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L. Muniswamy and ors. Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1976CriLJ763
AppellantL. Muniswamy and ors.
RespondentState of Karnataka
Excerpt:
.....is not tenable. - it is clearly the physical act or deed the act as alone, not even the actus reus, that caused the death of the victim, in the instant case the stabbing of the victim, krishna, by the 2nd end 3rd accused, and neither the mental element accompanying these physical acts nor the consequence of krishnan's death, is part of those acts......has power to take cognizance of any offence when a case has been committed to it.under the old code a magistrate holding a committal enquiry, frames a charge or charges and passes an order of commitment. the court of session records the plea of the concerned accused. under the new code, a magistrate holding such an enquiry, is not required to go into the details of the material placed before him, conduct a detailed enquiry, and frame a charge or charges while passing an order of commitment. that power a magistrate exercises under the old code is vested in the court of session as per the provisions of the new code. it is incumbent on the court of session, under the new code, to find out whether there are or not sufficient grounds for proceeding against the eceused, and if in the.....
Judgment:
ORDER

M.S. Nesargi, J.

1. The petitioners in Criminal Petition No. 248 of 1975 are A-10 and A-13 to A-15 in Sessions Case No. 4 of 1975 in the court of the First Additional Sessions Judge, Bangalore. The petitioners in Criminal Petition No. 253 of 1975 are A-17 to A-20 in the said sessions case. The petitioners will be designated in the course of this order as stated above.

2. At about 7.00 A. M. on 6-12-1973, Ajit Dutt C. W. 2 was stabbed while he was in the Central Avenue of the colony of the Indian Telephone Industries Limited, Bangalore. The incident was reported to the police and investigation commenced. On investigation it was found that A-2 and A-3 to A-6 had the common intention of committing the murder of C. W. 2 and in pursuance of that A-2 had stabbed and A-l, A-7 and A-14 had abetted the commission of the offence. It was also disclosed during the investigation that between 20-9-1973 and 6-12-1973 the 20 accused persons arraigned in the charge-sheet, had conspired to murder C. W. 2. After investigation was completed, a charge-sheet was filed alleging that A-2 to A-7 were the assailants and that all the 20 accused had committed offences punishable under Sections 324, 326 and 307 all read with Section 34 of the Indian Penal Code, and further that A-l and A-7 and A-14 had committed offences punishable under the aforesaid Sections 1 with the aid of Section 109 of the Indian Penal Code. The Metropolitan Magistrate, V Court, Bangalore, on finding that one of the offences was exclusively triable by the Sessions Court, committed all the 20 accused under Sec, 209 of the Code of Criminal Procedure, 1973 (to be hereinafter referred to as the new Code), and stated in his order that offences that appeared to have been committed by them were under Sections 324, 326 and 307 all read with Section 34 of the Indian Penal Code.

3. When the prosecution opened its case before the First Additional Sessions Judge, Bangalore, the prosecution contended that a charge under Section 120-B of the Indian Penal Code also ought to be framed while the defence contended that there were no sufficient grounds for proceeding against A-10 to A-20 for any of the offences and they ought to be discharged. The First Additional Sessions Judge passed his order dated 8-8-1975. By that order, he discharged A-ll, A-12 and A-16 and also held that a charge under Section 120-B of the Indian Penal Code in regard to the remaining accused was to be framed. He adjourned the case for framing of charges. It is this order that is challenged in this petition.

4. The learned Advocate appearing on behalf of the petitioners contended that the charge-sheet having been filed against the 20 accused for having committed offences punishable under Sections 324, 326 and 307 all read with Sections 34 and 109 of the Indian Penal Code and the Magistrate having committed all the accused to the Sessions Court for having committed offences punishable under Sections 324, 326 and 307 all read with Section 34 of the Indian Penal Code, the First Additional Sessions Judge, not being a court of original Jurisdiction, had no power, in law, to hold that a charge under Section 120-B of the Indian Penal Code also could be framed by him. Reliance was placed on the decisions in Emperor v. Stewart AIR 1927 Sind 28 :1926 27 Cri LJ 1217 and in Pandaran Mani v. State of Kerala : AIR1966Ker1 . In this connection they pointed out that Section 193 of the new Code deals with taking cognizance of offences by Courts of Sessions and that provision is similar to the provision in Section 193(1) of the Code of Criminal Procedure, 1898 (to be hereinafter referred to as the old Code).

5. Section 193(l) of the old Code reads as follows:

193. Cognizance of offences by Courts of Session:(1) '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 accused has been committed to it by a Magistrate duly empowered in that behalf.

6. Section 193 of the new Code, reads as follows:

193. Cognizance of offences 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 cognisance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

A reading of the above provisions makes it manifest that in place of the words 'the accused has been committed' in Section 193(1) of the Old Code, the words 'the case has been committed' have been used in Section 193 of the new Code. Section 207-A of the old Code provided the procedure to be adopted by a Magistrate in every inquiry of a case triable exclusively by a Court of Session or by a High Court, and which had been instituted on a police report. All that procedure has been done away with in the new Code as is clear from Section 209 of the new Code. Section 209 of the new Code reads as follows:

209. Commitment of case to Court of Session when offence is triable exclusive by it

(a) Commit the case to the Court of Session:

(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.

Another provision which has a bearing on this aspect is Section 226 of the old Code;

226. Procedure of commitment without charge or with imperfect charge. - When any person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court, or, in the case of a High Court, the Clerk of the State, may frame a charge, or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in this Code as to the form of charges.

This Section is deleted in the new Code because, as is evident, Section 209 of the new Code is not similar to Section 207-A of the old Code, and a Magistrate does not hold such a detailed enquiry and frame a charge or charges while passing an order of committal. In Raghubans Dubey v-State of Bihar : 1967CriLJ1081 , it has been held that 'police report' mentioned in Section 207-A is the report mentioned in Section 190(1)(b) and once cognizance is taken under Section 190(1)(b), a proceeding is instituted within Section 207-A. It has also been held that 'taking cognizance of means cognizance of offence and not of offenders. On considering the provisions of the Old Code, the Supreme Court held that a Magistrate who takes-cognizance of an offence can proceed against offenders not sent up by police and that summoning of additional accused is part of proceeding initiated by taking cognizance of offence. The decision in Mehrab v. The Crown AIR 1924 Sind 71: ((1925) 26 Cri LJ 181) (FB) has been approved in this case.

7. The question now is whether the First Additional Sessions Judge has power to frame a charge under Section 120-B of the Indian Penal Code, even though that Section does not find a place in the charge-sheet and in the order of committal passed by the Magistrate.

8. The provisions of both Section 193(1) of the old Code and Section 193 of the new Code, show plainly that a Court of Session is not a court of original jurisdiction in regard to such matters and as such cannot take cognizance of an offence. Section 193(1) of the Old Code shows that when an accused is committed to a Court of Session, the Court of Session has power to take cognizance of any offence as a Court of original jurisdiction. Section 193 of the new Code lays down that a Court of Session has power to take cognizance of any offence when a case has been committed to it.

Under the old Code a Magistrate holding a committal enquiry, frames a charge or charges and passes an order of commitment. The Court of Session records the plea of the concerned accused. Under the new Code, a Magistrate holding such an enquiry, is not required to go into the details of the material placed before him, conduct a detailed enquiry, and frame a charge or charges while passing an order of commitment. That power a Magistrate exercises under the old Code is vested in the Court of Session as per the provisions of the new Code. It is incumbent on the Court of Session, under the new Code, to find out whether there are or not sufficient grounds for proceeding against the eceused, and if in the opinion of the Court e Session there are suffcient grounds, frame- charges, and if there are no sufficient grounds, discharge the1 concerned accused. This is provided in Section 227 of. the new Code. Section 227 of the new Cede does not state anything about an offence or offences of the commission of which the Court of Session has to apply its mind. For this purpose the Court of Session has to take into consideration the ease that has been committed to it, while under the provisions of the old Code the Court of Session had to take into consideration the case against the accused committed to it That is all the distinction between the two seta of provisions.

9. Section 226 of the Old Code empowered the Court of Session to frame a charge, or add to or otherwise alter the charge, as the case may be, bearing in mind the Rules contained in the old Code as to the form of charges, when a person was committed for trial without a charge or with an imperfect or erroneous charge, to it. Three Illustrations as follows are found below Section 226 of the old Code:

(1) A is charged with the murder of C. A. charge of abetting the murder of C may be added or substituted.

(2) A is charged with forging a valuable security under Section 467 of the Indian Penal Code. A charge of fabricating false evidence under Section 193 may be added.

(3) A is charged with receiving stolen property knowing it to be stolen. During the trial, it incidentally appears that he has in his possession instruments for the purpose of counterfeiting coin. A charge trader Section 23& of the Indian Penal Code cannot be added.

it is already noted that this Section has been deleted in the new Code. To my mind, it is clear that the under this provision, the Court of Session, had the power to do what toe Magistrate could have done after holding the committal enquiry but within the ambits of the guidelines provided by the said three illustrations, one of the important guidelines, as is apparent, is that the Court of Session could not take cognizance of an offence or offences falling outride the order of commitment passed by the Magistrate. In Puttu Lai v. Rex AIR 1948 Alt 88 : (1949) 50 Cri LJ 107 it has been laid down that a Court of Session has power to add a new charge if the evidence produced in the Court of the committing Magistrate and the circumstances of the case justify the framing of a new charge. It was held that where the accused were committed to Sessions for trial under Section 304 of the Indian Penal Code, the Sessions Judge had power to add a new charge under Section 342 of the Indian Penal Code. I respectfully agree with this view.

In Emperor's case (1926) 27 Cri LJ 1217 (Sind) it has been laid down that the object of Section 193 of the Old Code in requiring that a Court of Session shall not take cognizance of an offence unless the accused has been committed to it by a competent Magistrate, is to secure to the accused, who is charged with a grave offence, a preliminary enquiry which would afford him the opportunity of becoming acquainted with the circumstances of the offence, end to enable him to make his defence, and that that object would indubitably be frustrated if a fresh charge is substituted or added in the Sessions Court on which the prosecution have not led evidence even in the Sessions Court, but intend to lead evidence. Further on, it has been held as follows:

It is doubtful if Section 227 Cr.P.C. intended to confer jurisdiction on the Sessions Court to add or substitute a new charge on fresh evidence led or to be led in the Sessions Court for the first time.

In this connection, it has been observed that it is always open to the Crown to have him acquitted upon the original charge and to have him charged anew before the Magistrate according to the new facts. There cannot be any quarrel with this proposition of law and it is apparent that it is in accordance with what has been held by me above,

10. What follows from the above discussion is that when an accused came to be committed before, a Court of Session, under the old Code the Court of Session had no power to take cognizance of an offence or offences when that offence or those offences were wholly outside the ambit of the order of commitment and did not flow from the evidence produced in the Court of the committing Magistrate.

11. In Pandaran Mani's case 1966 Cri LJ 22 (Ker) (FB) the Full Bench of the Kerala High Court has, while interpreting Section 193(1) of the old Code, laid down as follows;

The prohibition, it is to be noticed, is against taking cognizance of the act or omission unless there is a commitment therefor, not against taking cognizance of a different mens rea, or a subsequent con sequence of the act, making it punishable under a different provision of the law. Hence, so long as the act which is the subject-matter of the trial is also the subject-matter of the commitment, the section can be no bar to an alteration or addition to the charge on which the commitment is based so as to take notice of a subsequent consequence or a different mens rea making the act punishable under a different provision of the law any more than so as to take note of an error by which a wrong provision of the law has been cited.

Further it has been observed as follows:

It is clearly the physical act or deed the act as alone, not even the actus reus, that caused the death of the victim, in the instant case the stabbing of the victim, Krishna, by the 2nd end 3rd accused, and neither the mental element accompanying these physical acts nor the consequence of Krishnan's death, is part of those acts. Those physical acts were the subject-matter of the preliminary enquiry and the commitment as also of the charge- on which the commitment proceeded, and that being so, the trial on a charge of murder in respect of those acts, the consequence of Krishnan's death making the acts punishable under Section 302, and not under Section 307 of the Indian Penal Code, having ensued after the commitment, is warranted by Section 193(1) of the Criminal Procedure Code.

What had happened in the said case was that the victim of assault was surviving when the order of commitment was passed. The charge framed by the committing Magistrate was under Section 307 of the Indian Penal Code. By the time the Sessions trial was opened, the victim expired and the prosecution urged that a charge under Section 302 of the Indian Penal Code ought to be framed. To my mind it is crystal clear that what has been held in this decision is what has been already found by me to be the position in law on the reading of Section 193(1) of the old Code. The learned Counsel appearing on behalf of the petitioners, relied on a particular observation made by the Full Bench of the Kerala High Court in paragraph 5 of the judgment. That observation reads as follows:

But, if the commitment is to take an extreme example, on a charge of murder there cannot be a trial on a charge of forgery, even if evidence of the forgery might be on record as relevant to the charge of murder for the purpose, for example, of providing motive; nor, if the commitment is on a charge of the murder of A, a trial on a charge of causing hurt to B even if it should came out in the evidence that hurt was caused to B in -the course of the same transaction.

12. On the basis of the above Illustration, the learned Counsel argued that while A and B are going together, the concerned accused attack them and by that attack murder A and cause hurt to B; and if as per the provisions of the old Code the committing Magistrate frames a charge under Section 302 of the Indian Penal Code against the accused only in regard to the murder of A, the Court of Session hap no power to frame the charge in regard to the accused having voluntarily caused hurt to B. I am of opinion that such is not what their Lordships of the Kerala High Court had in mind because the very next sentence in the judgment immediately after the above excerpted observation, is as follows:

The illustrations to Section 226 of the Code (which are illustrations also to Section 227, the latter, so far as Sessions trials are concerned, only laying down the point of time before which am alteration under Section 226 must be made) make this amply clear that it is hardly necessary to go to the decided oases.

Even if their Lordships of the Kerala High Court had such reasoning also in mind while making the above excerpted observation, that aspect of the matter $b no longer available as Section 226 appearing in the old Code has been deleted in the new Code.

13. It is to be particularly borne in mind that the words 'any offence1 are found in Section 193(1) of the old Code and Section 193 of the new Code. These words, when considered in the light of the discussion contained in the preceding paragraphs, show that even under the old code, the Court of Session had, on the accused being committed to it, power to frame a charge in regard to an offence or offences that flowed out of the evidence that was available to the committing Magistrate. The words 'the accused has been committed' in Section 193(1) of the old code are replaced by the words 'the casa has been committed' in Section 193 of the new Code. Recording of evidence by a Magistrate holding a committal enquiry, is no longer there under the new Code. Therefore, the position in law under the' new Code is that when the case has been committed to a Court of Session, the Court of Session gets power to take cognizance of any offence or offences that flow out of the material produced by the prosecution in support of the case that has been committed to the Court of Session. A case for the prosecution is always based on a set of acts said to have been committed. Those acts would be the subject-matter, of the trial in question. That is also how the Kerala High Court has observed in Pandaran Mani's case (1966) Cri LJ 22 (Ker) (FB). In this view of the matter, I hold that under the facts and circumstances of this case, there is power in the Court of Session to frame a charge under Section 120-B of the Indian Penal Code.

14. It was lastly argued by the learned Counsel for the petitioners that the material before the First Additional Sessions Judge does not make out sufficient ground or grounds for proceeding against the petitioners and, hence, the First Additional Sessions Judge ought to have discharged the petitioners. A reading of the order in question, shows that only the charge under Section 120-B of the Indian Penal Code is going to be framed against the petitioners.

15. The First Additional Sessions Judge has discharged A-ll, A-12 and A-16 on the ground that there are no sufficient grounds for proceeding against them. The contention of the learned Counsel for the petitioners is that the very reasoning applies to the petitioners also.

16. The informant in this case is one Appaiah C. W. 1. The first information given by him narrates the names of A-8 to A-15 and A-17 to A-20 in a general manner as associates of A-l. In his statement dated 6-12-1973, he appears to have stated that A-l and his other colleagues already named by him in the first information, were constantly meeting in the vicinity of the factory. In his statement recorded on 13-12-1973, he appears to have stated that A-10 was present in the gathering of people when A-l stated on 20-9-1973 that he would murder Ajit Dutt C. W. 2 because of the service of the dismissal order in question. In that very statement, he appears to have stated that A-l used to confer with his friends and associates whose names he had already mentioned in the first information. Further on it appears that he has stated that on 5-11-1973 when one Vatal Nagaraj addressed a meeting in front of the I. T. I. A-9, A12, A-13, A-18 and others took leading part

17. C. W. 3, B. K. R. Singh appears to have stated in his statement dated 13-12-1973 that after the dismissal of A-l, he had seen all the accused persons mentioned in the first information given by Appaiah, meeting and talking amongst themselves in front of the factory during the evening hours.

18. Krishna alias Patti C. W. 24 appears to have stated in his statement dated 15-12-1973 that A-10 and A-13, had, along with A-l, gone to his room to talk to one Munegowda.

19. Shyama Raj C. W. 25, appears to have stated in his statement dated 1-1-1974, on seeing certain photographs shown to him, that he had seen A-8, A-10, A-ll, A-12 and A-13 on two or three occasions in one week while they were talking with Munegowda.

20. Rama Rao, C. W. 36 who is the manager of Satkar Hotel, appears to have stated in his statement recorded on 1-1- 1974, on seeing the photographs shown to him, to the same effect as C. W. 25.

21. Lastly Vijaya Kumar C. W. 39 appears to have stated in his statement recorded on 1-1-1974 that too on seeing photographs, to the same effect as C. Ws. 25 and 36.

22. It cannot be forgotten that the First Additional Sessions Judge has discharged A-ll, A-12 and A-16 in spite of the material said to go against them being available in the statements of the aforementioned witnesses. It is evident that that material has no bearing on the case committed to the Court of Session, as the material is innocuous. Similarly it is evident that it is the very material that is levelled against these petitioners. That leads to a conclusion that these petitioners, are also entitled to be discharged.

23. In view of the foregoing reasons, I allow the petitions quash the order in question and discharge the petitioners, who are A-10, A-13 to A-15 and A-17 to A-20 in Sessions Case No. 4 of 1975, on the file of the First Additional Sessions Judge, Bangalore.


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