ORDER
R.C. Lahoti, J.
1. The accused/petitioner is aggrieved by an order of the Committing Court requiring him to appear before the Court as an accused person though he was not so sent up by the Police. The order having been confirmed in revision by the Sessions Court, the petitioner has invoked the jurisdiction of this Court Under Section 482 of the Code of Criminal Procedure, 1973.
2. Police Station Dinara filed a Challan Under Sections 307/149, 147 and 148 of the Penal Code against five accused persons, excluding the petitioner. Before the Committing Court the complainant Kishori moved an application on 16-11-1987 stating that in the first information report and the statements recorded during the course of investigation, the accused/petitioner was' specifically named as one of the assailants, associated with overt acts towards himself and his wife resulting into injuries to both of them still the police had obliged the petitioner by leaving him out of the array of the accused persons and hence the interest of justice demanded the Committing Court proceeding against him also. The learned Judicial Magistrate applied its mind to the papers filed by the Police Under Section 173 Cr. P.C. and also perused the case Diary. He found substance in the grievance of the complainant. In a detailed order, the learned Magistrate has placed on record that intrinsic material available in the case diary and the Police papers pointed out that the Investigating Officer was interested in shielding the petitioner; politically influential persons had tampered with the investigation; and the first information report and the statements recorded during investigation did show the complicity of the petitioner in the crime.
3. The learned counsel for the petitioner has challenged the impugned order of the learned Magistrate as illegal and without jurisdiction placing reliance on two single Bench decisions of this Court : Domar Singh v. State of M.P. (1986-1 MPWN 23); Abdul Gafoor Khan v. State of M.P. (1984 MPWN 172) and also on two single Bench decisions of other High Courts : Bhagwandas v. State of Bihar (1978 Cr LJ NOC 59 Pat) and Autar Singh v. State (1978 Cr LJ NOC 156 Delhi).
4. Before examining the case law, let the statutory provisions be adverted to. Section 190(1) of the Code of Criminal Procedure, 1973 provides as under:--
'190. Cognizance of offences by Magistrates.--
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf Under Sub-section (2), may take cognizance of any offence --
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.'
It is well settled that the cognizance taken by the Magistrate is of an offence and not an offender. Having taken cognizance, the Magistrate proceeds to inquire into the commission of an offence and adjudicate upon the guilt of the persons before him. The question would be that having taken cognizance of an offence qua certain accused persons, as submitted by the learned counsel for the petitioner, does the Magistrate become defenctus officio in the sense that he is debarred from proceeding against such other persons as may be found by him to have been the real culprits, if left out by the person or authority at whose instance the proceedings had been initiated. Fortunately, the law laid down by the Apex Court provides complete answer.
5. In Reghubans Debey v. State of Bihar (AIR 1967 SC 1167 : 1967 Cri LJ 1081), it was held at page 1169 of AIR:--
'In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.'
The abovesaid view was reiterated by their Lordships in Hariram v. Tikaram AIR 1978 SC 1568 : 1978 Cri LJ 1687 laying down the law in the following words at page 1570:--
'In the instant case the Sub-Divisional Magistrate took cognizance of the offence on the police report, and after taking cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima facie grounds for issuing process against the respondents. In so doing the Magistrate did not in our Judgment exceed the power vested in him under law.'
6. It will be useful to notice the march of statutory law on the subject made in the 1973 Code as evidenced by Section 319, over Section 351 of the 1898 Code. Section 319 has been recast and made comprehensive, bidding a good bye to the controversy preceding its enactment. Section 319 reads as under:--
'319. Power to proceed against other persons appearing to be guilty of offence.--
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any 'offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person Under Sub-section (1) then --
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.'
7. The Law Commission in its 41st Report observed:--
'24.80. It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is proper that Magistrate should have the power to call and join him in proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in Section 351 for summoning such a person if he is not present in court. Such a provision would make Section 351 fairly comprehensive, and we think it proper to expressly provide for that situation.
24.81. Section 351 assumes that the Magistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in Section 190, and are apparently exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrates own information Under Section 190(1), or only in the manner in which cognizance was first taken of the offence against the accused..... The question is important, because the methods of inquiry and trial in the two cases differ. About the true position under the existing law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of this particular provision is that the whole ease against all known suspects should be proceeded with expeditiously, and convenience requires that cognizance against the newly added accused should be taken in the same manner against the other accused. We, therefore, propose to recast Section 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings. It is, of course, necessary (as is already provided) that in such a situation the evidence must be reheard in the presence of the newly added accused.'
(Emphasis supplied)
8. The provisions of Section 190 read along with Section 319 do not leave any manner of doubt that the Magistrate having found during the course of committal proceedings that any person not sent up as an accused before him was also involved in the commission of the offence, he does have jurisdiction to take cognizance against him and thereafter to proceed against all the accused persons committing the case to the court of Session. The cognizance would be deemed to have been taken under Clause (b) of Sub-section (1) of Section 190 and not under Clause (c). It is noteworthy that in the present case, the complainant had not led any new information before the Magistrate. All that he had done was to invite the attention of the Magistrate, by filing an application, to those facts which already existed in challan papers and which could have been noticed by the Magistrate even if the complainant might not have filed an application.
9. The learned counsel for the petitioner forcefully submits that Section 319 of 1973 Code cannot have an application to the proceedings before a Committing Court. Referring to Jogindersingh v. State of Punjab AIR 1979 SC 339 : 1979 Cri LJ 333, the learned counsel submits that the Sessions Court does have jurisdiction by virtue of the powers conferred by Section 319 Cr. P.C. to take cognizance against any person not committed by the Magistrate and not even charge-sheeted by the Police, but he further submits that the committing Magistrate cannot have recourse to Section 319 Cr. P.C. for the purpose of summoning a person not arrayed as an accused by police before it. The plank of the argument is that out of Several foundational facts giving jurisdiction Under Section 319, the following two are relevant:--
(i) the Jurisdiction can be exercised only in the course of an inquiry into or trial of an offence;
(ii) it must appear from the evidence that any person not being the accused has committed any offence.
The proceedings before the Committing Court instituted on a Police report are neither an inquiry into nor a trial of an offence, and the Committing Court does not record any evidence, submits the learned counsel, and hence the Committing Court cannot have recourse to Section 319 Cr. P.C. at all. The argument though attractive betrays its falliability on a probe.
10. 'Inquiry' has been defined Under Section 2(g) of the Code as 'Inquiry' means every inquiry other than a trial conducted under the Code by the Magistrate or Court.' This interpretation clause does not actually define the word 'Inquiry' but embraces within the meaning of the term every inquiry excluding the trial, which too has not been defined in the Code. Generally speaking trial would mean determination of guilt or otherwise relating to an offence but inquiry would including application of mind for determination of any issue arising in a particular case. Thus the term 'inquiry' has been used in a wider sense and within its ken it will include such proceedings which do not require an adjudication upon a guilt or determination of an offence. It would also include proceedings which precede the stage of trial. The proceedings before the Committing Court are an 'inquiry' which begins not at a point of time when cognizance is taken, but with the filing of the charge-sheet and continue till the case has been committed. See Tuneshwar Prasad Singh v. State of Bihar AIR 1978 Patna 225 : 1978 Cri LJ 1080 (FB) Rabindra Rai v. State of Bihar (1984 Cr LJ 1412 (FB), relying on State of U.P. v. Lakshmi Brahman AIR 1983 SC 439 : 1983 Cri LJ 839.
11. 'Evidence' has not been defined in Code of Criminal Procedure, 1973. The term 'evidence', as occurring in Section 319, has a wider connotation, is a conclusion that flows from several provisions of the Code of Criminal Procedure where it has been used. Section 169 contemplates release of an accused from custody by an Officer-in-Charge of the Police Station conducting investigation, if there is no sufficient 'evidence' justifying forwarding of the accused to a Magistrate. Section 170 speaks of the accused being forwarded to the Magistrate on availability of sufficient 'evidence'.
12. Taylor uses the word 'evidence' to mean 'all the legal means exclusive of mere argument which tend to prove or disprove any fact, the truth of which is submitted to judicial investigation.'
Thayer defines 'evidence' as 'any matter of fact which is furnished to a legal tribunal otherwise than by reasoning, or a reference to what is to some other matter or fact.'
According to Wigmore the term 'evidence' represents : 'Any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the tribunal is to be asked.'
Quoted in Sarkar's Evidence, 10th Edn. at p. 22
The abovesaid authorities show that the term 'evidence' in its wider connotation would include any fact which would have the persuasive effect in the mind of the Court on the question on which it is called upon to form an opinion.
13. Section 3 of the Evidence Act speaks 'Evidence' means and includes (i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (ii) all documents produced for the inspection of the Court; such documents are called documentary evidence.
14. Section 173(5) requires following papers to be forwarded to the Magistrate along with the Police report:--
(i) documents proposed to be relied on by the prosecution;
(ii) statements recorded Under Section 161 Cr. P.C.
In a warrant case instituted on the Police report, Sections 239 and 240 require consideration of the Police report and the documents sent with it Under Section 173, which documents would include not only the documents as ordinarily understood, but also the statements recorded Under Section 161 Cr. P.C. So is the case Under Section 227/228 Cr. P.C. where the Sessions Court in the matter of framing a charge is required to consider the record of the case and the documents submitted therewith. In Section 207 Cr. P.C, heading of section speaks of supply to the accused of copies of Police report and other documents. Here the phrase, 'other documents' has been used to indicate the FIR, the statements recorded Under Sections 161 and 164 and the documents still other ones. It is on a consideration of the Police report and the documents annexed therewith including the statements Under Section 161 Cr. P.C. that the Committing Court would form an opinion whether offence appears to be triable exclusively by the Court of Session or not.
15. A reference to all the abovesaid provisions indicates that the term 'evidence' as used in Section 319 Cr. P.C. does not necessarily mean only such evidence as constitutes legal and admissible evidence at the trial. It includes the evidence collected during investigation, the documents relied on by the prosecution for the purpose of proving the guilt of the accused at the stage of the trial and on consideration whereof the Committing Court makes up its mind to commit or not to commit the case to the Court of Session. Even otherwise the statements of witnesses recorded Under Section 161 Cr. P.C. would constitute 'documents'. Vide para 11 above I have taken the view that the term 'evidence' as occurring in Section 319 is not to be read narrowly still I am of the opinion that even if the term 'evidence' in Section 319 was to be assigned the same meaning as defined in Section 3 of the Evidence Act, it will include the statements recorded Under Section 161 Cr. P.C. as documents and 'documentary evidence'.
16. A Single Bench of Rajasthan High, Court in Hukamram v. State of Rajasthan (1982 Cr. LJ 2341) has taken the view that the Police statements recorded under Section 161 Cr. P.C. cannot be treated as evidence for the limited purpose of Section 319 and the expression 'evidence' therein means evidence recorded by the Sessions Judge in trial. The decision does not assign any reasoning for taking the view. There is a reference in para 5 of the report of a Division Bench decision on which the view is based, but that Division Bench decision is not reported and is not available. It may be noticed that the same High Court in Ajayab Singh v. State of Rajasthan (ILR 1978 28) Rajasthan 14; and Harjiram v. State of Rajasthan (ILR 1979 (29) Rajasthan 662) had taken a contrary view. Be that whatever it may, I find it difficult to subscribe to the view taken in Hukamaram (supra).
17. To sum up the committal proceedings are an 'inquiry' and the FIR, the statements recorded Under Sections 161 and 164 Cr. P.C. and the documents proposed to be relied on by the prosecution, all constitute evidence, within the meaning of the term as used in and for the purpose of Section 319 Cr. P.C. A committing Court is fully competent to proceed against any person other than the accused charge sheeted by Police who appears to have committed any offence for which he could be tried together with the accused already before it, secure his presence and then commit the case so that all the accused may stand trial together. Section 319 Cr. P.C. springs out from the doctrine Judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while searching the scope of and the spirit underlying the enactment of Section 319 Cr. P.C.
18. Mahendra Kumar Tiwari v. State of M. P. 1987 JLJ 373 : 1987 Cri LJ 1450 is an authority for the proposition that a Court of Session can summon additional accused without recording evidence, though he was not an accused with the accused committed to it, merely by perusing the challan papers. This Court observed at page 376 :--
'Once a Court of competent jurisdiction be it a Magistrate or a Court of Session takes cognizance of the offence the general power to summon additional accused is part and parcel of taking cognizance. Commitment of the case Under Section 209 of the Code lifts the bar Under Section 193 ibid.
It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, is Court rendered powerless in the matter? The answer can only be in an emphatic 'No'. Once this power in the Court is recognised, there is no logic behind limiting it to late stage of evidence contemplated in Section 319 of the Code which is located in the chapter of general provisions.'
Although the question such as one arising in the case at hand was not in issue before the Court in Mahendra Kumar Tiwari (supra), but I fail to see any justification behind denying the Committing Court competence to summon the real culprit, left out by the police, on perusing the Police papers when the same power can be exercised by Sessions Court by virtue of Section 319 of the Code and without recording evidence.
19. A reference to Hareram Satpathy v. Tikaram (AIR 1978 SC 1568) and the law laid down therein, noticed in para 5 above, draws a final curtain on the controversy.
20. In fairness to the learned counsel for the petitioner, the cases relied on by him may now be noticed.
20. 1. Domar Singh's case (supra) has been reported as a Short-Note and full report has not been produced for perusal of the Court. The Short-Note and head-note refer to Section '319-A' of Criminal Procedure Code, 1973. In the Code, there is no Section numbered as '319-A'. The judgment, as short-noted, refers to 'various decisions of the Supreme Court', without citing them. Moreover, it appears from a reading of the Short-Note that the complainant therein had made an application to Magistrate bringing new facts on record alleging involvement of 14 more persons in the same incident but without adducing any evidence. In this background, it was observed --
'Under Section 190 in the instant case, cognizance was taken upon a police report of the facts constituting the offence. It, is clear thereafter that there was an application by the complainant before the Magistrate. The Magistrate could not again take, cognizance of the same offence so as now add to the list of offenders on a complaint made subsequently.'
The case is apparently distinguishable. It also runs counter to the law laid down by the Apex Court.
20. 2. Abdul Gafoor Khan's case (supra) and Bhagwan Das's case (supra) lay down that in the absence of any material making out prima facie the involvement of the accused in the offence, the cognizance taken by Magistrate would be illegal. There cannot be any dispute with this proposition but that is not so in the present case. In Autar Singh's case (supra), also published as a Short-Note, it is not clear whether there was material available against the accused enabling cognizance being taken because in that case, the learned single Judge of Allahabad High Court upon a comparison of Section 190 as presently drafted, with its erstwhile parallel provisions held that earlier cognizance could be taken on suspicion merely which the present provision does not permit.
20. 3. To sum up, the decisions relied on by the learned counsel for the petitioner do not advance his contention.
21. The impugned orders of the courts below do not suffer from any illegality much less lack of jurisdiction. The petition is held to be without any merit and is dismissed accordingly.
22. The petitioner is directed through his counsel to remain present before the trial Court on 8-10-90 if no other date has been appointed by the trial court for his appearance.