Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTON
CRIMINAL APPEAL Nos. 2199-2201 OF 2014
(Arising out of SLP (Crl.) Nos.1730-1732 of 2011)
R.N.Agarwal ……Appellant
Versus
R.C. Bansal and others ……Respondents
J U D G M E N T
M.Y. EQBAL, J.
Leave granted.
2. These appeals are directed against the judgment and
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order dated 2.2.2011 passed by the High Court of Delhi in
Crl.M.C. Nos.2955 and 3779 of 2009 and Crl.Rev.No. 575 of
2009, whereby the High Court of Delhi while quashing the
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order dated 10 July, 2009 of the Special Judge, CBI Court
Rohini, allowed aforesaid Section 482 criminal petitions filed
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by the alleged culprits and Section 397 criminal revision of
the Investigating Officer.
3. The brief facts of the case are that in the year 1983, a
Society named Maharani Avanti Bai Co-operative Society was
formed and from time to time members were enrolled by its
Managing Committee. Upto the year 1989 there were 90
members of the Society and thereafter further enrolment of
members was stopped. However, no land was allotted to the
Society for many years and in the meantime its members
became disinterested in the running of the Society as the
cost of the flats to be constructed had gone very high and
beyond their reach. The society thus became dormant.
4. Some persons who were not members of the Society but
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were far-sighted and clever minded became interested to take
over its management and got the land allotted from Delhi
Development Authority (in short, ‘DDA’) to be utilized for the
benefits of their own persons. They forged certain records of
the Society to show that many of the original members of the
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Society had resigned and a new Managing Committee had
been constituted. By forged resignation letters of the original
members of the Society, new members were shown to have
been enrolled and the forged records were submitted in the
office of the Registrar of Co-operative Societies after entering
into some kind of criminal understanding with the officials in
that office. It is alleged that based on the forged documents,
which included minutes purporting to be of the illegally
constituted Managing Committee of the Society comprising of
all new members and also of General Body Meetings which
were never held, DDA was approached for allotment of land
with the assistance rendered by the Registrar of Co-operative
Societies by certifying that all the meetings were duly held
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and a list of new members of the Society was forwarded to
DDA. Accepting the same, DDA allotted a plot measuring
600 sq. meters to the Society in Dwarka for the benefit of the
90 members of the Society in the year 1998. All these facts
emerged during the investigation by CBI.
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5. On completion of the investigation, the CBI filed a
charge-sheet in the Court of Special Judge against six
persons, out of whom two were public servants while other
four were the members of the bogus Managing Committee of
the Society, who had taken over the dormant Society by
resorting to forgery etc.
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6. The Special Judge, CBI vide order dated 23 July, 2008,
after perusing the material submitted by the CBI, took
cognizance of the offences punishable under Section 120-B,
420, 468 and 471 of the Indian Penal Code (in short, ‘IPC’) as
well as Section 13(1)(d) of the Prevention of Corruption Act,
and ordered summoning of six persons who had been named
by the CBI in its charge-sheet as accused persons alleged to
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have committed the offences in conspiracy with each other.
After all the accused persons entered appearance, the Special
Judge furnished them copies of all the documents as per the
requirement of Section 207 of the Code of Criminal Procedure
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and, thereafter, the matter was adjourned to 9 March, 2009.
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However, before the next date of hearing, accused R.N.
Aggarwal moved an application under Section 190 read with
Section 193 Cr.P.C. before the Special Judge for summoning
three more persons, namely, Madan Sharma (PW-21), Ms.
Sujata Chauhan (PW-23) and R.C. Bansal (PW-30) as
accused, who had been cited by the CBI as its witnesses.
The learned Special Judge kept that application for
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consideration on 9 March, 2009. However, on that day the
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matter was adjourned to 5 May, 2009 for arguments on
charge without mentioning anything about the application
which had been moved by the accused R.N. Aggarwal.
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Special Judge heard arguments on that application on 5
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June, 2009 and then by order dated 10 July, 2009 allowed
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that application and summoned the prosecution witnesses
Madan Sharma, Sujata Chauhan and R.C. Bansal and also
directed the Director of CBI to get a case registered against
the Investigating Officer of the case under Section 217, IPC
for letting off these three persons.
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7. Aggrieved by order dated 10 July, 2009, prosecution
witnesses Sujata Chauhan and R.C. Bansal (respondents
herein) approached the High Court by filing separate
petitions under Section 482, Cr.P.C. read with Article 227 of
the Constitution of India. CBI, feeling aggrieved by the
direction given by the Special Judge in the impugned order
for registration of a criminal case against the investigating
officer, also approached the High Court by way of a revision
petition.
8. Learned Single Judge of the High Court, while
considering the order passed by the Special Judge, held that
the case is squarely covered by the decision of the Delhi High
Court in the case of Anirudh Sen vs. State , (2006) 3 JCC
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2081 (Delhi), and consequently quashed the order passed by
the Special Judge.
9. Mr. Ajit Kumar Sinha, learned senior counsel appearing
for the appellant assailed the impugned order passed by the
High Court as being illegal and wholly without jurisdiction.
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Learned counsel submitted that the learned single Judge of
the High Court relied upon the decision of Delhi High Court
in Anirudh Sen’s case (supra), which followed the ratio
decided by this Court in Raj Kishore Prasad vs. State of
Bihar , (1996) 4 SCC 495, and held that the Magistrate has
no jurisdiction to summon the persons shown in column 4 of
the charge-sheet. Mr. Sinha, learned counsel further
submitted that a Constitution Bench of this Court in the case
of Dharam Pal vs. State of Haryana , (2014) 3 SCC 306,
after considering various judgments overruled the decision
rendered in Raj Kishore Prasad’s case (supra). Learned
counsel submitted that the Magistrate is empowered to
summon other accused persons even before the examination
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of witnesses. Mr. Sinha also relied upon another
Constitution Bench decision of this Court in Hardeep Singh
vs. State of Punjab , (2014) 3 SCC 92, and submitted that
the Constitution Bench agreed with the view taken in
Dahram Pal’s case (supra).
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10. Mr. Basava Prabhu Patil, learned senior counsel
appearing for the respondent, on the other hand submitted
that once cognizance was taken by the Magistrate, it has no
jurisdiction to summon the persons shown in column 4 of
the charge-sheet. Learned counsel submitted that the ratio
decided by the Constitution Bench in Dharam Pal’s case is
not applicable in the facts of the present case.
11. Mr. Pradeep K. Ghose, learned counsel appearing for
the respondent no.8, relied on the decision rendered in
A.R.Antuley vs. Ramdas Srinivas Nayak, (1984) 2 SCC
500, and submitted that in the case pending before the
Special Judge, Section 193 of the Code will not be attracted
and it has no role to play.
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12. Mr. Atul Chitley, learned senior counsel appearing for
C.B.I., contended that the CBI has acted in a bona fide
manner and, therefore, the observations made by the Special
Judge and directions issued to register the case against the
officers does not arise.
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13. We have considered the submissions made by the
learned counsel appearing for the parties.
14. In Anirudh Singh’s case (supra), charge-sheet was filed
showing the petitioner in column 2 as there was no material
available against the petitioner. The Magistrate summoned
only those accused shown in column 4 of the charge-sheet.
The successor Magistrate, however, later on summoned
persons, including petitioner, who were shown in column 2
of the charge-sheet. The High Court fully relied upon the
decision of this Court in Raj Kishore Prasad case (supra) and
held that the Magistrate had no jurisdiction to summon the
petitioner of that case since no new material/evidence had
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been collected in the course of trial.
15. In Raj Kishore Prasad’s case, this Court came to the
conclusion that power under Section 209, Cr.P.C. to
summon a new offender was not vested with the Magistrate
on the plain reading of its text as well as proceedings before
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him not being an ‘inquiry’ and the material before him not
being ‘evidence’. The question considered by this Court was
whether the undertaking under Section 209, Cr.P.C. of a
case triable by a Court of Sessions, associate another person
as an accused in exercise of power under Section 319 of the
Code or any other provision of Cr.P.C. Answering the
question this Court held as under:-
“16. Thus we come to hold that the power under Section
209 CrPC to summon a new offender was not vested with a
Magistrate on the plain reading of its text as well as
proceedings before him not being an ‘inquiry’ and material
before him not being ‘evidence’. When such power was not
so vested, his refusal to exercise it cannot be corrected by a
Court of Revision, which may be the Court of Session itself
awaiting the case on commitment, merely on the specious
ground that the Court of Session can, in any event,
summon the accused to stand trial, along with the accused
meant to be committed for trial before it. Presently it is
plain that the stage for employment of Section 319 CrPC
has not arrived. The order of the Court of Session requiring
the Magistrate to arrest and logically commit the appellant
along with the accused proposed to be committed to stand
trial before it, is patently illegal and beyond jurisdiction.
Since the Magistrate has no such power to add a person as
accused under Section 319 CrPC when handling a matter
under Section 209 CrPC, the Court of Session, in
purported exercise of revisional powers cannot obligate it to
do so. The question posed at the outset is answered
accordingly in this light. When the case comes after
commitment to the Court of Session and evidence is
recorded, it may then in exercise of its powers under
Section 319 CrPC on the basis of the evidence recorded by
it, if circumstances warranting, proceed against the
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appellant, summon him for the purpose, to stand trial
along with the accused committed, providing him the
necessary safeguards envisaged under sub-section (4) of
Section 319. Such course is all the more necessary in the
instant case when expressions on merit have extensively
been made in the orders of the Magistrate, the Court of
Session and that of the High Court. Any other course
would cause serious prejudice to the appellant. We order
accordingly.”
16. In the case of Kishun Singh and Others vs. State of
Bihar , (1993) 2 SCC 16, a Division Bench of this Court was
considering the question as to whether a Court of Sessions,
to which a case is committed for trial by a Magistrate,
without itself recording evidence, summon a person not
named in the police report presented under Section 173
Cr.P.C. to stand trial along with those already named therein,
in exercise of power conferred by Section 319 of the Code.
While answering the question this Court considered various
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provisions of the Code and came to the following conclusion:-
“13. The question then is whether de hors Section 319 of
the Code, can similar power be traced to any other
provision in the Code or can such power be implied from
the scheme of the Code? We have already pointed out
earlier the two alternative modes in which the Criminal
Law can be set in motion; by the filing of information with
the police under Section 154 of the Code or upon receipt of
a complaint or information by a Magistrate. The former
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would lead to investigation by the police and may
culminate in a police report under Section 173 of the Code
on the basis whereof cognizance may be taken by the
Magistrate under Section 190(1)( b ) of the Code. In the latter
case, the Magistrate may either order investigation by the
police under Section 156(3) of the Code or himself hold an
inquiry under Section 202 before taking cognizance of the
offence under Section 190(1)( a ) or ( c ), as the case may be,
read with Section 204 of the Code. Once the Magistrate
takes cognizance of the offence he may proceed to try the
offender (except where the case is transferred under
Section 191) or commit him for trial under Section 209 of
the Code if the offence is triable exclusively by a Court of
Session. As pointed out earlier cognizance is taken of the
offence and not the offender. This Court in Raghubans
Dubey v. State of Bihar stated that once cognizance of an
offence is taken it becomes the Court’s duty ‘to find out
who the offenders really are’ and if the Court finds ‘that
apart from the persons sent up by the police some other
persons are
involved, it is its duty to proceed against those
persons’ by summoning them because ‘the summoning of
the additional accused is part of the proceeding initiated by
its taking cognizance of an offence’. Even after the present
Code came into force, the legal position has not undergone
a change; on the contrary the ratio of Dubey case was
affirmed in Hareram Satpathy v. Tikaram Agarwala . Thus
far there is no difficulty.
14. We have now reached the crucial point in our journey.
After cognizance is taken under Section 190(1) of the Code,
in warrant-cases the Court is required to frame a charge
containing particulars as to the time and place of the
alleged offence and the person (if any) against whom, or the
thing (if any) in respect of which, it was committed. But
before framing the charge Section 227 of the Code provides
that if, upon a consideration of the record of the case and
the documents submitted therewith, the Sessions Judge
considers that there is not sufficient ground for proceeding
against the accused, he shall, for reasons to be recorded,
discharge the accused. It is only when the Judge is of
opinion that there is ground for presuming that the
accused has committed an offence that he will proceed to
frame a charge and record the plea of the accused (vide
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Section 228). It becomes immediately clear that for the
limited purpose of deciding whether or not to frame a
charge against the accused, the Judge would be required to
examine the record of the case and the documents
submitted therewith, which would comprise the police
report, the statements of witnesses recorded under Section
161 of the Code, the seizure-memoranda, etc., etc. If, on
application of mind for this limited purpose, the Judge
finds that besides the accused arraigned before him the
complicity or involvement of others in the commission of
the crime prima facie surfaces from the material placed
before him, what course of action should he adopt?
16. We have already indicated earlier from the ratio of this
Court’s decisions in the cases of Raghubans Dubey and
Hareram that once the court takes cognizance of the
offence (not the offender) it becomes the court’s duty to find
out the real offenders and if it comes to the conclusion that
besides the persons put up for trial by the police some
others are also involved in the commission of the crime, it
is the court’s duty to summon them to stand trial along
with those already named, since summoning them would
only be a part of the process of taking cognizance. We have
also pointed out the difference in the language of Section
193 of the two Codes; under the old Code the Court of
Session was precluded from taking cognizance of any
offence as a court of original jurisdiction unless the
accused was committed to it whereas under the present
Code the embargo is diluted by the replacement of the
words the accused by the words the case . 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. The Full Bench of the High Court of Patna rightly
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appreciated the shift in Section 193 of the Code from that
under the old Code in the case of Sk. Lutfur Rahman as
under:
“Therefore, what the law under Section 193 seeks to
visualise and provide for now is that the whole of the
incident constituting the offence is to be taken cognizance
of by the Court of Session on commitment and not that
every individual offender must be so committed or that in
case it is not so done then the Court of Session would be
powerless to proceed against persons regarding whom it
may be fully convinced at the very threshold of the trial
that they are prima facie guilty of the crime as well ….
Once the case has been committed, the bar of Section 193
is removed or, to put it in other words, the condition
therefore stands satisfied vesting the Court of Session with
the fullest jurisdiction to summon any individual accused
of the crime.”
We are in respectful agreement with the distinction brought
out between the old Section 193 and the provision as it
now stands.”
17. The ratio laid down in Kishun Singh’s case (supra) and
Raj Kishore’s Prasad’s case (supra) came for consideration
before a three Judge Bench of this Court in the case of
Ranjit Singh vs. State of Punjab , (1998) 7 SCC 149.
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Disapproving the judgment in Kishun Singh’s case (supra),
the Full Bench of this Court relied upon Raj Kishore Prasad’s
case (supra), and held :-
“19. So from the stage of committal till the Sessions Court
reaches the stage indicated in Section 230 of the Code,
that court can deal with only the accused referred to in
Section 209 of the Code. There is no intermediary stage till
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then for the Sessions Court to add any other person to the
array of the accused.
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.
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24. For the foregoing reasons, we find it difficult to
support the observations in Kishun Singh case that powers
of the Sessions Court under Section 193 of the Code to
take cognizance of the offence would include the
summoning of the person or persons whose complicity in
the commission of the trial can prima facie be gathered
from the materials available on record.”
18. A similar matter came for consideration before a three
Judge Bench of this Court in Dharam Pal Singh’s case
(supra) since the conflicting view expressed by this Court in
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Ranjit Singh’ case and Kishun Singh’s case, the matter
was referred to the Constitution Bench of this Court. The
question has now been finally set at rest by the Constitution
Bench in Dharam Pal Singh’s case, (2014) 3 SCC 306.
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19. The Constitution Bench has overruled the ratio decided
in Ranjit Singh’s case (supra) and Raj Kishore Prasad’s case
and held that the ratio laid down in Kishun Singh’s case
(supra) has been correctly decided. The Constitution Bench
held as under:-
“34. The view expressed in Kishun Singh case , in our view,
is more acceptable since, as has been held by this Court in
the cases referred to hereinbefore, the Magistrate has
ample powers to disagree with the final report that may be
filed by the police authorities under Section 173(2) of the
Code and to proceed against the accused persons dehors
the police report, which power the Sessions Court does not
have till the Section 319 stage is reached. The upshot of
the said situation would be that even though the
Magistrate had powers to disagree with the police report
filed under Section 173(2) of the Code, he was helpless in
taking recourse to such a course of action while the
Sessions Judge was also unable to proceed against any
person, other than the accused sent up for trial, till such
time evidence had been adduced and the witnesses had
been cross-examined on behalf of the accused.
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35. In our view, the Magistrate has a role to play while
committing the case to the Court of Session upon taking
cognizance on the police report submitted before him under
Section 173(2) CrPC. In the event the Magistrate disagrees
with the police report, he has two choices. He may act on
the basis of a protest petition that may be filed, or he may,
while disagreeing with the police report, issue process and
summon the accused. Thereafter, if on being satisfied that
a case had been made out to proceed against the persons
named in column 2 of the report, proceed to try the said
persons or if he was satisfied that a case had been made
out which was triable by the Court of Session, he may
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commit the case to the Court of Session to proceed further
in the matter.
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39. This takes us to the next question as to whether under
Section 209, the Magistrate was required to take
cognizance of the offence before committing the case to the
Court of Session. It is well settled that cognizance of an
offence can only be taken once. In the event, a Magistrate
takes
cognizance of the offence and then commits the case
to the Court of Session, the question of taking fresh
cognizance of the offence and, thereafter, proceed to issue
summons, is not in accordance with law. If cognizance is to
be taken of the offence, it could be taken either by the
Magistrate or by the Court of Session. The language of
Section 193 of the Code very clearly indicates that once the
case is committed to the Court of Session by the learned
Magistrate, the Court of Session assumes original
jurisdiction and all that goes with the assumption of such
jurisdiction. The provisions of Section 209 will, therefore,
have to be understood as the learned Magistrate playing a
passive role in committing the case to the Court of Session
on finding from the police report that the case was triable
by the Court of Session. Nor can there be any question of
part cognizance being taken by the Magistrate and part
cognizance being taken by the learned Sessions Judge.
40. In that view of the matter, we have no hesitation in
agreeing with the views expressed in Kishun Singh case
that the Sessions Court has jurisdiction on committal of a
case to it, to take cognizance of the offences of the persons
not named as offenders but whose complicity in the case
would be evident from the materials available on record.
Hence, even without recording evidence, upon committal
under Section 209, the Sessions Judge may summon those
persons shown in column 2 of the police report to stand
trial along with those already named therein.”
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20. In another Constitution Bench judgment in Hardeep
Singh vs. State of Punjab , (2014) 3 SCC 92, this Court
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while discussing the powers of the Court concurred with the
view taken in Dharam Pal’s case and observed as under:-
“53. It is thus aptly clear that until and unless the case
reaches the stage of inquiry or trial by the court, the power
under Section 319 CrPC cannot be exercised. In fact, this
proposition does not seem to have been disturbed by the
Constitution Bench in Dharam Pal (CB) . The dispute
therein was resolved visualising a situation wherein the
court was concerned with procedural delay and was of the
opinion that the Sessions Court should not necessarily wait
till the stage of Section 319 CrPC is reached to direct a
person, not facing trial, to appear and face trial as an
accused. We are in full agreement with the interpretation
given by the Constitution Bench that Section 193 CrPC
confers power of original jurisdiction upon the Sessions
Court to add an accused once the case has been committed
to it.
54. In our opinion, the stage of inquiry does not
contemplate any evidence in its strict legal sense, nor could
the legislature have contemplated this inasmuch as the
stage for evidence has not yet arrived. The only material
that the court has before it is the material collected by the
prosecution and the court at this stage prima facie can
apply its mind to find out as to whether a person, who can
be an accused, has been erroneously omitted from being
arraigned or has been deliberately excluded by the
prosecuting agencies. This is all the more necessary in
order to ensure that the investigating and the prosecuting
agencies have acted fairly in bringing before the court those
persons who deserve to be tried and to prevent any person
from being deliberately shielded when they ought to have
been tried. This is necessary to usher faith in the judicial
system whereby the court should be empowered to exercise
such powers even at the stage of inquiry and it is for this
reason that the legislature has consciously used separate
terms, namely, inquiry or trial in Section 319 CrPC.”
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21. The Constitution Bench further answered the question
as under:-
“117.1. In Dharam Pal case , the Constitution Bench has
already held that after committal, cognizance of an offence
can be taken against a person not named as an accused
but against whom materials are available from the papers
filed by the police after completion of the investigation.
Such cognizance can be taken under Section 193 Cr.PC
and the Sessions Judge need not wait till “evidence” under
Section 319 CrPC becomes available for summoning an
additional accused.
117.2. Section 319 Cr.PC, significantly, uses two
expressions that have to be taken note of i.e. ( 1 ) inquiry ( 2 )
trial. As a trial commences after framing of charge, an
inquiry can only be understood to be a pre-trial inquiry.
Inquiries under Sections 200, 201, 202 CrPC, and under
Section 398 Cr.PC are species of the inquiry contemplated
by Section 319 CrPC. Materials coming before the court in
course of such inquiries can be used for corroboration of
the evidence recorded in the court after the trial
commences, for the exercise of power under Section 319
Cr.PC, and also to add an accused whose name has been
shown in Column 2 of the charge-sheet.
117.3. In view of the above position the word “evidence”
in Section 319 CrPC has to be broadly understood and not
literally i.e. as evidence brought during a trial.
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117.4. Considering the fact that under Section 319
CrPC a person against whom material is disclosed is only
summoned to face the trial and in such an
event under
Section 319(4) CrPC the proceeding against such person is
to commence from the stage of taking of cognizance, the
court need not wait for the evidence against the accused
proposed to be summoned to be tested by cross-
examination .”
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22. As noticed above, after completion of investigation, CBI
filed charge-sheet in the Court of Special Judge to deal with
the cases in the Prevention of Corruption Act, as also under
the Indian Penal Code. The procedure and the powers of the
Special Judge have been prescribed in Section 5 of the said
Act. For better appreciation, Section 5 of the Act is
reproduced hereinbelow:-
“5. Procedure and powers of special Judge.—
(1) A special Judge may take cognizance of offences
without the accused being committed to him for trial and,
in trying the accused persons, shall follow the procedure
prescribed by the Code of Criminal Procedure, 1973 (2 of
1974), for the trial of warrant cases by the Magistrates.
(2) A special Judge may, with a view to obtaining the
evidence of any person supposed to have been directly or
indirectly concerned in, or privy to, an offence, tender a
pardon to such person on condition of his making a full
and true disclosure of the whole circumstances within his
knowledge relating to the offence and to every other
person concerned, whether as principal or abettor, in the
commission thereof and any pardon so tendered shall, for
the purposes of sub-sections (1) to (5) of section 308 of
the Code of Criminal Procedure, 1973 (2 of 1974), be
deemed to have been tendered under section 307 of that
Code.
(3) Save as provided in sub-section (1) or sub-section (2),
the provisions of the Code of Criminal Procedure, 1973 (2
of 1974), shall, so far as they are not inconsistent with
this Act, apply to the proceedings before a special Judge;
and for purposes of the said provisions, the Court of the
special Judge shall be deemed to be a Court of Session
and the person conducting a prosecution before a special
Judge shall be deemed to be a public prosecutor.
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(4) In particular and without prejudice to the generality of
the provisions contained in sub-section (3), the provisions
of sections 326 and 475 of the Code of Criminal
Procedure, 1973 (2 of 1974), shall, so far as may be,
apply to the proceedings before a special Judge and for
the purposes of the said provisions, a special Judge shall
be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted
by him any sentence authorised by law for the
punishment of the offence of which such person is
convicted.
(6) A special Judge, while trying an offence punishable
under this Act, shall exercise all the powers and functions
exercisable by a District Judge under the Criminal Law
Amendment Ordinance, 1944 (Ord. 38 of 1944).”
23. A bare reading of the provision would show that the
special judge may take cognizance of the offence without the
accused being committed to him for trial and the court of
special judge shall be deemed to be a court of session. The
special judge in trying the accused persons shall follow the
procedure prescribed by the Code of Criminal Procedure,
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1973 for the trial of warrant cases by the Magistrate.
Indisputably, a person holding the post of either a Sessions
Judge, Additional Sessions Judge or Assistant Sessions
Judge is appointed as Special Judge and shall follow the
procedure prescribed in the Code for trial of warrant cases.
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24. The constitution Bench in the case of A.R. Antuley
(supra), was of the view that the special judge appointed
under the Prevention of Corruption Act, enjoys all powers
conferred on the Court of original jurisdiction functioning
under the High Court except those specifically conferred
under the Act. The Bench observed :-
“27……..While setting up a Court of a Special Judge
keeping in view the fact that the high dignitaries in public
life are likely to be tried by such a court, the qualification
prescribed was that the person to be appointed as Special
Judge has to be either a Sessions Judge, Additional
Sessions Judge or Assistant Sessions Judge. These three
dignitaries are above the level of a Magistrate. After
prescribing the qualification, the Legislature proceeded to
confer power upon a Special Judge to take cognizance of
offences for the trial of which a special court with
exclusive jurisdiction was being set up. If a Special Judge
has to take cognizance of offences, ipso facto the
procedure for trial of such offences has to be prescribed.
Now the Code prescribes different procedures for trial of
cases by different courts. Procedure for trial of a case
before a Court of Session is set out in Chapter XVIII; trial
of warrant cases by Magistrates is set out in Chapter XIX
and the provisions therein included catered to both the
types of cases coming before the Magistrate, namely,
upon police report or otherwise than on a police report.
Chapter XX prescribes the procedure for trial of summons
cases by Magistrates and Chapter XXI prescribes the
procedure for summary trial. Now that a new criminal
court was being set up, the Legislature took the first step
of providing its comparative position in the hierarchy of
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courts under Section 6 CrPC by bringing it on level more
or less comparable to the Court of Session, but in order to
avoid any confusion arising out of comparison by level, it
was made explicit in Section 8(1) itself that it is not a
Court of Session because it can take cognizance of
offences without commitment as contemplated by Section
193 CrPC. Undoubtedly in Section 8(3) it was clearly laid
down that subject to the provisions of sub-sections (1)
and (2) of Section 8, the Court of Special Judge shall be
deemed to be a Court of Session trying cases without a
jury or without the aid of assessors.”
25. In the case of Harshad S. Mehta vs. State of
Maharashtra , (2001) 8 SCC 257 , the Bench while dealing
with the case under the Special Court (Trial of Offences
Relating to Transactions in Securities) Act, 1992 observed
that special court is a Court of exclusive jurisdiction in
respect of offences under Section 3(2) of the Act, like special
court under Prevention of Corruption Act it has original
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criminal jurisdiction. The special court per se is not a
Magistrate and also it is not a court to which the
commitment of a case is made.
26. In the case of State of T.N. vs. V. Krishnaswami
Naidu, (1979) 4 SCC 5, this Court while answering a
question, as to whether the special judge under the Criminal
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Law (Amendment) Act, 1952 can exercise the power conferred
on a Magistrate under Section 167 Cr.P.C. to authorise the
detention of the accused in the custody of police, held that a
special judge is empowered to take cognizance of the offence
without the accused being committed to him for trial. Their
Lordship observed:-
“5. It may be noted that the Special Judge is not a
Sessions Judge, Additional Sessions Judge or an
Assistant Sessions Judge under the Code of Criminal
Procedure though no person can be appointed as a
Special Judge unless he is or has been either a Sessions
Judge or an Additional Sessions Judge or an Assistant
Sessions Judge. The Special Judge is empowered to take
cognizance of the offences without the accused being
committed to him for trial. The jurisdiction to try the
offence by a Sessions Judge is only after committal to
him. Further the Sessions Judge does not follow the
procedure for the trial of warrant cases by Magistrates.
The Special Judge is deemed to be a Court of Session only
for certain purposes as mentioned in Section 8(3) of the
Act while the first part of sub-section 3 provides that
except as provided in sub-sections (1) and (2) of Section 8
the provisions of the Code of Criminal Procedure, 1898
shall, so far as they are not inconsistent with this Act,
apply to the proceedings before the Special Judge.”
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27. In the case of Raghubans Dubey vs. State of Bihar,
AIR 1967 SC 1167 , this Court while dealing with the similar
matter held that once cognizance has been taken by the
Magistrate, he takes cognizance of an offence and not the
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offenders and once he comes to the conclusion that apart
from the persons sent by the police some other persons are
involved, it is his duty to proceed against those persons. The
summoning of the additional accused is part of the
proceeding initiated by his taking cognizance of an offence .
28. In the case of Kishun Singh vs. State of Bihar
(supra) , the scope and power of a Court under Sections 193,
209 and 319 observed as:-
“16. We have already indicated earlier from the ratio of
this Court’s decisions in the cases of Raghubans Dubey
and Hareram that once the court takes cognizance of the
offence (not the offender) it becomes the court’s duty to
find out the real offenders and if it comes to the
conclusion that besides the persons put up for trial by
the police some others are also involved in the
commission of the crime, it is the court’s duty to summon
them to stand trial along with those already named, since
summoning them would only be a part of the process of
taking cognizance. We have also pointed out the
difference in the language of Section 193 of the two
Codes; under the old Code the Court of Session was
precluded from taking cognizance of any offence as a
court of original jurisdiction unless the accused was
committed to it whereas under the present Code the
embargo is diluted by the replacement of the words the
accused by the words the case . 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
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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. The Full Bench of the High Court of
Patna rightly appreciated the shift in Section 193 of the
Code from that under the old Code in the case of Sk.
Lutfur Rahman as under:
“Therefore, what the law under Section 193 seeks to
visualise and provide for now is that the whole of the
incident constituting the offence is to be taken cognizance
of by the Court of Session on commitment and not that
every individual offender must be so committed or that in
case it is not so done then the Court of Session would be
powerless to proceed against persons regarding whom it
may be fully convinced at the very threshold of the trial
that they are prima facie guilty of the crime as well ….
Once the case has been committed, the bar of Section
193 is removed or, to put it in other words, the condition
therefore stands satisfied vesting the Court of Session
with the fullest jurisdiction to summon any individual
accused of the crime.”
We are in respectful agreement with the distinction
brought out between the old Section 193 and the
provision as it now stands.”
29. The order passed by the Special Judge would show that
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while issuing summons against the respondents the Court
has considered in detail the material brought on record
during investigation. We would like to refer some of the
paragraphs, which are quoted hereinbelow:-
“14. During investigation. It was also revealed that Sh.
Ram Narain Aggarwal got procured the various false
documents in order to regularize the society fraudulently,
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which was submitted to the office of the RCS. The details
of the documents are as follows:-
Proceedings of general body meetings dated 15-11-1998
and 23-01-2000.
Proceedings register having proceedings with effect from
22-11-1998.
Membership register having members numbers 101
onwards.
15. Proceedings of General Body Meeting (GBM) dated 15-
11-1998 which shown to be held in the office of the
rd
society at 303. 3 Floor, C-50, Vasant Tower Community
Centre, Janak Puri where the approval of resignation of
46 members and enrollment of 35 new members during
the period of 1996-97 by the managing committee was
falsely shown. Similarly, proceeding of GBM dated 23-01-
2000 falsely show approval of regisnation of 10 promoter
members by the managing committee. In that GBM, false
election of managing committee was shown to be
conducted, in which, Sh. OP Aggarwal- the President, Sh.
Anil Kumar Sharma- Vice President and all other
members of the managing committee of the society,
whose name are Sh. R.N. Aggarwal, Ms. Sujata Chauhan,
Sh. Sudhir Aggarwal, Sh. CL Bansal and Ms. Janak are
shown to be elected by showing conducting false elections
of the management committee. The signature of Sh.
Sudhir Aggarwal is forged on these proceedings of GBM
dated 15-11-1998, 23-1-2000 which are written by Ms.
Sujata on the instance of Sh. RN Aggarwal.
16. It was also revealed that Sh. MIshri Lal Lodhi and Sh.
Bhupinder Kumar, the then president and secretary of
the society respectively had never approved the
resignation of the promoter members and enrollment of
new members during the year 1996-97 as shown in GBM
dated 15-11-1998.
17. After obtaining demand letter dated 21-9-1998 from
DDA, a post letter dated 2-11-1998 under the signature
of SH. Bhupinder Kumar, Secretary of the society was
submitted fraudulently to the commissioner (Housing),
DDA, New Delhi, whereby more time was sought for
making payment.
18. Investigation further revealed that Sh. RN Aggarwal
in pursuance of criminal consipray with Sh. Bhim Singh
Mahur fraduently obtained a letter dated 15-11-1998
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signed by Sh. Mishri Lal (President), Sh. Bhupinder
Kumar (Secretary) and Smt. Kela Devi (Treasurer) and
sent the same to the Manager, Delhi State Cooperative
Bank Ltd., Dariya Ganj, New Delhi falsely stated therein
that Sh. Anil Kumar Sharma, Sh. RN Aggarwal and Sh.
Om Prakash Aggarwal have been elected as President,
Secretary and Treasurer respectively in the new Managing
Committee of the said society and the said office bearer
have been authorized to operate the bank accounts of the
said society and this way all the above named accused
had fraudulently taken over control of the operation of the
bank account of the said society.
xxxxxxx
20. Investigation further revealed that Sh. Ganesh Jha,
a promoter member of the society lodged complaints
dated 26.6.2000 and 5.10.2000 to the office of RCS, New
Delhi alleging therein that the society had not intimated
him for allotment of land by DDA nor demanded his share
of contribution towards costs of land and he suspected
that the Secretary fraudulently manipulated the
membership register. The society has secretly shifted the
registered office without holding any meeting of the
members, nor called him to attend any meeting of the
society with some ulterior motive.
21. It is also revealed in the investigation that Sh. Leela
Krishan Seth appointed Sh. Jafar Iqbal for conducting
verification on the allotments made in the complaints who
gave a false verification report at the behest of Sh. R.N.
Aggarwal in which he fraudulently certified that election
were satisfactorily held by society on 15.11.98 and
facilitated dishonestly the accused persons by giving
them clean chit to the society.
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22. Investigation also disclosed that person to the
aforesaid criminal conspiracy Leela Krishna Seth the then
Assistant Registrar, Sh. Jafar Iqbal, the then Inspector
Grade-III by abusing their official position by entering into
criminal conspiracy with sh. R. N. Aggarwal and Sh. O.P.
Aggarwal with the intention to cheat DDA got allotment
and possession of land from DDA in favour of the
society.”
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30. The Special Judge considering all those materials
brought on record during investigation and relying upon the
decisions of this Court in the case of M/s Swill Ltd. vs.
State of Delhi and Anr., (2001) 6 SCC 670; Nisar and
Another vs. State of U.P. , (1995) 2 SCC 23;1995 Crl LJ
2118; Kishan Singh vs. State of Bihar (supra);
Raghubans Dubey vs. State of Bihar , (1967) 2 SCR 423,
came to the conclusion that the respondents are involved in
the commission of offence and consequently summons were
issued against them.
31. While passing the impugned order the High Court
instead of relying on the decisions of this Court reversed the
order passed by the Special Judge by following the decision
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of the Single Judge of the Delhi High Court in Anirudh
Sen’s Case (supra). Prima facie, therefore, the impugned
order passed by the High Court quashing issuance of
summons by the Special Judge against the respondents is
erroneous in law and cannot be sustained. However, at this
stage it was not necessary for the Special Judge to issue
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directions to CBI to get a case registered against the guilty
officers who have investigated the case.
32. For the reasons aforesaid, we allow these appeals and
quash the order passed by the High Court and restore the
order passed by the Special Judge except the direction issued
to the CBI as indicated above.
…………………………….J.
[ M.Y. Eqbal ]
.…………………………….J
[Pinaki Chandra Ghose]
New Delhi
October 14, 2014
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