Joginder Singh & ANR Vs. State of
Punjab & ANR [1978] INSC 229 (16 November 1978)
TULZAPURKAR, V.D.
TULZAPURKAR, V.D.
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION: 1979 AIR 339 1979 SCR (2) 306 1979
SCC (3) 345
CITATOR INFO :
R 1983 SC 67 (18) RF 1983 SC 595 (3) E&R
1992 SC2068 (5)
ACT:
Code of Criminal Procedure 1973 (Act 2 of
1974), s. 319-Scope of Sessions Court whether has power to add any person as an
accused in the absence of any committal order- Sections 193 and 209 whether bar
to the Court of Sessions taking cognizance of offence as a court of original
jurisdiction.
HEADNOTE:
A criminal complaint was registered against
five persons, amongst whom the two appellants were included. The police having
found that the two appellants were innocent, charge-sheeted the remaining three
persons. They were committed to trial.
At the trial after evidence showing the
appellants' involvement in the crime was recorded the prosecution moved an
application that they be tried, along with the three accused. The Sessions
Judge directed the appellants to stand trial, together with the other accused.
Their revision application to the High Court was dismissed.
In their appeal to this Court it was
contended that, (1) sections 193 and 209 Cr.P.C. were a bar to the Court of
Sessions taking cognizance of any offence as a court of original jurisdiction
and (2) s. 319 was inapplicable to the facts of this case because that section
in so far as it is applicable to a Sessions Court would be subject to or
subordinate to s. 193 and the phrase "any person not being the
accused" occurring in the section excludes from its operation an accused
who had been released. by the police.
Dismissing the appeal,
HELD: (1) A plain reading of s. 319(1)
clearly shows that it applies to all the courts including a Sessions Court and
as such a Sessions Court will have the power to add any person, not being the
accused before it but against whom there appears during trial sufficient
evidence indicating his involvement in the offence, as an accused and direct
him to be tried along with the other accused. [311 E-F] (2) (a) Both under s.
193 and s. 209 the commitment is of 'the case' and not of 'the accused' whereas
under the equivalent provision of the old Code viz., s. 193(1) and s 207A it
was 'the accused' who Was committed and not 'the case'. [312D] (b) Although
there cannot be a committal of the case without there being an accused person
before the court, this only means that before a case in respect of an offence
is committed there must be some accused suspected to be involved in the crime
before the Court but once the case in respect of the offence qua those accused
who were before the Court is committed then the cognizance of the offence can
be said to have been taken properly by the Sessions Court and the bar of s. 193
would be out of the way. [312E] 307 (c) The summoning of additional persons who
appear to be involved in the A crime from the evidence led during the trial and
directing them to stand their trial along with those who had already been
committed must be regarded as incidental to such cognizance and a part of the
normal process that follows it; otherwise the co nferal of the power under s.
319(1) upon the Sessions Court would be rendered nugatory. [312F] (d) Section
319(4) (b) which enacts a deeming provision provides that , where the Court
proceeds against any person under sub-section ( 1 ), 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 or trial was commenced; in other words, such
person must be deemed to be an accused at the time of commitment because it is
at that point of time the Sessions Court in law takes cognizance of the
offence. [312G] (3) Under s. 193 read with s. 209 of the Code when a case is
committed 1 to the Court of Sessions in respect of an offence the Court of
Sessions takes cognizance of the offence and not of the accused and once the
Session Court is properly seized of the case as a result of the committal order
against some accused the power under s. 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.
Looking at the provision from this angle there would be no question of reading
s. 319(1) subject or subordinate to s. 193. [313H-314B] (4) The expression
"any person not being the accused" clearly covers any person who is
not being tried already by the Court. The very purpose of enacting such a
provision like s. 319(1) clearly shows that even persons, who have been dropped
by the police during investigation but against whom evidence showing their
involvement in the offence comes before the criminal court are included in the
said expression. [314C-D] Raghubans Dubey v. State of Bihar AIR 1967 SC 1167
referred to.
Patananchala China Lingaiah v. The State and
Anr. 1977 Crl.L.J. 415 overruled.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 501 of 1977.
Appeal. by special leave from the Judgment
and order dated 24th November, 1977 of the Punjab and Haryana High Court in
Criminal Revision No. 909 of 1977.
R. P. Sharma for the Appellants.
Hardev Singh for the Respondent.
The Judgment of the Court was delivered by
TULZAPURKAR, J.-This appeal by special leave is directed against the order of
the Punjab and Haryana High Court in Criminal Revision No. 909 of 1977, whereby
the High Court confirmed the order passed by the Additional Sessions Judge,
Ludhiana on October 19, 1977 directing that the attendance of the two
appellants (Joginder Singh and 308 Ram Singh be procured and they be ordered to
stand trial together with three accused who had been committed to his Court to
stand their trial for offences under ss. 452, 308 and 323 each read with 34
I.P.C.
The facts giving rise to the appeal may be
stated thus:
At the instance of one Mohinder Singh a
criminal case was registered at Police Station Dakha against Joginder Singh,
Ram Singh (the two appellants), Bhan Singh, Darshan Singh and Ranjit Singh on
the allegation that each one armed with a "Toki" had entered his
house on April 30, 1977 at 10.00 a.m. and had caused a number of injuries to
Ajaib Singh and Bir Singh who were present in the house, with the respective
weapons. It was further alleged by Mohinder Singh that Darshan Singh opened the
attack with "Toki" blow from reverse side on Ajaib Singh's head
whereas Ram Singh had dealt him blows with the butt of his gun and when Bir Singh
tried to rescue Ajaib Singh, Joginder Singh and Ranjit Singh gave blows on his
head and that on medical examination Ajaib Singh was found to have four
injuries by blunt weapons and Bir Singh was found to have suffered one injury
with a blunt weapon. During the investigation the police found Joginder Singh
and Ram Singh (the appellants) to be innocent and, therefore a charge-sheet was
submitted by the police only against the remaining three accused Bhan Singh,
Darshan Singh and Ranjit Singh. The learned Magistrate who held a preliminary
inquiry committed the three accused Bhan Singh, Darshan Singh and Ranjit Singh
to the Sessions Court and the learned Additional Sessions Judge, Ludhiana,
framed charges against the three accused for offence:, under ss. 452/308/323
read with s. 34 I.P.C. but at the trial evidence of Mohinder Singh and Ajaib
Singh was recorded during the course of which both of them implicated Joginder
Singh and Ram Singh in the incident. Thereupon at the instance of Mohinder
Singh, the Public Prosecutor moved an application before the learned Additional
Sessions Judge for summoning and trying Joginder Singh and Ram Singh along with
the three accused, who were already facing their trial. The application was
opposed by the counsel for the accused principally on the ground that the
Sessions Judge had no jurisdiction or power to summon the two appellants and
direct them to be made accused to stand their trial along with three accused
because they had neither been charge- sheeted nor committed and the Sessions
Court had no jurisdiction or power directly to take cognizance against them in
respect of any offences said to have been committed by them. The learned
Additional Sessions Judge negatived the said contention and presumably
exercising his powers under s. 319 of the Code of Criminal Procedure, 1973
passed an order on October 19, 1977 directing that the attendance of the two
appellants 309 be procured and further directing that they should stand their
trial together with the three accused. Feeling aggrieved by this order the
appellants filed a Criminal Revision Application No. 909/1977 to the High Court
but the High court dismissed the Revisional Application on November 24,1977.
The appellants have come up in appeal to this Court by special leave.
Counsel for the appellant raised two
contentions in support of the appeal. In the first place relying upon sections
193 and 209 of the Code of Criminal Procedure counsel contended that there was
a bar to the Court of Sessions taking congnizance of any offence as a Court of
original jurisdiction unless the appellants were committed to it by a
Magistrate under the Code and it was pointed out that admittedly in the instant
case though the F.I.R. had involved the two appellants in the alleged incident,
on investigation the police had found no material against them with the result
the police had submitted a charge-sheet only against the three accused and not
the appellants and even the Committal Order passed by the Magistrate was only
in respect of the three accused and, therefore, it was not open to the learned
Additional Sessions Judge, Ludhiana, to take the impugned action against the
appellants. Secondly, counsel contended that the only provision in the Criminal
Procedure Code which empowered the Court to try anybody not prosecuted by the
police, was to be found in s.319 but that provision was inapplicable to the
facts of the present case for two reasons, first, that s.319 in so far as it is
applicable to Sessions Court would be subject to or subordinate to s.193 and
second, the phrase " any person not being the accused " occurring in
the section excludes from its operation an accused who had been released by the
police under s.169 of the Code. and had been shown in column No. 2 of the
charge-sheet. Reliance was placed by the counsel upon a decision of the Andhra
Another(1) On the other hand, counsel for the respondents contended that there
has been a change in the phraseology in ss.193 and 209 of the Code of Criminal
Procedure, 1973 as compared to the equivalent provisions contained in the old
Code with the result it was not the accused but the case which got committed to
the Court of Sessions and once the Court of Sessions had upon such commitment
seisin of the case it was open to it to exercise the power under s.319. It was
further urged that there was no warrant to read s.319 subject or subordinate to
s.193 and that it covered case of suspects like the two appellants and,
therefore, the High Court was right in upholding the order of the learned
Additional Sessions Judge, Ludhiana.
(1) 1977 Crl. L. J. 415.
310 The real question centres around the
scope and ambit of s. 319 of the Code of Criminal Procedure 1973, under which a
power has been conferred upon a criminal Court to add a person, not being the
accused before it and against whom during the trial evidence comes forth
showing his involvement in the offence, as an accused and try him along with
those that are being tried and the question is whether a Sessions Court can add
such a person as an accused in the absence of any committal order having been
passed against him ? Sub-ss. (1) and (4) of s. 319 are material in this behalf
and the said provisions run thus:
"319. Power to proceed against other
persons appearing to be guilty of offence.
(1) where, in the course of any inquiry into,
or trial of, an offence, it appears from the evidence that any person not being
the accused has committed any offence for which such person could be tried
together with the accused, the Court may proceed against such person for the
offence which he appears to have committed.
......................................
............ ...... .............. .
(4) Where the Court proceeds against any
person under sub-section ( I ), then- (a) the proceedings in respect of such
person shall be commenced afresh, and the witnesses re-heard; s (b) subject to
the provisions of clause (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 or trial was commenced." Under the 1898 Code the equivalent
provision was to be found s. 351(I) under which it was provided that any person
attending a criminal Court, although not under arrest or upon a summons, may be
detailed by such Court for the 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; sub-s. (2) provided that in such a situation the
evidence shall be re-heard in the presence of the newly added accused. With
regard to this old provision, the Law Commission in its 41st Report (vide para
24.80) observed that the power conferred upon a criminal Court there under
could be exercised only if such person happened to be attending the Court and
he could then be detained and proceeded against, but there was no express
provision in section 351 for summoning such a person if he was not present in
Court, and, therefore, a fairly comprehensive pro vision was recommended which
now forms the subject-matter of the 311 present section 319(1). The Law
Commission further observed in its said Report (vide para 24.81) that the old
section 351 assumed that the Magistrate proceeding under it had the power of
taking cognizance of the new case but did not say in what manner cognizance was
taken by the Magistrate and the question was whether against the newly added
accused, cognizance will be supposed to have been taken on the Magistrate's own
information under section 190(1) (c) or only in the manner in which cognizance
was first taken of the offence against the other accused and the question was
important because the methods of inquiry and trial in the two cases differed;
the Law Commission felt that the main purpose of this particular provision was
that the whole case against all known suspects should be proceeded with
expeditiously and convenience required; that cognizance against the newly added
accused should be taken in the same manner as against the other accused and the
Law Commission, therefore, proposed that a new provision should be incorporated
providing that there will be no difference in the mode of taking cognizance if
a new person was added as an accused during the proceedings and that is how
clause (b) of sub-s. (4) of s. 319 came to be enacted as set out above which
incorporates a deeming provision. The above recommendation of the Law
Commission in its 41st Report clearly brings out the true scope and ambit of
the power that was intended to be conferred upon a criminal Court under the
present section 319(1) .
A plain reading of section 319(1), which
occurs in Chapter XXIV dealing with general provisions as to inquiries and
trials, clearly shows that it applies to all the Courts including a Sessions
Court and as such a Sessions Court will have the power to add any person, not
being the accused before it, but against whom there appears during trial
sufficient evidence indicating his involvement in the offence, as an accused
and direct him to be tried along with the other accused, but the question is
whether it has power to do so without there being a committal order against
such person ? In this context the provisions of ss. 193 and 209 of the present
Code vis-a-vis the equivalent provisions under the old Code will have to be
considered. Section 193 and s. 209 of the present Code run as follows:
"193. Cognizance of offence 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." "209. Commitment of
case to Court of Session when offence is triable exclusively by it.-When in a
case instituted on 312 a police report or otherwise, the accused appears or is
brought before the Magistrate and it appears to the Magistrate that the offence
is triable exclusively by the Court of Session, he shall- (a) commit the case
to the Court of Session:
(b) subject to the provisions of this Cod
relating to hail, remand the accused to custody during? and until the
conclusion of.
the trial;
(c) send to that Court the record of the case
and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the
commitment of the case to the Court of Session." It will be noticed that
both under s. 193 and s. 209 the commitment is of 'the case' and not of 'the
accused' whereas under the equivalent provision of the old Code viz. s. 193(1)
and s. 307A it was the accused who was committed and not 'the case'. It is true
that there cannot be a committal of the case without there being an accused per
son before the Court, but this only means that before a case in respect of an
offence is committed there must be some accused suspected to be involved in the
crime before the Court but once the case in respect of the offence qua those
accused who are before the Court is committed then the cognizance of the
offence can be said to have been taken properly by the Sessions Court and the
bar of s. 193 would be out of the way and summoning of additional persons who
appear to be involved in the crime from the evidence led during the trial and
directing them to stand their trial along with those who had already been
committed must be regarded as incidental to such cognizance and a part of the
normal process that follows it; otherwise the conferal of the power under s. 319(1)
upon the Sessions Court would be rendered nugatory.
Further section 319(4) (b) enacts a deeming
provision in that behalf dispensing with the formal committal order against the
newly added accused. Under that provision it is provided that where the Court
proceeds against any person under sub-s.(1) then 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 or trial was commenced;
in other words, such person must be deemed to
be an accused at the time of commitment because it is at that point of time the
Sessions Court in law takes cognizance of the offence.
In the above context it will be useful to
refer to a decision of this Court in Raghubans Dubey v. State of Bihar(1) where
this Court has (1) AIR 1967 SC 1167.
313 explained what is meant by taking
cognizance of an offence.
The appellant was one of the 15 persons
mentioned as the assailants in the First Information Report. During the
investigation the police accepted the appellant's plea of alibi and filed a
charge-sheet against the others for offences under ss. 302, 201 and 149 I.P.C.,
before the Sub- Divisional Magistrate. The Sub-Divisional Magistrate recorded
that the appellant was discharged and transferred the case for inquiry to
another Magistrate, who, after examining two witnesses, ordered the issue of a
non bailable warrant against the appellant, for proceeding against him along
with the other accused under s. 207A of the old Code.
The order was confirmed by the Sessions Court
and the High Court and in further appeal to this Court it was held first, that
there could be no discharge of the appellant as he was not included in the
charge-sheet submitted before the Magistrate by the police and, second, that
the appellant could be proceeded against along with other accused under s.
207A Cr. P.C. and this Court confirmed the
order of the Magistrate. One of the contentions urged before this Court was
that the Magistrate had taken cognizance of the offence so far as the other
accused were concerned but not as regards the appellant and with regard to this
contention (Sikri J. as he then was) observed as follows:
"In our opinion, 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. As pointed out by this Court in Pravin Chandra Mody v. State of Andhra
Pradesh(1) the term "complaint" would include allegations made
against persons unknown. If a Magistrate takes cognizance under s. l 90(1) (a)
on the basis of a complaint of facts he would take cognizance and a proceeding
would be instituted even though . persons who had committed the offence were
not known at that time. The same position prevails, in our view, under s.
190(1)(b)." It will thus appear clear that under section 193 read with s.
209 of the Code when a case is committed to the Court of Sessions in respect of
an offence the Court of Sessions takes cognizance of the offence and (1) [1965]
1 S. C. R. 269.
2-978SCI/78 314 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 s. 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. Looking at the provision from this angle there would be no question of
reading s. 319(1) subject or subordinate to s. 193.
As regards the contention that the phrase
"any person not being the accused" occuring in s. 319 excludes from
its operation an accused who has been released by the police under s. 169 of
the Code and has been shown in column No. 2 of the Charge-sheet, the contention
has merely to be stated to be rejected. The said expression clearly covers any
person who is not being tried already by the Court and the very purpose of
enacting such a provision like s. 319(1) clearly shows that even persons who
have been dropped by the police during investigation but against whom evidence
showing their involvement in the offence come before the Criminal Court are
included in the said expression.
The decision of Andhra Pradesh High Court in
Patanachala China Lingaiah v. The State and Another (supra) relied upon by the
appellants has erroneously regarded the change in phraseology made in ss. 193
and 209 of the current Code as inconsequential and has further failed to note
the impact of the deeming provision introduced for the first time in cl. (b) of
s. 319(4). That decision must be held to be erroneous.
In our view, the High Court was right in
confirming the order passed by the learned Additional Sessions Judge against
the two appellants and the appeal is, therefore, dismissed.
N. V. K. Appeal dismissed.
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