RANDHIR SINGH Vs. KALA SINGH AND OTHERS

JUDGEMENT

(1.) SHRI V.K. Jain, learned Additional Sessions Judge, Karnal, vide his order dated 17th of September, 1975, has referred this case under section 395(2) of the Code of Criminal Procedure, 1973, (hereinafter referred to as the Code) after formulating three questions.

(2.) THE facts of the case are that an occurrence took place in village Urlana Kalan on 7th of February, 1976, at about 5.30 P.M. The first information report was lodged at Police Station, Urlana Kalan at 6 30 P.M., the same day by Lakhvir Singh against Nishan Singh, Kapur Singh, Ranga Singh and Kala Singh. After investigation, the investigating agency seat up only Nishan Singh, Kapur Singh and Ranga Singh for trial under section 307/34 of the Indian Penal Coda. Kala Singh was, however, not shown as an accused in the charge -sheet submitted by the investigating agency but shown in column No. 2. The learned Magistrate committed the case for trial to the Court of Session after framing a charge under Section 307/34, Indian Penal Code.

(3.) THE questions referred by the learned Additional Sessions Judge need not be taken up, for decision, in the order in which he had framed and submitted. One question which was posed before the learned Additional Sessions Judge was whether a person accused of an offence, who was not challaned by the police and consequently not committed for trial to the court of Session can be summoned by the Sessions Judge and joined as an accused with his other co accused at the trial. This question can arise at two stages before the court of Session. The first stage is when for the framing of the charge the Sessions Judge considers the record of the case and the documents submitted therewith and hears the parties for framing of the charge. According to the new procedure provided by the Code after the amendment, the charge has not to be framed by the Committing Magistrate and he has to commit the case in the form as it is presented before him by the investigating agency after the completion of the investigation. Under the old Code, the Magistrate taking cognizance of the offence under section 190 could summon such persons, as accused, against whom charge -sheet was not submitted by the police. After the new Code came into force, that duty is now to be performed by the Sessions Judge under sections 227 and 228 It is at that stage that any Court out of the Magistrate and the Sessions Judge for the first time applies its mind to the documents and material placed before it to know as to who are the persons against whom allegations of criminal conduct are levelled by the investigating agency and its witnesses. At this stage, when the Sessions Judge, taking cognizance of the case committed to him under section 193 of the Code, comes to the conclusion that there are other persons named in the record of the investigating agency and have not been sent up for trial and finds that there is material on the record before him to indicate that the accusation is well founded, then he without any difficulty can summon such persons to be joined with the other accused for standing their trial. This question came up before me for decision in Criminal Miscellaneous No. 422G M of 1977 (Amar Singh vs. State of Punjab) decided on 18th of November, 1977. After reference to the provisions of the old and the view Codes of Criminal Procedure and the case law cited before me. I took view holding that the Sessions Judge had the power to summon the accused and this part of the question is answered by my decision in Amar Singh' case (supra). Under the old Code, acting under section 437, the learned Session Judge could rectify the improper discharge of any accused person and direct a fresh enquiry against him for the purpose of commitment. The doing away of that power by the new Code does not leave the Sessions Judge helpless in the matter of bringing the improperly let off or discharged accused before the Court for trial. I had dealt with this point also in Amar Singh's case in detail and held that there is no scope for the argument that by taking cognizance under section 193 of the Code, the Sessions Judge can only proceed against those accused, case against whom is committed in his Court. He assumes jurisdiction of the case for an offence on the commitment and not against the accused. He can sun non the accused against whom material is available before him, in the documents and record submitted by the police under section 173 of the Cede about which mention is made under sections 227 and 228 of the Cede, though be may not have been challaned by the police and consequently not committed to his Court