Full Judgment Text
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PETITIONER:
NISAR AND ANOTHER
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT09/11/1994
BENCH:
MUKHERJEE M.K. (J)
BENCH:
MUKHERJEE M.K. (J)
ANAND, A.S. (J)
CITATION:
1995 SCC (2) 23 JT 1995 (1) 135
1994 SCALE (4)890
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
M.K. MUKHERJEE, J.- Special leave granted.
2.Appellant 1 is the brother-in-law of Shakyin who met with
an unnatural death in her matrimonial home on 22-6-1991.
Appellant 2 is his wife. On the following day i.e. on 23-6-
1991 Noor Mohammad, father of the deceased, lodged a first
information report alleging that her husband,
grandmother-in-law and the two appellants were responsible
for her death. On that information a case was registered
under Sections 304-B and 306 of the Indian Penal Code (’IPC’
for short) against all of them and on completion of
investigation the police submitted charge-sheet under
Section 306 IPC only against the deceased’s husband and
grandmother-in-law. In due course the case was committed to
the Court of Session by the Chief Judicial Magistrate, Orai
(’Magistrate’ for short) in accordance with Section 209 of
the Criminal Procedure Code (’Code’ for short).
3.When the matter came up for hearing before an Additional
Sessions Judge of Orai, an application was moved on behalf
of Noor Mohammad alleging that though during investigation
sufficient materials were furnished to prove that the two
appellants had also demanded a scooter as dowry and
physically tortured and ill-treated the deceased the
investigating agency did not submit charge-sheet against
them and praying for invoking the provisions of Section 193
of the Code to summon them. The application was opposed on
behalf of the appellants on the ground that in absence of
any order of their committal in accordance with Section 209
of the Code the Court of Session could not summon them in
exercise of power under Section
193 of the Code.
4.After hearing the parties and going through the statements
recorded under Section 161 of the Code the learned Judge
summoned the two appellants as, according to the learned
Judge, a prima facie case was made out against them and
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Section 193 of the Code empowered him to summon them.
5.Aggrieved by the above order the appellants moved the High
Court in revision which was rejected with the following
order:
"Learned counsel for the applicants has
submitted that the learned Judge has exercised
his power under Section 193 CrPC and not under
Section 319 CrPC which could not be exercised
as no evidence has yet led in the case.
In my opinion, the submission is not correct.
Under Section 319 CrPC even on the basis of
existing material person appearing to be
guilty may be summoned. The learned Sessions
Judge has perused the material and has found
that there are allegations against the
applicants. Merely because Section 193 has
been mentioned by the court below, it will not
invalidate the order."
6. Hence this appeal.
7. It was submitted on behalf of the appellants that
neither the provisions of Section 193 nor those of 319 of
the Code empowered the Court of Session
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to pass the impugned order. According to the learned
counsel for the appellants in absence of any order
committing the appellants to the Court of Session, the
learned Judge could not have issued process against the
appellants to stand trial by invoking Section 193 of the
Code. The learned counsel next submitted that having regard
to the fact that Section 319 of the Code could be invoked
only at a stage when evidence was led, the High Court was
not justified in upholding the order of the learned Judge
relying upon the said section, as admittedly that stage was
yet to be reached.
8. As regards the second contention of the appellants it
must be said that in view of the plain and unambiguous
language of Section 319 of the Code, the earlier quoted
reason which weighed with the High Court in sustaining the
order of the learned Judge is patently incorrect. The power
under Section 319(1) can be exercised only in those cases
where involvement of persons other than those arraigned in
the charge-sheet comes to light in the course of evidence
recorded during the enquiry or trial. As that stage has not
yet reached the appellants could not have been summoned
invoking Section 319 of the Code.
9. As regards the other contention of the appellants we
may mention that this Court has in Kishun Singh v. State of
Bihar1 categorically rejected a similar contention with the
following observations: (SCC p. 30, para 16)
"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
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record."
10.Since we are in respectful agreement with the principle
so laid down, the contention of the appellants in this
regard must be rejected. The appeal is, therefore,
dismissed.
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