Judgment

S.S.SANDHAWALIA, J.

1. Whether the Court of Session without itself recording evidence, can summon a person to stand trial as an accused (along with others committed to it by a Magistrate) on the basis of documents in the final report of the Investigating Officer under Section 173 of the Code of Criminal Procedure is the spinal question in this set of four cases refer-red for decision by the Division Bench. Equally at issue is some discordance of Single Bench views within this Court in Amar Singh V/s. State of Punjab (Cri. M. No.4220 of 1977 decided on the 18th of November, 1977) and Randhir Singh V/s. Kala Singh, (1979) 81 Punj LR 286 on the one hand and Balwinder Singh V/s. State of Punjab, (1981) 83 Punj LR 685 on the other.

2. As is apparent the issue afore-said is pristinely legal and the facts would, consequently pale into relative insignificance. Therefore a skeletal background thereat from Criminal Mis-cellaneous No.3837 of 1982 (1981?) Lal Chand V/s. State of Haryana would amply suffice. The incident took place on the 27th of August, 1980 at about 8.30 A.M. in the office of the Truck Union, Sonepat. Cross-cases were registered against the parties by the police on the 27th and 30th of August, 1980. One of the victims of the crime Ram Kumar, however, succumbed to his injuries later on the 2nd of September, 1980 and consequently the case against the accused persons was converted to one under Section 302, Indian penal Code, along with ancillary offences. After investigation, six accused persons, namely, Satinder Kumar, Sube Singh, Azad Singh, Rajbir, Hukam Chand and Hawa Singh were challaned by the police for the said offence. However, the investigation allegedly found Lal Chand, the President of the Truck Union to be innocent on the ground that at the time of the occurrence he was in the police station in connection with an application of one Chiranji Lal. The Magistrate, having jurisdiction, con-sequently, committed the aforesaid six accused persons for trial to the Court of Session, excluding Lal Chand on the basis of the findings of the Investigating Agency. Before the Court of Session, Bharat Singh complainant made an ap-plication for summoning Lal Chand also as an accused person to stand his trial in the case along with other co-accused. In his detailed order dated the 6th August, 1981, the learned Additional Sessions Judge, Sonepat, inter alia sum-moned Lal Chand as an accused in the case to be put in the dock along with the other co-accused. He held that since all the injured eye-witnesses had categorically made statements before the police involving Lal Chand for the commission of the alleged offence a prima facie case against him was clearly made out and a plea of alibi by him could not conclusively absolve him of the charge. The learned Judge opined that even though strictly speaking the provisions of Section 319 were not at-tracted yet he had the power to sum-mon and frame a charge against Lal Chand petitioner as well under Sec-tions 227 and 228 of the Criminal P.C. Basic reliance was placed on Randhir Singhs case. (1979) 81 Punj LR 286 (supra).

3. This case originally was heard by my learned brother S.S. Kang, J. Be-fore him the correctness of the view in Amar Singhs case and Randhir Singhs case (supra) was seriously assailed on the basis of subsequent judgments tak-ing divergent views. Noticing the con-flict of judicial opinion on the point, my learned brother Kang, J., by his lucid and detailed referring order directed the matter to be place before a larger Bench for an authoritative decision. The other three connected cases have been refer-red for identical reasons.

4. Since the basic stand of the re-spondent-State is on Sections 227 and 228 of the Criminal P.C., 1973 (herein-after called the Code) pertaining to the power of the Court of Session, to dis-charge an accused or frame a charge against him, it is apt to quote those pro-visions at the very outset. However, as the argument turns considerably on the analogy of these provisions with Sections 239 and 240 of the Code, pertaining to a similar, if not identical power of discharge or the framing of a charge against an accused person, in the trial of a warrant case by a Magis-trate it becomes necessary to juxtapose the corresponding provisions against each other:-

227. If, upon consideration of the record of the case and the docu-ments submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing. 239. If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reason for so doing.

228. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and by order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report.

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

240. (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. (2) The charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.

The close similarity, if not the virtual identity of the aforesaid Sections is too obvious to call for any elaboration. This would call for pointed reference somewhat later.

5 Proceeding on the assumption that Section 319 of the Code is not at-tracted to the situation (entirely for the sake of argument), it was conceded be-fore us that there is no other specific provision empowering the Magistrate in a warrant case or a Court of Session to summon a person for standing his trial before it on the basis of the documents and materials in the report under Section 173 of the Code who has not been specifically sent up as an accused by the investigating agency. Such a power admittedly flows from the factum of the Court taking cognizance of the offence, and trying the said case for bringing the offenders to book. Whatever doubts in this context may earlier have been raised, these now stand resolved wayback by their Lord-ships in Raghubans Dubey V/s. State of Bihar AIR 1967 SC 1167 : (1967 Cri LJ 1081) in the following terms (Para 9).

".......In our opinion once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders: once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclu-sion that apart from the persons sent up by the police some other persons are involved, it is his duty lo proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cog-nizance of an offence......."

From the above, it inflexibly follows that once a Court of competent jurisdiction, be it a Magistrate or the Court of Session, takes cognizance of the offence, it is not only within the Courts powers to summon any one who on adequate materials appears to it to be prima facie guilty of the said offence but, indeed it is its duty to do so. The aforesaid view has then been reiterated in Hareram Satpathy V/s. Tikaram Agarwala, AIR 1978 SC 1568 : (1978 Cri LJ 1987) in the context of a commitment on a murder charge to the Court of Session by the Magistrate, of a person not sent up as an accused, by the in-vestigating agency, and, again in Joginder Singh V/s. State of Punjab, AIR 1979 SC 339 : (1979 Cri LJ 333). Therefore, it seems to follow that a Magistrate trying a warrant case as also a Court of Session having once validly taken cognizance of the offence on the basis of a police report (when considering the materials before it for framing a charge), is not only entitled but indeed duty bound to summon a person as an accused to stand trial before it, if it is fully satisfied of the existence of a prima facie case against an additional accused who may not have been sent up as such.

6. Again, it was the admitted posi-tion before us that a Magistrate trying a warrant case when considering the question of the framing of charge under Sections 239 and 240 of the Code could summon a person as an additional accused, without recording evidence, it he was satisfied on the basis of the report under Section 173 of the Code, that a prima facie case was made out against him. Similarly, the position was identical under Section 209 of the Code with regard to the commitment of an accused to a Court of Session, even though such person may not have been sent up as an accused by the investigating agency. Once it is so, there seems to be no rationale whatsoever for holding that under identical and in any case similar powers under sections 227 and 228 of the Code (as already highlighted earli-er), the Court of Session would be de-nuded of the right to summon an addi-tional accused who has not been so sent up by the investigating agency or not committed by the Magistrate. Indeed, as a superior Court, the Sessions Judge would and obviously should have the same, if not wider powers than the Magistrate in a similar situation. Indeed a closer analysis shows that the powers of a Court of Session under Sections 227 and 228 of the Code are closely similar if not identical with those of the Ma-gistrate under Sections 239 and 240 of the Code and necessarily the legal position and the result cannot possibly be divergent. This view has been ela-borated in Amar Singhs case (supra) by K.S. Tiwana, J. in the following terms :-

"........Under the new Code, the power of discharge which was previously exercised by the Magistrate is now exercised by the Sessions Judge under Section 227 of the new Code. It is at this stage that the Sessions Judge applies his conscious mind to the records and documents mentioned in Sections 173, 227 and 228 of the new Code for framing a charge against the accused as he is invested with the power of taking cognizance of a case by the new Code. This power now because of Section 209 of the new Code cannot be exercised by the Magistrate. If this power is denied to the Sessions Judge, then it is likely to give unbridled pow-ers to the investigating agency in determining the guilt or innocence of the culprits itself in place of the Courts. If for wrong or extraneous considerations a person accused of an offence is let off by the investigating agency, then there will be no remedy against him it the argument of Shri Ajmer Singh, learned counsel for the petitioners is accepted, except on a complaint filed by the aggrieved party. As referred earlier, the circumstances might be in which there may not be any complainant to file a complaint, or if there is any, he may not like to move the Court. Such a restricted interpretation as has been put by the Andhra Pradesh High Court in 1977 Cri LJ 415, cannot by placed on the Court of Session. The new Code invests the Courts with cognizance of cases and not cognizance against an individuals. The power of summoning any person as accused in a case is not specifically given to the Court but it flows from the cognizancee it takes of the cases involving an offence. For the foregoing reasons, with due respect to the learned Judge deciding Patananchala China Lingaiahs case (1977 Cri LJ 415) (Andh Pra) (supra). I am unable to accept the conclusions arrived at in that case. A Sessions Judge can, in the case committed to his Court, summon any person accused of the offence, let off by the investigating agency, against whom, in his view, there is sufficient material to be pro-ceeded against."

The aforesaid view has been reiterated by the learned Judge in the later Judg-ment in Randhir Singh V/s. Kala Singh (1979) 81 Pun LR 286.

7 Within this jurisdiction, the matter further calls for examination on the basis of a precedent to which no chal-lenge whatsoever was laid on behalf of the petitioners. A Division Bench in Surat Singh V/s. State of Punjab, 1981 Chand LR (Cri) 547 : (1981 Cri LJ 565) has unreservedly held that the committing Magistrate, on the basis of the final report under Section 173 of the Code, has jurisdiction to differ with the conclusion of the police and direct that the accused not sent up for trial and mentioned in Column No.2 there-of, should also be summoned and com-mitted to the Court, of Session under Section 209 thereof. The aforesaid view was rested on the surer foundation of Hareram Satpathys case (1978 Cri LJ 1687) (SC) (supra) and it was because of this that not the least hint of criticism was levelled against these judgments on behalf of the petitioners. Therefore, proceeding on the basic premise in Surat Singhs case (supra), it seems wholly anomalous to hold that whilst the Magistrate in a case exclu-sively triable by the Court of Session can summon a person as an additional accused on the basis of the final report under Section 173 of the Code and commit him for trial, yet the superior court of Session which takes cognizance of the offence and is to try it, would be wholly barred itself from doing so. If at all any distinction arises here, it could perhaps be said that the Court of Sessions powers are wider than those of the Magistrate, but to hold in the reverse that in a somewhat identical situation and on the identical materials in the final report, the Sessions Court cannot do what the committing Magis-trate undoubtedly can, seems to me as something which is patently untenable. Even dehors the procedural provisions, on larger principle also, one sees no adequate reason to fetter and shackle the powers of the superior Court of Session from summoning a person as an additional accused to stand trial when on the material before it, it is satisfied that there exists a conclusive or in any case a prima facie case aga-inst him. One patent example would be when the investigating officer in its report under Section 173 of the Code, without any reason or basis whatsoever exonerates a person specifically named in the first information report and by all the eye-witnesses in their state-ments under Section 161 of the Code. An example is provided pertinently in the present case where the Court of Session has come to the conclusion that Lal Chand accused was named in the first information report as also by the eye-witnesses, yet he had not been sent up as an accused person merely on a plea of alibi sought to be set up by him as a defence before the police. Other instances, of this nature can be multiplied and have been referred to in Amar Singhs case (supra). To hold in such a situation, that if the investi-gating agency blatantly exonerates an accused person and the Magistrate does not consequently commit him, the court of Session itself would be rendered powerless to put such an offender in the dock at the very opening stage of the trial, would to my mind only ham-per the cause of justice rather than ad-vance it. It is to be borne in mind that herein we are construing proce-dural provisions and it is well-settled that procedure is the hand-maid of justice and is not to be employed as a road block thereto. Therefore on the larger canon of construction there ap-pears to be no logic for narrowly construing the statute so as to denude the Court of Session of the power to sum-mon a person to stand his trial at the outset even when wholly convinced of a prima facie case against him on the basis of materials in the final report which is admittedly adequate for fram-ing a charge against the committed ac-cused under Section 228 or discharging him under Section 227 of the Code.

8. Even when pin-pointed, learned counsel for the petitioners were unable to advance any adequate rationale for canvassing a constricted construction which further appears to lead to some-what anomalous results noticed above. The sole argument in this context ad-vanced by thorn was that the Court of Session was prohibited by Section 193 from summoning the additional accused because of the alleged bar under Sec-tion 193 of the Code.

9. One may, therefore, proceed to examine this stand that the Court of Session is barred from summoning the additional accused under Sections 227 and 228 of the Code because of the pro-visions of Section 193 thereof. This aspect pointedly calls for examination in the light of the earlier Section 193 of the Code and the change wrought therein by the new Code. It is, there-fore, necessary to juxtapose the two provisions:-

OLD CODE NEW CODE

Section 193 (1). Except as otherwise wise 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) * * * * * Section 193. Except as otherwise expressly provided by this court 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.

From the above the significant change brought about in the new Code is manifest. In the earlier provisions, the requirement was that the accused must have been committed to the Court of Session by a Magistrate. The legislature designedly made a change by deleting the word accused and pro-viding instead that the case should have been committed to the Court of Session. It seems to be plain that because of the aforesaid change (and it had been earlier so construed as well) the stand on behalf of the petitioners in this context is doubly untenable. As authoritatively interpreted by the final Court in Raghubans Dubeys case (1967 Cri LJ 1081) (supra) and parti-cularly so now in view of the change in Section 193 of the Code, the Court of Session takes cognizance of the case of the offence as a whole and is, there-fore entitled to summon any one who, on materials before it, appears to be guilty of such an offence to stand trial before it. To highlight, what is committed to the Court of Session by the Magis-trate is the case or the offence for trial and not the individual offenders therefor. To hold otherwise would be again re-lapsing into the fallacy that cogni-zance is taken against individual ac-cused persons and not of the offence as such. What the law under Section 193 visualises and provides for now is that the whole of the incident constit-uting the offence is to be taken cognizance of by the Court of Session on commitment and not that every indi-vidual offender must be so committed or that in case it is not so done then the Court of Session would be power-less to proceed against persons regard-ing whom it may be fully convinced that they are prima facie guilty of the crime as well. Therefore, the argument that the summon-ing of an additional accused by the Court of Session is violative of Sec-tion 193 of the Code appears to be to-tally fallacious. Once the case has been committed, the bar of Section 193 is removed or to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon any in-dividual accused of the crime. The con-tention now pressed on behalf of the petitioners was equally raised in Amar Singhs and Randhir Singhs case (1979 -81 Pun LR 286) (supra) and was cate-gorically repelled. I would entirely endorse the view expressed in these cases. It calls for pointed notice that their Lordships in Joinder Singhs case (1979 Cri LJ 333) (SC) (supra) expressly overruled the Single Bench view of the Andhra Pradesh Court in P.C. Lingaiah V/s. State of Andh. Pra. 1977 Cri LJ 415, which had earlier struck a discordant note and had been relied upon by some of the other High Courts for taking a contrary view.

10 It now remains to advert to Balwinder Singhs case (1981-83 Punj LR 685) (supra) which had raised the con-flict necessitating this reference. A perusal of the judgment therein would indicate that the matter was examined only in the limited light of Section 319 of the Code. Sections 227 and 228 on which, as now discussed the issue basi-cally turns, were even not canvassed be-fore the Bench and consequently their import did not come in for considera-tion. Counsel for the parties were some-what remiss in not bringing to the no-tice of the Bench the earlier judgments of this Court in Amar Singhs and Randhir Singhs cases (1979-81 Punj LR 286) (supra), which directly governed the point. Equally the Supreme Court judgment in Hareram Satpathys case (1978 Cri LJ 1687) and Joginder Singhs case (1979 Cri LJ 333) (supra) as also the Division Bench judgments in Fatta V/s. The State. AIR 1964 Punjab 351 : (1964 (2) Cri LJ 204) and Surat Singh V/s. The State of Punjab, 1981 Chand LR (Cri) 547 : (1981 Cri LJ 585) having a direct bearing on the point were not cited either. With the greatest respect, it has therefore to be held that Balwinder Singhs case (supra) does not lay down the law correctly and is hereby overruled.

11. Before parting with this judg-ment, it is necessary to notice that in the alternative, reliance by counsel for the complainant was also sought to be placed on Section 319 for contending that the additional accused could be summoned under the said pro-vision as well and further that the word evidence employed therein included within its sweep the contents of the final report under Section 173 as also the statements recorded under Sections 161 and 164. This stand is supported by the decisions in Ajayab Singh V/s. The State of Rajasthan (1978) ILR 28 Raj 14 : Harjiram V/s. State of Rajasthan (1979) ILR 29 Raj 662 and Chauthmal V/s. State of Rajasthan, 1982 Cri LJ 1403 (Raj). A contrary view has, however, been taken in Sheoram Singh V/s. State of Rajasthan, 1982 Cri LR Raj 637 : 1982 Rajasthan LR 550.

12. From the above, it is evident that there is some conflict of judicial opinion on this point. However, in view of the fact that I have rested myself primarily on the provisions of Sections 227 and 228 of the Code it is wholly unnecessary to be drawn into this con-troversy under Section 319 of the Code. I would, therefore, refrain from express-ing any opinion on this specific point.

13. To conclude it is held that a Court of Session, without itself recording evidence, can summon an additional ac-cused to stand trial along with others already committed to it on the basis of the documents in the final report of the Investigating Officer under Section 173, in view of the provisions of Sections 227 and 228 of the Code.

14. The significant common question having been answered as above, all the four cases will now go back for a deci-sion on merit before the respective Ben-ches.

S.S.KANG, J.

15 I agree.