JOOINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This appeal by special leave is directed against the order of the Punjab and Haryana High Court in Criminal Revn. No. 909 of 1977, whereby the High Court confirmed the order passed by the Additional Sessions Judge, Ludhiana on Oct. 19, 1977 directing that the attendance of the two appellants (Joginder Singh and Ram Singh) be procured and they be ordered to stand trial together with three accused who had been committed to his Court to stand their trial for offences under Sections 452, 308 and 323 each read with S. 34, I. P. C.

(2.) The facts giving rise to the appeal may be stated thus:At the instance of one Mohinder Singh a criminal case was registered at Police Station Dakha against Joginder Singh, Ram Singh (the two appellants), Bhan Singh, Darshan Singh and Ranjit Singh on the allegation that each one armed with a "Toki" had entered his house on April 30, 1977 at 10.00 a.m. and had caused a number of injuries to Ajaib Singh and Bir Singh who were present in the house with the respective weapons. It was further alleged by Mohinder Singh that Darshan Singh opened the attack with "Toki" blow from reverse side on Ajaib Singh's head whereas Ram Singh had dealt him blows with the butt of his gun and when Bir Singh tried to rescue Ajaib Singh, Joginder Singh and Ranjit Singh gave blows on his head and that on medical examination Ajaib Singh was found to have four injuries by blunt weapons and Bir Singh was found to have suffered one injury with a blunt weapon. During the investigation the police found Joginder Singh and Ram Singh (the appellants) to be innocent and, therefore a charge-sheet was submitted by the police only against the remaining three accused Bhan Singh, Darshan Singh and Ranjit Singh. The learned Magistrate who held a preliminary inquiry committed the three accused Bhan Singh, Darshan Singh and Ranjit Singh to the Sessions Court and the learned Additional Sessions Judge, Ludhiana, framed charges against the three accused for offences under Ss. 452/308/323 read with Section 34 I. P. C. but at the trial evidence of Mohinder Singh and Ajaib Singh was recorded during the course of which both of them implicated Joginder Singh and Ram Singh in the incident. Thereupon at the instance of Mohinder Singh, the Public Prosecutor moved an application before the learned Additional Sessions Judge for summoning and trying Joginder Singh and Ram Singh along with the three accused, who were already facing their trial. The application was opposed by the counsel for the accused principally on the ground that the Sessions Judge had no jurisdiction or power to summon the two appellants and direct them to be made accused to stand their trial along with three accused because they had neither been charge-sheeted nor committed and the Sessions Court had no jurisdiction or power directly to take cognizance against them in respect of any offences said to have been committed by them. The learned Additional Sessions Judge negatived the said contention and presumably exercising his powers under S. 319 of the Code of Criminal Procedure, 1973 passed an order on Oct. 19, 1977 directing that the attendance of the two appellants be procured and further directing that they should stand their trial together with the three accused. Feeling aggrieved by this order the appellants filed a Criminal Revision Application No. 909/1977 to the High Court but the High Court dismissed the Revisional Application on Nov. 24, 1977. The appellants have come up in appeal to this Court by special leave.

(3.) Counsel for the appellants raised two contentions in support of the appeal. In the first place relying upon Ss. 193 and 209 of the Code of Criminal Procedure counsel contended that there was a bar to the Court of Session taking cognizance of any offence as a Court of original jurisdiction unless the appellants were committed to it by a Magistrate under the Code and it was pointed out that admittedly in the instant case though the F.I.R. had involved the two appellants in the alleged incident, on investigation the police had found no material against them with the result the police had submitted a charge-sheet only against the three accused and not the appellants and even the committal order passed by the Magistrate was only in respect of the three accused and, therefore, it was not open to the learned Additional Sessions Judge, Ludhiana, to take the impugned action against the appellants. Secondly, counsel contended that the only provision in the Criminal Procedure Code which empowered the Court to try anybody not prosecuted by the police, was to be found in Sec. 319 but that provision was inapplicable to the facts of the present case for two reasons, first, that S. 319 in so far as it is applicable to Sessions Court would be subject to or subordinate to S. 193 and second the phrase "any person not being the accused" occurring in the section excludes from its operation an accused who had been released by the police under Section 169 of the Code, and had been shown in column No. 2 of the charge-sheet. Reliance was placed by the counsel upon a decision of the Andhra Pradesh High Court in P. C. Lingaiah v. State, 1977 Cri LJ 415. On the other hand, counsel for the respondents contended that there has been a change in the phraseology in Ss. 193 and 209 of the Code of Criminal Procedure, 1973 as compared to the equivalent provisions contained in the old Code with the result it was not the accused but the case which got committed to the Court of Session and once the Court of Session had upon such commitment seisin of the case it was open to it to exercise the power under S. 319. It was further urged that there was no warrant to read S. 319 subject or subordinate to S. 193 and that it covered cases of suspects like the two appellants and, therefore, the High Court was right in upholding the order of the learned Additional Sessions Judge, Ludhiana.