KHAN, J. - (1.) HEARD. In this case a police report under Sec. 173 Cr. P. C. was submitted on 26. 6. 97 for offences under Secs. 420, 326,328,308,201 r. w. Sec. 120-B IPC. In the police report Dr. Suresh Gupta, the present applicant, Dr. Arun Fofalya, Dr. Basant Fadiya, Dr. Santosh @ Sanni were mentioned as accused persons being charge-sheeted. Although four other persons namely Seenu, Jeevan Dada, Dr. Arun Sharma and Naveen Gulathi, were also mentioned as accused but in respect of them the police informed the Court u/s. 173 (8) Cr. P. C. that further evidence as and when collected against them would be submitted in the Court,. While Dr. Suresh Gupta, Dr. Arun Fofalya, Dr. Basant Fadiya and Dr. Navin Gulathi were reported to be on bail, the last-mentioned four persons were neither reported to have ever been arrested in the course of investigation nor were they shown as abscondors.
(2.) THE Magistrate took cognizance of offences under Secs. 420, 326, 328,308 and 201 r. w. 120-B IPC. All the four persons including the present applicant, who were on bail, put in their appearance before the learned Magistrate. THE learned Magistrate duly delivered documents u/s. 173 Cr. P. C. to them as per provision contained in Sec. 207 Cr. P. C. and listed the case for hearing the parties for charges over-looking the fact that the offences under Sec. 328 and 308 IPC, of which he had already taken cognizance, were exclusively triable by court of Sessions. During the pendency of the proceedings before the Magistrate two of the accused namely Dr. Basant Fadiya and Dr. Santosh @ Sanni absconded. The case is being adjourned for procuring their attendance. They have not yet put in appear-ance despite issuance of warrant of arrest and initiation of proceedings under Sec. 446 Cr. P. C. against them. The learned counsel for the applicant has urged that almost more than two years have passed since the learned Magistrate had taken cognizance of offences in his case but the case has yet not been committed to the Court of Sess-ions, and the present applicant and Dr. Arun Fofalya have been continuously attending the court of the Magistrate with no progress in the case. It was further submitted that the four co-accused, against whom further evidence was to be collected have also not yet been arrested by the police nor summoned as accused by the court. The learned counsel suggested that either the case of the present app-licant and Dr. Arun Fofalya be dropped or their case be separated from those who are at large and further proceedings according to law be taken in the case. I have considered rival submissions as made before me. The learned Magistrate appears to have erred in law in not adopting the procedure laid-down under Sec. 209 Cr. P. C. Once the learned Magistrate had complied with the provisi-ons contained in Sec. 207 Cr. P. C. and the police report disclosed commission of offences, inter-alia, exclusively triable by court of Sessions, he was required to follow the procedure laid-down in Sec. 209 Cr. P. C. He was to commit the case, as it was, to the Court of Sessions. Since he failed to do that the procedure adopted by him was not in accordance with the provisions of law. In so far as the question of summoning the absconding accused is concerned it may be observed that after the coming into force of the amended provisions relating to enquiries into offences exclusively triable by court of Sessions the Magistrate has no longer to do much except complying with the provisions u/s. 209 Cr. P. C. He can, in such cases, neither summon a persons as additional accused nor discharge any of the persons charge-sheeted as an accused in the case, if prima-facie, incriminating evidence is disclosed against him in the police report and the documents submitted therewith. Necessary orders in that behalf, if required, are to be made by the Sessions Judge, as per provision contained in Sec. 193/319 Cr. P. C. , as may be applicable to a given case.
(3.) IN the instant case the learned Sessions Judge, in-case the present case is committed to him is competent to issue process against such accused persons who have absconded in the course of enquiry before the Magistrate or may summon such other person or persons as additional accused in the case, as were not initially charge-sheeted by the police but who is/are, prima facie found concer-ned in the commission of the offences in that case. Neither the absconding of some of the accused in the course of enquiry before the Magistrate nor collection of further evidence by the police u/s. 173 (8) against some others prohibits the Sessions Judge or limits or, impairs his power in any manner in taking necessary steps to cause his/their appearance before him or in declaring the absconding ac-cused as abscondors and make an order u/s. 299 Cr. P. C. against him/them. Further, he may cause the appearance of such other persons also against whom further evidence was reported to be collected by the police u/s. 173 (8) Cr. P. C. provided that the police report and the material submitted therewith prima-facie, show complicity of such other persons in the offences, alleged to have been committed in the case. It has generally been experienced by this Court that the right to collect further evidence in the case as per provisions contained in Sub-Sec. (8) of Sec. 173 Cr. P. C. is not being exercised in a proper manner in conformity with the true spirit and purpose behind that newly incorporated in provisions. Either the additional evidence, if at all collected against such persons whose names are not shown as accused in the appropriate column of the police report though their names are specifically mentioned in the body of the police report as persons concerned with the commission of the offence in that case, is never produced and such persons go scot-free or is produced at the fag end of the trial of the accused, who had been arrayed as accused in the case and put up on trial, causing avoidable delay in the disposal of the case or necessitating a fresh or separate trial. Not only that such a practice keeps a sword of Democles hanging on the head of such accused persons and more often than not such persons are not at all charge-sheeted but also that it tends to jeopardize the very system of administration of criminal justice and ultimately causes erosion in the very faith of the people in such system. The sooner such a practice be given up or nipped in the bud is the better for the keeping of the faith of the people in the system intact. Therefore, Courts concerned should not hesitate in taking appropriate action against the delinquent persons in authority, deliberately causing such a situation and should pass appropriate order accordingly to law. To sum-up, this petition lacks merits and is accordingly dismissed with a direction to the Magistrate/sessions Judge to proceed with the case in the light of the observations made herein above and according to law. The Magistrate shall report the progress of the case to this Court by 31. 12. 1998 positively. . ;