State vs Man Mohan Singh

This revision is directed against the order of First Additional Sessions Judge, Jammu. dated 741984. From the impugned order it is revealed that

one Man Mohan Singh who was accused in a case u/s 302/149 RPC was proceeded against u/s 512 Cr, P, C. The case against the other accused

persons was committed to the Court of Session and before tee court of Sessions Man Mohan Singh accused had sppearded and surrendered

himself before the court and the learned Sessions Judge ordered dropping proceedings u/s 512 Cr. P. C. against him and fixed the case for

preliminary hearing The accused was handed over to the authorities for being locked up in judical lockup

Learned counsel for the State has assailed this order as being violative of the procedure .established by law. It is further contended that the

accused could be tried by the Sessions Judge only after he was committed by the Judicial Magistrate. The Judicial Magdicial had taken

proceedings u/s 512 Cr. .P. C. against him and it was within the powers of the learned Sessions Judge to drop the said proceeding and in the

absence of following the procedure provided u/s 193 Cr. P. C. accused could not be charge sheeted or tried. The accused should have been

handed ever to the police so that investigation could be completed by the police and challan produced against him and it was obligatory for the

accused to, surrender before the Chief Judicial Magistrate in the case he wanted to he tried alongwith the other accused persons by the Sessions

Judge The surrender of the accused before the learned Sessions Judge is also, assailed. In support of his submissions learned counsel for the state

has referred, so the provisions of 193 (I) Cr. P C. which reads as

(1) Except as otherwise expressly, provide by this Code or by any other law for the time being in force, no court of sessions shall take cognizance

of any offence as a court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf

3, It is further submitted by him that See, 3£1 Cr P. G. Code also would not empower the trial court to frame charge against the accused

because the said section was not applicable to the facts of the present case. This section lays down that for trying a persons who was not accused

in the original case but against whom evidence was available may be added as an accused and proceeded against to the learned counsel for the

state, Sec. 351 Cr. P. C. Code was not applicable and the trial Court had no power to frame a charge against the said accused. Learned Counsel

for the State further argued that Sec. 205D Cr. Pr. Code also could not empower the trial court to add the accused who was named in the MR in

support of his submissions he has referred to an authority of Allahabad High Court Viz: Onkar Singh and others Vs State, 1976 Cr. Law Journal

1774. He also referred to an authority of this court viz: State Vs. Mohd. Raman and Ors. 1981 Cr L J 783, and of Calcutta High Court viz:

Basudeo Mondal and Ors Vs Dud Kr. Paramanjck and anr. 1982 Cr. L. J. 1654, and of Gauhati High Court vix: Gunarm Tanti and another Vs.

State, 1983 Cr L. J. 289.

1976 Cr L J. 1774 (Supra) lays down that non production of accused before the Magistrate at the time of commitment u/s 209 CR Pr. Code is

a mereirregularity which is curable. This authority cannot be passed into service in support or the submissions raised by the learned counsel for the

State, 1981 Cr. L. J. 783 (Supra) an authority for the proposition that person not committed to the court of Sessions/Sessions Judge can

nontheless try such person provided the conditions of Sec. 351 Cr Pr Code are satisfied It does not deal with the proposition as to whather a

person named in the FIR could surrendered in the Sessions Court without there being any committal order against him It on the other hand

interprets various other sections of the code of Criminal Procedure Facts of this authority are altogether different, therefore, in the context of the

facts arid points involved in the present revision petition had not arisen before by Kotwal J. 1982. 1954 (Supra) had discussed ambit and scope of

Sec.,319 of the Central Act Corresponding to Sec. 351 of J&K Criminal Pr, Code. It lays down that no being an accused appearing in Sec. 319

(I) (Central Act) means a person against whom no process has already been issued because if process has already been issued against a person,

the question of adding him as an accused in the case under this section will not arise at all. So a person who can be added &s an accused under

this section must rot be a person against whom process has already been issued. The Sessions Court is empowered to add a person as an accused

against whom no case registered but against whom evidence was available before him 1983 Cr Cr. L. J. 289 (Supra) says that u/s 319Cr, Pr.

Code (Central) Sessions Court can exercise powers against the person other than the accused if from the evidence recorded by it, it appears that

such other person has committed an offence for which he could be tried together with the other accused The evidence in Sec 319 would not

include a police statements.

5 The aforesaid authorities did not. in my opinion help the state for the proposition that an accused person named in the FIR and against whom

proceedings u/s 512 Cr. P. C. have been initiated cannot be proceeded against as an accused by the Sessions Court without there being committal

order recorded by the committing Court. It is true that Sec. 193 Cr. P C. postulates that the court of sessions shall not take cognizance of an

offence as the court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. But this

section saves other sections and the opening words of this section have the affect of saving the other provisions of the code in this behalf Therefore,

it can be safely said that it is not necsesary in all case that a committal order should be recorded against the accused which would give jurisdiction

to Sessions Court to try the accused person, the Section itself provides exceptions to this rule. If that were not so, the opening words ""except as

otherwise expressly provided by this code or by any other law for the time being in force...'"" would not be therein the section. In fact Sec. 193 Cr.

Pr. Code opens with the above said words.

That brings me to the question as to what other provisions are applicable in respect of committal ""f an accused who is to be tried exclusively by

the court of sessions. Sec. 205D of ameaeded Cr. Procedure Code lays down that in a case instituted on a police report or otherwise if the

accused appears or is brought before a Magistrate and the offence is exclusively triable by a sessions Court, he shall commit the case to the Court

of Sessions. The most important feature in this section is that it is the case which is to be committed to the Sessions Court and not the accused In

this regard it is pertinent to mention that under the provisions of Sec. 207A of old Cr. Pr. Code it was the accused who was to be committed to

the Sessions Court and now under the amended code the case is to be committed to the Sessions Court This, in my opinion, is a significant change

in the procedure and has a purpose behind it. It is an admitted fact that the accused in the present case was is committed to the Sessions Court be

sad that case against him was not committed to the Court of Sessions. The Committing Magistrate by recording his committal order was bound to

commit the case to the Sessions Court and the accused who was absconding would automatically stand committed to the Court of Sessions for

facing trial. It is immaterial as to whether he had appeared before the committing court or not but process against him was issued by the committing

Court and he was proceeded against u/s 512 Cr. Pr. Code. The Sessions Court in the present case has not invoked its jurisdiction u/s 351 of the

Cr. P. C. but has taken cognizance of the case in which the accused was named and involved alongwith the other accused persons In Joginder

Singh and other Vs. State of Punjab and another AIR 1979 S. C. 339 their lordships of the Supreme Court have observed that both u/s 193 and

209 (Central Act) corresponding to Sec. 205D of the State Act. the committment is of the case and not of the accused and under the old

procedure it was the accused who was comitted and not the case. Under the provisions of Sec. 205D of the amended Cr. Pr. Code when a case

committed to the Court of Sessions in respect of an offence, the Court of Sessions takes conizance of the offence and not of the accused. This

would naturally mean that all those who are involved in the case and who are accused in the case would be tried by the Sessions Judge and

Sessions Court would be deemed to be seized of the case as a result of the committal order. Sessions Court could exercise powers under the

provisions of section 351 of the Cr. Pr. Code in respect of those persons who were not accused but again whom evidence may come at a

subsequent stage. What is a different situation. It eau also positively try others who had not appeared before the committing court and whose case

has been committed to it. There is no bar for a committing court to commit the case for trial to the Court of Sessions in the absence of an accused

Sec. 2050 of the Amended Cede of Cr. Procedure does cot provide any bar for the committing court to commit the accused to the court of

sessions in his absence. Committing Court in the present case has proceeded against the accused u/s 512Cr. Pr. Code and in the opinion of the

committing Court the accused was required to be tried for the offence committed by him. If for one reason or the other the accused chooses to

remain absent before the committing court, the committing court is not helpless to commit the case to the court of sessions. It is the court of

sessions whish has the original jurisdiction to try the case. In the said trial if the accused also was involved as is admitted in the present case, whom

the sessions court has power to make appropriate orders about his custody etc. It also was not necessary to remit the case back to the committing

court for recording order afresh If the accused had to be committed than it was probably required. But as the case was required to be committed

and committal order in respect of the case has already been recorded by the court, and the Sessions Judge was seized of the whole case, therefore

appearance of the accused before the sessions Court and the direction of the Sessions Judge to keep the accused in the judicial lock up cannot be

said to be without jurisdiction. Investigation had been conducted by the police in respect of all the accused and after the investigation the case was

put up before the committing Magistrate.

Therefore, Sec. 193 of the Code of Cr. P. would not operate as a bar for the sessions court to try the accused who has voluntarilly surrendered

before it. Sec. 205D of the amended code of Cr. Procedure is saved by Sec. 193 Cr. Pr. Code and there is no bar in the Code of Criminal

Procedure that the accused against whom a report is made u/s 173 Cr. P. C. cannot appear before the Sessions Judge which has the original

jurisdiction to try him and the Sessions court cannot make appropriate orders in respect of the said accused The committing court is mearly a post

office It is forwarding agency in respect of the cases which are exclusively triable by the Sessions Judge, Sessions Judge cannot take cognizance of

a criminal case unless it is committed to it by the committing Magistarte for trial As already observed, the committing court has committed the case

to the Sessions Court and it is not required that the accused should be committed. Therefore when the whole case inbefore the Sessions Court it

has the competence and the jurisdiction to deal with the said accused and can frame charge against him as the committal order in respect of the

entire case has been made by the committing Magistrate.

I do not find any infirmity or illegality in the order of first Addl. Sessions Judge, Jammu. The order does not warrant any interference. The first

Addl. Sessions Judge is directed to proceed with the trial of the case in accordance with law.