(Delhi Admn.), 1997 (1) SCC 361 to contend that the only provision that stipulated arraying additional accused was under Section 319 Cr.P.C. and that could be invoked if there was material evidence against him during the trial. 2. I have heard learned counsel for the Petitioner, Complainant and the APP. The question as to whether the cognizance of the offences against the persons not charge-sheeted, but whose complicity in the crime comes to light on the material available on record, could be taken by the Sessions Court at the stage of committal of case came to be considered before the Hon’ble Supreme Court in the case of Kishun Singh vs. State of Bihar, 1993(2) SCC 16 and Randhir Singh Rana (supra). The observations in case of KishunSingh (supra) were taken note of by three Judges Bench of Hon’ble Supreme Court in Randhir Singh (supra) and reiterating as: “Thus, on a plain reading of section 193 as it presently stands once the case is committed to the Court of Session by a magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the magistrate committing the case under section 209 to the Court of Session 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”. 3. The case of Kishun Singh (supra) was taken note of by three Judges Bench in Ranjit Singh Rana(supra) and it was held that in a case like this the Sessions Court could not be completely powerless to deal with such a contingency. It was held that in a situation like this it is open to the Sessions Court to send a report to the High Court which may in exercise of its inherent power direct the Magistrate to rectify the mistake. However, in the later decision in case of Dharam Pal &Ors. vs. State of Haryana & Anr. (2004) 13 SCC 9 the three Judges Bench of the hon’ble Supreme Court has reiterated that the decision in the case of Kishun Singh is correct and the interpretation in case of Ranjit Singh(supra) as incorrect. Since the decision in Ranjit Singh (supra) is also of three Judges Bench, the matter has been directed to placed before the larger Bench. 4. In view of the above legal position it comes out to be that as on date, as has been observed by the three Judges Bench of Hon’ble Supreme Court in Dharampal (supra), the decisions in the case of Kishun Singh (supra) is correct. Though the matter is pending before the larger Bench, the position of law as on date is that of Kishun Singh case. 5. Though the matter is pending before the larger Bench, the position of law as on date is that of Kishun Singh case. 5. From the above discussion, I am of the view that the Sessions Court has the power under Section 193 Cr.P.C. to summon a person “if his involvement in the crime prima facie surfaces from the record of the case and the documents submitted along with the report under Section 173”. As per Kishun Singh case, the police record, statement of witnesses under Section 161 Cr.P.C., the seizure memo etc. can form part of the material available to the Court to form an opinion as to whether there is a ground for presumption that the accused has committed the offence. If the Court forms such an opinion, then such material can be the basis to proceed further against the said person. 6. Having said as above, it is seen that there are the statements of Mohramm Ali @ Chotu, Pradeep Mishra and Rajesh recorded under Section 161 Cr.P.C. revealing the involvement of the petitioner Ravinder as also Devender @ Tape along with co-accused persons in the commission of murder of Bheem Singh. The statements of these witnesses under Section 161 Cr.P.C. made immediately after the commission of the offence cannot be discarded out rightly at this stage. In the vigilance enquiry that was conducted on the complaint of Rajesh Kumar s/o Bheem Singh by the vigilance department and the police also, complicity of Petitioner and Devender @ Tape has surfaced. Further the telephonic calls made before and after commission of the offence with the Petitioner and Devender @ Tape also point fingers of grave suspicion towards their involvement. 7. There is no illegality or impropriety in the impugned order passed by the learned Addl. Sessions Judge and the same does not require any interference by this Court. 8. Petition, being devoid of any merit, is dismissed.