LAL SINGH Vs. BHARAT SANGH

JUDGEMENT

(1.) HEARD Sri Daya Shankar Mishra, Sri Chandrakesh Mishra, learned counsel for the applicant, learned A.G.A. for the State of U.P. and Sri N.I. Zafri, learned counsel for the C.B.I. This application under section 482 Cr.P.C. has been filed by the applicant Lal Singh with a prayer to quash the orders dated 21.9.2001, 1.10.2001, 11.10.2001, 1.11.2001. 6.11.2001 and 04.12.2001 passed by the Incharge Special Judicial Magistrate / Magistrate, Dehradun in case No. 1288 of 2001 C.B.I. Vs. Lal Singh and others under section 302/234, 193/34, 201/34 IPC. The orders dated 7.1.2002 and 26.2.2004 passed by learned Special Judicial Magistrate/ Magistrate C.B.I. Dehradun and the order dated 2.4.2004 passed by learned Special Judge (Anti corruption) U.P. (East), Ghaziabad and the further proceedings proceedings pending in the court of Special Judge (Anti Corruption) U.P. (East), Ghaziabad in Special case No. 12 of 2004 under section 302/234, 193/34 and 201/34 IPC.

(2.) THE facts in brief of this case are that an FIR in case crime No. 138 of 1996 under section 302 IPC, P.S. Bhojpur, District Ghaziabad was registered against the accused Ranpal, Bhagwat, Vinod and Surendra in which one Jageshwar was killed. On 8.11.1996 the applicant who was officer incharge of P.S. Bhojpur, District Ghaziabad along with police personal Suryabhan, Ranveer Singh, Subhash Chandra and the accused persons Ranpal, Bhagwat, Vinod and Surendra proceeded from the police station in a police jeep driven by its driver Sukhpal Singh for the purpose of recovering the weapons used in the commission of the alleged offence by making its entry in G.D. No. 22 at 15.10 O'clock, when they reached near the sugar cane filed of one Charmu at about 3.30 P.M. they saw four miscreants sitting one bridge. The miscreants were asked to stop by the police party, they fired at the police party but fortunately nobody sustained any injury from the side of the police. In defence the applicant, constable Ranveer, constable Suryabhan and constable Subhash Chandra also fired towards the miscreants consequently two of the miscreants died on the spot but remaining two miscreants entered into the sugar can field of Charmu. The firing was going on from both the sides, in the meantime the message was given to the control room by the driver of the jeep. The additional police force was also came at the place of the incident, the miscreants who had entered into a sugar cane field, on which the firing was done by the miscreants ultimately both the miscreants after sustaining the injury also died on the spot. In the said police encounter all the four miscreants had died. Its FIR was lodged in case crime No. 142 of 1996, 143 of 1996, 144 of 1996, 145 of 1996 and 146 of 1996 under sections 307 IPC and 25 Arms Act. In the said incident fire arms used by the miscreants were also recovered by the police. Its investigation was entrusted to Officer Incharge of P.S. Hapur, District Ghaziagad. The statements of the witnesses of case crime No. 138 of 1996 were recorded under section 161 Cr.P.C. in which they categorically stated that there had been a police encounter with the miscreants, after concluding the investigation the final report was submitted in the court of learned Magistrate concerned, the same was accepted by Addl. C.J.M. (North), Ghaziabad on 5.4.1997 but the State Government ordered for Magisterial enquiry, the inquiry was entrusted to A.D.M. Ghaziabad who forwarded the inquiry report dated 27.11.1997 to Home Secretary, U.P. Government, Lucknow. Thereafter the State Government referred the matter to CBI, the CBI registered the FIR in case crime No. RC 7 (R/37/97/SIC -4/Lucknow) on 10.4.1997 at 10 A.M. The CBI concluded the investigation and submitted the charge sheet dated 10.9.2001 before Incharge Special Judicial Magistrate CBI (Anti Corruption), Dehradun on which the cognizance was taken on 1.10.2001, subsequently the orders dated 1.10.2001, 11.10.2001, 6.11.2001 and 4.12.2001 were passed by Incharge Special Judicial Magistrate (Anti Corruption), Dehradun. The sanction of the prosecution was obtained from the Government, the same was produced before the court of Special Judicial Magistrate (CBI), Dehradun on 7.1.2002. Thereafter the applicant and one other co -accused filed a transfer petition before the Supreme Court of India for transferring the case from the court of CBI Dehradun to the competent court of Uttar Pradesh, the same was allowed by the Supreme Court of India on 19.12.2003 by transferring the case from the court of Special Magistrate (CBI), Dehradun, Uttranchal to the court of Special Judge (Anti Corruption) U.P. (East) Ghaziabad), U.P. vide order dated 19.12.2003. In pursuance of the order dated 19.12.2003 the case has been transferred to the court of Special Judge (Anti Corruption) U.P. (East), Ghaziabad by the Judicial Magistrate C.B.I. Dehradun, Uttranchal vide order dated 26.2.2004. The record of the above mentioned case was received in the court of Special Judge (Anti Corruption), U.P. (East) Ghaziabad on 2.4.2004 whereby the case was registered and warrant of the arrest was issued against the accused person. The proceedings pending in the court of Special Judge (Anti Corruption), U.P. (East), Ghaziabad have been challenged by filing the present application under section 482 Cr.P.C. It is contended by learned counsel for the applicant that the offence in which the applicant is accused is triable by court of sessions. The Special Judge (Anti Corruption), U.P. (East), Ghaziabad is a court of sessions. The proceedings of the applicant were pending in the court of Special Magistrate (Anti Corruption)/ CBI Dehradun, Uttranchal. The case has not been committed to the court of sessions under section 209 Cr.P.C. It is a necessary requirement, without committal of the case the Special Judge (Anti corruption) U.P. (East), Ghaziabad may not proceed further against the applicant, the warrant of the arrest issued by Special Judge (Anti Corruption), U.P. (East), Ghaziabad is also illegal. It is a case in which the copies of the police report and other documents have not been supplied to the applicant as required under section 207 Cr.P.C. The provision of section 193 Cr.P.C., does not empower the sessions court to take the cognizance directly, the language of section 193 Cr.P.C. is - 'except as otherwise expressly provided by this court or by any other law for the time being enforced, no court of sessions 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 court". For taking the cognizance otherwise has not been provided. In view of section 193 Cr.P.C. the Special Judge (Anti Corruption), U.P. (East), Ghaziabad is not empowered to take the cognizance against the applicant. In the present case the provision of of section 207 and 209 Cr.P.C. have not been followed. In such circumstances, the order passed by Special Magistrate (Anti Corruption)/ CBI Dehradun, Uttranchal and the orders passed by Special Judge (Anti Corruption), U.P. East, Ghaziabad are also illegal, because the court of Special Judge (Anti Corruption), U.P. (East), Ghaziabad is not empowered to take the cognizance which is barred by provisions of section 193 Cr.P.C., therefore, the order passed by the special Judge (Anti Corruption) may be quashed.

(3.) CONSIDERING the submissions made by learned counsel for the applicant, counsel for the C.B.I. and perusing the records it appears that in the present case the applicant was accused in a case pending in the court of Special Magistrate (Anti Corruption)/CBI Dehradun. On a transfer petition filed by the applicant and co -accused Subhash Chandra the Supreme Court of India transferred the proceedings of case pending against the applicant from the court of Special Magistrate CBI, Dehradun to Special Judge (Anti Corruption), U.P. (East), Ghaziabad, vide order dated 19.12.2003. The case was not committed to the court of Special Judge (Anti Corruption) by any Magistrate but it has come to the court of Special Judge (Anti corruption) in pursuance of order dated 19.12.2003 passed by the Supreme Court of India. In crucial circumstances the requirement of committal of the case triable by the court of session be done by learned Magistrate concerned and without proper committal, the cognizance is barred by the provisions of section 193 of the code of Criminal Proceedure. The section 193 Cr.P.C. reads as under: