Joginder Singh vs State of Punjab

M.L. Koul, J.

This revision petition is preferred against the order of learned Sessions Judge, Ferozepur, who on the application of the prosecution, during the trial of a Sessions case found that there was sufficient evidence recorded during the investigation against the petitioners Joginder Singh and Gurdial Singh that prima facie they had committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and thus be summoned them by nonbailable warrants for 15.1.1996 for standing their trial vide order dated 15.12.1995.

Aggrieved of the said order it is contended in the revision petition that on investigation by the police the petitioners Joginder Singh and Gurdial Singh were found innocent and were put in column No. II of the report filed under Section 173 of the Code of Criminal Procedure and the Sessions Judge could not call them as accused for trial of the case unless some evidence was recorded by him within the ambit of Section 319 of the Code of Criminal Procedure.

Section 319(1) of the Code of Criminal Procedure reads as under:

"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."

Admittedly no evidence of any witness was recorded by the learned Sessions Judge before summoning the present petitioners. So in the circumstances it is to be seen as to whether the order could be sustained without the Sessions Judge having taken aid of Section 319 of the Code of Criminal Procedure for passing the said order.

Heard learned counsel for the petitioners and the Assistant Advocate General on behalf of the State and also had a thoughtful consideration over the record on the file.

It is an admitted fact that the name of the petitioners for commission of the crime existed in the first information report and the police for short of evidence did not place their names in Part I of the report submitted under Section 173 of the Code of Criminal Procedure showing that prima facie they had committed the offence, rather placed them under Part II of the said report showing that there was short of evidence against them. Learned Sessions Judge on consideration and examination of the record of the case along with the documents submitted herewith which included the statements of the witnesses recorded under Section 161 of the Code of Criminal Procedure, seizure memoranda etc. took the cognizance of the case and found prima facie that the petitioners had committed the offence and thus summoned them for facing the trial.

Their Lordships of the Supreme Court in an authoritative pronouncement reported as 1993(2) SCC 16, have held that Section 319 can be invoked both by the Court having original jurisdiction as well as the Court to which the case has been committed or transferred for trial. The sweep of Section 319 is limited, in that, it is an enabling provision which covers the postcognizance stage where in the course of an inquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. This may happen not merely in cases where despite the name of a person figuring in the course of investigation the investigating agency does not send him up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the inquiry or trial. Thus Section 319 is not exhaustive of all postcognizance situations and cannot be interpreted to be repository of all power of summoning such person or persons to stand trial along with others arraigned before the Court.

It has been further held that the Court of Sessions had the power under Section 193 of the Code to summon the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case. Though power was exercised under Section 319, there is no reason to interfere with the impugned order as it is well settled that once it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid.

Under the old Code Section 193 had precluded the Court of Session from taking cognizance of any offence as a Court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words ''the accused'' by the words ''the case''. Thus, on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of original jurisdiction gets lifted.

So that it transpired and is established that the law under Section 193 seeks to visualise that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima facie guilty of the crime as well. Once the case has been committed, the bar of Section 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon any individual accused of the crime. In this view I am supported by a Full Bench judgment of the Patna High Court reported as 1985 Criminal Law Journal 1238. It thus emerges that a Sessions Judge has power to summon any individual accused of the crime if on documents, the police report and the evidence recorded by the police it is found that he is prima facie connected with the commission of the crime.

In the instant case, the Sessions Judge has not in any manner fallen in error in calling the present petitioners to face the trial once he on perusal of the report of the police read with documents and the statements recorded under Section 161 of the Code within the concept of Section 193 of the Code came to the conclusion that the petitioners prima facie are connected with the commission of the crime. Therefore, the power exercised under Section 193 of the Code will not render the order illegal for the same has not been passed within the terminology of Section 319 of the Code. Hence the revision fails and is dismissed.

Revision dismissed.