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Saturday, January 3, 2015

CRIMINAL APPEAL Nos. 2199-2201 OF 2014 (Arising out of SLP (Crl.) Nos.1730-1732 of 2011) R.N.Agarwal ……Appellant Versus R.C. Bansal and others ……Respondents

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTON


                   CRIMINAL APPEAL Nos. 2199-2201 OF 2014
              (Arising out of SLP (Crl.) Nos.1730-1732 of 2011)

R.N.Agarwal                             ……Appellant

                                   Versus

R.C. Bansal and others                    ……Respondents


                               J U D G M E N T


M.Y. EQBAL, J.


Leave granted.


2.    These appeals are  directed  against  the  judgment  and  order  dated
2.2.2011 passed by the High Court of Delhi in Crl.M.C. Nos.2955 and 3779  of
2009 and Crl.Rev.No. 575 of 2009, whereby the  High  Court  of  Delhi  while
quashing the order dated 10th July, 2009 of the  Special  Judge,  CBI  Court
Rohini, allowed aforesaid  Section  482  criminal  petitions  filed  by  the
alleged culprits and Section 397  criminal  revision  of  the  Investigating
Officer.
3.    The brief facts of the case are that  in  the  year  1983,  a  Society
named Maharani Avanti Bai Co-operative Society was formed and from  time  to
time members were enrolled by its Managing Committee.  Upto  the  year  1989
there were 90 members of the Society and  thereafter  further  enrolment  of
members was stopped.  However, no land was allotted to the Society for  many
years and in the meantime its members became disinterested  in  the  running
of the Society as the cost of the flats to  be  constructed  had  gone  very
high and beyond their reach. The society thus became dormant.

4.    Some persons who were not members of the Society but were  far-sighted
and clever minded became interested to take over its management and got  the
land allotted from Delhi Development  Authority  (in  short,  ‘DDA’)  to  be
utilized for the benefits of their own persons. They forged certain  records
of the Society to show that many of the original members of the Society  had
resigned and a new  Managing  Committee  had  been  constituted.  By  forged
resignation letters of the original members  of  the  Society,  new  members
were shown to have been enrolled and the forged records  were  submitted  in
the office of the Registrar of Co-operative Societies  after  entering  into
some kind of criminal understanding with the officials in that  office.   It
is alleged that based  on  the  forged  documents,  which  included  minutes
purporting to be of the illegally  constituted  Managing  Committee  of  the
Society comprising of all new members and  also  of  General  Body  Meetings
which were never held, DDA was approached for allotment  of  land  with  the
assistance  rendered  by  the  Registrar  of   Co-operative   Societies   by
certifying that all the meetings were duly held and a list  of  new  members
of the Society was forwarded to DDA.  Accepting the  same,  DDA  allotted  a
plot measuring 600 sq. meters to the Society in Dwarka for  the  benefit  of
the 90 members of the Society in the year  1998.  All  these  facts  emerged
during the investigation by CBI.



5.    On completion of the investigation, the CBI filed  a  charge-sheet  in
the Court of Special Judge against six persons, out of whom two were  public
servants while other four were the members of the bogus  Managing  Committee
of the Society, who had taken over  the  dormant  Society  by  resorting  to
forgery etc.

6.    The Special Judge,  CBI  vide  order  dated  23rd  July,  2008,  after
perusing the material submitted by the CBI, took cognizance of the  offences
punishable under Section 120-B, 420, 468 and 471 of the  Indian  Penal  Code
(in short,  ‘IPC’)  as  well  as  Section  13(1)(d)  of  the  Prevention  of
Corruption Act,  and ordered summoning of six persons who had been named  by
the CBI in its charge-sheet as accused persons  alleged  to  have  committed
the offences in conspiracy with each other.   After all the accused  persons
entered appearance, the Special Judge  furnished  them  copies  of  all  the
documents as per the requirement of Section 207  of  the  Code  of  Criminal
Procedure and, thereafter, the matter was  adjourned  to  9th  March,  2009.
However, before the next date of hearing, accused  R.N.  Aggarwal  moved  an
application under Section 190 read  with  Section  193  Cr.P.C.  before  the
Special Judge for summoning three more persons, namely,  Madan  Sharma  (PW-
21), Ms. Sujata Chauhan (PW-23) and R.C. Bansal (PW-30) as accused, who  had
been cited by the CBI as its witnesses.   The  learned  Special  Judge  kept
that application for consideration on 9th March, 2009. However, on that  day
the matter was adjourned to 5th May, 2009 for arguments  on  charge  without
mentioning anything about the  application  which  had  been  moved  by  the
accused R.N. Aggarwal.  Special Judge heard arguments  on  that  application
on 5th June, 2009 and then by order  dated  10th  July,  2009  allowed  that
application and summoned the  prosecution  witnesses  Madan  Sharma,  Sujata
Chauhan and R.C. Bansal and also directed the Director of CBI to get a  case
registered against the Investigating Officer of the case under Section  217,
IPC for letting off these three persons.

7.    Aggrieved by  order  dated  10th  July,  2009,  prosecution  witnesses
Sujata Chauhan and R.C. Bansal  (respondents  herein)  approached  the  High
Court by filing separate petitions under  Section  482,  Cr.P.C.  read  with
Article 227 of the Constitution of India.  CBI,  feeling  aggrieved  by  the
direction given by the Special Judge in the impugned order for  registration
of a criminal case against the investigating officer,  also  approached  the
High Court by way of a revision petition.

8.    Learned Single Judge of the High Court, while  considering  the  order
passed by the Special Judge, held that the case is squarely covered  by  the
decision of the Delhi High Court in the  case  of  Anirudh  Sen  vs.  State,
(2006) 3 JCC 2081 (Delhi), and consequently quashed the order passed by  the
Special Judge.

9.    Mr. Ajit  Kumar  Sinha,  learned  senior  counsel  appearing  for  the
appellant assailed the impugned order passed by  the  High  Court  as  being
illegal and wholly without jurisdiction. Learned counsel submitted that  the
learned single Judge of the High Court relied upon  the  decision  of  Delhi
High Court in Anirudh Sen’s case (supra), which followed the  ratio  decided
by this Court in Raj Kishore Prasad vs. State of Bihar, (1996)  4  SCC  495,
and held that the Magistrate has  no  jurisdiction  to  summon  the  persons
shown in column 4 of the charge-sheet.  Mr. Sinha, learned  counsel  further
submitted that a Constitution Bench of this Court in the case of Dharam  Pal
vs.  State  of  Haryana,  (2014)  3  SCC  306,   after  considering  various
judgments overruled the decision  rendered  in  Raj  Kishore  Prasad’s  case
(supra).  Learned counsel submitted that  the  Magistrate  is  empowered  to
summon other accused persons even before the examination of witnesses.   Mr.
Sinha also relied upon another Constitution Bench decision of this Court  in
Hardeep Singh vs. State of Punjab, (2014) 3 SCC 92, and submitted  that  the
Constitution Bench agreed with the view taken in Dahram Pal’s case (supra).

10.   Mr. Basava Prabhu Patil, learned  senior  counsel  appearing  for  the
respondent, on the other hand submitted that once cognizance  was  taken  by
the Magistrate, it has no  jurisdiction  to  summon  the  persons  shown  in
column 4 of the charge-sheet.  Learned  counsel  submitted  that  the  ratio
decided by the Constitution Bench in Dharam Pal’s case is not applicable  in
the facts of the present case.

11.    Mr. Pradeep K. Ghose, learned counsel appearing  for  the  respondent
no.8, relied on the decision rendered in  A.R.Antuley  vs.  Ramdas  Srinivas
Nayak,  (1984) 2 SCC 500, and submitted that in the case pending before  the
Special Judge, Section 193 of the Code will not be attracted and it  has  no
role to play.

12.   Mr.  Atul  Chitley,  learned  senior  counsel  appearing  for  C.B.I.,
contended that the CBI has acted in a bona fide manner and,  therefore,  the
observations made by the Special Judge and  directions  issued  to  register
the case against the officers does not arise.



13.   We have  considered  the  submissions  made  by  the  learned  counsel
appearing for the parties.

14. In Anirudh Singh’s case (supra),  charge-sheet  was  filed  showing  the
petitioner in column 2 as  there  was  no  material  available  against  the
petitioner.  The Magistrate summoned only those accused shown  in  column  4
of the charge-sheet. The successor Magistrate, however,  later  on  summoned
persons, including petitioner, who were shown in column  2  of  the  charge-
sheet.  The High Court fully relied upon the decision of this Court  in  Raj
Kishore  Prasad  case  (supra)  and  held  that  the   Magistrate   had   no
jurisdiction  to  summon  the  petitioner  of  that  case   since   no   new
material/evidence had been collected in the course of trial.

15.   In Raj Kishore Prasad’s case, this Court came to the  conclusion  that
power under Section 209, Cr.P.C. to summon a new  offender  was  not  vested
with the Magistrate on the plain reading of its text as well as  proceedings
before him not being an ‘inquiry’ and the  material  before  him  not  being
‘evidence’.   The  question  considered  by  this  Court  was  whether   the
undertaking under Section 209, Cr.P.C. of a  case  triable  by  a  Court  of
Sessions, associate another person as an accused in exercise of power  under
Section 319 of the Code or any other provision  of  Cr.P.C.   Answering  the
question this Court held as under:-

“16. Thus we come to hold that the power under Section 209 CrPC to summon  a
new offender was not vested with a Magistrate on the plain  reading  of  its
text as well as proceedings before him not being an ‘inquiry’  and  material
before him not being ‘evidence’. When such power  was  not  so  vested,  his
refusal to exercise it cannot be corrected by a  Court  of  Revision,  which
may be the Court of Session itself awaiting the case on  commitment,  merely
on the specious ground that the Court of Session can, in any  event,  summon
the accused to stand trial, along with the accused  meant  to  be  committed
for trial before it. Presently it is plain that the stage for employment  of
Section 319 CrPC has  not  arrived.  The  order  of  the  Court  of  Session
requiring the Magistrate to arrest and logically commit the appellant  along
with the accused proposed to be committed  to  stand  trial  before  it,  is
patently illegal and beyond jurisdiction. Since the Magistrate has  no  such
power to add a person as accused under Section  319  CrPC  when  handling  a
matter under Section 209 CrPC, the Court of Session, in  purported  exercise
of revisional powers cannot obligate it to do so. The question posed at  the
outset is answered accordingly in this light.  When  the  case  comes  after
commitment to the Court of Session and evidence is recorded, it may then  in
exercise of its powers under Section 319 CrPC on the basis of  the  evidence
recorded by it, if circumstances warranting, proceed against the  appellant,
summon  him  for  the  purpose,  to  stand  trial  along  with  the  accused
committed, providing him  the  necessary  safeguards  envisaged  under  sub-
section (4) of Section 319. Such course is all the  more  necessary  in  the
instant case when expressions on merit have extensively  been  made  in  the
orders of the Magistrate, the Court of Session and that of the  High  Court.
Any other course would cause serious prejudice to the  appellant.  We  order
accordingly.”

16.   In the case of Kishun Singh and Others vs.  State of Bihar,  (1993)  2
SCC 16, a Division Bench of this Court was considering the  question  as  to
whether a Court of Sessions, to which a case is committed  for  trial  by  a
Magistrate, without itself recording evidence, summon a person not named  in
the police report presented under Section 173 Cr.P.C. to stand  trial  along
with those already named therein, in exercise of power conferred by  Section
319 of the  Code.   While  answering  the  question  this  Court  considered
various provisions of the Code and came to the following conclusion:-

“13. The question then is whether de hors  Section  319  of  the  Code,  can
similar power be traced to any other provision  in  the  Code  or  can  such
power be implied from the scheme of the Code? We have  already  pointed  out
earlier the two alternative modes in which the Criminal Law can  be  set  in
motion; by the filing of information with the police under  Section  154  of
the Code or upon receipt of a complaint or information by a Magistrate.  The
former would lead to investigation by the police  and  may  culminate  in  a
police report under Section 173 of the Code on the basis whereof  cognizance
may be taken by the Magistrate under Section 190(1)(b) of the Code.  In  the
latter case, the Magistrate may either order  investigation  by  the  police
under Section 156(3) of the Code or himself hold an  inquiry  under  Section
202 before taking cognizance of the offence under Section 190(1)(a) or  (c),
as the case may be, read with Section 204 of the Code. Once  the  Magistrate
takes cognizance of the offence he may proceed to try the  offender  (except
where the case is transferred under Section 191) or  commit  him  for  trial
under Section 209 of the Code if the offence is  triable  exclusively  by  a
Court of Session. As pointed out earlier cognizance is taken of the  offence
and not the offender. This Court  in  Raghubans  Dubey  v.  State  of  Bihar
stated that once cognizance of an offence is taken it  becomes  the  Court’s
duty ‘to find out who the offenders really  are’  and  if  the  Court  finds
‘that apart from the persons sent up by the police some  other  persons  are
[pic]involved,  it  is  its  duty  to  proceed  against  those  persons’  by
summoning them because ‘the summoning of the additional accused is  part  of
the proceeding initiated by its  taking  cognizance  of  an  offence’.  Even
after the  present  Code  came  into  force,  the  legal  position  has  not
undergone a change; on the contrary the ratio of Dubey case was affirmed  in
Hareram Satpathy v. Tikaram Agarwala. Thus far there is no difficulty.

14. We have now reached the crucial point in our journey.  After  cognizance
is taken under Section 190(1) of the Code, in  warrant-cases  the  Court  is
required to frame a charge containing particulars as to the time  and  place
of the alleged offence and the person (if any) against whom,  or  the  thing
(if any) in respect of which, it  was  committed.  But  before  framing  the
charge Section 227 of the Code provides that if,  upon  a  consideration  of
the record of the case and the documents submitted therewith,  the  Sessions
Judge considers that there is not sufficient ground for  proceeding  against
the accused, he shall, for reasons to be recorded,  discharge  the  accused.
It is only when the Judge is of opinion that there is ground  for  presuming
that the accused has committed an offence that he will proceed  to  frame  a
charge and record the plea of the accused (vide  Section  228).  It  becomes
immediately clear that for the limited purpose of deciding  whether  or  not
to frame a charge against the  accused,  the  Judge  would  be  required  to
examine the record of the case and the documents submitted therewith,  which
would comprise the police  report,  the  statements  of  witnesses  recorded
under Section 161 of the Code, the  seizure-memoranda,  etc.,  etc.  If,  on
application of mind for this limited purpose, the Judge finds  that  besides
the accused arraigned before him the complicity or involvement of others  in
the commission of the crime prima facie surfaces from  the  material  placed
before him, what course of action should he adopt?

16. We have already  indicated  earlier  from  the  ratio  of  this  Court’s
decisions in the cases of Raghubans Dubey and Hareram that  once  the  court
takes cognizance of the offence (not the offender) it  becomes  the  court’s
duty to find out the real offenders and if it comes to the  conclusion  that
besides the persons put up for trial by the  police  some  others  are  also
involved in the commission of the crime, it is the court’s  duty  to  summon
them to stand trial along with those already  named,  since  summoning  them
would only be a part of the process  of  taking  cognizance.  We  have  also
pointed out the difference in the language of Section 193 of the two  Codes;
under  the  old  Code  the  Court  of  Session  was  precluded  from  taking
cognizance of any offence as a court of  original  jurisdiction  unless  the
accused was committed to it whereas under the present Code  the  embargo  is
diluted by the replacement of the words the accused by the words  the  case.
Thus, on a plain reading of Section 193, as it  presently  stands  once  the
case is committed to the Court of Session by a Magistrate  under  the  Code,
the restriction placed on  the  power  of  the  Court  of  Session  to  take
cognizance of an offence as a court of original  jurisdiction  gets  lifted.
On the Magistrate committing the case under Section  209  to  the  Court  of
Session the bar of Section 193 is 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. The Full Bench of the High Court of Patna  rightly  appreciated  the
shift in Section 193 of the Code from that under the old Code  in  the  case
of Sk. Lutfur Rahman as under:
“Therefore, what the law under Section 193 seeks to  visualise  and  provide
for now is that the whole of the incident constituting the offence is to  be
taken cognizance of by the Court of  Session  on  commitment  and  not  that
every individual offender must be so committed or that in case it is not  so
done then the Court  of  Session  would  be  powerless  to  proceed  against
persons regarding whom it may be fully convinced at the  very  threshold  of
the trial that they are prima facie guilty of the crime as well …. Once  the
case has been committed, the bar of Section 193 is removed or, to put it  in
other words, the  condition  [pic]therefore  stands  satisfied  vesting  the
Court of Session with the fullest  jurisdiction  to  summon  any  individual
accused of the crime.”
We are in respectful agreement with the distinction brought out between  the
old Section 193 and the provision as it now stands.”

17.   The ratio laid down in Kishun Singh’s case (supra) and  Raj  Kishore’s
Prasad’s case (supra) came for consideration before a three Judge  Bench  of
this Court in the case of Ranjit Singh  vs.  State of Punjab, (1998)  7  SCC
149.   Disapproving the judgment in Kishun Singh’s case  (supra),  the  Full
Bench of this Court relied upon Raj Kishore Prasad’s case (supra), and  held
:-

“19. So from the stage of committal till  the  Sessions  Court  reaches  the
stage indicated in Section 230 of the Code, that court can  deal  with  only
the  accused  referred  to  in  Section  209  of  the  Code.  There  is   no
intermediary stage till then for the Sessions Court to add any other  person
to the array of the accused.
20. Thus, once the Sessions Court takes cognizance of the  offence  pursuant
to the committal order, the only other stage when the court is empowered  to
add any other person to the array of the accused is after reaching  evidence
collection when powers under Section 319 of the Code can be invoked. We  are
unable to find any other power for the Sessions Court to permit addition  of
new person or persons to the array of the  accused.  Of  course  it  is  not
necessary for the court to wait until the entire evidence is  collected  for
exercising the said powers.
                                   xxxxxxx
24. For  the  foregoing  reasons,  we  find  it  difficult  to  support  the
observations in Kishun Singh case that powers of the  Sessions  Court  under
Section 193 of the Code to take cognizance of the offence would include  the
summoning of the person or persons whose complicity  in  the  commission  of
the trial can prima facie  be  gathered  from  the  materials  available  on
record.”


18.   A similar matter came for consideration before a three Judge Bench  of
this Court in Dharam Pal Singh’s case (supra)  since  the  conflicting  view
expressed by this Court in Ranjit Singh’ case  and Kishun Singh’s case,  the
matter was referred to the Constitution Bench of this Court.   The  question
has now been finally set at rest by the Constitution  Bench  in  Dharam  Pal
Singh’s case, (2014) 3 SCC 306.

19.   The Constitution Bench has  overruled  the  ratio  decided  in  Ranjit
Singh’s case (supra) and Raj Kishore Prasad’s case and held that  the  ratio
laid down in Kishun Singh’s case (supra) has been  correctly  decided.   The
Constitution Bench held as under:-

“34. The view  expressed  in  Kishun  Singh  case,  in  our  view,  is  more
acceptable since, as has been held by this Court in the  cases  referred  to
hereinbefore, the Magistrate has ample powers to  disagree  with  the  final
report that may be filed by the police authorities under Section  173(2)  of
the Code and to proceed  against  the  accused  persons  dehors  the  police
report, which power the Sessions Court does not have till  the  Section  319
stage is reached. The upshot of  the  said  situation  would  be  that  even
though the Magistrate had powers to disagree with the  police  report  filed
under Section 173(2) of the Code, he was  helpless  in  taking  recourse  to
such a course of action while the Sessions Judge was also unable to  proceed
against any person, other than the accused sent  up  for  trial,  till  such
time evidence had been adduced and the witnesses had been cross-examined  on
behalf of the accused.[pic]

35. In our view, the Magistrate has a role  to  play  while  committing  the
case to the Court of Session upon taking cognizance  on  the  police  report
submitted before him under Section 173(2) CrPC. In the event the  Magistrate
disagrees with the police report, he has two choices.  He  may  act  on  the
basis of a protest petition that may be filed, or he may, while  disagreeing
with the police report, issue process and summon  the  accused.  Thereafter,
if on being satisfied that a case had been made out to proceed  against  the
persons named in column 2 of the report, proceed to try the said persons  or
if he was satisfied that a case had been made out which was triable  by  the
Court of Session, he may commit the case to the Court of Session to  proceed
further in the matter.
                                 xxxxxxxxxxx
39. This takes us to the next question as to whether under Section 209,  the
Magistrate was required to take cognizance of the offence before  committing
the case to the Court of Session. It is well settled that cognizance  of  an
offence  can  only  be  taken  once.  In  the  event,  a  Magistrate   takes
[pic]cognizance of the offence and then commits the case  to  the  Court  of
Session, the question  of  taking  fresh  cognizance  of  the  offence  and,
thereafter, proceed to issue summons, is not  in  accordance  with  law.  If
cognizance is to be taken of the offence, it could be taken  either  by  the
Magistrate or by the Court of Session. The language of Section  193  of  the
Code very clearly indicates that once the case is committed to the Court  of
Session by the learned Magistrate, the Court  of  Session  assumes  original
jurisdiction and all that goes with the  assumption  of  such  jurisdiction.
The provisions of Section 209 will, therefore, have to be understood as  the
learned Magistrate playing a passive role in  committing  the  case  to  the
Court of Session on finding  from  the  police  report  that  the  case  was
triable by the Court of Session. Nor can  there  be  any  question  of  part
cognizance being taken by the Magistrate and part cognizance being taken  by
the learned Sessions Judge.

40. In that view of the matter, we have no hesitation in agreeing  with  the
views  expressed  in  Kishun  Singh  case  that  the  Sessions   Court   has
jurisdiction on committal of a  case  to  it,  to  take  cognizance  of  the
offences of the persons not named as offenders but whose complicity  in  the
case would be evident from the materials available on  record.  Hence,  even
without recording evidence, upon committal under Section 209,  the  Sessions
Judge may summon those persons shown in column 2 of  the  police  report  to
stand trial along with those already named therein.”

20.   In another Constitution Bench judgment in Hardeep Singh vs.  State  of
Punjab, (2014) 3 SCC 92, this Court  while  discussing  the  powers  of  the
Court  concurred with the view taken in Dharam Pal’s case  and  observed  as
under:-
“53. It is thus aptly clear that until  and  unless  the  case  reaches  the
stage of inquiry or trial by the court, the power  under  Section  319  CrPC
cannot be exercised. In fact, this proposition does not seem  to  have  been
disturbed by the Constitution Bench in Dharam Pal (CB). The dispute  therein
was resolved visualising a situation wherein the court  was  concerned  with
procedural delay and was of the opinion that the Sessions Court  should  not
necessarily wait till the stage of Section 319 CrPC is reached to  direct  a
person, not facing trial, to appear and face trial as an accused. We are  in
full agreement with the interpretation given by the Constitution Bench  that
Section 193 CrPC confers power of original jurisdiction  upon  the  Sessions
Court to add an accused once the case has been committed to it.

54. In our opinion, the stage of inquiry does not contemplate  any  evidence
in its strict legal sense, nor could the legislature have contemplated  this
inasmuch as the stage for evidence has not yet arrived.  The  only  material
that the court has before it is the material collected  by  the  prosecution
and the court at this stage prima facie can apply its mind to  find  out  as
to whether a person, who can be an accused,  has  been  erroneously  omitted
from being arraigned or has been deliberately excluded  by  the  prosecuting
agencies. This is all the  more  necessary  in  order  to  ensure  that  the
investigating and the prosecuting agencies have  acted  fairly  in  bringing
before the court those persons who deserve to be tried and  to  prevent  any
person from being deliberately shielded when they ought to have been  tried.
This is necessary to usher faith in the judicial system  whereby  the  court
should be empowered to exercise such powers even at  the  stage  of  inquiry
and it is  for  this  reason  that  the  legislature  has  consciously  used
separate terms, namely, inquiry or trial in Section 319 CrPC.”


21.   The Constitution Bench further answered the question as under:-
“117.1. In Dharam Pal case, the Constitution Bench  has  already  held  that
after committal, cognizance of an offence can be taken against a person  not
named as an accused but  against  whom  materials  are  available  from  the
papers filed by the police  after  completion  of  the  investigation.  Such
cognizance can be taken under Section 193 Cr.PC and the Sessions Judge  need
not wait till “evidence”  under  Section  319  CrPC  becomes  available  for
summoning an additional accused.
117.2. Section 319 Cr.PC, significantly, uses two expressions that  have  to
be taken note of i.e. (1) inquiry (2) trial.  As  a  trial  commences  after
framing of charge, an inquiry can only  be  understood  to  be  a  pre-trial
inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under Section  398
Cr.PC  are  species  of  the  inquiry  contemplated  by  Section  319  CrPC.
Materials coming before the court in course of such inquiries  can  be  used
for corroboration of the evidence recorded in  the  court  after  the  trial
commences, for the exercise of power under Section 319 Cr.PC,  and  also  to
add an accused whose name has been shown in Column 2 of the charge-sheet.

117.3. In view of the above position the  word  “evidence”  in  Section  319
CrPC has to be  broadly  understood  and  not  literally  i.e.  as  evidence
brought during a trial.

117.4. Considering the fact that under Section 319  CrPC  a  person  against
whom material is disclosed is only summoned to face the trial  and  in  such
an [pic]event under Section 319(4) CrPC the proceeding against  such  person
is to commence from the stage of taking of cognizance, the  court  need  not
wait for the evidence against the accused proposed  to  be  summoned  to  be
tested by cross-examination.”


22.   As noticed above, after completion of investigation, CBI filed charge-
sheet in the  Court  of  Special  Judge  to  deal  with  the  cases  in  the
Prevention of Corruption Act, as also under  the  Indian  Penal  Code.   The
procedure and the powers of  the  Special  Judge  have  been  prescribed  in
Section 5 of the said Act. For better appreciation, Section 5 of the Act  is
reproduced hereinbelow:-
“5. Procedure and powers of special Judge.—
(1) A special Judge may take cognizance  of  offences  without  the  accused
being committed to him for trial and, in trying the accused  persons,  shall
follow the procedure prescribed by the Code of Criminal Procedure,  1973  (2
of 1974), for the trial of warrant cases by the Magistrates.
(2) A special Judge may, with a  view  to  obtaining  the  evidence  of  any
person supposed to have been directly or indirectly concerned in,  or  privy
to, an offence, tender a pardon to such person on condition of his making  a
full and true disclosure of the whole  circumstances  within  his  knowledge
relating to the offence and to every  other  person  concerned,  whether  as
principal or abettor, in the commission thereof and any pardon  so  tendered
shall, for the purposes of sub-sections (1) to (5) of  section  308  of  the
Code of Criminal Procedure, 1973  (2  of  1974),  be  deemed  to  have  been
tendered under section 307 of that Code.
(3) Save as provided in sub-section (1) or sub-section (2),  the  provisions
of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far  as  they
are not inconsistent with this  Act,  apply  to  the  proceedings  before  a
special Judge; and for purposes of the said provisions,  the  Court  of  the
special Judge shall be deemed to be  a  Court  of  Session  and  the  person
conducting a prosecution before a special Judge shall  be  deemed  to  be  a
public prosecutor.
(4) In particular and without prejudice to the generality of the  provisions
contained in sub-section (3), the provisions of sections 326 and 475 of  the
Code of Criminal Procedure, 1973 (2 of 1974),  shall,  so  far  as  may  be,
apply to the proceedings before a special Judge and for the purposes of  the
said provisions, a special Judge shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him  any  sentence
authorised by law for the punishment of the offence of which such person  is
convicted.
(6) A special Judge, while trying an  offence  punishable  under  this  Act,
shall exercise all the powers and functions exercisable by a District  Judge
under the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944).”

23.   A bare reading of the provision would show that the special judge  may
take cognizance of the offence without the accused being  committed  to  him
for trial and the court of special judge shall be deemed to be  a  court  of
session.  The special judge in trying the accused persons shall  follow  the
procedure prescribed by the Code of Criminal Procedure, 1973 for  the  trial
of warrant cases by the Magistrate.   Indisputably,  a  person  holding  the
post of either a Sessions Judge,  Additional  Sessions  Judge  or  Assistant
Sessions Judge is appointed as Special Judge and shall follow the  procedure
prescribed in the Code for trial of warrant cases.

24.   The constitution Bench in the case of A.R.  Antuley  (supra),  was  of
the  view  that  the  special  judge  appointed  under  the  Prevention   of
Corruption Act, enjoys all  powers   conferred  on  the  Court  of  original
jurisdiction functioning under the  High  Court  except  those  specifically
conferred under the Act.  The Bench observed :-

“27……..While setting up a Court of a Special Judge keeping in view the  fact
that the high dignitaries in public life are likely to be tried  by  such  a
court, the qualification prescribed was that the person to be  appointed  as
Special Judge has to be either a Sessions Judge, Additional  Sessions  Judge
or Assistant Sessions Judge. These three dignitaries are above the level  of
a  Magistrate.  After  prescribing  the   qualification,   the   Legislature
proceeded to confer power  upon  a  Special  Judge  to  take  cognizance  of
offences for the trial of which a special court with exclusive  jurisdiction
was being set up. If a Special Judge has to  take  cognizance  of  offences,
ipso facto the procedure for trial of such offences has  to  be  prescribed.
Now  the  Code  prescribes  different  procedures  for  trial  of  cases  by
different courts. Procedure for trial of a case before a  Court  of  Session
is set out in Chapter XVIII; trial of warrant cases by  Magistrates  is  set
out in Chapter XIX and the provisions therein included catered to  both  the
types of cases coming before the Magistrate, namely, upon police  report  or
otherwise than on a police report. Chapter XX prescribes the  procedure  for
trial of summons  cases  by  Magistrates  and  Chapter  XXI  prescribes  the
procedure for summary trial. Now that a new criminal  court  was  being  set
up, the Legislature  took  the  first  step  of  providing  its  comparative
position in the hierarchy of courts under Section 6 CrPC by bringing  it  on
level more [pic]or less comparable to the Court of Session, but in order  to
avoid any confusion  arising  out  of  comparison  by  level,  it  was  made
explicit in Section 8(1) itself that it is not a Court  of  Session  because
it can take cognizance of offences without  commitment  as  contemplated  by
Section 193 CrPC. Undoubtedly in Section 8(3) it was clearly laid down  that
subject to the provisions of sub-sections (1) and  (2)  of  Section  8,  the
Court of Special Judge shall be deemed to  be  a  Court  of  Session  trying
cases without a jury or without the aid of assessors.”

25. In the case of Harshad S. Mehta vs. State  of    Maharashtra,  (2001)  8
SCC 257,  the Bench while dealing with the  case  under  the  Special  Court
(Trial of  Offences  Relating  to  Transactions  in  Securities)  Act,  1992
observed that special court is a Court of exclusive jurisdiction in  respect
of offences under  Section  3(2)  of  the  Act,  like  special  court  under
Prevention of Corruption Act it  has  original  criminal  jurisdiction.  The
special court per se is not a Magistrate and also  it  is  not  a  court  to
which the commitment of a case is made.
26.   In the case of State of T.N. vs. V. Krishnaswami Naidu, (1979)  4  SCC
5, this Court while answering a question, as to whether  the  special  judge
under the  Criminal  Law  (Amendment)  Act,  1952  can  exercise  the  power
conferred on a  Magistrate  under  Section  167  Cr.P.C.  to  authorise  the
detention  of the accused in the custody  of police,  held  that  a  special
judge is empowered to take cognizance of the offence  without   the  accused
being committed to him for trial. Their Lordship observed:-
“5. It may be noted  that  the  Special  Judge  is  not  a  Sessions  Judge,
Additional Sessions Judge or an Assistant Sessions Judge under the  Code  of
Criminal Procedure though no person can be  appointed  as  a  Special  Judge
unless he is or has been either a Sessions Judge or an  Additional  Sessions
Judge or an Assistant Sessions Judge. The  Special  Judge  is  empowered  to
take cognizance of the offences without the accused being committed  to  him
for trial. The jurisdiction to try the offence by a Sessions Judge  is  only
after committal to him. Further the  Sessions  Judge  does  not  follow  the
procedure for the trial of warrant cases by Magistrates. The  Special  Judge
is deemed to be a Court of Session only for certain  purposes  as  mentioned
in Section 8(3) of the Act while the first part of  sub-section  3  provides
that except as provided in  sub-sections  (1)  and  (2)  of  Section  8  the
provisions of the Code of Criminal Procedure, 1898 shall,  so  far  as  they
are not inconsistent with this Act, apply  to  the  proceedings  before  the
Special Judge.”

27.   In the case of Raghubans Dubey vs. State of Bihar, AIR 1967  SC  1167,
this Court while dealing with the similar matter held that  once  cognizance
has been taken by the Magistrate, he takes cognizance of an offence and  not
the offenders and once he comes  to  the  conclusion  that  apart  from  the
persons sent by the police  some other persons are involved, it is his  duty
to proceed against those persons.  The summoning of the  additional  accused
is part of the proceeding initiated by his taking cognizance of an offence.
28.   In the case of Kishun Singh vs. State of Bihar (supra), the scope  and
power of a Court  under Sections 193, 209 and 319 observed as:-
“16. We have already indicated  earlier  from  the  ratio  of  this  Court’s
decisions in the cases of Raghubans Dubey and Hareram that  once  the  court
takes cognizance of the offence (not the offender) it  becomes  the  court’s
duty to find out the real offenders and if it comes to the  conclusion  that
besides the persons put up for trial by the  police  some  others  are  also
involved in the commission of the crime, it is the court’s  duty  to  summon
them to stand trial along with those already  named,  since  summoning  them
would only be a part of the process  of  taking  cognizance.  We  have  also
pointed out the difference in the language of Section 193 of the two  Codes;
under  the  old  Code  the  Court  of  Session  was  precluded  from  taking
cognizance of any offence as a court of  original  jurisdiction  unless  the
accused was committed to it whereas under the present Code  the  embargo  is
diluted by the replacement of the words the accused by the words  the  case.
Thus, on a plain reading of Section 193, as it  presently  stands  once  the
case is committed to the Court of Session by a Magistrate  under  the  Code,
the restriction placed on  the  power  of  the  Court  of  Session  to  take
cognizance of an offence as a court of original  jurisdiction  gets  lifted.
On the Magistrate committing the case under Section  209  to  the  Court  of
Session the bar of Section 193 is 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. The Full Bench of the High Court of Patna  rightly  appreciated  the
shift in Section 193 of the Code from that under the old Code  in  the  case
of Sk. Lutfur Rahman as under:
“Therefore, what the law under Section 193 seeks to  visualise  and  provide
for now is that the whole of the incident constituting the offence is to  be
taken cognizance of by the Court of  Session  on  commitment  and  not  that
every individual offender must be so committed or that in case it is not  so
done then the Court  of  Session  would  be  powerless  to  proceed  against
persons regarding whom it may be fully convinced at the  very  threshold  of
the trial that they are prima facie guilty of the crime as well …. Once  the
case has been committed, the bar of Section 193 is removed or, to put it  in
other words, the  condition  [pic]therefore  stands  satisfied  vesting  the
Court of Session with the fullest  jurisdiction  to  summon  any  individual
accused of the crime.”
We are in respectful agreement with the distinction brought out between  the
old Section 193 and the provision as it now stands.”

29.   The order passed by the Special Judge would show  that  while  issuing
summons against the respondents the  Court  has  considered  in  detail  the
material brought on record during investigation.  We  would  like  to  refer
some of the paragraphs, which are quoted hereinbelow:-
“14. During  investigation.  It  was  also  revealed  that  Sh.  Ram  Narain
Aggarwal got procured the various false documents  in  order  to  regularize
the society fraudulently, which was submitted to the office of the RCS.  The
details of the documents are as follows:-
Proceedings of general body meetings dated 15-11-1998 and 23-01-2000.
Proceedings register having proceedings with effect from 22-11-1998.
Membership register having members numbers 101 onwards.
15. Proceedings of General Body Meeting (GBM) dated 15-11-1998  which  shown
to be held in the office of the society at  303.  3rd  Floor,  C-50,  Vasant
Tower Community Centre, Janak Puri where the approval of resignation  of  46
members and enrollment of 35 new members during the  period  of  1996-97  by
the managing committee was  falsely  shown.  Similarly,  proceeding  of  GBM
dated 23-01-2000  falsely  show  approval  of  regisnation  of  10  promoter
members by the managing committee. In that GBM, false election  of  managing
committee was shown to  be  conducted,  in  which,  Sh.  OP  Aggarwal-   the
President, Sh. Anil Kumar Sharma- Vice President and all  other  members  of
the managing committee of the society, whose name  are  Sh.  R.N.  Aggarwal,
Ms. Sujata Chauhan, Sh. Sudhir Aggarwal, Sh. CL Bansal  and  Ms.  Janak  are
shown to be elected by showing conducting false elections of the  management
committee.  The  signature  of  Sh.  Sudhir  Aggarwal  is  forged  on  these
proceedings of GBM dated 15-11-1998, 23-1-2000  which  are  written  by  Ms.
Sujata on the instance of Sh. RN Aggarwal.
16. It was also revealed that Sh. MIshri Lal Lodhi and Sh. Bhupinder  Kumar,
the then president and secretary  of  the  society  respectively  had  never
approved the resignation of the  promoter  members  and  enrollment  of  new
members during the year 1996-97 as shown in GBM dated 15-11-1998.
17. After obtaining demand letter dated 21-9-1998 from DDA,  a  post  letter
dated 2-11-1998 under the signature of SH.  Bhupinder  Kumar,  Secretary  of
the society was submitted fraudulently to the commissioner  (Housing),  DDA,
New Delhi, whereby more time was sought for making payment.
18.  Investigation further revealed that Sh. RN  Aggarwal  in  pursuance  of
criminal consipray with Sh. Bhim Singh Mahur fraduently  obtained  a  letter
dated 15-11-1998 signed by Sh. Mishri Lal (President), Sh.  Bhupinder  Kumar
(Secretary) and Smt.  Kela  Devi  (Treasurer)  and  sent  the  same  to  the
Manager, Delhi State Cooperative Bank Ltd., Dariya Ganj, New  Delhi  falsely
stated therein that Sh. Anil Kumar  Sharma,  Sh.  RN  Aggarwal  and  Sh.  Om
Prakash Aggarwal have been elected as  President,  Secretary  and  Treasurer
respectively in the new Managing Committee of the said society and the  said
office bearer have been authorized to operate the bank accounts of the  said
society and this way all the above  named  accused  had  fraudulently  taken
over control of the operation of the bank account of the said society.
xxxxxxx
 20.        Investigation further revealed that Sh. Ganesh Jha,  a  promoter
member of the society lodged complaints dated  26.6.2000  and  5.10.2000  to
the office of RCS, New Delhi alleging  therein  that  the  society  had  not
intimated him for allotment of  land  by  DDA  nor  demanded  his  share  of
contribution towards costs of land  and  he  suspected  that  the  Secretary
fraudulently manipulated the membership register.  The society has  secretly
shifted the registered office without holding any meeting  of  the  members,
nor called him to attend any meeting  of  the  society  with  some  ulterior
motive.

21.   It is also revealed in the investigation that Sh. Leela  Krishan  Seth
appointed Sh. Jafar Iqbal for  conducting  verification  on  the  allotments
made in the complaints who gave a false verification report  at  the  behest
of Sh. R.N. Aggarwal in which he fraudulently certified that  election  were
satisfactorily held by society on 15.11.98 and facilitated  dishonestly  the
accused persons by giving them clean chit to the society.

22.   Investigation also disclosed that person  to  the  aforesaid  criminal
conspiracy Leela Krishna  Seth  the  then  Assistant  Registrar,  Sh.  Jafar
Iqbal, the then Inspector Grade-III by abusing their  official  position  by
entering into criminal conspiracy with sh.  R.  N.  Aggarwal  and  Sh.  O.P.
Aggarwal with the intention to cheat DDA got  allotment  and  possession  of
land from DDA in favour of the society.”

30.   The Special Judge considering all those materials  brought  on  record
during investigation and relying upon the decisions of  this  Court  in  the
case of M/s Swill Ltd. vs. State of Delhi and Anr., (2001) 6 SCC 670;  Nisar
and Another vs. State of U.P., (1995) 2 SCC  23;1995  Crl  LJ  2118;  Kishan
Singh vs. State of Bihar (supra);   Raghubans  Dubey  vs.  State  of  Bihar,
(1967) 2 SCR 423, came to the conclusion that the respondents  are  involved
in the commission of offence and consequently summons  were  issued  against
them.
31.   While passing the impugned order the High Court instead of relying  on
the decisions of this Court reversed the order passed by the  Special  Judge
by following the decision of the Single Judge of the  Delhi  High  Court  in
Anirudh  Sen’s Case (supra).  Prima facie,  therefore,  the  impugned  order
passed by the High Court quashing issuance of summons by the  Special  Judge
against the respondents  is  erroneous  in  law  and  cannot  be  sustained.
However, at this stage it was not necessary for the Special Judge  to  issue
directions to CBI to get a case registered against the guilty  officers  who
have investigated the case.
32.   For the reasons aforesaid, we allow these appeals and quash the  order
passed by the High Court and restore the order passed by the  Special  Judge
except the direction issued to the CBI as indicated above.




                                                              …………………………….J.
                                                              [ M.Y. Eqbal ]



                                                              .…………………………….J
                                                      [Pinaki Chandra Ghose]
New Delhi
October 14, 2014

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