- (1.) AMAR Saran, J. Heard learned Counsel for the applicant and learned AGA. An order dated 27. 11. 2007 passed by the Judicial Magistrate, Garhmukteshwar, Ghaziabad, in Case No. 451 of 2007, summoning the applicants to face trial under Sections 302/364/201/120b, IPC, PS Babugarh, District Ghaziabad, has been challenged by means of this application.
(2.) IT has been observed in the impugned order that although the FIR based on the informant Smt. Jaitoon @ Laila's 156 (3), Cr. P. C. application under Section 364 IPC dated 21. 2. 2007 mentioned that the applicants had taken away her son Gaffar on 15. 8. 06 from her house in a Maruti car and since then her son was not traceable, the police did not charge-sheeted the applicants, but only charge-sheeted Ishtakhar and Mansar. This was supported by Smt. Jaitoon's statement under Section 161, Cr. P. C. where she stated that the accused had taken away her son for the purpose of committing his murder. Her version was also supported by the statement under Section 161, Cr. P. C. of Bhim Singh. The eye-witness Ummed Ali saw Ishtakhar and Mansar talking to Gaffar and then taking him in the direction of the fields by the side of canal culvert. Later, he learnt that Istakhar and Mansar had shot dead Gaffar and thrown his dead body into the canal. Others had also noticed the dead body floating in the canal. Hence, according to the learned Judicial Magistrate, whilst the co-accused Istikhar and Mansar were prima facie responsible for the murder of the deceased but the complicity of the three applicants was disclosed in hatching the conspiracy to commit the crime in the statements of the complainant and the other witnesses. Thereafter, the learned Magistrate observed that thus although the prima facie complicity of the applicants was revealed in the offence, for some extraneous considerations the police had not charge-sheeted them and he was, therefore, taking cognizance of the case against the applicants also under Sections 302, 364, 201 and 120-B, IPC and issuing summons for their appearance.
(3.) IT is argued by the learned Counsel for the applicants that as the charge-sheet had only been submitted by the police on 21. 10. 2007 against the co-accused Ishtikhar and Mansar, the learned Magistrate was not justified in summoning the applicants by the impugned order and the applicants could only been summoned when and if evidence was adduced in the Court under Section 319, Cr. P. C. He has placed reliance for this contention on the decision of the Apex Court in Ranjit Singh v. State of Punjab, 1998 SCC (Cri) 1554 and later in Kishori Singh and others M. State of Biharand another, (2006) 1 SCC (Cri) 275, which was based on the former case. A contrary view to the decision of the three-Judge Bench in Ranjit Singh's and Kishori Singh's cases (supra) has been taken by the two-judge decisions of the Apex Court in the cases of Kishun Singh v. State of Bihar, 1993 SCC (Cri) 470; SWIL Ltd. v. State of Delhi and another, 2001 SCC (Cri) 120, and Raghubans Dubey v. State of Bihar, (1967) 2 SCR423. However the view taken by the two Judge decisions in Kishun Singh and the other cases adopting that view has been preferred to the three Judge decision in Ranjit Singh's case by a subsequent three Judge bench, in Dharam Pal and others v. State of Haryana and another, (2006) 1 SCC (Cri) 273, and which has referred this matter to a larger Bench. Dharampal has categorically observed as follows in paragraph 3 : "3. Prima facie, we do not think that the interpretation reached in Ranjit Singh case is correct. In our view, the law was correctly enunciated in Kishun Singh case. Since the decision in Ranjit Singh case is of three-Judge Bench, we direct that the matter may be placed before the Hon'ble the Chief Justice for placing the same before a larger Bench. " I may first allude to the case of SWIL Ltd. (supra), which stood on a similar footing as the present case, as the Magistrate's power to take cognizance under Section 190 (1) (b), Cr. P. C. against certain other accused who had not been charge sheeted by the police on the basis of the FIR and other material collected by the police and other documents tendered along with the charge-sheet was upheld and it was pointed out by the Apex Court that the Magistrate takes cognizance of an offence and not the offender, and even at a later stage after taking cognizance he is empowered to decide whether process could be issued under Section 204, Cr. P. C. against other additional accused even if they are not named in the charge-sheet. After receipt of the police report under Section 173 (2), Cr. P. C. the Magistrate is entitled to take cognizance of an offence under Section 190 (1) (b) of the Code even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer after independently applying his own mind for reaching a conclusion that certain other non-chargesheeted accused, or accused in whose cases final reports have been submitted by the police are involved in the offence. At this stage there is no question of application of Section 319, Cr. P. C. for the purpose of taking cognizance against these other accused, and the High Court was not right in setting aside the cognizance order against certain non-charge sheeted accused by the Magistrate whose names were mentioned in column 2, on the ground that till that stage the evidence in Court of the witnesses had not been recorded, and that summons could only be issued for other accused after some evidence had been recorded in exercise of power a under Section 319, Cr. P. C. In paragraph 6 in SWIL the following passage from paragraph 9 in Raghubans Dubey v. State of Bihar, (1967) 2 SCR 423, was cited with approval: "in our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders realty are and once he comes to the conclusion that apart from the persons sent up by the Police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. ";