Gopal Ji Singh vs State of M.P.

R.C. Mishra, J.—This common order shall govern disposal of all the four cases, as, arising out of the same proceedings, pending as Special Case No. 22/2010, before the Special Judge [under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ''the Act'')] at Satna, they are interlinked. M.Cr.C. Nos. 407/11 and 1296/11 are the petitions, u/s 482 of the Code of Criminal Procedure (for brevity ''the Code''), for quashing of the order dated 23-11-2010, taking cognizance of the offence punishable u/s 20(b) of the Act against the petitioners namely, Gopal Ji Singh and Narendra Singh, who are also the revisionists in Criminal Revision Nos. 65/11 and 194/11 and the consequent proceedings whereas the revisions are directed against the order dated 6-12-2010, framing charge of the offence punishable u/s 20(a)(i) of the Act against them as well as Shyam Ji Singh, who is none other than the elder brother of Narendra Singh and younger brother of Gopal Ji Singh.

As per the prosecution version,--

In the early morning of 21-10-2010, upon a credible information to the effect that all the three brothers, viz., Shyam Ji Singh, Narendra Singh and Gopal Ji Singh, residing jointly in the house located in Chhota Tola, Hiloundha, had grown some Ganja plants in the Aangan (Kolia) thereof, M.A. Khan'', posted as Sub-Inspector at Police Station, Nagod after observing the statutory formalities, proceeded to the house along with members of the Police Force and Panch witnesses Dinesh and Raju. After obtaining consent of all the three, he entered into the house and found as many as 10 plants of Ganja 5-10 ft. in length and 1-8 inches in breadth standing in the Aangan located in the backside of the house. The plants were duly seized and the sample thereof was forwarded to FSL, Sagar. Corresponding report indicated that the article referred to for examination was Ganja.

However, the SHO R.S. Upadhyay, while explaining that the complicity of Gopal Ji Singh and Narendra Singh could not be established from the evidence collected during investigation, submitted a charge-sheet before the Special Court on 22-11-2010 as against co-accused Shyam Ji Singh.

Learned Special Judge, instead of taking cognizance of the offence against Shyam Ji Singh, decided to grant opportunity of being heard to the first informant, viz., M.A. Khan before acting upon the police report to the effect that no case was made out against Narendra Singh or Gopal Ji Singh and, accordingly, examined him on the same day. On the following day, i.e., 23-11-2010, learned Special Judge, for the reasons assigned in the order forming subject matter of the petitions, disagreed with the police report, so far as it related to Narendra Singh or Gopal Ji Singh, who were produced before him in custody and took cognizance of the offence against them also. Thereafter, as indicated already, by way of the order dated 6-12-2010, all the three accused named in the FIR were charged with the offence punishable u/s 20(a) (i) of the Act.

Learned Counsel for the petitioners have strenuously contended that continuation of the proceedings against them for the offence is an abuse of the process of the Court in view of the following considerations:--

(i) In taking cognizance of the offence against the petitioners, learned Special Judge acted without jurisdiction as well as contrary to law.

(ii) The conclusions suggesting that none of them was involved in cultivation of the prohibited plants and that part of Aangan, where the plants were found, was in an exclusive cultivating possession of their brother Shyam Ji Singh, were based on an intensive investigation conducted by the SHO.

(iii) There was absolutely no justification for framing of the charge against any one of them in absence of any additional material on record to indicate his concern with cultivation of the cannabis plants.

In reply, learned Government Advocate, while supporting the orders in question, has submitted that learned Special Judge was competent to proceed against the petitioners, though not sent up for trial by the police.

Elaborating argument on aspect (i) (above), learned Counsel for the petitioners have stated that the Special Court, being a Court of Session, could not straightway take cognizance of the offence directly by circumventing the interdict imposed by Section 193 of the Code. Even otherwise, according to them, the power, u/s 319(1) of the Code, could be exercised against persons other than one arraigned in the charge-sheet in the light of the fresh evidence brought on record during trial.

As rightly pointed out by learned Senior Counsel, the view taken by a two-Judge Bench of the Apex Court in Kishun Singh and Others Vs. State of Bihar, , that on committal of a case to the Sessions Court, the bar created by Section 193 is lifted and, therefore, it can summon any person whose complicity in the commission of the crime can prima facie be gathered from the material on record was not followed by a co-equal Bench in Raj Kishore Prasad Vs. State of Bihar and another, and a three Judge Bench in Ranjit Singh Vs. State of Punjab, and correctness of the opinion expressed in Ranjit Singh''s case (supra), was doubted in Dharam Pal and Another Vs. State of Haryana and Another, and, accordingly, the matter was referred to a Larger Bench.

Section 193, however, is of no relevance here because the offence under the Act is triable by Special Court constituted by the State Government, u/s 36 of the Act and by virtue of sub-clause (d) of Section 36A, a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. The following observations made by the Supreme Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, , apply mutatis mutandis yet with full force to the Special Court created under the Act:--

The Court of a Special Judge is a Court of original criminal jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide bound by the terminological status description of Magistrate or a Court of Session. Under the Code, it will enjoy all powers, which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied.

The Court of a Special Judge, once created by an independent statute, has been brought as a Court of original criminal jurisdiction under the High Court because Section 9 confers on the High Court all the powers conferred by Chapters XXXI and XXXIII of the Criminal Procedure Code, 1898 on a High Court as if the Court of Special Judge were a Court of Session trying cases without a jury within the local limits of the jurisdiction of the High Court. Therefore, there is no gainsaying the fact that a new Criminal Court with a name, designation and qualification of the officer, eligible to preside over it with powers specified and the particular procedure, which it must follow has been set up under the....... Act. The Court has to be treated as a Court of original criminal jurisdiction and shall have all the powers as any Court of original criminal jurisdiction has under the Criminal Procedure Code, except those specifically excluded.

On the same analogy, the Special Court, under the Act, must be held to be a Court of original criminal jurisdiction and for all purposes, the Special Judge should be treated in law as the Magistrate entitled to take cognizance of an offence u/s 190(1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. For this, he can take into account the statements of the witnesses examined by the police during investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190 (1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently, apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers u/s 190(1) (b) and direct the issue of process to the accused ( India Carat Pvt. Ltd. Vs. State of Karnataka and Another, relied on).

Since the cognizance of the offence has been taken u/s 190(i)(b) and not u/s 319(1) of the Code, the contention that the power to proceed against the petitioners, who were not arraigned as accused in the charge-sheet, could be exercised only on the basis of evidence recorded in the course of the trial of the co-accused Shyam Ji Singh is also apparently misconceived.

Further, as laid down by the Supreme Court in Bhagwant Singh Vs. Commissioner of Police and Another, and re-affirmed in Gangadhar Janardan Mhatre Vs. State of Maharashtra and Others,

... where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory.

Evidently, the procedure adopted by learned Special Judge deferring the consideration on the question of cognizance of the offence as against the petitioners was perfectly in conformity with the guideline quoted above.

Coming to the factual aspects of the matter, learned Counsel have invited attention to the fact that vide order dated 20-2-2006 passed by the Tehsildar, lands left by Bhupendra Singh, father of the petitioners, were partitioned and shares of the brothers were defined accordingly. It has also been highlighted that in his examination on 22-10-2010, Sub-Inspector, M.A. Khan made no protest against non-inclusion of the petitioners'' names as accused in the charge-sheet. However, fact of the matter is that it was Sub-Inspector M.A. Khan only who, after conclusion of the proceedings relating to search and seizure, had registered the case against all the three brothers by scribing the FIR in detail. The order taking cognizance of the offence is based not only on this fact but also on all other facts appearing on the record. As indicated therein:--

(a) Sub-Inspector, M.A. Khan clearly admitted that the information received by him had disclosed that the Aangan, wherein the prohibited plants were grown, was located in the back side of the house in joint possession of all the three brothers.

(b) in all the documents relating to search and seizure, the petitioners had also put their signatures without raising demur whatsoever,

(c) in the spot map, the Aangan that was shown surrounded by boundary wall was meant for joint use of all the three brothers, and

(d) the conclusion recorded in the police report that Shyam Ji Singh had grown the plants of Ganja along with the plants of lemon and mangoes also did not gather support from-the recitals of the spot map and Panchanama.

There is yet another aspect of the matter. Section 46 of the Act casts a duty upon land holder to give information of illegal cultivation. It reads:--

Every holder of land shall give immediate information to any officer of the Police or of any of the departments mentioned in Section 42 of all the opium poppy, cannabis plant or coca plant, which may be illegally cultivated within his land and every such holder of land who knowingly neglects to give such information, shall be liable to punishment.

It requires no restatement that the investigation is the exclusive domain of the police whereas taking of cognizance of the offence is an area exclusively within the domain of the Special Judge, who has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. In the light of the aforesaid facts add circumstances, learned Special Judge did not commit any illegality in taking cognizance of the offence against the petitioners.

In R.S. Nayak Vs. A.R. Antulay and Another, the Supreme Court, after analysing the terminology used in Sections 227 and 228, relatable to sessions trial, Sections 239 and 240 concerning trial of warrant cases and Section 245(1) and (2) relatable to summons cases, proceeded to hold that despite the differences, there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima facie case is to be applied.

As such, even a strong suspicion leading to presumption as to possibility as against certainty makes out a case for framing of charge and the Trial Judge is required to record reasons only if he decides to discharge the accused [ Kanti Bhadra Shah and Another Vs. The State of West Bengal, referred to].

It is also well settled that the inherent powers, u/s 482 of the Code, are to be exercised ex debito justitiae to prevent abuse of the process of Court but not to stifle a legitimate prosecution, when the issue involved, whether factual or legal, cannot be decided without sufficient material.

For these reasons, neither the order taking cognizance nor the order framing charge deserves any interference.

The petitions as well as the revisions, therefore, stand dismissed. However, nothing contained herein shall be construed as any expression of opinion on the merits of the case. It shall still be open to the petitioners to raise all such pleas as are available under law. A copy of this order be placed on records of the connected petitions. Record of the Court below be returned forthwith.