ORDER
R.K. Verma, J.
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 18-1-89 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 Section 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 Section 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 Section 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 Section 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 Section 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 Section 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 Section 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 Section 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 Section 319, Cr. P.C. on taking cognizance after commitment of the case by the Magistrate.
8. The short question for consideration in this case is whether the committing 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.
9. Under Section 173, Cr. P.C. as soon as the investigation is complete, the officer-in-charge of the police station is required to forward the case to the Magistrate empowered to take cognizance of the offence on a police report stating inter alia whether any offence appears to have been committed and, if so, by whom.
10. Under Section 190 of the Code, the Magistrate concerned may take cognizance of any offence upon a police report of facts which constitute the offence. If it appears to the Magistrate from the police report that the offence is triable exclusively by the Court of Session, he is required to commit the case to the Court of Session under Section 200 of the Code. Upon the case having been committed to the Court of Session by the Magistrate the Court of Session can take cognizance of the offence as a Court of original jurisdiction under Section 193 of the Code.
11. Under Section 190 of the Code, the concerned Magistrate on receiving a police report takes judicial notice of the allegation of commission of offence with a view to taking some kind of action provided in the Code to bring the offender to justice, taking cognizance is a judicial act necessarily implying “application of mind to ascertain from the papers of the police report as to what offence. If any, appears to have been committed and if so, by whom and whether or not the offence is triable exclusively by the Court of Session and on such application of mind, if the Magistrate discovers from the material contained in the police papers that apart from the accused as named by the police any person is alleged to have committed offence, he is supposed to take action to bring such offender also to justice.
12. The question that remains for consideration is whether, if the case is triable exclusively by the Court of Session, 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.
13. In this case much of the arguments were addressed on the scope and ambit of Section 319(1), Cr. P.C. which reads as under :–
Section 319(1) : Power to proceed against other persons appearing to be guilty of offence.
Where, in the course of any inquiry into or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
According to the petitioner the provisions of Section 319(1) of the Code alone govern the question of joining additional accused apart from those named by the police and that such joinder is permissible only on the basis of the incriminating evidence received in the course of enquiry into or trial of an offence by the Court.
14. Learned counsel for the parties cited a few decisions which would throw light on the question as to when and how a person –other than the named accused — who appears to have committed an offence on the basis of the statements and documents collected during investigation by the police on which the prosecution relies, can be arraigned as the co-accused as to under what provision of the Code such power is referable. These decisions are : Jogindersingh v. State of Punjab AIR 1979 SC 339 : (1979 Cri LJ 333), Raghubans Dubey v. State of Bihar AIR 1967 SC 1167 : (1967 Cri LJ 1081), Sk. Latfur Rahman v. The State 1985 Cri LJ 1238 (Full Bench Patna High Court), Narendra Kumar Dubey v. State of M.P. 1991 MPLJ 333, A.P. Shrivastava v. State of M.P. (1990 (2) Crimes 567), Smt. Sislius Stephens v. State of M.P. (1991 (2) Crimes 215) and Harishankar Vyas v. State of M.P. (1991 (1) MPWN 116).
15. In Jogindersingh’s case (supra) the relevant observations of the Supreme Court are as follows (at page 338; of Cri LJ):–
The expression ‘any person not being the accused’ occurring in Section 319 clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal Court are included in the said expression.
Once the case in respect of the offence qua those, accused who are before the Court is committed then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 319(1) would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it; otherwise the conferral of the power under Section 319(1) upon the Sessions Court would be rendered nugatory. Further Section 319(4)(b) enacts a deeming provision in that behalf depending with the formal committal order against the newly added accused.
From the aforesaid observations of the Supreme Court it is clear that Section 319(1) of the Code envisages joining of the co-accused on the basis of incriminating evidence against such co-accused which may be recorded during inquiry or trial.
16. The two decisions of this Court in Smt. Sislius Stephens (supra) and Harishankar Vyas (supra) considering the scope of Section 319(1) of the Code are apparently in conformity with the aforesaid observations of the Supreme Court. But the view taken in these decisions goes further inasmuch as it seems to limit the power of the Court as regards joining of the co-accused by holding that such joinder can be only on the basis of evidence recorded by Court in the course of inquiry or trial under Section 319 of the Code and not on the basis of material collected during investigation by the police on which the prosecution relies.
17. In the case of Raghubans Dubey (supra) the relevant observations of the Supreme Court are as under:–
In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusions that apart from the person sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.
18. In the case of A. P. Shrivastava (supra) the Magistrate while considering the question of framing of charge held that there was material on record which prima facie indicated involvement of persons not being accused in the offence and, therefore, passed an order joining them as accused persons. On a petition under Section 482, Cr. P.C. filed to this Court for getting the order of the Magistrate quashing, it was contended that powers of a Magistrate to proceed against a person, not being an accused, are regulated by provisions of Section 319 of the Code and are available to the Magistrate only after some evidence has been recorded during the trial from which involvement of other persons may prima facie be inferred and since no evidence had been recorded during the trial and the matter was at the stage of consideration of framing of charge, the impugned order of the Magistrate was illegal. This Court while dismissing the petition has held as under:–
That the Magistrate while issuing process to a person not already an accused, does not exceed his authority or jurisdiction provided, he finds a prima facie case existing against him. In the instant case, there is no challenge to the Magistrate’s view about the existence of prima facie case. Since putting a person to trial is the important object of criminal law and the said object would be frustrated if such a person is not so put on trial, summoning such a person should be held to be in the interest of justice.
19. In Patna Full Bench case of Sk. Latfur Rahman (supra) it has been held that (at page 1247; of Cri LJ) :– “the Court of Session, prior to the framing of the charge, can, without its recording evidence, summon a person as an additional accused on the basis of the documents in the final report of the investigating officer under Section 173 of the Code independently of the provisions of Section 319 thereof.”
The Full Bench further held that Section 319 of the Code is not the sole repository of power for summoning the additional accused for trial by a Magistrate or Court of Session, Section 319 of the Code operates in the narrow field where the trial has already proceeded or an enquiry has already been commenced. Section 319 is designed to meet the specific and limited situation of a Court discovering in the midst of a trial or enquiry that some additional accused should also be tried together with the persons already before it. This provision, has no relevance whatsoever with the pre-trial or the pre-enquiry stage i.e. before the framing of the charge after cognizance had been taken or before any inquiry has yet commenced. Therefore, Section 319 operates in a field or an arena altogether different from that of the taking of the cognizance of the offence. Section 319 was never intended nor the provisions of Section 319 remotely convey that the section was sought to be enacted now as the sole repository of power for summoning the additional accused in all situations. Section 319 was in no way intended to make any radical or drastic departure from the law on this point under the Old Code.
20. In the case of Narendrakumar Dubey (supra) this court following the Full Bench decision of Patna High Court in Sk. Latfur Rahman (supra) has held that a Sessions Judge can summon an offender as an additional accused without recording any evidence, if he were satisfied on the basis of the report under Section 173 of the Code and such power flows from Sections 227 and 229 of the Code.
21. From the observations extracted from the cases cited as above, it becomes patently clear that 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. This power is apparently 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. But 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.
22. It has been laid down by the Supreme Court in the case of Raghubans Dube (supra), as has been stated hereinbefore, that once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence, it is his duty to find out who the offenders really are 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. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. 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. In the instant case the alleged offence involved is one under Section 307, IPC exclusively triable by the Court of Session and as such the case was to be committed to the Court of Session by the Magistrate and the Court of Session on commitment of the case to it under Section 209 of the Code of Criminal Procedure could take cognizance under Section 193, Cr. P.C. The Court of Session, priorto the framing of charge, can, without its recording evidence, summon a person as an additional accused on the basis of the documents in the final report of the investigating officer under Section 173 of the Code independently of the provisions of Section 319 thereof, as has been held in the Patna Full Bench case of Sk. Latfur Rahman (supra) with which I am in respectful agreement.
23. But under Section 190, Cr. P.C. 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. This, in my opinion, is a necessary incident of taking cognizance under Section 190 of the Code even before committing the case for trial of all the persons accused to the Court of Session.
24. In the light of the view taken by me as aforesaid, I do not find any illegality, or impropriety committed by the learned Sessions Judge in allowing the revision of the complainant/non-petitioner by the impugned order dt. 8-3-91, and in holding that the committing Magistrate had the jurisdiction to array and summon any person as an accused on the basis of the evidence collected during investigation. However, it must be observed that such power of the Magistrate is incidental to taking cognizance of any offence under Section 190 of the Code and not to Section 319 of the Code to which reference was wrongly made by the complainant in his application 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.
25. Accordingly, this revision fails and is hereby dismissed.
