The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.601 of 2022 From the order dated 02.12.2022 passed by the learned Addl. District Judge- cum-Special Judge (Vigilance), Dhenkanalin C.T. (SS) No.168 of 2022. Ranjit Kumar Sahoo …. Petitioner -versus- 1.State of Orissa 2.Bijay Pradhan 3.Subrat Pradhan 4.Subash Pradhan 5.Rajesh Sahoo Opp. Parties … . Advocates appeared in this case through Hybrid Mode : For Petitioner : Mr.Pranab Ranjan Chhatoi, Advocate For Opp. Parties : Mr.M.R.Mishra, ASC Mr.S.R.Mulia, Advocate (for O.Ps.2 to 5) CORAM: JUSTICE SAVITRI RATHO .…………………………………………………………………………………… Date of Judgment : 12.04.2024 ……………………………………………………………………………………. Savitri Ratho, J. This revision has been filed with a prayer to set aside the order dated 02.12.2022 passed in C.T. (SS) No.168 of 2022 passed by the learned Addl. District Judge-cum-Special Judge (Vigilance), CRLREV No.601 of 2022 Page 1 of 14 Dhenkanal rejecting the petition filed under Section 193 of the Code of Criminal Procedure (in short „Cr.P.C.‟), by the petitioner who is the informant in Motanga P.S. Case No.72 of 2022. 2. The allegation in brief as per the F.I.R. is that on 19.03.2022 at about 9.20 p.m., when the informant alongwith some villagers were decorating the village Dola Mandap, at that time Prakash Pradhan was sitting on the Mandap stairs while Bijaya Pradhan, Subrat Pradhan, Subash Pradhan, Rajesh Sahu were standing in the village road and watching the decoration work. At that time, the deceased Bikash Chandra Nayak was returning to his house on his scooty after purchasing some household articles. Bijaya Pradhan, Subrat Pradhan, Rajesh Sahu and Subash Pradhan caught hold of him and detained him. Prakash Pradhan attacked the deceased Bikash Chandra Nayak with a sharp weapon on his head, which resulted in a bleeding injury his death at the spot. After the said occurrence, Prakash Pradhan threatened the other villagers for which the villagers who were present at the spot fled. It was alleged that on account of political rivalry under the leadership of Sibadatta Das, Narendra Das, Akhila Pradhan, Sanatana Pradhan, Malya Pradhan, Sisira Sahu, Santanu Nayak, Satyabadi Pradhan, Suresh Pradhan and Satrughana Pradhan, the occurrence took place. CRLREV No.601 of 2022 Page 2 of 14 3. F.I.R. had been filed by the present petitioner leading to registration of Motanga P.S. Case No.72 of 2022 against Prakash Pradhan who is facing trial in connection with C.T. (SS) No.168 of 2022 and 14 other accused persons including the opposite party Nos.2 to 5. 4. After completion of investigation, chargesheet dated 15.07.2022 was submitted by the police against Prakash Pradhan for commission of offence punishable under Section 302 of IPC stating that Prakash Pradhan has confessed that he had assaulted the deceased by means of an axe on his head and had concealed the weapon of offence, i.e., axe fitted with wooden handle, on the asbestos roof of the chicken shop of his brother situated at Gaudapasi near NH-55 and he led to recovery the weapon of offence. No reason has been cited for not filing the chargesheet against the other accused against whom the F.I.R. has been registered. In the status of the 14 co-accused persons, it has been stated “Discharged”. 5. After the case had been committed to the Court of Sessions, an application under Section 193 Cr.P.C. was filed before the learned trial Court, i.e., learned Addl. Sessions Judge, Dhenkanal by the petitioner praying for taking cognizance against accused persons named in the F.I.R. and to issue summon to them under Section 302/120-B/34 IPC to CRLREV No.601 of 2022 Page 3 of 14 face trial. It has been stated in the petition that during investigation, the I.O. has deliberately avoided to record the statement of eye witnesses, namely, Surendra Sahoo, Girish Chandra Sahoo, Tapan Sahoo, Panchanan Sahoo, Ugrasen Sahoo and Soumyakanta Nayak for which the investigation was biased. It was also stated that in the F.I.R. as well as the statement of the informant recorded under Section 161 Cr.P.C., the names of the persons who were involved in the crime had been clearly mentioned but these accused persons were not chargesheeted in the case and charge sheet has been filed only against Prakash Pradhan. It has been further stated that the Court has ample power to take cognizance against the accused persons named in the F.I.R. and in the statement of the informant under Section 161 Cr.P.C., in exercise of power under Section 193 of Cr.P.C. as it was a Court of original jurisdiction. 6. The learned trial Court after going through the F.I.R. and case record found that the F.I.R. had been registered against the 15 persons but chargesheet had been filed only against Prakash Pradhan under Section 302 of IPC and the chargesheet revealed that during interrogation of accused Prakash Pradhan, he has confessed that he has assaulted Bikash Chandra Nayak (deceased) by means of an axe on his CRLREV No.601 of 2022 Page 4 of 14 head and gave statement of disclosure under Section 27 of the Indian Evidence Act and gave recovery of the weapon. On 19.07.2022 cognizance had been taken against the accused, Prakash Pradhan under Section 302 of IPC. After commitment of the case it was to be presumed that once the Magistrate has already exercised power of
Facts
cognizance, the Sessions Court cannot taken cognizance for the second time as a Court of original jurisdiction under Section 193 Cr.P.C., as cognizance of offence Act can be taken once. It was necessary for the Sessions Court to reach the stage of Section 319 Cr.P.C. to direct a person not facing the trial to appear to face the trial when any incriminating materials arises against the person other than the accused. 7. After rejecting the application, the learned Court below posted the case for framing of charge. 8.
Legal Reasoning
Section 161 Cr.P.C. a prima facie case under section 302/34 of IPC was made out against the opposite party Nos.2 to 5 apart from the main accused Prakash Pradhan for which the learned Court below should have exercised the power under Section 193 Cr.P.C. and should have been proceeded against them. He further submits that the Court had ample CRLREV No.601 of 2022 Page 5 of 14 power to proceed against the accused persons as cognizance of offence had already been taken by the learned Magistrate and in view of the provision under Section 193 Cr.P.C. the learned trial Court had ample power to take cognizance of the offence and proceed against the opposite party Nos. 2 and 4. But the learned Sessions Court has rejected the application of the petitioner erroneously holding that cognizance of offence can only be taken once and Sessions Court has to wait till the stage of Section 319 Cr.P.C. is reached to direct a person, not facing trial, to appear and face trial as an accused. He has also relied on the decision of the Supreme Court in the case of Dharampal and others v. State of Haryana and another (2014) 3 SCC 306. Relying on the decision of the Supreme Court in the case of Balveer Singh and another v. State of Rajasthan and another reported in 2016 (2) Crimes 254 (SC) and Rafiusshan v. State of U.P. and others in Criminal Appeal No.1347 of 2021 (arising out of SLP (CRL) No.1752 of 2020) decided on 8th November, 2021, he submits that the Supreme Court has held that once the case is committed to the Court of Sessions, the Court of Sessions assumes original jurisdiction and it would be within its power to pass appropriate direction under Section 193 of the Code. He further submits that a direction may be issued to CRLREV No.601 of 2022 Page 6 of 14 the learned trial Court to proceed against the opposite party Nos.2 to 5 as the statement of the complainant reveals their complicity in the crime. He also states that the Sessions Trial is pending for framing of charge which has not yet been framed in view of the interim order passed in this case staying further proceeding in the trial. 9. Mr. S.R.Mulia, learned counsel appearing for opposite party Nos.2 to 5 submits that there is no illegality in the said order as the learned Magistrate has rightly observed that once the cognizance of offence has been taken by the learned Court below, it does not have power to take cognizance of the offences in order to proceed again against the accused persons. The learned trial Court has rightly held that once cognizance of offence has been taken, the learned Sessions Court can proceed against the other accused persons who are not facing trial only after the stage under Section 319 Cr.P.C. is reached after recording of evidence of witnesses in case they implicate any other accused persons who are not facing trial. He also submits that perusal of the case diary would reveal that other than the statement of the informant, no other witness has implicated the opposite party Nos.2 to 5 for which it would be unsafe to proceed against them especially when there was allegation of political rivalry in the village. CRLREV No.601 of 2022 Page 7 of 14 10. Mr.M.R.Mishra, learned Addl. Standing Counsel submits that the Sessions Court had ample power under Section 193 Cr.P.C. to proceed against the person against whom material is available in the case diary. He has submitted that the statement of eye-witnesses Surendra Sahoo, Girish Chandra Sahoo, Tapan Sahoo, Panchanan Sahoo, Ugrasen Sahoo and Somyakanta Nayak who were engaged in decorating the Mandap with the complainant at the time of incident, have not been recorded during investigation but the statement of the informant clearly reveals that the persons named in the FIR are also involved in the crime, but they have not been chargesheeted in the case. As the F.I.R. as well as the statement of the informant under Section 161 Cr.P.C. reveals the complicity of opposite party Nos.2 to 5, the learned Sessions Court should have proceeded against them under Section 193 Cr.P.C. In support of his submission, he relies on the decision of the Supreme Court in the case of Kishun Singh and others v. State of Bihar reported in 1993 (2) SCC- 16. 11. Section 193 Cr.P.C. provides 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.” CRLREV No.601 of 2022 Page 8 of 14 12. In the case of Dharampal (supra), the five judge Bench of Supreme Court had been called upon to decide the reference , where the following questions had been framed : 7. The questions which require the consideration of the Constitution Bench are as follows: 7.1 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? 7.2 If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report? 7.3 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? 7.4 Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction? 7.5 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?” (emphasis supplied) 7.6 Was Ranjit Singh's case (supra), which set aside the decision in Kishun Singh's case (supra), rightly decided or not?” CRLREV No.601 of 2022 Page 9 of 14 In paragraph-38 of the judgment the Apex Court held as follows: “38..... The key words in the Section are that “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.” The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr. Dave to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said Section. 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 CRLREV No.601 of 2022 Page 10 of 14 of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge. 40. 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 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. 41. We are also unable to accept Mr. Dave’s submission that the Session Court would have no alternative, but to wait till the stage under Section 319 Cr.P.C. was reached, before proceeding against the persons against whom a prima facie case was made out from the materials contained in the case papers sent by the learned Magistrate while committing the case to the Court of Session. 42. The Reference to the effect as to whether the decision in Ranjit Singh’s case (supra) was correct or not in Kishun Singh’s case (supra), is answered by holding that the decision in Kishun Singh’s case was the correct decision and the learned Session Judge, acting as a Court of original jurisdiction, could issue summons under Section 193 on the basis of the records transmitted to him as a result of the committal order passed by the learned Magistrate. (emphasis supplied) CRLREV No.601 of 2022 Page 11 of 14 13. In the case of Balveer Singh (supra), the Supreme Court has held as follows: “9. Likewise, Section 193 of the Code empowers Court of Session to take cognizance of offences and states that the Court of Session shall not take cognizance of any offence as the Court of original jurisdiction unless the case has been committed to it by the Magistrate under this Code. As per this Section, the Court of Session can take cognizance only after the case has been committed to it by the Magistrate. However, once the case is committed to it by the Magistrate, the Court of Session is empowered to take cognizance acting 'as a Court of original jurisdiction. 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. 41. We are also unable to accept Mr Dave's submission that the Sessions Court would have no alternative, but to wait till the stage under Section 319 Cr. PC was reached, before proceeding against the persons against whom a prima facie case was made out from the materials contained in the case papers sent by the learned Magistrate while committing the case to the Court of Session. (emphasis supplied) 14. In the case of Rafiusshan (supra), 13 persons were named in the F.I.R. and name of two persons figured in the chargesheet. After commitment of the case upon an application filed under Section 193 of CRLREV No.601 of 2022 Page 12 of 14 the Code for issuing appropriate order for summoning three other persons, the learned trial Court allowed the application and directed the respondent therein to be tried for the offence alongwith the original accused. This order was challenged in the High Court and the High Court ultimately held that since cognizance has already been taken by the learned Sessions Judge and charges were framed against the accused after considering the police papers annexed with the chargesheet and the trial had started, it would not be proper for the trial Court to take further cognizance of the case and to summon the three accused by the impugned order and held that the summoning of the three accused by the impugned order is not in consonance with the legal provisions of law. This order was challenged in the Supreme Court which held that the case was completely covered by the question posed in paragraph 7.4 of the decision in the case of Dharam Pal (supra) and that once the case is committed to the Court of Sessions, the Court of Sessions would be within its power to pass appropriate direction under Section 193 of the Code. The decision of the High Court was held to be not consistent with the law laid down by the Supreme Court and was set aside and the order of the trial Court summoning the respondent was restored. CRLREV No.601 of 2022 Page 13 of 14 15. From a careful reading of the above decisions and the provisions of Section 193 of Cr.P.C., it is obvious that after a case has been committed to the Court of Sessions by the Magistrate, the Court of Sessions has the power to take cognisance against persons who have not been chargesheeted and issue summons to them under Section 193 Cr.P.C. on the basis of documents transmitted to the Court by the Magistrate. 16.
Arguments
Mr.P.R.Chhatoi, learned counsel for the petitioner submits that in view of contents of the FIR and statement of informant recorded under
Decision
The impugned order is therefore set aside. 17. As the application under Section 193 Cr.P.C. had been dismissed by the learned trial Court without considering the materials against the opposite party Nos.2 to 5 available in the case diary on the ground that such application was not maintainable, the matter is remanded to the learned trial Court for fresh consideration. 18. The CRLREV is disposed of. 19. Urgent certified copy of this order be granted on proper application. ……………………… (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 12th April 2024/Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 05-Jun-2024 19:19:31 CRLREV No.601 of 2022 Page 14 of 14