By Gopal Gour
The criminal justice system works in a set of the hierarchy of institutions which make the process of justice-seeking smoother. It starts with the police and finally leads up to the court which imparts justice. For the sake of impartial and efficient working of the criminal justice system, the courts have been given some extra powers so as to ensure that the culprits do not go uncaptured. Section 319 of Code of Criminal Procedure 1973 contains an enabling provision which authorizes the criminal Court to proceed against any person not shown or mentioned as accused if it appears from the evidence that such person is also involved in the offence for which he could be tried together with the accused against whom an inquiry or trial is being held.
The object of the abovementioned section is to try and dispose of the whole case not only expeditiously but also simultaneously against all the accused. Prima facie, it looks very lucid and straightforward, but the complications arise when it actually comes into implementation. The issues of the rights, competency of the courts, jurisdictions, interpretations of the sections, stages of summoning the person, kind of evidence etc. hinders the process. This paper will try to analyse section 319 in light of recent judgments given by the apex court.
In view of the conflict of opinion in the decisions of two two-judge benches in the cases of Kishori Singh and Others v. State of Bihar and Others, Rajender Prasad v. Bashir and Others and SWIL Limited v. State of Delhi and Others, the matter was taken up for consideration by a three-judge bench whose attention was attracted to two other decisions having a direct bearing on the question sought to be determined. The first was the case of Kishun Singh v. State of Bihar and the other a three-judge bench in the case of Ranjit Singh v. State of Punjab.
The three-judge bench in Ranjit Singh case disapproved the observations made in Kishun Singh’s case, which was to the effect that the Session Court has power under Section 193 of the Code of Criminal Procedure, 1973, to take cognizance of an offence and summon other persons whose complicity in the commission of the trial could prima facie be gathered from the materials available on record. At last, the constitutional bench settled the dispute and held that cognizance of a sessions triable offence can no longer be taken by magistrates but must be taken by Sessions Judge(s) after committal.
The paper will be divided into several parts, the first part will consist of the introduction to the topic in which a brief summary of the section and the matter of contention will be explained. The second part of the paper will include the analysis of the apex court judgements and the final part will conclude the discussion by compiling the reasoning of the judgments.
Judgments in the backdrop of Constitutional Bench’s Decision
In Kishori Singh and Others v. State of Bihar and Others, the appellants were not named in the police report/charge-sheet filed by the police before the Magistrate. However, the Magistrate took cognizance of the offences alleged in the police report/charge-sheet and summoned them. It was contended that since the offences concerned were sessions triable, Section 319 of the Code was the only recourse and the appellants could not be summoned at a stage prior thereto. The court therein relied upon Ranjit Singh (supra) and Raj Kishore Prasad to set aside the summoning order.
In Rajender Prasad v. Bashir and Others, 4 persons were not named in the charge-sheet and section 395 IPC was not invoked by the police. Informant filed protest petition and Magistrate took cognizance of section 395 IPC and summoned the appellants. The court relied upon the judgments of Raghubans Dubey and SWIL Limited v. State of Delhi and Others.
In Swil Limited v. State of Delhi, the key issue was whether Magistrate could summon offenders not named in the Charge-sheet after having taken cognizance of the offence. The court held that it could be relying upon Raghubans Dubey. The Supreme Court also held that Section 319 was of no consequence in those circumstances.
In Kishun Singh v. State of Bihar, The question which arose for resolution was whether the court of session to which a case is committed for trial by a Magistrate can, without itself recording evidence, summon a person not named in the police report presented under Section 173 of the CrPC, 1973 to stand trial along with those already named therein in exercise of power conferred by Section 319 of the Code? Indisputably this was done before any evidence was recorded i.e. before the commencement of the actual trial.
The court held that Section 319 could not be invoked at that stage by the Sessions Judge but went further to find out whether any other provision in the Code permitted the same. The court concluded that under Section 193 of the Code as it presently stands, once the case is committed to the court of Session, it has complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence. This power also includes summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record.
In Ranjit Singh v. State Of Punjab the issue which arose was whether Sessions Court can add a new person to the array of accused in a case pending before it at a stage prior to collecting any evidence? The court overruled the judgement given in Kishun Singh and held that that the Sessions Judge had no power to array and thus summon a new accused till the state of Section 319 of the Code was reached. According to the decision in Kishun Singh’s case, the Session Court did not have the power under Section 319 of the Code but had such power under Section 193 of the Code.
Ranjit Singh’s case held that from the stage of committal till the Session Court reached the stage indicated in Section 230 of the Code, that Court could deal only with the accused referred to in Section 209 of the Code and there was/is no intermediary stage till then enabling the Session Court to add any other person to the array of the accused. Even if the Session Court applied its mind at the time of framing of charge and came to the conclusion from the materials available on record that, in fact, an offence is made out against even those who are shown in column 2, it has no power to proceed against them and has to wait till the stage under Section 319 of the Code is reached.
Dharam Pal & Ors. vs. State of Haryana
The facts of the Dharam Pal as stated by the Constitution Bench are as under: After going through the police report, the learned Judicial Magistrate First Class summoned the Appellant Dharam Pal and three others, who were not included as accused in the charge-sheet for the purpose of facing trial along with Nafe Singh.
The Questions of Law:
(i) After the committal of the case which is exclusively triable by the Court of Session, does the Committing Magistrate have any other role to play?
(ii) If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report?
(iii) Having decided to issue summons against the appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?
(iv) Can the Session Judge issue summons under section 193 Cr.P.C. as a court of original jurisdiction?
(v) Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?
(vi) Was Ranjit Singh’s case (supra), which set aside the decision in Kishun Singh’s case (supra), rightly decided or not?
With regard to the first two questions, the Court said that the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event of the disagreement with the police report, the Magistrate has two choices; he may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.
The apex court decided the third issue by saying that, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court. The fourth question which was about the powers of the sessions court to issue summon as a court of original jurisdiction was answered by the court by saying that A case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction.
The fifth question was related to the point as to at what stage a session court should summon a notice. The apex court answered the question and said that it is not necessary to wait till the stage of section 319 is reached, in the cases where, before the proceeding, prima facie it is clear from the material contained in the case papers.
Hence, the apex court, upholding the reasoning of Kishun Singh’s case overruled Ranjit Singh’s case.
It is a well-settled principle of criminal law that cognizance is taken of the offence and not of the offender. The Dharam Pal decision states that cognizance of a sessions triable offence can no longer be taken by magistrates but must be taken by Sessions Judge after committal. Cognizance of a police report/charge-sheet filed by the police is always taken by the Magistrate, irrespective of whether the offences alleged therein are triable by a Court of Session or not.
Committal under section 209 is possible only after complying with Section 207 and/or Section 208, as the case may be. The compliance of Section 207/208 of the Code is not permissible and/ or comprehendible in the absence of the accused persons. The proceedings commence before a Magistrate by securing the presence of the accused by summoning them under section 204/205 of the Code. A Magistrate cannot summon under section 204/205 without having taken cognizance of the offence(s) which such accused persons have been charged with by the police/complainant.
Section 193 does not permit the Sessions Judge to take cognizance of the same offences of which cognizance stood taken by the Magistrate under section 190 of the Code, which he must have done in order to reach the stage of committal under section 209 of the Code. And if once cognizance is being taken by the Magistrate, the same cannot be done by the session judge. On this point, where Dharam Pal says that cognizance of session triable offences can only be taken by the session judge, still stands obscure.
The judgment of Dharam Pal v. State of Haryana somehow settles the long-standing issue before the judiciary with respect to the power to take the cognizance in cases exclusively triable by session court. The judgment of the Constitution Bench in Hardeep v. State to the extent it lends support to the correctness of the Constitution Bench decision in Dharam Pal, in view of the discussion above, most respectfully, does not appear to be apposite. Because no matter how much it has been tried to settle the dispute of cognizance, but there is still a doubtful situation with regard to the significance and relevance of chapter XVI of the CrPC. The question remains: how does such a case reach the stage of Section 209 without a cognizance order by the Magistrate under Section 190 and without following Section 204 till 209 of the Code? On this point, the law is still ambiguous and needs clarity.
[The author is a penultimate year student Maharashtra National Law University, Mumbai.]