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TMI Blog1990 (8) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... of investigation police framed charges under s. 147, 323, 325, 336 and 427 I.P.C. and the charge sheet was forwarded to the Judicial Magistrate No. 2 Bikaner under s. 173 Cr. P.C. After taking cognizance and after hearing the arguments, the Judicial Magistrate, Bikaner by his order dated 3.10.1980 in Criminal Case No. 165 of 1980 had been pleased to discharge the appellants Nos. 4 and 5, namely, Bijya Bai and Jiya Bai of all the charges levelled against them. Appellants Nos. 1, 2 and 3, namely, Sohan Lal, Padam Chand and Vishnu were ordered to be charged only under s. 427 I.P.C. on the basis of site inspection and injury report: On 25.2.82 the Assistant Public Prosecutor submitted an application to the Magistrate under s. 216 Cr. P.C. signed by Durga Bai stating: The accused have been charged under s. 427 I.P.C., whereas from the entire evidence and the medical evidence prima facie case under various sections i.e. 147, 325 and 336 I.P.C. is made out. Hence it is prayed that accused be charged in accordance with the evidence and the charge be amended in the light of the evidence. After recording the plea of the accused persons, prosecution led evidence and examined P.W. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizance of the offences on the basis of evidence recorded by him though for the same offences order of discharge was passed by him earlier. Mr. B.D. Sharma, the learned counsel for the appellants, firstly, submits that the learned Magistrate while deciding the application dated 25.2.82 submitted by the A.P.P. under s. 216 Cr. P.C. committed error of jurisdiction in passing an order far beyond what was prayed in the application and could not have revised his own order of discharging the appellants. Secondly, s. 319 Cr. P.C. was applicable only to a person not being the accused and the appellants having been accused but discharged could not have been charged as was done in this case. Counsel submits that the High Court having failed to notice this fact if this order is allowed to stand it will cause grave miscarriage of justice to the appellants. The learned counsel for the State supports the impugned order submitting that the learned Magistrate found enough materials for taking cognizance and framing charges against the appellants after examining P. Ws. 1 to 4 and accordingly framed charges under sections 147, 323, 325 and 336 against them and summoned the appellants through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rame charges against the appellants Vijya Bai and Jiya Bai. In his order the learned Magistrate did not say that he has proceeding suo motu against Vijya Bai and Jiya Bai though he said that s. 319 Cr. P.C. was also clear in this connection. As regards the other three appellants, namely, Sohan Lal, Padam Chand and Vishnu they were already accused in the case. Section 2 16 Cr. P.C. envisages the accused and the additions to and alterations of charge may be done at any time before Judgment is pronounced. The learned Magistrate on the basis of the evidence on record was satisfied that charges ought also to be framed under the other sections with which they were charged in the charge sheet. That was also the prayer in the A.P.P. s application. However the learned Magistrate invoked his jurisdiction under s. 3 19 Cr. P.C. which says: 3 19. Power to proceed against other persons appearing to be guilty of offence---- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a punishable offence laid before a Court or Magistrate having jurisdiction to inquire into the alleged crime. In this sense accusation may be said to be equivalent of information at common law which is mere allegation of prosecuting officer by whom it is preferred. In the Code of Criminal Procedure 1973, hereinafter called the Code, the expression the accused has been used in a narrower sense. Chapter XII of the Code deals with information to the police and their power to investigate. Section 154 deals with information in cognizable cases and section 155 with information as to non-cognizable cases and investigation of such cases. Section 167, dealing with procedure when investigation cannot be completed in 24 hours, says: (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours fixed by section 57, and there are grounds for believing that the accusation or information is well rounded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) some other Magistrate having jurisdiction. Under sub-section (2), no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. Thereafter the expression the accused has been used in subsequent sections. Thus one is referred to as the accused even before issue of process. Section 273 provides for evidence to be taken in presence of the accused in the course of trial or other proceedings. The explanation to the section says that accused includes a person in relation to whom any proceeding under Chapter VIII (Security for keeping the peace and Good Behavior) has been commenced under this Code. In Chandra Deo Singh v. Prokash Chandra Bose Anr., [1964] 1 SCR 639, during the pendency of the first complaint on which the Magistrate directed an inquiry, the nephew of the deceased filed a complaint alleging that the respondent No. 1 had committed the murder. The Sub-Divisional Magistrate directed the First Class Magistrate to inquire into that complaint and also to report. During the inquiry, apart from the witness produced by the complainant respondent No. 1 was allowed to be represented by a counsel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and the Sessions Judge directed the appellants to stand trial together with other accused. Their revision application in the High Court was dismissed. In their appeal in this Court it was inter alia submitted that Section 3 19 Cr. P.C. was inapplicable to the facts of this case because the phrase any person not being the accused occurring in the section excluded from its operation an accused who had been released by the police. This Court rejected the contention holding that the said expression clearly covered by person who has not been tried already by the Court and the very purpose of enacting such a provision like section 3 19 clearly showed that even a person who had been dropped by the police during investigation but against him evidence showing his involvement in the offence came before the criminal court were included in the said expression. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi Ors., [ 1983] 1 SCR 884, under the Food Adulteration Act, the respondent No. 1 was Manager of the company and the respondent No. 2 to 5 were the directors of the company including the company. The High Court quashed the proceedings against the directors as also against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83 2 SCR 724 this Court had to consider whether a person against whom a complaint was filed along with some other persons and who after an enquiry under s. 202 of the Code was not proceeded against by the Court, could be summoned at a later stage under s. 3 19 of the latter Code to stand trial for the same or a connected offence or offences along with the other persons against whom process had been issued earlier by the Court. It was held that having regard to the nature of the proceedings under s. 202 of the Cr. P.C. it may be difficult to hold that there is a legal bar based on the principle of issue estoppel to proceed under s. 3 19 against a person complained against on the same material, if the Court has dismissed a complaint under s. 203. But the Court did not express any final opinion on the question. In that case, however, the Magistrate decided to take action under s. 3 19 of the Code on the basis of fresh evidence which was brought on record in the course of proceedings that took place after the enquiry contemplated under s. 202 of the Code was over. It was further held that even when an order of the Magistrate declining to issue process under s. 202 was confirmed by a hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under s. 203 or sub-section (4) of s. 204, or into the case of any person accused of an offence who has been discharged. Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. Thus this provision empowers, the Courts to direct further inquiry into any complaint which has been dismissed under s. 203 or sub-section (4) of s. 204 or in the case of any person accused of the offence who has been discharged and no such order shall be made unless such person has had an opportunity of showing cause why such direction should not be made. The question therefore is whether the necessity of making a further inquiry as envisaged in s. 398 could be obviated or circumvented by taking resort to s. 319. As has already been held by this Court, there is need for caution in resorting to s. 3 19. Once a person was an accused in the case he would be out of reach of this section. The word discharge in s. 398 means discharge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the Magistrate which was not permissible having regard to section 369 of the Code of Criminal Procedure. Section 369 provided that no Court when it had signed its Judgment, shall alter or review the same, except to correct clerical errors. The High Court in the instant case followed the decision in Saraswatiben v. Thakurlal Hitnatlal Anr., reported in AIR 1967 Gujarat 263, holding that if at one stage on the evidence before him the Magistrate found that there was no prima facie case against the accused, subsequently on enquiry as a result of further evidence if he felt that there was prima facie case against the accused whom he had discharged under section 251-A (2) Cr. P.C., it was open to him to frame a charge against the accused and that it was not necessary to take cognizance again and the Magistrate did not become functus officio. The same view was taken in Amarjit Singh @ Amba v. The State of Punjab, reported in Punjab Law Reporter Vol. 85 (1983) p. 324. The above views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of s. 319 had to be read in consonance with the provisions of s. 398 of the Code. Once a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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