Babulal and Others Vs State of M.P. and Others

@JUDGMENTTAG-ORDER

S.S. Jha, J.

Short question involved in the revision is whether before commencement of the trial, Trial Court is competent to add additional accused.

Brief facts of the case are that after the challan was filed and at the stage of framing of charges against other co-accused, an application was filed on behalf of the complainant that there is material on record to frame charges against the petitioners. Trial Court considered the material on record and found that in the statements before police u/s 161, Cr.PC pama facie an offence under Sections 498A, 306 and 201, IPC is made out against the petitioners and there is sufficient material on record to take cognizance against the petitioners for the aforesaid offences. It ordered to summon the petitioners. Petitioners instead of appearing before the Trial Court have filed this revision challenging the order passed by the Trial Court.

Counsel for the petitioners submitted that petitioners can be summoned only after prosecution evidence is over. If police have not filed challan then the Trial Court has no jurisdiction to take cognizance against the petitioners and issue summons to them. In support of his contention, Counsel for the petitioners has relied upon the judgment in the case of Kishun Singh and Others Vs. State of Bihar, . In this case, it is held that a Court of Session to which a case is committed for trial by the Magistrate can not u/s 319 of Cr.PC summon a person as accused whose name is not mentioned in the police report, if no evidence is recorded by that Court. Section 319 of the Code can not be invoked in a case where no evidence has been led at a trial wherefrom it can he said that the additional accused appear to have been involved in the commission of the crime alongwith those already sent up for trial by the prosecution. The sweep of Section 319 is, therefore, limited in that it is an enabling provision which can he invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it. It is further held that however, the Court of Session has power u/s 193, Cr.PC to summon the person if his involvement in the commission of crime prima facie appears from the record of the case. There is difference in the language of Section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a Court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words "the accused" by the words "the case". Thus, once the case is committed to the Court of Session by a Magistrate under the Code the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of original jurisdiction gets lifted thereby investing the Court of Session complete and unfettered jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record.

In the case of Rajender Prasad v. Bashir and Ors. 2002 SCC 28 it is held that 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 is required to be curbed effectively, lest the interest of public justice may suffer. Though power of the High Court u/s 482, Cr.PC 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 u/s 397, Cr.PC. 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 of miscarriage of justice by exercise of jurisdiction u/s 482, Cr.PC. It is further held that a Magistrate has jurisdiction to take cognizance of offence 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 the offence alleged to have been committed. Section 209 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. The cognizance taken by the Magistrate was of the offences and not the offenders. Having taken the 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.

Similarly, in the case of Tek Narayan Prasad Yadav v. State of Bihar [1999 SCC 356] three Judge Bench of the Apex Court has considered the powers to issue process against a person, who is not charge-sheeted u/s 193 after having begun the trial and having recorded some evidence of the prosecution. Such step of the Court of Session can not even remotely be termed as transgressing the affirmative views expressed in the case of Kishun Singh (supra) and Nisar v. Stale of U.P. [1995 SCC 306]. Third case of Raj Kishore Prasad v. State of Bihar [1996 SCC772] had a different fact situation, being of the pre-committal stage on the basis of which it was held that Section 319, Cr.PC was inapplicable. It was, therefore, held that the conflict of judicial opinion need not be resolved in this case.

In the present case, the learned Sessions Judge after going through the record found that named accused have not been impleaded as accused and has taken cognizance against them and issued summons to them. Since trial has not begun, therefore, Trial Court has jurisdiction to issue summons u/s 193, Cr.PC in the light of the cases discussed above. Though the provisions of Section 319, Cr.PC will not be applicable in this case, but powers u/s 193, Cr.PC are available with the Court of Session for summoning the accused. No error is committed by the Trial Court in summoning the accused.

Revision has no merit and is dismissed. Consequently, M.C.P. No. 1111/04 for stay is dismissed. Trial Court is directed to proceed with the trial.