Harish Chandra vs State of U.P.

J.M.L. Sinha, J.—This revision arises out of an order dated 13th August, 1981 passed by the IV Additional Sessions Judge, Ballia.

The facts giving rise to this revision can briefly be stated as under:

In connection with an occurrence that took place on 27th of December, 1977, the police submitted a charge sheet against eight accused. It appears that at that stage neither a final report nor a chargesheet was submitted against the present applicant as the investigation was still proceeding. On or about 9th of April, 1980, the case was committed to the court of session and on 29th of May, 1981, it was transferred to the IV Additional Sessions Judge. 25th of June, 1981 was then fixed for framing of charge and for arguments in that connection. On that date, however, three of the accused persons could not appear. Hence the case was adjourned to 17th of July, 1981. Before, however, the trial court be opened, an application was given that day on behalf of the informant for the present applicant being sommoned. 22nd of July, 1981 wag then fixed for arguments on that application as also for framing of charge. A letter was in the meantime sent to the Superintendent of police for obtaining the result of the investigation. The case then came up on 13th of August, 1981, and on that date the learned Additional Sessions Judge passed the impugned order issuing a non-bailable warrant to obtain the attendance of the applicant before him. By the present application the applicant has challenged the legality of the said order.

The only provision under which the learned Additional Sessions Judge could act in order to summon the applicant is that contained in Section 319 of the Code of Criminal Procedure. The relevant part thereof can be extracted as follows:

(1) Where, in the course of any inquiry into or trial of, an offecne, 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, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3)...

(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 witnesses reheard ;

(b)...

Now, in the instant case it does not appear from the certified copy of the ordersheet produced before me by the learned Counsel for the applicant that the trial of the case had yet commenced when the impugned order was passed. Even though the legislature used the words ''enquiry'' and ''trial'' in Sub-section (1) of Section 319, it is obvious that the expression "enquiry" relates to committing court and the expression ''trial'' relates to the court of session or such other court as may be seized of the trial. Further, according to Sub-section (1) of Section 319, an order summoning a person before the Court can be passed only in the course of the trial which would mean after the trial has commenced. Yet another requirement is that it should appear from the evidence in the course of the trial that the person not present before the Court has committed the offence. The expression "evidence" when read in the context of the words "in the course of any trial" occurring before it and in the context of the provision contained in Sub-section (4) can mean nothing but the evidence adduced during the trial of the case. In other words, if after the trial has commenced, it appears to the trial court on the evidence recorded by it that some person, other than the person before the court, is also concerned in the commission of the offence, it is open to that court to summon him. As already stated in the instant case the sessions trial had not commenced. Consequently, there was no question of the evidence having been recorded by the Additional Sessions Judge till he passed the impugned order. In my opinion, therefore, the order does not fall within the four-corners of Section 319 Code of Criminal Procedure.

Learned Counsel for the State conceded that the order passed by the learned Sessions Judge was outside his jurisdiction and could not be maintained. Learned Counsel for the informant, however, tried to support the order. In the first instance, he invited my attention to Section 193 of the Code of Criminal Procedure which reads as follows:

Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions 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. (Italicising by the Court).

Learned Counsel for the informant pointed out that u/s 209 of the Code of Criminal Procedure, 1973, it is a case which as committed to the court of session and, in view of the provisions contained in Section 193, Code of Criminal Procedure once the case has been committed, it is open to the Sessions Judge to take cognizance of the offence and against any person. Learned Counsel added that, if Section 193 is interpreted in that manner, the Sessions Judge would have the jurisdiction to summon a person not present before him u/s 193, Code of Criminal Procedure alone. I have given my careful thought to this contention raised by the learned Counsel, but I regret my inability to accept the same.

Section 193, Code of Criminal Procedure instead of containing an enabling provision contains a disabling provision. It only states that a Sessions Judge cannot take cognizance of an offence unless the case has been committed to it by a Magistrate. I cannot read Section 193, Code of Criminal Procedure as conferring a jurisdiction on the court of session to summon any person independent of its power u/s 319 of the Code of Criminal Procedure. In fact, if the court of sessions had possessed that power u/s 193 of the Code of Criminal Procedure there could be no purpose for the legislature inserting Section 319, in the Code of Criminal Procedure. The contention of the learned Counsel that the impugned order could be passed by the Sessions Judge in view of the provision contained in Section 193 of the Code of Criminal Procedure cannot, therefore, be accepted for any moment.

Learned Counsel for the informant then tried to urge that the expression ''enquiry'' occurring in Sub-section (1) of Section 319 would also apply to a court of sessions. He further urged that the expression ''evidence'' occurring in that Sub-section should include the case diary. Learned Counsel added that if this contention find favour with this Court, it should follow that the learned Additional Sessions Judge had the jurisdiction even u/s 319 of the Code of Criminal Procedure to summon the applicant. I am, however, unable to agree. Section 319 occurs in Chapter XXIV the heading whereof is "General Provisions as to Inquiries and Trials". Section 319 has, therefore, been couched in that language so that it may apply to all the courts. The word ''inquiry'' was used in Sub-section (1) of Section 319 so that a Magistrate dealing with a case at the pre-commitment stage may be able to exercise his power thereunder. It needs no argument to say that the case is committed to the court of session not for enquiry but for trial. It is, therefore, the word ''trial'' that relates to the court of session. The word ''enquiry'' cannot relate to the court of session. I am also not in agreement with the learned Counsel that the word ''evidence'' occurring in Sub-section (1) of Section 319 would include the case diary. It may be open to a court to take into consideration any material existing in the case diary in order to decide whether charge should or should not be framed against the accused. That will, however, not be evidence in the case till it is proved. In any case, I cannot ignore the fact that the word ''evidence'' in the setting in which it has been used in Sub-section (1) of Section 319, can not mean anything except the evidence adduced during the trial of the case. The interpretation sought to be put by the learned Counsel for the informant on the word ''evidence'' is, therefore, not acceptable to me.

Learned Counsel for the informant could not point out to me any other provision in the Code under which the Court of session can not, before commencing the trial, to summon the person not committed to that court for trial.

Before, however, I take leave of the case I may clarify that while it was not open to the court of session to pass the impugned order at the stage at which it passed, it will be open to that court to consider the question of summoning the applicant after it has recorded some evidence from which it may appear that the applicant was in any manner concerned with the commission of the crime.

For the aforesaid reasons, this revision is allowed. The order dated 13th August, 1981, passed by the IV Additional Sessions Judge, Ballia, is quashed.