Delhi High Court
Ravinder vs State on 8 May, 2012
Author: M. L. Mehta
58
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. REV.P.126/2012
Date of Decision: 8th May, 2012
RAVINDER ..... Petitioner
Through: Mr. Joginder Tuli, Advocate
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
ORDER
% 08.05.2012
1. This is a criminal revision petition against the order dated 11th
January, 2012 of the learned Addl. Session Judge. FIR No. 351/2010 was
registered under Section 302/34 IPC with Section 25/27 or Arms Act. The
name of the present Petitioner was mentioned in Column No. 12 of the
chargesheet. The learned Metropolitan Magistrate vide order dated 21st
May, 2011 committed the case to the Court of Sessions. Since the name of
the Petitioner and Devinder @ Tape was kept in Column No. 12 of the
charge-sheet, the learned Metropolitan Magistrate did not commit the
names of these two persons to the Court of Sessions while committing the
other co-accused persons. The learned Addl. Sessions Judge vide
impugned order dated 12th January, 2012 sent the matter back to the Court
of Metropolitan Magistrate for summoning the Petitioner and Devinder @
Tape. The learned Addl. Sessions Judge in the order observed that though
the Petitioner and Devender have been placed in Column No. 12 of the
charge-sheet, as per the statements of the witnesses and other relevant
evidence specially the mobile phone call records, there is sufficient
evidence agaisnt them for summoning them. This order of the learned
Addl. Session Judge has been assailed by the Petitioner mainly on the
ground that the learned Addl. Sessions Judge had no power to summon the
Petitioner and Devender @ Tape since the learned Metropolitan
Magistrate had not taken cognizance against them and committed them for
trial along with the other co-accused persons. Learned counsel for the
Petitioner placed reliance on Randhir Singh Rana vs. State(Delhi
Admn.), 1997 (1) SCC 361 to contend that the only provision that
stipulated arraying additional accused was under Section 319 Cr.P.C. and
that could be invoked if there was material evidence against him during the
trial.
2. I have heard learned counsel for the Petitioner, Complainant and the
APP. The question as to whether the cognizance of the offences against the
persons not chargesheeted, but whose complicity in the crime comes to
light on the material available on record, could be taken by the Sessions
Court at the stage of committal of case came to be considered before the
Hon'ble Supreme Court in the case of Kishun Singh vs. State of Bihar,
1993(2) SCC 16 and Randhir Singh Rana (supra). The observations in
case of Kishun Singh(supra) were taken note of by three Judges Bench of
Hon'ble Supreme Court in Randhir Singh(supra) and reiterating as:
"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".
3. The case of Kishun Singh(supra) was taken note of by three Judges
Bench in Ranjit Singh Rana(supra) and it was held that in a case like this
the Sessions Court could not be completely powerless to deal with such a
contingency. It was held that in a situation like this it is open to the
Sessions Court to send a report to the High Court which may in exercise of
its inherent power direct the Magistrate to rectify the mistake. However, in
the later decision in case of Dharam Pal & Ors. vs. State of Haryana &
Anr. (2004) 13 SCC 9 the three Judges Bench of the hon'ble Supreme
Court has reiterated that the decision in the case of Kishun Singh is correct
and the interpretation in case of Ranjit Singh(supra) as incorrect. Since the
decision in Ranjit Singh(surpa) is also of three Judges Bench, the matter
has been directed to placed before the larger Bench.
4. In view of the above legal position it comes out to be that as on date,
as has been observed by the three Judges Bench of Hon'ble Supreme Court
in Dharampal(supra), the decisions in the case of Kishun Singh (supra) is
correct. Though the matter is pending before the larger Bench, the position
of law as on date is that of Kishun Singh case.
5. From the above discussion, I am of the view that the Sessions
Court has the power under Section 193 Cr.P.C. to summon a person "if his
involvement in the crime prima facie surfaces from the record of the case
and the documents submitted along with the report under Section 173".
As per Kishun Singh case, the police record, statement of witnesses under
Section 161 Cr.P.C., the seizure memo etc. can form part of the material
available to the Court to form an opinion as to whether there is a ground
for presumption 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 the said person.
6. Having said as above, it is seen that there are the statements of
Mohramm Ali @ Chotu, Pradeep Mishra and Rajesh recorded under
Section 161 Cr.P.C. revealing the involvement of the petitioner Ravinder
as also Devender @ Tape along with co-accused persons in the
commission of murder of Bheem Singh. The statements of these witnesses
under Section 161 Cr.P.C. made immediately after the commission of the
offence cannot be discarded outrightly at this stage. In the vigilance
enquiry that was conducted on the complaint of Rajesh Kumar s/o Bheem
Singh by the vigilance department and the police also, complicity of
Petitioner and Devender @ Tape has surfaced. Further the telephonic calls
made before and after commission of the offence with the Petitioner and
Devender @ Tape also point fingers of grave suspicion towards their
involvement.
7. There is no illegality or impropriety in the impugned order passed
by the learned Addl. Sessions Judge and the same does not require any
interference by this Court.
8. Petition, being devoid of any merit, is dismissed.
M.L. MEHTA, J.
MAY 08, 2012/dk
