1. This Revision Application under section 435 read with section 439, Cr. P. C. Is directed against the order dated 1st July, 1980 passed by the Third Additional Sessions Judge, Hyderabad whereby be rejected the application of complainant (urban Ali seeking g' that Mst. Mehrun Nisa alias Chimni, wife of lissab Ali whose name transpired in Column No. 2 of the charge-sheet may be detained and joined as co-accused for the purpose of trial of Sessions Case No. 152 of 1978 (State versus Punhoon) under section 302, P. P. C. ; as there was evidence on record that the aforesaid Mst.
2. Mehrun Nisa alias Chimni, wife of Issab Ali was also concerned in the cammission of the offence.
3. The learned Third Additional Sessions Judge, Hyderabad without going into the merits of the application, held that since no enquiry had been conducted against Mst. Chimni of any Magistrate, the law debarred him from taking cognizance. He, therefore, did not feel called upon to discuss the evidence on the record against Mst. Chimni.
4. The legal point involved in the instant application is whether Mst. Chimni whose name was shown in column No. 2 and who was not reported under section 173, Cr. P. C. Could have been joined as co-accused in the case before the Sessions Court.
5. Section 190 of the Cr. P. C. Makes provision for cognizance of offence by a Magistrate and in subsection (3) thereof there is a provision that a Magistrate taking cognizance under subsection (1) of an offence triable exclusively i)y a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial. Incidentally, cognizance under subsection (1) also includes taking cognizance of any offence upon report in writing of such facts made by any Police Officer.
6. Prior to the enforcement of the law Reforms Ordinance, 1972, the Court of Session could not take cognizance of an offence as a Court of Original Jurisdiction unless the accused had been committed to it by a Magistrate empowered on that behalf. However, as already pointed out, the amended subsection (3) of section 190 of the Cr. P. C. No longer makes it necessary for the Magistrate to initiate enquiry proceedings. Sub--section (1) of section 193 provides that except as otherwise expressly provided by the Court or by any other law for the time being in force no Court of Session shall take cognizance of any offence as a Court of Original Jurisdiction unless the case has been sent to it under section 190 subsection (3). The question whether cognizance of offence taken on basis of negative report of police under section 173 would be cognizance under clause (b) or under clause (c) of section 190 (1) came up before the Supreme Court in Noor Muhammad and others v. Muhammad Nawas and another (1969 SCMR 271). The facts, of that case were that the police had challaned several of the co-accused and appellant Noor Muhammad, who was also accused in the case, had been shown only in column No. 2, and at the same time there was mention in the challan that, if the Magistrate so desires, he may be summoned. The Magistrate tried the accused, including the appellants, and convicted them of the offences with which they were charged. On appeal, the Additional Sessions Judge set aside the conviction on the ground that the Magistrate should have informed the accused under section 191 of the Cr. P. C. That he was entitled to have the case tried by another Magistrate. He held that since this was not done, the entire proceedings had been vitiated. In Revision, however, the High Court took the view that the case was not one which was covered by the decision of the Federal Court in Abdul Sattar Mula's case as the cognizance was taken by the Magistrate on the basis of the negative report under section 173 and, therefore it was cognizance under subsection (b) of clause (1) of section 190 and not sub-clause (c) thereof. The decision of the High Court in that very case had been approved by the Supreme Court in the case of Falak Sher v. The State (PLD 1967 SC 425) and also in Petition for Special Leave to Appeal No. 66 of 1966 (Sardar Ali and others v. The State). It was held, following the aforesaid decisions, that provisions under section 191 were not attracted.
7. In Falak Sher and another v: The State it was held that the action of the Magistrate in issuing summons to an accused, despite the fact that the Investigating Officer in his report under section 173, Cr. P. C. Had placed their names in column No. 2 thereof, was correct. It was observed that section 190 provides that a Magistrate may take cognizance of any offence (a) upon a complaint,
(b) upon police report and (c) upon information received by himself." It was further observed as under:-- ---Now, the question is, if he disagrees with the report, can he take action under clause (b) against those whose names have been placed under Column No. 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under section 173. When the said report is received by the Magistrate, the Magistrate, on the report itself, may not agree with the conclusions reached by the Investigating Officer. There is nothing in section 190 to prevent a Magistrate from taking cognizance of a case under clause (b) in spite of the police report."
8. Reliance was also placed on observations in the decision of the case of Sardar Ali and others v. The State (P. S. L, A 66 of 1966) where in it had been observed as under :-- `Reference to section 173, Cr. P. C. Which prescribed the details that must go into a police report of relevant kind shows that the requirements are of a factual nature so that irrespective of the Investigating Officer's opinion, a Magistrate takes cognizance on a police report, when he proceeds against a person whose name is mentioned therein as one accused of the offence reported upon."
9. The decisions of the Supreme Court referred to above make it clear if the name of a person is mentioned in Column No. 2 of the challan a Magistrate who takes cognizance of such report can proceed against such a person. The same considerations which applied in the case of the Magistrate when in cases exclusively triable by the Sessions Court he had to hold committal enquiry apply to the Court of Session as the cognizance is taken by the Magistrate and the matter sent up to the Court ; but the Magistrate is no longer required to hold enquiry before doing so, and evidence is now directly recorded by the Sessions Court.
10. In Muhammad Ishaq v. The State (1979 P Cr. L J Note 96 at p. 63) considering the question whether, after the endorsement of Law Reforms Ordinance, the Sessions Judge or for that matter the Additional Sessions Judge can summon a person shown in Column No. 2 of the challan to stand his trial, it was observed as under :- "Prior to the enforcement of the Law Reforms Ordnance, 1972 the Court of Session could not take cognizance of an offence as a Court of Original Jurisdiction unless the accused had been committed to it by a Magistrate duly empowered in that behalf ; but after the enforcement of the aforesaid Ordinance, the law has undergone a change insofar as the offences exclusively triable by the Court of Session are concerned. Now, a Magistrate taking cognizance under subsection (1) of section 190 of the Code of Criminal Procedure is required under subsection (3) to send the case to the Court of Sessions for trial without recording any evidence. The cognizance in such cases is for sending the case to the Court of Session and not for purpose of initiating an enquiry into the offence."
11. In that decision it was further observed that subsection (3) of section i90, as it stood before the amendment, imposed an embargo upon the Court to take cognizance as a Court of Original Jurisdiction unless the case had been committed by the Magistrate duly empowered in that behalf with the result that the Court of Session had no power to join a person as co-accused in a case before it and cognizance was restricted to the accused in respect of whom the order of commitment was made by a competent Magistrate. It was further observed that now the position has changed as the Court of Session takes cognizance of the offence. Reliance was placed on the decision in Sardar Ali v. The State (PLD 1966 Lab1790) wherein it was held as under:- "When the Court becomes seized of the case relating to criminal transaction it becomes seized of the entire case. In other words, the Court obtains jurisdiction of persons involved in the transaction.
12. The cognizance of the Court extends not only to the person against whom the challan is submitted, but to other persons who might be implicated therein."
13. It was therefore held that on receiving the case from the Magistrate the Court of Session under section 193(1) of the Criminal Procedure Code is seized of the entire case and can summon any person as an accused who might appear concerned with the commission of the offence irrespec-- tive of the fact that he was declared innocent by the police and shown in Column No. 2 of the challan.
14. In Muhammad Hanif and another v. The State (1979 P Cc. L J 1078) the contention was raised that since one of the appellants who had been placed in column No. 2 was summoned by the Sessions Court, it was the statutory duty of the trial Court to inform the appellants that they were entitled to have the case tried by another Court, and for the reason that the entire proceedings were coram non judice. The contention was rejected and it was held that the requirement to inform the accused that he is entitled to have the case tried by another Court arises only in case when cognizance is taken of an offence under subsection (1) (c) of section 190, Cr, P. C. By a Magistrate. It was further observed as under:- "The principle that a Magistrate took cognizance of the offence and not the accused alone, and it was within his competence to summon such of the, accused also who had not been challaned, is now equally applicable to the Court of Session. While, on this point, we would also like to indicate that it deserves proper examination and consideration whether the wording "except as otherwise expressly provided by this Code" appearing in section 193, can be deemed to cover the provisions of section 204, Cr P. C as the word "Court" has now been substituted for the word "Magistrate" in the latter portion. The word "Courts" according to section 6 of Criminal Procedure Code includes Courts of Session. Giving effect to the altered wording and the scheme, we do not think that section 204 is complimentary to the provisions of section 200 and limited to the cases of private complaints before a Magistrate. Section 204 is placed in separate chapter (Chapter XVII) and is independent of Chapter XVI, which includes sections 200 to 203. If the intention of the Legislature was to make the two compel--mentary of each other and restrict it to a complaint before a Magistrate, there was no need fur substituting the word "Magistrate" by the word "Court" in section 201, Cr. P. C. Proper effect of the word "Court" has to be noted, and a Court of Sessions is a class of Courts. We, therefore, do not rule out the possibility that a direct complaint before the Court of Session, be now competent, in a case sent to the Court of Session under sub--section (3) of section 150, Cr. P. C."
15. In Muhammad Ishag and another v. The State where report of Investigating Officer showed the petitioners in column No. 2, a challan was submitted to the Court of Enquiry Officer for commitment proceedings, after the aforesaid consulted Law Reforms Ordinance carne into force and the file was transferred to the Court of Session, it was held that prior to enforcement of Law Reforms Ordinance, 1972 section 193(I), Cr. P. C. Imposed embargo on Court as Session to take cognizance of offence as Court of Original jurisdiction, but this embargo having been removed, Court of Session can take cognizance of offence and summon all persons implicated.
16. In the circumstances of the case, for the reasons given, the Revision Application is allowed, and the order of the learned Additional Sessions judge is set aside. It is, however, up to him to consider the application moved by the complainant for joining Mst. Mehrun Nisa alias Chimmni wife of Issab Ali as co-accused on the merits and pass appropriate legal orders.