RAJINDER PRASADversusBASHIR AND ORS.

A                                RAJINDER PRASAD
                                            v.
                                  BASHIR AND ORS.

                                SEPTEMBER 19, 2001

B                         [M.B. SHAH AND R.P. SETHI,.JJ.]


          CriTiiittal Procedure Code, 1973:

          Section 203-Chargesheet by Police-Addition of offence uls.. 395 /PC ·             ..
    and impleadment of 4 accused therein, by the Magistrate-Set aside by High
c   Court on the ground that procedi11-e_ uls 203 was not.followedby the Magistrate,- . .
    Held, High Court committed mistake of law, since the section deals with
    complaints to.Magistrate.

         · Sections 397 and 482-Dismissal of Petition u/s 397-Subsequent                         "
D   application.u/s 482 .for the same relief-Held. not maintainabie.

           Section 190-Jurisdiction under-Scope of-Held, Magistrate has
    jurisdiction to take cognizance of offences even.against persons who have not
    been arrested by the police as accused if they were prima .facie guilty of the
                                                                                                 r
    offences.
E
           Appellant-comt>lainant filed applications before Magistrate seeking
     addition of offence under Section 395 IPC against the respondents and
    .seeking impleadment of four accused-respondents to the police chargesheet.
     Magistrate taking recourse to Chapter XIV of Cr.P.C., allowed the
     applications and committed the case to SessiOns Court, who framed charges
F    including charge under Section 395 IPC again~t the respondents.

          Respondents' revision petition under Section 397 Cr.P.C. against the
    order of the Magistrate was dismissed as not pressed. Thereafter
    respondents filed petition under Section 482 Cr.P.C. for quashing the order
G   of the Magistrate. High Court allowed the petition holding that the
    Magistrate, being the court of committal had no power to add four
    respondents as accused, without adopting procedure under Section 203
    Cr.P.C. and directed the Magistrate to hold inquiry as per Section 203(2)
    before inclusion of the offence under Section 395 IPC.

H         In appeal to this Court, appellate contended that since revision petition
                                         156
                       RAJINDER PRASAD v. BASHIR                          157
of the respondents was dismissed as not pressed, they were barred from           A
filing petition under Section 482 Cr.P.C. praying for quashing the order of
the Magistrate, and that the High Court had committed a mistake of law
by directing the Magistrate to follow the procedure under section 203
Cr.P.C.
      Allowing the appeal, the Court                                             B
       HELD : 1. When revision petition filed under Section 397 Cr.P.C.
had been dismissed as not pressed the accused-respondents could not be
allowed to subsequently invoke the inherent powers of the High Court
under Section 482 Cr.P.C. for the grant of the same relief. Only in cases
where the High Court finds that there has been failure of justice or misuse      C
of judicial mechanism of procedure or if sentence or order was not correct,
the High Court may in its discretion, prevent the abuse of the process or
miscarriage of justice by exercise of jurisdiction under Section 482 Cr.P.C.
No special circumstances were spelt out in· the subsequent application for
invoking the jurisdiction of the High Court under Section 482 Cr.P~C. a~d        D
the impugned order is liable to be set aside on this ground.alone.
                                                       [160-C; G 161-A; BJ
      Krishnan & Anr. v. Krishnaveni & Ors., [1997J 4 SCC 241, relied on.

      2. High Court committed a mistake of law by refe1·ring to the
provisions of Section 203 Cr.P.C. and by directing the Judicial Magistrate       E
to hold inquiry as per Section 203(2) Cr.P.C. before deciding the inclusion
of offence under Section 395 IPC or impleadment of the respondents as
accused persons. Chapter XV of the Code comprising of Sections 200 to
203 deals with the complaints to Magistrate and the procedure prescribed
for dealing with such complaints. In the instant case no complaint was filed     F
before the Magistrate by the complainant requiring him to follow the
procedure under Chapter XV. Reference to sub-section (2) of Section 203
Cr.P.C. is misconceived inasmuch as no such sub-section exists in the
statute book. [161-B; DJ

      3. In view of Section 190 Cr.P.C., a Magistrate has jurisdiction to        G
take cognizance of offences against such persons also who have not been
arrested by the police as accused persons, if it appears from the evidence
collected by the police that they were primafacie guilty of offence alleged to
have been committed. [161-GJ

      Raghubans Dubey v. State of Bihar, [1967J 2 SCR 423 and Mis. SWIL          H
     158                 SUPREME COURT REPORTS               [2001] SUPP. 3 S.C.R.
A    Ltd: v. State of Delhi & Am:, JT (2001) 6 SC 405, relied on.

           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 964
     of 2001.

           From the Judgment and Order dated 7.12.2000 of the Rajasthan High
.B   Court in S.B. Crl. M.P. No.219 of 2000.

           Gaurav Agarwal, Prasenjit Keswani and Prashant Kumar for the appellant.

           Arvind Varma, Ms. S. Manda}, Kapil Kr. Chaudhary, Rajiv Mohan Sharma,
     for Mis. Fox Manda} & Co., Javed Mahmud Rao and Ranjit Thomas for the
C    Resp?ndents.

           ·The Judgment of the Court was delivered by

           SETID, J. Leave granted.

D           Aggrieved by the order of the Additional Sessions Judge, Deeg by which
     charges were framed against them for offences punishable under Sections 147,
     148, 323, 324, 149, 427 and 395 of the Indian Penal Code, the respondents filed
     a petition under Section 482 of the Code of Criminal Procedure (hereinafter
     referred to as "the Code") praying for quashing the aforesaid ord.er. Holding
     that the Magistrate, being the court of committal, had no power to add four
E    respondents as accused-persons without adopting procedure as prescribed under
     Section 203 of the Code, the High Court allowed the petition of the respondents
     and set aside the order the ~ourt by which cognizance of offence under Section
     39~ of the Indian Penal Code was taken. The case has been remanded back to
     the learned Magistrate to hold inquiry as per the provisions of Section 203(2)
F    of the Code with direction that if he finds that a case under Section 395 IPC
     is made out, he will pass necessary orders against the accused persons and
     commit the case to the Sessions Judge, if necessary.

            The facts giving rise to the filing of the appeal are that on 10.3.1988
     when the appellant-informant was sitting at his shop in the company of his
G    brothers, the accused persons, namely, Chhaju Khan, Bannu KJ:tan, Nasru
     Khan, Zakir Khan, Mumrej Khan, Razak Khan, Kallu, Nannu, Ramesh Mishtri
     and four others came there and assaulted Hotilal, one of the brothers of the
     appellant with intention to kill him. The other brothers of the appellant were
     also assaulted as a result whereof they received injuries. Accused persons took
H    away a sum of Rs.600 along with some papers from the shop of the informant.
                    RAJINDER PRASAD v. BASHIR [SETHI, J.]                       159
 The showroom (shop) was also damaged resulting in loss to the property. A              A
 case was registered against the accused persons under various sections and
 after investigation charge-sheets were submitted against them. As the charge
 under Section 395 IPC was not added against the accused-persons, the appellant-
 complainant submitted a protest petition seeking the addition of the aforesaid
 offence against them. By another application the appellant-complainant sought
                                                                                        B
 the addition of four accused persons, namely, Babu, Bashir, Sultan and Rajjal
 as their names were allegedly wrongly dropped from the list of accused persons
 by the investigating agency. The committal Magistrate allowed the applications
 and committed the case to the court of Sessions whereafter the learned Additional
 Sessions Judge being the trial court framed the charges against the respondents
 including the charge under Section 395 IPC.                                            c
      The respondents submitted before the High Court that the Magistrate had
 committed a grave error by taking cognizance for offence under Section 395
 IPC as also by adding the names of aforesaid four accused persons while
 committing them to the court of Sessions to stand their trial.
                                                                                        D
         Learned counsel appearing for the appellant made a two-fold submission
· to assail the judgment of the High Court. Firstly, he contended that as the earlier
  revision petition filed by the accused persons under Section 397 of the Code
  had been rejected by the High Court vide order dated 13.7 .1990 (Annexure P-
  6), they had no right to file the petition under Section 482 of the Code with         E
  prayer for quashing the same order. Secondly, it is submitted that the High
 Court committed a mii;take of law by directing the Magistrate to follow the
  procedure as prescribed under Section 203 of the Code.

       The order of the High Court dated 13. 7 .1990 shows that 13 respondents
- accused persons had filed the revision petition challenging the order of the          F
Magistrate taking cognizance for the offence under Section 395 IPC and for
impleading respondents 10 to 13 as accused persons. After the commitment,
the Magistrate as well as the Sessions Judge had issued non-bailable warrants
against the accused persons. When the High Court directed accused persons to
appear before the trial court and furnish their bail bonds, the learned counsel
                                                                                        G
for the accused did not press his petition so far as taking of cognizance against
them was concerned. The relevant portion of the order dated 13.7.1990 is
reproduced hereunder:

          "Petitioners before me have challenged the order of the Magistrate,
          Deeg looking cognizance for the offence under Section 395 IPC and             H
     160                  SUPREM~ COURT REPORTS               [2001] SUPP. 3 S.C.R.
A             for other offence agai~st the petitioners 10 to 13 after some time there
              have contended there· petitioners 1 to 9 were on bail granted under
              section 436 Cr.P.C. and after adding a non bailable offence· viz section
              395 IPC. The Magistrate and the Sessions Judge polh have directed for
              issuance of .~on-bailable warrants both this is not proper, as the
              petitioners 1 to 9 have already been granted bails. For petitioners 10 ·
.B             to13 it is stated that they will also appear before the cou~ and furnish
              their bail and bonds. As far as the first part o( the plea abounaking
              cognizance is concerned the learned counsel for the petitigner does not .
              press the satne."                                               ·

c           We are of the opinion that when the earlier revision petition filed·u~der
     Section 397 of the Code had been disniissed ~s not pressed, the accused-
     respondents could not .be allowed to invoke the inherent powers of the. liigh
  • Co.urt under Section 482 ~f the Code for the grant of the same relief. We do
     not agree with the arguments of the learned counsel for the respondents that
     as the earlier application nad been dismiss.ed as· not pressed, the accused had
D acquired a right to challenge the order adding the offence under Section 395             ·.....-
     of the Code and ~aying four persons as accused-persons by way of s'ubsequent
     petition under Section 482 of the Code .. The object of criminal trial is to render
     public justice and to assure p1mishment to the criminals keeping in view that
     the trial is concluded expeditiously. Delaying· ·tactics or protracting the
E commencement or conclusion of the criminal trial are required to be curbed
     effectively, lest the interest of public justice may suffer. For exercising power
     und.er Section 4~2 of the Cod~ the learned Judge of the High Court relied upon
     a judgment of this Cou~ in Krishnan & Am: v. Krishna.veni & Ors., [1997) 4
     SCC 241. A perusal of the aforesaid judgment, however, shows that the reliance
     by the learned Judge was misplaced. This Court in Krishnan '.s case (supra) had
F
     held that though the power of the High Court under Section 482 of the Code
     is very wide, yet the same must be exercised sparingly and cautiously particularly
     in a case where the petitioner is shown to have already invoked the revisional
   r jurisdiction under Section 397 of the Code. Only in cases where the High Court

     finds that there has. been failure of justice or misuse of judicial mechanism or
G procedure, sentence ·or order was not correct, the High _Court may, in its
     discretion;prevent the abuse of the process or miscarriage.of justice by exercise
     of jurisdiction under Section 482 of the Code. It was further held, "Ordinarily,
     when revision has been barred by Section 397(3) of the Code, a person - .
     accused/complainant - cannot be allowed to .take recourse to the revision to the
H High Court under Section 397(1) or under inherent powers of the High Court
                   RAJINDER PRASAD v. BASHIR [SETHI, J.}                     161 .
 under Section 482 of the Code since it may amount to circumvention of . A
 provisions of Section 397(3) .or Section 397(2) of the Code.".

        We are of the opinion that no special circumstances were spelt out in the
 subsequent application for invoking the jurisdiction of the High Court under
 Section 482 of the Code and the impugned order is liable to be set aside on
 this ground alone.                                                                  B

        Even on merits, the High Court committed a mistake of law by referring
 to the provisions of Section 203 of the Code and after setting aside the impugned
 order ~irecting the Judicial Magistrate to hold inquiry as per Section 203(2) of
 the Code before deciding the inclusion of offence under Section 395 I.P.C. or
 impleadment of the respondents· as accused person's. Chapter XV of the Code
                                                                                     c
 comprising of Sections 200 to 203 deals with the complaints to Magistrate and
 the procedure prescribed for dealing with such complaints. In the instant case
 no complaint was filed before the Magistrate by the complainant requiring him
 to follow the procedure under Chapter XV. Reference to sub-section (2) of
 Section 203 of the Code is misconceived inasmuch as no such sub-section             D
 exists in the statute book.

      From the facts of the case, it appears that.while passing the order which
 was challenged before the High Court, the ·Magistrate had taken recourse to
 Chapter XIV (Sections 190 to 199) of the Code. Section 190 of the Code
 empowers the Magis~ate to. take cognizance of any offence: ·                        E

           "(a) upon receiving a complaint of facts w~ich constitute such offence;

           (b) upon a police report of such facts;

           (c) upon information received from any person other than a police         F
           officer, ~r upon his own knowledge, that such offence has been
           committed."

         Under this section, a Magistrate has jurisdiction to take cognizance of
  offences against .such persons also who have not been arrested by the police
  as accused persons, if it appears from the evidence collected by the police that   G
. they were prima .facie guilty of offence alleged to ha"e been committed.
  Section 209 of the Code prescribes that when in a case instituted on ~ police
  report or otherwise, the accused appears or is brought before the Magistrate qnd
  it appears to the Magistrate thatthe offence is triable exclusively by the Court
. of Sessions he shall commit, after compliance with the provisions of Section       H
    162                  SUPREME COURT REPORTS                  [2001] SUPP. 3 S.C.R.
A   207 or Section 209, as the case may be, the case to the court of Sessions and
    subject to the provisions of the Code, pass appropriate orders. Th;s Section
    refers back to Section 190, as is evident from the words "instituted on a police
    report" used in Section 190(1)(b) of the Code. While dealing with the scope
    of Section 190 this Court in Raghubans Dubey v. State of Bihar, [1967] 2 SCR
    423 held that the cognizance taken by the Magistrate was of the offence and
B
    not of the offenders. Having taken cognizance of the offence, a Magistrate can
    find out who the real offenders were and if he comes to the conclusion that
    apart from d1e persons sent by the police some other persons were also involved,
    it is his duty .to proceed against those persons ~s well.

C         Approving the judgment in Raghubans Dubey~· case (supra) this Court
    in Mis. SWIL Ltd. v. State of Dell?i & Ant:, [JT 2001 (6) SC 405] held:

             " ....in the present case there is no question of referring to the provisions
             of Section 319 Cr.P.C. That provision would come into operation in the
             course of any inquiry into or trial of an offence. In the present case,
D            neither the Magistrate as holding inquiry as contemplated under Section
             2(g) Cr.P.C. nor the trial had started. He was exercising his jurisdiction
             under Section 190 of taking cognizance of a11 offence and issuing
             p~ocess. There is no bar under Section 190 Cr.P.C. that once the
             process is issued against some accused on the next date, the Magistrate
             cannot issµe process to some other person against whom there is some
E
             material on record; but his· name is not included as .accused in the
             charge-i;heet.'.'

          The present case is squarely cov~red by the aforesaid judgments which
    renders the order impugned not sustainable under law.
F
         Under the circumstances, the appeal is allowed by setting aside the order
    impugned and by upholding the order of the Additional Sessions Judge.                    r
    K.K.T.                                                             Appeal allowed.