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CASE NO.:

Appeal (crl.) 964 of 2001

PETITIONER:

RAJINDER PRASAD

Vs.

RESPONDENT:

BASHIR & ORS.

DATE OF JUDGMENT: 19/09/2001

BENCH:

M.B. Shah & R.P. Sethi

JUDGMENT:

SETHI,J.

Leave granted.

Aggrieved by the order of the Additional Sessions Judge, Deeg by

which charges were framed against them for offences punishable under

Sections 147, 148, 323, 324, 149, 427 and 395 of the Indian Penal Code,

the respondents filed a petition under Section 482 of the Code of

Criminal Procedure (hereinafter referred to as "the Code") praying for

quashing the aforesaid order. Holding that the Magistrate, being the

court of committal, had no power to add four respondents as accused-

persons without adopting procedure as prescribed under Section 203 of

the Code, the High Court allowed the petition of the respondents and

set aside the order the court by which cognizance of offence under

Section 395 of the Indian Penal Code was taken. The case has been

remanded back to the learned Magistrate to hold inquiry as per the

provisions of Section 203(2) of the Code with direction that if he

finds that a case under Section 395 IPC is made out, he will pass

necessary orders against the accused persons and commit the case to the

Sessions Judge, if necessary.

The facts giving rise to the filing of the appeal are that on

10.3.1988 when the appellant-informant was sitting at his shop in the

company of his brothers, the accused persons, namely, Chhaju Khan,

Bannu Khan, Nasru Khan, Zakir Khan, Mumrej Khan, Razak Khan, Kallu,

Nannu, Ramesh Mishtri and four others came there and assaulted

Hotilal, one of the brothers of the appellant with intention to kill

him. The other brothers of the appellant were also assaulted as a

result whereof they received injuries. Accused persons took away a sum

of Rs.600 along with some papers from the shop of the informant. The

showroom (shop) was also damaged resulting in loss to the property. A

case was registered against the accused persons under various sections

and after investigation charge-sheets were submitted against them. As

the charge under Section 395 IPC was not added against the accused-

persons, the appellant-complainant submitted a protest petition seeking

the addition of the aforesaid offence against them. By another

application the appellant-complainant sought the addition of four

accused persons, namely, Babu, Bashir, Sultan and Rajjal as their names

were allegedly wrongly dropped from the list of accused persons by the

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investigating agency. The committal Magistrate allowed the

applications and committed the case to the court of Sessions whereafter

the learned Additional Sessions Judge being the trial court framed the

charges against the respondents including the charge under Section 395

IPC.

The respondents submitted before the High Court that the

Magistrate had committed a grave error by taking cognizance for offence

under Section 395 IPC as also by adding the names of aforesaid four

accused persons while committing them to the court of Sessions to stand

their trial.

Learned counsel appearing for the appellant made a two-fold

submission to assail the judgment of the High Court. Firstly, he

contended that as the earlier revision petition filed by the accused

persons under Section 397 of the Code had been rejected by the High

Court vide order dated 13.7.1990 (Annexure P-6), they had no right to

file the petition under Section 482 of the Code with prayer for

quashing the same order. Secondly, it is submitted that the High Court

committed a mistake of law by directing the Magistrate to follow the

procedure as prescribed under Section 203 of the Code.

The order of the High Court dated 13.7.1990 shows that 13

respondents - accused persons had filed the revision petition

challenging the order of the Magistrate taking cognizance for the

offence under Section 395 IPC and for impleading respondents 10 to 13

as accused persons. After the commitment, the Magistrate as well as

the Sessions Judge had issued non-bailable warrants against the accused

persons. When the High Court directed accused persons to appear before

the trial court and furnish their bail bonds, the learned counsel for

the accused did not press his petition so far as taking of cognizance

against them was concerned. The relevant portion of the order dated

13.7.1990 is reproduced hereunder:

"Petitioners before me have challenged the order of the

Magistrate, Deeg looking cognizance for the offence under

Section 395 IPC and for other offence against the

petitioners 10 to 13 after some time there have contended

there petitioners 1 to 9 were on bail granted under section

436 Cr.P.C. and after adding a non bailable offence viz

section 395 IPC. The Magistrate and the Sessions Judge

both have directed for issuance of non-bailable warrants

both this is not proper, as the petitioners 1 to 9 have

already been granted bails. For petitioners 10 to 13 it is

stated that they will also appear before the court and

furnish their bail and bonds. As far as the first part of

the plea about taking cognizance is concerned the learned

counsel for the petitioner does not press the same."

We are of the opinion that when the earlier revision petition

filed under Section 397 of the Code had been dismissed as not pressed,

the accused-respondents could not be allowed to invoke the inherent

powers of the High Court under Section 482 of the Code for the grant of

the same relief. We do not agree with the arguments of the learned

counsel for the respondents that as the earlier application had been

dismissed as not pressed, the accused had acquired a right to challenge

the order adding the offence under Section 395 of the Code and arraying

four persons as accused-persons by way of subsequent petition under

Section 482 of the Code. The object of criminal trial is to render

public justice and to assure punishment to the criminals keeping in

view that the trial is concluded expeditiously. Delaying tactics or

protracting the commencement or conclusion of the criminal trial are

required to be curbed effectively, lest the interest of public justice

may suffer. For exercising power under Section 482 of the Code the

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learned Judge of the High Court relied upon a judgment of this Court in

Krishnan & Anr. v. Krishnaveni & Ors. [1997 (4) SCC 241]. A perusal of

the aforesaid judgment, however, shows that the reliance by the learned

Judge was misplaced. This Court in Krishnan's case (supra) had held

that though the power of the High Court under Section 482 of the Code

is very wide, yet the same must be exercised sparingly and cautiously

particularly in a case where the petitioner is shown to have already

invoked the revisional jurisdiction under Section 397 of the Code.

Only in cases where the High Court finds that there has been failure of

justice or misuse of judicial mechanism or procedure, sentence or order

was not correct, the High Court may, in its discretion, prevent the

abuse of the process or miscarriage of justice by exercise of

jurisdiction under Section 482 of the Code. It was further held,

"Ordinarily, when revision has been barred by Section 397(3) of the

Code, a person - accused/complainant - cannot be allowed to take

recourse to the revision to the High Court under Section 397(1) or

under inherent powers of the High Court under Section 482 of the Code

since it may amount to circumvention of provisions of Section 397(3) or

Section 397(2) of the Code."

We are of the opinion that no special circumstances were spelt

out in the subsequent application for invoking the jurisdiction of the

High Court under Section 482 of the Code and the impugned order is

liable to be set aside on this ground alone.

Even on merits, the High Court committed a mistake of law by

referring to the provisions of Section 203 of the Code and after

setting aside the impugned order directing the Judicial Magistrate to

hold inquiry as per Section 203(2) of the Code before deciding the

inclusion of offence under Section 395 I.P.C. or impleadment of the

respondents as accused persons. Chapter XV of the Code comprising of

Sections 200 to 203 deals with the complaints to Magistrate and the

procedure prescribed for dealing with such complaints. In the instant

case no complaint was filed before the Magistrate by the complainant

requiring him to follow the procedure under Chapter XV. Reference to

sub-section (2) of Section 203 of the Code is misconceived inasmuch as

no such sub-section exists in the statute book.

From the facts of the case, it appears that while passing the

order which was challenged before the High Court, the Magistrate had

taken recourse to Chapter XIV (Sections 190 to 199) of the Code.

Section 190 of the Code empowers the Magistrate to 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."

Under this section, a Magistrate has jurisdiction to take

cognizance of offences against such persons also who have not been

arrested by the police as accused persons, if it appears from the

evidence collected by the police that they were prima facie guilty of

offence alleged to have been committed. Section 209 of the Code

prescribes that 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 Sessions he shall commit, after compliance with the

provisions of Section 207 or Section 209, as the case may be, the case

to the court of Sessions and subject to the provisions of the Code,

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pass appropriate orders. This Section refers back to Section 190, as

is evident from the words "instituted on a police report" used in

Section 190(1)(b) of the Code. While dealing with the scope of Section

190 this Court in Raghubans Dubey v. State of Bihar [1967 (2) SCR 423]

held that the cognizance taken by the Magistrate was of the offence and

not of the offenders. Having taken cognizance of the offence, a

Magistrate can find out who the real offenders were and if he comes to

the conclusion that apart from the persons sent by the police some

other persons were also involved, it is his duty to proceed against

those persons as well.

Approving the judgment in Raghubans Dubey's case (supra) this

Court in M/s.SWIL Ltd. v. State of Delhi & Anr. [JT 2001 (6) SC 405]

held:

"....in the present case there is no question of referring

to the provisions of Section 319 Cr.P.C. That provision

would come into operation in the course of any inquiry into

or trial of an offence. In the present case, neither the

Magistrate as holding inquiry as contemplated under Section

2(g) Cr.P.C. nor the trial had started. He was exercising

his jurisdiction under Section 190 of taking cognizance of

an offence and issuing process. There is no bar under

Section 190 Cr.P.C. that once the process is issued against

some accused on the next date, the Magistrate cannot issue

process to some other person against whom there is some

material on record, but his name is not included as accused

in the charge-sheet."

The present case is squarely covered by the aforesaid judgments

which renders the order impugned not sustainable under law.

Under the circumstances, the appeal is allowed by setting aside

the order impugned and by upholding the order of the Additional

Sessions Judge.

......................J.

(M.B. SHAH)

......................J.

(R.P. SETHI)

SEPTEMBER 19, 2001