Order reserved on : 6.8.2019 Order delivered on : 21.8.2019 Case :- APPLICATION U/S 482 No. - 22626 of 2019 Applicant :- Sumit @ Lallu Pal And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Avijit Saxena Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
This application under section 482 Cr.P.C. has been preferred by the applicants with the prayer to allow this application and to quash the impugned orders dated 10.4.2019 as well as 8.4.2019 passed by the Chief Judicial Magistrate, Kanpur Dehat in Complaint Case No.334 of 2019 (Mahesh Chandra Sharma Versus Sumit @ Lallu and others) under Sections 325, 302/34 IPC, Police Station Sheorajpur, District Kanpur Nagar. Further prayer has been made to stay the proceedings of the aforesaid complaint case.
The brief facts of the case are as follows :
One F.I.R. was lodged by the complainant / opposite party no.2 Mahesh Chandra Sharma on 23.7.2017 regarding the offence said to have been committed on 30.5.2017 against Sumit @ Lallu, Shivam Pal, Suchit Pal, Deepak Pal, Atul Pal, Haribabu, Anuj Pal, Sahdev, Shriram Mallah and Parashuram Mallah for the offence under Section 302 IPC mentioning therein that on 30.5.2017, aforesaid accused-persons had taken the deceased Saurabh Sharma, son of the complainant / opposite party no.2 on the pretext of bathing in river Ganga and eating watermelon. Mobile phone carried by the deceased was kept by the accused-persons in the house of one Chandan. Accused Sumit Pal had called the deceased on his mobile and pressurize him to come. At about 11:00 A.M., the complainant / opposite party no.2 received information that his son has drowned in river Ganga. Complainant / opposite party no.2 and other family members reached at the place of incident and saw the torn shirt of the deceased lying there. Aforesaid accused-persons were also present there, but did not tell any thing and left the place of incident. It was also mentioned in the report that evidence of committing the offence of murder of the deceased and thereafter throwing of dead body in the river Ganga was found at the place of incident. In this regard, an information was given by the complainant / opposite party no.2 at the Police Station Sheorajpur, but no action was taken. On 1.6.2017, dead body of the deceased was found in a net of fisherman. Information in this regard was given on Dial 100, to which local police reached there and formalities for postmortem of the body were done and thereafter postmortem was conducted. Cause of death of the deceased was shown as asphyxia in the postmortem report. Only 170 M.L. Water was found in the stomach of the deceased, which clearly demonstrates that death of the deceased was not caused due to drowning, but he was firstly done to death and thereafter his body was thrown in river Ganga. Accused-persons also succeeded in managing the doctor, who conducted the postmortem, as serious injuries found on the body of the deceased were not mentioned in the postmortem report. Eyewitness account had also witnessed the incident. On exhortation made by eyewitnesses account, aforesaid accused-persons fled away from the place of incident. Local police was trying to suppress the matter after taking illegal gratification from the accused-persons. It was also written in the report that the complainant / opposite party no.2 was running from pillar to post but all in vain. Lastly, F.I.R. was lodged in the present matter.
It is also evident from the record that investigation of the case was transferred from one police station to another and lastly, on the intervention of this Court, investigation was transferred by the Superintendent of Police concerned to the Investigating Officer concerned, who has submitted charge-sheet in the present matter. It is also apparent from the record that after investigation, charge- sheet was submitted for the offence under Section 304-A IPC only against accused Shriram Mallah and Parashuram Mallah. Other accused-persons named in the F.I.R. were exonerated. It further appears that cognizance was taken by the Magistrate concerned on the charge-sheet on 5.1.2019. A complaint was filed by opposite party no.2 in this matter before the Chief Judicial Magistrate, Rama Bai Nagar / Kanpur Dehat mentioning all the details on 19.1.2019. The Magistrate concerned recorded the statement under Sections 200 and 202 Cr.P.C. and vide order dated 10.4.2019 summoned the applicants to face trial for the offence under Section 325, 302/34 IPC. Perusal of the record also reveals that on the application of the complainant / opposite party no.2 moved under Section 210 Cr.P.C., both the cases i.e. State Case and Complaint Case were clubbed together vide order dated 8.4.2019. Feeling aggrieved with the aforesaid orders, present application has been filed by the applicants.
Heard Sri Avijit Saxena, learned counsel for the applicants and learned A.G.A. for the State.
It was submitted by the learned counsel for the applicants that one F.I.R. was lodged in the present matter and police after investigation submitted charge-sheet only for the offence under section 304-A IPC. Cognizance was also taken on the charge-sheet. It is next submitted that applicants, who have been summoned vide impugned order, were not found involved in the case and no charge-sheet was submitted against them. It was further argued that complaint was filed on behalf of the opposite party no.2 on the basis of same set of facts. The Magistrate concerned ignoring the legal position, entertained the complaint and proceeded for enquiry on the complaint and also recorded statement under Sections 200 and 202 Cr.P.C. Thereafter, impugned summoning order was passed. It was next contended that since complaint was not maintainable, summoning order passed in the matter is illegal. Only option available to the complainant was to move application under section 319 Cr.P.C. at appropriate stage in the State case. At this juncture, Sri Saxena, learned counsel appearing for the applicants referred to the statement of the witnesses recorded under section 161 Cr.P.C. during investigation by the investigating officer concerned as well as the statement of the witnesses recorded under sections 200 and 202 Cr.P.C. and further argued that the Magistrate concerned adopting a new approach has passed the summoning order against the law. Offence under section 302 IPC is not made out in this matter. In support of his contention, reliance was placed by the learned counsel on the following cases laws :
1. Dharam Pal & Others Versus State of Haryana & Another, 2014 (3) SCC 306.
2. Mahesh Chand Versus B. Janardhan Reddy & Another, 2003 (1) SCC 734.
3. Anar Singh & Another Versus State of U.P. (Applicaton u/s 482 No. - 12717 of 2015 decided on 20.5.2015 by this Court).
On the other hand, learned A.G.A. opposed the prayer and submitted that complaint is maintainable. Since no charge-sheet was submitted against the applicants, therefore, Magistrate concerned has rightly entertained the complaint and conducted enquiry. There is no illegality in the summoning order. Although, charge-sheet was submitted only for the offence under section 304 A IPC against the accused named in the charge-sheet, but during enquiry, the Magistrate has found a prima facie case for the offence punishable under section 302 IPC and has rightly proceeded with the complaint against the applicants. The impugned summoning order does not suffer from any illegality or infirmity. Cases relied upon by the learned counsel for the applicants in support of his contention are not helpful in any manner.
I have considered the rival contentions advanced by learned counsel for the parties and have gone through the entire record.
Before this Court enters into the respective submissions raised at Bar, it will be appropriate to quote the relevant paragraphs of Dharam Pal (supra) case, which was relied on by the learned counsel for the applicants.
“3. In view of the above, the matter has been placed before the Constitution Bench for consideration.
4. The questions which require the consideration of the Constitution Bench are as follows:
i) Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session?
ii) If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report?
iii) Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?
iv) Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction?
v) Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?
vi) Was Ranjit Singh's case (supra), which set aside the decision in Kishun Singh's case(supra), rightly decided or not?
22. As far as the first question is concerned, we are unable to accept the submissions made by Mr. Chahar and Mr. Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate had no other function, but to commit the case for trial to the Court of Session, which could only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr. Dave, there could be no intermediary stage between taking of cognizance under Section 190(1)(b) and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Session Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event, the Session Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same.
23. The view expressed in Kishun Singh's case, in our view, is more acceptable since, as has been held by this Court in the cases referred to hereinbefore, the Magistrate has ample powers to disagree with the Final Report that may be filed by the police authorities under Section 173(3) of the Code and to proceed against the accused persons dehors the police report, which power the Session Court does not have till the Section 319 stage is reached. The upshot of the said situation would be that even though the Magistrate had powers to disagree with the police report filed under Section 173(3) of the Code, he was helpless in taking recourse to such a course of action while the Session Judge was also unable to proceed against any person, other than the accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross-examined on behalf of the accused.
24. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.
25. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court.
26. Questions 4, 5 and 6 are more or less inter-linked. The answer to question 4 must be in the affirmative, namely, that the Session Judge was entitled to issue summons under Section 193 Cr.P.C. upon the case being committed to him by the learned Magistrate. Section 193 of the Code speaks of cognizance of offences by Court of Session and provides 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 cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.” The key words in the Section are that “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.” The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr. Dave to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said Section.
27. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge.
28. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh’s case (supra) that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.
29. We are also unable to accept Mr. Dave’s submission that the Session Court would have no alternative, but to wait till the stage under Section 319 Cr.P.C. was reached, before proceeding against the persons against whom a prima facie case was made out from the materials contained in the case papers sent by the learned Magistrate while committing the case to the Court of Session.”
In the instant case, first information report was lodged against ten persons. After investigation, charge-sheet was submitted only against Shriram Mallah and Parashuram Mallah for the offence under Section 304 IPC. Opposite party no.2 / informant has filed complaint against 15 persons. The Magistrate concerned, after recording the evidence, has summoned only the applicants namely, Sumit @ Lallu Pal, Shivam Pal, Deepak Pal and Atul Pal, as above. Bone of contention raised in this matter by learned counsel for the applicants is that since a charge-sheet had been submitted in the case on the basis of same set of facts and cognizance had been taken, then complaint was not maintainable. Only option available to the complainant / opposite party no.2 was to take recourse of the provisions of Section 319 Cr.P.C. If the above submission of learned counsel is minutely analyzed with the facts and evidence of the present case and also compared the same with the law laid down in the cases relied upon by him, it is apparent that no benefit derives to the applicants with the cases cited above. In Dharam Pal (supra) case, issue raised in the present case by the learned counsel for the applicants was not involved. Issues decided in the case of Dharam Pal (supra) are different with the issue involved in this matter. In Dharam Pal (supra) case, a Constitution Bench of the Hon'ble Supreme Court has held that the Magistrate concerned if disagrees with the police report, may take cognizance against those persons who are put in column no.2 of the police report.
If the ratio laid down in Dharam Pal (supra) case is taken into consideration, then also the complaint proceedings initiated by the opposite party no.2 in the present matter against those persons, who were not charge-sheeted, were well maintainable. In the case of Dharam Pal (supra), bar about the maintainability of the complaint proceedings against the accused not named in the charge- sheet has not been created.
As far as law laid down in Anar Singh (supra) case is concerned, this Court relying on the case of Dharam Pal (supra) has held that the Magistrate concerned is empowered to take cognizance against the persons who are not charge-sheeted.
In Mahesh Chand (supra) case, issue raised before the Hon'ble Supreme Court was that whether second complaint is maintainable or not and it has been held that there is no statutory bar in filing the second complaint on the same facts. In a case where previous complaint is dismissed without assigning any reason, the Magistrate under Section 204 Cr.P.C. may take cognizance of the offence and issue process if there is sufficient ground for proceeding in the second complaint.
Thus, on careful perusal of the case laws relied upon by the learned counsel for the applicants, this Court is of the opinion that issues raised at Bar in instant case were not involved in the cases of Dharam Pal (supra), Mahesh Chand (supra) and Anar Singh (supra). In my opinion, when the Magistrate has taken cognizance on the charge-sheet only against the persons / accused, who were put in column no.1 and no cognizance was taken against the persons put in column no.2 of the police report, then complaint is well maintainable against the persons not charge-sheeted although they were named in the F.I.R. Contention raised by Sri Saxena cannot be accepted. Complainant / opposite party no.2 cannot be directed to wait till the stage under Section 319 Cr.P.C. Summoning order passed on the complaint against the applicants is not unjust and illegal.
So far as statement of the witnesses recorded under Section 161 Cr.P.C., presence of eyewitnesses account at the place of incident as also the facts mentioned in the two postmortem reports and site plan prepared by different Investigating Officers are concerned, all the submissions made at the bar relate to the disputed questions of fact which cannot be adjudicated upon by this Court in this proceedings, as it require leading of evidence and it can only be done during trial.
As far as clubbing of both the matters together for trial vide order dated 8.4.2019 is concerned, no illegality or infirmity has been committed by the Magistrate concerned. Since facts of the complaint and facts mentioned in the F.I.R. are same, the Magistrate concerned has rightly allowed the application moved by the complainant under Section 210 Cr.P.C. Whether offence under Section 302 IPC or 304-A IPC is made out, it may be decided by the trial court at the time of framing of the charge. At this stage, in this proceeding, on going through the entire facts and evidence of the present case, particularly keeping in view the statement of the witnesses recorded on the complaint, it cannot be held that there is no prima facie case to proceed with the trial. The court dealing with the matter, at this stage, has to see only a prima facie case and on close scrutiny of entire facts and evidence, it cannot be said that no prima-facie case is made out against the applicants. The concerned Magistrate has not committed any illegality or irregularity in passing the summoning order. Complaint is well maintainable. Hence, the prayer made in the present application is refused.
However, it is directed that in case the applicants surrender before the court below and apply for bail within 30 days from today, the same shall be considered and decided in view of the settled law. For a period of 30 days from today, no coercive action shall be taken against the applicants.
It is made clear that no further time shall be allowed to the applicants for surrender before the court concerned.
With the above observations, the application under Section 482 Cr.P.C. stands disposed of.
Order date : 21.8.2019. ss