Shamshad Khan vs State of U.P.

I.P. Singh, J.—This application has been filed by Shamshad Khan, Under Section. 482 Code of Criminal Procedure for quashing the order dated 28-11-80 passed by the III Additional District Judge, Saharanpur in S.T. No. 251 of 1979, State v. Naushad, summoning the applicant as accused Under Section. 319 Code of Criminal Procedure.

The brief facts giving rise to this application are that one Km. Nayab Rani, aged about 11 years, filed an oral FIR on 25-12-78 at P.S. Mandi, District Saharanpur, registered u/s 368, IPC as crime No. 387 of 1978, against Shamshad Khan (the present applicant), Naushad, Inam and Saeed, for abducting her sister Gulshan Aftab alias Kishwar Aftab. A copy of the said FIR is annexure-A. As a result of the investigation a charge-sheet u/s 363, 366, 368, IPC was submitted on 6-4-79 against Naushad, Inam and Saeed while Shamshad applicant was shown as absconding accused.

The Magistrate committed the abovementioned three accused to the Sessions court on 17-7-79 to stand their trial. 25-10-79 was the date fixed for the framing of charges. However, on that day the State Counsel moved an application to summon Shamshad accused-applicant Under Section. 319 Code of Criminal Procedure so that he may be tried together with the other three accused. On this application Shamshad applicant was summoned and he filed objections dated 19-1-80. After hearing the parties the application of the State was rejected vide order dated 11-4-80, annexure-D. Its perusal shows that the said application was rejected relying on the decisions (1) Patananchala China Lingaiah Vs. The State and Another, and (2) Abdul Mazid v. The State (Delhi Administration), Delhi 239. These two decisions are to the effect that in view of the provisions of Section 193, Code of Criminal Procedure the court of sessions could not take cognizance of any offence unless the case was committed to it by the Magistrate. Accordingly the Sessions Judge was of the view that Shamshad applicant could not be tried by him by direct implication. In other words, the committal by the Magistrate was considered necessary. By the said order dated 11-4-80 the proceedings against Shamshad-applicant were ordered to be dropped.

On 25-7-80 the statement in examination-in-chief of Km. Nayab Rani was recorded. On the basis of that statement the State Counsel moved a second application on that very date to summon and implead Shamshad applicant as co-accused in the case. Shamshad was summoned. He filed objection dated 14-10-80 pointing out that similar proceedings against him were already dropped by order dated 11-4-80 and perhaps the counsel for the State did not bring that order of the court to the notice of the court as a result of which he was summoned again. It was pleaded that summoning again in a way amounted to reviewing the earlier order dated 11-4-80 which the court could not do under law. After hearing the parties this second application of the State was also rejected vide order dated 30-10-80. Its perusal shows that the said application was rejected on the basis of the same rulings cited above and the proceedings against Shamshad applicant were ordered to be dropped. Thereafter the statement of Km. Nayab Rani (PW 1) and Mohd. Ayub (PW 2) were completed and the case was adjourned.

On 3-11-80 the counsel for the State moved third application Under Section. 319 Code of Criminal Procedure for summoning Shamshad applicant and making him a co-accused to be tried alongwith the other accused. In this connection it was pointed out that the earlier rulings which were relied on by the learned Counsel for applicant Shamshad (on the basis of which previous orders were passed) were over-ruled by the decision of Joginder Singh and Another Vs. State of Punjab and Another, .

On the said application of the counsel for the State dated 3-11-80 the learned Sessions Judge ordered on 5-11-80 to issue notice to Shamshad to appear on 28-11-80 a copy of which is Annexure-E. On 28-11-80 Shamshad applicant could not be served so he was summoned again for 17-12-80 and simultaneously date for further hearing of the Sessions trial was fixed. It is against this order of summoning Shamshad applicant that the present application Under Section. 482 Code of Criminal Procedure is directed.

The two points on which the above order is challenged are, first, that the summoning of the applicant is against the provisions of Section 193, Code of Criminal Procedure which speaks about the committing of the case by the Magistrate to the Sessions court and which itself provides that the sessions court shall not take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate, and, secondly, that Section 319, Code of Criminal Procedure applies only to those persons who were not initially accused in the case. The argument is that since Shamshad applicant is shown in the charge-sheet as accused, though absconding, Section 319, Code of Criminal Procedure will not apply and the prosecution must secure his committal to the sessions court Under Section. 209, Code of Criminal Procedure to put him in the dock before the sessions court. In answer to these two contentions reference may be made to the case of Jogender Singh v. State of Punjab (supra) wherein it was held:

The expressions '' any person not being the accused'' occurring in Section 319 clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like Section. 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court, are included in the said expression.

It was then held:

Both under Section. 193 and Section. 209 the commitment is of ''the case'' and not of the ''accused'' whereas under the equivalent provision of the old code viz. Section. 193(1) and Section. 207(A) it was the ''accused'' who "was committed and not ''the case''. u/s 193 read with Section. 209 when a case is committed to the court of Sessions in respect of an offence the Court of Sessions takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under Section. 319(1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial.

It was further held ;--

Once the case in respect of the offence qua those accused who are before the Court is committed then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial alongwith those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it otherwise the conferral of the power u/s 319(1) upon the Sessions Court would be rendered nugatory. Further Section 319(4)(b) enacts a deeming provision in that behalf dispensing with the formal committal order against the newly added accused.

In the light of this observation the above two points have no force.

The third point raised is that the impugned order summoning the applicant afresh after the proceedings against him were dropped by two earlier orders dated 11-4-80 and 30-10-80 amounted to altering or reviewing those orders, which could not be done in view of the provisions of Section 362, Code of Criminal Procedure which reads as under: --

Section 362. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct the clerical or arithmetical error.

It is obvious that what Section 362, Code of Criminal Procedure forbids is the alteration or review of a judgment or final order disposing of a case. In my view, mere summoning of a person to face a trial is neither ''a judgment nor a final order disposing of a case'' and, therefore, the said bar of Section 362, Code of Criminal Procedure is not applicable and the impugned order cannot be struck down on that account.

The facts and cricumstances of this case as discussed above do not call for any interference in exercise of inherent powers of This Court Under Section. 482 Code of Criminal Procedure. The application is therefore dismissed.