Sukarn Singh Tomar vs State of M.P.

Vivek Agarwal, J.—This Criminal Revision has been filed under Section 397, 401 of the Code of Criminal Procedure being aggrieved by order dated 2.5.2016 passed by the Additional Sessions Judge, Seonda, Distt. Datia, in Sessions Trial No.20/16 wherein application under Section 193 filed by complainant Preetam has been accepted and has ordered for taking cognizance against the petitioners under Sections 302, 147, 148, 149 of IPC.

It is the contention of the petitioners that complainant Preetam lodged a false and frivolous complaint on 1.11.15 at police Station, Tharet, Distt. Datia, that when he visited the house of Lallu Sahu on 31.10.15 at about 7.30 p.m. to participate in 13th Day Ceremony of his father along with his nephew Kallu @ Arvind and son Atul, petitioner No.1 armed with 315 bore gun and petitioner No.2 carrying 12 bore double barrel gun along with other persons threatened Kallu Jat where Sukarna fired a shot from his firearm which hit son of the complainant at left side of his waist and when his nephew Kallu tried to save Atul, then Sudhir fired at Kallu which hit on his chest and he fall down at the place of incident. When the complainant shouted for help, accused persons ran away. In the incident, both Kallu and Atul died respectively at the scene of crime and in hospital. According to the petitioners, learned trial Court has not appreciated the provisions contained in Section 319 of Cr.P.C. and without giving any opportunity of hearing and providing adequate opportunity to defend has taken cognizance against the petitioners of the offence under Sections 302, 147, 148, 149 of IPC which is against the principles of law. According to the petitioners, SDO(P) in his investigation report has accepted that the petitioners were not available at the scene of crime on 31.10.2015 and they were at Gwalior for which they have supported their case through mobile location, CCTV footage and independent witnesses. Thereafter, the SHO made a report to the concerning Superintendent of Police on 8.1.16 for deleting the names of the petitioners, yet overlooking the fact that the petitioners were not present at village Leharakala but were present in Gwalior, cognizance has been taken which is arbitrary and illegal. Reliance has been placed on the law laid down by the Supreme Court in the case of Prashant Bharti v. State (NCT of Delhi) as reported in (2013) 9 SCC 293 submitting that the mobile location and call details are scientific evidence which are admissible under the provisions of Section 65 B of the evidence Act and petitioners have been falsely implicated on account of election related dispute between the complainant and the petitioners.

The issue which is to be decided in the present case is whether there is any provision under Section 193 of Cr.P.C. to provide an opportunity of hearing to the proposed accused before taking cognizance in the matter or not. As far as provisions of Section 193 are concerned, it provides that except as otherwise expressly provided by this Code, or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. It is provided that a Court of Session can take cognizance of an offence against other persons than those shown as accused in the case committed. In this regard, law laid down in the case of Nisar v. State of U.P. as reported in (1995) 2 SCC 23 is important. In the case of Kishun Singh v. State of Bihar as reported in (1993) SCC (Cri) 470, so also in the case of Babu Lal v. State of M.P. as reported in 2005(4) MPLJ 176 it has been held that once the Magistrate commits the case to the Court of Session, the bar of Section 193 is lifted and the Court of Session has complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence, which would include summoning of person or persons whose complicity in the commission of crime can prima facie be gathered from the material available on record even though the trial in the case has not commenced. It is also settled principle of law that once a case is committed, section 193 of Cr.P.C. comes to play, and therefore, learned Sessions Judge has rightly dealt with the application of the complainant under Section 193 of Cr.P.C. though it was filed along with Section 319 of Cr.P.C. inasmuch as in the case of Abdul Majid v. State (Delhi Admn.) as reported in 1978 Cri.L.J. 239 (Del) it has been held that Section 193 is not controlled by Section 319 inasmuch as cognizance under Section 193 can be taken only when case is committed to the Court of Session by a Magistrate. As has been discussed above, there is no provision under Section 193 of Cr.P.C. to provide opportunity of hearing before taking cognizance by the Sessions Court unlike Section 319 of Cr.P.C. where any person who is not an accused is to be given opportunity of hearing before proceeding against him.

Petitioners have placed reliance on the judgment of Supreme Court in the case of Balveer Singh and another v. State of Rajasthan and another as reported in (2016) 6 SCC 680 wherein it is held that if Magistrate has played an active role in taking/refusing cognizance before committing case under Section 209, then Session Court cannot take cognizance for the second time as a Court of original jurisdiction under Section 193 of Cr.P.C. as cognizance of an offence can only be taken once, but it is also provided that if the Magistrate had played a passive role in committing the case under Section 209 of Cr.P.C., then Sessions Court is free to exercise the same for the first time as the Court of original jurisdiction. In the present case, the petitioners have not been able to demonstrate that Magistrate had taken active role in taking cognizance before committing the case under Section 209, therefore, this judgment is not of much avail to the petitioners. Petitioners have also placed reliance on the judgment of the Supreme Court in the case of Jogendra Yadav & others v. State of Bihar as reported in 2015 Cri. L.J. 4186 (SC) wherein it has been held that if a person is added as an accused under Section 319 of Cr.P.C. he should be necessarily heard before being so added. The Constitution Bench of the Supreme Court in the case of Hardeep Singh v. State of Punjab and others as reported in (2014) 3 SCC 92 has held that the standard of proof employed for summoning a person as an accused under Section 319 of the Cr.P.C. is higher than the standard of proof employed for framing a charge against an accused. Since in the present case, cognizance has been taken under Section 193 of Cr.P.C., therefore, rigors of Section 319 of Cr.P.C. are not available to the petitioners.

In view of the aforesaid, prima facie there appears to be no irregularity in the order passed by the Sessions Court taking cognizance of the offence under Section 193 of Cr.P.C. against the petitioners. Thus, the revision petition fails and is dismissed.