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Kishun Singh and ors. Versus State of Bihar

Criminal Appeal No. 24 of 1993 - Dated:- 11-1-1993 - A. M. Ahmadi And N. P. Singh, JJ. For the Appellant : Uday Sinha and M.P. Jha For the Respondent : B. B. Singh Adv. JUDGMENT A. M. Ahmadi, J. Special leave granted. Whether a Court of Session to which a case is committed for trial by a Magistrate can, without itself recording evidence, summon a person not named in the Police Report presented under Section 173 of the Code of Criminal Procedure, 1973 ('The Code' for short) to stand trial .....

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Umakant Thakur died in the Patna Hospital on the next day. In the course of investigation statements of the informant as well as others came to be recorded and a charge-sheet dated 10th June, 1990 was forwarded to the Court of the learned Magistrate on 17th June, 1990 wherein eighteen persons other than the two appellants were shown as the offenders. The names of the present two appellants were not included in the said report as in the opinion of the investigating officer their involvement in th .....

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d annexed to the report under Section 173 of the Code revealed the involvement of the two appellants also and hence they should be summoned and arraigned before the Court as accused persons along with the eighteen already named in the charge-sheet. Thereupon a show cause notice was issued to the present two appellants in response whereto they contended that though they were not present at the place of occurrence, they were falsely named in the First Information Report and the investigating offic .....

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assailing the order passed by the learned Sessions Judge taking cognizance against them. The High Court after hearing counsel for the parties dismissed the Revision Application relying on the ratio of the Full Bench decision of that Court in S.K Laytfur Rahman & Ors. v. The State, [(1985) PLJR 640 = (1985)] Criminal Law Journal 12381. It is against this order passed by the learned Single Judge of the High Court that the appellants have moved this Court by special leave under Article 136 of t .....

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nsideration in the backdrop of the aforestated facts is whether the learned Sessions Judge was justified in law in invoking Section 319 of the Code at the stage at which the proceedings were pending before him solely on the basis of the documents including statements recorded under Section 161 of the Code during investigation without commencing trial and recording evidence therein? Section 319 corresponds to Section 351 of the repealed Code of Criminal Procedure, 1898 (hereinafter called 'th .....

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e him, is also concerned. in that very offence or in a connected offence. It is only proper that the Magistrate should "have the power to call and join him in the proceedings'. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in section 351 for summoning such a person if he is not present in Court. Such a provision would made section 351 fairly comprehensive, .....

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therefore, propose to recast section 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings." (para 24.81) It will be seen from the above paragraphs that the Law Commission suggested that section 351 should be recast with a view to (i) empowering the court to summon a person not present in court to stand trial along with the named accused and (ii) enabling the court to take co .....

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e purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned. (2) When the detention takes place in the course of an inquiry under Chapter XVIII or after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard. New Code Section 319 (1) Where, in the course of any inquir .....

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or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under subsection (1), then (a) the proceedings in respect of such Person shall be commenced afresh and the witnesses re-heard; (b) subject to the provisions of Cl.(a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry o .....

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rt to enlarge the Court's power to arrest or summon any person who appears to be involved in the commission of the crime along with others but who is not present in court. Next, it is significant to note that the words 'of which such Court can take cognizance' have been omitted by the Legislature. Instead the newly added sub-section 4(b) expressly states that the case against the added accused may proceed as if such person had been an accused person when the court took cognizance of .....

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urt can take cognizance' and by adding clause (b) it is clarified that the impleadment of a new person as an accused in the pending proceedings will not make any difference insofar as taking of cognizance is concerned. In other words it is made clear that cognizance against the added person would be deemed to have been taken as originally against the other co-accused. It is thus clear that the difficulty in regard to taking of cognizance which would have been experienced by the Court has bee .....

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ower only if 'it appears from the evidence' in the course of the inquiry or trial of an offence, that any person, besides the accused already put up for trial, has committed any offence arising from the incident in question. Counsel submitted that the power cannot be exercised before 'evidence' is led as the involvement of the person must appear from the evidence tendered at the trial because it is at that stage that the court must apply its mind about the complicity of the perso .....

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sclosing commission of a crime with a view to setting the law in motion to bring the offender to book. Under this provision cognizance can be taken in three ways enumerated in clauses (a), (b) & (c) of the offence alleged to have been committed. The object is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the police does not take action or he has reason to believe that no such action will be taken by the pol .....

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tial to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the magistrate does so for proceeding under Section 200/204 of the Code/See Jamuna Singh & Ors. v. Bhadai Sah, [1964] 5 SCR 37 at 40-41. It is, therefore, obvious that if on receipt of a complaint under Section 154 of the Code in regard to a cognizable offence, an offence is registered and the concerned Police Officer embarks on .....

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Session, he shall commit the case to the Court of Session and remand the accused to custody. Section 193 of the Old Code and as it presently stands have a bearing and may be extracted at this stage: "Old Code Section 193 Cognizance of offences by Courts of Session (1) Except as othewise 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 accused has been comm .....

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e of an offence as a Court of original jurisdiction unless the accused was committed to it whereas under the recast section as it presently stands the expression the accused has been replaced by the words the case. As has been pointed out earlier. Under section 190 cognizance has to be taken for the offence and not the offender: so also under section 193 the emphasis now is to the committal of the case and no more on the offender. So also section 209 speaks of committing the case to the Court of .....

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ng cognizance of any offence as a Court of original jurisdiction unless the accused was committed to it by a Magistrate or there was express provision in the Code or any other law to the contrary. In the context of the said provision this Court in P.C Gulati v. L.R. Kapur, [1966] I SCR 560 at p.568 observed as under; "When a case is committed to the Court of Session, the Court of Session has first to determine whether the commitment of the case is proper. If it be of opinion that the commit .....

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ate of Punjab, AIR 1979 SC 339 = [1979] 2 SCR 306 the facts were that a criminal case was registered against Joginder Singh and four others on the allegation that they had committed house tresspass and had caused injuries to two persons. During the investigation the police found Joginder Singh and Ram Singh (the appellants in the case) to be innocent and submitted a charge-sheet against the remaining three persons only. The learned Magistrate who held a preliminary inquiry committed the three ac .....

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ground that the Sessions Judge had no jurisdiction or power to summon the two appellants and direct them to stand their trial along with the three persons already named in the police report. This objection was negatived and the learned Additional Sessions Judge passed G an order, presumably under section 319 of the Code, directing the attendance of the two appellants and further directing that they stand trial together with the three accused arraigned before the court. The High Court dismissed t .....

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takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under Section 319(1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial.' This view came to be reiterated in a .....

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6 in respect whereof the charge-sheet was forwarded. The Additional Public Prosecutor, therefore, submitted an application signed by one of the victims praying that on the basis of the entire evidence a prima facie case was made out under sections 147, 325 and 336, IPC and requested that the charge be amended and the accused persons be charged accordingly. After recording the plea of the accused the prosecution led evidence and examined witnesses. The learned Magistrate after hearing the Additio .....

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earing a case against certain accused person finds from A the evidence that some person or persons, other than the accused before it, is or are also connected in this very offence or any connected offence; and it empowers the court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the purpose. It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which cogni .....

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ion 319 of the Code only if the condition precedent, namely, the commencement of the trial and recording of evidence, is satisfied. This, he contends, is manifest from the last-mentioned two cases in which the power was exercised only after the condition precedent was satisfied and the complicity of a person not shown as an offender in the police report surfaced from the evidence recorded in the course of the trial. That prima facie appears to be so but it must at the same time be remembered tha .....

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plain reading of sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wh .....

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ellants appear to have been involved in the commission of the crime along with those already sent up for trial by the prosecution. But then it must be conceded that Section 319 covers the postcognizance stage where in the course of an inquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. Section 319 can be invoked both by the Court having .....

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ision in the Code which would entitle the Court to pass a similar order in similar circumstances. The search for such a provision would be justified only on the premiss that Section 319 is not exhaustive of all post- cognizance stituations. Now as pointed out earlier Section 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded in the course of an inquiry or trial. This may happen not merely in cases where despite the name of a person figu .....

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t in the course of evidence recorded at the Inquiry or trial. Thus the Section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court. The question then is whether dehors Section 319 the Code, can similar power be traced to any other provision in the Code or can such power be implied from the scheme of the Code? We have already pointed out earlier the two alternative .....

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ection 156(3) of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence under Section 190(1)(a) or (c), as the case may be, read with Section 204 of the Code. Once the Magistrate takes cognizance of the offence he may proceed to try the offender (except where the case is transferred under Section 191) or commit him for trial under Section 209 of the Code if the offence is triable exclusively by a Court of Session. As pointed out earlier cognizance is taken .....

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the proceeding initiated by his taking cognizance of an offence'. Even after the present Code came into force, the legal position has not undergone a change; on the contrary the ratio of Dubey's case was affirmed in Hariram Satpathy v. Tikaram Agarwala [1979] 1 SCR 349 = AIR 1978 SC 1568. Thus far there is no difficulty. We have now reached the crucial point in our journey. After cognizance is taken under section 190(1) of the Code, in warrant cases the Court is required to frame a char .....

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ly when the Judge is of opinion that there is ground for presuming that the accused has committed an offence that he will proceed to frame a charge and record the plea of the accused (vide, section 228). It becomes immediately clear that for the limited purpose of deciding whether or not to frame a charge against the accused, the judge would be required to examine the record of the case and the documents submitted therewith, which would comprise the police report, the statements of witnesses rec .....

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prejudice to the person or persons proposed to be summoned, the court should accept the view which would advance the cause of justice, namely, to bring the real offender to book. If such an approach is not adopted, the matter will slip into the hands of the investigation officer who may or may not send up for trial an offender even if prima facie evidence exists, which may in a given situation cause avoidable difficulties to the trial court. Take for example a case where two persons A and B att .....

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ode. Then he would have to commence the proceedings afresh in respect of the added accused and recall the witnesses. This, submitted counsel for the State, would result in avoidable waste of public time. He, therefore, submitted that this Court should place a construction which would advance the cause of justice rather than stiffle it. We have already indicated earlier from the ratio of this Court's decisions in the cases of Raghubans Dubey and Hariram that once the court takes cognizance of .....

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es; 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 .....

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