AMARDIP SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard learned counsel appearing for the petitioner and also learned counsel appearing for the State. This application is directed against the order dated 13.1.2011 passed by Chief Judicial Magistrate, Deoghar in Deoghar Town (Kunda) P.S. case No. 108 of 2009 (G.R. No. 250 of 2009) whereby and whereunder cognizance of the offence punishable under Section 307 and other allied sections of the Indian Penal Code has been taken against the petitioner and others.

(2.) Learned counsel appearing for the petitioner submits that a case was lodged as Deoghar Town (Kunda) P.S. Case No. 108 of 2009 (G.R. No. 250 of 2009) under Section 307 of the Indian Penal Code against 16 persons including the petitioner, for commission of offence under Section 307 of the Indian Penal Code. The police during investigation did not find any culpability on the part of this petitioner and one other person, though culpability was found against 14 persons and therefore, charge sheet was submitted against them whereas this petitioner and other accused persons were not sent up for trial. On submission of the charge sheet, the court has not only passed an order for taking cognizance of the offence against the persons who were charge sheeted but also against this petitioner and others, vide its order dated 13.1.2011 who had never been sent up for trial and thereby the court committed illegality in taking cognizance of the offence in view of the decision rendered in a case of Dharam Pal Vs. State of Haryana,2013 3 EastCriC 3

(3.) In the context of submission, notice needs to be taken of the case of Dharam Pal vs. State of Haryana facts of which are that the appellants Dharam Pal and others were made accused in a case along with Nafe Singh in a case triable by the court of sessions. The police after investigation submitted charge sheet against one of the accused, Nafe Singh whereas Dharam Pal and others were not sent up for trial whose names were included in column 2 of the police report, despite the fact that they too had been named as accused in the First Information Report. After going through the police report, the learned Judicial Magistrate, 1st class, Hansi summoned the appellant and three others, who had not been included in the charge sheet for the purpose of facing trial along with Nafe Singh. Thereupon the Magistrate in exercise of his power as contained in Section 190 of the Code took cognizance of the offence against them. That order was challenged before the revisional court. The revisional court dismissed the application. When the matter came up before the High Court, the High Court also dismissed the application. Thereafter Special Leave to Appeal was preferred before the Hon'ble Supreme Court. When the matter was initially taken up by the Hon'ble Supreme Court, it was placed before the Court that number of conflicting decisions are there on the point. On one hand in the case of Raj Kishore Prasad vs. State of Bihar and another, 1996 4 SCC 495) and also in a case of Kishore Singh and others vs. State of Bihar and others, 2004 13 SCC 11), it has been held that the Magistrate has no power to add any accused with the accused charge sheeted rather that power lies with the Sessions Judge exercising power under Section 319 of the Code of Criminal Procedure when the case comes to it upon its committed whereas in a case of SWIL Limited vs. State of Delhi and others, 2001 6 SCC 670) and also in a case of Rajinder Prasad vs. Bashir and others, 2001 8 SCC 522) it has been held that the Magistrate does have power to take cognizance in terms of the provision as contained in Section 193 of the Code of Criminal Procedure. In such situation, the matter was referred before the Constitutional Bench whereby following issues were framed for consideration.