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PETITIONER: RANJIT SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       22/09/1998

BENCH: K.T.THOMAS, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT THOMAS. J Leave granted. The issue raised in the  present  appeal  is  this  : Whether  Sessions  Court can add a new person to the array of accused in a case pending before  it  at  a  stage  prior  to collecting any  evidence?  The Sessions Judge before whom the said issue was first raised in this case held that  he  could do so on the strength of the decision of a two Judge Bench of this Court  in  Kishun  Singh Vs.  State of Bihar (1993 2 SCC 16).  Appellant, who was the accused so added challenged  the order in revision before the High Court of Punjab and Haryana and  a  learned  Single  Judge  who  heard  it, dismissed the revision following the ratio in Kishun  Singh  (supra)  which was re-affirmed  by  this  Court in Nissar Vs.  State of U.P. (1995 2 SCC 23).  While considering the  question  whether  a committing magistrate can exercise power under Section 319 of the  Code of Criminal Procedure (for short "the Code"), a two Judge Bench of this Court has,  in  Raj  Kishore  Prasad  vs. State  of  Bihar (1996 4 SCC 495) expressed reservation about the legal position propounded in Kishun Singh’s  case.    Now the  question  is directed to be considered by a larger Bench in the light of the reservation expressed  in  Raj  Kishore’s case.   Hence  this  appeal  came to be listed before a three Judge Bench. Facts,  barely necessary for disposal of this appeal, are following : On 24.12.1996, an FIR was  lodged  at  Rajkot  Police Station  (Punjab)  alleging that eight persons (including the present  a  pellant)  formed  themselves  into  an   unlawful assembly at  about  8  P.M.    and  on the exhortation of the appellant  one  of  the  members  of  the  unlawful  assembly snatched  away  the  rifle  of a gunman and fired at Chamkaur Singh who succumbed to the gunshot injuries later.    In  the rioting some other persons also sustained injuries.         After the case was committed to the Court of Sessions the  de  facto  complainant  (Darshan Singh who furnished the first information) filed a petition before the Session  Judge on  5-6-1997  praying  that appellant also be arraigned as an accused singh his exoneration  by  investigating  agency  was

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improper.  Learned  Sessions  Judge allowed the said petition and appellant was summoned as an accused in  the  case.  That order  of  the  Sessions Judge was challenged before the High Court but it was confirmed by the impugned order.         Shri  T.S.Arunachalam,  Senior   Advocate   for   the appellant  contended  that the only provision which enables a Sessions Court to add a new accused is  Section  319  of  the Code  and  powers  thereunder  could  be  invoked only on the strength  of  evidence  in  the  trial,  but  not  otherwise. According  to  the  learned senior counsel when investigating agency had found the appellant  innocent  the  court  has  no power to overrule that conclusion without additional material placed  before  the  court  in  the  manner permitted by law. Otherwise the purpose of requiring the investigating  officer to submit final report under Section 173 of the Code would be obliterated.  The  contingency  mentioned in the illustration cited by their Lordships in Kishun Singh’s case (supra) is  a rank  exception  which  need  not  be  taken into account for formulating a legal principle and even  otherwise  the  ratio laid   down   in  the  said  case  requires  reconsideration, contended the learned senior counsel. Shri R.S.   Sodhi, learned counsel who argued for the State  defended  the  impugned  order  on  the  premise  that Sessions   Court   has  such  powers  which  have  been  well recognized by this Court in Kishun Singh’s case as well as in Nissar Singh’s case (supra). Section 319 of the Code reads 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 with the accused, the Court  may  proceed            against  such  person  for  the  offence  which he            appears to have committed.            (2)  Where such person is not attending the Court,            he  may  be   arrested   or   summoned,   as   the            circumstances  of  the  case  may require, for the            purpose aforesaid.            (3)  Any person attending the Court, although  not            under arrest or upon a summons, may be detained by            such Court for the purpose of the inquiry into, or            trial  of,  the  offence  which he appears to have            committed.            (4) Where the Court proceeds  against  any  person            under sub-section (1) then -            (a)  the  proceedings  in  respect  of such person            shall be commenced afresh, and witnesses re-heard;            (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." The  said  provision is an improved form of its corresponding provision (Section 351) in the old Criminal  Procedure  Code, 1898.  The subtle change brought about in the present Section has been succiently delineated by Ahmadi, J (as his  Lordship then was) in Kishun Singh’s case in the following lines:            "It is, therefore, manifest that Section 319  of            the  Code is an improved version of Section 351 of            the old Code, the Changes  having  been  introduce            therein on the suggestion of the Law Commission to            make  it  comprehensive  so  that even persons not            attending the court can be arrested or summoned as

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          the circumstances of the case may require  and  by            deleting  the  words ’of which such court can take            cognizance’  and  by  adding  clause  (b)  it   is            clarified that the implement of a new person as an            accused  in  the pending proceedings will not make            any difference insofar as taking of cognizance  is            concerned." Now   it   is  well  neigh  settled  that  "evidence" envisaged in Section 319 of the Code is the evidence tendered during trial of the case if the offence is triable by a court of Session. The material placed before  the  committal  court cannot  be  treated  as  evidence collected during enquiry or trial. (vide Rajkishore Prasad Vs. State of Bihar, 1996 4 SCC 495). In Kishun Singh’s case the above position, though  in a   different   context  has  been  highlighted  through  the following observations:            "On a plain reading of sub-section (1) of  Section            319 there can be no doubt that it must appear from            the evidence tendered in the course of any inquiry            or trial that any person not being the accused has            committed  any offence for which he could be tried            together with the accused. This  power,  it  seems            clear  to  us,  can  be  exercised  only  if it so            appears from the evidence at  the  trial  and  not            otherwise.     Therefore,     this     sub-section            contemplates existence of some evidence  appearing            in  the  course  of  trial wherefrom the Court can            prima facie conclude that the person not arraigned            before it is also involved in  the  commission  of            the  crime  for  which  he can be tried with those            already named by the police." In fact learned Judges  were  reiterating  the  legal position  abumbrated  by a three Judge Bench of this Court in Joginder Singh and anr. Vs. State of Punjab and anr. (1979  1 SCC 345). Having  found  so  an  endeavour  was  made in Kishun Singh’s case to see whether power to add any other person  to the  array of accused can be traced out from the Code be hors Section 319, if the Judge  finds  that  besides  the  accused arraigned  before him the complicity of another person in the commission of the crime has prima  facie  surfaced  from  the material before  him.  The fear expressed was that if such an approach is not adopted, the matter will slip into the  hands of  the  investigation officer who may or may not send up for trial an offender for trial  even  if  prima  facie  evidence exists.  After detailed discussion their Lordships held thus:            "On  the  Magistrate  committing  the  case  under            Section  209  to  the  Court of Session the bar of            Section 193 is lifted thereby investing the  Court            of Session complete and unfettered jurisdiction of            the   court   of  original  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 faie be gathered from the material available            on record."                                  (underlining supplied) It is     regarding  the  last  part  of the aforesaid observations that serious  arguments  were  addressed  by  the counsel  urging reconsideration thereof. We have no doubt that with  the  committal  order  Session  Court  gets   unfettered jurisdiction  to  take  cognizance of the offences involved in the  case.  But  the  crucial   question   is   whether   such jurisdiction  would  envelop powers to summon any person as an

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accused other than those covered by the  committal order. The change made by the new Code in Section 209 is that it  is  the  "case" which is committed to the Court of Session and not the accused.  But while committing  the  case  to  the Court of Session the committing court has a further duty which is in  respect  of  the accused in the case.  Section 209 says that the committal court has to "remand the accused to custody until such commitment has been made" subject to the provisions relating to bail.  The accused referred to in the  section  is the  accused  against  whom  the Magistrate has already issued summons or warrant under Section 204 (1) (b) of the Code.  The said clause reads thus:           "If in the opinion of a Magistrate taking cognizance           of  an  offence  there  is  sufficient  ground   for           proceeding, and the case appears to be -           (b)   a warrant-case, he may issue a warrant, or, if           he thinks fit, a Isummons, for causing  the  accused           to  be brought or to appear at a certain time before           such Magistrate or if he has no jurisdiction himself           some other Magistrate having jurisdiction". The said power can  be  exercised  in  respect  of  any offence  in  warrant  cases whether it is triable by a Court of Session or  a  magistrate.  Once  the  accused  is  before  the magistrate,  in  the  next  stage  he  has  to supply copies of documents referred to in Section 207 if it is a case instituted on police report, and otherwise the documents  referred  to  in Section  208  of  the  Code. We have to read Section 209 in the aforesaid sequences of provisions.            "209 Commitment of case to  Court  of  Session  when            offence is triable exclusively by it. When in a case            instituted  on  a  police  report  or otherwise, the            accused appears or is brought before the  Magistrate            and  it appears to the Magistate that the offence is            triable exclusively by  the  Court  of  Session,  he            shall-            (a)   commit, after complying with the provisions of            section 207 or section 208, as the case may be,  the            case  to  the  Court  of Session, and subject to the            provisions of this Code relating to bail, remand the            accused to custody until such  commitment  has  been            made;            (b)  subject to the provisions of this Code relating            to  bail,  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." Commitment  of  a  case to the Court of Session will be complete only on compliance with the formalities enumerated  in Section  209  which  includes  dealing  with the accused in the manner mentioned therein. Now, we may look at the procedure for trial before  the Court  of  Session  as  laid  down in Chapter XVIII of the Code which contains practically all the provisions relating to  such trial. The commencing Section 225 of the Chapter only says that prosecution shall be conducted by a Public Prosecutor. The next Section  226  says that "when the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case  by  describing the  charge  brought  against  the  accused and stating by what evidence he proposes to prove the guilt of the accused." It is clear that during the said stage the Court of Session can deal  only  with the accused who is referred to in Section 209.

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The accused who can appear or can be broght  before  a  Session Court  at that stage is only that accused who is referred to in Section 209.  Section 227 deals with the power of the court  to decide whether  that accused is to be discharged or not.  If he is not discharged the Session  Court  is  obliged  to  frame  a charge  against  that  accused  as per Section 228 of the Code. Thereafter the plea of that accused  has  ton  be  recorded  as enjoined by  Section  229.    The  stage of evidence collection commences only next.  (vide Sections 230 & 231 of the Code.)  So from the stage of committal till the  Session  Court reaches  the  stage  indicated  in Section 230 of the Code that Court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then  for  the Session  Court  to  add  any  other  person to the array of the accused. Thus 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.  We are unable to find any other power for the Session Court to  permit addition  of new person or persons to the array of the accused. Of course it is not necessary for the court to wait  until  the entire evidence is collected for exercising the said powers. But then one more question may survive.  In a situation where the Session Judge notices from the materials produced but before any evidence is taken, that any other person should also have  necessarily  been  made  an  accused  (without  which the framing of the charge would be defective or that it might  lead to  miscarriage  of  justice)  is  the Session Court completely powerless to deal with such a contingency?  One such  situation is cited by the learned Judges through an illustration narrated in Kishun Singh’s case (supra) as follows:            "Where two persons A & B attack and kill X & it is            found  from  the  material placed before the Judge            that the fatal blow was given  by  A  whereas  the            blow inflicted by B had fallen on a non-vital part            of the  body  of X.  If A is not challenged by the            police, the Judge may find it difficult to  charge            B  for  the murder of X with the aid of Section 34            IPC.  If he cannot summon A, how does he frame the            charge against B?" Another instance  can be this.  All the materials produced by the investigating agency  would  clearly  show  the  positive involvement  of  a  person  who was not shown in the array of accused due to some inadvertance or  ommision.    Should  the court  wait  until  evidence  is collected to get that person arraigned in the case?  Though such situations may arise  only  in  extremely rare  cases  the Session Court is not altogether powerless to deal with such situations to prevent miscarriage of  justice. It  is then open to the Session Court to send a report to the High Court detailing the situation so that the High Court can in its  inherent  powers  or  revisional  powers  direct  the committing  Magistrate  to  rectify  the  committal  order by issuing process to such left out accused. But  we  hasten  to add  that  the  said  procedure  need be resorted to only for rectifying or correcting such grave mistakes. For the foregoing reasons we  find  it  difficult  to support  the  observations in Kishun Singh’s case that powers of the Session Court under Section 193 of the  Code  to  take cognizance  of the offence would include the summoning of the person or persons whose complicity in the commission  of  the trial   can  prima  facie  be  gathered  from  the  materials available on record.

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In the result we set aside the impugned order of  the Session Court adding the appellant as an accused in the case. However,  we make it clear that we do so without prejudice to the powers of Session Court to add any person in the array of the accused under Section 319 of the Code. The appeal is thus allowed.