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2019 Supreme(All) 2646
IN THE HIGH COURT OF ALLAHABAD
AJIT SINGH, J.
Farman And Others — Appellant
Versus
State Of U.P. and Another — Respondent
Application U/S 482 No. 38681 of 2019
Decided on : 07-11-2019
Advocate Appeared:
Arvind Kumar, Advocate, Abhishek Narayan Pandey, Advocate, Rajiv Lochan Shukla, Advocate
Point of law: In that view of the matter, we have no hesitation in agreeing with the views expressed n Kishun Singh Vs. State of Bihar (Supra) that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in Column 2 of the police report to stand trial along with those already named therein
Headnote:
Indian Penal Code – Sections 147, 148, 149, 323, 342, 352, 307, 302 and 308 – Criminal Procedure Code – Sections 482, 193, 173(2), 319 – Cognizance – Committal Proceedings Issue – cognizance of an offence can only be taken once and if once the cognizance of the offence has been taken in the present case by the Sessions Court after committal of the case to the Sessions Court and the Sessions Court had charged the accused and the trial of the accused has commenced then again the Sessions Court will not be able to go back and to take further cognizance of the case again under Section 193 Cr.P.C.
Facts of the case:
Whether the Magistrate can take cognizance of an offence which is triable by the Court of Session or he is to simply commit the case to the Court of Session, after completion of committal proceedings as it is the Court of Session which is competent to try such cases.
Finding of the court:
Summoning of the three accused by the impugned order is not in consonance with the legal provisions of la – The cognizance taken by the trial sessions court for the second time is not perfectly valid and permissible by law – The impugned order is not legally proper and the impugned order transpires that the trial sessions court has abused the process of law – The impugned order is liable to be quashed – The impugned order passed by Additional Sessions Judge, Court Meerut Police Station Parichitgarh, District Meerut, is hereby quashed with the direction that since the trial has proceeded and is at an advanced stage as the prosecution has examined the prosecution witness of the trial and if the trial court considers after evaluating the evidence before it, which has come during trial then the trial court may proceed against the persons, who appears to be guilty of the commission of offence with the aid of Section 319 Cr.P.C.
Result: – Order Accordingly
JUDGMENT :
Ajit Singh, J.
Heard Sri Rajiv Lochan Shukla, learned counsel for the applicants, Sri Ravi Prakash Pandey, learned AGA for the State and perused the material available on record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicants for quashing the impugned order dated 18.09.2019 passed by Additional Sessions Judge, Court No.10, Meerut in S.T. No.447 of 2018 and 912 of 2018 (State of U.P. vs. Ikram and Ors.), under Sections 147, 148, 149, 323, 342, 352, 307, 302 and 308 IPC, Police Station Parichitgarh, District Meerut.
3. The first information report of this incident was lodged by the complainant against 13 named accused-persons. It was alleged in the FIR that brother of the complainant was done to death by the accused-persons and later on 'Behnoi'-Kamrul of the complainant Muzassim was also done to death by the accused-persons and Kamrul and Muzassim had died on the spot and the complainant and his brother Sadrul, Fahim, Kadim, Javed and Salim had also received injuries. The matter was investigated and the police had submitted charge sheet on 29.03.2018 against eight persons and against five accused-persons, the investigation was in progress. Later on second charge sheet was submitted on 23.06.2018 against two persons, namely Iftedar and Jisaan. The cognizance of the offence on the basis of papers submitted by the police was taken by the Sessions Court on 31.08.2018 and later on charges were framed. After framing of charge, an application was moved from the prosecution side under Section 193 Cr.P.C. and in the application it was mentioned that the complainant filed FIR against 13 named persons and eight persons were chargesheeted, later on, two persons were also chargesheeted and cognizance was taken by the trial court against all ten persons and it was mentioned in that application the police had not submitted any report under Section 173(2) Cr.P.C. against three accused-persons, namely Farman, Hussain and Rameej and three years have passed and the police has not submitted any charge sheet against the accused-persons, namely Farman, Hussain and Rameej and it was prayed in that application that three accused, namely Farman, Hussain and Rameej be arrayed as an accused under Section 193 Cr.P.C. and this application was disposed of by the trial court vide impugned order dated 18.09.2019 and by the said impugned order, the application given by the prosecution under Section 193 Cr.P.C. was accepted and the accused Farman, Hussain and Rameej were summoned for trial under Sections 147, 148, 149, 323, 342, 352, 307, 302 and 308 IPC.
4. Aggrieved by this order, the present application under Section 482 Cr.P.C. has been filed by the accused-persons with a prayer for quashing the impugned order.
5. It has been submitted by the learned counsel appearing on behalf of the applicants that the impugned order passed by the trial court is against the law and when the Sessions court has taken cognizance under Section 193 Cr.P.C. earlier on 31.08.2018, then it was not within the scope of the trial court to again take cognizance of the present accused-applicants on the basis of police papers submitted by the police. It has been further submitted that when the trial was in progress, the evidence of PW-1 was recorded on 20.09.2018, then the application under Section 193 Cr.P.C. is not legally maintainable, as it was beyond the scope of the trial judge to summon the accused-applicants under Section 193 Cr.P.C. It is also submitted that when the trial has progressed, then the court can summon the accused-persons, who were not arrayed as accused in the charge sheet or against whom charge has not been framed only under Section 319 Cr.P.C. after considering the evidence during trial.
6. Learned counsel for the applicants has relied on the judgment of Hon'ble Supreme Court in the case of Dharm Pal and Ors. Vs. State of Haryana and Ors., (2014) 3 SCC 306, Hardeep Singh Vs. State of Punjab and Ors., (2014) 3 SCC 92 and
