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2013 DIGILAW 967 (RAJ)

Jugal Kishore v. The State of Rajasthan

2013-05-10

ATUL KUMAR JAIN

body2013
JUDGMENT 1. - The law is well settled that in sessions cases, while committing the case to the Sessions Court, the Magistrate cannot take cognizance against the accused-persons who might have been named in the FIR, but who have not been arrayed as an accused in the charge-sheet by the police. This view comes from the following rulings:- (1) Kishori Singh v. State of Bihar, (2004) 13 SCC 11 , (2) Sanjay Gandhi v. Union of India, AIR 1978 SC 514 , (3) Shankar Ram v. The State of Raj., 2010(2) Cr.L.R.(Raj.) 1295, (4) Natthi Singh v. The State of Raj., 2007(1) Cr.L.R.(Raj.) 621. (5) Dhoori v. State of Raj., 1998 Cr.L.J. 3406(Raj.) 2. In other cases which are not exclusively triable by Sessions Court, the Magistrate can take cognizance against the persons who are named in the FIR but whose names do not appear in the charge-sheet filed by the police. Following rulings of the Hon'ble Supreme Court may be referred in this respect:- (1) M/s SWILL Ltd. v. Delhi , 2001 R.Cr.D 568(SC) , (2) Raghubans Dubey v. State of Bihar, 1967(2) SCR 423 . 3. The present criminal revision petition has been filed by two accused-persons(Jugal Kishore and Srikrishna ) whose names had not appeared in the charge-sheet, when the charge-sheet was filed in the court of Magistrate under Section 307 IPC etc. The learned Addl. Chief Judicial Magistrate, Bilara by his order dated 16.12.2011 in criminal regular case No. 632/2011 State v. Bankat Lal etc. had committed two accused-persons only, to the Sessions Court by the said order for trial for offence under Section 307 IPC etc. 4. Against the order dated 16.12.2011 of the said court of the Magistrate, the complainant filed a revision before the Sessions Judge, Jodhpur District and while deciding Criminal Revision No. 17/2012 filed by complainant Nand Kishore and without hearing petitioners Jugal Kishore and Srikrishna etc. 4. Against the order dated 16.12.2011 of the said court of the Magistrate, the complainant filed a revision before the Sessions Judge, Jodhpur District and while deciding Criminal Revision No. 17/2012 filed by complainant Nand Kishore and without hearing petitioners Jugal Kishore and Srikrishna etc. (proposed accused persons), the learned Sessions Judge by his order dated 4.4.2013 has set aside the committal order dated 16.12.2011 and has ordered that before committing the case to the Sessions court, the complainant should have been heard because in FIR, five persons were named as accused-persons and as per ruling of Hon'ble the Supreme Court in Bhagwant Singh v. Commissioner of Police and another, AIR 1985 SC 1285 , it was the duty of the Magistrate to give an opportunity of hearing to the complainant because out of five accused-persons named in FIR, charge-sheet was filed only against two of them and so virtually this was a Final Report in respect of three left out accused persons. Help of ruling of the Rajasthan High Court in Kamal Kishore v. State of Rajasthan, 2012(4) Cr.L.R.(Raj.) 2171 was also taken in this context and by the impugned order dated 4.4.2013 , the learned Sessions Judge, Jodhpur District has ordered that even in Sessions Case, before committing the case to the Sessions Court, it is the duty of the Magistrate to listen the complainant about the accused-persons who were named in the FIR but who are not charge-sheeted by the police. 5. The petitioner (accused Jugal Kishore and Srikrishan) have argued in this revision petition that the Sessions Court should not have ordered anything against them without giving an opportunity of hearing to them. They have submitted the following Rulings to support their arguments: (1) Manharibhai Muljibhai Kakadia & anr. v. Shaileshbhai Mohanbhai Patel & ors, 2013 Cr.L.R. SC 253. (2) Jagdish Chandra v. State of Raj, 2013(1) Cr.L.R.(Raj.) 479. 6. These rulings are perfectly applicable to the facts of the present case and the petitioners should have been heard by the Sessions court before the order dated 4.4.2013 was passed by the Sessions court against them. Following other rulings have also been referred by the petitioners in support of their arguments: (1) Kishori Singh & ors. v. State of Bihar, AIR 2000 SC 3725 . Following other rulings have also been referred by the petitioners in support of their arguments: (1) Kishori Singh & ors. v. State of Bihar, AIR 2000 SC 3725 . In this case, it was held that in Sessions case at a stage prior to one under Section 319 Cr.P.C., the Magistrate cannot issue process against those persons who may have been named in the FIR but not charge-sheeted under Section 173 Cr.P.C. (2) Shanker Dan & ors. v. State of Rajasthan & anr. , 2010(2) Cr.L.R.(Raj.) 1295. In this case it was held that in a Sessions Case, the Magistrate has no jurisdiction to take cognizance against the accused persons under Section 190(i)(b), Cr.P.C. against the left out accused persons whose names do not appear in the charge-sheet but this bar will not come in the way of the power of the Magistrate to take cognizance if the police submitted total negative report. (3) Dhoori v. State of Rajasthan, 1998 Cr.L.J.(Raj.) 3406. In this case also, it was held that in a case under Section 302, IPC etc. if police has left out some of the persons named in the FIR while submitting the charge sheet, then the Magistrate cannot take cognizance against left out accused persons. Same view was reiterated by the Rajasthan High Court in Natthi Singh v. State of Rajasthan, 2007 Cr.L.R. 254. (4) Ranjit Singh v. State of Punjab, AIR 1998 SC 3148 . In this case it was held that even the Sessions Court has no power to summon additional accused under Section 193 Cr.P.C. and the Sessions Court also should wait till the stage under Section 319, Cr.P.C. comes to take cognizance against the persons whose names do not appear in the charge-sheet. This ruling was followed by two Judge Bench of the Hon'ble Supreme Court in Jile Singh v. State of U.P, 2012 Cr.L.R. SC 2261. 7. It is important to note here that three Judge Bench of Hon'ble the Supreme Court in Dharam Pal Singh v. State of Haryana & anr. This ruling was followed by two Judge Bench of the Hon'ble Supreme Court in Jile Singh v. State of U.P, 2012 Cr.L.R. SC 2261. 7. It is important to note here that three Judge Bench of Hon'ble the Supreme Court in Dharam Pal Singh v. State of Haryana & anr. (2006) 1 SCC (Cri.) 273 , and another, has observed that interpretation reached in Ranjit Singh's case (supra) was not correct and as per them, the law was rather correctly enunciated in the judgment of two Judges in Kishun Singh v. State of Bihar, 1993(2) SCC 16 , wherein it was held that Sessions Court has power to take cognizance against left out accused persons under Section 193, Cr.P.C. also. It is pertinent to note here that Dharam Pal case was also dealt with by the three Judge Bench and Ranjit Singh's case was also dealt with by three Judge Bench. Hon'ble the Supreme Court in Dharm Pal's Case (supra) has clear cut opined that interpretation reached in Ranjit Singh's case (supra) was not correct and rather the law was correctly enunciated in Kishun Singh's case(suipra). Since decision in Ranjit Sing's case(supra) was of three Judge Bench so three Judge Bench of Hon'ble Supreme Court in Dharm Pal's case(supra) had directed the matter to be placed before Hon'ble the Chief Justice for placing the same before the Larger Bench and now the five Judge Bench has been constituted in the matter where the case was listed on 4.11.2008 as Cr.Appeal No. 148/2003 in Hon'ble the Supreme Court, which is yet pending before the Hon'ble five Judge Bench of the Hon'ble Supreme Court. 8. In the ultimate analysis, I have come to the conclusion that even after the order dated 4.4.2013 passed by the learned Sessions Judge, Jodhpur District, the trial court is not in a position to take cognizance against three left out accused persons as per the settled law propounded by Hon'ble the Supreme Court from time to time and so it will be a futile exercise to ask the Magistrate to apply his mind again about the persons who should be committed to the Sessions Court. It would have been better if the Sessions court would have applied its own mind as per the provisions of Section 193 Cr.P.C./319 Cr.P.C. in the light of the rulings referred herein-above and so the impugned order dated 4.4.2013 deserves to be set aside which is hereby quashed and which means that the order dated 16.12.2011 by which the learned Addl. Chief Judicial Magistrate, Bilara District Jodhpur had committed the case to the Sessions Court will be restored and the learned Sessions Judge will expedite the trial now. A copy of this order be sent to both the courts below and it is expected from the Addl. Chief Judicial Magistrate, Bilara that he will fix the date of appearance for accused Bankat Lal and Suraj Prakash before the learned Sessions Judge, Jodhpur District and send the case back immediately to the learned Sessions Judge, Jodhpur District under this order.The revision petition id disposed of accordingly. The stay petition also stands disposed of accordingly.Revision petition disposed of. *******