Jile Singh Vs. State of
U.P. & ANR
[Criminal Appeal No.
121 of 2012 arising out of S.L.P. (Criminal) No. 3592 of 2011]
O R D E R
R.M. LODHA, J.
certain Bharat Lal Sharma was done to death on October 26, 2008. His father (respondent
No. 2 herein) informed the Police Station Kosikalan on the next day, i.e., October
27, 2008 at 8 a.m. that he received an information in the morning at about 7 a.m.
that his son Bharat Lal Sharma had been murdered and his dead body was lying in
the agricultural field of Ghure son of Gaisi, 'Jat' resident of Tumaura.
On receipt of this
information, he (respondent No. 2 herein ) went to the spot and found that the body
of his son was lying in blood. His son was killed with some sharp edged weapon
the previous night. He requested the police to register First Information Report
against unknown accused persons and take appropriate action in the matter. On this
information, an FIR was registered and investigation commenced.
On conclusion of the investigation,
the Investigating Officer submitted charge-sheet naming one Hari Singh as an accused
having committed the murder of Bharat Lal Sharma. On the basis of the material collected
by the Investigating Officer, no case was found out against the present
appellant-Jile Singh and the Investigating Officer concluded that the appellant
has been falsely named in the course of investigation.
May 2, 2009, the Chief Judicial Magistrate, Mathura, committed the accused-Hari
Singh to the Court of Sessions Judge, Mathura for trial. It was then that the complainant-respondent
No. 2 herein filed a private complaint under Section 200 of the Code of
Criminal Procedure, 1973 (for short, 'the Code') in the court of Judicial
Magistrate, Mathura, against the present appellant and one Jayveer Singh for
the murder of his son Bharat Lal Sharma.
Chief Judicial Magistrate, Mathura, after recording the statements under Section
202 of the Code, issued summons to the appellant on January 3, 2011. Aggrieved by
that order, the appellant filed Criminal Revision before the Allahabad High Court
which came to be dismissed on March 10, 2011. It is from this order that the
present Appeal, by special leave, has arisen.
Manoj Saxena, learned counsel for the appellant, submitted that the issuance of
summons by the Chief Judicial Magistrate, Mathura, on a private complaint made by
the respondent No. 2 after committal of accused-Hari Singh for the murder of Bharat
Lal Sharma to the Sessions Court, was without jurisdiction. He would submit
that addition of a new person to the array of the accused in a case pending before
the sessions court can only be done by that court in exercise of the power
under Section 319 of the Code and in no other way. In this regard, he relied
upon decisions of this Court in the cases of Ranjit Singh Vs. State of Punjab1 and
Kishori Singh and Ors. Vs. State of Bihar and Anr.
Ratnakar Dash, learned senior counsel for the respondent No. 1-State of Uttar
Pradesh, and Mr. Vikram Patralekh, learned counsel for respondent No. 2-complainant,
stoutly defended the impugned order. They submitted that the complaint filed by
the complainant before the Magistrate was maintainable under Section 200 of the
Code since the Investigating Officer on conclusion of the investigation did not
name the appellant as accused although there was material to that effect in the
course of investigation.
The learned senior counsel
and the learned counsel for the respondents submitted that if on receipt of a
report, the police takes up the investigation of a case and on completion thereof
submits a charge-sheet against few persons and leaves the other persons involved
in the crime by stating in the report that no case has been made out against such
person, it is open to the aggrieved complainant to file a complaint under Section
200 of the Code and the Magistrate is empowered to issue summons.
In this regard, they
relied upon a decision of this Court in Hareram Satpathy Vs. Tikaram Agarwala &
Ors.3 Mr. Ratnakat Dash, learned senior counsel for the respondent No. 1, also
referred to another decision of this Court in Kishan Lal Vs. Dharmendra Bafna &
Anr.4 and submitted that if a right has been given to the complainant to be given
notice of filing of the police report and to file protest petition, there is no
impediment in the law for maintaining a complaint if persons involved in the
crime have been left over by the police in the course of the investigation.
present case, in our view, is squarely covered by the law laid down by this
Court in the case of Ranjit Singh (supra) and the subsequent decision in the
case of Kishori Singh (supra) reiterating the same legal position. In Ranjit
Singh (supra), this Court was concerned with the issue whether the sessions court
can add a new person to the array of the accused in a case pending before it at
a stage prior to collecting any evidence.
The three Judge Bench
that considered the above issue referred to various provisions of the Code,
namely, Sections 204, 207, 208, 209, 225, 226, 227, 228, 229, 230 and 319 and
held as under : "19. So from the stage of committal till the Sessions Court
reaches the stage indicated in Section 230 of the Code, that court can deal with
only the accused referred to in Section 209 of the Code. There is no intermediary
stage till then for the Sessions Court to add any other person to the array of
the accused. 20.
Thus, once the Sessions
Court takes cognizance of the offence pursuant to the committal order, the only
other stage when the court is empowered to add any other person to the array of
the accused is after reaching evidence collection when powers under Section 319
of the Code can be invoked. We are unable to find any other power for the Sessions
Court to permit addition of new person or persons to the array of the accused. Of
course it is not necessary for the court to wait until the entire evidence is collected
for exercising the said powers
above legal position has been reiterated by this Court in a subsequent decision
in the case of Kishori Singh (supra). The two Judge Bench in Kishori Singh
(supra) considered some of the provisions of the Code and earlier decision of
this Court in Ranjit Singh (supra) and two other decisions, namely, Raj Kishore
Prasad Vs. State of Bihar 5 and India Carat (P) Ltd. Vs. State of Karnataka6,
and held as under :-
"9. After going through
the provisions of the Code of the Criminal Procedure and the aforesaid two judgments
and on examining the order dated 10-6-1997 passed by the Magistrate, we have no
hesitation to come to the conclusion that the Magistrate could not have issued
process against those persons who may have been named in the FIR as accused
persons, but not charge-sheeted in the charge-sheet that was filed by the
police under Section 173 CrPC.
10. So far as those
persons against whom charge sheet has not been filed, they can be arrayed as "accused
persons" in exercise of powers under Section 319 CrPC when some evidence
or materials are brought on record in course of trial or they could also be
arrayed as "accused persons" only when a reference is made either by
the Magistrate while passing an order of commitment or by the learned Sessions
Judge to the High Court and the High Court, on examining the materials, comes
to the conclusion that sufficient materials exist against them even though the police
might not have filed charge-sheet, as has been explained in the latter three-Judge
Bench decision. Neither of the contingencies has arisen in the case in hand."
the present case, if the order passed by the Chief Judicial Magistrate,
Mathura, in issuing summons against the appellant on the complaint filed by the
respondent No. 2 complainant, which has been confirmed by the High Court, is
allowed to stand, it would mean addition of the appellant to the array of the
accused in a pending case before the Sessions Judge at a stage prior to
collecting any evidence by that court. This course is absolutely impermissible
in view of the law laid down by a three Judge Bench of this court in the case
of Ranjit Singh (supra).
The stage of Section 209
of the Code having reached in the case, it was not open to the Chief Judicial
Magistrate, Mathura to exercise the power under Section 204(1)(b) of the Code and
issue summons to the appellant. The order of the Chief Judicial Magistrate, Mathura
is totally without jurisdiction. The High Court was clearly in error in not
keeping in view the law laid by this Court in the case of Ranjit Singh (supra) followed
by a subsequent decision in the case of Kishori Singh (supra) and in upholding the
illegal order of the Chief Judicial Magistrate, Mathura.
two decisions, namely, Hareram Satpathy (supra) and Kishan Lal (supra) relied upon
by the learned senior counsel and counsel for the respondents have no
application at all to the case in hand.
accordingly, allow this Appeal and set aside the order of the High Court dated March
10, 2011 impugned in this present Appeal and the order of the Chief Judicial
Magistrate, Mathura, dated January 3, 2011.
to say that in the course of trial, on the basis of the evidence if it appears
to the Sessions Judge that any person not being the accused in the trial has
committed the offence and the case is made out for exercise of power under Section
319 of the Code for proceeding against such person, it will be open to the
Sessions Judge to proceed accordingly and the present order will not come in the
way in exercise of his power under Section 319 of the Code.