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1984 Supreme(J&K) 51
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
M.L. Bhat, J.
State - Appellant
Versus
Man Mohan Singh - Respondent
Cr. Revision Petition No. 40/1984
Decided On : 13 September, 1984
Advocate For Appellant: S.D. Sharma
Advocate For Appellant: R.P. Bakshi
Advocate For Respondent: R.P. Sethi
The Sessions Court has jurisdiction to try an accused who has not been committed by the Magistrate if the case has been committed to the Sessions Court by the committing Magistrate.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 193, 205-D, 351 - COMMITTAL OF CASE TO SESSIONS COURT - JURISDICTION OF SESSIONS COURT TO TRY ACCUSED NOT COMMITTED BY MAGISTRATE - SECTION 205-D OF AMENDED CODE OF CRIMINAL PROCEDURE - CHANGE IN PROCEDURE - COMMITMENT OF CASE AND NOT OF ACCUSED - SESSIONS COURT TAKES COGNIZANCE OF OFFENCE AND NOT OF ACCUSED - SECTION 351 OF CRIMINAL PROCEDURE CODE - POWER OF SESSIONS COURT TO ADD ACCUSED NOT COMMITTED - CONDITIONS - SECTION 193 OF CRIMINAL PROCEDURE CODE - SAVING OF OTHER PROVISIONS - SECTION 205-D OF AMENDED CODE OF CRIMINAL PROCEDURE SAVED BY SECTION 193 OF CRIMINAL PROCEDURE CODE - NO BAR IN CODE OF CRIMINAL PROCEDURE THAT ACCUSED AGAINST WHOM REPORT IS MADE UNDER SECTION 173 OF CRIMINAL PROCEDURE CODE CANNOT APPEAR BEFORE SESSIONS JUDGE - SESSIONS COURT CAN MAKE APPROPRIATE ORDERS IN RESPECT OF SAID ACCUSED - COMMITTING COURT IS MERE POST OFFICE - FORWARDING AGENCY IN RESPECT OF CASES EXCLUSIVELY TRIABLE BY SESSIONS JUDGE - SESSIONS JUDGE CANNOT TAKE COGNIZANCE OF CRIMINAL CASE UNLESS COMMITTED TO IT BY COMMITTING MAGISTRATE FOR TRIAL - COMMITMENT OF CASE AND NOT OF ACCUSED - SESSIONS COURT HAS COMPETENCE AND JURISDICTION TO DEAL WITH ACCUSED AND CAN FRAME CHARGE AGAINST HIM AS COMMITTAL ORDER IN RESPECT OF ENTIRE CASE HAS BEEN MADE BY COMMITTING MAGISTRATE.
Fact of the Case:
The accused, Man Mohan Singh, was named in an FIR and proceedings under Section 512 of the Code of Criminal Procedure (CrPC) were initiated against him. The case against the other accused persons was committed to the Court of Session. Man Mohan Singh appeared before the Sessions Judge and surrendered himself. The Sessions Judge ordered the dropping of proceedings under Section 512 CrPC against him and fixed the case for preliminary hearing. The accused was handed over to the authorities for being locked up in judicial lock-up.
Finding of the Court:
The court held that the Sessions Court had jurisdiction to try the accused even though he had not been committed by the Magistrate. The court relied on Section 205-D of the amended CrPC, which provides that in a case instituted on a police report or otherwise, if the accused appears or is brought before a Magistrate and the offence is exclusively triable by a sessions Court, he shall commit the case to the Court of Sessions. The court held that the committal order in respect of the case had already been recorded by the committing Magistrate and the Sessions Judge was seized of the whole case. Therefore, the appearance of the accused before the Sessions Court and the direction of the Sessions Judge to keep the accused in the judicial lock-up could not be said to be without jurisdiction.
Issues: Whether the Sessions Court had jurisdiction to try the accused who had not been committed by the Magistrate.
Ratio Decidendi: The court held that Section 205-D of the amended CrPC saves Section 193 CrPC, which provides that the court of sessions shall not take cognizance of an offence as the court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. The court held that there is no bar in the Code of Criminal Procedure that the accused against whom a report is made under Section 173 CrPC cannot appear before the Sessions Judge which has the original jurisdiction to try him and the Sessions court cannot make appropriate orders in respect of the said accused.
Final Decision: The court dismissed the revision petition and directed the First Additional Sessions Judge to proceed with the trial of the case in accordance with law.
2. Learned counsel for the State has assailed this order as being violative of the procedure established by law. It is further contended that the accused could be tried by the Sessions Judge only after he was committed by the Judicial Magistrate. The Judicial Magistrate had taken proceedings u/s 512 Cr. P. C. against him and it was within the powers of the learned Sessions Judge to drop the said proceeding and in the absence of following the procedure provided u/s 193 Cr, P. C. accused could not be charge sheeted or tried .The accused should have been handed ever to the police so that investigation could be completed by the police and challan produced against him and it was obligatory for the accused to surrender before the Chief Judicial Magistrate in the case he wanted to be tried alongwith the other accused persons by the Sessions Judge. The surrender of the accused before the learned Sessions Judge is also assailed. In support of his submissions learned connsel for, the state has referred to the provisions of 193 (I)Cr. P. C, which reads as under :
"(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of sessions shall take cognizance of any offence as a court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf"
3. It is further submitted by him that Sec. 351 Cr P. C Code also would not empower the trial court to, frame charge against the accused because the said section was not applicable to the facts of the present case. This section lays down that for trying a persons who was not accused in the original case but against whom evidence was available may be added as an accused and proceeded against to the learned counsel for the state, Sec. 351 Cr. P. C. Code was not applicable and the trial Court had no power to frame a charge against the said accused. Learned Counsel for the State further argued that Sec. 205-D Cr. Pr. Code also Could not empower the trial court to add the accused who was named in the FIR in support of his submissions he has referred to an authority of Allahbad High Court Viz : Onkar Singh and others Vs State, 1976 Cr. Law Journal 1774, He also referred to an authority of this court viz: State Vs. Mohd. Raman and Ors. 1981 Cr L J 783, and of Calcutta High Court viz: Basudeo Mondal and Ors Vs Dud Kr Paramanjek and anr. 1982 Cr. L. J. 1654, and of Gauhati High Court vix: Gunarm Tanti and another Vs. State, 1983 Cr L. J. 289.
4. 1976 Cr. L. J. 1774 (Supra) lays down that non production of accused before the Magistrate at the time of commitment u/s 209 CR Pr, Code is a mereirregularity which is curable. This authority cannot be passed into service in support or the submissions raised by the learned counsel for the State 1981 Cr, L. J. 783 (Supra) in an authority for the proposition that person not committed to the court of Sessions/ Sessions Judge can nontheless try such person provided the conditions of Sec. 351 Cr, Pr Code are satisfied It does not deal with the proposition as to whether a person named in the FIR could surrendered in the Sessions Court without there being any committal order against him. It on the other hand interprets various other sections of the code of Criminal Procedure. Facts of this authority are altoge
