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1992 Supreme(MP) 98
High Court Of Madhya Pradesh
R. K. VARMA
ATIBAL SINGH - Appellant
Versus
STATE OF M.P. - Respondents
Criminal Revision 37 Of 1991
Decided On : 02/26/1992
Rokesh Saxena
The Magistrate has the jurisdiction to array and summon any person as an accused on the basis of the evidence collected during investigation, if the police did not charge-sheet him. This power is incidental to taking cognizance of any offence under Section 190 of the Code and not to Section 319 of the Code, and can be exercised before committing the case to the Court of Session under Section 209 of the Code for trial of all the accused persons.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 319 - POWER TO PROCEED AGAINST OTHER PERSONS APPEARING TO BE GUILTY OF OFFENCE - SCOPE AND APPLICABILITY - MAGISTRATE'S POWER TO SUMMON ADDITIONAL ACCUSED BEFORE COMMITTING CASE TO COURT OF SESSION - INTERPRETATION.
Fact of the Case:
The petitioner, Atibalsingh, was accused of attacking the complainant, Kripalsingh, with a lathi and axe, causing injuries to him. The police filed a charge sheet against two other accused persons, Bhagatram and Jagram, but excluded the petitioner's name from the array of accused persons. The complainant filed an application under Section 319, Cr.P.C. before the Magistrate, praying that the petitioner also be summoned as an accused in the case. The Magistrate dismissed the application, holding that he had no jurisdiction to do so as the offence was exclusively triable by the Court of Session. The complainant filed a revision petition in the Court of Sessions, which allowed the petition and directed the Magistrate to consider the evidence collected during police investigation pertaining to the petitioner for deciding the question of joining the petitioner as an accused.
Finding of the Court:
The Court held that the Magistrate had the jurisdiction to array and summon any person as an accused on the basis of the evidence collected during investigation, if the police did not charge-sheet him. The Court further held that the power of the Magistrate to summon additional accused was incidental to taking cognizance of any offence under Section 190 of the Code and not to Section 319 of the Code, and could be exercised before committing the case to the Court of Session under Section 209 of the Code for trial of all the accused persons.
Issues: 1. Whether the Magistrate has power to add the name of any person as co-accused on the basis of the incriminating material against him contained in the police report on facts constituting offence which is triable exclusively by the Court of Session. 2. Whether the Magistrate should leave the matter of joining such offender as an accused to the discretion of the Court of Session, to be exercised on its taking cognizance of the offence after committal order is made by the Magistrate or can the Magistrate himself order such offender to be joined as a co-accused before committing the case to the Court of Session.
Ratio Decidendi: 1. Section 319 (1) of the Code confers power on the Court to proceed against other persons appearing to be guilty of offence on the basis of evidence received during inquiry into or trial of an offence. 2. This power is meant to be exercised in a case where, but for such incriminating evidence coming during inquiry or trial against any person not being accused, he could not have been proceeded against, on the basis of the material collected by the police during investigation. 3. Where the police papers do contain incriminating material against a person who has not been sent up by the police for being proceeded against, it is the duty of the Court to proceed against such person on the basis of the material contained in the police papers and it is not necessary to defer summoning of the additional accused till incriminating evidence is received against him during the trial. 4. Under Section 190, Cr.P.C. the Magistrate must take cognizance of any offence upon police report of facts which constitute the offence, whether that offence be triable by the Magistrate or is exclusively triable by the Court of Session. 5. The Magistrate, after taking cognizance of the offence, is also under a duty to find out who the offenders really are, on the basis of the documents in the final report of the investigating officer under Section 173 of the Code 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 and the summoning of the additional accused is part of the proceedings initiated by his taking cognizance of an offence.
Final Decision: The Court dismissed the revision petition filed by the petitioner, Atibalsingh, and upheld the order of the Sessions Judge allowing the revision petition filed by the complainant, Kripalsingh.
( 1 ) THIS revision petition filed by the petitioner is directed against the order dated 8-3-91 passed by the Sessions Judge, Bhind, in Criminal Revision No. 188 of 1989, whereby the learned Sessions Judge, has set aside the order dated 27-9-89 of the Judicial Magistrate First Class Bhind passed in Criminal Case No. 35 of 1989 refusing to join the petitioner Atibal Singh in the array of the accused persons and accordingly rejecting the application of complainant-non-petitioner No. 2 Kripalsingh made in that behalf.
( 2 ) FACTS giving rise to this revision petition are as follows :the first information report lodged on 18-l-89 at police station Umri disclosed that petitioner. Atibalsingh and two other accused persons namely Bharatram and Jagram had attacked petitioner Kripalsingh with lathi and axe. causing injuries to him, and as such a case under S. 307/34, IPC was registered by Umri Police at crime No. 4/89. After investigation the investigating officer filed a charge sheet in the Court of Judicial Magistrate First Class Bhind against Bhagatram and Jagram but excluded the name of petitioner Atibalsingh from the array of the accused persons. On the basis of the said charge-sheet criminal case No. 35 of 1989 is pending in the Court of Judicial Magistrate First Class Bhind. ( 3 ) THE injured non-petitioner Kripalsingh filed an application under S. 319, Cr. P. C. before the learned Magistrate praying that the said Atibalsingh be also summoned as an accused in the case. But the learned Magistrate by order dated 27-9-1989 dismissed the said application holding that as the offence under S. 307, IPC was exclusively triable by the Court of Session, no evidence could be received before the committing Magistrate and as such the application under S. 319, Cr. P. C. is premature and the applicant was free to move such an application in the Court of Session at the proper time.
( 4 ) AGAINST the said order dated 27-9-89 passed by the learned committing Magistrate, the complainant-non-petitioner Kripalsingh preferred a revision petition in the Court of Sessions Judge Bhind. The learned Sessions Judge allowed the revision petition by the order impugned, dated 8-3-91 holding that the committing Magistrate had the jurisdiction to array and summon any person as an accused under S. 319, Cr. P. C. on the basis of the evidence collected during investigation, if the police did not charge-sheet him.
( 5 ) AGGRIEVED by the impugned order passed by the learned Sessions Judge, directing the learned Magistrate to consider the evidence collected during police investigation pertaining to the petitioner for deciding the question of joining the petitioner as an accused, the petitioner Atibalsingh has filed this revision petition.
( 6 ) LEARNED counsel for the petitioner has submitted that the stage for the application under S. 319, Cr. P. C. comes only when the evidence is produced before the criminal Court during inquiry or trial. It has been submitted that the evidence referred to in S. 319, Cr. P. C. on the basis of which any person not being an accused, appears to be guilty of offence justifying his addition as a co-accused for being proceeded against is the evidence adduced in the course of enquiry or trial and does not include the statements recorded by the police during investigation. It has also been submitted that in a case which is instituted on a police report and is exclusively triable by the Court of Session, the committing Magistrate has no jurisdiction to consider or test the merits of the evidence collected by the police during investigation, in order to find out a prima facie case and the Magistrate has only to perform the function provided under S. 207 and 209, Cr. P. C.
( 7 ) IT has been submitted that in the instant case which is exclusively triable by the Court of Session, it is only the Court of Session, which can exercise powers under S. 319, Cr. P. C. on taking cognizance after committement of the case by the Magistrate
