Randhir Singh vs Kala Singh and others

Kulwant Singh Tiwana, J.—Shri V.K. Jain, learned Additional Sessions Judge, Karnal, vide his order dated 17th of September, 1975, has referred this ease u/s 395(2) of the Code of Criminal Procedure, 1973, (hereinafter referred to as the Code) after formulating three questions.

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 u/s 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 u/s 307/34, Indian Penal Code.

When the trial commenced and the examination-in-chief of Lakhvir Singh was recorded as P.W. 1., an application was moved before the learned Additional Session Judge trying the case on behalf of Lakhvir Singh through his counsel Shri Dewan Chand Advocate for joining Kala Singh as an accused in the trial The learned Additional Sessions Judge was doubtful about the right of the complainant to file an application of this type. He, therefore, framed the following three questions, which in his view arose in the circumstances of the case and referred those for decision to this Court. These questions are:--

Q. No 1. Whether a complainant either by himself or through a counsel can give application u/s 319, Cr. P.C. without it being forwarded by the Public Prosecutor incharge of the case, that one of the accused who was named by the private party in the F.I.R. and against whom a discharge report was given by the police should be joined as an accused to stand trial along with those who have been committed by a magistrate on the basis of a police report;

Q. No. 2 Whether a court of session u/s 319, Cr. P.C. can join as accused a person whose name was given in the F.I.R., against whom a discharge report was given by the police and who has not been committed by the magistrate, although the remaining accused have been committed on the basis of the police chalan; and

Q. No. 3. Can a court of session u/s 319, Cr. P.C. join a person as an accused to stand trial alongwith those who have been committed on the basis of a police report by a Magistrate and the person who is sought to be joined u/s 319, Criminal Procedure Code has also been committed, but separately, on the basis of a private complaint because that will amount to amalgamation with the case committed on the basis of police chalan, keeping in view the previsions contained in section 210 of the Code of Criminal Procedure, 1973.

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 u/s 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 u/s 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 u/s 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 u/s 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 u/s 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

The second stage arises after the recording of evidence and is dealt with by section 319 of the Code, which is as under:--

319(1)--where in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2)where such person is not attending the Court, be may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the enquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1), then

(a) the proceedings in respect of such person shall be commenced afresh, and the witness re heard;

(b) subject to the provisions of clause (a) the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.

The stage for the coming into operation of this section is indicated by its language, that is, after the Sessions Judge has recorded the evidence either in whole or in part, which is to be done after the commencement of the trial, that is, after the plea of the accused has been recorded. If from that evidence it appears to the satisfaction of the Sessions Judge, holding the trial, that there are some other persons named in evidence though not challaned by the police and not committed before him, then those can be summoned and joined in the trial in accordance with the procedure laid down in this section. So far as the powers of the Sessions Judge to summon the accused not before him, u/s 319 of the Code are concerned, there is no doubt and the suspicion of the learned Additional Sessions Judge, Karnal, was based only on imagination. This query can be answered even by a casual glance at the language of the section.

Another question which has arisen, particularly, in this case and which has been referred in this reference is the right of the complainant to move the court of session to exercise its powers u/s 319 of the Code to summon any person as an accused, at the trial, against whom charge-sheet has not been laid by the police and who has not been committed to it. It can be made out from the order of reference that the learned Public Prosecutor in charge of the trial did not support the application of Lakhvir Singh u/s 319 of the Code. According to the definition of ''Public Prosecutor u/s 2(u), the rights and duties of the Public Prosecutor as contained in sections 225. 301 and 302 of the Code, it is he who is to conduct the prosecution in the court of Session The private counsel engaged by a complainant or a private party can conduct the proceeding or address the court only subject to the permission of the Public Prosecutor. Only one right has been given u/s 302 of the Code to the counsel representing the complainant and that is to submit written arguments, it he so likes, at the conclusion of the evidence. This, however, does not shut out the right of the complainant to file any application before the court, as for certain purposes he has been judicially recognised as an interested party, like the matters of the transfer of cases etc. An application can be filed by the complainant before the court, whether supported or not supported by the Public Prosecutor. His right upto that stage count be denied to him.

The next question is how is that application to be disposed of. The Court count refuse to entertain an application by a complainant. After entertainment, it has to pass on it orders on merits. Through such an application certain facts can be brought to the notice of the court, for example, if the charge is not appropriately framed and the Court, the Public Prosecutor and the defence counsel did not bestow the requisite attention to the framing of the charge, the right of the complainant to file an application for framing an appropriate charge against the accused cannot be said to be nonexistent. Similarly through an application, a private complainant can bring it to the notice of the Court the existence of an important evidence not brought to its notice by the Public Prosecutor or the accused The Court on filing of such an application will decide it on its merits and will not reject it outright on the ground that it is not supported by the Public Prosecutor. Turning to the case in hand though not meant as expression of opinion in this case, I am to say, if the Court, on consideration of evidence finds that there are justifiable reasons for summoning Kala Singh to join the trial as an accused person, it would not refuse to exercise that, discretion vested in it by law only on the ground that the application was moved by the complainant and was not supported by the Public Prosecutor. Such applications have to be decided on merits. I do not intend to make any further observations regarding the merits of the case, lest these might prejudice the case of any party but would remain content with only this observation that such an application cannot be dismissed on this ground alone that it is not supported by the Public Prosecutor.

The last question which I have been able to make out from the questionnaire contained in the reference is the doubt in the mind of the learned Additional Sessions Judge as to whether the cases instituted on a police report and instituted otherwise than on police report can be amalgamated for trial If both the cases arise out of the same occurrence, the accused and the witnesses are common, then without any difficulty, with the aid of section 223 of the Code and its proviso, which provides of jointly charging such persons, the joint trial can be held. The complaint, though not always but in many cases arises because of the dissatisfaction of the complainant with the result of the investigation in letting off some of the accused. In that situation, if one set of accused is committed at the instance of the police and in which the whole set of the accused mentioned in the first information report is not sent up for trial and the other set of the accused is committed on the basis of the complaint against those accused who have not been sent up for trial by the police and the witnesses are common and the occurrence is the same, then there is no impediment in the way of the trial Court to frame a charge against all those persons in one trial after amalgamation of both the commitment files

With the above observations, the points raised in the reference are answered.

The parties through their counsel have been directed to appear before the learned Additional Sessions Judge, (Carnal, on 21st of December, 1978.