T.N. Singh, J.
1. This case is concerned with a small Incident of burglary but it tarries a big burden of a fundamental question. What is the ambit of powers and jurisdiction of a criminal Court to add as an ace used any person to stand trial for an offence for which he is not charge-sheeted by the police? The question is indeed fundamental in the sense that criminal Courts exist, to try offenders for the protection of society. While powers and jurisdiction of the courts are circurnsribed by the provisions of the Code the question is how those provisions which have a bearing on this fundamental duty of the courts are to be interpreted.
2. On 6-2-79 an information was lodged by the proprietor of Hind Pharmacy, Jorhat, with the officer-in-charge of Jorhat P. S. in which it was stated that there was a burglary in his shop during the preceding night. On the basis of this FIR the police made investigation and submitted charge-sheet dt 10-4-79 under Sections 457/380/411 IPC in the court of Chief Judicial Magistrate, Jorhat, whereupon cognizance, was taken on 2-5-79 by the court. In the charge-sheet one Swapan Dutta and another Radheshyam Paul were shown as accused in custody and the petitioner's name appeared therein as a witness. Along with the charge-sheet two seizure lists were also filed. From one of the seizure lists it appears that on being 'led by the arrested accused Swapan Dutta'' a search was conducted on 28-2-79 in the 'shop (Pharmacy) of Anupam Chakraborty', (the petitioner). From the seizure list it also appears that the seized articles were identified by one Mihir De, son of H.C. De Proprietor, Hind Pharmacy, Jorhat.
3. On 6-6-79 the learned Magistrate passed order in G.R. Case No. 218/79 and framed charges under Sections 457/380 IPC against accused Swapan Dutta and under Section 411 IPC against accused Radheshyam Paul. On 4-7-79 an application was filed by the Assistant Public prosecutor stating that there was sufficient material for framing charge under Section 411 IPC against the petitioner who was not sent up by the police. It was further stated that
non-joinder of the said accused will highly prejudice the prosecution case and it was prayed that the petitioner may be added as an accused in the case and be directed to be produced. Under what provision of law the application was filed does not appear on the face of it. However, the learned Magistrate entertained the application and passed the following order on that date which is impugned in this revision petition:
Accused Radheshyam is present. Accused Swapan Datta is produced from jail Hajat. Witness has not come. Slip from the Court has been returned un-served. The prosecution states that there is evidence against one Anupam Chakra-horty and prayed him to he brought as accused for trial. During Police investigation the said accused was not arrested. From the seizure list it is found that during investigation some medicines are recovered and seized from the pharmacy of the said accused. Cognizance has been taken against, accused Anupam in this case. Issue summons against this accused fixing 1-8-79. Fix 18-7-79 for appearance of the under-trial prisoner (Hajati) Accused Swapan may go on bail for Rs. 2000/-.
4. It has been contended on behalf of the petitioner by his learned Counsel Mr. S.K. Sen that the above order is without jurisdiction inasmuch as such a premature order was not contemplated by the provisions of Section 319, Cr. P. C. which permits any person to be added as an accused in any trial by the court only in such cases where from the evidence adduced in the case it has appeared to the court that the person concerned had committed any offence for which he could be tried together with the other accused arraigned in the case. In the instant case there being no 'evidence' before the court the order issuing summons against the petitioner was clearly without jurisdiction inasmuch as the learned trial court issued process merely on a perusal of the seizure list which could not be regarded as an 'evidence' in the case, Mr. Sen has drawn my attention to the definition of the term 'evidence' in Section 3 of the Evidence Act and it is his contention that 'documents' alluded to in Clause (2) of the said provision should be read as document which are 'proved'. Indeed, Mr. Sen contends rightly in my opinion, that Clauses (1) and (2) of the said definition clause should be read together and such documents as are produced and as are proved by the witnesses in the court could only be regarded as 'evidence'.
Mr. Sen further contends, the fact that there was no 'further investigation' under Section 17.3(8) Cr. P. C. is apparent on the face of the record. The learned Magistrate therefore did not acquire jurisdiction to issue process under Section 204, Cr. P. C. against the petitioner as no supplementary charge-sheet was filed in the case as contemplated by Section 173(8). The Magistrate had, therefore, no material to be satisfied that there was 'sufficient ground for proceeding'' against the petitioner. Indeed, it is his contention that cognizance could be taken against the petitioner if he was named in such supplementary charge-sheet and process could then only be issued against him.
Mr. Sen's core argument was however based mainly on the interpretation of Section 319 on the assumption that the impugned order was passed thereunder but he further contended that this Court should, even otherwise, exercise its powers under Section 482 to quash the order as the seizure list showed recovery merely of some patent medicines which are available in any pharmacy.
5. Mr. C. R. De, the learned Public Prosecutor opposes this application and submits that as trial has not commenced and no charge having yet been framed against the petitioner, this application is premature. At this stage this Court will not interfere to pre-empt the decision of the learned court below which has yet to decide whether there was a prima facie case against the petitioner after he is arraigned as an accused. He also contends that there was nothing to show that the impugned order was passed under Section 310 and that in any event Section 319 had no application to the facts of this case. His contention is that the term 'evidence' which occurs in Section 319 refers only to the stage of 'trial' and in this case the trial has not yet begun. He has also made a faint attempt to suggest that Section 319 applies only in case of trials as, according to him, the word 'or' has to be read in a disjunctive sense and therefore the term 'evidence' should not be read as qualifying both 'inquiry' and 'trial'.
6. It must however be stated at this stage that Mr. Sen has very fairly placed before me all relevant decisions of their Lordships of the Supreme Court on which he could lay his hands. Indeed, the decision reported in : 1979CriLJ333 , Joginder Singh v. Punjab cited by him was also relied on by Mr. De. The other two decisions placed before me are those reported in AIR 1907 SC 1167 : 1967 Cri LJ 1081 Raghubans v. State of Bihar and : 1965CriLJ250 Pravin Chandra v. State of A. P. Mr. Sen has also relied on the decision in : 1980CriLJ564 Hazarilal v. State in which it was held that Section 3 of the Evidence Act does not enable a court to take into consideration matters, including statements whose use is statutorily barred, in view of the definition therein of the term 'proved'. In that case the conviction was challenged and these observations were made in that context. That apart, the submission of Mr. Sen on this aspect of the matter based on the definition of the term 'evidence' has already been accepted by me as observed above.
7. It is true that the provision of Section 319 came to be considered in Joginder Singh's case 1979 Cri LJ 333(SC) (supra) but in that case only two specific contentions were raised before the court which were albeit rejected. In that case the Sessions Court had framed charges against the accused committed on the basis of the charge-sheet submitted by the police. At the trial in the Sessions Court some witnesses in their evidence implicated two more persons who were not sent up by the police and the prosecution submitted an application for summoning them which was allowed. In challenging the order passed by the Sessions Court, which was upheld in the High Court, it was contended firstly that in the absence of any committal order against those persons the impugned order could not be passed under Section 319 in view of the provisions of Sections 193 and 209. Next it was contended that the expression 'any person not being the accused' occurring in Section 319 excluded from its operation an accused who was released by the police under Section 109, Both the contentions were rejected by their Lordships of the Supreme Court and the order summoning the accused not sent up by the police was upheld. Significantly, a reference was also made to the decision in the Raghubans case 1967 Cri LJ 1081(SC) (supra) and relying on it the court, observed (at p. 338) :
It will thus appear clear that under Section 193 read with Section 209 of the Code when a case is committed to the Court of Session in respect of an offence the Court of Session takes cognizance of the offence and 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 Section 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.
8. In the above decision it is nowhere laid down that Section 319 is the sole repository of the power of the court to add an accused at any stage of an inquiry or a trial. Indeed, it appears clear from the above extract that Section 319 comes into play in a case at a stage when evidence is recorded at the trial. Indeed, on the facts of the case, earlier in the judgment, it was observed that the impugned order was 'presumably'' passed under Section 319, Whether and how the court shall act in such matters at an earlier stage of the proceeding was not a question agitated before the court and therefore no view thereon was expressed either. However, it was reiterated that when cognizance is taken, it is taken in respect of an offence, not of an accused.
9. In my view the decision in the Raghubans case 1967 Cri LJ 1081(SC) (supra) has a more direct bearing on the facts of this case. In that case the order passed at the committal stage for adding as an accused a person not sent up by police was challenged, also without success. On 5-4-61 cognizance of the case was taken and it was transferred for inquiry for committal. On 11-4-61 the prayer on which the impugned order was passed was made by the prosecution. When evidence was taken on 2-5-61 during inquiry it appeared that one of the witnesses implicated the appellant. The learned Magistrate allowed on that date the prayer made in the application filed earlier holding, inter alia, that the appellant was named in the FIR and also by the witnesses examined by the police, besides being named in evidence given in. the court. Neither the application nor the order carried any label indicating the supporting legal provisions therefor. The validity of the order was sustained by their Lordships of the Supreme Court in the following terms (at p. 1084) :
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...If a Magistrate takes cognisance under Section 190 (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 Section 190(1)(b).
10. It may be mentioned here that the passage extracted above was also quoted and relied on in Joginder Singh's ease 1979 Cri LJ 333(SC) (supra). However, it may further be pointed out that in the Raghubans case 1967 Cri LJ 1081(SC) (supra) it was further observed that the view taken in AIR 1924 Sind 71 : 1925-26 Cri LJ 181(FB) Mehrab v. Emperor AIR 1902 Cal 133 : 1952(1) Cri LJ 283 Saifar v. State AIR 1964 Punj 351 : 1963(2) Cri LJ 204 Fatta v. State and Ali Ullah v. State 1963(2) Cri LJ 66(All) was in line with the view expressed in the case by their Lordships. Thus those decisions received the approval of their Lordships and the view taken in those decisions was even restated therein succinctly:.When a Magistrate takes cognizance under Section 190 on a police report he takes cognizance of the offence and not merely of the particular persons named in the charge-sheet and, therefore, the Magistrate is entitled to summon additional accused against whom he considers that there was good evidence, after perusal of the statements recorded by the police under Section 161 and the other documents referred to in Section 173 even without examination of witnesses in court.
11. In view of the categorical observation of their Lordships of the Supreme Court extracted above I do not consider it necessary to refer to the other decisions. It is to be noted that in the above decisions no reference is to be found to the provisions of Section 319 and the power of the Court to add an accused is considered inherent in the process of taking cognizance of an offence. What S. K. Sen, J. speaking for the court, observed in Saifar's case 1962(1) Cri LJ 283(Cal) (supra) also bears extraction (at p. 284):
Thus, before examination of any witness by perusing the statements recorded by the police under Section 161 of the Cr. P. C. and other documents referred to in Section 173... the Magistrate has to decide whether there is a prima facie case against the person sent by the police ...the Magistrate can also decide on the same materials whether there is a prima facie case against other person not sent up by the police and after the Magistrate is so satisfied certainly the Magistrate is entitled to summon them...if he summons additional persons not sent up by the police he is still not taking cognizance under Clause (c) of Section 191 but acting under the cognizance which he has already taken under Clause (b).
12. On the strength of the authorities discussed above it can be fairly concluded that Section 319 should be read as an enabling provision and it should not be considered to be exhaustive of the powers of the court to add an accused at any stage of any inquiry or trial. It is trite law that every statute must be interpreted ex visceribus actus. Because, there should not be any contradiction between one part of the statute and another. It is settled law that all constituent parts of a statute are to be taken together and to be construed in the light of the general purpose and object of the Act See : 4SCR1 Aswini Kr. v. Arvinda Bose : 1953CriLJ1105 Popat Lal v. State of Madras : : (1957)IILLJ1SC Newspaper Ltd. v. State Industrial Tribunal. What is the general purpose and object of a court in taking cognizance of an offence under the Criminal P, C. has never been in doubt and this position has been made clear in the discussion of the decisions in the preceding paragraphs.
13. It also bears emphasis that a plain reading of Sub-section (1) of Section 319 suggests that it comes into play in any inquiry or trial at the stage when the evidence is being taken or has already been taken. Indeed, the language and purport of Sub-sections (2) and (3) thereof also lend weight to this interpretation. There is no warrant to read it as a debarring provision in the sense that a court acting under the Criminal P. C. cannot, without taking any evidence, add as an accused any person to stand trial for an offence for which he was not charge-sheeted with others. That apart, the legislative history of these provisions may also be taken into consideration to buttress this view. In the old Code the provision appeared in Section 351. What the Law Commission said justifying the need for the amendment thereof at para 25.81 of its 41st Report is relevant. It is stated therein, that Section 351 'assumes that the Magistrate proceeding under it has power of taking cognizance of the new case.' Why the amendment of the provision was necessary is also stated. It is observed that Section 351 did not say in what manner cognizance is taken thereunder. Therefore, the position had to be made clear because, as the Commission observed, 'the main purpose of the particular provision is, that that the whole case of all known suspects should be proceeded with expeditiously, and convenience requires that cognizance against the newly added accused should be taken in the same manner as against the other accused.' Indeed, the amendment gave effect to this object which is reflected in Sub-section (4) of Section 319(new). Thus, it appears clear that neither the old provision (S. 351) nor the new provision (S. 319) ought to be read as a debarring provision. Indeed, it is also clear that the amendment has not brought about any charge in this respect and therefore the law laid down by their Lordships of the Supreme Court in the Raghubans case 1967 Cri LJ 1081(supra) should be considered as holding the field even after the amendment.
14. In my view, there, Section 319 operates in its own field as observed above. It does not derogate from the general power of the court to act pursuant to cognizance taken under Section 190. Indeed, in Pravin Chandra's case 1965(2) Cri LJ 250 (SC) (supra) it was observed that cognizance was taken of an offence with a view to taking action under Code against persons who had committed an offence, whether such persons were known or not. Filing of a supplementary charge-sheet under Section 173(8) will not, therefore, alter the position as cognizance was already taken of the offence on the original charge-sheet. Therefore, in any inquiry or trial, at a stage when evidence is not being taken or has not been taken, it will be within the competence of the court to issue process under Section 204 when the court is satisfied, on the material placed before it, either from the original or from the supplementary charge-sheet, that there was 'sufficient ground for proceeding' against any person who was not already arraigned before it as an accused. In this connection reference may also be made to Section 14 of the General Clauses Act to establish firmly the position that power under Section 204 to issue process can be exercised 'from time to time as occasion requires'.
15. My attention has been drawn to a recent decision of this Court in Gunaram v. State of Assam Cri. Revn. No. 100 of 1981, decided on 27-7-82 : reported in 1983 Cri LJ 289) in which Section 319 Cr. P. C. came to be interpreted. In that case the order of the learned Sessions Judge allowing the petition filed before him under Section 319 for summoning some persons who were not charge-sheeted was challenged. The application was allowed without taking any evidence at the stage when the learned Sessions Judge 'was ready to open the trial'. The contention that the order was without jurisdiction was upheld by my learned brother Hansaria, J. who held that the order being 'founded only on police statement cannot be sustained' as in his opinion the power under Section 319 could be invoked by the court after it had taken some evidence. It was also held in that case that the learned trial Judge could decide whether or not to summon any other person as prayed for after some evidence was led so that the requirement of that section was sustained. It is clear that in that case the court was called upon merely to adjudicate upon the validity of an order passed expressly under the provisions of Section 319 which is not the case in the application before me. However, as observed by me in the foregoing discussion, I may only say in this connection that I have my doubts if the power and jurisdiction of the learned Sessions Judge in the matter of issuing process against any person not sent up by the police can be so curtailed or constricted as I am of the view that S, 319 is not the sole repository of such power. For the same reason, I may also add that the view taken by the Rajasthan High Court in 1982 Cri LJ 2341 Hukamaran v. State of Rajasthan does not appear to me to state the correct position in law.
16. In view of the foregoing discussion I have no hesitation to hold that the impugned order was perfectly legal and that it does not also suffer from any jurisdictional infirmity. There is, there-, fore, no scope for the exercise by this Court of its power under Section 401 Cr. P. C. in this case. I do not also consider it to be a fit case in which the extraordinary powers of this Court under Section 482 can be exercised at this stage which is exercised only when there is a gross failure of justice in any case to prevent the abuse of the process of the court. Indeed, interference at this stage will tantamount to usurping the jurisdiction of the court below which can, after the petitioner appears before it, take its own decision, after hearing him, as to whether or not a charge could be framed against him on the material available on record. Whether the seizure list disclosed a grave suspicion against him about his commission of any offence can be argued before him at the stage of consideration for charge.
17. In the result this application is dismissed. The rule is discharged and the stay order is vacated. The records of the case shall be sent down to the court below expeditiously for proceeding according to law.