JILE SINGHversusSTATE OF U.P. & ANR.

                     [2012] 1 S.C.R. 201

                          JILE SINGH                                 A
                                v.
                   STATE OF U.P. & ANR.
              (Criminal Appeal No. 121 of 2012)

                      JANUARY 12, 2012
                                                                     B
          [R.M. LODHA AND H.L. GOKHALE, JJ.]

        Code of Criminal Procedure, 1973: ss.200, 204, 207,
   208, 209, 319 - Charge-sheet filed against accused-Hin a
   murder case - Investigating Officer found that no case was        C
   made out against the appellant - Issuance of summons by
   the Magistrate against the appellant on a private complaint
   u/s.200 made by Respondent No.2 after committal of
   accused-H to the Sessions Court - Whether addition of
   appellant to the array of the accused in a case pending           D
.· before the Sessions Court can be done at a stage prior to
   collecting any evidence - Held: 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         E
   reaching evidence collection when powers u/s.319 can be
   invoked - In the instant case, if the order passed by the
   Magistrate in issuing summons against the appellant on the
   private complaint which was confirmed by the High Court is
   allowed to stand, it would mean addition of the appellant to      F
   the array of the accused in a pending case before the
   Sessions Judge at a stage prior to collecting any evidence
    by that Court - This course is impermissible - The stage of
   s.209 having been reached in the case, it was not open to the
    Magistrate to exercise the power u/s.204(1)(b) and issue         G
    summons to the appellant - Order of the Magistrate was totally
    without jurisdiction.

      Ranjit Singh vs. State of Punjab, 1998 (2) Suppl. SCR
 8: (1998) 7 sec 149; Kishori Singh and ors. VS. State of
                                201                                  H
    202       SUPREME COURT REPORTS              [2012] 1 S.C.R.

A Bihar and Anr. (2004) 13 SCC 11; Raj Kishore Prasad vs.
  State of Bihar, 1996(2) Suppl. SCR 125: (1996) 4 sec 495;
  India Carat (P) Ltd. vs. State of Kamataka 1989 (1) SCR 718:
  (1989) 2 sec 132 - relied on.

B       Hareram Satpathy vs. Tikaram Agarwala & Ors., 1979 (1)
    SCR 349: 1978 (4) SCC 58; Kishan Lal vs. Dharmendra
    Bafna & Anr. 2009 (11) SCR 234: 2009 (7) SCC 685 • held
    in applicable.

                           Case Law Reference:
c
      1998 (2) Suppl. SCR 8       relied on             Paras 5,
                                                        9
      (200~) 13   sec 11          relied on            Paras 5,
                                                       9
D
      1996(2) Suppl. SCR 125 relied on                 Para 8
      1989 (1) SCR 718            relied on            Para 8
      1979 (1) SCR 349            held in applicable Paras 6,
                                                     10
E
      2009 (11) SCR 234           held in applicable Paras 6,
                                                     10

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F No. 121 of 2012.
        From the Judgment and Order dated 110.03.2011 of the
    High Court of Judicature at Allahabad in Criminal Revision No.
    1241 of2011.
G        Manoj Saxena, Khem Chand, Shwatank Sailakwal (for Dr.
    Kailash Chand) for the Appellant.
       Ratnakar Dash, Vikram Patralekh, Shailendra Kr. Mishra,
  Sarika Singh, Santosh Kumar Tripathi, Anuvrat Sharma and
H Alka Sinha for the Respondents.
       JILE SINGH v. STATE OF U.P. & ANR.                  203

    The Judgment of the Court was delivered by                   A
    R.M. LODHA, J. 1. Leave granted.
      2. A certain Bharat Lal Sharma was done to death on
October 26, 2008. His father (respondent No. 2 herein)
informed the Police Station Kosikalan on the next day, i.e., B
October 27, 2008 at 8 a.m. that he received an information in
the morning at abcut 7 a.m. that his son Bharat Lal Sharma had
been murdered and his dead body was lying in the agricultural
field of Ghure son of Gaisi, 'Jal' resident of Tumaura. On·receipt
of this information, he (respondent No. 2 herein ) went to the C
spot and found that the body of his son was lying in blood. His
son was killed with some sharp edged weapon the previous
night. He requested the police to register First Information
 Report (FIR) against unknown accused persons and take
 appropriate action in the matter. On this information, an FIR was D
registered and investigation commenced. On conclusion of the
 investigation, the Investigating Officer submitted charge-sheet
 naming one Hari Singh as an accused ·having committed the
 murder of Bharat Lal Sharma. On the basis of the material
 collected by the Investigating Officer, no case was found out E
 against the present appellant-Jile Singh and the Investigating
 Officer concluded that the appellant has been falsely named in
 the course of investigation.
    3. On May 2, 2009, the Chief Judicial Magistrate, Mathura, F
committed the accused-Hari Singh to the Court of Sessions
Judge, Mathura for trial. It was then that the complainant-
respondent No. 2 herein filed a private complaint under Section
200 of the Code of Criminal Procedure, 1973 (for short, 'the.
Code') in the court of Judicial Magistrate, Mathura, against the G
present appellant and one Jayveer Singh for the murder of his
son Bharat Lal Sharma.
    4. The Chief Judicial Magistrate, Mathura, after recording
the statements under Section 202 of the Code, issued              H
     204        SUPREME COURT REPORTS                [2012] 1 S.C.R.

A summons to the appellant on January 3, 2011. Aggrieved by
  that order, the appellant filed Criminal Revision before the
  Allahabad High Court which came to be dismissed on March
   10, 2011. It is from this order that the present Appeal, by special
  leave, has arisen.
B
        5. Mr. Manoj Saxena, learned counsel for the appellant,
  submitted that the issuance of summons by the Chief Judicial
  Magistrate, Mathura, on a private complaint made by the
  respondent No. 2 after committal of accused-Hari Singh for the
C murder of Bharat Lal Sharma to the Sessions Court, was
  without jurisdiction. He would submit that addition of a new
  person to the array of the accused in a case pending before
  the sessions court can only be done by that court in exercise
  of the power under Section 319 of the Code and in no other
  way. In this regard, he relied upon decisions of this Court in the
0
  cases of Ranjit Singh Vs. State of Punjab 1 and Kishori Singh
  and Ors. Vs. State of Bihar and Anr. 2

        6. Mr. Ratnakar Dash, learned senior counsel for the
  respondent No. 1-State of Uttar Pradesh, and Mr. Vikram
E Patralekh, learned counsel for respondent No. 2-complainant,
  stoutly defended the impugned order. They submitted that the
  complaint filed by the complainant before the Magistrate was
  maintainable under Section 200 of the Code since the
  Investigating Officer on conclusion of the investigation did not
F name the appellant as accused although there was material to
  that effect in the course of investigation. The learned senior
  counsel and the learned counsel for the respondents submitted
  that if on receipt of a report, the police takes up the investigation
  of a case and on completion thereof submits a charge-sheet
G against few persons and leaves the other persons involved in
  the crime by stating in the report that no case has been made
  out against such person, it is open to the aggrieved

    1.   (1998) 7 sec 149.
H 2. (2004) 13 sec 11.
          JILE SINGH v. STATE OF U.P. & ANR.                 205
                   [R.M. LODHA, J.]
 complainant to file a complaint under Section 200 of the Code A
 and the Magistrate is empowered to issue summons. In this
  regard, they relied upon a decision of this Court in Hareram
. Satpathy Vs. Tikaram Agarwala & Ors. 3 Mr. Ratnakat Dash,
  learned senior counsel for the respondent No. 1, also referred
  to another decision of this Court in Kishan Lal Vs. Dharmendra B
  Bafna & Anr. 4 and submitted that if a right has been given to
  the complainant to be given notice of filing of the police report
  and to file protest petition, there is no impediment in the law
  for maintaining a complaint if persons involved in the crime
  have been left over by the police in the course of the C
  investigation.

      7. The present case, in our view, is squarely covered by
 the law laid down by this Court in the case of Ranjit Singh
 (supra) and the subsequent decision in the case of Kishori          0
·Singh (supra) reiterating the same legal position. In Ranjit
 Singh (supra), this Court was concerned with the issue whether
 the 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 that considered      E
 the above issue referred to various provisions of the Code,
 namely, Sections 204, 207, 208, 209, 225, 226, 227, 228, 229,
 230 and 319 and held as under :

      "19. So from the stage of committal till the Sessions Court
      reaches the stage indicated in Section 230 of the Code,        F
      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.
                                                                     G
       20. Thus, once the Sessions Court takes cognizance of
       the offence pursuant to the committal order, the only other

 3.   1978 (4) sec 58.
 4.   2000 (7) sec 685.                                              H
     206        SUPREME COURT REPORTS               [2012) 1 S.C.R.


A           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
B          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."

       8. The above legal position has been reiterated by this
c Court in a subsequent decision in the case of Kishori Singh
  (supra). The two Judge Bench in Kishori Singh (supra)
  considered some of the provisions of the Code and earlier
  decision of this Court in Ranjit Singh (supra) and two other
  decisions, namely, Raj Kishore Prasad Vs. State of Bihar and
                                            5
0 India Carat (P) Ltd. Vs. State of Kamataka , and held as under:-
          "9. After going through the provisions of the Code of the
          Criminal Procedure and the aforesaid two judgments and
          on examining the order dated 10-6-1997 passed by the
          Magistrate, we have no hesitation to come to the
E         conclusion that the Magistrate could not have issued
          process against those persons who may have been
          named in the FIR as accused persons, but not charge-
          sheeted in the charge-sheet that was filed by the police
          under Section 173 CrPC.
F
          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
G         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 ·

    5.   (1996) 4 sec 495.
H a. (1989) 2 sec 132.
        JILE SINGH v. STATE OF U.P. & ANR.                 207
                 [R.M. LODHA, J.]
    learned Sessions Judge to the High Court and the High A
    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 Be11ch decision. Neither
    of the contingencies has arisen in the case in hand."        8

     9. In the present case, if the order passed by the Chief
Judicial Magistrate, Mathura, in issuing summons against the
appellant on the complaint filed by the respondent No. 2-
complainant, which has been confirmed by the High Court, is C
allowed to stand, it would mean addition of the appellant to the
array of the accused in a pending case before the Sessions
Judge at a stage prior to collecting any evidence by that court.
This course is absolutely impermissible in view of the law laid
down by a three Judge Bench of this court in the case of Ranjit 0
Singh (supra). The stage of Section 209 of the Code having
reached in the case, it was not open to the Chief Judicial
Magistrate, Mathura to exercise the power under Section
204(1)(b) of the Code and issue summons to the appellant. The
order of the Chief Judicial Magistrate, Mathura is totally without E
jurisdiction. The High Court was clearly in error in not keeping
in view the law laid by this Court in the case of Ranjit Singh
(supra) followed by a subsequent decision in the case of
Kishori Singh (supra) and in upholding the illegal order of the
Chief Judicial Magistrate, Mathura.
                                                                  F
      10. The two decisions, namely, Hareram Satpathy
(supra)and Kishan Lal (supra) relied upon by the learned senior
counsel and counsel for the respondents have no application
at all to the case in hand.
                                                                  G
    11. We, accordingly, allow this Appeal and set aside the
order of the High Court dated March 10, 2011 impugned in this
present Appeal and the order of the Chief Judicial Magistrate,
Mathura, dated January 3, 2011.
                                                                  H
    208      SUPREME COURT REPORTS                [2012] 1 S.C.R.


A        12. Needless to say that in the course of trial, on the basis
  of the evidence if it appears to the Sessions Judge that any ·
  person not being the accused in the frial has committed the
  offence and the case is made out for exercise of power under
  Section 319 of the Code for proceeding against such person,
B it will be open to the Sessions Judge to proceed accordingly
  and the present order will not come in the way in exercise of
  his power under Section 319 of the Code.

    D.G.                                          Appeal allowed.