Rasila Ram and Another vs State of J. and K.

G.D. Sharma, J.—This revision petition is directed against the order dated 20-6-1997 passed by the learned Munsiff, Judicial Magistrate

1st Class, Billawar in Challan No. 81 of 1992 titled State v. Rasila Ram and Ors., offences under Sections 147,447,325,323,504, R.P.C.). In

terms of the said order, the learned trial Magistrate had arrayed petitioner No. 7 namely, Subash Chander as an accused along with the other

already arraigned accused who are petitioners Nos. 1 to 6 herein. In the report made before the police accusations were levelled against him

(petitioner No. 7) also but the police during investigation had released him u/s 169, Cr.P.C. holding that there was no sufficient evidence to justify

his forwarding as an accused to the Magistrate. The trial Court after taking the cognizance of the offences recorded the evidence of the prosecution

(petitioners Nos. 1 to 6)underthe provisions of Section 342, Cr.P.C. He then heard the arguments of the prosecution and the defence and came to

the conclusion that the prosecution witnesses Harish Chander, Smt. Rano Devi and Smt. Ganesho Devi had deposed against petitioner No. 7

(Subash Chander) to the effect that he had inflicted a fist blow on the mouth of said Smt. Rano Devi which had broken her one tooth. The medical

evidence lent corroboration that one tooth from the upper jaw was severed. On these facts the trial Magistrate arrayed Subash Chander as

accused No. 7 and then issued process for securing his presence. The order has been challenged on the sole ground that the learned trial

Magistrate lacked jurisdiction to issue the process. However, it is admitted that at the most the trial Magistrate could ask the police to file a

supplementary challan.

Heard the counsel for the petitioners.

The learned counsel has reiterated that order may be set aside as has been passed without any authority of law. He has contended that the

learned Magistrate could take cognizance of an offence u/s 190, Cr.P.C. but only in the modes prescribed therein and not otherwise. These modes

are-

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

(2) Upon a report in writing of such facts made by the police officer;

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

committed.

That there is no provision in the Criminal Procedure Code which authorises the trial Magistrate to implead a person as an accused on the basis

of evidence recorded during the trial. Undoubtedly Section 351, Cr.P.C. deals with impleadment of a person as an accused but it does not

empower the Magistrate or the trial Judge to array a person as an accused who is not before it attending the proceedings. To buttress.his

arguments he has cited the case of State Vs. Mohd. Zaman and Others, and Ghuiam Mohi-ud-din Mir v. State 1987 Kash U 753.

A reference to Section 190, Cr.P.C. reveals that under it every Chief Judicial Magistrate and any other Judicial Magistrate specially empowered

in this behalf can take cognizance of an offence in the manners prescribed therein. In the instant case cognizance was taken upon a report made in

writing u/s 173, Cr.P.C. but in this report petitioner No. 7 was not impleaded as an accused. The point to be considered is whether the Magistrate

has the power to implead a person as an accused in case during trial the evidence incriminates him. In the past this Court in the case of State Vs.

Mohd. Zaman and Others, had consideered the scope of Section 193 Cr.P.C. as well as Section 351, Cr.P.C. and held that Sessions Judge can

try an accused without a formal order of committal. It was also held that three conditions must be satisfied before Section 351, Cr.P.C. may be

applied to a case. There are-

(1) the person sought to be proceeded against must be attending the Court;

(2) the Court must be competent to take cognizance of the offence for which he is tried; and

(3) There must be evidence before the Court that the person is prima facie guilty of the offence.

It was also held that the evidence of which Section 351, Cr.P.C. speaks is the evidence recorded by the Sessions Judge himself and not any

other evidence. In that case the learned Sessions Judge had proceeded against the petitioner without recording the evidence himself so the order

was found defective and it was ordered that a supplementary challan be produced before the competent Magistrate. This Court recently in the

case of Tariq Mehmood Vs. State and Another, has held that Sessions Judge could add any person as an accused before it and direct him to be

tried with other accused if such person appeared to be involved in the commission of offence from the evidence recorded at the trial. Such trial

could be ordered on the basis of evidence recorded during the trial and not on the basis of evidence collected by the Investigating Agency. The

case of Ghulam Mohi-ud-din Mir v. State of J. & K. 1987 KLJ 753 (supra) deals with statutory duty of the police to hold further investigation in

terms of Section 173(8), Cr.P.C. and has no bearing with the facts of the present case. It can be said here that the provisions of Section 351,

Cr.P.C. are not attracted to the facts of present case because petitioner No. 7 was not attending the Court before he was arrayed as an accused.

Prior to its amendment vide Act No. 2 of 1974 the provisions of Section 351, Cr.P.C. of the Central Code (now Section 319 were identical to

those of Section 351 of the J. & K. State Cr. Procedure Code and there was conflict in judicial opinion as to whether a Sessions Judge was

competent to try an accused in the absence of formal committal order by a Magistrate by involving the provisions of Section 351, Cr.P.C. The

matter was considered by the Law Commission in its entire gamut and necessary amendments were suggested to be made in Sections 193, 207-A

and 351 of the Central Code. Besides doing away with the contention of his presence before the Court Sub-section (4) was added to the newly

enacted Section 319 under which such a person would be deemed to be an accused before the Court even at the time it took cognizance of the

offence; no matter whether he was actually present before it then. A correspondent amendment was also made in Section 193 and the expression

unless the accused has been committed to it by a Magistrate"" was substituted by the expression, ""unless the case has been committed to it by a

Magistrate"". Drastic changes were made in the procedure relating to cases exclusively triable by a Court of Session and the High Court and

provision made in Section 209 for committal of the ""case"" instead of ""accused"" as ordained by Section 207-A which was repealed. Keeping these

amendments in view their Lordships in Joginder Singh and Another Vs. State of Punjab and Another, held that Section 193 was no bar against the

trial of a person u/s 319, Cr.P.C.

A large scale amendments were also made in the State Code vide Act No. XXVIII of 1978, but no change was made in Section 193 or

Section 190 or Section 351. Section 190, Cr.P.C. is an independent provision not governed by what is contained in Section 351, Cr.P.C. It is

advantageous to produce Section 351, Cr.P.C. of the State Code as well as amended section incorporated in the Central Code as Section 319

and both run as under:

351- Detention of offenders attending Court-- (1) Any person attending a Criminal Court, although not under arrest or upon a summons, may be

detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the

evidence, may appear to have been committed and may be proceeded against as though he had been arrested or summoned.

(2) When the detention takes place (xxx) after a trial has been begun, the proceedings in respect of such person shall be commenced afresh and

the witnesses re-heard.

319: Power to proceed against other persons appearing to be guilty of offence-

(1) 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 as offence for which such person could be tried t sgether 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 summ is, 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-

(a) the proceedings in respect of such person shall be commenced afresh and the witnesses reheard;

(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-section (4) was added to the newly enacted Section 319 under which such a person would be deemed to be an accused before the Court

even at the time it took cognizance of the offence; no matter whether he was actually present before it then. This was felt the need of the hour and it

is also expected from our legislature to bring this section at par with the said amended section so that there is harmony with Section 193, Cr.P.C.

as well as newly incorporated Section 205(D) of the Code. The present case revolves around Section 190, Cr.P.C. which vests in the Chief

Judicial Magistrate and any other specially empowered judicial Magistrate power to take cognizance of an offence in the manners prescribed

therein. One of the modes is that he can take cognizance of an offence then upon receiving information from any person other than a police officer

or upon his own knowledge or suspicion that such offence has been committed. If during the trial of the case it is found that the police intentionally

had not collected the evidence against an accused, the Magistrate cannot be at the mercy of the police to wait for the production of supplementary

challan. This can be said so because the primary duty of the concerned Judicial Magistrate is to bring the perper trator of the crime within the reach

of law so that the rule of law is upheld. He on his own knowledge or suspicion that an offence has been committed can take cognizance and it does

not sound to reason that he has to be idle spectator for taking cognizance of an offence when the evidence prima facie establishes the offence. He

is on a better footing to take cognizance of an offence the commission whereof is disclosed on the basis of evidence collected by him. Throughout

the warp and woof of the texture of the Code of Criminal Procedure the Magistrate has been given supervisory supremacy and primacy in the

investigation and exclusive role to hold the trial of an offence in accordance with law. As soon as a case is registered with the police, the law

requires that copy of the F.I.R. is forwarded to the concerned Judicial Magistrate. This is required to.avert improvements and embellishments in

the first version of the crime. Petitioner No. 7 was released by the police u/s 169, Cr.P.C. but this section also admits the supremacy of the

concerned Magistrate as it is provided therein that if the person who is released under this section is in custody he has to execute a bond with or

without sureties and the officer incharge of the Police Station is to direct him to appear if and when so required before the Magistrate and to try the

accused or commit him for trial. The plea advanced by the learned counsel that the Magistrate can implead an accused only on the production of

supplementary challan under Sub-clause (8) of Section 173, Cr.P.C. runs contrary to the raison detre of the Code of Criminal Procedure Code.

The Magistrate has his defined role so far as the investigation and trial of an offence is concerned and there can be no circumvention of it. This

Court in the case of State Vs. Mohd. Zaman and Others, has held that a Sessions Judge can try an accused without an order of acquittal. Again in

the case of Tariq Mehmood Vs. State and Another, it was held that the Sessions Judge can add any person as an accused before it and direct him

to be tried with other accused if such person appears to be involved in the commission of an offence on the basis of evidence recorded at the trial.

A Judicial Magistrate also performs the similar functions in accordance with the powers vested in him by law. On the said reasoning and analogy he

too has the power to add any person as an accused along with other already arrayed accused in case during the trial the evidence recorded inculf

ates him. On the above said discussion being made there is found no legal force in this revision petition which is dismissed and the impugned order

of the learned Magistrate is maintained. The petitioners shall appear before the trial Magistrate on 29-11 -1997 who is directed to cqnclude the

trial as expeditiously as possible. The office shall return the record.