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State Vs. Mohd. Zaman and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1981CriLJ783
AppellantState
RespondentMohd. Zaman and ors.
Cases ReferredMadhu Limaye v. State of Maharashtra
Excerpt:
- .....trial before him. by his earlier order dated 22-10-1979, he dropped proceedings against two accused persons, namely, respondents nazir' hussain shah and mst. sarir fatima in petition no. 112, and by his later order dated 27-11-1979 he refused to charge-sheet the respondents in petition no. 7 under section 302 r. p. c, and charfte-sheeted them only under sections 14b, 325, 323 and 326 read with section 149 r. p.c. the facts leading to the filing of these petition;: may he briefly stated us below:police station, mendhar, initially put up a challan against ten accused persons namely, respondents zaman shah, aftab shah, muslim shah, zuhid shah, zaqir shah, asgar shah, qaramat shah, sabir hussain shah, manzoor hussain shah and mst. sakina bi in the court of chief judicial magistrate,.....
Judgment:
ORDER

I.K. Kotwal, J.

1. This judgment will govern the disposal of Criminal' Revision Petitions Nos: 112 of 1979 and 7 of 1980, as these are directed against two orders passed by Sessions Judge, (Poonch) in the same case pending trial before him. By his earlier order dated 22-10-1979, he dropped proceedings against two accused persons, namely, respondents Nazir' Hussain Shah and Mst. Sarir Fatima in Petition No. 112, and by his later order dated 27-11-1979 he refused to charge-sheet the respondents in petition No. 7 under Section 302 R. P. C, and charfte-sheeted them only under Sections 14B, 325, 323 and 326 read with Section 149 R. P.C. The facts leading to the filing of these petition;: may he briefly stated us below:

Police Station, Mendhar, initially put up a challan against ten accused persons namely, respondents Zaman Shah, Aftab Shah, Muslim Shah, Zuhid Shah, Zaqir Shah, Asgar Shah, Qaramat Shah, Sabir Hussain Shah, Manzoor Hussain Shah and Mst. Sakina Bi in the Court of Chief Judicial Magistrate, Poonch, for having committed the murder of one Mst. Kaki, and for having caused grievous injuries to few others. Out of the aforesaid ten accused persons, two, namely, Zaman Shah and Aftab Shah were found to have absconded. The learned Magistrate proceeded against them under Section 512 of the J. & K. Cr. P.C. hereinafter to be referred to as the State Code, and committed all the ten respondents to stand their trial before Sessions Judge, Poonch, for the offences charged. The respondents were yet to be charge-sheeted by the learned Sessioas Judge, when a fresh report was put up by the police on the basis of fresh investigation held by them, adding two more persons namely, respondents Nazir Hussain and Mst. Sarir Fatima to the array of the accused, and charging all the twelve respondents with offences under Sections 302, 326, 325, 324. 323 and 148 read with Section 140 R. P.C. Two separate applications, i.e., one on behalf of respondent Nazir Hussain, and other on behalf of respondent Sarir Fatima were moved before the learned Sessions Judge, raising two contentions: one, that there was no provision in the State Code authorising the police to conduct a fresh investigation into the offence, after they had submitted their report under Section 173, and two, that the Sessions Judge had no jurisdiction to try them in the absence of a formal committal order by a Magistrate as Sub-section (1) of Section 193 of the State Code created a clear bar against such a trial. The first contention was repelled by the learned Sessions Judge for the reason that ample power vested in the police under Sub-section (8) of Section 173 of the State Code to conduct a fresh investigation, but the second contention did not find favour with him who, consequently dropped the proceedings against respondents Nazir Hussain and Sarir Fatima and charge-sheeted the other respondents as already indicated. The State has felt aggrieved of these orders; hence the revision petitions.

2. A preliminary objection has been raised on behalf of the respondents in petition No. 7 that an order charge-sheeting an accused person being merely an interlocutory order, no revision is competent against the same under Sub-section 4-a) of Section 435 of the State Code, which expressly bars revision petitions against interlocutory orders passed in appeals, inquiries, trials or other proceedings. The objection, in my opinion, must prevail for the point whether or not an order charge-sheeting an accused is interlocutory in character, is no more res integra. The majority view taken in a recent Supreme Court decision in V. C. Shukla v. State : 1980CriLJ690 undoubtedly lends support to the respondents' contention, and hardly leaves any room for further arguments. His Lordship S.M.F. Ali, J., after exhaustively discussing the law on the poinr, expressed the majority view in the following words:

To sum up, the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Untwalia, J., in the case of Madhu Limaye v. State of Maharashtra 1978 Cri LJ 165 (SC) clearly meant to convey that an order framing charge is an interlocutory order but it is an intermediate order as defined in the passage, extracted above, in Corpus Jurir. Secondum, Vol. 60. We find ourselves in complete agreement with the observations made in Corpus Juris Secondum. It is obvious that an order of framing the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term 'interlocutory order' as used in Section 11(1) of the Act...' The preliminary objection, therefore, succeeds and revision petition No. 7, consequently, fails; which is dismissed accordingly.

3. This brings me to the other order by which proceedings against respondents Nazir Hussain and Mst. Sarir Fatima in Revision Petition No. 112 of 1980 were dropped by the Sessions Judge. Distinguishing the corresponding provisions of the Cr. P.C. 1973 (Central Act No. 2 of 1974), hereinafter to be referred to as the Central Code, the learned Sessions Judge held that Sections 205-D and 351 of the State Code being subject to the provisions of Sub-section (1) of Section 193 of the said Code, a Sessions Judge could not take cognizance of an offence unless the accused charged with its commission was also committed for

(contd. on col. 2)

STATE CODE

Section 193:

Cognizance of offences by Court 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.

(2) xx xx xx xxSection 173:

Report of police officer on completion of investigation:-XX XX XX(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).

Section 205-D:

Commitment of a case to Court of Session when offence, is triable exclusively by it.-- When in a case in stituted on 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.

xx xx xxSection 351:

Detention of offenders attending the Court.-- (1) Any person attending a criminal Court, although not under arrest or upon a summons, may be detained 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.

(2) When the detention takes place in the course of an inquiry under Chap. XVIII or after a trial has been begun, the proceedings in respect of such penson shall be commenced afresh and the witnesses reheard.

CENTRAL CODE

Section 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 cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.Section 173:

Report of police officer on completion of investigation:-XX XX XX (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed, and the provisions of Sub-sections (2) to (6) shall, as far as they may be apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).

Section 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 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.

XX XX XXSection 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 the witnesses reheard;

(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.

4. On its plain language, three conditions must be satisfied before Section 351 may be applied to a case. These are : (1) the person sought to be proceeded against must be attending the Court: (ii) the Court must be competent to take cognizance of the offence for which he is to be tried; and (iii) there must be evidence before the Court that the person is prima facie guilty of the offence, Prior to its amendment vide Act No. 2 of 1974, the provisions of Section 351 of the Central Code (now Section 519) were identical to those of Section 351 of the State Code. There was conflict in judicial opinion as to whether a Sessions Judge was competent to try an accused in the absence of a formal committal order by a magistrate by invoking the provisions of Section 351. The matter was considered by the Law Commission in Us entire gamut, and necessary amendments were suggested to be made in Sections 193, 207-A and 351 of the Central Code. Besides doing away with the condition of his presence before the Court, Sub-section (4) was added to the newly enacted Section 319, under which such a person would be deemed to be an accused before the Court even at the time it took cognizance of the offence; no matter whether he was actually present before it then. A corresponding amendment was also made in Section 193 and the expression 'unless the accused has been committed to it by a magistrate' was substituted by the expression 'unless the case has been committed to it by a magistrate'. Drastic changes were also made in the procedure relating to cases exclusively triable by a Court of Session and High Court, and provision made in Section 209 for committal of the 'case' instead of 'accused', as ordained by Section 207-A, which was repealed. Keeping these amendments in view, their Lordships in : 1979CriLJ333 (supra) held that Section 193 was no bar against the trial of a person under Section 319, and for two reasons : one that the word 'case' was substituted for the word 'accused' in Sections 193 and 209, and two, that Sub-section (4) of Section 319 created a legal fiction under which such a person would be deemed to be an accused before the Court, even at the time the Sessions Judge look cognizance of the offence, whether or not he was then actually arraigned before him. It was to convey this opinion that their Lordships made the following observations:

It will be noticed that both under Section 198 and Section 209 the commitment is of 'the case' and not of 'the accused' whereas under the equivalent provisions of the old Code viz., Section 193(1) and Section 207-A 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 person before the Court, but this only means that belure 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 Section 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 conferral of the power under Section 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-section (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 offence.

5. Large scale amendments were also made in the State Code vide Act number XXXVIII of 1978, but no change was brought in Section 193 or Section 351. Chapter XVIII of the State Code relating to inquiry into cases triable by the Court of Session or High Court was, however, omitted, and among others, Section 205-D was enacted to provide for committal of 'case' instead of 'accused' as provided in Section 207-A, which occurred in the omitted Chapter XVIII. The learned Sessions Judge was of the opinion that in the absence of a corresponding amendment in Section 193(1), substituting the word 'case' for the word 'accused', the provision contained in Section 205-D for committal of the case instead of the accused, was of no consequence, for Section 193 governed both Sections 351 and 205-D and a Sessions Judge had no power to try an accused without a formal order by a magistrate, committing him to stand his trial before the Sessions Judge. In my opinion, the learned Sessions Judge was not right in taking this view. Section 351 is an independent provision not governed by what is contained in Section 193. A Sessions Judge can try a person not committed to stand his trial before him by a magistrate by pressing into aid the provisions of Section 351, provided all the conditions contained in it are satisfied. One of such conditions, as already pointed out, is that he must be competent to take cognizance of the offence, This section merely speaks of competence to take cognizance of the offence, without anything more. To be more precise, it does not further require that the person to be tried must be formally committed to the Sessions Judge. As observed by their Lordships in : 1979CriLJ333 cognizance of an offence is unthinkable without there being a perpetrator of the offence. Consequently, the Sessions Judge, who takes cognizance of the offence, ipso facto takes cognizance of the offender or offenders involved in the commission of the offence, and there is nothing in Section 193 to give it supremacy over Section 351 so as to render the Sessions Judge powerless to try the accused without a formal committal order by a Magistrate, This is, according to their Lordships, the true legal implication of taking cognizance of an offence, apart from the clear language of Sections 193, 209, 319(4) of the Central Code, as would appear from the following observations contained in the aforesaid judgment:

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. Looking at the provision from this angle there would be no question of reading Section 319(1) subject or subordinate to Section 193.

6. This inference is further fortified by the phraseology of Section 205-D, which speaks of committing the case instead of committing the accused, though the legislature would have been still better advised to have introduced corresponding amendments in Sections 193 and 351 of the State Code, and excluded every possibility of any further argument in regard to the interpretation of these sections. It may also be pertinent to point out here that unlike Section 351, Section 193 is subject to other provisions contained in the State Code, and Section 351 is surely one of such provisions, which gives jurisdiction to a Sessions Judge to try a case not committed to him by a Magistrate, provided all the conditions of the said section are fulfilled. The learned Addl. Advocate-General is, therefore, right in contending that the learned Sessions Judge, has not interpreted the Supreme Court judgment correctly, and has clearly slipped into an error by holding that in no case can a Sessions Judge try an accused in the absence of a. formal order by a Magistrate, committing him to stand his trial before the Sessions Judge, Such an interpretation is obnoxious for yet' another reason that it would throw the Sessions Judge at the mercy of the police or the Magistrate subordinate to him, and he would be helpless in trying an accused, even though on taking evidence, he feels that he is guilty of the offence unless, however, the police is willing to challan the accused before the committing Magistrate or the Magistrate is willing to commit the accused to stand his trial before the Sessions Judge.

7. Even so, the order passed by the learned Sessions Judge cannot be interfered with. Granting that the first two conditions namely, the presence of respondents Nazir Hussain and Mist. Sarir Fatima before the Sessions Judge, and his taking cognizance of the offence stood satisfied in the instant case, yet, the third condition i.e., of existence of evidence, prima facie involving the respondents in the crime, was not satisfied. He had yet to record evidence, and reach a prima facie satisfaction on its basis, that the aforesaid two respondents were also involved in the commission of the offence. The evidence, of which Section 351 speaks, is the evidence recorded by the Sessions Judge himself, and not any other evidence. This inference is fortified by the language of Sub-section (2) of Section 351 which enjoins upon the Sessions Judge to record all evidence afresh, on the basis of which, he has proceeded to try an accused, not committed to him by a Magistrate. The supplementary report submitted by the police could not take place of evidence of which Section 351 speaks, The only alternative left to the police in these circumstances was to put up a supplementary challan before a competent Magistrate and secure an order from him committing these two respondents as well to stand their trial before the Sessions Judge, as provided under Sub-section (8) of Section 173 reproduced heretofore. The legislature, as is abundantly manifested by the unequivocal language of Sub-section (8), never intended to bypass the committing magistrate in case the police wanted to implicate another accused in the commission of the offence, or wanted to change the nature of the offence. The impugned order has, therefore, to be upheld, though for reasons different from the ones given by the learned Sessions Judge.

8. Consequently, revision petition No. 112 also fails, which is dismissed accordingly.

9. Before parting with the file, I feel it only proper to observe that Section 351 may also have to be suitably amended, for at least one reason, that if it is allowed to remain as it is, a Sessions Judge will be still helpless in bringing a culprit to book, in case he is not present before him. The condition of his presence before the Sessions Judge, which is a sine qua non for invoking Section 351(1), will have to be done away with, to render the section workable and effective.


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