Kulwinder Singh & Ors. v. State of Punjab & Ors.

Mr. Vikas Gupta, Advocate, for respondent No.2. NARESH KUMAR SANGHI, J. **** FIR No.35 dated 10.03.2010, under Sections 363, 366, 376, 342, 420, 493, 506, 120-B of the Indian Penal Code, was registered at Police Station, Goindwal Sahib, District Tarn Taran, at the instance of one Amandeep Kaur. After thorough investigation, the final report under Section 173, Cr.P.C. recommending the cancellation of the FIR was presented before the learned Addl. Sessions Judge, Tarn Taran, on 12.03.2012 and the said Court passed the following order: “Present: ASI Hardev Singh The complainant – Amandeep Kaur with Sh. Gurmeet Singh, Advocate. CRM No.M-19872 of 2012 (O&M) -2- This cancellation report has been submitted today by ASI Hardev Singh. The statement of the complainant Amandeep Kaur, who is present with Sh. Gurmeet Singh Advocate, recorded as per which, she has stated that she had given the statement under Section 164 Cr.P.C. before Magistrate and the case was registered against the accused and now the police is submitting the cancellation report wrongly. I have heard both the parties. This Court is of the view that further investigation of the case from some Higher Police Officer is necessary in this case. So, with these observations, this cancellation report is returned to ASI Hardev Singh. Ahlmad of this Court is directed to hand over the file to said ASI Hardev Singh against receipt. Pronounced 12.03.2012 Sd/- G.C.Garg Addl. Sessions Judge, Tarn Taran” The petitioners, who have been nominated as accused in the FIR, have challenged the order passed by learned Addl. Sessions Judge, Tarn Taran, on the ground that the said Court had no jurisdiction to entertain the cancellation report (report under Section 173 Cr.P.C.) and pass the impugned order dated

12.03.2012 (Annexure P-10). Learned counsel for the State has fairly conceded that the final report, under Section 173 Cr.P.C., was wrongly presented before the learned Addl. Sessions Judge, rather the same should have been presented before the learned Area CRM No.M-19872 of 2012 (O&M) -3- Judicial Magistrate at Tarn Taran. Heard. Before discussing the argument raised by learned counsel for the petitioners, it is essential to have a glance on Sections 209 and 226, Cr.P.C., which are reproduced below: “Section 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, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (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. Section 226. Opening case for prosecution- When the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused CRM No.M-19872 of 2012 (O&M) -4- and stating by what evidence he proposes to prove the guilt of the accused.” A Perusal of the above provisions clearly reveals that when a case is instituted on police report and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session and notify the Public Prosecutor of the commitment of the case. These provisions further reveal that when accused appears or brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused. Before adjudication of the present controversy, it is also advantageous to peruse sub sections (1) and (2) of Section 173, Cr.P.C. which are reproduced below: “Section 173. Report of police officer on completion of investigation – (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating - (a) the name of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; CRM No.M-19872 of 2012 (O&M) -5- (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.” Perusal of Section 173, Cr.P.C., reproduced above, reveals that every investigation shall be completed without unnecessary delay and as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the form prescribed by the State Government. A conjoint reading of Sections 173, 209 and 226, Cr.P.C. clearly reveals that the Court of Addl. Sessions Judge, Tarn Taran, was not competent to take cognizance of the report under Section 173, Cr.P.C. presented straightaway before it. In this regard, a reference can be made to the judgments of Hon'ble the Supreme Court in Gangula Ashok vs. State of A.P., 2000(1) RCR (Criminal) 797, and Vidyadharan vs. State of Kerala, 2004(1) RCR (Criminal) 28, wherein the Hon'ble Supreme Court had held that the Court of Session can take cognizance of an offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code CRM No.M-19872 of 2012 (O&M) -6- of Criminal Procedure. In view of the unambiguous statutory provisions, reproduced above, and the ratio of the judgments in Gangula Ashok and Vidyadharan's cases, the order dated 12.03.2012 (Annexure P-10) passed by learned Addl. Sessions Judge is without jurisdiction and the same is hereby set aside. The investigating agency may present the report under Section 173, Cr.P.C. before the learned Area Judicial Magistrate for further orders, in accordance with law. The present petition is disposed of accordingly. December 13, 2012 (NARESH KUMAR SANGHI) JUDGE