Fatima (Mst.) vs State of Jammu & Kashmir and Others

Sayed Bashir-Ud-Din, J.—The investigation in FIR No. 185/01 registered at P/S Budgam culminated in sending up accused for trial Under

Sections 336, 427 and 506 RFC, after police filed its final report u/s 173 Cr. P.C. (challan) in the court of CJM Budgam on 23.11.2001.

Respondents 2 to 4 are named and shown as accused in the case. While the case was pending for initial proceedings, Sr. Prosecutor Officer

(SPO) moved an application on 21.5.2002, for arrangment of the other three respondents 5 to 7, as accused in the case. After objections were

filed the matter was heard by the CJM Budgam who passed order on 31.8.02, allowing the application and arraigned respondents 5 to 7 as

accused in the case and issued bailable warrants against each to appear and face the trial. This order is under challenge in this petition under 561-A

Cr.P.C.

The order is challenged on the ground that the impleaded accused respondents 5 to 7 were not heard before the order was passed. There is no

provision in the Cr.P.C. to arraign a person as accused, once the police has filed challan in court. Though there is specific provision (Section 319)

in the Central Criminal Procedure Code but a like provision is missing in the J&K Cr.P.C. The order is mechanical. Once cognizance is taken by

the court no person can be arraigned as accused unless evidence is recorded by the court and on such evidence such person was sought to be

arrayed or implicated. No evidence has been at all recorded in the case.

The counsel Mr. M.A. Rathore, AAG, has contested all the submissions impinging upon powers of the court below to arraigne the respondents

5 to 7 as accused in this case after cognizance is taken by the court. Once the investigation is complete the officer Incharge of the concerned P/S is

to forward the police report to empowered Magistrate for taking cognizance of the offence. Once the report is so filed in court, empowered

Magistrate can take cognizance of any offence upon such written report of the police officer. The Magistrate has power to arraigne any person as

accused in the case at any time during the proceedings irrespective of the stage of proceedings. It is not a requirement of law that a person arrayed

as accused has to be given pre-hearing or that it is only after the statement(s) of witnesses is/are recorded by the court that the person(s) against

whom incriminating evidence so surface in the case can be arrayed as accused. The State Prosecuting Officer has filed the application before the

court of law on the ground that named accused respondents 5 to 7 have not been send for the trial by the investigating agency before the court of

law though they have actually participated in the commission of offence and that investigating officer has no powers to discharge an accused against

whom prima-facie evidence and material has forth-come during investigation. The application of SPO also refers to the statements recorded u/s

161 Cr. P.C. and other documents and material on record to prima-facie support the incriminating allegations of commission of offence by above

the named accused (respondents 5 to 7), besides the accused against whom challan has been produced. The order passed by the Magistrate may

be brief but is as reasoned order sustainable under law.

In Kishun Singh and Others Vs. State of Bihar, though in the context of provisions of Section 319, 193 and 209 of the Central Code. Supreme

Court on the question of taking cognizance of the offence and arrangement of persons at post cognizance stage as accused to face the trial

alongwith already named accused, has observed:-

Even though the expression take cognizance is not defined, it is well settled by a catena of decisions of this court that when the Magistrate takes

notice of the accusations and applied his mind to the allegations made in the complaint or police report or information and on being satisfied that the

allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken

cognizance of the offence. Cognizance is in regard to the offence, not the offender.

We have already indicated earlier from the ratio of this court decisions in the case of Raghubans Dubey Vs. State of Bihar, and Hareram

Satpathy Vs. Tikaram Agarwala and Others, that once the court take cognizance of the offence (not the offender) it becomes the court's duty to

find out the real offender and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the

commission of the crime. It is the court's duty to summon them to stand trial along with those already named since summoning them would only be

a part of process of taking cognizance.

For the process whether a person (s) is required to be arrayed as an accuse or not, the empowered Magistrate/Judge has obviously to examine

the record and the documents/material submitted as part of the police report. Police report also includes statement of witness recorded u/s 161 of

the Code, Seizer memos. FIR etc. It is not a requirement of law for a court of original jurisdiction that the person arraigned or summoned on their

prima-facie complicity in the commission of Crime form the material available on record should be heard in the first instance and that empowered

court has necessarily to record the evidence before the persons can be so arrayed as accused.

Nisar v. State of U.P. 1995 SCC 23 is an authority when read in between the lines which over-rules the contention that the Session Judge or

the Magistrate can exercise the powers of arraignment of a person as accuse after taking cognizance of the offence only at the stage when evidence

is in the process of being recorded or thereafter. There is no provision under Code of Criminal Procedure to arraign the accused after taking

cognizance of the offence at any stage during the pendency of the proceedings. This is so once the Magistrate take cognizance of the offence of the

case it is part of the duty of the Magistrate/Judge to find out the real offender and on coming to the conclusions that besides the named persons

other are also prima-facie involved in the commission of crime then to summon them to stand trial alongwith named accused. After all as observed

by he Apex Court, it is only ""part of the process of taking cognizance.

In Rakesh v. State of Haryana AIR 2000 SC 2521 the word 'evidence' in the context of Section 319 of the Central Code is referred as under :-

Hence it is difficult to accept the contention of the learned counsel for the appellants that the term 'evidence' as used in Section 319, Criminal

Procedure Code would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would

arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does

not contemplate and additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed

against him and thereafter deciding whether such person is to be added as accused or not. Word ""evidence' occurring in sub-section is used in

comprehensive and broad sense which would also include the material collected by the investigating Officer and the material or evidence which

comes before the court and from which the court can prima-facie conclude that person not arraigned before it is involved in the commission of the

crime.

This concept of evidence, when used in the context of arraignment of additional accused in the context of enabling provisions of J&K Cr. P.C.

should fairly indicate that the material collected by the investigating officer and the material/documents and the evidence before the court as part of

the final police report can be basis for the court to come prima-facie to a conclusion that the person(s) not arraigned before it is involved in the

commission of the crime.

The impugned order of the Magistrate fairly shows that on the application of SPO and on due consideration of the matter and on examination

of the record including the FIR and statement recorded u/s 161 Cr. P.C. of the complainant, the Magistrate has come to the conclusion that the

respondents 5 to 7 named in the order should face the trial along with other named accused. The order may not be as explicit as one would like it

to be, yet it is a reasoned order and the conclusion of the Magistrate is supported by the material and documents including part of final police

report as available on the file/record.

In the aforesaid view of the matter this petition u/s 561 Cr. P.C. is dismissed.

Inform court below of this order and send back the record.