Allahabad High Court
Vivek Kumar vs State Of U.P. Thru. Prin. Secy. ... on 26 July, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:49542
Court No. - 28
Case :- APPLICATION U/S 482 No. - 6436 of 2023
Applicant :- Vivek Kumar
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko And Another
Counsel for Applicant :- Ajeet Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
1. Supplementary Affidavit filed on behalf of the applicant is taken on record.
2. Heard Shri Ajeet Kumar, learned Counsel for the applicant, Shri Nirmal Kumar Pandey, learned A.G.A. for the State of U.P. and perused the material placed on record.
3. The instant application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire proceedings of Criminal Case No.27926 of 2022; State vs. Smt. Beena Srivastava and others, in pursuance of charge sheet No.400 of 2022 dated 21.09.2022 arising out of case crime No./First Information Report No.243 of 2022, under Section 34, 419, 420, 468, 467, 471, 504 and 506 I.P.C., Police Station-Masauli, District-Barabanki so far it relates to the applicant, as well as cognizance and summoning order dated 23.09.2022 passed by the learned Additional Chief Judicial Magistrate, Court No.25, Barabanki, so far it relates to the applicant.
4. Learned Counsel for the applicant submits that vide order dated 03.06.2023, the present applicant has been summoned, though, the case has still not been committed. He further submits that in fact, the case was committed so far as the other accused persons are concerned whereas the committal of the case so far as the present applicant is concerned, is pending before the learned Magistrate. He next added so far as the provision of Section 193 Cr.P.C. is concerned, it prescribes the procedure with respect to the cognizance by the sessions court. Section 193 of Cr.P.C. reads as under :-
"Section 193 Cognizance of Offences by Courts of Session
Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."
5. Referring to the aforesaid, he submits that it has been promulgated in so many words that no court shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by the Magistrate under this code.
6. In support of his contentions, he has also placed reliance on a judgment rendered in Criminal Appeal No.148 of 2003 (Dharam Pal & Ors. vs. State of Haryana & Anr.) and referred paragraph 26, which is quoted hereinunder:-
"26. Questions 4, 5 and 6 are more or less inter-linked. The answer to question 4 must be in the affirmative, namely, that the Session Judge was entitled to issue summons under Section 193 Cr.P.C. upon the case being committed to him by the learned Magistrate. Section 193 of the Code speaks of cognizance of offences by Court of Session and provides as follows :-
"193. Cognizance of offences by Courts of Session. - Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."
The key words in the Section are that "no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." The above provision entails 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. Although, an attempt has been made by Mr. Dave to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said Section."
7. Referring the aforesaid, he submits that it has been held that if a case is not committed then the sessions court cannot take cognizance and then thereafter, all the proceedings in consonance with the aforesaid irregularities and incorrectness is of nullity. The submission of learned Counsel for the applicant is that since the order dated 03.06.2023 is against the provisions of Section 193 Cr.P.C. and law laid down by the Apex Court and therefore, the same may be set aside.
8. On the other hand, learned A.G.A. has vehemently opposed the contentions aforesaid and submits that the fact with respect to the filing of charge-sheet is very well in the knowledge of the present applicant since 2011 and his file has been segregated and therefore, the present applicant is not with the clean hands before this Court. He added that it is dilly dallying tactics and thus, he is not entitled for any relief.
9. Considering the submissions of learned Counsels for the parties and after perusal of the material placed on record, it transpires that the matter pertains to year 2011, wherein the charge-sheet was filed and since the case was tried by the Sessions Court and therefore, the same was committed, though, it transpires from the arguments of learned Counsels for the parties as well as the assertion in the pleading clause that the case was not committed so far as the present applicant is concerned and the learned Sessions Court has taken cognizance and summoned the present applicant.
10. So far as the the provision of Section 193 Cr.P.C. is concerned, which prescribes the provision with respect to cognizance of an offence by the Court of Sessions and that speaks that no court of Sessions shall take cognizance unless the case is committed to it by the court of Magistrate concerned. This controversy has already been settled by the Apex Court in Dharam Pal (Supra) and it has categorically being held that Section 193 Cr.P.C. is very specific on this point and thus, the Sessions Court has no power to summon any accused unless that case is committed to it by the court of Magistrate.
11. In view of the aforesaid submissions and discussion made above, the order dated 03.06.2023 passed by the learned Additional Session Judge/ Special Judge, POCSO Act, Court No.45, Barabanki is hereby set aside. The matter is remitted back to the learned Magistrate/learned trial court concerned to initiate the proceedings with respect to the committal of the present matter.
12. Learned trial court shall fix the date on 14.08.2023, on which date, the applicant is directed to remain present before the trial court.
13. In case of violation, recourse as prescribed under Cr.P.C. shall be invoked by the trial court.
14. With the aforesaid observations/directions, the present application is allowed.
(Shree Prakash Singh, J.)
Order Date :- 26.7.2023
Piyush/-
