- (1.) Heard learned counsel appearing for the petitioners and also learned counsel appearing for the State. This application is directed against the order dated 18.1.2012 passed by Judicial Magistrate, 1st class, Palamau at Daltonganj in Hussainabad P.S. case No. 38 of 2011 (G.R. No. 489 of 2011) whereby and whereunder cognizance of the offence punishable under Section 307 and allied sections of the Indian Penal Code has been taken against the petitioners and others.
(2.) Learned counsel appearing for the petitioners submits that a case was lodged as Hussainabad P.S. Case No. 38 of 2011 (G.R. No. 489 of 2011) under Section 307 and allied Sections of the Indian Penal Code. When the matter was taken up for investigation, the police did not find culpability on the part of these two petitioners whereas allegations were found to be true against other four persons and therefore, when charge sheet was submitted against those four persons, these petitioners were not sent up for trial. In spite of that the court took cognizance of the offence, vide its order dated 18.1.2012 not only against those persons named in the charge sheet but also against these two petitioners which is quite illegal, in view of the decision rendered in a case of Dharam Pal Vs. State of Haryana,2013 3 EastCriC 3.
(3.) In the context of submission, notice needs to be taken of the case of Dharam Pal vs. State of Haryana facts of which are that the appellants Dharam Pal and others were made accused in a case along with Nafe Singh in a case triable by the court of sessions. The police after investigation submitted charge sheet against one of the accused, Nafe Singh whereas Dharam Pal and others were not sent up for trial whose names were included in column 2 of the police report, despite the fact that they too had been named as accused in the First Information Report. After going through the police report, the learned Judicial Magistrate, 1st class, Hansi summoned the appellant and three others, who had not been included in the charge sheet for the purpose of facing trial along with Nafe Singh. Thereupon the Magistrate in exercise of his power as contained in Section 190 of the Code took cognizance of the offence against them. That order was challenged before the revisional court. The revisional court dismissed the application. When the matter came up before the High Court, the High Court also dismissed the application. Thereafter Special Leave to Appeal was preferred before the Hon'ble Supreme Court. When the matter was initially taken up by the Hon'ble Supreme Court, it was placed before the Court that number of conflicting decisions are there on the point. On one hand in the case of Raj Kishore Prasad vs. State of Bihar and another, 1996 4 SCC 495 and also in a case of Kishore Singh and others vs. State of Bihar and others, 2004 13 SCC 11, it has been held that the Magistrate has no power to add any accused with the accused charge sheeted rather that power lies with the Sessions Judge exercising power under Section 319 of the Code of Criminal Procedure when the case comes to it upon its committed whereas in a case of SWIL Limited vs. State of Delhi and others, 2001 6 SCC 670 and also in a case of Rajinder Prasad vs. Bashir and others, 2001 8 SCC 522 it has been held that the Magistrate does have power to take cognizance in terms of the provision as contained in Section 193 of the Code of Criminal Procedure. In such situation, the matter was referred before the Constitutional Bench whereby following issues were framed for consideration. 1. Does the Committing Magistrate have any other role to play after committing the case to the Court of Sessions on finding from the police report that the case was triable by the Court of Sessions? 2. If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh to stand trial in connection with the case made out in the police report? 3. Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Sessions to stand trial or whether he was justified in issuing summons against them without following such procedure? 4. Can the Sessions judge issue summons under Section 193 of the Code of Criminal Procedure as a Court of original jurisdiction? 5. Upon the case being committed to the Court of Sessions, could the Sessions judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto? 6. Was Ranjit Singh's case , which set aside the decision in Kishun Singh's Case , rightly decided or not?;