Back
1983 Supreme(Gau) 57
GAUHATI HIGH COURT
Dr. T. N. SINGH, J.
ANUPAM CHAKRABORTY
VERSUS
STATE OF ASSAM
Criminal Revn, No.149 of 1979,
Decided on : 11 -4 -1983.
Section 319 Cr. P. C. is not the sole repository of the power of the Court to add an accused at any stage of an inquiry or a trial. The court has inherent power to take cognizance of an offence and add an accused, and Section 319 is to be read as an enabling provision.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 319 - POWER OF COURT TO ADD ACCUSED - SCOPE AND INTERPRETATION - DISTINCTION BETWEEN INQUIRY AND TRIAL - JURISDICTION OF COURT TO ISSUE PROCESS AGAINST PERSON NOT SENT UP BY POLICE - SECTION 319 NOT SOLE REPOSITORY OF SUCH POWER - INHERENT POWER OF COURT TO TAKE COGNIZANCE OF OFFENCE AND ADD ACCUSED - SECTION 319 TO BE READ AS ENABLING PROVISION - LEGISLATIVE HISTORY AND PURPOSE OF SECTION 319 - SECTION 319 OPERATES IN ITS OWN FIELD AND DOES NOT DEROGATE FROM GENERAL POWER OF COURT UNDER SECTION 190 - FILING OF SUPPLEMENTARY CHARGE-SHEET UNDER SECTION 173(8) DOES NOT ALTER POSITION - COURT CAN ISSUE PROCESS UNDER SECTION 204 WHEN SATISFIED ABOUT SUFFICIENT GROUND FOR PROCEEDING AGAINST PERSON NOT ALREADY ARRAIGNED AS ACCUSED - SECTION 14 OF GENERAL CLAUSES ACT - POWER UNDER SECTION 204 CAN BE EXERCISED FROM TIME TO TIME AS OCCASION REQUIRES.
Fact of the Case:
The petitioner was shown as a witness in the charge-sheet filed by the police in a case of burglary. During the investigation, a search was conducted in the petitioner's pharmacy based on information provided by one of the accused. The petitioner was not named as an accused in the charge-sheet, but the Magistrate, on an application by the Assistant Public Prosecutor, issued summons against him to stand trial for an offence under Section 411 IPC. The petitioner challenged the order, contending that it was without jurisdiction as it was passed without any evidence and that the Magistrate did not acquire jurisdiction to issue process under Section 204 Cr. P. C. as no supplementary charge-sheet was filed.
Finding of the Court:
The court held that the impugned order was perfectly legal and did not suffer from any jurisdictional infirmity. It held that Section 319 Cr. P. C. is not the sole repository of the power of the Court to add an accused at any stage of an inquiry or a trial. The court has inherent power to take cognizance of an offence and add an accused, and Section 319 is to be read as an enabling provision. The court can issue process under Section 204 when it is satisfied, on the material placed before it, either from the original or from the supplementary charge-sheet, that there was "sufficient ground for proceeding" against any person who was not already arraigned before it as an accused.
Issues: 1. Whether Section 319 Cr. P. C. is the sole repository of the power of the Court to add an accused at any stage of an inquiry or a trial? 2. Whether the court has inherent power to take cognizance of an offence and add an accused? 3. Whether Section 319 is to be read as an enabling provision? 4. Whether the court can issue process under Section 204 when it is satisfied, on the material placed before it, either from the original or from the supplementary charge-sheet, that there was "sufficient ground for proceeding" against any person who was not already arraigned before it as an accused?
Ratio Decidendi: 1. Section 319 Cr. P. C. is not the sole repository of the power of the Court to add an accused at any stage of an inquiry or a trial. 2. The court has inherent power to take cognizance of an offence and add an accused. 3. Section 319 is to be read as an enabling provision. 4. The court can issue process under Section 204 when it is satisfied, on the material placed before it, either from the original or from the supplementary charge-sheet, that there was "sufficient ground for proceeding" against any person who was not already arraigned before it as an accused.
Final Decision: The court dismissed the petition, discharged the rule, and vacated the stay order. It directed that the records of the case be sent down to the Court below expeditiously for proceeding according to law.
This case is concerned with a small incident of burglary but, it carries a big burden of a fundamental question. What is the ambit of powers and jurisdiction of a criminal Court to add as an accused any person to stand trial for an offence for which he is not charge-sheeted by the police ? The question is indeed fundamental in the sense that criminal Courts exist to try offenders for the protection of society. While powers and jurisdiction of the courts are circumscribed by the provisions of the Code the question is how those provisions which have a bearing on this fundamental duty of the Courts are to be interpreted.
2. On 6-2-79 an information was lodged by the Proprietor of Hind Pharmacy, Jorhat, with the officer-in-charge of Jorhat P. S. in which it was stated that there was a burglary in his shop during the preceding night. On the basis of this FIR the police made investigation and submitted charge-sheet dt. 10-4-79 under Ss. 457/380/411 IPC in the Court of Chief Judicial Magistrate, Jorhat, whereupon cognizance was taken on 2-5-79 by the Court. In the charge-sheet one Swapan Dutta and another Radheshyam Paul were shown as accused in custody and the petitioner's name appeared therein as a witness. Along with the charge-sheet two seizure lists were also filed. From one of the seizure lists it appears that on being "led by the arrested accused Swapan Dutta'' a search was conducted on 28-2-79 in the "shop (Pharmacy) of Anupam Chakraborty", (the petitioner). From the seizure list it also appears that the seized articles were identified by one Mihir De, son of H. C. De Proprietor, Hind Pharmacy, Jorhat.
3. On 6-6-79 the learned Magistrate passed order in G. K. Case No. 218/79 and framed charges under Ss. 457/380 IPC against accused Swapan Dutta and under S. 411 IPC against, accused Radheshyam Paul. On 4-7-79 an application was filed by the Assistant Public Prosecutor stating that there was sufficient material for framing charge under S. 411 IPC against the petitioner who was not sent up by the police. It was further stated that non-joinder of the said accused will highly prejudice the prosecution case and it was prayed that the petitioner may be added as an accused in the case and be directed to lie produced. Under what, provision of law the application was filed does not appear on the face of it. However, the learned Magistrate entertained the application and passed the following order on that date which is impugned in this revision petition :
"Accused Radheshyam is present. Accused Swapan Datta is produced from jail Hajat. Witness has not come. Slip from the Court has been returned unserved. The prosecution states that there is evidence against one Anupam Chakraborty and prayed him to be brought as accused for trial. During Police investigation the said accused was not arrested. From the seizure list it is found that during investigation some medicines are recovered and seized from the pharmacy of the said accused. Cognizance has been taken against accused Anupam in this case. Issue summons against this accused fixing 1-8-79. Fix 18-7-79 for appearance of the under-trial prisoner (Hajati) Accused Swapan may go on bail for Rs. 2000/-.
4. It has been contended on behalf of the petitioner by his learned counsel Mr. S. K. Sen that the above order is without jurisdiction inasmuch as such a premature order was not contemplated by the provisions of S. 319, Cr. P. C. which permits any person to be added as an accused in any trial by the Court only in such cases where from the evidence adduced in the case it has appeared to the Court that the person concerned had committed any offence for which he could be tried together with the other accused arraigned in the case. In the instant case there being no "evidence" before the court the order issuing summons against the petitioner was clearly without jurisdiction inasmuch, as the learned trial Court issued process merely on a perusal of the seizure list which could not be regarded as
