Skip to content


Ajayab Singh and anr. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 75 of 1977
Judge
Reported in1977WLN553
AppellantAjayab Singh and anr.
RespondentState of Rajasthan
DispositionPetition dismissed
Cases ReferredP.C. Linguah v. State
Excerpt:
.....by magistrate--held, sessions court can add him as co-accused if it so appears front evidence.;a sessions judge has power to add a persons as a co-accused in the case before him even though he has not been committed to the court of sessions by a magistrate under the code and his name has not been mentioned in the charge-sheet filed by the police, provided it appears to the judge in the course of an inquiry into or trial of the case from the evidence that proceedings should be initiated against such a person.;criminal procedure code (new) - sections 193 and 319--word 'evidence' includes statements of witnesses recorded by police.;it means and includes the statements of the witnesses recorded by the police in the course of an investigation, or by the magistrate under the proviso to..........evidence in the case and eventually submitted a charge-sheet against avtar singh and succha singh accused only under section 336. i.p.c. and section 27 arms act in the court of the munsiff cum judicial magistrate. raisinghnagar. the learned magistrate committed the cast to the court of session for the trial although the offerees alleged to have born committed by the two accused were not exclusively triable by the sessions judge. the commitment was made for the simple reason that the cross-case filed by the state against succha singh and ors. under section 302, i.p.c. had already been convicted to the court of sessions for trial. it appeared that the sections judge after the case was committed to his court had transferred it to the court of the additional sessions judge, sri.....
Judgment:

K.D. Sharma, J.

1. Ajayab Singh and Ram Pratap have invoked revisional jurisdiction of this Court by way of an application under Sections 397 read with Section 401, Cr. P.C. against an order passed by the Additional Sessions Judge Sri Ganganagar, in Sessions Case No. 76 of 1976. State v. Succha Singh and Ors.. By this order the Additional Sessions Judge allowed the application presented by Arjun Singh complainant for summoning the petitioners to his court for trial together with the other accused for the offences punishable under Sections 336. 1PG and Section 27 of the Arms Act, which they appeared to have committed.

2. The short facts giving rise to this revision petition may be stated as follows: Arjun Singh son of Butta Singh Jat Sikh resident of 58 G.B. lodged a verbal a verbal report with the police at police station, Annupgarh District Sri Ganganagar on 24th May, 1975, at about 3.30 p.m It was alleged in the report that his son Gajjan Singh had gone to his fields on the back of a mare in the morning on 24th May, 1975. Ajyab Singh accompanied by his associates, namely, Succha Singh, Hardayal Singh, Nirmal Singh, Avtar Singh and Ram Pratap followed his son for the purpose of giving him a beating. Gajjan Singh, however, succeeded in making good his escape. He came to his house by another route & went inside after closing; the doors. At about 12 in the noon, Arjun Singh's son Balwant Singh and his grand son Narendra Singh and his co-sharer Jagjit Singh took their tractor to the canal for the purpose of washing it. At about 1.30 p m. they were returning to the informant's house. The aforesaid six accused persons pursued them having guns in their hands. As soon as the tractor was brought to the house, Kulwant Singh shut the door & raised a hue find cry that Ajayab Singh & his companions were coming having armed with weapons Immediately after the cries were raised by Kulwant Singh, Ajayab Singh and his associates reached the house of Arjun Singh and began to fire shots from their guns which hit the doors and windows of the house. On seeing the miscreants firing shots, Gajjan Singh opened fire from his gun while sitting in the upper storey. The shots fired from his gun hit Nirmal Singh, and Hardayal Singh causing their deaths. Avtar Singh some how or the other escaped Pom there and ran away. Succha Singh and Ajayab Singh took away the guns of Nirmal Singh and Hardyal Singh deceased. If Gajjan Singh had not opened fire. Ajayab Singh and his companions would have killed the informant and his family.

3. The oral report was reduced to writing by the ASI who registered a criminal case on its basis against Ajayab Singh and Ors. under Sections 147, 148, 336 and 307 read with Section 149 I.P.C. and Section 27 of the Arms Act and took up usual investigation into the matter. He collected necessary evidence in the case and eventually submitted a charge-sheet against Avtar Singh and Succha Singh accused only under Section 336. I.P.C. and Section 27 Arms Act in the court of the Munsiff cum Judicial Magistrate. Raisinghnagar. The learned Magistrate committed the cast to the court of Session for the trial although the offerees alleged to have born committed by the two accused were not exclusively triable by the Sessions Judge. The commitment was made for the simple reason that the cross-case filed by the State against Succha Singh and Ors. under Section 302, I.P.C. had already been convicted to the court of Sessions for trial. It appeared that the Sections Judge after the case was committed to his court had transferred it to the court of the Additional Sessions Judge, Sri Ganganagar, for trial in accordance with law. Arjun Singh informant presented an application before the Sessions Judge, Sri Ganganagar, on 20th October, 1976 that Arjun Singh and Ram Pratap also should be proceeded against along with Succha Singh and Avtar Singh for the effences under Sections 147, 148, 339/149, I.P.C. and Section 27 of the Arms Act, which they appeared to have committed. In his application Arjun Singh stated that he had filed a protest-petition also before the Munsiff-cum Judicial Magistrate, Raisinghnagar and requested him to proceed against the petitioners also as the latter had been wrongly left out by the police in the course of investigation but the Munsiff-cum Judicial Magistrate did not pass any order relating to the petitioners at the time of committing the case to the court of Sessions. The learned Additional Sessions Judge perused the statements of the witnesses produced by the police along with the challan and came to a conclusion that the petitioners, not being the accused, had commuted offences under Section 336 I.P.C. and 27, Arms Act for which they could be tried together with Succha Singh accused. So he proceeded against the two petitioners for the aforesaid offences which they appeared to have committed As petitioners were not attending the court, the Additional Sessions Judge issued bilable warrants against them for procuring their attendance in the court The petitioners appeared in the court in compliance with the warrants and requested for grant of an opportunity to file revision-petition against the order by which they were proceeded against. The Additional Sessions Judge allowed time to the petitioners to file a revision-petition and to obtain orders for stay of further proceedings. Hence, this revision-petition.

4. I have carefully gone through the record & heard Mr. S.R. Bajawa, learned Counsel for the petitioners, Mr. K.C. Bhandari, Public Prosecutor, for the State and Mr. Bhim Raj, learned Counsel for the non-petitioner complainant Arjun Singh. It has been contended by Mr. S.R. Bajwa, learned Counsel for the petitioner, that the Additional Sessions Judge, Sri Ganaganagar, had no jurisdiction to take cognizance against the petitioners as a court of original jurisdiction and add them to the array of accused persons, because neither they were charge-sheeted by the police, nor were they committed to the Court of Sessions by the Judicial Magistrate, Raisinghnagar. In support of his above contention, Mr. S.R. Bajw a relied upon the bar imposed by Section 193, Cr. P.C. which reads as follows:

Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions 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.

Mr. Bajwa further urged that a similar question arose for determination before Andhra Pradesh High Court in P.C. Linguah v. State 1977 Cr. LJ 415 and Hon'ble Justice Jayachandra Reddy took the view that the bar imposed by Section 193, old Cr. P.C. in taking cognizance as a court of original jurisdiction by the Sessions Court is not taken away by the new Code of Criminal Procedure and the Sessions Court is not empowered under Section 319, Cr. P.C. to proceed against any person for the offence which he appears to have committed unless he is committed to it by a Magistrate under the Code of Criminal Procedure. Mr. K.C. Bhandari, Public Prosecutor, and Mr. Bhim Raj Purohit, on the other hand urged that material changes have been made in Section 193 of the Code of 1998 by the new Code of Criminal Procedure, 1973 and now if the Sessions Court finds that some other persons also would have been added as one of the accused proceedings may be taken against him in the same sessions trial although he has not been committed by the Magistrate under the Code and his name has not been included in the charge-sheet filed by the police. In support of their above proposition, the learned Counsel relied upon the two changes made in Section 193, old Cr. P.C. and on the new provisions contained Section 319(1) and (2), Cr. P.C. 1973.

5. I have given my anxious consideration to the rival contentions. Section 193, new Cr. P.C. differs materially from Section 193 of the Code of 1898. Two changes have been made in the old Section 193. The first change is that the words 'the case has been committed have been substituted for the words,' the accused has been committed, 'The second charge is the substitution of the words 'under this Code' for the words 'duly empowered in that behalf'. Under Section 193 of the Code of 1898 cognizance by the Court of Sessions could not be taken against a person in respect of whom the order of commitment had not been made because the words 'accused has been committed' were there but now after the coming into force of the new Code, the Court of Sessions takes cognizance under Section 193 only of an offence provided the case is committed to it by a Magistrate under the Code meaning thereby that once the Sessions Judge takes cognizance of an offence, he may proceed against any person who appears to him to be involved in the offence although such person has not been committed by the Magistrate or his name has not been mentioned by the police in the. charge-sheet. The substitution of the words 'the case has been committed' for the words 'the accused has been committed' clearly indicates the intention of the Legislature that the cognizance by the Court of Sessions is only with reference to the offence and the reference to the accused has been dropped.

6. Looked from another angle, the result is the same. Section 193, new Cr. P.C. is subject to the exception contained in the words 'Except as otherwise expressly provided by this Code'. Sub-sections (1) and (2) of Section 319, new Cr. P.C. contain new provisions which were not there in the Code of 1898. Sub-section (1) of Section 319, Cr. P.C. empowers the Court to issue processes against any person for the offence which he appears to have committed if it appears from the evidence that such person not being the accused has committed any offence for which he could be tried together with the accused in the case. This is an express provision contained in the Code of Criminal Procedure 1973 and therefore, Section 193 of the Code is subject to it. Hence, after reading Section 319(1) along with Section 193, Cr. P.C., I have no doubt in my mind that a Sessions Judge has power to add a person as a co-accused in the case before him even though he has not been committed to the Court of Sessions by a Magistrate under the Code and his name has not been mentioned in the charge-sheet filed by the police, provided it appears to the Judge in the course of an inquiry into or trial of the case from the evidence that proceedings should be initiated against such a person. In view of this legal position, Section 193, new Cr. P.C. does not impose any bar to the taking of cognizance by the Sessions Judge as a Court of original jurisdiction against any person not being the accused, if it appears from the evidence that he has committed an offence for which he could be tried together with the accused in the case committed to it by a Magistrate under the Code.

7. The next contention put forward by Mr. S.R. Bajwa is that under Section 139, Cr. P.C. the Sessions Judge could proceed against the petitioners for the offences which they appeared to have committed only in the course of any inquiry into, or trial of, an offence, if it appeared to him from the evidence that the petitioners had committed any offence for which they could be tried as co accused According to his submission, in the instant case, the Sessions Judge did not record any evidence before issuing processes against the petitioners for the offences which they appeared to have committed and so his order suffered from lack of jurisdiction to proceed against the petitioners on the basis of the evidence collected by the investigating agency. The above contention has no force. The word 'evidence' has been defined in Section 3 of the Evidence Act, as follows:

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) All documents produced for the inspection of the Court; such documents are called documentary evidence.

From (he above definition, it is evident that (he depositions of witnesses and documents only are included in the term 'Evidence..' These are the two principal means by which the materials, upon which the Judge has to base his decision are placed before him. Under the New Code of Criminal Procedure Chapter XVIII deals with the trial before a Court of Sessions In this Chapter there is Section 227 in which provision has been made for the summary discharge of the accused if the Sessions Judge, upon perusal of the record of the case which means and includes the statements of the witnesses recorded by the police in the course of an investigation, or by the Magistrate under the proviso to Section 202(2) and all other relevant documents submitted by the police along with the same and after hearing the submissions of the accused and the prosecution in this behalf, considers that no sufficient ground exists for proceeding against (he accused. Section 227 does not provide that the Sessions Judge shall discharge the accused upon consideration of the statements of the witnesses recorded by him at the trial and perusal of the documents produced and proved before him. Then follows Section 228 which provided for cases in which the Sessions Judge does not discharge the accused under Section 227 and considers that there is sufficient ground for proceeding against the accused. Under Section 228 also the Sessions Judge is required to consider the statement of the witnesses recorded by the police under Section 161, Cr. P.C. or by the Magistrate under the proviso to sub-Section (2) of Section 202, Cr. P.C. and the documents filed along with the challan for forming an opinion that there is sufficient ground for proceeding against the accused which is or is not exclusively triable by him Hence, the arguments of Mr. S.R. Bajwa, learned Counsel for the petitioner, that under Section 319, Cr. P.C. the Sessions Judge could proceed against a person not being an accused only on the basis of the evidence recorded by him in the course of an inquiry into, or trial of, an offence, is fallacious. The term 'Evidence' used in Section 319(1) Cr. P.C. includes statements of witnesses recorded by police under Section 161, Cr. P.C. and the documents submitted to the court along with the challan. Hence, if it appears to the Sessions Judge in the course of an inquiry into, or trial of, an offence that any person not being the accused has committed an offence for v which he could be tried together with the accused in the case, he may proceed against such person for the offence which he appears to have committed. Mr. S.R. Bajwa further contended that in the present case the Additional Sessions Judge, Sri Ganganagar, committed an error in proceeding against the petitioner on the basis of statements of Arjun Singh, Singhara Singh, Narendra Singh and Darbara Singh which were recorded by the police in the course of investigation as, according to him, no ground for presuming that the petitioner have committed an offence, is disclosed from the evidence of these witnesses. The above contention has no force. I have perused the statements of these witnesses recorded by the police in the course of investigation. At this stage, it is not desirable for us to express any definite opinion about the credibility of 3these witnesses, because it will be the function of the trial Judge to scrutinise their evidence with care and caution and to place or not to place reliance on their testimonies after careful scrutiny thereof Suffice it to say that the statements of the aforesaid witnesses furnish sufficient ground for presuming that the petitioners have committed offences under Sections 336, I.P.C. and 27 of the Arms Act.

8. Consequently, I do not find am substantial ground for interference with the impugned order of the Sessions Judge in exercise of my revisional powers. The revision petition has no force and is hereby dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //