M. C. JAIN, J. - (1.) THIS is an application under sec. 482, Cr. P. C. , by Harji Ram, Bhanwarsingh, Mansharam and Kirtaram against the order of the learned Sessions Judge, Churu, dated 5-10-1978 whereby process was ordered to be issued against the applicants in the case committed by the Chief Judicial Magistrate, Churu, for trial to the court of Sessions.
(2.) IN order to appreciate the controversy in the present application, it would be proper to take notice of some material facts. The prosecution case is, that there was enmity between the complainant party and the accused party in connection with the land dispute. The complainant Bhinwaram along with his brother's wife Gaura and two sons Jetharam and Jagguram were living in their ; field and for some time past his brother Gyanaram, Gumanaram and Gyana-ram's wife Mst. Shanti were also living there. It is said that the accused persons armed with weapons, entered into the field of the complainant on the night interwening 16-6-78 and 17-6-78 and assaulted Gumanaram, Gyanaram, Gaura, Mst. Shanti and Jetharam. Gumanaram received 21 injuries out of which two were grievous with sharp adged weapon; Gyanaram had 14 injuries, Mst. Gaura 22, Mst. Shanti 8 and Jetharam 14. These injuries were caused with blunt objects. A report of the occurrance was lodged at the police station, Sandwa, District Churu at 5. 00, a. m. , on 17-6-78 by one Bhinwaram Meghwal as a result of which F. I. R. No. 24 was registered for the commission of offences under secs. 147, 148, 149, 447, 325, 323 and 379 I. P. C. The police after completion of the investigation presented a charge-sheet against twelve accused persons for the offences under secs. 307, 326, 147, 148 and 149, I. P. C. The Chief Judicial Magistrate then committed the case to the Court of Sessions for trial vide his order dated 16-8-78. On 7-9-78 the Public Prosecutor presented an application that six more persons, the applicants and Harchandram son of Gumanaram and Rameshwar son of Kesuram, Meghwals, are involved in the commission of the offences, so after taking cognizance against them process may be issued. The learned Sessions Judge, after hearing the Public Prosecutor, the counsel for the complainant and the counsel for the accused persons, partly allowed the application and issued process against the applicants and the application was rejected in respect of Harchandram and Rameshwar as their names were not mentioned by any of the witnesses in their statements before the police. The learned Sessions Judge relying on the authority of this Court Ajayab Singh vs. State of Rajasthan (1) took cognizance against the applicants after looking into the statements of Gumanaram, Gyanaram and Jugla recorded by the police under sec. 161, Cr. P. C. Aggrieved against this order of the learned Sessions Judge, this application has been filed. I have heard the learned counsel for the applicants and the learned Public Prosecutor for the State. The learned counsel for the applicants submitted that no cognizance could be taken by the learned Sessions Judge against the applicants as the applicants were not committed to the court of Sessions. He submitted that Ajayab Singh's case (supra) of this Court needs further consideration in view of the two decisions, one of Delhi High Court Abdul Majid vs. The State (Delhi Administration), of Delhi (2) and the other of Andhra Pradesh High Court Patanachala China Lingaiah vs. The State (3) and a contrary decision of this Court Veera vs. State of Rajasthan (4 ). The learned Public Prosecutor, on the other hand, urged that the view taken in Ajayab Singh's case (supra) needs no further consideration in view of the Supreme Court decision in Joginder Singh vs. The State of Punjab (5), which has over-ruled the Andhra Pradesh case.
(3.) THE main question which arises for consideration in the present application is as to whether the learned Sessions Judge could take cognizance against the applicants on the basis of the record of the case and documents submitted by the police after investigation and whether he could order issue of process against the applicants ? In order to decide this question it is essential to look into the relevant provisions of the New Code of Criminal Procedure and for facility of reference they are re-produced below : - "193. Cognizance of offences by Courts of Sessions. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. '" "209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall - (a) commit the case to the Court of Sessions. " "227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. " "228. Framing of charge. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which - (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. " "319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the enquiry into or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-sec. (1), then - (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), 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 the Old Code of Criminal Procedure there was a provision relating to cognizance of offences in Courts of Sessions contained in sec. 193. Sec. 193 (New) reproduces sub-section (1) of sec. 193 of the Old Code with two significant changes. For the words 'the accused has been committed', the words 'the case has been committed' have been substituted and for the words 'duly empowered in that behalf, the words 'under this Code' have been substituted, at the end. Sec. 193 is a disabling provision. It places restrictions on the Court of Sessions to take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Under the Old provision, the Court of Sessions could not take cognizance of the offence unless the accused has been committed to it. It would be pertinent to note that under the present sec. 193, the Court of Sessions takes cognizance of the offence, though this cognizance cannot be taken unless the 'case' has been committed. It would appear from this provision that when the case has been committed to the Court of Sessions, the Court of Sessions is empowered to take cognizance of any offence, that would mean that a Court of Sessions is empowered to proceed against any person, who is suspected to have committed the offence. Taking cognizance of an offence as a court of original jurisdiction must amount to the initiation of the proceedings for the first time. Under the Old law, the trial of the persons who were not committed to the Sessions was invalid and absence of any commitment was a defect in substance and not in form. But it is not so, in view of the present provision. Sec. 193 further makes a provision for exception as well. If in the body of the Code the Court of Sessions is empowered to take cognizance without commitment of any case, then under those provisions, cognizance of any offence can be taken by the Court of Sessions, which would be clear from the clause "except as otherwise expressly provided in this Code or by any other law for the time being in force". Secs. 199, 345 and 349 are those provisions in which a Court of Sessions can take cognizance of offence without commitment by a Magistrate. Further sec. 319 must be read along with sec. 193. Under sec. 319 the Sessions Judge will have power to array any person as a co-accused in the case before him, whether he is attending the court or not when in the course of any inquiry into or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused facing the trial. Thus, sec. 319 confers power to proceed against other persons appearing to be guilty of offence from the evidence in the course of any inquiry or trial. It may be further mentioned that under the New Code, there are no provisions regarding committal inquiries and under sec. 209, Cr. P. C. (New) the Magistrate is only required to commit the case to the Court of Sessions when it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions and the Court of Sessions is required to consider as to whether there is sufficient ground for proceeding against the accused. If there is no sufficient ground for proceeding against the accused, the Sessions Judge shall discharge the accused and record his reasons for so doing under sec. 227, Cr. P. C. , and if he is of opinion that there is ground for presuming that the accused has committed an offence exclusively triable by the Court of Sessions, the Sessions Judge shall frame a charge against the accused. From the provisions under secs. 227 and 228, Cr. P. C. , it would appear that the Sessions Judge is required to consider the record of the case and the documents submitted therewith and is further required to hear the submissions of the accused and the prosecution. It may be stated that even at this stage, without any evidence being recorded by the Sessions Judge at the trial, if the Sessions Judge finds that there is some material against certain persons, who are not the accused before him, he may direct that those persons may be brought before him for trial, as the case already stands committed to him and he is empowered and competent to take cognizance of the offence. The bar under sec. 193 would not come in his way as the case stands committed to him and he is required to take cognizance of the offence and as such on the basis of the police papers submitted to him, he may proceed even against those persons, who are not before him as accused. The only object of Sec. 193 (Old) in restricting a Sessions Court from taking cognizance of any offence unless the accused has been committed, was to secure to the accused a preliminary inquiry whereby the accused is acquainted of the circumstances of the offence imputed to him but in the New Code, committal inquiry is done away with a view to secure speedy trial of serious and graver offences triable by Court of Sessions. ;