S.190 CrPC | No Bar On Impleadment Of Any Accused After Magistrate Takes Cognizance, Issues Process: J&K&L High Court

The bench of Justice Rajnesh Oswal recorded these observations while hearing challenging an order passed by the Additional Sessions Judge, Jammu by virtue of which City Judge was directed to implead the petitioner as an accused in the complaint, filed under section 500 Ranbir Penal Code.

The petitioner impugned the order primarily on the two following grounds:

(a) That no such power of impleadment of the accused is vested in the courts below and there is absolutely no enabling provision available to that effect in the criminal procedure code.

(b) That neither in the complaint nor in the statements of the witnesses recorded under section 200 CrPC, any allegation has been levelled against the petitioner and as such, the petitioner could not have been arrayed as an accused.

Initially, the Petitioner was not arrayed as an accused in the complaint filed by Respondent Nos. 1 and 2 against Respondent No. 3, editor of Daily Aftab, Srinagar, with regard to a publication of slanderous/ defamatory columns. However, later on, an application was filed for impleading the petitioner, being the printer and publisher of publication, as an accused.

The Petitioner argued that the application was not maintainable as cognizance has already been taken by the court.

Adjudicating upon the matter Justice Oswal observed that the Magistrate has taken cognizance of the offence and not of the offenders. If from the averments made in the complaint, the Magistrate comes to the conclusion that besides accused named in the complaint, there is/are other accused(s) as well, then the Magistrate is well within the jurisdiction to issue the process and summon them for facing the trial, the bench recorded.

Discussing the said issue the bench placed strong reliance on the Supreme Court judgement in Raghubans Dubey Vs. State of Bihar" reported in 1967 wherein SC observed

"Cognizance taken by a Magistrate was of the offence and 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 the persons sent by the police, some other persons were also involved, it is his duty to proceed against those persons. Summoning of additional accused is a part of the proceeding initiated while taking cognizance of an offence"

Dealing with the second ground of challenge the court observed that the Additional Sessions Judge has failed to consider a vital aspect of the case as to whether there was any material on record for arraying the petitioner as an accused or not and without considering the same he seems to have passed the order impugned.

The High Court observed that there was no material against the petitioner that necessitates his impleadment as an accused, as such, the order impugned is not sustainable in the eyes of law, the bench observed.

Under the circumstances, the order passed by Additional Sessions Judge was set aside.

Case Title : Ghulam Mohd Mir Vs Tej Krishan Ganjoo & Ors.

Citation: 2022 LiveLaw (JKL) 110

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