SAXENA, J. - (1.) THIS petition field u/s. 482 Cr. P. C. has been directed against the order dated 17. 12. 91 passed by the learned Addl. Sessions Judge, Churu, whereby he framed charges for the offences u/ss. 147, 452, 302 r/w 149 IPC against the petitioners.
(2.) BRIEFLY, the facts giving rise to this petition are that on a written report dated 27. 3. 89 submitted by the complainant Omprakash , a case was registered at police station, Sujangarh against eleven persons including the petitioners for the offences u/ss. 147, 148, 452, 302/149 IPC. However after investigation, the police submitted the challan against nine accused persons only. It was stated that as regards the petitioners, no offence was made out against them. Accordingly, they were not challenged. The learned MJM, Sujangarh committed the case to the learned Sessions Judge, Churu. On 21. 8. 89, an application was filed by the complainant under sec. 190 (3) Cr. P. C. to the effect that the names of the petitioners find mention in the FIR; that the conten of the FIR have been duly corroborated by the complainant Omprakash and injured Smt. Rekha Devi in their police statements dt. 27. 3. 89, which were recorded immediately after the occurrence and that in those statements, they have clearly stated that petitioners Smt. Roshni and Mehboobdi also accompanied the other accused persons and participated in the incident but the Investigating Officer without any rhyme or reason, did not file challan against them and, therefore, cognizance be also taken against the petitioners. The learned Sessions Judge vide his order dated 26. 9. 89 took cognizane against the petitioners for the said offences and issued bailable warrants to ensure their presence. Aggrieved by the said order, the petitioners filed S. B. Cr. Misc. Petition No. 452/89 u/s. 482 Cr. P. C in this court which was later on not pressed by them. Therefore, this court by its order dt. 4. 2. 91 dismissed the said misc. petition as not pressed observing that it would be open for the petitioners to raise all the objections before the trial court at the time of framing charge. Thereafter, the learned trial Judge after hearing the parties and perusing the challan papers by his impugned order dt. 17. 12. 91 ordered for framing charge against them for the offences u/ss. 147, 452, 302 r/w 149 IPC and in pursuance thereof, a charge was framed on 8. 1. 92. Hence this petition. I have heard learned counsel for the petitioners and the learned Public Prosecutor at length and perused the record of the lower courts in extenso. The first contention of Mr. Garg is that admittedly, no challan was filed against the petitioners and the learned Magistrate had neither taken cognizance against the petitioners nor committed the case against them; that thereafter the learned Sessions Judge without recording any evidence took cognizance against the petitioners under Sec. 319 Cr. P. C, which was ex facie illegal and without jurisdiction. In such circumstances, the learned Sessions Judge has committed an illegality in framing the charge against them. In my considered opinion, this argument is misplaced and misconceived and the same must abort in view of the law laid down by the Apex Court in Kishan Singh and Ors. vs. State of Bihar. (1), wherein it has been held that on a plain reading of Sec. 193 Cr. P. C. once a case is committed to the court of Session by a Magistrate under the Cr. P. C, the restriction placed on the powers of the court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted, thereby investing the court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence, which would include the summoning of the person or persons, whose complicity in the commission of the crime can prima facie be gathered from the material available on record. Therefore, the moment of time, the Magistrate commits the case u/s. 209 Cr. P. C to the court of Session, the bar of Sec. 193 Cr. P. C would be out of way and the Sessions court would have power to add any person for trial without there being a committal order against such person because u/s. 193, the accused are not committed but it is the case that is committed. For this, I place reliance on the principles of law enunciated in the case of Joginder Singh vs. State of Punjab Therefore, the learned Sessions Judge had the jurisdiction to take cognizance against the petitioners, if he was satisfied that a prima facie case was made out against them. The complainant had filed the application u/s. 190 (3) Cr. P. C. but the learned Sessions Judge held that the provisions of Sec. 190 (3) Gr. P. C. were not applicable and he took cognizance u/s. 319 Cr. P. C. It may be mentioned here that stricto sensu the provisions of Sec. 319 of the Code cannot be invoked and pressed into service where the trial has not commenced and no evidence has been adduced before him. In Kishan Singh's case (supra), the learned Sessions Judge had taken cognizance u/s. 319 Cr. P. C. before commencement of the trial and before any evidence was led but the Apex Court observed that since the court of Session had the power u/s. 193 Cr. P. C. to take cognizance and summoning the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case and, as such, there was no reason to interfere with the impugned order and it was well settled that once it was found that the power existed, the exercise of the power under a wrong provision would not render the order illegal or invalid. Similar are the facts of the case in hand. In the FIR, it has been clearly mentioned that at the time of the alleged incident, petitioners had also come together alongwith nine co-accused persons and entered into the house of the complainant, dragged him outside, caused injuries to him and that when Ramesh came to rescue him, the accused persons also inflicted injuries to him; that co-accused Taju Khan bolted the door of the complainant from outside and that on hearing the hue and cry, complainant's father Murlidhar (deceased) came there. It has also been clearly mentioned in the FIR that Ramesh intended to proceed to the police station; that all other accused persons rushed towards Murlidhar; that co-accused Taju Khan and Ladu Khan caught hold of the hands of Murlidhar, while co accused Smt. Niyamat Bano, Asudi and Gulshan felled him down by catching hold of his neck and co-accused Asudi pressed the neck of Murlidhar with the result that he died instantaneously. The doctor, who conducted the post mortem examination of Murlidhar aged 65 years immediately after the occurrence found external injuries on the neck and back of the deceased as also the fracture of his left cornua of hyoid bone. The doctor opined that the cause of death was due to throttling leading to asphyxia. Complainant Omprakash, who was examined immediately after the occurrence, in his police statement dt. 27. 3. 89, has specifically stated that the petitioners had come alongwith all other accused persons; that they had also rushed towards Murlidhar alongwith other accused persons and were present when the injuries were inflicted to him resulting in his death. Smt. Rekha Devi, who is alleged to have witnessed the occurrence and who also received injuries, has also stated likewise in her police statement and clearly stated that the petitioners had come alongwith co-accused persons and were present when Murlidhar was dealt with. However, Rakesh Chand, the tenant of the complainant and Ramesh Kumar aged 11 years, the son of the complainant, have not named the petitioners. Therefore, from the statements of Omprakash and Rekha Devi as also the contents of the FIR, a prima facie case was made out against the petitioners for the offences u/ss. 147, 452, 302 r/w 149 IPC. Besides, this court by its order dt. 4. 2. 91 had dismissed the petition filed by the petitioners under Sec. 482, Cr. P. C. challenging the learned Sessions Judge's order dt. 26. 9. 89 taking cognizance against them. In such circumstances, the trial Judge's order dt. 26. 9. 89 cannot be held ex facie illegal or without jurisdiction. The second limb of the argument of Mr. Garg is that in the FIR, which was lodged by complainant and injured Omprakash, the names of those girls, who caught hold of the neck of Murlidhar and felled him down, were not mentioned nor it was mentioned therein that his neck was pressed by Asudi but later-on, theory of strangulation was developed after seeing the post mortem report and the names of three girls, who allegedly caught hold the neck of Murlidhar and the name of Asudi, who pressed the neck, were disclosed by the complainant in the police statement. According to him, no overt act of the petitioners has been assigned either in the FIR or in the police statements of Omprakash and Smt. Rekha. Their police statements have also not been corroborated by other eye witnesses namely Ramesh and Rakesh and that is why, the I. O. did not file any challan against the petitioners. Therefore, according to Mr. Garg, there is no material, from which it can be believed that the petitioners were members of the unlawful assembly, whose common object was to commit the murder of Murlidhar. He has further contended that there is inadequate and insufficient evidence against the petitioners and even no prima facie case is made out against them, hence the trial Judge has committed an illegality in framing the charge against them, which tantamounts to abuse of the process of the court and that to secure the ends of justice, the impugned order as well as the charge framed against them be quashed. Mr. K. L. Thakur, P. P. as well as Mr. Bhagwati Prasad, the learned counsel appearing for the complainant have vigorously asserted that at the stage of framing charge, the Sessions Judge has merely to sift the evidence to find out whether or not, there is sufficient ground for proceeding against the accused; that the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the petitioners so as to frame charge against them.
(3.) I have given my thoughtful consideration to these rival submissions. In Supdt. & Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja and others (3), the Apex Court has held that at the stage of framing charge, the prosecution evidence does not commence and the magistrate/sessions Judge has therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the I. O. It has further been held that standard test, proof and judgment, which is to be applied finally before finding the accused guilty or otherwise is not exactly the same which is to be applied at the stage of charging the accused or framing charge against him. The Apex Court has further held that at this stage, even a very strong suspicion founded upon materials placed before the court which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence. In State of Bihar vs. Ramesh Singh (4), it has been observed that at the beginning and the initial stage of the trial, the truth, veracity and effect of the evidence, which the prosecutor proposes to adduce, are not to be meticulously judged, nor any weight is to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment, which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 and S. 228 of the Code. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. In Radhey Shyam vs. Kunj Behari (5), the Apex Court has reiterated that meticulous consideration of evidence and materials at the stage of framing charge is not at all required and that if after consideration of the material collected by the I. O. and the documents submitted therewith and after hearing the submissions of the accused and the prosecution if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, he shall frame the charge. It is true that the learned trial Judge has to apply his judicial mind and to find out as to whether a prima facie case is made out against the accused or not before framing of charge and he should not mechanically accept the findings of the investigation but for ascertaining the adequacy of the evidence, he is not to find out as to whether such an evidence will be sufficient to convict the accused person or not. ;