SUMMONING OF AN ADDITIONAL ACCUSED

SUMMONING OF AN ADDITIONAL ACCUSED

1936
0
Print Friendly, PDF & Email
SUMMONING OF AN ADDITIONAL ACCUSED
SUMMONING OF AN ADDITIONAL ACCUSED

Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.

Dharam Pal & Ors. v. State of Haryana & Anr.

AIR 2013 SC 3018: (2014) 3 SCC 306

JUDGES: Altamas Kabir, Surinder Singh Nijjar, Ranjan Gogoi, M.Y. Eqbal, Vikramajit Sen

Date of decision: 18/07/2013

FACTS:-

The Three-Judge Bench hearing this matter, by its order dated 20th January, 2005, directed the matter to be placed before the Chief Justice for placing the same before a larger bench. The facts which led to the order of the learned Magistrate, which was subsequently challenged in Revision before the Session Judge and the High Court are that except for one Nafe Singh, who was shown as an accused, the Appellants Dharam Pal and others were included in column 2 of the police report, despite the fact that they too had been named as accused in the First Information Report. After going through the police report, the learned Judicial Magistrate First Class, Hansi, summoned the Appellant and three others, who were not included as accused in the charge-sheet for the purpose of facing trial along with Nafe Singh. The learned Magistrate purported to act in exercise of his powers under Section 190 of the Code, but without taking recourse to the other provisions indicated in Sections 200 and 202 of the Code, before proceeding to issue summons under Section 204 of the Code.

The order of the learned Magistrate was questioned by way of Revision before the Additional Session Judge, Hisar, in Criminal Revision, who upheld the order of the learned Magistrate and dismissed the Revision. The order of the learned Session Judge was, thereafter, challenged before the High Court, which also upheld the views expressed by the learned Magistrate as well as the Session Judge, and dismissed the Appellants’ application under Section 482 of the Code for quashing the order, passed by the Additional Session Judge, Hisar, affirming the order of the Judicial Magistrate First Class, Hansi, passed on an application filed under Section 190 of the Code for summoning the Appellants in connection with FIR No. 272 dated 13th October, 1999, registered under Sections 307 and 323 read with Section 34 of the Indian Penal Code, with Narnaund Police Station.

 

ISSUES:-

  1. Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session? If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report?
  2. Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?
  3. Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction?
  4. Whether upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?

 

JUDGMENT:-

 FIRST ISSUE, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.

SECOND ISSUE, in such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court.

 

THIRD ISSUE, the answer to question must be in the affirmative, namely, that the Session Judge was entitled to issue summons under Section 193 Cr.P.C. upon the case being committed to him by the learned Magistrate. The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction.

 

FOURTH ISSUE, it is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge.

 

HELD:-

It has been held that the court is fully empowered to summon additional accused in exercise of its power under section 193 Cr.P.C. It need not necessarily wait till the trial reaches the stage of section 319 Cr.P.C. This view has been approved by the Hon’ble Supreme Court in Hardeep Singh Vs. State of Punjab, [(2014) 3 SCC 92].

To Get Legal Opinion from Advocates/ Legal Experts, Please click here  

To Get Legal Opinion from Retired Hon’ble Judges, Please click here

Print Friendly, PDF & Email

NO COMMENTS