Rajinder
Prasad Vs. Bashir & Ors [2001] Insc 498 (19 September 2001)
M.B.
Shah & R.P. Sethi Sethi,J.
Leave
granted.
Aggrieved
by the order of the Additional Sessions Judge, Deeg by which charges were
framed against them for offences punishable under Sections 147, 148, 323, 324,
149, 427 and 395 of the Indian Penal Code, the respondents filed a petition
under Section 482 of the Code of Criminal Procedure (hereinafter referred to as
"the Code") praying for quashing the aforesaid order. Holding that
the Magistrate, being the court of committal, had no power to add four
respondents as accused- persons without adopting procedure as prescribed under
Section 203 of the Code, the High Court allowed the petition of the respondents
and set aside the order the court by which cognizance of offence under Section
395 of the Indian Penal Code was taken. The case has been remanded back to the
learned Magistrate to hold inquiry as per the provisions of Section 203(2) of
the Code with direction that if he finds that a case under Section 395 IPC is
made out, he will pass necessary orders against the accused persons and commit
the case to the Sessions Judge, if necessary.
The
facts giving rise to the filing of the appeal are that on 10.3.1988 when the
appellant-informant was sitting at his shop in the company of his brothers, the
accused persons, namely, Chhaju Khan, Bannu Khan, Nasru Khan, Zakir Khan, Mumrej
Khan, Razak Khan, Kallu, Nannu, Ramesh Mishtri and four others came there and
assaulted Hotilal, one of the brothers of the appellant with intention to kill
him. The other brothers of the appellant were also assaulted as a result
whereof they received injuries. Accused persons took away a sum of Rs.600 along
with some papers from the shop of the informant. The showroom (shop) was also
damaged resulting in loss to the property. A case was registered against the
accused persons under various sections and after investigation charge-sheets
were submitted against them. As the charge under Section 395 IPC was not added
against the accused- persons, the appellant-complainant submitted a protest
petition seeking the addition of the aforesaid offence against them. By another
application the appellant-complainant sought the addition of four accused
persons, namely, Babu, Bashir, Sultan and Rajjal as their names were allegedly
wrongly dropped from the list of accused persons by the investigating agency.
The committal Magistrate allowed the applications and committed the case to the
court of Sessions whereafter the learned Additional Sessions Judge being the
trial court framed the charges against the respondents including the charge
under Section 395 IPC.
The
respondents submitted before the High Court that the Magistrate had committed a
grave error by taking cognizance for offence under Section 395 IPC as also by
adding the names of aforesaid four accused persons while committing them to the
court of Sessions to stand their trial.
Learned
counsel appearing for the appellant made a two-fold submission to assail the
judgment of the High Court. Firstly, he contended that as the earlier revision
petition filed by the accused persons under Section 397 of the Code had been
rejected by the High Court vide order dated 13.7.1990 (Annexure P-6), they had
no right to file the petition under Section 482 of the Code with prayer for
quashing the same order. Secondly, it is submitted that the High Court
committed a mistake of law by directing the Magistrate to follow the procedure
as prescribed under Section 203 of the Code.
The
order of the High Court dated 13.7.1990 shows that 13 respondents - accused
persons had filed the revision petition challenging the order of the Magistrate
taking cognizance for the offence under Section 395 IPC and for impleading
respondents 10 to 13 as accused persons. After the commitment, the Magistrate
as well as the Sessions Judge had issued non-bailable warrants against the
accused persons. When the High Court directed accused persons to appear before
the trial court and furnish their bail bonds, the learned counsel for the
accused did not press his petition so far as taking of cognizance against them
was concerned. The relevant portion of the order dated 13.7.1990 is reproduced
hereunder:
"Petitioners
before me have challenged the order of the Magistrate, Deeg looking cognizance
for the offence under Section 395 IPC and for other offence against the
petitioners 10 to 13 after some time there have contended there petitioners 1
to 9 were on bail granted under section 436 Cr.P.C. and after adding a non bailable
offence viz section 395 IPC. The Magistrate and the Sessions Judge both have
directed for issuance of non-bailable warrants both this is not proper, as the
petitioners 1 to 9 have already been granted bails. For petitioners 10 to 13 it
is stated that they will also appear before the court and furnish their bail
and bonds. As far as the first part of the plea about taking cognizance is
concerned the learned counsel for the petitioner does not press the same."
We are of the opinion that when the earlier revision petition filed under
Section 397 of the Code had been dismissed as not pressed, the
accused-respondents could not be allowed to invoke the inherent powers of the
High Court under Section 482 of the Code for the grant of the same relief. We
do not agree with the arguments of the learned counsel for the respondents that
as the earlier application had been dismissed as not pressed, the accused had
acquired a right to challenge the order adding the offence under Section 395 of
the Code and arraying four persons as accused-persons by way of subsequent
petition under Section 482 of the Code. The object of criminal trial is to
render public justice and to assure punishment to the criminals keeping in view
that the trial is concluded expeditiously. Delaying tactics or protracting the
commencement or conclusion of the criminal trial are required to be curbed
effectively, lest the interest of public justice may suffer. For exercising
power under Section 482 of the Code the learned Judge of the High Court relied
upon a judgment of this Court in Krishnan & Anr. v. Krishnaveni & Ors. [1997
(4) SCC 241]. A perusal of the aforesaid judgment, however, shows that the
reliance by the learned Judge was misplaced. This Court in Krishnan's case
(supra) had held that though the power of the High Court under Section 482 of
the Code is very wide, yet the same must be exercised sparingly and cautiously
particularly in a case where the petitioner is shown to have already invoked
the revisional jurisdiction under Section 397 of the Code.
Only
in cases where the High Court finds that there has been failure of justice or
misuse of judicial mechanism or procedure, sentence or order was not correct,
the High Court may, in its discretion, prevent the abuse of the process or
miscarriage of justice by exercise of jurisdiction under Section 482 of the
Code. It was further held, "Ordinarily, when revision has been barred by
Section 397(3) of the Code, a person - accused/complainant - cannot be allowed
to take recourse to the revision to the High Court under Section 397(1) or
under inherent powers of the High Court under Section 482 of the Code since it
may amount to circumvention of provisions of Section 397(3) or Section 397(2)
of the Code." We are of the opinion that no special circumstances were spelt
out in the subsequent application for invoking the jurisdiction of the High
Court under Section 482 of the Code and the impugned order is liable to be set
aside on this ground alone.
Even
on merits, the High Court committed a mistake of law by referring to the
provisions of Section 203 of the Code and after setting aside the impugned
order directing the Judicial Magistrate to hold inquiry as per Section 203(2)
of the Code before deciding the inclusion of offence under Section 395 I.P.C.
or impleadment of the respondents as accused persons. Chapter XV of the Code
comprising of Sections 200 to 203 deals with the complaints to Magistrate and
the procedure prescribed for dealing with such complaints. In the instant case
no complaint was filed before the Magistrate by the complainant requiring him
to follow the procedure under Chapter XV. Reference to sub-section (2) of
Section 203 of the Code is misconceived inasmuch as no such sub-section exists
in the statute book.
From
the facts of the case, it appears that while passing the order which was
challenged before the High Court, the Magistrate had taken recourse to Chapter
XIV (Sections 190 to 199) of the Code.
Section
190 of the Code empowers the Magistrate to take cognizance of any offence:
"(a)
upon receiving a complaint of facts which constitute such offence;
(b) upon
a police report of such facts;
(c) upon
information received from any person other than a police officer, or upon his
own knowledge, that such offence has been committed."
Under
this section, a Magistrate has jurisdiction to take cognizance of offences
against such persons also who have not been arrested by the police as accused
persons, if it appears from the evidence collected by the police that they were
prima facie guilty of offence alleged to have been committed. Section 209 of
the Code prescribes that when in a case instituted on 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 Sessions he shall commit, after compliance with the provisions of Section
207 or Section 209, as the case may be, the case to the court of Sessions and
subject to the provisions of the Code, pass appropriate orders. This Section
refers back to Section 190, as is evident from the words "instituted on a
police report" used in Section 190(1)(b) of the Code. While dealing with
the scope of Section 190 this Court in Raghubans Dubey v. State of Bihar [1967 (2) SCR 423] held that the
cognizance taken by the Magistrate was of the offence and not of the offenders.
Having taken cognizance of the offence, a Magistrate can find out who the real
offenders were and if he comes to the conclusion that apart from the persons
sent by the police some other persons were also involved, it is his duty to
proceed against those persons as well.
Approving
the judgment in Raghubans Dubey's case (supra) this Court in M/s.SWIL Ltd. v.
State of Delhi & Anr. [JT 2001 (6) SC 405] held:
"....in
the present case there is no question of referring to the provisions of Section
319 Cr.P.C. That provision would come into operation in the course of any
inquiry into or trial of an offence. In the present case, neither the
Magistrate as holding inquiry as contemplated under Section 2(g) Cr.P.C. nor
the trial had started. He was exercising his jurisdiction under Section 190 of
taking cognizance of an offence and issuing process. There is no bar under
Section 190 Cr.P.C. that once the process is issued against some accused on the
next date, the Magistrate cannot issue process to some other person against
whom there is some material on record, but his name is not included as accused
in the charge-sheet." The present case is squarely covered by the
aforesaid judgments which renders the order impugned not sustainable under law.
Under
the circumstances, the appeal is allowed by setting aside the order impugned
and by upholding the order of the Additional Sessions Judge.
......................J.
(M.B.
SHAH) ......................J.
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