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Shib Sadhan Sadhu, J.—This is an application under Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for the sake of brevity) seeking to set aside/quash the impugned order No. 12 dated 25.02.2015 passed by the Learned Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur in Sessions Case No. 548 (Sept) 2013 whereby and whereunder he directed issuance of summons upon the present petitioners and directing them to appear before the Court on 11.03.2015.
The factual matrix giving rise to the present application is as follows:-
"One Uttam Kumar Das, Sabhapati of Egra Sahar Trinamul Congress, P.S. Egra, Dist. Purba Medinipur lodged a written complaint before the O.C., Egra P.S. on 10.11.2007. It was alleged in that complaint that on 10.11.2007 at about 7.30 p.m. they found at Egra Bus Stand three small vehicles bearing registration Nos. WB-29/3500, WB-33/5384, WB-31/2880 along with another new Scorpio car were moving towards Kharagpur in a haphazard manner after switching off the headlights. They became suspicious and intercepted those vehicles and saw that Kalpana Munal of Gangara, Bipin Gyen of South Khalichok and Yadav Pal of Sonachura belonging to Trinamul Congress were being carried in injured condition sustaining bullet injuries. It was further alleged that in other three vehicles there were eight ''Harmads'' of C.P.I.M. who were returning to West Medinipur after committing murder at Nandigram. It was also mentioned that out of those eight ''Harmads'' one was Tapan Ghosh who is an accused of ''Choto Angaria'' mass murder case. It was also alleged that a board ''Government of West Bengal On Duty'' was affixed on the vehicle bearing No. WB-29/3500.
On the basis of such written complaint Egra P.S. Case No. 134/07 dated 20.11.2007 under Sections 364/365/326/307/201/120B/34 of the Indian Penal Code (hereinafter referred to as IPC) was registered. That case was investigated into. On completion of investigation Final Report was submitted as ''Mistake of Facts'' and the petitioners were discharged.
On 26.03.2008 the Investigating Officer made a prayer before the Learned Additional Chief Judicial Magistrate, Contai for an order for reinvestigation of the aforesaid case and such prayer was allowed on 01.04.2008. The Criminal Investigation Department reinvestigated into the case namely Egra P.S. Case No. 134 of 2007 dated 10.11.2007 and after completion of investigation submitted chargesheet on 08.10.2010 under Sections 364/365/326/307/201/120B/34 of the IPC against five accused persons and the present nine petitioners were not sent up and their names were mentioned under Column No. 13 and they were discharged.
Thereafter, after the lapse of almost five years and after change of political scenario in West Bengal, the Learned Public Prosecutor filed an application under Section 193 read with Section 228 of the Cr.P.C. on 07.01.2015 stating inter-alia that on perusal of the case diary it appears that the nine discharged accused persons were directly involved in the commission of the alleged offences and that their names have been transpired in the statements of witnesses including injured witnesses and that their complicity is evident from the materials available on record. The Learned Additional District and Sessions Judge, 3rd Court, Tamluk, Purba Medinipur allowed such petition and issued summons against the petitioners as accused under Section 193 of the Cr.P.C. Being aggrieved by and dissatisfied with such order, the petitioners have come up with the instant application.
Mr. Bikash Ranjan Bhattacharyya, Learned Senior Counsel appearing on behalf of the petitioners assailed the impugned order dated 25.02.2015 raising the following contentions:-
a) that the petitioners were not charge-sheeted and they were discharged on both the occasions, i.e. after the first investigation by Egra Police by submitting Final Report on 04.12.2007 as ''Mistake of Facts'' and after reinvestigation by C.I.D., West Bengal, on 08.10.2010 which implies that there was no material collected against them. But despite such fact the Learned Additional Sessions Judge issued summons to the petitioners as accused under Section 193 Cr.P.C. without applying his judicial mind or giving any opportunity to the petitioners of being heard which is absolutely illegal.
b) that the Learned Public Prosecutor, Purba Medinipur filed the petition under Section 193 Cr.P.C. read with Section 228 Cr.P.C. after the lapse of almost five years only out of political vendetta since the petitioners are the District and Local Leaders of Paschim Medinipur of the Communist Party of India (Marxist) and the Learned Additional Sessions Judge allowed such petition mechanically without recording anything regarding complicity of the petitioners in the instant case and without appreciating the true purport of Section 193 and Section 228 of the Cr.P.C.
c) that the instant proceeding is malafide, motivated and for wreaking vengeance out of political grudge.
d) That the expression ''cognizance'' connotes "to take notice of judicially" and it indicates the point when a Court or a Magistrate takes Judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. It is well settled that cognizance of an offence can only be taken once. So if the Magistrate takes cognizance and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. There cannot be double cognizance in respect of the same offence-once by the Magistrate and then by the Learned Sessions Judge nor can there be part cognizance taken by the Magistrate and part cognizance taken by the Learned Sessions Judge. But in the instant case the Learned Magistrate took cognizance of the offence before committing the case and the Learned Sessions Judge also took cognizance after the case was committed to him.
e) that once the Session Court takes cognizance of the offence after the case being committed to it, the only stage when the Court can add any other person to the array of the accused is after taking evidence by invoking power under Section 319 Cr.P.C. But in the instant case, the petitioners have been summoned as accused without commencement of trial and recording of evidence.
f) that the Constitution Bench of the Hon''ble Apex Court in the case of Dharam Pal and Others Vs. State of Haryana and Another, (2013) 7 AD 581 : AIR 2013 SC 3018 : (2013) CriLJ 3900 : (2013) 10 JT 572 : (2013) 172 PLR 230 : (2013) 3 RCR(Criminal) 787 : (2013) 9 SCALE 207 : (2014) 3 SCC 306 has held that the Session Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. But in the impugned order there is no whisper of the complicity of the petitioners regarding the offences alleged in the FIR of Egra P.S. Case No. 134 of 2007.
Summing up his contentions, Mr. Bhattacharyya, Learned Senior Counsel, concluded by submitting that the impugned order is arbitrary and a gross abuse of process of law and is thus liable to be set aside. He relied on the decision in the case of Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke(2015) 2 AD 129 : (2015) CriLJ 1259 : (2015) 1 Crimes 90 : (2015) 2 JCC 930 : (2015) 1 RCR(Criminal) 570 : (2015) 1 SCALE 457 : (2015) 3 SCC 123 : (2015) 2 SCJ 253 (Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and Ors.) in support of his contentions.
Mr. Manjit Singh, Learned Public Prosecutor, on the contrary, submitted in reply that although the complicity of the petitioners transpired during investigation but for reasons unexplained the Investigating Officer did not send them for trial enlisting their names in Column No. 2 of the Police Report and they were discharged. Therefore, the Learned Public Prosecutor, Purba Medinipur submitted application under Section 193 Cr.P.C. before the Learned Additional Sessions Judge praying for issuance of summons upon the present petitioners on the ground that the C.D. reveals that they were directly involved in the commission of the alleged offences and their names transpired from the statements of witnesses including injured witnesses recorded under Section 161 Cr.P.C. and the Learned Additional Sessions Judge on hearing both sides and on perusal of the case diary materials including the statement of the witnesses became satisfied that there are sufficient materials to proceed against the petitioners and summoned them under Section 193 Cr.P.C. relying on the decision of the Hon''ble Supreme Court reported in Dharam Pal and Others Vs. State of Haryana and Another, (2013) 7 AD 581 : AIR 2013 SC 3018 : (2013) CriLJ 3900 : (2013) 10 JT 572 : (2013) 172 PLR 230 : (2013) 3 RCR(Criminal) 787 : (2013) 9 SCALE 207 : (2014) 3 SCC 306 . Thus the Learned Additional Sessions Judge acted within his domain by exercising his power under Section 193 Cr.P.C. rightly by proper application of judicial mind and therefore, the impugned order cannot be criticized as arbitrary, illegal or an abuse of process of law.
Mr. Singh further submitted that there was conflict of opinion in decisions of different Benches of the Hon''ble Supreme Court over the issue of summoning of additional accused by the Sessions Judge. In the case of Kishun Singh and Others Vs. State of Bihar, (1993) CriLJ 1700 : (1993) 1 Crimes 494 : (1993) 1 JT 173 : (1993) 1 SCALE 79 : (1993) 2 SCC 16 : (1993) 1 SCR 31 a Two Judges Bench of the Hon''ble Supreme Court held that after committal of case Session Court has complete and unfettered jurisdiction to take cognizance of offence which would include summoning of the person whose complicity in the commission of the crime prima-facie be gathered from the materials available on record. It was further held by Their Lordships that under Section 319 of the Cr.P.C. Session Court can summon a person to face trial whose involvement comes to notice during the trial after recording evidence but under Section 193 Cr.P.C. Court can summon a person as accused on the basis of material placed on record and without recording any further evidence. Later on, a Three Judges Bench of the Hon''ble Supreme Court in the case of Ranjit Singh Vs. State of Punjab, (1998) 7 AD 217 : AIR 1998 SC 3148 : (1998) CriLJ 4618 : (1998) 3 Crimes 258 : (1999) 1 CTC 108 : (1998) 6 JT 512 : (1998) 5 SCALE 375 : (1998) 7 SCC 149 : (1998) 2 SCR 8 Supp : (1998) AIRSCW 3249 : (1998) 7 Supreme 447 did not support the observations made in Kishun Singh''s case and held that the Sessions Court after taking cognizance is empowered to add any other person to the array of the accused only after reaching evidence collection stage when power under Section 319 Cr.P.C. can be invoked and that powers of Sessions Court under Section 193 Cr.P.C. would not include the summoning of the person or persons whose complicity in the commission of the offence can prima facie be gathered from the materials available on record.
The Learned P.P. submitted yet further that for such divergent views the matter was placed before the Constitution Bench of the Hon''ble Supreme Court and the Hon''ble Constitution Bench set the controversy at rest by rendering the decision in the case of Dharam Pal and Others Vs. State of Haryana and Another, (2013) 7 AD 581 : AIR 2013 SC 3018 : (2013) CriLJ 3900 : (2013) 10 JT 572 : (2013) 172 PLR 230 : (2013) 3 RCR(Criminal) 787 : (2013) 9 SCALE 207 : (2014) 3 SCC 306 which is also relied on by his Learned Adversary. Their Lordships of the Hon''ble Constitution Bench held that the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report under Section 173(2) Cr.P.C., that the Session Judge was entitled to issue summon under Section 193 Cr.P.C. upon the case being committed to him by the Learned Magistrate and that the decision in Kishun Singh''s case (supra) was the correct decision and the Learned Sessions Judge acting as a Court of original jurisdiction, could issue summons under Section 193 on the basis of the records transmitted to him as a result of the committal order passed by the Learned Magistrate.
He further submitted that by taking cognizance, the Learned Magistrate has only applied his judicial mind to the recitals of the Chargesheet in order to ascertain what is the nature of the offence alleged and when he found that the alleged offence is exclusively triable by the Court of Session he has committed the case to the Court of Session without initiation of any proceeding. Therefore there cannot be any question of double cognizance or part cognizance as contended by his learned adversary. The Hon''ble Supreme Court in the aforesaid decision has also made such position clear by holding that the Magistrate plays a passive role in committing the case to the Court of Session.
Mr. Singh thus urged that the exercise undertaken by the Learned Additional Session Judge, Tamluk by issuing summons to the petitioners is quite justified and is in tune with the true spirit of law. Therefore, according to him, the impugned order dated 25.02.2015 is absolutely legal and correct and it does not deserve any interference. He cited the decision in the case of Dharam Pal and Ors. V. State of Haryana and Anr. (supra) in order to substantiate his submission.
I have considered the submissions made by Sri Bhattacharyya, the Learned Senior Counsel and also by Mr. Singh, Learned Public Prosecutor in the light of the aforesaid decisions placed by them. I have also perused the entire materials available on record including the impugned order.
At the very outset I would like to say that it is very much interesting to see that the Learned Additional Sessions Judge, Tamluk, the Learned Senior Counsel appearing for the petitioner and the Learned Public Prosecutor have relied on the same and identical decision of the Constitution Bench of the Hon''ble Supreme Court but they have quoted three different citations. It is further interesting to note that in Paragraph 12 and Ground No. XI of the Revisional Application it has been averred that the judgment referred to in the impugned order is not relevant to the instant case and is not applicable. However, no reason or explanation has been mentioned as to why such decision is not applicable to the instant case. Be that as it may, undoubtedly it is a rare coincidence to see that an order is passed by a Court based on a Ruling, the aggrieved petitioners challenge such order relying on the same Ruling and the State/Opposite Party is also citing that very Ruling to defend the order. I, therefore, think it pertinent to quote the relevant observations made by Their Lordships of the Constitution Bench of the Hon''ble Supreme Court in the case of Dharam Pal and Ors. Vs. State of Haryana and another (Supra) which have a direct bearing upon the issue of controversy with which we are now concerned. Those are as follows:-
"35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2), Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.
This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Sessions Court.
Questions 4, 5 and 6 are more or less interlinked. The answer to Question 4 must be in the affirmative, namely, that the Sessions Judge was entitled to issue summons under Section 193, Cr.P.C. upon the case being committed to him by the learned Magistrate.
Section 193 of the Code speaks of cognizance of offences by the Court of Session and provides as follows:
"193. Cognizance of offences by Courts of Session.--Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."
The key words in the section are that "no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code". The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr. Dave to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said section."
This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Sessions Judge.
In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh case that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.
We are also unable to accept Mr. Dave''s submission that the Sessions Court would have no alternative, but to wait till the stage under Section 319, Cr.P.C. was reached, before proceeding against the persons against whom a prima facie case was made out from the materials contained in the case papers sent by the learned Magistrate while committing the case to the Court of Session.
The reference to the effect as to whether the decision in Ranjit Singh case (supra) was correct or not in Kishun Singh case (supra), is answered by holding that the decision in Kishun Singh case (supra) was the correct decision and the learned Sessions Judge, acting as a Court of original jurisdiction, could issue summons under Section 193 on the basis of the records transmitted to him as a result of the committal order passed by the learned Magistrate."
In this context I think it relevant and appropriate to refer to the decision of the Hon''ble Supreme Court reported in Raj Kishore Prasad Vs. State of Bihar and another, (1996) 4 AD 184 : AIR 1996 SC 1931 : (1996) CriLJ 2523 : (1996) 2 Crimes 142 : (1996) 5 JT 437 : (1996) 4 SCALE 87 : (1996) 4 SCC 495 : (1996) 2 SCR 125 Supp wherein Their Lordships held:
"Preliminary Inquiries then known as ''commitment proceedings'' have been abolished in cases triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the Public Prosecutor, etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being an adjudicator. It is thus manifest in the sphere of the limited functioning of the Magistrate, no application of mind is required in order to determine any issue raised, or to adjudge any one guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straightway with the trial and that nothing is lacking in content, as per requirement of Section 207 and Section 208 of the Cr.P.C. Such proceedings do not fall squarely within the ambit of ''inquiry'' as defined in Section 2(g) of the Cr.P.C."
Therefore, there remains no scope for harbouring even the slightest doubt to accept the legal proposition that the Learned Magistrate plays a passive or formal role and performs some preliminary or ministerial functions in committing the case to the Court of Session and that the Learned Session Judge acting as a Court of original jurisdiction, could issue summons under Section 193 Cr.P.C. on the basis of the records transmitted to him as a result of the committal order passed by the Learned Magistrate.
Coming to the contention on the score of absence of any whisper of the complicity of the petitioners regarding the offences alleged in the FIR, I find that the Learned Additional Sessions Judge passed the impugned summoning order on the basis of a petition filed by the Learned Public Prosecutor, Purba Medinipur in which it was canvassed that the direct involvement of the present nine petitioners was reflected from the statements of the witnesses and injureds and also from other papers contained in the Case Diary. On giving a close look into the impugned order it becomes apparent that the Learned Additional Sessions Judge passed a reasoned and judicious order. He heard both the sides, perused the materials on record and the case diary materials including the statements. He also perused the decision Dharam Pal and Others Vs. State of Haryana and Another, (2013) 7 AD 581 : AIR 2013 SC 3018 : (2013) CriLJ 3900 : (2013) 10 JT 572 : (2013) 172 PLR 230 : (2013) 3 RCR(Criminal) 787 : (2013) 9 SCALE 207 : (2014) 3 SCC 306 , i.e. the Constitution Bench Decision of the Hon''ble Supreme Court. He heard the I.O. and recorded his submission. Then he observed that it is palpably clear that the I.O. intentionally and for any other reason did not send the present nine petitioners/accused in the chargesheet. Thereafter he concurred with the view expressed by the Learned Public Prosecutor and passed the order directing issuance of summons upon the present nine petitioners/accused. Thus it cannot be said that the order impugned is a cryptic, unreasonable or arbitrary order or that it did not make any whisper about the complicity of the petitioner in the commission of the alleged offence. On the other hand it is an eloquent and sound order after due deliberation and on proper appreciation of fact and law. The contention is therefore baseless and unacceptable.
In the case of Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and Ors. (supra) referred to by the Learned Senior Counsel appearing for the petitioners, the Hon''ble Supreme Court held in Paragraph 14 of the judgment as follows:
"14.--------------------------------------Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C. is not to be equated with that of an appeal. Unless the finding of the Court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
In the case in hand I find that the Learned Additional Sessions Judge took into account all the attending facts and circumstances of the case and the available materials on record and thereafter passed the impugned order keeping in view the prevalent law directing issuance of summons upon the present nine petitioners/accused for standing the trial being joined with the other accused persons. Therefore, no fault can be found with such order nor can it be said to be arbitrary, illegal or beyond the jurisdiction warranting any interference by this Court.
For the aforestated reasons I do not find any merit in the instant Revisional Application and the same is accordingly dismissed. No order as to costs.
The interim order of stay granted on 27.03.2015 sands vacated.
Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.