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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 785 OF 2013
(Arising out of SLP (Crl. ) No. 294 of 2013)
Moti Lal Songara ...Appellant
Versus
Prem Prakash @ Pappu and Anr. ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The factual score of the case in hand frescoes a
scenario and reflects the mindset of the first
respondent which would justifiably invite the
statement “court is not a laboratory where children
come to play”.
The action of the accused-respondent
depicts the attitude where one calculatedly conceives
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the concept that he is entitled to play a game of
chess in a court of law and the propriety, expected
norms from a litigant and the abhorrence of courts to
the issues of suppression of facts can comfortably be
kept at bay.
Such a proclivity appears to have
weighed uppermost in his mind on the base that he
can play in aid of technicalities to his own advantage
and the law, in its essential substance, and justice,
with its divine attributes, can unceremoniously be
buried in the grave.
But, an eloquent one, the
complainant with his committed and adroit
endeavour has allowed the cause to rise like a
phoenix from the grave by invoking the jurisdiction of
this Court assailing the order passed by the High
Court of Judicature of Rajasthan at Jodhpur in
Criminal Revision No. 327 of 2011 whereby the
learned single Judge by order dated 13.8.2012
accepted the plea of the accused-respondent and
quashed the charges framed against him for the
offences punishable under Sections 323, 324 and 307
of the Indian Penal Code (for short “IPC”) not on the
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substratum of merits but on the foundation that the
order dated 19.11.2008 passed by the learned
Additional Chief Judicial Magistrate taking cognizance
and issuing summons had already been set aside by
the Additional District and Sessions Judge, No. 1,
Jodhpur, in Criminal Revision No. 7 of 2009 and,
therefore, the principle “when the infrastructure
collapses, the superstructure is bound to collapse”
got attracted.
As it appears, though the High Court
noticed the various dates, the suppression of facts
and the factum that the accused being fully aware
that the charges had been framed in Sessions Case
No. 9 of 2009 by the learned Additional Sessions
Judge, No. 3, Jodhpur on 27.7. 2009, chose not to
inform the revisional court, namely, the learned
Additional District and Sessions Judge, No. 1, Jodhpur,
yet, possibly feeling legally helpless, interfered with
the order of framing charges and quashed the same
granting liberty to the prosecution to file an
application under Section 319 of the Code of Criminal
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Procedure (for brevity “the Code”) at the relevant
stage.
3. Presently to the initial factual exposition. The
appellant, as informant, lodged a First Information
Report No. 428 of 2007 on 23.11.2007 at Police
Station Pratap Nagar, District Jodhpur, on the basis of
which investigation was carried on and, eventually, a
charge sheet was placed for the offences punishable
under Sections 341, 323, 324, 307 and 379 IPC
against one Shyam Lal s/o Venaram. After the
submission of the charge-sheet, the informant filed
an application before the learned Additional Chief
Judicial Magistrate No. 2, Jodhpur, asseverating that
another accused, Prem Prakash, who had attacked
his son with knife had deliberately not been made an
accused. The learned Magistrate, as is manifest,
after analyzing the materials on record, thought it
appropriate to take cognizance against Prem Prakash
@ Pappu for the offences punishable under Sections
323, 324, 307 and 379 IPC and, accordingly,
summoned him through arrest warrant.
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4. Being dissatisfied, accused Prem Prakash called in
question the legal sustainability of the said order in
Criminal Revision No. 7 of 2009 which came to be
dealt with by the learned Additional District and
Sessions Judge, No. 1, Jodhpur who, after referring to
the rulings in Kalamudeen and others v. State of
Rajasthan and another1
and Natthi Singh v.
State of Rajasthan and another2
, opined that
when the offences were triable by a court of Session,
the Magistrate could not have taken cognizance on
the basis of a protest petition and, accordingly, set it
aside vide order dated 14.10.2009.
5. Be it noted, on that day, the Additional Public
Prosecutor was present but, unfortunately, the
informant who was arrayed as opposite party No. 2 in
the revision petition was absent. The disturbing
feature, as is perceptible, is that on the basis of the
cognizance taken by the learned Additional Chief
Judicial Magistrate, both the accused persons,
namely, Shyam Lal and Prem Prakash, were sent up
1
2005 (2) Cr.L.R. (Raj.) 1118
2
2007 (1) Cr.L.R. (Raj.) 621
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for trial and the matter was dealt with by the learned
Additional District and Sessions Judge, No. 3, Jodhpur
who, on 27.7.2009, heard the learned counsel for the
parties, the Public Prosecutor and after dwelling upon
the allegations in the FIR, considering the
involvement of the accused persons in the crime in
question, taking note of the nature of injuries,
adverting to the ingredients of the offence under
Section 307 IPC, prima facie appreciating the
credibility of the witnesses and many other factors,
held as follows: -
“.......looking to the facts and circumstances of
the case, in the perspective of the principle
propounded in the abovementioned rulings,
prima facie, it appears that due to the reason of
old enmity the accused persons have inflicted a
number of injuries by the sharp weapon on the
body of the victim and therefrom it is clear that
common intention of the accused persons was
to attempt to commit the murder of the victim
Dinesh Kumar. At this stage, it is not
appropriate to minutely and critically appreciate
the evidence. From the guidance sought from
the abovementioned rulings, it is clear that at
this stage compared to the result of the acts
committed by the accused persons, criminal
intention of the accused persons is more
important. Any fatal injury has not been
inflicted on any vital part of the body of the
victim and only on that ground at this stage, it
is not justified and lawful to discharge the
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accused persons from the offence punishable
under Section 307 of the Indian Penal Code.”
6. However, as far as the offence under Section 379 IPC
is concerned, he discharged them of the said charge.
Ultimately, charges were framed for the offences
under Section 341, 323/34, 324/34, 307 in the
alternative under Section 307/304 IPC.
7. We have referred to the said order in detail to
highlight that the matter was heard at length at the
time of framing of charge and arguments were
considered seeking discharge. However, for the
reasons best known to the prosecution and to the
accused-respondent, it was not brought to the notice
of the learned Additional District and Sessions Judge
No. 1, Jodhpur who allowed the revision holding that
the order issuing summons was not justified. It is
really unfathomable as to why the sustainability of
the order taking cognizance when called in question
was not heard by the learned Additional District and
Sessions Judge No. 3, who was dealing with the
Sessions Case No. 9 of 2009.
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8. After the order taking cognizance was set aside in
revision, an application was filed on 11.1.2010
seeking discharge. The learned trial Judge narrated
the entire gamut of facts and observed that the fact
of framing of charges was not brought to the notice
of the learned Additional District and Sessions Judge,
No.1, and further the High Court, in Criminal Revision
No. 1046 of 2009 which was preferred against the
order of framing of charge, neither set it aside nor
modify it and, accordingly, did not think it
appropriate to discharge the accused-respondent.
9. As the factual matrix would uncurtain, undeterred by
his conduct, the respondent, Prem Prakash, preferred
Criminal Revision before the High Court. The learned
single Judge of the High Court, after chronicling the
facts in detail, came to hold that when the order
dated 14.10.2009 passed by the revisional court
setting aside the order taking cognizance was not
challenged, the very basis of the continuance of the
proceeding had become extinct and, therefore, the
order of framing of charges could not be sustained.
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However, as stated earlier, he granted liberty to the
prosecution to file an application under Section 319
of the Code for summoning the additional accused at
the appropriate stage. Be it noted, the High Court
has also observed that the order passed in revision
setting aside the order of cognizance was not
justified in law.
10. Ms. Madhurima Tatia, learned counsel for the
appellant, has submitted that when the accused has
not approached the court in clean hands and the
High Court itself has observed that the order setting
aside the order of cognisance was not justified, it
should not have interfered with the order passed by
the learned trial Judge declining to discharge the
accused. Per contra, Mr. Rishabh Sancheti, learned
counsel for the respondent No. 1, would contend that
the order passed by the High Court in revision is
absolutely impeccable inasmuch as once the order
taking cognizance had gone unchallenged, it was
obligatory on the part of the High Court to direct a
discharge. That apart, it is urged by him that the
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learned Magistrate could not have taken cognizance
in exercise of power under Section 190 of the Code of
Criminal Procedure. Mr. Imtiaz Ahmed, learned
counsel for the State, submitted that though the
State has not challenged the order, yet it is a case
where the accused-respondent should not have been
discharged.
11. First, we shall advert to the legal propriety of the
order taking cognizance by the learned Additional
Chief Judicial Magistrate. The learned counsel for the
accused-respondent has submitted with immense
vehemence that in view of the conflicting views, the
controversy relating to the power of the Magistrate
under Section 190 of the Code has been referred to
the larger Bench and, hence, the order of taking
cognizance is invulnerable. To appreciate the said
submission, we think it seemly to refer to certain
pronouncements pertaining to the said issue. In
Ranjit Singh v. State of Punjab3
, a three-Judge
Bench was dealing with the issue whether the
3
(1998) 7 SCC 149
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Sessions Court can add a new person to the array of
the accused in a case pending before it at a stage
prior to collecting any evidence. The three-Judge
Bench was dealing with the said issue as reservations
were expressed by a two-Judge Bench in Raj
Kishore Prasad v. State of Bihar4
with regard to
the ratio laid down in Kishun Singh v. State of
Bihar5
. The conclusion that has been recorded in
Ranjit Singh’s case is as follows: -
“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.”
4
(1996) 4 SCC 495
5
(1993) 2 SCC 16
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12. In Kishori Singh and others v. State of Bihar
and another6
, the learned Judges have opined thus:
-
“10. So far as those persons against whom
charge-sheet has not been filed, they can be
arrayed as “accused persons” in exercise of
powers under Section 319 CrPC when some
evidence or materials are brought on record in
course of trial or they could also be arrayed as
“accused persons” only when a reference is
made either by the Magistrate while passing an
order of commitment or by the learned Sessions
Judge to the High Court and the High Court, on
examining the materials, comes to the
conclusion that sufficient materials exist against
them even though the police might not have
filed charge-sheet, as has been explained in the
latter three-Judge Bench decision. Neither of the
contingencies has arisen in the case in hand.”
13. In M/s. India Carat Pvt. Ltd. v. State of
Karnataka and another7
, a three-Judge Bench,
after analyzing the provisions of the Code, referred to
the decisions in Abhinandan Jha v. Dinesh
Mishra8
and H.S. Bains v. State9
and, eventually,
ruled thus: -
“The position is, therefore, now well settled that
upon receipt of a police report under Section
173(2) a Magistrate is entitled to take
6
(2004) 13 SCC 11
7
(1989) 2 SCC 132
8
AIR 1968 SC 117
9
(1980) 4 SCC 631
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cognizance of an offence under Section 190(1)
(b) of the Code even if the police report is to the
effect that no case is made out against the
accused. The Magistrate can take into account
the statements of the witnesses examined by
the police during the investigation and take
cognizance of the offence complained of and
order the issue of process to the accused.
Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence
only if the investigating officer gives an opinion
that the investigation has made out a case
against the accused. The Magistrate can ignore
the conclusion arrived at by the investigating
officer and independently apply his mind to the
facts emerging from the investigation and take
cognizance of the case, if he thinks fit, in
exercise of his powers under Section 190(1)(b)
and direct the issue of process to the accused.”
14. In Dharam Pal and others v. State of Haryana
and another10, a three-Judge Bench was dealing
with a reference to resolve the conflict of opinions in
Kishori Singh (supra), Rajinder Prasad v.
Bashir11 and SWIL Ltd. v. State of Delhi12
. At
that juncture, the pronouncements in Kishun Singh
(supra) and Ranjit Singh (supra) were brought to
the notice of the Court. After referring to various
provisions of the Code, the Bench of three learned
Judges expressed as follows: -
10 (2004) 13 SCC 9
11 (2001) 8 SCC 522
12 (2001) 6 SCC 670
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“Prima facie, we do not think that the
interpretation reached in Ranjit Singh case is
correct. In our view, the law was correctly
enunciated in Kishun Singh case. Since the
decision in Ranjit Singh case is of three-Judge
Bench, we direct that the matter may be placed
before the Hon’ble the Chief Justice for placing
the same before a larger Bench.”
15. There is no dispute that the reference is still pending.
In Uma Shankar Singh v. State of Bihar and
another13, a two-Judge Bench was dealing with the
issue pertaining to the power of the Magistrate under
Section 190(1)(b) of the Code. After taking note of
the decisions and the reference order in Dharam Pal
(supra), the Court accepted the submission that the
law is well settled that the Magistrate is not bound to
accept the final report filed by the investigating
agencies under Section 173(2) of the Code and is
entitled to issue process against an accused even
though exonerated by the said authorities without
holding any separate enquiry on the basis of the
police report itself. The learned Judges proceeded to
state that even if the investigating authority is of the
view that no case has been made out against an
13 (2010) 9 SCC 479
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accused, the Magistrate can apply his mind
independently to the materials contained in the
police report and take cognizance thereupon in
exercise of his powers under Section 190(1)(b) CrPC.
16. In the said case, while dealing with the pendency of a
reference before a larger Bench and also adverting to
the pending reference in relation to the lis, the Court
observed as follows: -
“...it is not necessary to wait for the outcome of
the result of the reference made to a larger
Bench in Dharam Pal case.
The reference is
with regard to the Magistrate’s power of enquiry
if he disagreed with the final report submitted
by the investigating authorities. The facts of
this case are different and are covered by the
decision of this Court in India Carat (P) Ltd.
following the line of cases from Abhinandan Jha
v. Dinesh Mishra onwards.”
17. In view of the aforesaid enunciation of law, we are of
the considered view that the order taking cognizance
cannot be found fault with. We may hasten to clarify
that the learned Additional Chief Judicial Magistrate
has taken cognizance on the basis of facts brought to
his notice by the informant and, therefore, he has, in
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fact, exercised the power under Section 190(1)(b) of
the Code.
18. The second limb of the submission is
whether in the
obtaining factual matrix, the order passed by the
High Court discharging the accused-respondent is
justified in law.
We have clearly stated that though
the respondent was fully aware about the fact that
charges had been framed against him by the learned
trial Judge, yet he did not bring the same to the
notice of the revisional court hearing the revision
against the order taking cognizance.
It is a clear
case of suppression. It was within the special
knowledge of the accused. Any one who takes
recourse to method of suppression in a court of law,
is, in actuality, playing fraud with the court, and the
maxim supressio veri, expression faisi, i.e.,
suppression of the truth is equivalent to the
expression of falsehood, gets attracted.
We are
compelled to say so as there has been a calculated
concealment of the fact before the revisional court.
It can be stated with certitude that the accused-
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respondent tried to gain advantage by such factual
suppression.
The fraudulent intention is writ large. In
fact, he has shown his courage of ignorance and tried
to play possum.
The High Court, as we have seen,
applied the principle “when infrastructure collapses,
the superstructure is bound to collapse”.
However,
as the order has been obtained by practising fraud
and suppressing material fact before a court of law to
gain advantage, the said order cannot be allowed to
stand.
That apart, we have dealt with regard to the
legal sustainability of the order in detail.
Under these
circumstances, we are disposed to think that the
power under Article 142 of the Constitution is
required to be invoked to do complete justice
between the parties.
Cognizance of the offences had
been rightly taken by the learned Magistrate and
charges, as we find, have been correctly framed by
the learned trial Judge.
A victim of a crime has as
much right to get justice from the court as an
accused who enjoys the benefit of innocence till the
allegations are proven against him.
In the case at
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hand, when an order of quashment of summons has
been obtained by suppression, this Court has an
obligation to set aside the said order and restore the
order framing charges and direct the trial to go on.
And we so direct.
19. Consequently, the appeal is allowed, the order
passed by the High Court in Criminal Revision No.
327 of 2011 and the order passed by the learned
Additional District and Sessions Judge, No.1, Jodhpur,
in Criminal Revision No. 7 of 2009 are set aside and it
is directed that the trial which is pending before the
learned Additional District and Sessions Judge, No. 3,
Jodhpur, shall proceed in accordance with law.
……………………………….J.
[K. S. Radhakrishnan]
….………………………….J.
[Dipak Misra]
New Delhi;
May 16, 2013.
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