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2024 DIGILAW 672 (MP)

Raju Rajput v. Raju Rajput

2024-10-18

SANJAY DWIVEDI

body2024
ORDER : 1. This revision is against the order dated 10.01.2022 passed in a pending trial i.e. Sessions Trial No. 572/2021 arising out of Crime No. 324/2021 registered at Police Station Shahpura, District Jabalpur for the offences punishable under Sections 294, 506, 307, 147 and 148 of the Indian Penal Code and Sections 25 & 27 of Arms Act whereby the Court below has decided the MJC registered by the Court and at the same time while deciding the bail application of other accused persons in which the complainant moved an application that the names of the present applicants be arrayed as accused because there is sufficient material available in the case diary. The Court below while deciding the bail application of the other accused, registered the MJC and kept the same pending because on the date when bail application was being decided, the case was not committed and the said Court had no jurisdiction to decide the said MJC while considering the bail application. Although, during the pendency of that MJC, chargesheet was filed and case was committed and thereafter it came before the same Court which has decided the bail application and registered the MJC at that point of time and directed that the name of the present applicants should be added in the array of accused. 2. The order passed by the Court below has been assailed by the applicants mainly on the ground that the order passed by the Court below is without jurisdiction. According to the applicants, at the time of deciding the bail application of other accused, the Court had no jurisdiction to direct that on the basis of material available in the case diary, the present applicants be made accused and application submitted by the complainant at that time ought to have been rejected by the Court below saying that the Court did not have the jurisdiction to consider the said application but instead of doing so, the Court registered the MJC and decided the same by the impugned order only on the ground that after committal of the case, the trial has come before the said Court to conduct the Session Trial in a regular course. 3. Shri Ajay Kumar Jain and Shri Pankaj Dubey, learned counsel appearing for applicant Nos. 3. Shri Ajay Kumar Jain and Shri Pankaj Dubey, learned counsel appearing for applicant Nos. 1 and 2 respectively submits that the aforesaid order is without jurisdiction because the Session Court acquired the jurisdiction only after committal of the case and as such deciding the same MJC which got registered by the Court when the said Court had no jurisdiction to entertain the MJC. After passage of time, since the said case came to the Court for conducting the trial, the MJC could not have been decided because once case has been registered by the Court or authority having no jurisdiction and after passage of time, the said Court or authority acquired the jurisdiction to decide the same, does not mean that the said proceeding becomes valid when order passed by the Court which had no jurisdiction at the very inception to entertain the MJC, therefore, the order passed in the said proceeding is also without jurisdiction. 4. Learned counsel for the applicants have placed reliance upon the orders passed by the High Court in M.Cr.C. No. 41296/2021 (Rakesh and others vs. Ismail and others) and Criminal Revision No. 2384/2018 (Radheshyam vs. State of M.P. and another). Reliance has also been placed by the applicants upon judgments of Supreme Court reported in Abhinandan Jha and others vs. Dinesh Mishra, AIR 1968 SC 117 , Dharam Pal and others vs. State of Haryana and another, (2014) 3 SCC 306 and Dablu Kuzur vs. State of Jhankhand, (2024) 6 SCC 758 . 5. Shri Sankalp Kochar, learned counsel for the complainant has opposed the aforesaid submissions and submits that at the time of considering the bail application of other accused persons, the said Sessions Judge was having no jurisdiction to decide the MJC and that MJC was not decided by him on the date when the Court did not have the jurisdiction but the order has been passed when the Court was having jurisdiction and was conducting the trial because the Supreme Court says even after committal of the case, the said objection can be considered and Court if prima facie comes to the conclusion that sufficient material has been produced by the prosecution along with chargesheet then order can be passed to include any other person in the array of accused and therefore, according to him, there is nothing wrong in the order passed by the Court. The submission made by learned counsel for the complainant has also been supported by learned counsel for the State. 6. Shri Sankalp Kochar, learned counsel for the complainant has placed reliance upon the judgments of Supreme Court reported in Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 decided with other connected cases and Nahar Singh vs. State of Uttar Pradesh and another, (2022) 5 SCC 295 . He has also placed reliance upon the order passed by the High Court in W.P. No. 31336 of 2023 (Jiendra Makhija vs. State of M.P. and others) and M.Cr.C. No. 10520/2017 (Naresh Singh Yadav vs. State of M.P. and another). 7. Heard learned counsel for the parties and perused the record. 8. As per the ordersheets produced by the parties, the order of committal was passed by the Court on 21.10.2021. Before that after registration of offence, an application for grant of bail was filed by the accused persons and on 06.09.2021 when bail application was being considered by the Sessions Court, an application has been moved by learned counsel appearing for complainant that the police colluded with the accused persons and in Crime No. 324/2021, the names of Hemraj Rao and Raju Rajput, the present applicants have not been added and by deleting their names from the array of accused, they have somehow favoured the accused persons. The Court observed that the case was fixed for deciding the bail application No. 170/2021 and till then the chargesheet was not filed and committed, accordingly, the application was kept pending and MJC was registered by the Court. A copy of that application was also supplied to the Station House Officer and granted time to the Investigating Officer of the said police station to file reply to the said application and for reply, the case was fixed on 13.09.2021. On 13.09.2021, the Investigating Officer submitted its reply and then next date was given by the Court on 21.09.2021. The Court after examining the reply, found that the case was not committed till then, as such, called a report from the concerning Magistrate where case was to be committed. The next date was given as 25.09.2021. It was informed on the next date that the case has been fixed for committal on 28.09.2021 before other Court and therefore, the case was further adjourned for 28.10.2021. The next date was given as 25.09.2021. It was informed on the next date that the case has been fixed for committal on 28.09.2021 before other Court and therefore, the case was further adjourned for 28.10.2021. On 28.10.2021, the Court observed that the case has already been committed and therefore, it is instructed that the said case be placed along with the MJC registered by the Court and on 09.11.2021, the case has been further adjourned for 29.11.2021 and on 29.11.2021, case was further adjourned for 03.12.2021 and thereafter, it got adjourned for 09.12.2021, 16.12.2021, 21.12,2021, 07.01.2022 and finally order was passed in the said pending MJC on 10.01.2022. 9. The core question involved in this case is whether the order deciding the MJC which got registered by the Court entertaining application having no jurisdiction to entertain, can be said to be valid because on the date of passing the order, the Court was having jurisdiction to direct that a person be made accused and be added in the array of accused. Section 193 of Cr.P.C. makes it clear that no Court can take cognizance in the matter unless the case has been committed. Section 193 is a provision under which case is required to be committed. The said provision 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.” 10. The Supreme Court in the case of Hardeep Singh (supra) has laid down that the Sessions Court alone is competent to take cognizance under Section 193 of Cr.P.C. and then during the course of Court inquiry thereafter and trial, Magistrate is forbidden, by express provision of Section 319 to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session. As such, it is clear that the cognizance can be taken by the Court after committal of an offence. As such, it is clear that the cognizance can be taken by the Court after committal of an offence. Similarly, in the case of Dharam Pal v. State of Haryana, (2004) 13 SCC 9 , the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from papers filed by the police after completion of the investigation. Such, cognizance can be taken under Section 193 of Cr.P.C. and the Sessions Judge need not wait till ‘evidence’ under Section 319 of Cr.P.C. becomes available for summoning an additional accused. Thus, legal position even in the case of Hardeep Singh (supra) and Dharam Pal (supra) is clear that Court can take cognizance after committal. Shri Kochar, learned counsel has also placed reliance upon Hardeep Singh (supra) and upon Nahar Singh (supra). The Supreme Court considering the case of Hardeep Singh (supra) has observed as under: “20. Coming to the stage at which power under Section 319 Cr.P.C. can be exercised, in Dharam Pal v. State of Haryana, (2004) 13 SCC 9 : (2006) 1 SCC (Cri) 273, this Court had noticed the conflict in the decisions of Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470 and Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 : AIR 1998 SC 3148 and referred the matter to the Constitution Bench. However, while referring the matter to a Constitution Bench, this Court affirmed the judgment in Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470 and doubted the correctness of the judgment in Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 : AIR 1998 SC 3148 . However, while referring the matter to a Constitution Bench, this Court affirmed the judgment in Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470 and doubted the correctness of the judgment in Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 : AIR 1998 SC 3148 . In Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 : AIR 1998 SC 3148 , this Court observed that from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 Cr.P.C. that the court can deal with only the accused referred to in Section 209 Cr.P.C. and there is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused, while in Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470, this Court came to the conclusion that even the Sessions Court has power under Section 193 Cr.P.C. to take cognizance of the offence and summon other persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record and need not wait till the stage of Section 319 Cr.P.C. is reached. This Court in Dharam Pal v. State of Haryana, (2004) 13 SCC 9 : (2006) 1 SCC (Cri) 273] held that the effect of Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 : AIR 1998 SC 3148 would be that in less serious offences triable by a Magistrate, the said court would have the power to proceed against those who are mentioned in Column 2 of the charge-sheet, if on the basis of material on record, the Magistrate disagrees with the conclusion reached by the police, but, as far as serious offences triable by the Court of Session are concerned, that court will have to wait till the stage of Section 319 Cr.P.C. is reached. 21. 21. At the very outset, we may explain that the issue that was being considered by this Court in Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018 , was the exercise of such power at the stage of committal of a case and the court held that even if Section 319 Cr.P.C. could not be invoked at that stage, Section 193 Cr.P.C. could be invoked for the said purpose. We are not delving into the said issue which has been answered by the five-Judge Bench of this Court. However, we may clarify that the opening words of Section 193 Cr.P.C. categorically recite that the power of the Court of Session to take cognizance would commence only after committal of the case by a Magistrate. The said provision opens with a non obstante clause “except as otherwise expressly provided by this Code or by any other law for the time being in force”. The section therefore is clarified by the said opening words which clearly means that if there is any other provision under Cr.P.C. expressly making a provision for exercise of powers by the court to take cognizance, then the same would apply and the provisions of Section 193 Cr.P.C. would not be applicable. 22. In our opinion, Section 319 Cr.P.C. is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial. It is this part which is under reference before this Court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt with by this Court in Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018 . 24. Once the aforesaid stand is clarified in relation to the stage of committal before the Court of Session, the answer to the question posed now, stands focussed only on the stage at which such powers can be exercised by the court other than the stage of committal and the material on the basis whereof such powers can be invoked by the court. Question (i) - What is the stage at which power under Section 319 Cr.P.C. can be exercised? 25. Question (i) - What is the stage at which power under Section 319 Cr.P.C. can be exercised? 25. The stage of inquiry and trial upon cognizance being taken of an offence, has been considered by a large number of decisions of this Court and that it may be useful to extract the same hereunder for proper appreciation of the stage of invoking of the powers under Section 319 Cr.P.C. to understand the meaning that can be attributed to the words “inquiry” and “trial” as used under the section. 26. In Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 : 1967 Cri. L.J. 1081, this Court held: “9.........once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.” 27. The stage of inquiry commences, insofar as the court is concerned, with the filing of the charge-sheet and the consideration of the material collected by the prosecution, that is mentioned in the charge-sheet for the purpose of trying the accused. This has to be understood in terms of Section 2(g) Cr.P.C. which defines an inquiry as follows: “2. (g) ‘inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or court.” 28. In State of U.P. v. Lakshmi Brahman, (1983) 2 SCC 372 : 1983 SCC (Cri) 489 : AIR 1983 SC 439 , this Court held that from the stage of filing of charge-sheet to ensuring the compliance with the provision of Section 207 Cr.P.C. the court is only at the stage of inquiry and no trial can be said to have commenced. The above view has been held to be per incuriam in Raj Kishore Prasad v. State of Bihar, (1996) 4 SCC 495 : 1996 SCC (Cri) 772 : AIR 1996 SC 1931 , wherein this Court while observing that Section 319(1) Cr.P.C. operates in an ongoing inquiry into, or trial of, an offence, held that at the stage of Section 209 Cr.P.C. the court is neither at the stage of inquiry nor at the stage of trial. Even at the stage of ensuring compliance with Sections 207 and 208 Cr.P.C. it cannot be said that the court is at the stage of inquiry because there is no judicial application of mind and all that the Magistrate is required to do is to make the case ready to be heard by the Court of Session. 29. Trial is distinct from an inquiry and must necessarily succeed it. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf. In Moly v. State of Kerala, (2004) 4 SCC 584 : 2004 SCC (Cri) 1348, this Court observed that though the word “trial” is not defined in the Code, it is clearly distinguishable from inquiry. Inquiry must always be a forerunner to the trial. 30. A three-Judge Bench of this Court in State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389 : 1957 Cri. L.J. 567 held: “6.......The words ‘tried’ and ‘trial’ appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words ‘tried’ and ‘trial’ have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration.” (Emphasis supplied) 11. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration.” (Emphasis supplied) 11. Shri Sankalp Kochar, learned counsel for the respondent No. 2 has submitted that from the date of order passed by the Court, it is clear that the Court has exercised the power under Section 319 of Cr.P.C. for directing present applicants to be added in the array of accused after committal of the case and in view of the legal position as has been laid down by the Supreme Court, discussing the case of Hardeep Singh (supra) and Dharam Pal (supra), nothing wrong has been committed by the Court and therefore, order in the light of the said judgments, does not deserve to be set aside. He submits that the Court is having all competence to issue such direction which has been issued vide impugned order. 12. Shri Ajay Jain and Shri Pankaj Dubey, learned counsel for the petitioners on the other hand has pointed out that the legal position as has been existing is very specific that Court should take cognizance in the matter only after committal of the case and no application as such has been moved by the applicants and therefore, the order passed by the Court is without jurisdiction. It is also pointed out that the cognizance was taken by the Court before the committal of the case and during the course investigation when Court was dealing with the bail application. 13. So far as legal position is concerned, in my opinion, there is no quarrel that the Court has passed an order during the course of trial and after committal of a case as that can be done. The Court of Sessions where the case was being tried, considering the material available and produced by the prosecution along with the chargesheet, if it is noticed that any person can be made accused then summons can be issued to him but here in this case, the factual situation is otherwise. The Court of Sessions where the case was being tried, considering the material available and produced by the prosecution along with the chargesheet, if it is noticed that any person can be made accused then summons can be issued to him but here in this case, the factual situation is otherwise. In an area where there was only one Sessions Court and knowing fully well that the case registered under the different provision of Indian Penal Code would be a Session trial and would come before the Sessions Court, the Court cannot presume that the trial would be conducted by that Sessions Court only. Here, it is a case in which the Sessions Court exercised the power which was available to it and granted by the statutes. The legal position is very specific that no Court can take cognizance unless case is committed. Here in this case, while bail application was being considered, an application was moved by the complainant pointing out that the police has colluded with the present applicants and deleted their names from the array of accused. The Court took cognizance in the matter and registered the MJC and issued notice to the Investigating Officer seeking his reply and that MJC was decided only after committal of the offence. It clearly indicates that the Court has taken the cognizance in the matter when it had no jurisdiction to do so. The proceeding initiated and registered by the Court from very inception was without jurisdiction. It is clear from the order itself which is impugned in this revision that the said MJC which was registered by the Court having no jurisdiction and decided by the impugned order. It is also a settled principle of law that if any proceeding is initiated by the authority or Court having no jurisdiction then that proceeding at the subsequent point of time does not take a shape of valid proceeding if finally decided by the competent authority or competent Court. It is also a settled principle of law that if any proceeding is initiated by the authority or Court having no jurisdiction then that proceeding at the subsequent point of time does not take a shape of valid proceeding if finally decided by the competent authority or competent Court. It is not a case in which Court has passed an order taking cognizance in the matter after committal of the case but it is a case in which an order has been passed in a proceeding which was without jurisdiction from very inception and as such, proceeding which is void in the eyes of law, an order passed by the authority at a later point of time acquiring jurisdiction to pass an order, cannot validate the said proceeding and therefore, the order cannot be considered to be an order passed by the competent authority. The Supreme Court in the case of State of Orissa and another vs. Mamata Mohanty, (2011) 3 SCC 436 has observed as under: “37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. [Vide Upen Chandra Gogoi v. State of Assam, (1998) 3 SCC 381 : 1998 SCC (L&S) 872 : AIR 1998 SC 1289 , Mangal Prasad Tamoli v. Narvadeshwar Mishra, (2005) 3 SCC 422 : AIR 2005 SC 1964 and Ritesh Tewari v. State of U.P. (2010) 10 SCC 677 : (2010) 4 SCC (Civ) 315 : AIR 2010 SC 3823 ].” 14. In the present case, I am of the opinion that the submissions made by the learned counsel for the respondents that the order passed by the competent authority after committal, in the facts and circumstances of the case is having no substance for the reason that order passed by the Court in a proceeding was initiated and registered by the Court when the Court was having no jurisdiction to do so. 15. In my opinion, the best course was available to the Court while considering the bail application was that the application submitted by the complainant could have been decided by the Court saying that the same is premature and could be filed at the relevant point of time but instead of doing so, the Court took the cognizance and registered the proceeding and directed the Investigating Officer to submit his reply. That procedure was illegal and therefore, cannot be given stamp of approval in view of the aforesaid settled legal position. As such, in my opinion, the impugned order dated 10.01.2022 is not sustainable and is accordingly set aside. 16. Consequently, the criminal revision is allowed.