Arijit Pasayat, C.J. 1. Heard learned counsel for the parties.
2. On a reference made by the learned single Judge this matter was placed before us. The question that was raised before learned single Judge was whether during the pendency of committal proceedings, committing Court can take cognizance of any offence in respect of self-same incident on the basis of an oral complaint made by the accused facing the committal proceedings and hold an enquiry under Section 202 of the Code of Criminal Procedure, 1973, (in short the Code).
3. Factual background needed to be noted in brief is as follows :
Sajimon, son of George, accused in C.P. No. 4/1997 on the file of the Judicial Magistrate First Class's Court, Kuthuparamba filed a petition under Section 482 of the Code for quashing the proceedings against him. He claimed to have been arrayed as an accused on the basis of the statement allegedly made by the accused in another case, i.e. C.P. No. 9/95. Kuthuparamba police registered Crime No. 34/1994 for an .offence under Section 307 of the Indian Penal Code, 1860, (in short, IPC) in respect of an incident which allegedly took place on 30-1-1994 at Neerveli, involving a maruthi van bearing registration No. KL/11-A2454. Case of the prosecution was that the driver of the aforesaid van had driven the vehicle at great speed and attempted to hit the vehicle against a policeman who signalled to stop the van, and cause his death. After investigation police filed a charge-sheet before the Judicial Magistrate First Class's Court, Kuthuparamba against Saji Kakkanad, son of Augustine. Said Saji Kakkanad appeared before the Court on 10-7-1995, and was remanded to Sub Jail. Subsequently he was released on bail and the case was posted to 24-7-1995. On that day he made an oral complaint before the Magistrate that he was not the person driving the vehicle at the time of the alleged incident, but Sajimon, son of George was driving the vehicle. He further stated that Sajimon caused the vehicle to knock down a lady pedestrian and proceeded without stopping the vehicle there and he did not stop the vehicle even though police personnel signalled to stop the same. He further stated that there were altogether six persons, including himself, in the vehicle. Magistrate recorded the aforesaid statement purportedly under Section 190(1)(c) of the Code and took cognizance of the offence under Section 397, IPC and proceeded to take evidence under Section 202 of the Code. He recorded the statements of other alleged passengers in the vehicle, the police personnel who tried to stop the vehicle and also the police officials who investigated the case. A bail application in the name of Saji Kakkanad was filed before Judicial Magistrate First Class's Court, Kuthuparamba by an advocate and the same was dismissed for default. When Saji Kakkanad gave this statement before the Judicial Magistrate First Class's Court, he disowned filing of any application for bail at the crime stage and stated that he did not even know the advocate who had filed the same. The advocate and his clerk were examined before the Magistrate. Thus evidence of 14 witnesses were recorded. After considering the materials, the case was numbered as C.P. 4/97 and summons were issued against Sajimon. The said action is the subject-matter of challenge in Criminal Miscellaneous Case under Section 482 of the Code. When the matter was taken up it was found by learned single Judge that the case involves some important questions of law and, therefore, it requires to be heard by a Division Bench.
4. Learned counsel for Sajimon submitted that after amendment of the Code the committing Court has no jurisdiction to hold an enquiry under Section 209 of the Code. At that stage it is not permissible to consider the merits of the case and to determine whether any accused need be added to face trial or left out before the Court of Session. The effect of Section 210(2) of the Code was also highlighted to contend that a possible defence of an accused cannot be a ground for initiation of action in terms of Section 190(1)(c) of the Code as done in the instant case. It is submitted that result would be disastrous and any accused can rope in as many persons as he desires by way of a statement which is at the most in the nature of a defence during trial. Learned counsel for the State submitted that in a case of this nature Section 202 of the Code may not have any application, but action otherwise may not be illegal.
5. In order to appreciate the rival submissions it is necessary to take note of Section 190 and Section 209 of the Code which reads as follows :
190. Cognizance of offences by Magistrates :-
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer; or upon his, own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.
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 it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
(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.
It is to be noted that Section 210(2) of the Code stipulates that if a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as If both the cases were instituted on a police report. That provision has no application to the facts of the present case as the accused in C. P. 9/95 and C. P. 4/1997 are not the same. In Raj Kishore Prasad v. State of Bihar (1996) 4 SCC 495 : 1996 Cri LJ 2523 it was observed by the Apex Court that the committing Court has no jurisdiction to hold an enquiry under Section 209 of the Code. At the stage of Section 209 of the Code the Magistrate is forbidden to apply his mind to the merit of the case and to determine whether any person is to be arrayed as an accused or is to be dropped from the list of accused persons to face trial before the Court of Session. If the course adopted by the Magistrate in the case at hand is permitted, Section 319 of the Code would become redundant. The said provision deals with the power to proceed against other persons appearing to be guilty of any offence, but the stage for that has not given. An accused can be summoned to face trial under Section 319 of the Code by the Sessions Court only after recording evidence during trial. Whether Section 319 of the Code can be applied is a matter which has to be examined by the concerned Court after recording evidence. Section 190(1)(c) has no application to the facts of the case as what was being considered by the Magistrate related to course to be adopted for commitment. Section 190 deals with taking cognizance. As observed by Apex Court in Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430 : 1963 (2) Cri LJ 397, the entire scheme of Chapter XVI of the Code (old Code of 1989) shows that an accused person does not come into the picture at all till process is issued. He may remain present either in person or through a counsel or an agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation he has no right to take part and the Magistrate has no jurisdiction to permit him to do so. Position was reiterated in Smt. Nagawwa v. Veeranna Sivalingappa Konjalgi AIR 1976 SC 1947 : 1976 Cri LJ 1533. The procedure adopted by the learned Magistrate does not have the sanction of law and is undefensible. Consequently, the proceedings in C. P. 4/1997 before Judicial First Class Magistrate's Court, Kuthuparamba stand quashed. Learned Magistrate shall now take steps in C. P. 9/95 so far as commitment is concerned.