Virendra Saran - (1.) MAHABIR Singh, Bhanwar Singh, Onkari and Pooran have filed this application under Section 482, Cr. P.C. with the prayer that the order dated 6.12.1990 committing them to the Court of Sessions in connection with the Crime No. 95 of 1989 under Section 302/120B, I.P.C. of P. S. Iradat Nagar, District Agra be quashed. It has been further prayed that the proceedings of Sessions Trial No. 338 of 1990, State v. MAHABIR Singh and others, under Section 302/120B, I.P.C, pending in the Court of VII Additional Sessions Judge. Agra which are based on the said commitment order, be also quashed.
(2.) THE prosecution case as disclosed in the F.I.R. is that there was enmity between Chandra Bhan and Mahabir over some dispute of land on 6.11.1989 a Panchayat was going to be held to resolve the dispute and in that connection first informant Amar Kant Tyagi and his brother Jagdish Kant and Ashok were going to join the Panchayat. While they were proceeding towards the venue of the Panchayat they were stopped by Bishambhar Singh near his house to have a talk. Sri Niwas and Mohan also arrived there and were having a talk amongst themselves. In the meantime at about 8 a.m. accused Ghoore, Chhitariya armed with rifles and masta armed with a gun appeared on the roof of applicant Onkari. On the exhortation of Masta, accused fired. THE shot fired by Chhitariya hit Ashok and the shot fired by Bhoore hit Jagdish. THE injured were rushed to hospital in a precarious condition. Later on both Ashok and Jagdish Kant succumbed to their injuries. An F.I.R. was lodged by Amar Kant Tyagi at P. S. Iradat Nagar and a case under Section 307, I.P.C. was registered as Crime No. 95 of 1989. On the death of Ashok and Jagdish Kant the case was converted to one under Section 302, I.P.C. After investigation a charge-sheet was submitted by the police against Ghoorey, Masta and Chhitariya who were committed to the Court of Sessions on 8.4.1990 by the learned Magistrate and the said accused were directed to appear in the Court of Sessions on 20.4.1990. It give rise to S. T. No. 92 of 1990. Initially the applicants were not named as accused in the F.I.R. which simply mentioned that firing was resorted to from the roof of applicant Onkari. Subsequently the police filed another charge-sheet against the applicants under Sections 302, 120B, I.P.C. and on 15.10.1990, the case was registered as Case No. 1624 of 1990 in respect of the applicants. On 6.12.1990 the learned Magistrate passed an order committing the applicants to the Court of Sessions giving rise to S. T. No. 338 of 1990. The present application has been filed by the applicants for quashing of the committal order dated 6.12.1990 and the proceedings of the Sessions Trial arising out of the same. I have heard Sri Daya Shanker Misra, learned counsel for the applicants at length and the learned State Counsel.
(3.) THE learned counsel for the applicants has submitted that under the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) the case and not the accused is committed to the Court of Sessions. THE learned counsel for the applicant has submitted that the case was committed to the Court of Sessions on 8.4.1990 by the learned Magistrate and gave rise to S. T. No. 92 of 1990 in which Ghoore, Masta and Chhitariya are facing trial. THEre was subsequent order of commitment dated 6.12.1990 giving rise to S. T. No. 338 of 1990 In which the applicants are facing trial, is without jurisdiction. THE learned counsel for the applicants has relied on the case of Joginder Singh and another v. State of Punjab and another, AIR 1979 SC 339. In the above case the Supreme Court has drawn a distinction between the provisions of Section 207A of the Code of Criminal Procedure, 1898 and the provisions of Section 209 of the present Code. In the case of Joginder Singh (supra) the Supreme Court was interpreting the words "any person not being the accused" occurring in Section 319, Cr. P.C. While interpreting the provisions of Section 319, Cr. P.C, the Supreme Court was interpreting the words "any person not being the accused" occurring in Section 319, Cr. P.C. While interpreting the provisions of Section 319, Cr. P.C, the Supreme Court observed :- "It will be noticed that both under Section 193 and Section 209 the commitment is of 'the case' and not of 'the accused' whereas under the equivalent provision of the old Code viz. Section 193 (1) and Section 207-A it was 'the accused' who was committed and not 'the case'. It is true that there cannot be a committal of the case without there being an accused person before the Court, but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court but once the case in respect of the offence qua these accused who are before the Court is committed then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be put of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial alongwith those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it : otherwise the conferral of the power under Section 319 (1) upon the Sessions Court would be rendered nugatory. Further Section 319 (4) (b) enacts a deeming provision in that behalf dispensing with the formal committal order against the newly added accused. Under that provision it is provided that where the Court proceeds against any person under sub-section (1) then the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced, in other words, such person must be deemed to be an accused at the time of commitment because it is at that point of time the Sessions Court in law takes cognizance of the offence." In Para No. 8, the Supreme Court further observed :- "It will thus appear clear that under Section 193 read with Section 209 of the Code when a case is committed to the Court of Session in respect of an offence the Court of Session takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under Section 319 (1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. Looking at the provision from this angle there would be no question of reading Section 319 (1) subject or subordinate to Section 193." The Supreme Court held that the expression "any person not being the accused" clearly covers any person who is not being tried already by the Court and even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court are included in the said expression. The argument of the learned counsel for the applicants is that once the case has been committed to the Court ' of Sessions on 8.4.1990, no fresh committal order can be passed in respect of the same offence and hence the order committing the applicants to the Court of Sessions, dated 6.12.1990 is liable to be quashed.;