Heard Sri Daya Shankar Mishra, Sri Chandrakesh Mishra, learned counsel for the applicant, learned A.G.A. for the State of U.P. and Sri N.I. Zafri, learned counsel for the C.B.I.
This application under section 482 Cr.P.C. has been filed by the applicant Lal Singh with a prayer to quash the orders dated 21.9.2001, 1.10.2001, 11.10.2001, 1.11.2001. 6.11.2001 and 04.12.2001 passed by the Incharge Special Judicial Magistrate / Magistrate, Dehradun in case No. 1288 of 2001 C.B.I. Vs. Lal Singh and others under section 302/234, 193/34, 201/34 IPC. The orders dated 7.1.2002 and 26.2.2004 passed by learned Special Judicial Magistrate/ Magistrate C.B.I. Dehradun and the order dated 2.4.2004 passed by learned Special Judge (Anti corruption) U.P. (East), Ghaziabad and the further proceedings proceedings pending in the court of Special Judge (Anti Corruption) U.P. (East), Ghaziabad in Special case No. 12 of 2004 under section 302/234, 193/34 and 201/34 IPC.
The facts in brief of this case are that an FIR in case crime No. 138 of 1996 under section 302 IPC, P.S. Bhojpur, District Ghaziabad was registered against the accused Ranpal, Bhagwat, Vinod and Surendra in which one Jageshwar was killed. On 8.11.1996 the applicant who was officer incharge of P.S. Bhojpur, District Ghaziabad along with police personal Suryabhan, Ranveer Singh, Subhash Chandra and the accused persons Ranpal, Bhagwat, Vinod and Surendra proceeded from the police station in a police jeep driven by its driver Sukhpal Singh for the purpose of recovering the weapons used in the commission of the alleged offence by making its entry in G.D. No. 22 at 15.10 O'clock, when they reached near the sugar cane filed of one Charmu at about 3.30 P.M. they saw four miscreants sitting one bridge. The miscreants were asked to stop by the police party, they fired at the police party but fortunately nobody sustained any injury from the side of the police. In defence the applicant, constable Ranveer, constable Suryabhan and constable Subhash Chandra also fired towards the miscreants consequently two of the miscreants died on the spot but remaining two miscreants entered into the sugar can field of Charmu. The firing was going on from both the sides, in the meantime the message was given to the control room by the driver of the jeep. The additional police force was also came at the place of the incident, the miscreants who had entered into a sugar cane field, on which the firing was done by the miscreants ultimately both the miscreants after sustaining the injury also died on the spot. In the said police encounter all the four miscreants had died. Its FIR was lodged in case crime No. 142 of 1996, 143 of 1996, 144 of 1996, 145 of 1996 and 146 of 1996 under sections 307 IPC and 25 Arms Act. In the said incident fire arms used by the miscreants were also recovered by the police. Its investigation was entrusted to Officer Incharge of P.S. Hapur, District Ghaziagad. The statements of the witnesses of case crime No. 138 of 1996 were recorded under section 161 Cr.P.C. in which they categorically stated that there had been a police encounter with the miscreants, after concluding the investigation the final report was submitted in the court of learned Magistrate concerned, the same was accepted by Addl. C.J.M. (North), Ghaziabad on 5.4.1997 but the State Government ordered for Magisterial enquiry, the inquiry was entrusted to A.D.M. Ghaziabad who forwarded the inquiry report dated 27.11.1997 to Home Secretary, U.P. Government, Lucknow. Thereafter the State Government referred the matter to CBI, the CBI registered the FIR in case crime No. RC 7 (R/37/97/SIC-4/Lucknow) on 10.4.1997 at 10 A.M. The CBI concluded the investigation and submitted the charge sheet dated 10.9.2001 before Incharge Special Judicial Magistrate CBI (Anti Corruption), Dehradun on which the cognizance was taken on 1.10.2001, subsequently the orders dated 1.10.2001, 11.10.2001, 6.11.2001 and 4.12.2001 were passed by Incharge Special Judicial Magistrate (Anti Corruption), Dehradun. The sanction of the prosecution was obtained from the Government, the same was produced before the court of Special Judicial Magistrate (CBI), Dehradun on 7.1.2002. Thereafter the applicant and one other co-accused filed a transfer petition before the Supreme Court of India for transferring the case from the court of CBI Dehradun to the competent court of Uttar Pradesh, the same was allowed by the Supreme Court of India on 19.12.2003 by transferring the case from the court of Special Magistrate (CBI), Dehradun, Uttranchal to the court of Special Judge (Anti Corruption) U.P. (East) Ghaziabad), U.P. vide order dated 19.12.2003. In pursuance of the order dated 19.12.2003 the case has been transferred to the court of Special Judge (Anti Corruption) U.P. (East), Ghaziabad by the Judicial Magistrate C.B.I. Dehradun, Uttranchal vide order dated 26.2.2004. The record of the above mentioned case was received in the court of Special Judge (Anti Corruption), U.P. (East) Ghaziabad on 2.4.2004 whereby the case was registered and warrant of the arrest was issued against the accused person. The proceedings pending in the court of Special Judge (Anti Corruption), U.P. (East), Ghaziabad have been challenged by filing the present application under section 482 Cr.P.C.
It is contended by learned counsel for the applicant that the offence in which the applicant is accused is triable by court of sessions. The Special Judge (Anti Corruption), U.P. (East), Ghaziabad is a court of sessions. The proceedings of the applicant were pending in the court of Special Magistrate (Anti Corruption)/ CBI Dehradun, Uttranchal. The case has not been committed to the court of sessions under section 209 Cr.P.C. It is a necessary requirement, without committal of the case the Special Judge (Anti corruption) U.P. (East), Ghaziabad may not proceed further against the applicant, the warrant of the arrest issued by Special Judge (Anti Corruption), U.P. (East), Ghaziabad is also illegal. It is a case in which the copies of the police report and other documents have not been supplied to the applicant as required under section 207 Cr.P.C. The provision of section 193 Cr.P.C., does not empower the sessions court to take the cognizance directly, the language of section 193 Cr.P.C. is- 'except as otherwise expressly provided by this court or by any other law for the time being enforced, 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 court". For taking the cognizance otherwise has not been provided. In view of section 193 Cr.P.C. the Special Judge (Anti Corruption), U.P. (East), Ghaziabad is not empowered to take the cognizance against the applicant. In the present case the provision of of section 207 and 209 Cr.P.C. have not been followed. In such circumstances, the order passed by Special Magistrate (Anti Corruption)/ CBI Dehradun, Uttranchal and the orders passed by Special Judge (Anti Corruption), U.P. East, Ghaziabad are also illegal, because the court of Special Judge (Anti Corruption), U.P. (East), Ghaziabad is not empowered to take the cognizance which is barred by provisions of section 193 Cr.P.C., therefore, the order passed by the special Judge (Anti Corruption) may be quashed.
In reply of the above contention, it is submitted by Sri N.I. Zafri, learned counsel for the CBI that it is a case in which the proceedings have been transferred from the court of Special Magistrate (Anti Corruption)/CBI Dehradun to the court of Special Judge (Anti Corruption), U.P. (East), Ghaziabad by the Supreme Court of India on 19.12.2009 in exercise of the powers conferred under section 406 Cr.P.C. on the transfer petition moved by the applicant and co-accused Subhash Chandra. The applicant if having any grievance with regard to the section 207 and 209 Cr.P.C., may approach the Supreme Court of India to modify the order dated 19.12.2003. The order dated 19.12.2003 passed by the Supreme Court of India may not be corrected or modified by any other court of country. The question raised in the present case with regard to the section 193 Cr.P.C. has been decided by the Supreme Court of India in the case of P.C. Gulati Vs. Lajyaram & others as reported 1996 AIR (SC)-0-595 by holding that court of criminal procedure empowers the Supreme Court to direct any particular case or appeal be transferred from one High Court to another High Court or from the criminal court subordinate to one High Court to another High Court or from a criminal court subordinate to one High Court to another Criminal Court of equalor superior jurisdiction subordinate to another High Court. The section 406 Cr.P.C. empowers the Supreme Court to transfer the case from the court of Magistrate to the court of Sessions also. In the present case formal order under section 209 Cr.P.C. by the learned Magistrate concerned has not been passed, the matter has been transferred by the Supreme Court of India to Special Judge (Anti Corruption), U.P. (East), Ghaziabad. The case has been transferred by the Supreme Court of India, in such a circumstance, the proceedings are not barred by the section 193 of the code of criminal proceedure. There is no illegality in the impugned orders passed by Special Magistrate (Anti Corruption)/CBI Dehradun and orders passed by Special Judge (Anti Corruption) UP (East) Ghaziabad. The present application is devoid of the merits, the same may be dismissed.
Considering the submissions made by learned counsel for the applicant, counsel for the C.B.I. and perusing the records it appears that in the present case the applicant was accused in a case pending in the court of Special Magistrate (Anti Corruption)/CBI Dehradun. On a transfer petition filed by the applicant and co-accused Subhash Chandra the Supreme Court of India transferred the proceedings of case pending against the applicant from the court of Special Magistrate CBI, Dehradun to Special Judge (Anti Corruption), U.P. (East), Ghaziabad, vide order dated 19.12.2003. The case was not committed to the court of Special Judge (Anti Corruption) by any Magistrate but it has come to the court of Special Judge (Anti corruption) in pursuance of order dated 19.12.2003 passed by the Supreme Court of India. In crucial circumstances the requirement of committal of the case triable by the court of session be done by learned Magistrate concerned and without proper committal, the cognizance is barred by the provisions of section 193 of the code of Criminal Proceedure. The section 193 Cr.P.C. reads as under:
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:
According to the provision of section 193 Cr.P.C. no court shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed by a Magistrate under this Act, except as otherwise expressly provided by this Act or by any other law for the time being enforced. In the present case the Special Judge (Anti Corruption) has taken the cognizance when the case was transferred to his court by the Supreme Court of India. The Supreme Court of India is empowered to transfer the cases and appeals from one High Court to another High Court or from a criminal court subordinate to one High Court to another Criminal court of equal or superior jurisdiction subordinate to another High Court, under the provision of section 406 of Code of Criminal Proceedure, 1973. The section 406 Code of Criminal Proceedure, 1973 reads as under:
"406. Power of Supreme Court to transfer cases and appeals.--
(1)Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of the attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.
(3)Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case."
The similar controversy as involved in the present case came before the Supreme Court of India, the same has been answered in the case of P.C. Gulati (in all appeals) Vs. Lajya Ram & others reported as 1966 AIR (SC) by a majority view by holding that there was no difficulty in the trial of the accused by the court of sessions in a case transferred to it by the High Court or court by a Magistrate. The paragraph Nos. 13,14, 17, 18, 19, 20, 21, 22, 23, 24 and 25 read as under:
13.We, therefore, do not consider that there arises any difficulty in the trial of the accused by the Court of Session in a case transferred to it by the High Court from the Court of Magistrate.
14.We may now deal with the first objection which is really the main objection of the appellant about the trial of the case by a sessions Judge on its being transferred to him by the High Court. Session 193 of the Code prohibits the Court of session to take cognizance of any offence as a Court of original jurisdiction unless the accused is committed to it by a Magistrate or there is any other express provision in the Act. Such express provisions, according to the appellant, are to be found in a few sections of the Code. Session 198-B empowers the Court of session to take cognizance of an offence under S.500 IPC on a complaint of the Public prosecutor without the case being committed to it for trial.
17. Section 193 and the other sections of the Code refer to the taking of cognizance of an offence by the Court of Session. The question is what amounts to the taking of cognizance of an offence by a court and whether the Court of sessions proceeding with a case transferred to it by the High Court, amounts to its taking cognizance of the offence under trial in the case.
18.Chapter XV of the Code deals with jurisdiction of criminal Courts in inquiries and trials. Part A consisting of ss. 177 to 189 deals with the place of inquiry or trial. These sections deal with the territorial jurisdiction of various Courts to enquire into, or try offences. Part B deals with the conditions requisite for initiation of proceedings and therefore with the conditions governing the power of a Court to commence, for the first time, proceedings in connection with offences about which the party aggrieved or the State desires to take action. Part B of Chapter XV consists of Ss. 190 to 199B.
19.In R. R. Chari v. The State of Uttar Pradesh, 1951 SCR 312: (AIR 1951 SC 207), this Court approved of the following observations of Das Gupta J., in Supdt. and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Bannerjee, AIR 1930 Cal 437.
"What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any magistrate has taken cognizance of any offence under section 190(1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g.,ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
When the Sessions Court receives a case on transfer by the High Court it is not to consider whether it should proceed or not with the case. It has to proceed with the case as it has been transferred to it by the High Court. There is, therefore, no occasion for the Court of Session to take cognizance of the offence in the sense that it has to determine whether the proceeding should be initiated in connection with the offence or not. The proceedings have been already initiated by the Magistrate and have been simply transferred to it. It has simply to proceed with the inquiry or trial as the case may be as the case has been made over to it by the High Court.
20.A consideration of the provisions of the various sections in Part B of Chapter XV of the Code dealing with initiation of proceedings also makes out the difference between the taking of cognizance of a case and the subsequent inquiry and trial of the offences of which cognizance has been taken. Section 190 provides that Magistrates can take cognizance of a case in either of the three ways mentioned in sub-s. (1). Section 191 provides for the transfer or commitment of the case in which the Magistrate has taken cognizance of the offence under sub-s. (1) (c) of s. 190, i.e., on information received from any person other than a police officer or upon his own knowledge or suspicion that an offence has been committed, if the accused objects to being tried by that Magistrate. The provisions of this section make a distinction between the taking of cognizance of an offence and its subsequent trial by that Magistrate or by another Court. Similarly, s. 192 provides for the transfer of a case, of which the Magistrates mentioned in the section have taken cognizance for inquiry or trial, to another Magistrate subordinate to the particular Magistrate. The language indicates that the Magistrate to whom the case is to be transferred has not to take cognizance of the case afresh but has simply to proceed with the inquiry or trial of the case. Section 193 is the section which we have considered and, in the context of the various sections, the taking of cognizance of an offence as a Court of original jurisdiction must amount to the initiation of the proceedings for the first time in a Court and not in the subsequent enquiry or trial necessary for the disposal of the case. The other sections in this Part simply provide restrictions for the taking of cognizance of offences in certain circumstances.
21.When a case is committed to the Court of Session, the Court of Session has first to determine whether the commitment of the case is proper. If it be of opinion that the commitment is bad on a point of law, it has to refer the case to the High Court which is competent to quash the proceeding under s. 215 of the Code. It is only when the Sessions Court considers the commitment to be good in law that it proceeds with the trial of the case. It is in this context that the Sessions Court has to take cognizance of the offence as a Court of original jurisdiction and it is such a cognizance which is referred to in s. 193.
22. We are therefore of opinion that the further proceedings by the Court of Session in a case transferred to it by the High Court are not barred by S. 193 of the Code.
23.Further it would be incongruous if the High Court be competent to transfer a case from the Court of a Magistrate to itself and try it but it be not competent to transfer a case to the Court of Session. There does not appear to be any reason which would have induced the legislature to contemplate the application of cl. (ii) of sub-s. (1) of S. 526 to the transfer of cases from the Court of a Magistrate to the Court of any other Magistrate of equal or superior jurisdiction and not to the Court of Session. Clause (iv) expressly mentions the power of the High Court to order commitment of an accused person for trial to itself or to a Court of Session. Such an order can however be passed only when the proceedings in the Court of the Magistrate have reached that stage when it be possible for the High Court to direct the committal of the accused to the Court of Session or to itself. An order for the commitment of the accused cannot be passed at any earlier stage while the transfer of a case can be made at any stage at which the case may be when transfer is sought.
24.Lastly, reference may be made to s. 527 of the Code which empowers the Supreme Court to direct that any particular case or appeal be transferred from one High Court to another High Court or from a criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court. The language of the section empowers this Court to transfer a case from the Court of a Magistrate tinder one High Court to a Court of another Magistrate of equal or superior jurisdiction, or to a Court of Session, subordinate to another High Court. This Court actually transferred one case from the Court of a Magistrate to the Court of an Additional Sessions Judge as is clear from the judgment of this Court in Harbajan Singh v. State Cri Appeal No. 53 of 1981, dated 2.3.1965: (AIR 1966 SC 97). It may also be mentioned that there is nothing in s. 527 about the procedure which the transferee Court has to adopt for the further progress of the case. Sub-s. (3) of s. 527 simply gives an option to the transferee Court to act on the evidence already recorded or partly so recorded and partly recorded by itself or to resummon witnesses and recommence the inquiry or trial.
25.We are therefore of opinion that the High Court is competent under s. 526 ( 1 ) (ii) of the Code to transfer a case from the Court of a Magistrate to the Court of the Sessions Judge.
The above mentioned case has been decided dealing with the provisions of old Code of Criminal Proceedure, particularly section 526/ 527 Cr.P.C. empowering the High Court transferring the cases from one to another court and empowers the Supreme Court to direct any particular case or appeal be transferred from one High Court to another High Court or from a criminal court subordinate to one High Court or criminal court of equal or superior jurisdiction subordinate to another High Court, but some provision has been provided in section 406 of the Code of Criminal Proceedure, 1973. In case, the Supreme Court of India transfers a case pending in the court of Magistrate to court of session, the provision of section 193 shall not be applicable. In the present case, the case has been transferred from the court of Special Judicial Magistrate (CBI), Dehradun to the court of Special Judge (Anti Corruption)(CBI) U.P. (East), Ghaziabad, vide order dated 19.12.2003. The Special Judge (Anti Corruption)(CBI) East, Ghaziabad, U.P. is competent court to proceed further in accordance with law and the requirement of the committal of the case to the court of sessions is not applicable in the present case and the cognizance is not barred by the section 193 of the Code of Criminal Proceedure, 1973. The court of Special Judge (Anti Corruption) CBI, U.P. (East), Ghaziabad, is a competent court to proceed further and there is no need to remit the case to the court of Magistrate for following the proceedure of 'committal'. In such circumstances, the learned Special Judicial Magistrate/ Judicial Magistrate, (CBI) Dehradun has not committed any error in transferring the case to the court of Special Judge (Anti Corruption) CBI, U.P. (East), Ghaziabad, in compliance of the order dated 19.12.2003 passed by the Supreme Court of India and has not committed any error in passing the orders dated 1.10.2001, 11.10.2001, 1.11.2001, 6.11.2001, 4.12.2001, 7.1.2002 and 26.2.2004 in case No. 1288 of 2001 and order dated 2.4.2004 passed by learned Special Judge (Anti Corruption) CBI, U.P. (East), Ghaziabad, in Special Case No. 12 of 2004 under sections, 302, 234, 193/34 and 201/34 IPC the prayer for setting aside the same is refused and there is no good ground to interfere in the proceedings of Special case No. 12 of 2004 pending in the court of learned Special Judge (Anti Corruption) CBI, U.P. (East), Ghaziabad, U.P., such prayer is refused.
The interim order dated 23.1.2006 is hereby vacated.
Accordingly this application is dismissed.
Dt: 30.05.2014 RPD