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PETITIONER: JOGINDER SINGH & ANR.

       Vs.

RESPONDENT: STATE OF PUNJAB & ANR.

DATE OF JUDGMENT16/11/1978

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. KRISHNAIYER, V.R. PATHAK, R.S.

CITATION:  1979 AIR  339            1979 SCR  (2) 306  1979 SCC  (3) 345  CITATOR INFO :  R          1983 SC  67  (18)  RF         1983 SC 595  (3)  E&R        1992 SC2068  (5)

ACT:      Code of  Criminal Procedure  1973 (Act  2 of  1974), s. 319-Scope of  Sessions Court  whether has  power to  add any person as  an accused in the absence of any committal order- Sections 193  and 209  whether bar  to the Court of Sessions taking  cognizance   of  offence  as  a  court  of  original jurisdiction.

HEADNOTE:      A  criminal   complaint  was  registered  against  five persons, amongst  whom the two appellants were included. The police having  found that  the two appellants were innocent, charge-sheeted  the   remaining  three  persons.  They  were committed to trial.      At the  trial after  evidence showing  the  appellants’ involvement in  the crime was recorded the prosecution moved an application  that they  be tried,  along with  the  three accused. The Sessions Judge directed the appellants to stand trial, together  with  the  other  accused.  Their  revision application to the High Court was dismissed.      In their  appeal to  this Court  it was contended that, (1) sections  193 and 209 Cr.P.C. were a bar to the Court of Sessions taking  cognizance of  any offence  as a  court  of original jurisdiction and (2) s. 319 was inapplicable to the facts of  this case  because that section in so far as it is applicable to  a Sessions  Court  would  be  subject  to  or subordinate to  s. 193  and the phrase "any person not being the accused"  occurring in  the section  excludes  from  its operation an accused who had been released. by the police.      Dismissing the appeal, ^      HELD: (1)  A plain  reading of  s. 319(1) clearly shows that it applies to all the courts including a Sessions Court and as  such a Sessions Court will have the power to add any person, not  being the  accused before  it but  against whom there appears  during trial  sufficient evidence  indicating his involvement in the offence, as an accused and direct him

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to be tried along with the other accused. [311 E-F]      (2) (a)  Both under s. 193 and s. 209 the commitment is of ’the  case’ and  not of  ’the accused’  whereas under the equivalent provision  of the  old Code viz., s. 193(1) and s 207A it  was ’the  accused’ who  Was committed  and not ’the case’. [312D]      (b) Although  there cannot  be a  committal of the case without there being an accused person before the court, this only means  that before  a case  in respect of an offence is committed  there  must  be  some  accused  suspected  to  be involved in  the crime before the Court but once the case in respect of  the offence  qua   those accused who were 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 s. 193 would be out of the way. [312E] 307      (c) The  summoning of  additional persons who appear to be involved  in the A crime from the evidence led during the trial and  directing them  to stand  their  trial  alongwith 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 conferal of the power under s.  319(1) upon  the Sessions  Court would be rendered nugatory. [312F]      (d) Section 319(4) (b) which enacts a deeming provision provides that  , where the Court proceeds against any person under sub-section  ( 1  ), the  case may  proceed as if such person had  been an  accused  person  when  the  Court  took cognizance of  the offence  upon which  the inquiry or trial was commenced; in other words, such person must be deemed to be an  accused at  the time  of commitment  because it is at that  point   of  time  the  Sessions  Court  in  law  takes cognizance of the offence. [312G]      (3) Under  s. 193  read with  s. 209 of the Code when a case is  committed 1  to the Court of Sessions in respect of an offence  the Court  of Sessions  takes cognizance  of the offence and not of the accused and once the Session Court is properly seized  of the  case as  a result  of the committal order against  some accused  the power  under s.  319(1) can come into  play and  such Court  can add  any person, not an accused before  it, as an accused and direct him to be tried alongwith the other accused for the offence which such added accused  appears   to  have  committed,  from  the  evidence recorded at  the trial.  Looking at  the provision from this angle there  would be  no  question  of  reading  s.  319(1) subject or subordinate to s. 193. [313H-314B]      (4) The  expression "any  person not being the accused" clearly covers  any person who is not being tried already by the Court.  The very  purpose of  enacting such  a provision like s.  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. [314C-D]      Raghubans Dubey  v. State  of Bihar  AIR 1967  SC  1167 referred to.      Patananchala China  Lingaiah v. The State and Anr. 1977 Crl.L.J. 415 overruled.

JUDGMENT:      CRIMINAL   APPELLATE JURISDICTION : Criminal Appeal No. 501 of 1977.      Appeal. by  special leave  from the  Judgment and order

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dated 24th  November, 1977  of the  Punjab and  Haryana High Court in Criminal Revision No. 909 of 1977.      R. P. Sharma for the Appellants.      Hardev Singh for the Respondent.      The Judgment of the Court was delivered by      TULZAPURKAR,  J.-This   appeal  by   special  leave  is directed against  the order  of the  Punjab and Haryana High Court in Criminal Revision No. 909 of 1977, whereby the High Court confirmed  the order passed by the Additional Sessions Judge, Ludhiana  on October  19,  1977  directing  that  the attendance of the two appellants (Joginder Singh and 308 Ram Singh  be procured  and they  be ordered  to stand trial together with  three accused  who had  been committed to his Court to  stand their  trial for offences under ss. 452, 308 and 323 each read with 34 I.P.C.      The facts giving rise to the appeal may be stated thus: At the  instance of  one Mohinder  Singh a criminal case was registered at  Police Station  Dakha against Joginder Singh, Ram Singh  (the two  appellants), Bhan  Singh, Darshan Singh and Ranjit  Singh on the allegation that each one armed with a "Toki"  had entered  his house  on April 30, 1977 at 10.00 a.m. and  had caused a number of injuries to Ajaib Singh and Bir Singh who were present in the house, with the respective weapons. It  was further  alleged  by  Mohinder  Singh  that Darshan Singh  opened  the  attack  with  "Toki"  blow  from reverse side  on Ajaib  Singh’s head  whereas Ram  Singh had dealt him  blows with the butt of his gun and when Bir Singh tried to rescue Ajaib Singh, Joginder Singh and Ranjit Singh gave blows on his head and that on medical examination Ajaib Singh was  found to  have four injuries by blunt weapons and Bir Singh was found to have suffered one injury with a blunt weapon. During  the investigation  the police found Joginder Singh and  Ram Singh  (the appellants)  to be  innocent and, therefore a  charge-sheet was  submitted by  the police only against the  remaining three  accused  Bhan  Singh,  Darshan Singh and  Ranjit Singh.  The learned  Magistrate who held a preliminary inquiry  committed the three accused Bhan Singh, Darshan Singh and Ranjit Singh to the Sessions Court and the learned Additional  Sessions Judge, Ludhiana, framed charges against  the   three  accused   for  offence:,   under   ss. 452/308/323 read with s. 34 I.P.C. but at the trial evidence of Mohinder  Singh and  Ajaib Singh  was recorded during the course of  which both  of them implicated Joginder Singh and Ram Singh  in the  incident. Thereupon  at the  instance  of Mohinder Singh,  the Public  Prosecutor moved an application before the  learned Additional  Sessions Judge for summoning and trying Joginder Singh and Ram Singh along with the three accused,  who   were  already   facing  their   trial.   The application was  opposed by  the  counsel  for  the  accused principally on  the ground  that the  Sessions Judge  had no jurisdiction or  power to  summon  the  two  appellants  and direct them  to be  made accused  to stand their trial along with three  accused because  they had  neither been  charge- sheeted  nor   committed  and  the  Sessions  Court  had  no jurisdiction or  power directly  to take  cognizance against them in  respect of any offences said to have been committed by them. The learned Additional Sessions Judge negatived the said contention  and presumably  exercising his powers under s. 319  of the  Code of  Criminal Procedure,  1973 passed an order on  October 19,  1977 directing that the attendance of the two appellants 309 be procured  and further  directing that  they should  stand their trial  together  with  the  three  accused.    Feeling

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aggrieved by  this order  the appellants  filed  a  Criminal Revision Application  No. 909/1977 to the High Court but the High court  dismissed the Revisional Application on November 24,1977. The appellants have come up in appeal to this Court by special leave.      Counsel for  the appellant  raised two  contentions  in support of  the appeal.   In  the first  place relying  upon sections 193  and 209  of the  Code  of  Criminal  Procedure counsel contended  that there  was a  bar to  the  Court  of Sessions taking  congnizance of  any offence  as a  Court of original jurisdiction  unless the  appellants were committed to it  by a Magistrate under the Code and it was pointed out that admittedly  in the  instant case  though the F.I.R. had involved the  two appellants  in the  alleged  incident,  on investigation the  police had found no material against them with the result the police had submitted a charge-sheet only against the  three accused  and not  the appellants and even the Committal  Order passed  by the  Magistrate was  only in respect of the three accused and, therefore, it was not open to the  learned Additional Sessions Judge, Ludhiana, to take the impugned  action  against  the  appellants.    Secondly, counsel contended  that the  only provision  in the Criminal Procedure Code  which empowered the Court to try anybody not prosecuted by  the police, was to be found in s.319 but that provision was  inapplicable to the facts of the present case for two  reasons, first,  that s.319  in so  far  as  it  is applicable  to   Sessions  Court  would  be  subject  to  or subordinate to s.193 and second, the phrase " any person not being the  accused "  occurring in the section excludes from its operation an accused who had been released by the police under s.169  of the Code. and had been shown in column No. 2 of the  charge-sheet.   Reliance was  placed by  the counsel upon a  decision of the Andhra Another(1) On the other hand, counsel for  the respondents contended that there has been a change in  the phraseology  in ss.193 and 209 of the Code of Criminal Procedure,  1973  as  compared  to  the  equivalent provisions contained  in the old Code with the result it was not the  accused   but the  case which  got committed to the Court of  Sessions and  once the  Court of Sessions had upon such commitment  seisin of  the case  it was  open to  it to exercise the  power under  s.319.  It was further urged that there was no warrant to read s.319 subject or subordinate to s.193 and  that it  covered case  of suspects  like the  two appellants and,  therefore, the  High Court   was  right  in upholding the  order  of  the  learned  Additional  Sessions Judge, Ludhiana.      (1) 1977 Crl. L. J. 415. 310      The real question centres around the scope and ambit of s. 319 of the Code of Criminal Procedure 1973, under which a power has  been conferred  upon a  criminal Court  to add  a person, not  being the  accused before  it and  against whom during  the   trial  evidence   comes  forth   showing   his involvement in  the offence, as an accused and try him along with those  that are being tried and the question is whether a Sessions  Court can add such a person as an accused in the absence of  any committal  order having  been passed against him ?  Sub-ss. (1)  and (4)  of s.  319 are material in this behalf and the said provisions run thus:      "319. Power  to proceed against other persons appearing to be guilty of offence.           (1) 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

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    with the  accused, the  Court may  proceed against such      person  for  the  offence  which  he  appears  to  have      committed.      ......................................       ............ ...... .............. .           (4) Where  the Court  proceeds against  any person      under sub-section ( I ), then-      (a)  the proceedings in respect of such person shall be           commenced afresh, and the witnesses re-heard; s      (b)  subject to  the provisions of clause (a), the case           may proceed  as if such person had been an accused           person when  the  Court  took  cognizance  of  the           offence  upon  which  the  inquiry  or  trial  was           commenced."      Under the  1898 Code the equivalent provision was to be found s.  351(I) under which it was provided that any person attending a  criminal Court,  although not  under arrest  or upon a  summons, may  be detailed  by  such  Court  for  the purpose of  inquiry into  or trial  of any  offence of which such Court can take cognizance and which, from the evidence, may appear  to have  been committed,  and may  be  proceeded against as  though he  had been arrested or summoned; sub-s. (2) provided  that in such a situation the evidence shall be re-heard in  the presence  of the  newly added accused. With regard to this old provision, the Law Commission in its 41st Report (vide  para 24.80)  observed that the power conferred upon a  criminal Court thereunder could be exercised only if such person  happened to be attending the Court and he could then be  detained and  proceeded against,  but there  was no express provision in section 351 for summoning such a person if he  was not  present in  Court, and,  therefore, a fairly comprehensive pro vision was recommended which now forms the subject-matter of the 311 present section  319(1). The Law Commission further observed in its  said Report  (vide para  24.81) that the old section 351 assumed  that the Magistrate proceeding under it had the power of  taking cognizance  of the new case but did not say in what  manner cognizance  was taken  by the Magistrate and the question  was whether  against the  newly added accused, cognizance will  be supposed  to  have  been  taken  on  the Magistrate’s own  information under  section 190(1)  (c)  or only in  the manner  in which  cognizance was first taken of the offence  against the  other accused and the question was important because  the methods  of inquiry  and trial in the two cases  differed; the  Law Commission  felt that the main purpose of this particular provision was that the whole case against  all   known  suspects   should  be  proceeded  with expeditiously  and  convenience  required;  that  cognizance against the  newly added accused should be taken in the same manner as  against the other accused and the Law Commission, therefore,  proposed   that  a   new  provision   should  be incorporated providing  that there  will be no difference in the mode  of taking  cognizance if a new person was added as an accused during the proceedings and that is how clause (b) of sub-s.  (4) of s. 319 came to be enacted as set out above which  incorporates   a   deeming   provision.   The   above recommendation of  the Law  Commission in  its  41st  Report clearly brings  out the  true scope  and ambit  of the power that was  intended to  be conferred  upon a  criminal  Court under the present section 319(1) .      A plain  reading of  section 319(1),  which  occurs  in Chapter XXIV dealing with general provisions as to inquiries and trials,  clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will

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have the  power to  add any  person, not  being the  accused before it,  but against  whom  there  appears  during  trial sufficient  evidence   indicating  his  involvement  in  the offence, as an accused and direct him to be tried along with the other  accused, but the question is whether it has power to do  so without there being a committal order against such person ?  In this  context the provisions of ss. 193 and 209 of the  present Code  vis-a-vis  the  equivalent  provisions under the  old Code  will have to be considered. Section 193 and s. 209 of the present Code run as follows:           "193. Cognizance of offence 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."           "209. Commitment  of case to Court of Session when      offence is  triable exclusively  by it.-When  in a case      instituted on 312      a police report or otherwise, the accused appears or is      brought before  the Magistrate  and it  appears to  the      Magistrate that  the offence  is triable exclusively by      the Court of Session, he shall-           (a)  commit the case to the Court of Session:           (b)  subject  to   the  provisions   of  this  Cod                relating  to  hail,  remand  the  accused  to                custody during?  and until the conclusion of.                the trial;           (c)  send to that Court the record of the case and                the documents and articles, if any, which are                to be produced in evidence;           (d)  notify   the   Public   Prosecutor   of   the                commitment  of  the  case  to  the  Court  of                Session." It will  be noticed  that both  under s.  193 and s. 209 the commitment is of ’the case’ and not of ’the accused’ whereas under the  equivalent provision  of the  old  Code  viz.  s. 193(1) and  s. 307A it was the accused who was committed and not ’the  case’. It is true that there cannot be a committal of the  case without  there being  an accused per son before the Court, but this only means that before a case in respect of an  offence is  committed  there  must  be  some  accused suspected to  be involved  in the crime before the Court but 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 s. 193 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  conferal of  the power  under s. 319(1) upon  the Sessions  Court would be rendered nugatory. Further section  319(4) (b)  enacts a  deeming provision  in that behalf  dispensing  with  the  formal  committal  order against the  newly added accused. Under that provision it is provided that  where the  Court proceeds  against any person under sub-s.(1)  then the case may proceed as if such person had been an accused person when the Court took cognizance of the offence  upon which  the inquiry or trial was commenced; in other  words, such person must be deemed to be an accused at the  time of  commitment because  it is  at that point of time the   Sessions  Court in  law takes  cognizance of  the

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offence.      In the  above context  it will  be useful to refer to a decision of  this Court  in  Raghubans  Dubey  v.  State  of Bihar(1) where this Court has (1) AIR 1967 SC 1167. 313 explained what  is meant by taking cognizance of an offence. The appellant  was one  of the  15 persons  mentioned as the assailants in  the  First  Information  Report.  During  the investigation the  police accepted  the appellant’s  plea of alibi and  filed  a  charge-sheet  against  the  others  for offences under  ss. 302, 201 and 149 I.P.C., before the Sub- Divisional   Magistrate.   The   Sub-Divisional   Magistrate recorded that  the appellant  was discharged and transferred the case  for inquiry  to  another  Magistrate,  who,  after examining two witnesses, ordered the issue of a non bailable warrant against  the appellant,  for proceeding  against him along with  the other accused under s. 207A of the old Code. The order  was confirmed  by the Sessions Court and the High Court and in further appeal to this Court it was held first, that there  could be no discharge of the appellant as he was not  included  in  the  charge-sheet  submitted  before  the Magistrate by  the police  and, second,  that the  appellant could be proceeded against along with other accused under s. 207A Cr.  P.C. and  this Court  confirmed the  order of  the Magistrate. One  of the  contentions urged before this Court was that  the Magistrate had taken cognizance of the offence so far  as the  other accused  were  concerned  but  not  as regards the  appellant and  with regard  to this  contention (Sikri J. as he then was) observed as follows:           "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  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. As pointed out by this Court      in Pravin  Chandra Mody  v. State  of Andhra Pradesh(1)      the term  "complaint" would  include  allegations  made      against  persons   unknown.  If   a  Magistrate   takes      cognizance under  s. l  90(1) (a)  on the  basis  of  a      complaint of  facts he  would  take  cognizance  and  a      proceeding would  be instituted  even though  . persons      who had  committed the  offence were  not known at that      time. The  same position  prevails, in  our view, under      s. 190(1)(b)."      It will  thus appear  clear that under section 193 read with s.  209 of  the Code  when a  case is  committed to the Court of  Sessions in  respect of  an offence  the Court  of Sessions takes cognizance of the offence and (1) [1965] 1 S. C. R. 269. 2-978SCI/78 314 not of  the accused  and once the Sessions Court is properly seized of  the case  as a  result  of  the  committal  order against some accused the power under s. 319(1) can come into play and  such Court  can add  any person,  not  an  accused before it,  as an  accused and  direct him to be tried along with the  other accused  for the  offence which  such  added accused appears to have committed from the evidence recorded at the trial. Looking at the provision from this angle there would be  no  question  of  reading  s.  319(1)  subject  or

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subordinate to s. 193.      As regards  the contention  that the phrase "any person not being  the accused" occuring in s. 319 excludes from its operation an  accused who  has been  released by  the police under s.  169 of the Code and has been shown in column No. 2 of the  Charge-sheet, the contention has merely to be stated to be  rejected. The  said  expression  clearly  covers  any person who  is not  being tried already by the Court and the very purpose  of enacting  such a  provision like  s. 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  come before  the Criminal Court are included in the said expression.      The  decision   of  Andhra   Pradesh  High   Court   in Patanachala China  Lingaiah v. The State and Another (supra) relied upon  by the  appellants has erroneously regarded the change in phraseology made in ss. 193 and 209 of the current Code as  inconsequential and  has further failed to note the impact of  the deeming  provision introduced  for the  first time in  cl. (b) of s. 319(4). That decision must be held to be erroneous.      In our view, the High Court was right in confirming the order  passed  by  the  learned  Additional  Sessions  Judge against the  two appellants  and the  appeal is,  therefore, dismissed. N. V. K.                                   Appeal dismissed. 315