Satish Kumar And Another vs State & Anr.
2012 Latest Caselaw 1296 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl. MC No.2601/2010 & Crl.MA 13667/2010 (stay)

                                               Date of Decision: 27.02.2012
Satish Kumar and another                                   ......Petitioner
                       Through:          Mr. Rajesh Yadav, Advocate

                                    Versus

State & Anr.                                          ...... Respondents
                             Through:    Ms. Fizani Husain, APP for State

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J. (Oral)

1. This is a petition assailing an order dated 21.7.2010 passed by learned ASJ in SC No.19/10 and order dated 15.12.2008 passed by learned ACMM-I, Dwarka Courts, Delhi.

2. The FIR No.399/2006 was initially registered against Pradeep Sehrawat. In the said FIR names of four persons namely Davender, Sunil, Surender and Satinder @ Sonu Dagar were kept in column no.2 of the charge- sheet. Subsequently, a supplementary charge-sheet was filed wherein names of all these four persons were arrayed as accused in Column No. 4. The names of Kanshi Ram, Mahabal Mishra, Urmila Mishra, Kiran and Heera Mishra were kept in column no.2 in the said charge-sheet. Vide order dated 15.12.2008, the learned ACMM recorded that from the contents of both the charge-sheets and documents, it was evident that there is sufficient material available on record against the persons kept in column no.4 in the

supplementary charge-sheet. Those persons were Surender, Sunil, Satender @ Sonu Dagar and Devender. As far as the accused persons kept in column no.2 of the supplementary charge-sheet was concerned, it was recorded by learned ACMM that though there is certainly reference at places regarding them, but the material available on record was not sufficient to proceed against them at this stage. He observed that these four persons can very well be summoned if additional evidence has been adduced against them during trial. Consequently, he ordered for summoning of accused persons namely Surender, Sunil, Satender @ Sonu Dagar and Devender.

3. The case was committed to the court of Sessions and an application was filed there by complainant and his daughter prosecutrix Sarika for summoning the aforesaid persons namely Kanshi Ram, Mahabal Mishra, Urmila Mishra, Kiran and Heera Mishra. When that application was filed, the case against other accused persons was at the stage of consideration of charges. Learned ASJ vide the impugned order dated 21.7.2010 dismissed that application of the complainants on the ground that there was no sufficient evidence to summon them at that stage.

4. The said order has been assailed by the petitioners/ complainants. The main contention of learned counsel for the petitioners is that there was ample evidence in the shape of statement of prosecutrix under Section 161 Cr.PC and under Section 164 Cr.PC attributing specific role to the aforesaid accused persons placed in column no.2 in the commission of the offences along with co-accused persons. The learned counsel relied upon the judgments of Dharampal and other vs. State of Haryana [(2004) 13 SCC 9 and Kishun Singh vs. State of Bihar [1993(2) SCC 16].

5. On the other hand, learned APP while admitting that there were

specific allegations against the aforesaid accused persons leveled by the prosecutrix in her statement under Section 161 Cr.PC as well as under Section 164 Cr.PC, submitted that the Sessions Court has no power to array those persons as accused at the stage of consideration of charges against other accused persons. It was submitted that the only provision that stipulated arraying of additional accused was Section 319 Cr.PC and that could be invoked only if there was material evidence against them during trial. Since the case was at the stage of consideration of charges and the evidence of prosecution witnesses having not been recorded, there was no evidence warranting arraying all those persons as accused. Reliance was placed on Ranjit Singh v State of Punjab [1998 SC 3148].

6. The learned ASJ relied upon the case of Ranjit Singh (supra) to hold that there was no evidence at this stage to summon the aforesaid accused persons. The learned counsel for the petitioners relied upon the case of Kishun Singh (supra) and Dharampal and Ors. (supra) to contend that the Sessions Court, on the committal of case to it, has the power to take cognizance of the offence against persons not named as offenders and whose complicity in the crime comes to light from the material available on record. He also submitted that in the case of Dharampal and Ors. (supra), the three Judges' Bench of the Supreme Court opined that the interpretation made in Ranjit Singh case (supra) was not correct and that, law enunciated in the case of Kishun Singh (supra) was correct.

7. The case of Kishun Singh (supra) was taken note of by the three Judges' Bench of Supreme Court in Ranjit Singh case (supra). While reiterating that with the committal order, the Sessions Court has unfettered jurisdiction to take cognizance of the offence involved in the case, but the

question that was set up for consideration was as to whether such jurisdiction would envelop powers to summon any person as an accused other than those covered by the committal order. The Apex Court held as under:

"20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers Under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.

21. 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 Sessions Court completely powerless to deal with such a contingency? One such situation is 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 challaned by the police, 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?"

22. 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 commission. Should the court wait until evidence is collected to get that person arraigned in the case?

23. Though such situations may arise only in extremely rare cases the Sessions Court is not altogether powerless to deal with such situations to prevent miscarriage of justice. It is then open to the Sessions 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".

8. In view of the observations of the Apex Court in the case of Ranjit Singh (supra), it comes out to be that though situation of summoning a person as an accused before reaching evidence stage may be rare, but the Sessions Court is not altogether powerless to deal with such situation to prevent miscarriage of justice. There was no dispute with regard to the power of

Sessions Court to add any other person to the array of the accused after the evidence is collected under Section 319 CrPC. My understanding of the ratio of the case of Ranjit Singh (supra) is that the Sessions Court has the power to array any other person as accused if there was sufficient material available on record against such person showing his positive involvement in the complicity of the offence even before reaching the stage of recording of evidence.

9. In the case of Kishun Singh (supra), the Supreme Court, after discussing its various decisions held as under:

"Thus, on a plain reading of section 193 as it presently stands once the case is committed 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. On the magistrate committing the case under section 209 to the Court of Session the bar of section 193 is 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".

10. The decision in Kishun Singh (supra) was reiterated as correct by Supreme Court in Dharampal and Ors. (supra). The decision of Kishun Singh was also followed by the Supreme Court in the case in Nisar & Anr. Vs. State of U.P., JT 1995 (1) SC 135. This was also followed by this court in Raj Kumar & Ors. Vs. State, 1999 (1) JCC (Delhi) 144 and Anita Dahiya Vs. State, 74 (1998) Delhi Law Times 785.

11. From the above discussion, I am of the view that the Sessions Court has the power under Section 193 CrPC to summon a person (s) if his or their involvement in the commission of crime, prima facie, surfaces from the record of the case and the documents submitted alongwith the report under Section 173 CrPC. As per Kishun Singh case (supra), the police record, statement of witnesses under Section 161 CrPC, the seizure memo etc. can form the part of the material available to the court to form an opinion as to

whether there is a ground for presuming that the accused has committed the offence. If the Court forms such an opinion, then such material can be the basis to proceed further against such person.

12. The learned ACMM in his order dated 15.12.2008 observed from the material available on record that certainly, there is a reference at places regarding the aforesaid accused persons but, the material was not sufficient to proceed further against them at that stage. To my mind, this observation of the ACMM and similar observation of the ASJ do not appear to be based on proper appreciation of the material available on record. It was not only that there was a reference at places regarding the complicity of the aforesaid accused persons in the commission of the offence with their co-accused, but the material that was available in the shape of statement of prosecutrix under Section 161 CrPC and also under Section 164 CrPC, was prima facie, enough to show their involvement. At this stage, prima facie view was to be made on the face of material available on record without doing much and deeper analysis thereof. It was not the stage to see as to whether the statement of the prosecutrix under Section 161 and 164 CrPC wherein she has named aforesaid accused persons and attributed specific role to them, would ultimately result in conviction or not of these persons.

13. From my above discussion, I am of the view that miscarriage of justice has resulted and that calls for invoking jurisdiction of this court under Section 482 CrPC. In view of all this, the petition is allowed and the impugned orders of learned ASJ as also of ACMM are set aside. The matter is remitted back to the court of Sessions to examine as to the provisions under which the aforesaid accused persons kept in Column No. 2 in supplementary charge sheet can be summoned and then proceed further as per law. The parties may

appear before the Sessions Court on 06th March, 2012 at 2.15 p.m. Petition stands disposed of.

M.L. MEHTA, J FEBRUARY 27, 2012/rd/akb