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
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
