1. Supplementary affidavit filed today is taken on record.
2. Heard Shri Brijesh Sahai, learned counsel for the applicants, assisted by Shri Samarth Sinha, Advocate and Shri Indra Kumar Chaturvedi, learned counsel for the opposite party no. 2 and learned Additional Government Advocate for the State.
3. The applicants Desh Raj Singh, Babbu Singh, Rajjan Singh, Pushpendra Singh and Bablu Singh, through this application moved under Section 482 Cr.P.C., have invoked the inherent jurisdiction of the Court with a prayer to quash the impugned summoning order dated 01.12.2016 passed by the Session Judge Banda, under Section 193 Cr.P.C., in Case Crime No. 19 of 2016, under Section 302 I.P.C., State Vs. Ram Kishun Gupta and others, Police Station-Baberur, District-Banda.
4. It is submitted by learned counsel for the applicants that as per F.I.R. version, applicants after hatching conspiracy, committed the murder of the brother of the opposite party no. 2. The opposite party no. 2 is the eye-witness of the occurrence. It is further submitted that out of five applicants, Desh Raj Singh and Babbu Singh were real brothers of the deceased, Pushpendra Singh and Rajjan Singh were nephew of the deceased and one Bablu Singh was a family member of the deceased. The son of opposite party no. 2 got a sale deed dated 9.7.2010 in his favour from the deceased. One more land of deceased whose gaata sankhya is 974 of Baberu left with him and son of opposite party no. 2 was building pressure upon the deceased to get a sale deed of the alleged land in his favour. The deceased did not agree to sell his remaining land in the favour of the son of opposite party no. 2. The opposite party no. 2 along with her son and friends of her son hatched conspiracy to kill deceased Raja Singh.
5. It is further submitted that opposite party no. 2 was not present on the place of occurrence at the time of incident. The investigation was transferred from Baberu to Girwa and during investigation, three persons involved in the murder of Raja Singh were Manoj Singh @ Bauva (son of opposite party no. 2) and his friends namely Ramkishun Gupta and Ravi Kiran @ Laala were charge-sheeted. The applicants were exonerated during the investigation. It is pertinent to mention here that there is a will dated 9.2.2016 in favour of son of opposite party no. 2 which was concealed by the opposite party no. 2, in which Manoj Singh (son of opposite party no. 2) is the beneficiary. The opposite party no. 2 has filed a complaint against the Chief Judicial Magistrate praying for summoning the applicants but the application of the informant was rejected. Being aggrieved by the order passed by the Chief Judicial Magistrate, the opposite party no. 2 filed an application 5kha under Section 193 Cr.P.C. to the Sessions'' Judge, Banda stating therein that a fair investigation had not taken place and deceased Raja Singh was her brother and issue less and also residing with her. The deceased Raja Singh was willingly ready to sell his land to the son of opposite party no. 2 but when the applicants came to know about this, they hatched conspiracy and committed the murder of deceased Raja Singh so that the unsold land will automatically be transferred in favour of applicant nos. 1 and 2. On the basis of application moved under Section 193 Cr.P.C., Sessions'' Judge has summoned the applicants under Section 302 I.P.C. to face the trial. The criminal proceedings has been initiated on false and frivolous facts with the sole ulterior motive of seeking personal vengeance against the applicants.
6. The applicants were relied on the case of Ranjit Singh versus State of Punjab (1998) 7 SCC 149, in which the Hon''ble Apex Court held that-
"Once the Session Court
takes cognizance of the offence pursuant to the committal
order, the only other stage when the court is empowered
to add any other person to the array of the accused is
after reaching evidence collection when powers under
Section 319 of the Code can be invoked. There is no
other power for the Sessions'' Court to permit addition of
new person or persons to the array of the accused.
However, it is not necessary for the court to wait until the
entire evidence is collected for exercising the said
powers."
Per Contra, learned Additional Government Advocate as
well as learned counsel for the opposite party no. 2
contend that the applicants were named in the F.I.R. and
motive is also explicit against the applicants to commit the
murder of the deceased Raja Singh as the deceased has
executed the sale deed of major part of the land to the
son of the opposite party no. 2 and rest party of the land
was also going to attorned to him. The opposite party no.
2 as well as her son Manoj Singh were residing with the
deceased Raja Singh from the very beginning, and
deceased also took care of the son of opposite party no.
2. It is further submitted by learned counsel for the
opposite party no. 2 that the decision in the Ranjit Singh
versus State of Punjab was not the correct decision as
held by the Hon''ble Apex Court in the case of Dharam
Pal and Others Versus State of Haryana and Another
(passed in Criminal Appeal No. 148 of 2003, decided on
July 18, 2013) in which it has been held that the decision
in the case of Kishun Singh Versus State of Haryana and
not the decision in the case of Ranjit Singh Versus State
of Punjab lays down the law correctly in respect of the
power of the Sessions'' Court after committal of the case
to it by the learned Magistrate under Section 209 Cr.P.C..
It is further observed by the Hon''ble Apex Court that
Session Courts has jurisdiction on committal of the case
to take cognizance of the offence of the person 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 Cr.P.C., the Session Judge may
summon those persons shown in column no. 2 of the
police report to stand trial along with those already named
therein.
7. Before adverting to the claim of the parties, it is expedient to reproduce the relative aspect of Section 193 Cr.P.C.-
"Cognizance of offences by Courts of Session- Except
as otherwise expressly provided by this Code or by any
other law for the time being in force, no Court of Session
shall take cognizance of any offence as a Court of original
jurisdiction unless the case has been committed to it by a
Magistrate under this Code".
Firstly it is necessary that
the case be commit to the Court of Session by Magistrate
and secondly after the case has been committed to it,
Session Court could take cognizance of the offence
exercising the original jurisdiction.
8. In the instant case, the applicants were named in the F.I.R., and from the perusal on the basis of the material collected by the I.O., at this stage, it cannot be said that no offence is made out against the applicants. But after concluding the investigation, the I.O. submitted the final report against the applicants and submitted the chargesheet against two other persons. The case was committed to the Court of Session and application was moved under Section 193 Cr.P.C. by the opposite party no. 2 that there is sufficient material against the applicants to proceed with the case. Most of the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. Only in the cases where Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process or miscarriage of justice.
9. In view of the above discussion, I find no reason to interfere in the proceedings and, therefore, refuse to quash the proceedings in the aforesaid case as the summoning order dated 1.12.2016 is justified and no illegality or demerit is found in the impugned order.
10. Hence, the application moved by the accused-applicants under Section 482 Cr.P.C., has no substance and is rejected accordingly.
