SK LATFUR RAHMAN Vs. STATE

JUDGEMENT

(1.) Whether the Court of Session, without itself recording evidence, can summon a person to stand trial as an accused (along with others committed to it by a Magistrate) on the basis of documents in the final report of the Investigating Officer under section 173 of the Code of Criminal Procedure, 1973 independently of the provisions of section 319 of the said Code? Whether the substitution of section 319 of the new Code in place of section 351 of the old Code has wrought any radical change in the law on the point aforesaid? This is the significant twin question necessitating this reference to the Full Court.

(2.) As is apparent, the issue aforesaid is pristinely legal and the facts would, consequently, pale into relative insignificance. Therefore, a skeletal background thereof would amply suffice. Regretfully it must be noticed that the occurrence giving rise to the issues took place more than 11 years ago in the night of the 7th of February, 1974. On the following morning at about 1 a.m. a first information report under section 395 of the Indian Penal Code was recorded, in which the three petitioners along with Jabbar Khan and S.K. Samad were specifically named. However, the police after investigation submitted a charge sheet under section 395 on the 16th of December, 1975 only against Jabbar Khan, showing S.K. Samad, accused, as an absconder. On the basis of the aforesaid charge sheet, the Chief Judicial Magistrate, Katihar, took cognizance of the offence under section 395 I.P.C. and transferred the case to the court of the Judicial Magistrate, 1st class, Katihar, for commitment. The latter, thereafter, committed the same to the court of Session under the provisions of section 209, Criminal Procedure Code, 1973 (hereinafter to be referred to as the 'Code'). However, before the commencement of the trial itself, the Additional Public Prosecutor filed an application before the learned Sessions Judge, Katihar, praying therein to also summon the three petitioners as additional accused persons on the basis of the first information report and the specific statements of eye witnesses under section 161, which named the three petitioners equally for the crime. This application was purportedly labelled under section 319 of the Code. The learned Sessions Judge, Shri Padma Narayan Singh, by the impugned order dated 24th of May, 1979, allowed the prayer. He expressly took notice of the fact that all the three petitioners had been specifically named in the first information report and further Zamiruddin, petitioner, had been so named by four other eye witnesses in their statements under section 161 whilst Latfur Rahman and Belel, petitioners, had been similarly named by six eye witnesses. He, therefore, held that there was absolutely no reason for not submitting the charge sheet against the three petitioners by the police. Observing that the cognizance has been taken of the entire case and not merely of the offender only and relying on the forthright observation in Joginder Singh v. State of Punjab, AIR 1979 SC 339 he issued warrants against the three petitioners.

(3.) Aggrieved by the order aforesaid, the present petition has been presented which was admitted lo a hearing and later referred to a Division Bench by a learned single Judge on the 21st of October, 1982. Before the Division Bench primary reliance on behalf of the petitioners was placed on Satyanarayan Yadav v. State of Bihar 1977 BBCJ (HC) 442; but noticing a conflict of the same with a Division Bench decision of the Punjab and Haryana High Court in Lal Chand v. State of Haryana 1983 Cri LJ 1394 and equally the significance of the issue involved, the matter has been referred for an authoritative decision to the Full Bench.