Jile Singh vs State Of U.P.& Anr

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011

JILE SINGH Appellant(s)

VERSUS

STATE OF U.P.& ANR Respondent(s)

O R D E R

R.M. LODHA, J.

Leave granted.

2. A certain Bharat Lal Sharma was done to death

on October 26, 2008. His father (respondent No. 2 herein)

informed the Police Station Kosikalan on the next day,

i.e., October 27, 2008 at 8 a.m. that he received an

information in the morning at about 7 a.m. that his son

Bharat Lal Sharma had been murdered and his dead body was

lying in the agricultural field of Ghure son of Gaisi,

'Jat' resident of Tumaura. On receipt of this information,

he (respondent No. 2 herein ) went to the spot and found

that the body of his son was lying in blood. His son was

killed with some sharp edged weapon the previous night. He

requested the police to register First Information Report

CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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(FIR) against unknown accused persons and take appropriate

action in the matter. On this information, an FIR was

registered and investigation commenced. On conclusion of

the investigation, the Investigating Officer submitted

charge-sheet naming one Hari Singh as an accused having

committed the murder of Bharat Lal Sharma. On the basis of

the material collected by the Investigating Officer, no

case was found out against the present appellant-Jile Singh

and the Investigating Officer concluded that the appellant

has been falsely named in the course of investigation.

3. On May 2, 2009, the Chief Judicial

Magistrate, Mathura, committed the accused-Hari Singh to

the Court of Sessions Judge, Mathura for trial. It was

then that the complainant-respondent No. 2 herein filed a

private complaint under Section 200 of the Code of Criminal

Procedure, 1973 (for short, 'the Code') in the court of

Judicial Magistrate, Mathura, against the present appellant

and one Jayveer Singh for the murder of his son Bharat Lal

Sharma.

4. The Chief Judicial Magistrate, Mathura, after

recording the statements under Section 202 of the Code,

issued summons to the appellant on January 3, 2011.

Aggrieved by that order, the appellant filed Criminal

Revision before the Allahabad High Court which came to be

CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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dismissed on March 10, 2011. It is from this order that the

present Appeal, by special leave, has arisen.

5. Mr. Manoj Saxena, learned counsel for the

appellant, submitted that the issuance of summons by the

Chief Judicial Magistrate, Mathura, on a private complaint

made by the respondent No. 2 after committal of accused-

Hari Singh for the murder of Bharat Lal Sharma to the

Sessions Court, was without jurisdiction. He would submit

that addition of a new person to the array of the accused

in a case pending before the sessions court can only be

done by that court in exercise of the power under Section

319 of the Code and in no other way. In this regard, he

relied upon decisions of this Court in the cases of Ranjit

Singh Vs. State of Punjab1 and Kishori Singh and Ors.

Vs. State of Bihar and Anr.2

6. Mr. Ratnakar Dash, learned senior counsel for

the respondent No. 1-State of Uttar Pradesh, and Mr. Vikram

Patralekh, learned counsel for respondent No. 2-

complainant, stoutly defended the impugned order. They

submitted that the complaint filed by the complainant

before the Magistrate was maintainable under Section 200 of

the Code since the Investigating Officer on conclusion of

the investigation did not name the appellant as accused

1 (1998) 7 SCC 149

2 (2004) 13 SCC 11

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although there was material to that effect in the course of

investigation. The learned senior counsel and the learned

counsel for the respondents submitted that if on receipt of

a report, the police takes up the investigation of a case

and on completion thereof submits a charge-sheet against

few persons and leaves the other persons involved in the

crime by stating in the report that no case has been made

out against such person, it is open to the aggrieved

complainant to file a complaint under Section 200 of the

Code and the Magistrate is empowered to issue summons. In

this regard, they relied upon a decision of this Court in

Hareram Satpathy Vs. Tikaram Agarwala & Ors.3

Mr. Ratnakat Dash, learned senior counsel for the

respondent No. 1, also referred to another decision of this

Court in Kishan Lal Vs. Dharmendra Bafna & Anr.4 and

submitted that if a right has been given to the complainant

to be given notice of filing of the police report and to

file protest petition, there is no impediment in the law

for maintaining a complaint if persons involved in the

crime have been left over by the police in the course of

the investigation.

7. The present case, in our view, is squarely

covered by the law laid down by this Court in the case of

3 1978 (4) SCC 58

4 2009 (7) SCC 685

CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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Ranjit Singh (supra) and the subsequent decision in the

case of Kishori Singh (supra) reiterating the same legal

position. In Ranjit Singh (supra), this Court was concerned

with the issue whether the sessions court can add a new

person to the array of the accused in a case pending before

it at a stage prior to collecting any evidence. The three

Judge Bench that considered the above issue referred to

various provisions of the Code, namely, Sections 204, 207,

208, 209, 225, 226, 227, 228, 229, 230 and 319 and held as

under :

"19. So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 of the Code, that court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused.

20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."

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8. The above legal position has been reiterated

by this Court in a subsequent decision in the case of

Kishori Singh (supra). The two Judge Bench in Kishori Singh

(supra) considered some of the provisions of the Code and

earlier decision of this Court in Ranjit Singh (supra) and

two other decisions, namely, Raj Kishore Prasad Vs. State

of Bihar 5

and India Carat (P) Ltd. Vs. State of

Karnataka6, and held as under :-

"9. After going through the provisions of the Code of the Criminal Procedure and the aforesaid two judgments and on examining the order dated 10-6-1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused persons, but not charge-sheeted in the charge-sheet that was filed by the police under Section 173 CrPC.

10. So far as those persons against whom charge- sheet has not been filed, they can be arrayed as "accused persons" in exercise of powers under Section 319 CrPC when some evidence or materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet, as has been explained in the latter three-Judge Bench decision. Neither of the contingencies has arisen in the case in hand."

5 (1996) 4 SCC 495

6 (1989) 2 SCC 132

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9. In the present case, if the order passed by

the Chief Judicial Magistrate, Mathura, in issuing summons

against the appellant on the complaint filed by the

respondent No. 2-complainant, which has been confirmed by

the High Court, is allowed to stand, it would mean addition

of the appellant to the array of the accused in a pending

case before the Sessions Judge at a stage prior to

collecting any evidence by that court. This course is

absolutely impermissible in view of the law laid down by a

three Judge Bench of this court in the case of Ranjit Singh

(supra). The stage of Section 209 of the Code having

reached in the case, it was not open to the Chief Judicial

Magistrate, Mathura to exercise the power under Section

204(1)(b) of the Code and issue summons to the appellant.

The order of the Chief Judicial Magistrate, Mathura is

totally without jurisdiction. The High Court was clearly

in error in not keeping in view the law laid by this Court

in the case of Ranjit Singh (supra) followed by a

subsequent decision in the case of Kishori Singh (supra)

and in upholding the illegal order of the Chief Judicial

Magistrate, Mathura.

10. The two decisions, namely, Hareram Satpathy

(supra)and Kishan Lal (supra) relied upon by the learned

CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011)

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senior counsel and counsel for the respondents have no

application at all to the case in hand.

11. We, accordingly, allow this Appeal and set aside the

order of the High Court dated March 10, 2011 impugned in

this present Appeal and the order of the Chief Judicial

Magistrate, Mathura, dated January 3, 2011.

12. Needless to say that in the course of trial, on the

basis of the evidence if it appears to the Sessions Judge

that any person not being the accused in the trial has

committed the offence and the case is made out for exercise

of power under Section 319 of the Code for proceeding

against such person, it will be open to the Sessions Judge

to proceed accordingly and the present order will not come

in the way in exercise of his power under Section 319 of

the Code.

........................J. (R.M. LODHA)

NEW DELHI; ........................J. JANUARY 12, 2012 (H.L. GOKHALE)