Full Judgment
R.S. Sodhi, J.
1. This reference has been made by the learned Additional Sessions Judge, Shahdara in the matter of 'State v. Amrit Lal & others' arising out of the FIR No.351/93 Police Station Trilok Puri under Sections 147/148/452/436/34 IPC for invoking inherent power and/or revisional jurisdiction of the High Court directing the Committal Magistrate to rectify the committal order to implead Mr. C.S. Rathore as an accused to stand trial. The facts of this case are that the learned Additional Sessions Judge, to whom the matter has been committed, upon going through the material found that the learned Metropolitan Magistrate by the order dated 17.3.1994 had summoned the accused persons except Mr. C.S. Rathore. In the charge-sheet the SHO had submitted that 'accused C.S. Rathore who is a Supreme Court advocate if arrested there could be disturbance in the area and as per the instructions of the Officer he is not being arrested to maintain the law and order in the area. So his name has been shown in column No. 2. Court itself can summon him through notice.'
2. The material against Mr. C.S. Rathore is the statement of complainant Rajbir Singh wherein he has clearly mentioned that along with other accused persons at about 1 P.M. Lakpath, Kapoor Video Wala, Hassan Khan, Vikram Pandey, Doctor Sindhu, C.S. Rathore, Munni Dutt Shastri, Ram Saroop Rashan Wala, Amrit Lal Singh, Jagdish Pradhan and Smt. Sheela after gathering together with the intention of rioting came at his plot. They were 40/50 persons, in all, he recognised several persons by face but he do not know their name, however, among them were Lakhpat, Kapoor Video Wala, Munni Dutt Shastri, Ram Swaroop Rashan Wala and C.S. Rathore holding lathis in their hands and Hasan Khan, Doctor Sindhu, Rama Nand Gupta, Dharam Singh @ Dha- ram, Gajraj, Amrit Lal Pan Wala were holding iron sari as in their hands while Smt. Sheela was holding bricks, the others were also armed with sarias and lathis and those persons said 'MARO AUR IN LOGO KO PLOT SE NIKAL KAR KABJA KAR LO HUM ITNE ADMI HAI PLOT PAR KABJA KARENGE' thereafter they attacked and entered upon the plot, broke down the wall of the plot. This is the statement of Rajbir Singh on the basis of which rukka was prepared by the IO and FIR registered.
3. It is further noted by the learned Additional Sessions Judge that in view of what has been stated above, he could not understand as to why other accused were made to stand trial on the basis of their role in the crime and why Mr. C.S. Rathore has not been summoned, although, his name finds mention in column No. 2 of the charge-sheet. This, according to the learned Additional Sessions Judge, occasioned failure of justice, which ought to be rectified in the first instance.
4. I have heard Mr. C.S. Rathore in person, who has submitted that in view of the bar under Section 319 of the Code of Criminal Procedure, the Court of Sessions has no power to add an accused without recording evi- dence. He contends that even though the learned Additional Sessions Judge has made a reference, it is not open to the High Court to turn the clock back, requiring the Committal Magistrate to rectify error, under its inher- ent or its revisional jurisdiction because such a power cannot be invoked by making a reference. I am unable to agree with the contentions and sub- missions of Mr. C.S. Rathore. In Criminal Appeal No.982/1998 Ranjit Singh Vs . State of Punjab : 1998 CriLJ4618 it is held that upon reference being made to the High Court by the Court of Sessions to rectify an error committed by the Committal Court, the High Court would be well within its power to do so. It would be appropriate to quote the judgment of Supreme Court on this subject:-
'But then one more question may survive. In a situation where the Sessions Judge notices from the materials produced but before any evidence is taken, that any other person should also have necessarily been made an accused (without which the framing of the charge would be defective or that it might lead to miscarriage of justice) is the Session Court completely powerless to deal with such a contingency? One such situation as cited by the learned Judges through an illustration narrated in Kishun Singh's case (supra) as follows:
'Where two persons A and B attack and kill X and it is found from the material placed before the Judge that the fatal blow was given by A whereas the blow inflicted by B had fallen on a non- vital part of the body of X. If A is not challenged by the po- lice, the Judge may find it difficult to charge B for the murder of X with the aid of Section 34 IPC. If he cannot summon A, how does he frame the charge against B?'
Another instance can be this. All the materials produced by the investigating agency would clearly show the positive involvement of a person who was not shown in the array of accused due to some inadvertence or omission. Should the court wait until evidence is collected to get that person arraigned in the case?
Though such situations may arise only in extremely rare cases the Session Court is not altogether powerless to deal with such situations to prevent miscarriage of justice. It is then open to the Session Court to send a report to the High Court detailing the situation so that the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. But we hasten to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes.'
5. In view of the clear cut law laid by the Supreme Court, the High Court does have power and in exercise of the same, I direct the Committal Magis- trate to re-consider the committal order, rectify the same, directing Mr. C.S. Rathore to stand trial before the Court of Sessions in case arising out of FIR No.351/93, Police Station Trilok Puri, recorded under Sections 147/148/452/436/34 IPC.
6. Criminal Reference No.3/99 is answered accordingly.