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2015 DIGILAW 475 (UTT)

DHAN SINGH v. STATE OF UTTARAKHAND

2015-09-29

SUDHANSHU DHULIA

body2015
JUDGMENT : Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. Shivanand Bhatt, Advocate for the applicants and Mr. V.K. Gemini, learned Dy. Advocate General assisted by Mr. V.S. Mahara, Brief Holder present for the State/respondent No.1. 2. In an incident of 18.03.2011 where a person was found dead in the house belonging to one of the present applicants. First Information Report was lodged by the relative of the deceased before Patwari concerned (revenue police). While revenue police investigating the matter, the matter was transferred to the civil police who thereafter investigated the matter and filed the final report in the matter. The protest application has been filed by the complainant. Thereafter, the court below took cognizance and issued the summons to applicant Nos. 1 & 2 under Sections 304 (Part-I) read with Section 34/120B/201 of IPC. This order was challenged in the revision before learned District & Sessions Judge, Pauri Garhwal by the complainant/respondent No.2 alleging that there are involvements of six persons in the crime not of two persons in the alleged incident. Learned Sessions Judge, Pauri Garhwal passed an order on 02.07.2013 whereby the order dated 08.01.2013 passed by learned Chief Judicial Magistrate, Pauri Garhwal set aside and all the present applicants were summoned under Sections 302/147/201/ 120B/35 of IPC and pursuant to this order learned Chief Judicial Magistrate issued summons to all the present applicants vide order dated 06.07.2013. Since Section 304 (Part I) IPC is an offence which is exclusively triable by the learned Sessions Judge. 3. Against the order dated 02.07.2013 passed by learned Sessions Judge, the applicants approached this Court invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. 4. This Court vide order dated 31.08.2013 allowed C-482 No.704 of 2013 and set aside the order passed by learned Sessions Judge by directing the Session court to decide the said revision afresh in accordance with law. 5. Thereafter, learned Sessions Judge, Pauri Garhwal allowed the revision vide order dated 10.09.2015 and summons have been issued to all the present applicants for facing the trial for the offence punishable under Sections 302/147/201/120B read with Section 35 of IPC. Aggrieved, the present application under Section 482 Cr.P.C. has been filed by the present applicants invoking the inherent jurisdiction of this Court. 6. Aggrieved, the present application under Section 482 Cr.P.C. has been filed by the present applicants invoking the inherent jurisdiction of this Court. 6. Legal submissions are being made by learned counsel for the applicants before this Court that learned Sessions court has gone beyond its power and has taken cognizance against four persons which it is not empowered since no cognizance has been taken by learned Magistrate. He also relies section 193 Cr.P.C. which reads as under : “193. Cognizance of offences by Courts of Session– Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.” 7. Learned counsel for the applicants would argue that unless it is specifically stated in any statute, the Sessions court does not have any power to take cognizance as such powers have been given under the law only to the learned Magistrate. Consequently, the summoning of the remaining applicants, the Session court gone beyond its powers. 8. This argument of learned counsel for the applicants is based on an absolutely misreading of Section 193 Cr.P.C. A bare perusal of Section 193 Cr.P.C. shows that learned Magistrate shall take cognizance for an “offence”. What is to be remembered is that cognizance has to be taken of offence not of an offender. Once the cognizance has been taken and the matter has been committed to the court of Session, the embargo of cognizance to the court of Sessions looses its relevance. In case the Sessions court finds that there is sufficient material on record to summon an accused and it is liable to be issued to other accused. 9. Once the cognizance has been taken and the matter has been committed to the court of Session, the embargo of cognizance to the court of Sessions looses its relevance. In case the Sessions court finds that there is sufficient material on record to summon an accused and it is liable to be issued to other accused. 9. In the case of Kishun Singh and others v. State of Bihar reported in 1993 SCC(Cri) 470, the Hon’ble Apex Court while discussing the powers of Criminal courts under the new amended Code of Criminal Procedure under sections 193/319 of Cr.P.C. had this word to say ; “………………We have also pointed out the difference in the language of section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. 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 pacic be gathered from the material available on record. The Full Bench of the High Court of Patna rightly appreciated the shift in Section 193 of the Code from that under the old Code in the case of Sk. The Full Bench of the High Court of Patna rightly appreciated the shift in Section 193 of the Code from that under the old Code in the case of Sk. Lutfur Rahman as under : “Therefore, what the law under Section 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima facie guilty of the crime as well…...Once the case has been committed, the bar of Section 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon and individual accused of the crime.” We are in respectful agreement with the distinction brought out between the old Section 193 and the provision as it now stands. 10. In view thereof, this Court does not find any illegality in the order dated 10.09.2015 passed by learned Sessions Judge, Pauri Garhwal in Criminal Revision 07 of 2013. The application under Section 482 Cr.P.C. is hereby dismissed.