Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 785 OF 2013

(Arising out of SLP (Crl. ) No. 294 of 2013)

Moti Lal Songara ...Appellant

Versus

Prem Prakash @ Pappu and Anr. ...Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.The factual score of the case in hand frescoes a

scenario and reflects the mindset of the first

respondent which would justifiably invite the

statement “court is not a laboratory where children

come to play”. The action of the accused-respondent

depicts the attitude where one calculatedly conceives

Page 2 the concept that he is entitled to play a game of

chess in a court of law and the propriety, expected

norms from a litigant and the abhorrence of courts to

the issues of suppression of facts can comfortably be

kept at bay. Such a proclivity appears to have

weighed uppermost in his mind on the base that he

can play in aid of technicalities to his own advantage

and the law, in its essential substance, and justice,

with its divine attributes, can unceremoniously be

buried in the grave. But, an eloquent one, the

complainant with his committed and adroit

endeavour has allowed the cause to rise like a

phoenix from the grave by invoking the jurisdiction of

this Court assailing the order passed by the High

Court of Judicature of Rajasthan at Jodhpur in

Criminal Revision No. 327 of 2011 whereby the

learned single Judge by order dated 13.8.2012

accepted the plea of the accused-respondent and

quashed the charges framed against him for the

offences punishable under Sections 323, 324 and 307

of the Indian Penal Code (for short “IPC”) not on the

2

Page 3 substratum of merits but on the foundation that the

order dated 19.11.2008 passed by the learned

Additional Chief Judicial Magistrate taking cognizance

and issuing summons had already been set aside by

the Additional District and Sessions Judge, No. 1,

Jodhpur, in Criminal Revision No. 7 of 2009 and,

therefore, the principle “when the infrastructure

collapses, the superstructure is bound to collapse”

got attracted. As it appears, though the High Court

noticed the various dates, the suppression of facts

and the factum that the accused being fully aware

that the charges had been framed in Sessions Case

No. 9 of 2009 by the learned Additional Sessions

Judge, No. 3, Jodhpur on 27.7. 2009, chose not to

inform the revisional court, namely, the learned

Additional District and Sessions Judge, No. 1, Jodhpur,

yet, possibly feeling legally helpless, interfered with

the order of framing charges and quashed the same

granting liberty to the prosecution to file an

application under Section 319 of the Code of Criminal

3

Page 4 Procedure (for brevity “the Code”) at the relevant

stage.

3.Presently to the initial factual exposition. The

appellant, as informant, lodged a First Information

Report No. 428 of 2007 on 23.11.2007 at Police

Station Pratap Nagar, District Jodhpur, on the basis of

which investigation was carried on and, eventually, a

charge sheet was placed for the offences punishable

under Sections 341, 323, 324, 307 and 379 IPC

against one Shyam Lal s/o Venaram. After the

submission of the charge-sheet, the informant filed

an application before the learned Additional Chief

Judicial Magistrate No. 2, Jodhpur, asseverating that

another accused, Prem Prakash, who had attacked

his son with knife had deliberately not been made an

accused. The learned Magistrate, as is manifest,

after analyzing the materials on record, thought it

appropriate to take cognizance against Prem Prakash

@ Pappu for the offences punishable under Sections

323, 324, 307 and 379 IPC and, accordingly,

summoned him through arrest warrant.

4

Page 5 4.Being dissatisfied, accused Prem Prakash called in

question the legal sustainability of the said order in

Criminal Revision No. 7 of 2009 which came to be

dealt with by the learned Additional District and

Sessions Judge, No. 1, Jodhpur who, after referring to

the rulings in Kalamudeen and others v. State of

Rajasthan and another

1

and Natthi Singh v.

State of Rajasthan and another

2

, opined that

when the offences were triable by a court of Session,

the Magistrate could not have taken cognizance on

the basis of a protest petition and, accordingly, set it

aside vide order dated 14.10.2009.

5.Be it noted, on that day, the Additional Public

Prosecutor was present but, unfortunately, the

informant who was arrayed as opposite party No. 2 in

the revision petition was absent. The disturbing

feature, as is perceptible, is that on the basis of the

cognizance taken by the learned Additional Chief

Judicial Magistrate, both the accused persons,

namely, Shyam Lal and Prem Prakash, were sent up

1

2005 (2) Cr.L.R. (Raj.) 1118

2

2007 (1) Cr.L.R. (Raj.) 621

5

Page 6 for trial and the matter was dealt with by the learned

Additional District and Sessions Judge, No. 3, Jodhpur

who, on 27.7.2009, heard the learned counsel for the

parties, the Public Prosecutor and after dwelling upon

the allegations in the FIR, considering the

involvement of the accused persons in the crime in

question, taking note of the nature of injuries,

adverting to the ingredients of the offence under

Section 307 IPC, prima facie appreciating the

credibility of the witnesses and many other factors,

held as follows: -

“.......looking to the facts and circumstances of

the case, in the perspective of the principle

propounded in the abovementioned rulings,

prima facie, it appears that due to the reason of

old enmity the accused persons have inflicted a

number of injuries by the sharp weapon on the

body of the victim and therefrom it is clear that

common intention of the accused persons was

to attempt to commit the murder of the victim

Dinesh Kumar. At this stage, it is not

appropriate to minutely and critically appreciate

the evidence. From the guidance sought from

the abovementioned rulings, it is clear that at

this stage compared to the result of the acts

committed by the accused persons, criminal

intention of the accused persons is more

important. Any fatal injury has not been

inflicted on any vital part of the body of the

victim and only on that ground at this stage, it

is not justified and lawful to discharge the

6

Page 7 accused persons from the offence punishable

under Section 307 of the Indian Penal Code.”

6.However, as far as the offence under Section 379 IPC

is concerned, he discharged them of the said charge.

Ultimately, charges were framed for the offences

under Section 341, 323/34, 324/34, 307 in the

alternative under Section 307/304 IPC.

7.We have referred to the said order in detail to

highlight that the matter was heard at length at the

time of framing of charge and arguments were

considered seeking discharge. However, for the

reasons best known to the prosecution and to the

accused-respondent, it was not brought to the notice

of the learned Additional District and Sessions Judge

No. 1, Jodhpur who allowed the revision holding that

the order issuing summons was not justified. It is

really unfathomable as to why the sustainability of

the order taking cognizance when called in question

was not heard by the learned Additional District and

Sessions Judge No. 3, who was dealing with the

Sessions Case No. 9 of 2009.

7

Page 8 8.After the order taking cognizance was set aside in

revision, an application was filed on 11.1.2010

seeking discharge. The learned trial Judge narrated

the entire gamut of facts and observed that the fact

of framing of charges was not brought to the notice

of the learned Additional District and Sessions Judge,

No.1, and further the High Court, in Criminal Revision

No. 1046 of 2009 which was preferred against the

order of framing of charge, neither set it aside nor

modify it and, accordingly, did not think it

appropriate to discharge the accused-respondent.

9.As the factual matrix would uncurtain, undeterred by

his conduct, the respondent, Prem Prakash, preferred

Criminal Revision before the High Court. The learned

single Judge of the High Court, after chronicling the

facts in detail, came to hold that when the order

dated 14.10.2009 passed by the revisional court

setting aside the order taking cognizance was not

challenged, the very basis of the continuance of the

proceeding had become extinct and, therefore, the

order of framing of charges could not be sustained.

8

Page 9 However, as stated earlier, he granted liberty to the

prosecution to file an application under Section 319

of the Code for summoning the additional accused at

the appropriate stage. Be it noted, the High Court

has also observed that the order passed in revision

setting aside the order of cognizance was not

justified in law.

10.Ms. Madhurima Tatia, learned counsel for the

appellant, has submitted that when the accused has

not approached the court in clean hands and the

High Court itself has observed that the order setting

aside the order of cognisance was not justified, it

should not have interfered with the order passed by

the learned trial Judge declining to discharge the

accused. Per contra, Mr. Rishabh Sancheti, learned

counsel for the respondent No. 1, would contend that

the order passed by the High Court in revision is

absolutely impeccable inasmuch as once the order

taking cognizance had gone unchallenged, it was

obligatory on the part of the High Court to direct a

discharge. That apart, it is urged by him that the

9

Page 10 learned Magistrate could not have taken cognizance

in exercise of power under Section 190 of the Code of

Criminal Procedure. Mr. Imtiaz Ahmed, learned

counsel for the State, submitted that though the

State has not challenged the order, yet it is a case

where the accused-respondent should not have been

discharged.

11.First, we shall advert to the legal propriety of the

order taking cognizance by the learned Additional

Chief Judicial Magistrate. The learned counsel for the

accused-respondent has submitted with immense

vehemence that in view of the conflicting views, the

controversy relating to the power of the Magistrate

under Section 190 of the Code has been referred to

the larger Bench and, hence, the order of taking

cognizance is invulnerable. To appreciate the said

submission, we think it seemly to refer to certain

pronouncements pertaining to the said issue. In

Ranjit Singh v. State of Punjab

3

, a three-Judge

Bench was dealing with the issue whether the

3

(1998) 7 SCC 149

10

Page 11 Sessions Court can add a new person to the array of

the accused in a case pending before it at a stage

prior to collecting any evidence. The three-Judge

Bench was dealing with the said issue as reservations

were expressed by a two-Judge Bench in Raj

Kishore Prasad v. State of Bihar

4

with regard to

the ratio laid down in Kishun Singh v. State of

Bihar

5

. The conclusion that has been recorded in

Ranjit Singh’s case is as follows: -

“19. So from the stage of committal till the

Sessions Court reaches the stage indicated in

Section 230 of the Code, that court can deal

with only the accused referred to in Section 209

of the Code. There is no intermediary stage till

then for the Sessions Court to add any other

person to the array of the accused.

20. Thus, once the Sessions Court takes

cognizance of the offence pursuant to the

committal order, the only other stage when the

court is empowered to add any other person to

the array of the accused is after reaching

evidence collection when powers under Section

319 of the Code can be invoked. We are unable

to find any other power for the Sessions Court

to permit addition of new person or persons to

the array of the accused. Of course it is not

necessary for the court to wait until the entire

evidence is collected for exercising the said

powers.”

4

(1996) 4 SCC 495

5

(1993) 2 SCC 16

11

Page 12 12.In Kishori Singh and others v. State of Bihar

and another

6

, the learned Judges have opined thus:

-

“10. So far as those persons against whom

charge-sheet has not been filed, they can be

arrayed as “accused persons” in exercise of

powers under Section 319 CrPC when some

evidence or materials are brought on record in

course of trial or they could also be arrayed as

“accused persons” only when a reference is

made either by the Magistrate while passing an

order of commitment or by the learned Sessions

Judge to the High Court and the High Court, on

examining the materials, comes to the

conclusion that sufficient materials exist against

them even though the police might not have

filed charge-sheet, as has been explained in the

latter three-Judge Bench decision. Neither of the

contingencies has arisen in the case in hand.”

13.In M/s. India Carat Pvt. Ltd. v. State of

Karnataka and another

7

, a three-Judge Bench,

after analyzing the provisions of the Code, referred to

the decisions in Abhinandan Jha v. Dinesh

Mishra

8

and H.S. Bains v. State

9

and, eventually,

ruled thus: -

“The position is, therefore, now well settled that

upon receipt of a police report under Section

173(2) a Magistrate is entitled to take

6

(2004) 13 SCC 11

7

(1989) 2 SCC 132

8

AIR 1968 SC 117

9

(1980) 4 SCC 631

12

Page 13 cognizance of an offence under Section 190(1)

(b) of the Code even if the police report is to the

effect that no case is made out against the

accused. The Magistrate can take into account

the statements of the witnesses examined by

the police during the investigation and take

cognizance of the offence complained of and

order the issue of process to the accused.

Section 190(1)(b) does not lay down that a

Magistrate can take cognizance of an offence

only if the investigating officer gives an opinion

that the investigation has made out a case

against the accused. The Magistrate can ignore

the conclusion arrived at by the investigating

officer and independently apply his mind to the

facts emerging from the investigation and take

cognizance of the case, if he thinks fit, in

exercise of his powers under Section 190(1)(b)

and direct the issue of process to the accused.”

14.In Dharam Pal and others v. State of Haryana

and another

10

, a three-Judge Bench was dealing

with a reference to resolve the conflict of opinions in

Kishori Singh (supra), Rajinder Prasad v.

Bashir

11

and SWIL Ltd. v. State of Delhi

12

. At

that juncture, the pronouncements in Kishun Singh

(supra) and Ranjit Singh (supra) were brought to

the notice of the Court. After referring to various

provisions of the Code, the Bench of three learned

Judges expressed as follows: -

10

(2004) 13 SCC 9

11

(2001) 8 SCC 522

12

(2001) 6 SCC 670

13

Page 14 “Prima facie, we do not think that the

interpretation reached in Ranjit Singh case is

correct. In our view, the law was correctly

enunciated in Kishun Singh case. Since the

decision in Ranjit Singh case is of three-Judge

Bench, we direct that the matter may be placed

before the Hon’ble the Chief Justice for placing

the same before a larger Bench.”

15.There is no dispute that the reference is still pending.

In Uma Shankar Singh v. State of Bihar and

another

13

, a two-Judge Bench was dealing with the

issue pertaining to the power of the Magistrate under

Section 190(1)(b) of the Code. After taking note of

the decisions and the reference order in Dharam Pal

(supra), the Court accepted the submission that the

law is well settled that the Magistrate is not bound to

accept the final report filed by the investigating

agencies under Section 173(2) of the Code and is

entitled to issue process against an accused even

though exonerated by the said authorities without

holding any separate enquiry on the basis of the

police report itself. The learned Judges proceeded to

state that even if the investigating authority is of the

view that no case has been made out against an

13

(2010) 9 SCC 479

14

Page 15 accused, the Magistrate can apply his mind

independently to the materials contained in the

police report and take cognizance thereupon in

exercise of his powers under Section 190(1)(b) CrPC.

16.In the said case, while dealing with the pendency of a

reference before a larger Bench and also adverting to

the pending reference in relation to the lis, the Court

observed as follows: -

“...it is not necessary to wait for the outcome of

the result of the reference made to a larger

Bench in Dharam Pal case. The reference is

with regard to the Magistrate’s power of enquiry

if he disagreed with the final report submitted

by the investigating authorities. The facts of

this case are different and are covered by the

decision of this Court in India Carat (P) Ltd.

following the line of cases from Abhinandan Jha

v. Dinesh Mishra onwards.”

17.In view of the aforesaid enunciation of law, we are of

the considered view that the order taking cognizance

cannot be found fault with. We may hasten to clarify

that the learned Additional Chief Judicial Magistrate

has taken cognizance on the basis of facts brought to

his notice by the informant and, therefore, he has, in

15

Page 16 fact, exercised the power under Section 190(1)(b) of

the Code.

18.The second limb of the submission is whether in the

obtaining factual matrix, the order passed by the

High Court discharging the accused-respondent is

justified in law. We have clearly stated that though

the respondent was fully aware about the fact that

charges had been framed against him by the learned

trial Judge, yet he did not bring the same to the

notice of the revisional court hearing the revision

against the order taking cognizance. It is a clear

case of suppression. It was within the special

knowledge of the accused. Any one who takes

recourse to method of suppression in a court of law,

is, in actuality, playing fraud with the court, and the

maxim supressio veri, expression faisi , i.e.,

suppression of the truth is equivalent to the

expression of falsehood, gets attracted. We are

compelled to say so as there has been a calculated

concealment of the fact before the revisional court.

It can be stated with certitude that the accused-

16

Page 17 respondent tried to gain advantage by such factual

suppression. The fraudulent intention is writ large. In

fact, he has shown his courage of ignorance and tried

to play possum. The High Court, as we have seen,

applied the principle “when infrastructure collapses,

the superstructure is bound to collapse”. However,

as the order has been obtained by practising fraud

and suppressing material fact before a court of law to

gain advantage, the said order cannot be allowed to

stand. That apart, we have dealt with regard to the

legal sustainability of the order in detail. Under these

circumstances, we are disposed to think that the

power under Article 142 of the Constitution is

required to be invoked to do complete justice

between the parties. Cognizance of the offences had

been rightly taken by the learned Magistrate and

charges, as we find, have been correctly framed by

the learned trial Judge. A victim of a crime has as

much right to get justice from the court as an

accused who enjoys the benefit of innocence till the

allegations are proven against him. In the case at

17

Page 18 hand, when an order of quashment of summons has

been obtained by suppression, this Court has an

obligation to set aside the said order and restore the

order framing charges and direct the trial to go on.

And we so direct.

19.Consequently, the appeal is allowed, the order

passed by the High Court in Criminal Revision No.

327 of 2011 and the order passed by the learned

Additional District and Sessions Judge, No.1, Jodhpur,

in Criminal Revision No. 7 of 2009 are set aside and it

is directed that the trial which is pending before the

learned Additional District and Sessions Judge, No. 3,

Jodhpur, shall proceed in accordance with law.

……………………………… .J.

[K. S. Radhakrishnan]

….………………………….J.

[Dipak Misra]

New Delhi;

May 16, 2013.

18