Mohammad Hanif and Another vs State

A.S. Anand, C.J.—An interesting question involved in these revision petitions is as to whether a magistrate can issue process against a

person who has not been sent up for trial by the police in a case instituted on a police report, if during the trial, the evidence led by the prosecution,

implicates that person also in the commission of the offence?

From a perusal of the record it transpires that one Chandu Lal was charged by the police of Bhadarwah for an offence u/s 406, R.P.C. in two

cases. The challans were filed in the court of the learned Judicial Magistrate 1st Class, Bhadarwah. During the trial, two of the prosecution

witnesses, namely, Anant Ram and Tek Chand implicated the applicant-petitioners in the commission of the offence. After the statements of these

witnesses were recorded, an application was moved by the accused before the learned trial magistrate praying therein that the applicants who had

been implicated by the prosecution witnesses should also be arrayed as accused and tried. The prosecution officer did not object to the grant of

the application and vide order dt. 27-11-1978 the learned trial magistrate observed that from the evidence dn the record the two applicant-

petitioners were prima facie involved in the commission of the offence and summons were issued against them. Against, the order of the learned

Judicial Magistrate, a revision petition was filed before the learned Sessions Judge, Bhadarwah on 27-12-1978 who did not find any merit in the

revision petition and dismissed the same vide order dt. 29-9-1979. It is this order and that of the trial court which are impugned in the petition of

revision.

Mr. J. S. Kotwal, learned Counsel for the applicant-petitioners submitted that it was not competent for the Magistrate to issue process against

the accused-petitioners after the trial of the case had commenced on the basis of the evidence led before him during the trial. He also argued that

the trial Magistrate could issue process against the applicant-petitioners on the basis of the documents filed along with the challan u/s 173, Cr.P.C.

if he found that there was reason to proceed against the applicant-petitioners, even though the investigation agency had not sent the applicant-

petitioners for trial. learned Counsel went on to contend that since neither the applicant-petitioners were named in the FIR nor in the statements

recorded by the police u/s 161, Cr.P.C, the learned Magistrate had no jurisdiction to issue process against the applicant-petitioners.

Mr. S. D. Sharma, the learned Chief Govt. Advocate, however, controverted the stand taken by Mr. Kotwal and argued that since a

Magistrate takes cognizance of an offence and not of a particular offender, he had the jurisdiction to issue process against all such persons who in

his opinion were connected with the commission of the offence irrespective of the fact whether or not the police had sent them up for trial because

the Magistrate is not bound only by what the Police puts up before him but it is his duty to find out as to who, if any one, is guilty of the offence

alleged and try the offender.

I have given my careful consideration to the respective contentions raised at the Bar. With a view to appreciate the relative contentions raised at

the Bar it would be necessary to notice the relevant provisions of the Criminal P.C.

Section 190, Cr.P.C. provides as follows:

Cognizance of offences by Magistrates :

(1) Except as hereinafter provided, any Chief Judicial Magistrate and any other Judicial Magistrate specially empowered in this behalf, may take

cognizance of any offenceâ€

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been

committed.

(2) The High Court may empower any Judicial Magistrate to take cognizance under Sub-section (1), Clause (a) or Clause (b), of offences for

which he may try or commit for trial.

(3) The High Court may empower any Judicial Magistrate of the first or second class to take cognizance under Sub-section (1), Clause (c) of

offences for which he may try or commit for trial.

The opening words of Section 190(1) ""Except as hereinafter provided"" unmistakably indicate that this section is not exhaustive and has to be

read with the other provisions of the Code. The section only provides for the different modes by which a Magistrate can take cognizance of an

offence. The different clauses of Section 190 under which the Magistrate can take ""cognizance of any offence"" are not mutually exclusive because

when the Magistrate takes cognizance of any offence upon a police report the Code does not debar him from proceeding even under Clause (c) of

Section 190(1) when after the evidence is led before him, or other person is also implicated and the only limitation in that case would be the one

provided-for Section 191, Cr.P.C. which leaves an option with the accused to be tried by that Magistrate or some other court. Section 191,

Cr.P.C. provides as follows:

Transfer or commitment on application of accused :â€" When a Magistrate takes cognizance of an offence under Sub-section (1), Clause (c), of

the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another court, and if

the accused, or any of the accused if there be more than one, objects to being tried by such Magistrate, the case shall, instead of being tried by

such Magistrate, be committed to the court of session transferred to another Magistrate.

Any other construction of Clause (c) would render this provision nugatory because no other purpose is sought to be achieved by it other than

the one that the prosecutor should not be the judge also, to ensure fair trial and the option in that behalf is with the offender rather than the Judge.

So after a Magistrate has taken cognizance of an offence by any one of the three modes mentioned in the section, he is seized of the whole case

as he takes cognizance of the offence and not of the persons and it is not only a question of jurisdiction ""but his duty also to bring everybody

concerned with the commission of the offence to book as justice demands it and his power in that behalf is in no way restricted. Thus, a Magistrate

is undoubtedly, entitled to proceed against persons other than those against whom the complaint or report has been filed, if they appear to be

involved in the commission of an offence from the evidence led before him. However, when he takes proceedings against ""Other persons or in

respect of offences not mentioned in the report of the complaint"", then he would be deemed to be taking cognizance from that stage onwards under

Clause (c) of Section 190(1), Cr.P.C. and when he does so, he has to comply with the provisions of Section 191 which is a safeguard provided

for the benefit of the accused. The expression ""cognizance of any offence"" occurring in Sub-section (1) of Section 190, as earlier stated, is not

equivalent to the expression ""cognizance of an offender"" and this makes the whole lot of difference. In Raghubans Dubey Vs. State of Bihar, their

Lordships of the Supreme Court had an occasion to consider the ambit and scope of Section 190, Cr.P.C. read with Sections 173, 207-A and

251-A of the Criminal P.C. The appellant in that case was one of the 15 persons mentioned as assailants in the FIR. the Police investigated the

case and during the investigation, accepted the plea of alibi set up by the appellant and consequently did not include his name as an accused in the

final report u/s 173, Cr.P.C. The name of the appellant was mentioned in column 2 of the charge-sheet under the heading ""not sent up"". The Sub-

Divisional Magistrate, before whom the challan was put up after taking cognizance of the case, transferred the case to the trial Magistrate for

inquiry adding therein ""accused not sent up for trial is discharged"". A protest petition was filed before the trial Magistrate praying that the appellant

be summoned also. Before the trial magistrate, prosecution led some evidence and a number of prosecution witnesses who appeared before the

trial Magistrate implicated the appellant also. The learned Magistrate, therefore, added the appellant as an accused. The appellant challenged the

order before the Sessions Judge wherein, inter alia, it was argued that the Magistrate had no jurisdiction to summon the appellant because the Sub-

Divisional Magistrate had already discharged him. The Sessions Judge rejected the argument and held that it was open to the Magistrate to

summon any person against whom he found sufficient evidence in the case. The appellant then filed a criminal revision petition before the High

Court. The petition failed in the High Court as well where it was found that since u/s 190 of the Code, a Magistrate takes cognizance of an offence

and not of an offender, it is open to the Magistrate, after taking cognizance of the offender, to decide on the material on the record, as to who

actually the offender is Against the order of the High Court, an appeal was taken to the Supreme Court by special leave. After discussion of the

various provisions of the Criminal P.C, their Lordships dismissed the appeal after observing that whereas the Sub-Divisional Magistrate had

discharged the appellant on the basis of the documents placed on the record, the learned trial Magistrate had issued process against the appellant

not only on the basis of those very documents but also on the basis of the prosecution evidence which had been led before him at the trial. Their

Lordships opined:

...In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence of an offence and not the offenders; once

he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the

persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional

accused is part of the proceeding initiated by his taking cognizance of an 'offence...

In the light of these provisions and the law as settled by the Supreme Court, the answer to the question posed in the opening paragraph of this

judgment has to be in the affirmative i.e., that it is open to a Magistrate to issue process against a person who has not been sent up for trial by the

police in a case instituted on a police report if during the trial the evidence led by the prosecution implicates that person also in so far as the

commission of the offence, of which he has taken cognizance, is concerned. That being the position, I find no merit in these revision petitions which

fail and are hereby dismissed.

Before parting, I would however, observe that though the consensus of judicial opinion, on the interpretation of Sections 190, 173, 207-A,

251, Cr.P.C. even before Raghubans Dubey's case (supra) was decided has been that a Magistrate is competent to issue process in such cases,

but so far as the rest of the country is concerned, this controversy has been set at rest in the amended Central Code of Criminal Procedure 1973

wherein Section 319, which provides as follows, has been incorporated :

Power to proceed against other persons appearing to be guilty of offence: (1) Where, in the court 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.

(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) Any person attending the court, although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry

into, or trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under Sub-section (1), then â€

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance

of the offence upon which the inquiry or trial was commenced.

Sub-sees. (1) & (2) of the aforesaid section, though based on Section 190 are somewhat new, but sub-sees. (3) & (4), in a re-drafted form,

correspond to Section 351 of the earlier Central Code of 1898 which was a par materia the same as the provisions of the State Code of 1933.

Though the (Jammu & Kashmir) Code of Criminal Procedure, 1933, has been substantially amended in 1978, by the State Legislature, and most

of the amendments incorporate the provisions of the Central Code of 1973, it appears that no provision identical to Section 319 of the Central

Code was incorporated in the amended Code in this State. It is a matter for the State Government and the Legislature to consider whether it would

not be more desirable to have a provision identical with the provisions of Section 319, Cr. P.C. (Central) so that the controversies like the one

raised in this case and with which the trial courts are generally faced, are settled once for all leaving no room for any controversy in view of the

plain language of the section aforesaid. Let a copy of this judgment be sent to the Law Secretary for appropriate action.