Kishori Singh and Others vs State of Bihar and Another

G.B. Pattanaik and R.P. Sethi, JJ.—Leave granted.

These three Appellants though were named as accused in the F.I.R., but had not been charge-sheeted when the police, after investigation, filed the charge-sheet u/s 173 of the Code of Criminal Procedure. The offence in question is one which was triable by a Court of Session. The Magistrate by an order dated 10.6.1997 came to the conclusion that there appears sufficient grounds to proceed against the accused persons and as such cognizance be taken under Sections 302/34, 324 and 448, I.P.C. and Section 27 of the Arms Act.

The expression "accused persons" would obviously mean those accused persons against whom the police had filed the charge-sheet. Later, on the prayer of the prosecution, the Magistrate passed an order on 22.10.1997 issuing non-bailable warrants of arrest against these (the present Appellants), who had not been charge-sheeted by the police while filing the papers u/s 173 of Cr. P.C. though named as accused in the F.I.R. These Appellants then moved the learned Sessions Judge in revision who came to the conclusion that the order of the Magistrate is without jurisdiction and allowed the revision.

The matter having been carried in appeal, the High Court interfered with the order of the learned Sessions Judge. Thus, it was necessary for the Appellants to move this Court.

Mr. S. B. Sanyal, learned senior counsel appearing for the Appellants, raises the contention that under the scheme of the Criminal Procedure Code in a case where the offence is triable solely by the Court of Session, when the police files a charge-sheet and arrays some only as accused persons though many more might have been named in the F.I.R., the Magistrate or even the Sessions Judge would have no jurisdiction to array them as accused persons at a stage prior to Section 319 of Cr. P.C. stage when some evidence or materials are collected in course of trial and in that view of the matter, the order of the learned Magistrate as well as that of the High Court must be held to be erroneous and the learned Sessions Judge rightly interfered with the order of the Magistrate in exercise of power of revision.

Mr. B. B. Singh, learned Counsel appearing for the State of Bihar, however, contended that though the stage u/s 319 of the Code of Criminal Procedure had not reached in the case in hand, but the original order of the Magistrate dated 10.6.1997 must be held to be an order in exercise of power u/s 190(1)(b) of Cr. P.C. and at that stage, there was no fetter on the powers of the Magistrate to take cognizance of the offence and also to issue process against those who might not have been arrayed as accused persons by the police while filing the charge-sheet. In support of this contention, reliance has been placed on a decision of this Court in India Carat Pvt. Ltd. Vs. State of Karnataka and Another,

The learned Counsel appearing for the informant, on the other hand, contended that there is no fetter on the powers of the Magistrate to take cognizance of the offence and issue process against all offenders against whom the Magistrate thinks that there are sufficient materials notwithstanding the fact that on completion of investigation, police has filed the charge-sheet only against some of them.

The questions involved in this appeal are now squarely answered by the two recent decisions of this Court in the case of Raj Kishore Prasad Vs. State of Bihar and another, and a three Judge Bench judgment of this Court in the case of Ranjit Singh Vs. State of Punjab, . In the latter, case their Lordships have considered the earlier two Judge Bench decision of this Court in Raj Kishore Prasad's case (supra).

After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments and on examining the order dated 10.6.1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the F.I.R. as accused persons, but not charge-sheeted in the chargesheet that was filed by the police u/s 173 of Cr. P.C.

So far as those persons against whom charge-sheet has not been filed, they can be arrayed as "accused persons" in exercise of powers u/s 319 of Cr. P.C. when some evidence or materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet, as has been explained in the latter three Judge Bench decision. Neither of the contingencies has arisen in the case in hand.

In this view of the matter, we set aside the impugned order of the High Court as well as that of the learned Magistrate and uphold the order of the learned 3rd Addl. Sessions Judge, Munger.

Be it stated that our saying so would not fetter the powers of the learned Sessions Judge to act in accordance with the law laid down by this Court in the two judgments referred to by us earlier.

The appeal is allowed accordingly.