Pavittar Singh vs State of Punjab

Petitioner-Pavitar Singh has challenged the impugned order dated 20-2-1998 whereby the learned Additional Sessions Judge, Ludhiana, has summoned him as an accused exercising power under S. 193 read with S. 319 of the Code of Criminal Procedure (in short the ''Code'').

Brief facts of the case are that on 10-7-1997 at about 12.10 p.m. at Chowk Aggar Nagar, Ludhiana, Sub-Inspector Gurmukh Singh of Police Station Sarabba Nagar, Ludhiana, received secret information that Pavitar Singh, who runs a workshop opposite to the P.A.U. Gate No. 2, has brought opium in his white Maruti Car No. CHB-8484, which is lying parked in the workshop. On the basis of the said secret information, ruqa was sent and the First Information Report No. 109 dated 10-7-1996 was registered, Gurdial Singh, Deputy Superintendent of Police, Police Station Sarabba Nagar, was sent a message to reach the spot. Sub-Inspector Gurmukh Singh recovered 1 kilogram opium from the said Maruti Car No. CHB-8484, which was duly sealed after preparing two samples of 10 grams each. Samples were sent to the Chemical Examiner, Patiala, who opined that the contraband was opium. One Dilbagh Singh was also apprehended along with accused Pavitar Singh, who was declared Proclaimed Offender by the Judicial Magistrate I Class, Ludhiana.

During investigation, Pavitar Singh gave information to the police that Dalbag Singh son of Jagir Singh, resident of village Manuke, Police Station Jagraon, is his friend and resides in a foreign country. Whenever he comes to India, he demands one car from him (Pavitar Singh) for his use. His Contessa Car is new kept by Dalbagh Singh for his use. On 9-7-1996 Dalbag Singh along with Assistant Sub-Inspector Jasbir Singh of Police Station Jagraon along with their Gunman and one Iqbal Singh came to Pavitar Singh in Maruti Van No. MH-051-7403. Iqbal Singh and the Gunman sat in his workshop, while Dalbag Singh and Jasbir Singh, Assistant Sub-Inspector took his (Pavitar Singh''s) Maruti Car No. CHB-8484 from which opium was recovered later on. They brought back his Maruti Car in the workshop after about 2 1/2 hours. Iqbal Singh and Dalbag Singh went back in Maruti Van. Pavitar Singh''s employee took Jasbir Singh, Assistant Sub-Inspector and his gunman to Jagraon. Thus, Pavitar Singh made a statement that this opium was planted in his Maruti Car No. CHB-8484 by Assistant Sub-Inspector Jasbir Singh and Dalbag Singh in connivance with each other. Pavitar Singh has taken the site underneath the workshop on rent from Harbhajan Kaur, sister of Dalbag Singh. Dalbag Singh wants to get the site vacated. Pavitar Singh has obtained stay order from the Court. An application was submitted by the relations of Pavitar Singh before the Senior Superintendent of Police, Ludhiana alleging that Pavitar Singh has been falsely implicated in this case.

An application was submitted in the Court of Judicial Magistrate I Class, Ludhiana on 3-8-1996 by the prosecution for discharging accused Pavitar Singh on the ground that a false case has been foisted upon the petitioner at the instance of Assistant Sub-Inspector Jasbir Singh and Dalbag Singh. After hearing the learned Assistant Public Prosecutor, the Judicial Magistrate I Class, Ludhiana, discharged accused Pavitar Singh vide his order dated 5-8-1996. On the basis of the discharge order, an intimation was sent to the Superintendent Jail, Ludhiana, whereupon the petitioner was released therefrom. Subsequently, the challan dated 6-7-1997 was presented in the aforesaid First Information Report No. 109 dated 10-7-1996 against Sub-Inspector Jasbir Singh and Dalbag Singh. Assistant Sub-Inspector Jasbir Singh was taken into custody and was later on released on bail whereas accused Dalbag Singh, a Non-Resident Indian, was declared Proclaimed Offender on 7-6-1997. The case was committed to the Court of Sessions.

After hearing arguments with regard to charge, the learned Additional Sessions Judge, passed the impugned order. He held that on the basis of secret information, the opium was recovered from Maruti Car owned by accused Pavitar Singh by Sub-Inspector Gurmukh Singh, Police Station Sarabha Nagar, Ludhiana. Recovery was effected in the presence of the Deputy Superintendent of Police Gurdial Singh. Opium was taken into possession from accused Pavitar Singh, but Pavitar Singh was not challenged by the police though, there is sufficient evidence on the file that the opium remained with accused Radheyshyam Vs. State of Madhya Pradesh, learned Additional Sessions Judge held that the Session Court has inherent power to call upon a person left over by the Investigating Agency to face trial before charges are framed and trial is commenced in view of S. 193 read with S. 319 of the Code, even though the accused has not been committed by the Magistrate after enquiry. Thus, on the basis of this finding, he summoned the petitioner-accused Pavitar Singh.

Petitioner''s learned counsel submitted that the learned Additional Sessions Judge has fallen into an error in relying on Radhey Shyam''s judgment. No doubt, the Apex Court in Kishun Singh and Others Vs. State of Bihar, has held :-

"Thus, on a plain reading of S. 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 Sessions to take cognizance of an offence as a Court of original jurisdiction gets lifted on the Magistrate committing the case under S. 209 to the Court of Session, the bar of S. 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record."

This view was subsequently approved by their Lordships in Nisar and Another Vs. State of U.P., .

Senior counsel Mr. R. S. Cheema, appearing for the petitioner submitted forcefully that this question was again examined by the Apex Court in Raj Kishore Prasad Vs. State of Bihar and another, wherein the above view was not approved. In Raj Kishore''s case also, Raj Kishore was not committed to the Court of Session though during investigation, evidence was collected that he gave an exhortation on which Avad Kishore had committed murder. During investigation, police could not collect sufficient evidence nor there were reasonable grounds for suspicion that Raj Kishore was involved in the crime. Therefore, challan was submitted against Avad Kishore only. An application was moved before the Chief Judicial Magistrate to summon Raj Kishore to stand trial along with Avad Kishore. He rejected the petition. On revision, the learned Additional Sessions Judge, allowing the revision petition, directed the Chief Judicial Magistrate to issue warrant of arrest against Raj Kishore and to commit him to face trial. This order was upheld by the High Court under S. 482 of the Code of Criminal Procedure. The matter went to the Apex Court. Their Lordships reconsidered their earlier decisions rendered in Kishun Singh and Others Vs. State of Bihar, and Nisar and Another Vs. State of U.P., that under Ss. 209 and 319 of the Code read with S. 2(g) of the Code while committing a case the Magistrate has no power to summon any person as an accused in addition to one facing commitment.

Petitioner''s learned counsel thereby contended that the learned Additional Sessions Judge had no jurisdiction to summon the petitioner under S. 193 of the Code. He has wrongly exercised power under S. 319 of the Code at the stage when he only heard arguments with regard to charge. Till then no evidence was recorded by him; therefore he had no jurisdiction to exercise power under S. 319 of the Code.

Learned Deputy Advocate-General, Punjab, submitted that under S. 193 of the Code as well as under S. 319 of the Code, the Sessions Court has power to take cognizance of the offence against any accused who is not commited to the Sessions for trial. According to him, under new Code of Criminal Procedure, the case is committed for trial and not the accused; therefore, in his opinion, the learned Additional Sessions Judge has not fallen into any error in passing the impugned order. He placed reliance on Kishun Singh and Nisar''s cases (supra).

After hearing the rival contentions, in my considered view, revision deserves to be allowed.

No doubt earlier in Kishun Singh and Others Vs. State of Bihar, the Apex Court has held that as under the new Code the case is committed to the Court of Session; therefore, the restriction placed on the power of Court of Sessions to take cognizance of an offence as a Court of original jurisdiction gets lifted; therefore, on the basis of the evidence collected during investigation if the Sessions Court comes to the conclusion that any other accused, who is not committed to face trial or who is shown in column No. 2 in the charge-sheet submitted under S. 173 of the Code, also appears to have committed the crime for which case is committed, exercising power under S. 193 of the Code the Sessions Court can summon such an accused to face trial along with the committed accused persons. This view was reiterated in Nisar and Another Vs. State of U.P., , but when this legal proposition was again examined by the Apex Court in Raj Kishore Prasad Vs. State of Bihar and another, they did not approve their earlier view and held that under S. 193 of the Code the Sessions Court cannot summon any person to face trial along with the committed accused persons. They have clarified that "in Chapter XVIII of the Code there seemingly is no intermediate stage envisaged between commitment and trial or the trial proceeding splitting into pre-charge trial and after charge trial. Trial begins with S. 225 when the Public Prosecutor is present before the Court of Session to conduct the prosecution and opens its case disclosing the evidence by which he proposes to prove the guilt of the accused. It is for him to highlight the particulars of the evidence he would lead to prove the case against the accused facing trial. The stage of Ss. 227 and 228 comes as the next step after observance of such procedure, as part of trial. It is thus designed that proceedings to discharge or charge the accused are part of trial. Addition of an accused by summoning or resummoning a discharged accused, and that too without hearing the accused, has only been permitted in the manner provided by S. 319 of the Code on evidence adduced during the course of trial and in no other way."

In para 16 of the judgment, their Lordships concluded as under :-

"Thus we come to hold that the power under S. 209, Cr.P.C. to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an ''inquiry'' and material before him not being ''evidence.'' When such power was not vested his refusal to exercise it cannot be corrected by a Court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, (sic) the accused to stand trial, along with the accused meant to be committed for trial before it. Presently it is plain that the stage for employment of S. 319, Cr.P.C. has not arrived. The order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under S. 319, Cr.P.C. when handling a matter under S. 209, Cr.P.C. the Court of Session, in purported exercise of revisional powers cannot obligate it to do so. The question posed at the outset is answered accordingly in this light. When the case comes after commitment to the Court of Session and evidence is recorded, it may then in exercise of its powers under S. 319, Cr.P.C. on the basis of the evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the necessary safeguard envisaged under sub-section (4) of S. 319."

Thus, it is apparent that the Session Court has no power under S. 193 of the Code to summon petitioner-Pavitar Singh, who was not committed along with other committed accused person to face the trial. The Additional Sessions Judge has also fallen into an error in summoning the accused-petitioner under S. 319 of the Code at the stage of framing of charge as by now this legal proposition is no more res integra that this power can be exercised only after recording some evidence in the case. When the learned Additional Sessions Judge passed the impugned order, he only heard arguments before charge, no evidence was recorded and therefore, he had no jurisdiction to take cognizance of the offence under S. 18 of the NDPS Act against the accuse-petitioner-Pavitar Singh, who was not committed for trial and who was earlier discharged by the Judicial Magistrate I Class on an application moved by the prosecution itself. Nor he had any jurisdiction to summon the petitioner-accused Pavitar Singh under S. 319 of the Code without recording any evidence.

Resultantly, revision is allowed; impugned order is set aside.

Revision allowed.