DHARAM PAL & ORS VS STATE OF HARYANA & ANR

DHARAM PAL & ORS VS STATE OF HARYANA & ANR

DATE OF THE CASE: 18^th July, 2013

APPELLANT: DHARAM PAL & ORS.

RESPONDENT: STATE OF HARYANA & ANR. 

BENCH/JUDGES: ALTAMAS KABIR, SURINDER SINGH NIJJAR, RANJAN GOGOI, M.Y. EQBAL, VIKRAMAJIT SEN

LEGAL PROVISIONS: Sections 190, 193, 200, 202, 204, 209, 228, 319 of the Code of Criminal Procedure; Article 20 & 21 of the Indian Constitution. 

FACTS OF THE CASE

• The appellants Dharam Pal and others were included in column 2 of the police report, despite being named as accused in the First Information Report. The learned Judicial Magistrate First Class, Hansi, called the appellant and three other people who were not named as defendants in the charge-sheet to appear in trial with Nafe Singh. The learned Magistrate claimed to have been acting in accordance with Section 190 of the Code but without taking recourse to other provisions.
• The Supreme Court was informed that two prior rulings had a direct impact on the issue under review when this matter was brought up for judgement by the Three-Judge Bench on September 1, 2004. The first is Kishun Singh v. State of Bihar, and the second is Ranjit Singh v. State of Punjab, which was decided by a three-judge bench.
• The ruling in Kishun Singh’s case was that the Session Court had the authority to take cognizance of the offence and call further individuals. In Ranjit Singh’s case, the Session Court could only deal with the accused mentioned in Section 209 of the Code and there was no interim stage up until that point that would have allowed the Session Court to add any additional defendants.

ISSUE RAISED

1. Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session?
2. Whether the Magistrate has the jurisdiction to issue summons against the persons in column 2 of the police report to include their names in connection with the case made out in the police report? 
3. Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?
4. Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction?
5. Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?
6. Was Ranjit Singh’s case, which set aside the decision in Kishun Singh’s case, rightly decided or not?

CONTENTION OF THE PETITIONER

The petitioner argued that the session judge and high court had erred in holding that the committing magistrate was competent to entertain a protest petition to summon the appellants who had not been shown as accused in the charge sheet. They argued that the Magistrate had exceeded his jurisdiction and both Session Judge and High Court misconstrued the provisions of Sections 190, 193, and 209 of the Code in upholding the order of the learned Magistrate. The only course available to the committing magistrate was to commit the case to the Court of Session, which could then take recourse to Section 319 of the Code. The petitioner argued that the magistrate had no power to proceed under Section 190 of the Code, so the matter had to be committed to the Session Court. It was also held that the magistrate had no jurisdiction to associate any other person as an accused in the exercise of powers under Section 319 of the Code. The petitioner argued that the entire exercise undertaken by the magistrate was contrary to the provisions of law and that orders summoning the appellants as accused were liable to be quashed.

CONTENTION BY DEFENCE

 According to the defence, the Session Court has the right to take jurisdiction and issue summons under Section 193 of the Code. Contrary to what had been suggested by the Referring Court, Defence argued that the law had been correctly stated in the case of Kishun Singh (supra), and the Session Court was authorised by Section 193 of the Code to take cognizance of and summon those who were not named as defendants in the charge-sheet after receiving the case for commitment. 

Section 190(1)(b) of the Code empowers any Magistrate of the First Class or the Second Class to take cognizance of any offence in three contingencies. In this case, the Magistrate issued summons to the Appellants to stand trial along with Nafe Singh, without holding any further inquiry. The Magistrate did not accept the Final Report filed by the Investigating Officer against the Appellants, as he was convinced that a prima facie case to go to trial had been made out against them.

JUDGEMENT

1. For the 1^st question it was held that the court is unable to accept the Petitioner’s submissions that there could be no intermediary stage between taking cognizance under Section 190(1)(b) and issuing summons to the accused. This would lead to a situation where neither the Committing Magistrate nor the Session Judge would have any control over the persons named in column 2 of the police report until the Section 319 stage was reached in the trial. This would lead to duplication of the trial and prolong it.
2. For the 2^nd question it was held that the Magistrate has the power to disagree with the police report and proceed against the accused persons, which the Session Court does not have until the Section 319 stage is reached. In the event the Magistrate disagrees, he has two choices: act on the basis of a protest petition or issue process and summon the accused. If satisfied, he may commit the case to the Court of Session.
3. For the 3^rd question, the court held that the Magistrate must proceed on the basis of the police report and either inquire into the matter or commit it to the Court of Session if it is triable.
4. The answer to question 4 is what 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.
5. For the 5th question, the court agreed with Kishun Singh’s case that the Session Courts have jurisdiction to take cognizance of the offences of those not named as offenders, even without recording evidence. Upon committal, the Session Judge may summon those shown in column 2 of the police report to stand trial.
6. For the 6^th question, the court held that the decision in Kishun Singh’s case was correct and the learned Session Judge could issue summons under Section 193 on the basis of the records transmitted to him.

CONCLUSION

In this case the Court held that the decision in Kishun Singh vs. State of Bihar and not Ranjit Singh Vs. State of Punjab laid down the law correctly in respect of the powers of the Session Court after the case was committed to it by the Magistrate.

This judgement of the Constitutional Bench resolves the confusion arising out of the two contradictory judgements, and this judgement also rules out the unnecessary stretching of cases that could be dealt with only by the Magistrate and Session Judge. This judgement can also be seen as strengthening the lower branch of the judiciary.

written by Shivanshu Shivam intern under legal vidhiya

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