Radheshyam S/O Rajaram Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- - ) 306, in which following the case of kishun singh, as referred above, the supreme court asserted that the scope of section 193 was wide enough to include inherently the power of court of session to summon a person to face the trial even before the commencement of the trial when the court is satisfied that he is left over by the investigating agency and the committing magistrate.ordera.s. tripathi, j.1. the learned third additional sessions judge, morena in session trial no. 269/94 passed an order dated 10-5-1995 directing therein that the petitioner be summoned for trial, who was not committed to the court of session. the impugned order was passed invoking the provisions of section 139 of the code of criminal procedure.2. learned counsel for the petitioner pointed out in this petition under section 482 of the code of criminal procedure that the trial court had no power under section 319, criminal procedure code to summon an accused to face the trial, who was not committed by the magistrate after enquiry.3. learned counsel for the complainant relied on two cases of the apex court on this point, in which the supreme court had considered the scope of sections 193.....

Judgment:
ORDER

A.S. Tripathi, J.

1. The learned Third Additional Sessions Judge, Morena in Session Trial No. 269/94 passed an order dated 10-5-1995 directing therein that the petitioner be summoned for trial, who was not committed to the Court of Session. The impugned order was passed invoking the provisions of Section 139 of the Code of Criminal Procedure.

2. Learned counsel for the petitioner pointed out in this petition under Section 482 of the Code of Criminal Procedure that the trial Court had no power under Section 319, Criminal Procedure Code to summon an accused to face the trial, who was not committed by the Magistrate after enquiry.

3. Learned counsel for the complainant relied on two cases of the Apex Court on this point, in which the Supreme Court had considered the scope of Sections 193 and 319, Criminal Procedure Code and held that scope of Section 193 includes the power of the Court of Session to summon an accused, who is left over by the investigating agency and by the Magistrate in the committal order before commencement of the trial. The two Sections 193 and 319 were considered in the case of Kishun Singh and Ors. v. State of Bihar, reported in 1993 SCC (Cri.) 470. The Apex Court held thus :-

'Once the Magistrate takes cognizance of the offence he may proceed to try the offender (except where the case is transferred under Section 191) or commit him for trial under Section 209 if the offence is triable exclusively by a Court of Session. Cognizance is taken of the offence and not the offender. There is a difference in the language of Section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a court of original jurisdiction unless 'the accused' was committed to it whereas under the present Code the embargo is diluted by the replacement of the words 'the accused' by the words 'the case'. Thus, on a plain reading of Section 193, as it presently stands, once the case is committed under Section 209 to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets, lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the 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. For the limited purpose of deciding whether or not to frame a charge against the accused, the Judge would be required to examine the record of the case and the documents submitted therewith, which would comprise the police report, the statements of witnesses recorded under Section 161 of the code, the seizure-memoranda, etc. Once the court takes cognizance of the offence (not the offender) it becomes the court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the court's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance.'

The same view has been reiterated by the Apex Court in the case of Nisar and Anr. v. State of U. P., reported in 1995 SCC (Cri.) 306, in which following the case of Kishun Singh, as referred above, the Supreme Court asserted that the scope of Section 193 was wide enough to include inherently the power of Court of Session to summon a person to face the trial even before the commencement of the trial when the Court is satisfied that he is left over by the investigating agency and the committing Magistrate. The Supreme Court further asserted that this power is inherent under Section 193, Criminal Procedure Code and the two Sections 193 and 319 read together do not limit the power of the Court of Session, once the Sessions Judge has taken cognizance under Section 193, Criminal Procedure Code, to summon the person, who is left over.

4. The Sessions Judge is not handicapped under the Code to call upon the person left over to face the trial to meet the ends of justice.

5. Learned counsel for the petitioner expressed doubts regarding the interpretation of Section 193, Criminal Procedure Code to include inherently the power to summon some other left over to face the trial before the trial has commenced under Section 319, Criminal Procedure Code. Scope of Section 319 is to empower a Court of Session to summon a person, who is left over, to face the trial only when the trial has commenced and some evidence has been recorded. The law on this point was earlier laid down by the Apex Court limiting the scope of the Sessions Court to summon the person left over only when the charges are framed and the trial has commenced and some evidence has been recorded. Now after interpreting Section 193 together with Section 319 the Apex Court has enlarged the scope of Section 193 to include the power of Sessions Court to call upon a person left over to face the trial even before framing of charge. Although calling upon a person to face the trial before framing of charge envisages an enquiry in the matter and the enquiry under the Code by the Court of Session is barred, yet the power of the Court, cannot be limited, after the words used in the new Code under Section 193 that the cognizanee has taken after the committal of the case and not after committal of the accused as was originally provided in Section 193 of the old Code.

6. Now the law is clear as laid down in two cases by the Apex Court, as referred above, that Section 193 includes inherently the power of Sessions Judge to call upon a person to face the trial, who is left over by the investigating agency and the committing Magistrate even before the trial has commenced.

7. Therefore, this Court cannot take a different view than what has been laid down by the Apex Court in the two cases referred above. The petition, therefore, is not maintainable and is dismissed.

8. However, it is observed that it will be open to the petitioner to place his grievances before the trial Court at the time of framing of charge.