BALDEV SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Santosh Kumari, sister of Pehlad Singh complainant (now respondent in this petition) was married to Hawa Singh in the year 1982 and she died on Dec. 9, 1984 in mysterious circumstances. On the basis of the information received by the police in this regard, a case under S. 306/34, I.P.C. was registered against Hawa Singh, his father Malha Ram and mother Smt. Jamna. During the course of investigation the police formed the opinion that as a matter of fact the above-noted accused were guilty of the offences under Ss. 302/34, I.P.C. The complainant on the other hand was of the view in the light of an extra-judicial confession by the present petitioners before him and members of the Panchayat that they too were guilty of the said offences. But since the police did not accept his view-point, he filed a complaint under Ss. 302/34, I.P.C. in the Court of the Magistrate impleading the petitioners and the above noted three persons as accused. Six witnesses were examined at the instance of the complainant in the Court of the Magistrate under S. 202, Cr.P.C, but the said Court, however, chose to summon, in the light of the evidence on record, the above noted three persons only and not the petitioners. The complainant did not feel satisfied with this order of the Magistrate dated July 10, 1985. He, therefore, preferred a petition under S.397, Cr.P.C, before the Additional Sessions Judge, Hissar, who vide his impugned order dated January 7, 1986, has not only quashed the order of the Magistrate to the extent he had refused to summon the petitioners as accused persons -but has also directed them to face the trial before him as by then, i.e., the date of the passing of the order, the other three had been so committed by the Magistrate. The petitioners now impugn this order of the trial court on two grounds - (i) The Additional Sessions Judge could not reappraise the evidence in revision and thereby disagree with the factual findings recorded by the Magistrate, and (ii) The said court has no jurisdiction to try the petitioners along with the above noted three accused in the absence of any order of their commitment for trial. Having heard the learned counsel for the parties at some length, I, however, find no merit in these contentions.

(2.) So far as the first aspect of the matter is concerned, I find that the Additional Sessions Judge has hardly recorded any independent finding in the light of the evidence on record to summon the petitioners and has rather depended on the findings recorded by the Magistrate. This is so very clear from the following observations which occur in the impugned judgment :- "The main evidence before the trial Court was of Pehlad Singh who deposed about the extra-judicial confession having been made by the two respondents before him and before the Panchayat. Bir Singh had found Santosh Kumari alive in the morning of 9-12-1984.lt is strange that on the basis of this evidence the trial Court summoned Hawa Singh, Mahla Ram and Smt. Jamna but refused to summon the two respondents simply because according to the committing court they had been dragged unnecessarily and their names had not occurred anywhere except in the judicial confession which was made basis for summoning of the husband, father-in-law and mother-in-law of Smt. Santosh. There was no other evidence before the committing court for summoning the three under S. 302/34, I.P.C. It is very strange that the persons who made the extra-judicial confession and implicated themselves in the crime as much as the others three have been left out. There is absolutely no substance in the observations of the trial Court that they have been dragged unnecessarily. Their names occurred in the extra judicial confession as much as names of others three had occurred. Consequently, I quash the order of the committing court to the extent it had refused to summon the two respondents to stand their trial under S. 302/34, I.P.C. along with three others named above, They are accordingly ordered to be summoned to face their trial."

(3.) So far as the submission as noted at No. (ii) above is concerned, what is urged by Mr. Brar, learned counsel for the petitioners, is that in the case in hand the only course open to the Additional Sessions Judge while disagreeing with the Magistrate in not summoning the petitioner, was to send the case back to the said Magistrate for further enquiry in terms of S. 398 of the Code and he himself could neither summon the petitioners to face the trial nor could he direct their commitment to his court for the said purpose. This stand of Mr. Brar is just contrary to what has been ruled by a Division Bench of this Court in Bal Kishan Jain v. Indian Oversees Bank, 1981 Cri LJ 796. This is how the Court opined :- "The words "further enquiry" in S. 398 (corresponding to S. 436 of the old Code) do not envisage within it the power to direct that a person wrongly discharged be summoned or that a charge be framed against him and he be put on trial. However, such power or direction is wholly within the ambit of S. 399 read with S. 401(1) which now is repository of the larger powers vested in the Court of Session. Therefore, a direction pf this nature can be legally given thereunder. Herein the significant change that has been brought about by the enactment of the new Code is that whereas earlier apart from directing further enquiry the Court of Session could only report the matter to the High Court for appropriate orders under its revisional jurisdiction but now it has been clothed with virtually the same powers which the High Court can exercise under S. 401(1) of the new Code. This in substance effaces very largely the sharp distinction that existed under the old Code betwixt the revisional powers of the Court of Session and those of the High Court. Now the Court of Session is by and large at par with the High Court in the exercise of the revisional jurisdiction. Consequently the Court of Session also has the same power to direct that an accused person wrongly discharged be summoned, or that a charge be framed against him and he be brought to trial as earlier the High Court undoubtedly could do under S. 439."