Sunil Kumar Garg, J.
1. This Misc. petition under Section 482 Cr.P.C. has been filed by the added accused petitioners Govind Ram and Bhagu Ram against the judgment dated 14.5.2002 passed by the learned Addl. Sessions Judge, Deedwana by which he dismissed the revision petition filed by the present added accused petitioners and upheld the order dated 24,1.2001 passed by the learned Judicial Magistrate, Ladnu by which cognizance for the offence under Section 147, 148, 341, 323, 324/149, 326/149 IPC and 3(1)(x), 3(2)(V) of SC/ST Act, 1989 was taken against the present added accused petitioners alongwith other accused persons.
2. It arises in the following circumstances:
The respondent No. 2 Duda Ram (hereinafter referred to as the complainant) gave a written report at Police Station Ladnu on 28.8.2000 stating inter-alia that there was enmity between his family and the family of Gyana Ram and sons of Gyana Ram had threatened his family members of dire consequences. It was further alleged that on 27.8.2000 at about 11.00 PM when he reached near community hall, the accused persons, namely, Bhagu Ram, Govind Ram (present added accused petitioners), Panna Ram, Ramniwas and Shrikishan stopped Chunaram and started beating him mercilessly and when Ghunaram made hue and cry, he and Lakharam reached to rescue him and the accused persons also called them 'Dhedh' and therefore, accused persons ran away after taking watch and gold murki of Chunaram.
On the above report, police registered the case for the offence under Sections 143, 323, 341, 379 and 3(1)(x) of the SC/ST Act and started investigation.
After usual investigation, police submitted challan against the accused Panna Ram, Ramniwas and Shrikishan in the Court of Judicial Magistrate, Ladnu where the criminal case No. 416/2000 was registered. However, the police did not find involvement of the added accused petitioners and thus, no challan was filed against them.
Thereafter, the complainant filed a protest petition before the learned Judicial Magistrate, Ladnu for adding the present accused petitioners also as accused alongwith other accused petitioners and the learned Judicial Magistrate treated that protest petition as complaint and he recorded the statements and thereafter, through impugned order dated 24.1.2001, the learned Judicial Magistrate also took cognizance against the present added accused petitioners for the offence under Sections 147, 148, 341, 323, 324/149, 326/149 IPC and 3(1)(x), 3(2)(v) SC/ST Act alongwith other accused persons and that order of taking cognizance was passed against both added accused petitioners as well as those accused persons against whom challan was filed by the police.
Aggrieved from the order of taking cognizance dated 24.1.2001 passed by the learned Judicial Magistrate, Ladnu, the added accused petitioners filed a revision petition before the learned Addl. Sessions Judge, Deedwana and the learned Addl. Sessions Judge, Deedwana through impugned judgment dated 14.5.2002 dismissed that revision petition and upheld that order of taking cognizance dated 24.1.2001 passed by the learned Judicial Magistrate, Ladnu. Hence, this criminal misc. petition under Section 482 Cr.P.C.
3. The main case of the learned counsel for the added accused petitioners is that since there was a charge against the added accused petitioners as well as other accused persons for the offence under Section 3(1)(x) and 3(2)(V) of SC/ST Act meaning thereby the case was to be committed to the court of Special Judge, therefore, in such a situation, the learned Judicial Magistrate was not competent to take cognizance against the added accused petitioners against whom challan was not filed by the police and cognizance could be taken against them only under the provisions of Section 319 Cr.P.C. by the Court of Session or Special Judge. Hence, both the impugned judgment and order passed by the courts below are illegal and without jurisdiction and liable to be quashed and set aside.
4. On the other hand, the learned Public Prosecutor has supported the impugned judgment and order passed by the courts below.
5. I have heard the learned counsel for the accused petitioners and the learned Public Prosecutor and gone through the materials available on record.
6. It may be stated here that there are three stages to which a Magistrate passes.
1) Cases triable by the Magistrate
7. So far as the cases triable by the Magistrate are concerned, in such cases if the police submits challan against some accused persons, but left other accused persons though named in the FIR, the Magistrate is competent to take cognizance against those accused persons against whom challan has not been filed by the police either on the police papers of if protest petition is filed, on that protest petition and if the Magistrate feels necessary, he can also record the statements of the witnesses under Section 200 or 202 Cr.P.C. produced by the complainant, but there should be a limit to that also and for that, a judgment of this court in Suresh Chandra v. State of Rajasthan and Bhagwati Lal, 2002(1) RCC 340, RLW 2002(4) Raj. 2035 may be referred to where it has been observed that such power of taking cognizance against those accused persons against whom challan has not been filed, can be exercised by the Magistrate before the charges are framed.
2) Cases exclusively triable by the Court of Session or Special Judge as the case may be.
8. The point which has been decided above in para No. 7 of this order would not be applicable to cases where police has submitted challan against some accused persons and has left some accused persons though named in the FIR, but offences are triable by the Court of Session or Special Judge, as the case may be. In such cases, if any application is made through protest petition that since the police has wrongly left some accused persons, therefore, they may be summoned as additional accused, the question is whether Committal court has such power, before committing the case to the Court of Session or Special Judge, as the case may be, to add those accused persons against whom challan has not been filed, or not. In other words, whether the Magistrate is competent to take cognizance against those accused person against whom challan was not filed, though named in the FIR alongwith other accused persons before the case was committed to the Court of Sessions or Special Judge, as the case may be, or not.
9. The above question was first answered by the Hon'ble Supreme Court in Raj Kishore Prasad v. State of Bihar and Anr., AIR 1996 SC 1931 where it was observed that it would be legitimate to conclude the the Magistrate at the state of Section 209 Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need by added or subtracted to face trial before the court of Sessions. Meaning thereby, the Magistrate has no power to add those accused persons against whom police has not filed challan where the offences alleged are triable by the court of Session or Special Judge, as the case may be and the Magistrate is required to commit the case to the Court of Session or Special Judge, as the case may be.
10. The same view was reiterated by the Hon'ble Supreme Court in Kishori Singh and Ors. v. State of Bihar and Anr., 2000(2) Apex Court Journal 588 SC where it has been held that the Magistrate could have not issued process against those persons who may have been named in the FIR as accused persons, but not charge sheeted in the charge sheet that was filed by the police under Section 173 Cr.P.C. and those persons against whom charge sheet has not been filed could be arrayed as accused persons in exercise of powers under Section 319 Cr.P.C. when some evidence or materials are brought on record in course of trial or they could also be arrayed as accused persons only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court.
11. Apart from this, this court has also taken the same view in the cases of Suresh Chandra (supra) and Sukhdas and Ors. v. State of Rajasthan, 2001(3) RLW (Raj.) 1716.
12. Thus, it is held:
a) that in the cases where the offence are exclusively triable by the court of sessions or Special Judge, as the case may be, if the police submits challan against some accused persons, but did not array other accused persons though named in the FIR, the Magistrate cannot take cognizance and issue process against those accused persons against whom challan has not been filed by the Police. The accused persons against whom challan has not been filed by the police could be arrayed as accused persons in exercise of power under Section 319 Cr.P.C. can be exercised only after the case was committed to the Court of Session or Special Judge, as the case may be and thereafter, the court of Session or Special Judge, as the case may be, has framed the charges and recorded some evidence during regular trial of the case.
b) That such persons against whom challan was not filed by the police though named in the FIR could also be arrayed as accused persons when reference is made either by Magistrate while passing order of commitment or by Sessions Judge to High Court.
3) Cases where the police submits final report or totally negative report against all accused persons.
13. In cases where the police, after investigation, submits a final report, the Magistrate may take cognizance of an offence under Section 190(1)(b) Cr.P.C. on the basis of police report and issue process or the Magistrate may take cognizance under Section 190(1)(a) Cr.P.C. on the basis of the original complaint, if any or on receiving a protest petition against the final report, the Magistrate may examine complainant or his witnesses under Section 200 or 202 Cr.P.C. and if he come to the conclusion that sufficient grounds exist for taking cognizance against the accused persons, he may issue process and in such process, the Magistrate is competent to take cognizance for the offence, which are exclusively triable by the Court of Session or Special Judge, as the case may be. It is made clear that such power can only be exercised by the Magistrate when the police submits a totally negative report against all accused persons. It is further made clear that in cases where the police submits a totally negative report against all the accused person, the Magistrate can take cognizance of the offence exclusively triable by the Court of session or Special Judge, as the case may be as well as offences triable by himself. In this respect, the law laid down by this Court in the case of Sukhdas (supra) may be referred to.
14. Thus, in view of the discussion made above the position of law can be summarized in the following manner:-
i) That in the case where the offences are triable by the Magistrate, if the police submits challan against some accused persons, but did not array other accused persons though named in the FIR, the Magistrate is competent to take cognizance against those accused persons also against whom challan has not been filed by the police either on the police papers or if protest petition is filed, on that protest petition and if the Magistrate feels it necessary, he can also record the statements of the witnesses under Section 200 or 202 Cr.P.C. produced by the complaint. However, such power of taking cognizance against those accused persons against whom challan has not been filed by the police, should be exercised by the Magistrate before the charges are framed.
ii) That in the cases where the offences are exclusively triable by the Court of Session or Special Judge, as the case may be, if the police submits challan against some accused persons, but did not array other accused persons though named in the FIR, the Magistrate cannot take cognizance and issue process against those accused persons against whom challan has not been filed by the police. The accused persons against whom challan has not been filed by the police could be arrayed as accused persons in exercise of power under Section 319 Cr.P.C., but such power under Section 319 Cr.P.C. can be exercised only after the case was committed to the Court of Sessions or Special Judge, as the case may be and thereafter, the court of Session or Special Judge, as the case may be has framed the charges and recorded some evidence during regular trial of the case.
Furthermore, such persons against whom challan was not filed by the police though named in the the FIR could also be arrayed as accused persons when reference is made either by while passing order of commitment or by Sessions Judge to High Court.
iii) That in the cases where the police, after investigation, submits a final report, the Magistrate may take cognizance of an offence under Section 190(1)(b) Cr.P.C. on the basis of the police report and issue process or the Magistrate may take cognizance under Section 190(1)(a) Cr.P.C. on the basis of the original compliant, if any or on receiving a protest petition against the final report, the Magistrate may examine complainant and his witnesses under Section 200 or 202 Cr.P.C. and if he comes to the conclusion that sufficient grounds exist for taking cognizance against the accused persons, he may issue process and in such process, the Magistrate is competent to take cognizance for the offence, which are exclusively triable by the court of Session or Special Judge, as the case may be. It is made clear that such power can only be exercised by the Magistrate when the police submits a totally negative report against all accused persons. It is further made clear that in cases where the police submits a totally negative report against all the accused persons, the Magistrate can take cognizance Of the offence exclusively triable by the court of Session or Special Judge, as the case may be as well as offences triable by himself.
Facts of the present case.
15. In the present case, the police, after usual investigation, submitted challan in the court of Judicial Magistrate against three accused persons, namely, Panna Ram, Ramniwas and Shrikishan, but did not array the present accused petitioners as accused persons, though named in the FIR and the offences under Section 3(1)(x), 3(2)(V) of SC/ST Act are triable by the Court of Special Judge and before committing the case to the Court of Special Judge, the learned Judicial Magistrate through impugned order dated 24.1.2001 took cognizance against the present accused petitioners against whom challan was not filed by the police alongwith other accused persons.
16. Since the offence are triable by the Court of Special Judge and the cases for the offence under the provisions of the SC/ST Act, 1989 were required to be committed by the learned Judicial Magistrate to the Court of Special Judge, as held by the Hon'ble Supreme Court of Special Judge, as held by the Hon'ble Supreme Court in Gangula Ashok and Anr. v. State Andhra Pradesh, 2000 AIR SCW 279 and M.A. Kuttappan v. E. Krishnan Nayanar and Anr., JT 2004(3) SC 7 therefore, the learned Judicial Magistrate was not competent to take cognizance or issue process or array present accused petitioners as 'accused persons' against whom challan was not filed by the police though named in the FIR and thus, the impugned order of the learned Judicial Magistrate dated 24.1.2001 taking cognizance against the present accused petitioners is illegal and without jurisdiction and thus, cannot be sustained and liable to be quashed and set aside and consequently, the judgment of the learned Addl. Sessions Judge, Deedwana dismissing the revision of the present accused petitioners and upholding the order of the learned Judicial Magistrate dated 24.1.2001 taking cognizance against the present accused petitioners is also liable to be quashed and set aside and this misc. petition deserves to be allowed.
Accordingly, this misc, petition under Section 482 Cr.P.C. filed by the accused petitioners is allowed and the impugned order of the learned Judicial Magistrate, Ladnu dated 24.1.2001 taking cognizance against the present accused petitioners is quashed and set aside and consequently, the judgment of the learned Addl. Sessions Judge, Deedwana dated 14.5.2002 dismissing the revision of the present accused - petitioners and upholding the order of the learned Judicial Magistrate dated 24.1.2001 taking cognizance against the present accused petitioners is also quashed and set aside.