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TMI Blog1994 (7) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... erim stay was granted by this Court. In respect of bungalow No. 4, it is asserted that on its vacation by one Mr. R. K. Khanna, forcible possession thereof was taken by St. Stephens Hospital. It is alleged that after taking over the possession of the said bungalow, demolition and construction work was started on the same by the management of the Hospital. Further case as disclosed by the FIR is that the St. Stephens side started troubling the complainant and her family by cutting telephone wires and tampering with electric wires. Besides the labourers employed by them used the pathway running between bungalows Nos. 4 and 6. The labourers employed by the St. Stephens Hospital were lodged in the garage of bungalow No. 4, which is opposite the garage of the complainant and adjoins her servant quarters. The first information report further states that the women folk living in the said servant quarters were being harassed by the labourers which led to making of a written complaint by the complainant's husband to the District Judge and Police. As a result of the complaint, it was decided between the parties that the labour employed by St. Stephens' Hospital would not use the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to escape. The complainant concluded the FIR by stating that Verghese and other security men, with the common intention of getting the house and the servant quarters vacated, attacked her, they indulged in vandalism on the common pathway, obstructed the police guard from performing his duties, outraged her modesty, injured her and attacked her husband and other people with the intention to kill them. Investigating Officer Mr. P. C. Mann, S.I. on arrival at the spot allegedly found brickbats lying scattered on the site and also found the back door broken due brick batting .A case under sections 147, 148, 149, 186, 323, 427, 354, IPC was registered. 4. During investigation, the statement of Mr. J. P. Singh, Addl. District Sessions Judge was recorded by the police on August 25, 1992. He inter alias stated that every act was masterminded and executed to murder him because he had been filing complaints against the management of St. Stephens' Hospital to the police and the District Judge. The complainant's husband also stated that besides Verghese, Chief Security Officer and Amar Singh, Security guard of St. Hospital, whom he personally knew, some other security staff, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds not to indulge in such acts, but Verghese and security guards did not listen to him and Verghese stated that he was acting under orders of his Director, that they will also see him as their Director was highly influential, that at the time of the incident he wanted to operate the wireless set but it did not work and, Therefore, he went to the bungalow and telephoned the police, that thereafter he came out being followed by the complainant and the complainant's husband, that on seeing the Sessions Judge and his wife Verghese asked Amar Singh as to who the lady was, that Amar Singh told him that she was the wife of the Sessions Judge, that Verghese abused her and caught hold of her wrists, that he dragged her for 10-15 steps and also said that she was the main cause of the trouble, that on seeing the Sessions Judge, Verghese abused him and asked the security guards to strike him ( Maro Sale Ko ), that the security guards then started pelting stones at the complainant and her husband, that the complainant and her husband ran to the bungalow through the back door, that the other persons also ran to their quarters and in the meantime, additional force came on the spot, that on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation before the learned Metropolitan Magistrate praying that they should be heard in the application filed by the complainant. By his undated order, the learned Metropolitan Magistrate came to the conclusion, that the petitioners had no locus standi in the matter at that stage. Accordingly, he dismissed the application of the petitioners. Thereafter, by his order dated November 25, 1992, the learned Metropolitan Magistrate allowed the application of the complainant dated October 17, 1992 and summoned the petitioners in connection with the offences for which the other accused persons were summoned. It is this order of Metropolitan Magistrate which has led to the filing of the present application under section 482 of the Code of Criminal Procedure. 9. Two basic points have been raised before me by the learned counsel for the petitioners. Firstly, it was urged that the learned Metropolitan Magistrate was not right in summoning the petitioners as their names did not figure in the challan and he being a committing Magistrate had merely to act as a post office for the purposes of committing the accused persons to the Court of Session as offence under S. 307, IPC was exclusively tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to allude to S. 190 of the Code of Criminal Procedure, 1973. This Section sets out three alternative modes by which a Magistrate can take cognizance of an offence for the purpose of setting in action the criminal justice system to bring the accused before the court for starting action against him. The cognizance of an offence can be taken by a Magistrate in the following ways : (a) Upon receiving a complaint of facts which constitute such offence. (b) Upon a police report of such facts. (c) Upon information received from any person other than a police officer or upon his own knowledge. 13. Since S. 190 deals with cognizance of offence, the question arises as to what is the meaning of the word 'cognizance'. The matter is no longer rest integra as the same stands decided by the Supreme Court in Kishun Singh v. State of Bihar 1993 CriLJ 1700. The Supreme Court in this regard observed as follows (at page 1704 of Cri LJ) : Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons for the murder of appellant's brother, Purshu Ram Satpathy. The police filed a charge-sheet against six persons. The respondents, however, were shown in column 2 of the charge-sheet as according to the police no offence appeared to have been made out against them. The learned Magistrate, before whom the charge-sheet was filed, after going through the statements of the appellant and three other persons recorded under S. 161 of the Code of Criminal Procedure found a prima facie case under S. 302 of the Indian Penal Code against the respondents as well. Therefore, the Magistrate directed the issue of non-bailable warrants against them. Against this order of the Magistrate, the respondents filed a revision petition in the High Court of Orissa. A learned single Judge of the High Court, after detailed scrutiny of the aforesaid statements made by the appellant and others, set aside the order of the learned Magistrate issuing process against the respondents on the ground that there was no material on record to make out a prima facie case against them. Thereafter, the matter was carried in appeal to the Supreme Court. Following two questions came to be considered by the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose, [1964] 1 SCR 639 where after a full discussion of the matter it was held that at the time of taking a decision whether a process should issue against the accused or not, what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant so as to justify the issue of process and commencement of proceedings against the accused, and not whether the evidence is sufficient to warrant his conviction. 7. From the foregoing it is crystal clear that under S. 190 of the Code of Criminal Procedure the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders involved in the case might have been has to be decided by the Magistrate after taking cognizance of the offence. 8. In the instant case the Sub-Divisional Magistrate took cognizance of the offence on the police report, and after taking cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima facie grounds for issuing process against the respondents. In so doing the Magistrate did not in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Code came into force, the legal position has not undergone a change; on the contrary the ratio of Dubey's case was affirmed in Hariram Satpathy v. Tikaram Agarwala, 1978 CriLJ 1687. Thus far there is no difficulty. 19. Thus it is manifestly clear from the decisions of the apex court that a committal Magistrate is empowered to pass an order summoning persons not charge-sheeted by the police, if it is prima facie of the opinion that they are also involved in the commission of the offence. 20. Learned counsel for the petitioner relied upon the single Bench decision of the Punjab and Haryana High Court in Jaswant Singh v. The State of Punjab, 1983 RCC 571, wherein it was held that in a case which is exclusively triable by the Court of Session. The committal Magistrate has no jurisdiction to summon persons who have not been forwarded by the police to the Magistrate for committing them for trial. This view is, in conflict with the Full Bench decision of the Punjab Haryana High Court in Lal Chand v. State of Haryana, wherein, while relying upon a Division Bench judgment of the same court in Surat Singh v. State of Punjab, and decision of the Supreme Court in Hare Ram S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand learned counsel for the respondent submitted that there was ample material on the basis of which, the learned Metropolitan Magistrate was justified in summoning the petitioners. He invited my attention to the statement of Shri J. P. Singh dated August 25, 1992 in which he referred to the alleged murderous attack on him and his wife by the officials and the security guards of the St. Stephens' Hospital. In the statement he further alleged that every act was mastermind and executed to murder him because he had been filing complaints against the management of the St. Stephens' Hospital. The statement also attributed to the management of the St. Stephens' Hospital conspiracy and planning of the murderous attack on them. Learned counsel then referred to the supplementary statement of the complainant's husband dated September 20, 1992 and laid emphasis on the following portions thereof in support of his submission of complicity of petitioners in the incident dated August 24, 1992 : On 24-8-92 at about 9.30 p.m. I was studying a file when one constable came rushing to me stating that 20 to 25 private security guards and some others persons of St. Stephens&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l guards and several others whom I can recognise on seeing. The entire security staff of about 25 to 30 persons in their uniform led by above mentioned officials in civilian clothes had entered after demolishing the purdah wall between servant quarters of 4, Bouleward Road and St. Stephens' Hospital. We both were in the state of extreme shock and alarm, I have, however, mentioned in my statement under S. 161, Cr.P.C. dt. 24/25-8-92 that there were officials of the Hospital besides security guard and that attack was the result of a conspiracy and planning by the management of St. Stephens' Hospital. Now, I, state that it was a conspiracy and planning well organized by the management comprising Dr. J. Jacob (Director, St. Stephen's Hospital), Mr. S. K. Mukherjee (Retired IPS G.S. St. Stephens), P. U. Verghese (Security Officer), Mr. John Massey (Personal Officer), Mr. Amar Singh (Security Inspector), Mr. C. P. Mathew (receptionist)/official of St. Stephens' Hospital and the entire private duly uniformed security force of St. Stephens' Hospital. 24. In the statement of Dilip Singh (Constable) recorded by the police on August 25, 1992 it was alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion by the Magistrate or judge the merits and demerits of the case, unless the allegations accusations made against the accused were so absurd and inherently improbable on the face of the record that no reasonable person could ever conclude that there was ground to proceed against him. From the material on the basis of which summoning order has been issued against the petitioners 2 to 4, I do not find that the allegations against them to be ex facie absurd or inherently improbable. As regards the question of delay in naming the petitioner as architects of and participants in the crime is concerned, suffice it to say, that the Explanation put forth by the learned counsel for the respondents in explaining the delay cannot be rejected at the threshold stage. Even the question of falsity or genuineness of the allegation leveled against the petitioners cannot be gone into in these proceedings. In any event, the question whether there was no sufficient ground to proceed against the petitioners 2 to 4 can be considered by the court of Session under section 227 of the Code of Criminal Procedure on committal of the case to it. The point raised by the learned counsel for the petitioners i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents that there is no material to support the faked and cooked up story against them is taken care of (as held in Sanjay Gandhi v. Union of India, 1978 CriLJ 642 to which one of us (Jaswant Singh, J.) was a party) by Section 227 of the Code of Criminal Procedure 1973 under which it is open to the court of Session on committal of the case to it to discharge the accused if upon consideration of the record of the case and documents submitted therewith and after hearing the submissions of the parties, it considers that there is no sufficient ground for proceeding against the accused. The respondents would Therefore be at liberty to invoke the provisions of Section 227 of the Code on the case being committed to the court of Session. 28. Thus in view of the above discussion and having regard to the decision of the Supreme Court in Hare Ram's case (supra), I am not inclined to interfere with the order passed by the learned Metropolitan Magistrate, qua petitioners 2 to 4 against whom the allegation is that they were members of the unlawful assembly, even though I do not accept that part of his reasoning by virtue of which he came to the conclusion that he was empowered to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it needs to be pointed out that the learned Metropolitan Magistrate was not right in holding that he was empowered to pass the summoning order under section 319 of the Code of Criminal Procedure without recording evidence in the matter. Section 319 can be made use of only when during the course of the inquiry or trial of an offence, some evidence is recorded and from that evidence it appears that any person, not being the accused, has committed an offence for which such person could be tried together with the accused persons. The court in those circumstances may proceed against such person and summon him to appear before it in connection with the commission of an offence. Admittedly, in this case neither any evidence could be recorded by the Metropolitan Magistrate as the case is exclusively triable by the Court of Session nor as a matter of fact any evidence was recorded by him. The opinion of the learned Magistrate that the term evidence as used in Section 319 of Code of Criminal Procedure includes evidence collected during investigation and does not mean evidence recorded during the trial, is not correct, in view of the law laid down in Kishnu's case (supra), where it has b ..... 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