Ram Sohag Pandit v. The State of Bihar

find favour from the learned lower court, hence this revision.

4. It has been submitted on behalf of petitioner that in

2. terms of Section 209 of the Cr.P.C. presence of accused at the time of commitment of case is necessary. Because of the fact that petitioner was not at all present at that very time hence there is no question of him being committed to the court of Session. Consequent thereupon, his trial vitiates. To support his argument the learned counsel for the petitioner has relied upon 2009 (3) BLJR 2646.

5. On the other hand, the learned Additional Public Prosecutor opposed the prayer and submitted that after amendment of Cr.P.C., the previous mandate of committal of accused has been replaced by committal of case that means to say the case has to be committed to the Court of Session. Physical presence of accused is not all warranted nor the court should insist for physical presence of the accused. It is the trial court, who after commitment, will see the status of the accused. Hence, the prayer of the petitioner happens to be misconceived.

6. Before coming to discuss the legal intricacies involved in this case one should take a glance of factual aspect so coming out from the lower court record.

7. Chunni Lal Pandit had given a fardbeyan on

14.02.1991 at 11:00 A.M. at Sadar Hospital, Hajipur alleging inter alia that on the same day at about 06:00 A.M. while he was

3. cleaning his mouth, Bindeshwar Pandit, Harendra Pandit and Raj Kishore Pandit were around the furnace along with children of the house. At that very time Baban Pandit came and said that they should finally settle the dispute with regard to land and for that, he had insisted to leave four hands of land. He insisted for Panchayati, over which Baban Pandit became enraged and gone to his Darwaja and came along with Ram Sohag Pandit armed with Farsa, Gaya Pandit armed with Danda, Ganesh Pandit, Panchi Pandit, Sahdeo Pandit, Saguni Pandit, Baidnath Pandit variously armed at his Darwaja and no sooner than Ganesh Pandit caught hold his son, Raj Kishore Pandit and pushed him. As soon as Raj Kishore Pandit fell down, Ram Sohag Pandit gave Farsa blow causing injury over his thigh leading to profuse blood. Baban Pandit gave repeated Farsa blow over left ankle as well as right sole. Others were provoking them. On hue and cry Rishideo Pandit, Kishori Pandit, Deonath Pandit along with others came who witnessed the occurrence. Bindeshwar Pandit, who intervene to save the injured, was also assaulted by Ram Sohag Pandit and Baban with Farsa. His another son Harendra Pandit was also assaulted by Farsa by Ram Sohag Pandit. At that very time Punmasiya Kunwar was pelting stone on account of which he sustained injury. Then thereafter they were lifted to

4. Hospital where Raj Kishore succumb to his injuries.

8. It is apparent from the lower court record that after registration of Sonepur P.S. Case No.29 of 1991 under Section 147, 148, 149, 307, 324, 337,302 of the IPC, the investigation proceeded and during course thereof on account of non- appearance of accused Ram Sohag Pandit warrant of arrest non- bailable followed with attachment were issued. As per para-55 of the case diary the attachment was effected. Because of the fact that the investigation was completed on all score hence as per direction of the Supervising Authority, as per para-58 Charge sheet was submitted against all the accused, namely, Saguni Pandit, Baidnath Pandit, Sahdeo Pandit, Doman Pandit, Punmasiya Devi, Baban Pandit, Gaya Pandit, Ganesh Pandit, Panchi Pandit who were on bail while against Ram Sohag Pandit as an absconder.

9. From the format of the charge sheet, it is evident that in Column No. III, Baban Pandit has been shown under custody while under Column-IV eight accused persons have been named disclosing seven on bail and one absconder. When the names have been gone through, it is evident that at Serial No.5 name of Baban Pandit @ Jaddu Pandit has been shown although his name happens to under Column No. III also. At the present

5. moment, it is pointed out that Ram Sohag Pandit also happens to be son of Jaddu Pandit and is brother of Baban Pandit. The aforesaid mistake was not at all perceived by the learned Chief Judicial Magistrate while taking cognizance on 17.07.1991 wherein he had incorporated “dsl Mk;jh ,oa vkjksi i= ?kkjk 147] 148] 149] 307] 324] 337 ,oa 302 Hkk0n0fo0 ds vUrZxr lefiZr fd;k x;k gSA mijksDr /kkjkvks ds vUrZxr ckn esa laKku fy;k x;k rFkk nkSjk lqiqnZ djus gsrq blh U;k;ky; esa j[kk x;kA”

10. The case was committed on 08.04.1994 showing physical presence of seven accused while one was represented under Section 317 of the Cr.P.C. The successive order sheets during intervening period suggest different figure of accused at different occasion. As per prosecution version there should have been presence of nine accused persons. In the charge sheet name of Babab Pandit has been scribed twice however counting nine. Vide order dated 25.07.1991, it is evident that court had directed to issue summon against the absentee however took notice of Babab Pandit under custody, Sahdeo Pandit and Panchi Pandit in attendance and four being represented under Section 317 of the Cr.P.C.

11. The subsequent event as is visualizing, the warrant of arrest having issued against Ram Sohag Pandit was executed

6. and he was produced before the court of Session and accordingly, was remanded. From order dated 28.02.2003, it is evident that learned Sessions Court had taken into account the allegation levelled against the petitioner as well as issuance of warrant of arrest during course of investigation against him, also recognized his status as an absconder and also took notice with regard to discrepancy persisting under Column No.III, IV of the charge sheet and also drew attention towards status of the accused whereupon he was remanded in the case. The subsequent order sheet suggests continuance of trial in terms of Chapter XVIII.

12. Before coming to the relevant provision of law, the citation relied upon by the learned counsel for the petitioner has to be taken into consideration. Yaswant and Anr. Vs. State of Rajasthan reported in 2009 (3) BLJR 2646 contains the fact as detailed under para-3 of the judgment. The appellants were named in the FIR. After concluding investigation charge sheet was submitted showing them as an absconder; however it was also incorporated that investigation against them was continuing. Cognizance of the offence was taken. Case was committed to the Court of Session where as per para-4 of the judgment, appellants have surrendered on their own on 22.05.1993. From para-9 of the judgment, it is evident that the learned Chief Judicial Magistrate

7. had taken cognizance only against three accused Sri Ram Narayan, Misri Devi and Nahar Singh and not against the appellant Yaswant Singh and Chand Singh who were not at all committed and in the aforesaid background, the Hon’ble Apex Court had struck down the framing of charge against the appellant Yaswant Singh and Chand Singh. However given a privilege to the trial court in terms of Section 319 of the Cr.P.C.

13. Now coming to the facts of the case, it is evident learned Chief Judicial Magistrate while taking cognizance, had taken cognizance of offence and not against any of the accused as is evident from order dated 17.07.1991. Although, the intervening orders are conflicting but during course of commitment, the learned Chief Judicial Magistrate had counted the number of accused as eight instead of nine as per prosecution version. That means to say at time of commitment petitioner was ignored. However when he was produced before the court of Session for remand, the learned Sessions Judge had gone through the case diary, identified the status of the accused and then remanded him to custody.

14. Now the sole question remains whether by such remand having made by court of Session taking into account his status from the case diary to be the main assailant of deceased

8. Raj Kishore along with, with regard to other injured, happens to be illegal. The aforesaid event was perceived by the Hon’ble Apex Court in Joginder Singh and Anr. Vs. State of Punjab & Anr. reported in 1979 (1) SCC 345 relevant para-6. “6. A plain reading of Section 319(1), which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused, but the question is whether it has power to do so without there being a committal order against such person? In this context the provisions of Sections 193 and 209 of the present Code vis-a- vis the equivalent provisions under the old Code will have to be considered Section 193 and Section 209 of the present Code run as follows: “193. Cognizance of offences by Courts of Session.— Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

209. Commitment of case to Court of Session when offence is triable exclusively by it.—When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall— (a) commit the case to the Court of Session; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.” It will be noticed that both under Section 193 and Section 209 the commitment is of “the case” and not of “the accused” whereas under the equivalent provision of the old Code viz. Section 193(1) and Section 207-A it was “the accused” who was committed and not “the case”. It is true that there cannot be

9. a committal of the case without there being an accused person before the Court, but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court but once the case in respect of the offence qua those accused who are before the Court is committed then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it; otherwise the conferral of the power under Section 319(1) upon the Sessions Court would be rendered nugatory. Further Section 319(4)(b) enacts a deeming provision in that behalf dispensing with the formal committal order against the newly added accused. Under that provision it is provided that where the Court proceeds against any person under sub-section (1) then the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced; in other words, such person must be deemed to be an accused at the time of commitment because it is at that point of time the Sessions Court in law takes cognizance of the offence”.

15. In Sk. Latfur Rahman & Ors. Vs. The State reported in 1985 Cr.L.J. 1238. The full Bench of this Court dealt with the issue after scrutinizing the relevant legal provisions as well as making Juxta pose scrutiny of Section 193 (old & new) as well as taking into account the cases so decided Raghubans Dubey v. State of Bihar reported in 1967 Cr.L.J. 1081, Joginder Singh and Anr. Vs. State of Punjab & Anr. reported in 1979 (1) SCC 345 and held: “Therefore, what the law under Section 193 seeks to visualize 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

10. the very threshold of the trial that they are prima facie guilty of the crime as well. Therefore, the argument that the summoning of an additional accused by a Court of Session is violative of section. 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.”

16. In Kishun Singh v. State of Bihar, reported in (1993) 2 SCC 16 again the issue has been taken consideration after analyzing the earlier judgments on that very score in para-17, it has been held: “17. For the reasons stated above while we are in agreement with the submission of the learned counsel for the appellants that the stage for the exercise of power under Section 319 of the Code had not reached, inasmuch as the trial had not commenced and evidence was not led, since the Court of Session had the power under Section 193 of the Code to summon the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case, we see no reason to interfere with the impugned order as it is well settled that once it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid. We, therefore, dismiss this appeal.”

17. The matter on account of persistance of conflicting judgment having in between has been decided by Constitutional Bench in relation to Dharam Pal & Ors. Vs. State of Haryana & Anr. in Cr. Appeal No.148 of 2003 with Cr. Appeal No.865 of 2004, 1334 of 2005 and 537 of 2006 on 18th July 2013 wherein after taking into consideration all the judgments on this score concluded under para-28. “28. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh’s case (supra) that the Session Courts has

11. jurisdiction on committal of a case to it, to take cognizance of the offense 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.” Thus, approved the principal laid down in Kishun Singh v. State of Bihar, reported in (1993) 2 SCC 16. Whatever deficiencies were persisting since before production of petitioner before the court of Session is found to be completely watered down having no adverse repercussions over the subsequent trial because of the fact that considering the materials and identifying the status of petitioner as an accused and thus, by remanding the petitioner under custody is found to be the power exercised by the court of Session in terms of Section 193 of the Cr.P.C. which now stood recognized by the Constitutional Bench of the Hon’ble Apex Court. As such, instant petition is found to be devoid of merit and is accordingly rejected. (Aditya Kumar Trivedi, J.) PATNA HIGH COURT Dated the 10th day of Sep., 2013 PRAKASH NARAYAN/A.F.R.