GIAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) FACTS necessary for the disposal of this revision petition are as follows.

(2.) CASE FIR No. 78 dated 11.7.1988 under Sections 302/307/148/149, Indian Penal Code, Police Station Ropar, was investigated by the police. The police in its final report submitted under Section 173, Code of Criminal Procedure, sent up five persons for trial and mentioned the names of Gian Singh and Mewa Singh in column No. 2. In due course, the case was committed for trial by learned Judicial Magistrate and it came up for consideration before learned Additional Sessions Judge, Ropar. An application was moved by the complainant praying that Gian Singh and Mewa Singh not challenged by the police may be summoned to stand their trial along with the remaining accused in the case. The application was opposed. After hearing learned Counsel for the parties and by order dated 10.4.1989, the learned Additional Sessions Judge summoned the said Gian Singh and Mewa Singh through non-bailable warrants purporting to act under Section 319, Cr.P.C. Gian Singh and Mewa Singh have challenged this order by way of this revision.

(3.) IT is at that stage, it was further observed, that the Court, i.e., the Magistrate prior to commitment, and the Sessions Judge after the commitment, for the first time applies his mind to the documents and material collected during investigation. If as a result of the application of mind, the Sessions Judge comes to the conclusion that there are other persons named in the record of the investigating agency who have not been sent up for trial and finds that there is material on record to indicate that the accusation against such persons is well founded, it is open to him to summon such persons to join the accused who have not been challenged by the police, for trial. The learned Judge referred to his earlier decision in Cr. Misc. No. 4220-M/1977 (Amar Singh v. State of Punjab), decided on 18th November, 1977 where this question was gone into detail. The second stage for summoning by the Sessions Judge, however, arises after framing a charge under Section 319 of the Cr.P.C., i.e., after recording evidence appealing for the prosecution. Learned Counsel also referred to a Division Bench judgment of this Court in Surat Singh v. State of Punjab, 1981 CLR 547. In this case after investigation in a murder case, one of the accused was shown in column No. 2. The accused who was, thus, shown in column No. 2 moved an application to the committing Magistrate for being discharged. By a detailed order, the learned Magistrate rejected his application and committed him for trial by a separate order as against the remaining accused. The accused thus separately committed preferred a revision which was laced before the learned Judges of the Division Bench. The question for consideration was whether the order of the learned Magistrate committing the petitioner to stand his trial before Court of Sessions was without jurisdiction even though his name was mentioned by the police in Column No. 2 of the final report. The learned Judges of the Division Bench held that the aforesaid question was covered by a decision of the Supreme Court in Hareram Satpathi v. Tikkaram Aggarwal, AIR 1978 SC 1568. The question which arose in that case was whether it was open to the Magistrate to add in the array of accused any person against whom the police in its final report had stated that there was no sufficient evidence to justify forwarding his name. It was observed by the Supreme Court that the learned Magistrate after taking cognizance of the offence and on a perusal of the record was satisfied that there was a prima facie ground for issuing process against the respondents. The order of the Magistrate was held to be valid and within his powers. The learned Judges of the Division Bench also referred to an earlier Division Bench judgment of this Court reported as Fateh and others v. The State, AIR 1964 Punjab 351, holding that the Magistrate was not confined to issuing the process only to the persons challaned by the police.