Sanjay Gupta and Another vs State

Kailash Gambhir, J.—By this petition filed u/s 482 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) the petitioners seek a direction for setting aside of the impugned orders dated 06.09.2010 and 21.09.2010 passed by the learned Additional Sessions Judge, Rohini, Delhi. Learned counsel for the petitioners submits that the said FIR being No. 751/2008 registered under Sections 324/341/506/34 IPC at Police Station Saraswati Vihar, New Delhi was lodged at the instance of the complainant Sh. Arun Kumar on the basis of the complaint made by him on 29.11.2008.

Learned counsel for the petitioners also submits that the complainant had disclosed the name of the present petitioners not in the initial complaint but much later in time. He further submits that the police also found in the investigation that these petitioners were not involved in the fight but they intervened only to prevent the accused and the complainant from fighting.

Learned counsel for the petitioners further submits that the police had kept the present petitioners in column No. 2 of the charge sheet. He also submits that the charge sheet was filed by the police in the Court of the learned Metropolitan Magistrate and cognizance was taken by the Magistrate on 30.07.2010 against the other accused persons but not against the present petitioners.

Learned counsel for the petitioners submits that after taking cognizance by the Magistrate, the case was committed for trial before the learned Addl. Sessions Judge and after committal of the case the learned Addl. Sessions Judge took cognizance even against the present petitioners and accordingly the petitioners were directed summons for 29.09.2010 vide orders dated 06.09.2010 and 21.09.2010.

The objection raised by the learned counsel for the petitioners is that the order passed by the learned ASJ is ex facie illegal, improper and perverse as after committal of the case, the learned Addl. Sessions Judge could summon the petitioners only u/s 319 Cr. P.C. on the basis of the evidence adduced before it and not on the basis of the material already on record, based on which the learned Magistrate did not choose to take cognizance against the present petitioners. In support of his contention, learned counsel for the petitioners has placed reliance on a three judge bench decision of the Apex Court in Ranjit Singh Vs. State of Punjab, .

I have heard the learned counsel for the petitioners and have also perused the relevant records.

I find merit in the contention raised by the learned counsel for the petitioners. Indisputably, these petitioners were placed in column 2 of the charge sheet as during the course of the investigation the police did not find any cogent role of these petitioners in the commission of the alleged offence. The police have also stated in the charge sheet that these petitioners were present only to prevent the fight. It is also true that the Learned Magistrate had taken cognizance against the other accused persons and not against these petitioners, but the learned Addl. Sessions Judge took cognizance against these petitioners upon the committal of the said case.

It is settled legal position that in a case where the cognizance has been taken by the Magistrate and thereafter the Magistrate has committed the trial of the case to the Session Judge, the Sessions Judge cannot take a fresh cognizance i.e. cannot add any other person in the array of the parties. He is only empowered to take fresh cognizance u/s 319 Cr. P.C. while collecting evidence and not before that. For better appreciation of the legal position, relevant paragraphs of Ranjit Singh (supra), are extracted hereunder:-

So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 of the Code, that court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused.

Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers u/s 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers.

But then one more question may arise. In a situation where the Sessions Judge notices from the materials produced but before any evidence is taken, that any other person should also have necessarily been made an accused (without which the framing of the charge would be defective or that it might lead to miscarriage of justice) is the Sessions Court completely powerless to deal with such a contingency? One such situation is cited by the learned Judges through an illustration narrated in Kishun Singh''s case (supra) as follows:

Where two persons A and B attack and kill X and it is found from the material placed before the Judge that the fatal blow was given by A whereas the blow inflicted by B had fallen on a non-vital part of the body of X. If A is not challaned by the police, the Judge may find it difficult to charge B for the murder of X with the aid of Section 34 IPC. If he cannot summon A, how does he frame the charge against B?

Another instance can be this. All the materials produced by the investigating agency would clearly show the positive involvement of a person who was not shown in the array of accused due to some inadvertence or commission. Should the court wait until evidence is collected to get that person arraigned in the case?

Though such situations may arise only in extremely rare cases, the Sessions Court is not altogether powerless to deal with such situations to prevent miscarriage of justice. It is then open to the Sessions Court to send a report to the High Court detailing the situation so that the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. But we hasten to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes.

In the facts of the present case, it is an admitted case that the learned Metropolitan Magistrate took cognizance against the other accused persons and not against the petitioners, but later, after the trial of the case was committed by the learned Magistrate to the Ld. Additional Sessions Judge, the Ld. Additional Sessions Judge took cognizance of the offence even against the petitioners. In the light of the above legal position, this Court finds that the orders dated 06.09.2010 and 21.09.2010 passed by the learned Additional Sessions Judge, Rohini, Delhi are manifestly illegal and perverse and are accordingly set aside.

The said order, however, will not come in the way of the learned Additional Sessions Judge to proceed against the petitioners u/s 319 Cr. P.C., if during the trial of the case, the Court finds that these petitioners are required to be tried together with the other accused persons.

With these observations, the present petition is disposed of. It is ordered accordingly.