1. This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, “CrPC”), seeking quashing of the proceedings in Crl.M.P. No. 84 of 2019 in PRC No. 18 of 2016 on the file of the II Additional Judicial Magistrate of First Class, Kothagudem. The said proceedings arise from the order whereby the learned II Additional Judicial Magistrate of First Class, Kothagudem, took cognizance of the alleged offences punishable under Sections 143, 148 and 307 read with Section 149 of the Indian Penal Code (for short, “IPC”) against the petitioner/Accused No. 4, notwithstanding the fact that the petitioner’s name had been deleted from the charge sheet by the Investigating Officer.

2. Heard Mr. Banoth Kantha Rao, learned counsel for the petitioners, and Mr. Syed Yasar Mamoon, learned Additional Public Prosecutor, representing the respondent-State and Mr. Angothu Nehru, learned Counsel for respondent No.2-defacto-complainant.

3.1. Briefly stated, the case of the prosecution is that, the de facto complainant lodged a report alleging that, on 23.10.2016 at about 9:30 p.m., owing to previous enmity arising out of an earlier rape case registered against Accused No.1, in which the complainant and her husband had supported the family of the victim, Accused No.1 developed a grudge against them and threatened them with dire consequences. It is further alleged that, pursuant to the said grudge, Accused No.1, along with the other accused, formed an unlawful assembly, armed with rods, sticks and stones, and intercepted the de facto complainant’s husband and his friend while they were returning home after attending a family function. The accused are alleged to have assaulted them with the common object of causing the death of the complainant’s husband. The complaint further alleges that, after the injured persons were brought back to the village, the accused continued the assault despite the intervention of the complainant and other witnesses. Both injured persons sustained grievous injuries and were initially shifted to the Government Hospital, Palvancha, and thereafter referred to Kothagudem for better treatment. On the basis of the allegations contained in the report, a crime was registered and investigation was taken up.

               3.2. Upon completion of the investigation, however, the Investigating Officer found no incriminating material connecting the petitioner with the alleged occurrence and, accordingly, did not include his name in the charge sheet filed against the remaining accused. Thereafter, the de facto complainant filed Criminal M.P. No.84 of 2019 seeking cognizance of the alleged offences against the petitioner as well. The learned Magistrate, without impleading the petitioner in the said proceedings or affording him an opportunity of hearing, proceeded to record the statements of certain witnesses. Thereafter, having considered the statements recorded under Section 164 of the CrPC along with the report and the FIR, the learned Magistrate took cognizance of the alleged offences against the petitioner. Aggrieved by the said order, the petitioner has preferred the present petition seeking quashing of the impugned order on the ground that the same was passed without jurisdiction, contrary to the procedure prescribed under the CrPC and in violation of the principles of natural justice.

4.1. Learned counsel for the petitioner submits that the impugned order passed by the learned Magistrate is wholly without jurisdiction and contrary to the procedure prescribed by law. It is contended that, upon completion of the investigation, the Investigating Officer specifically found no incriminating material against the petitioner and, consequently, omitted his name from the charge sheet. Notwithstanding such categorical finding recorded during investigation, the learned Magistrate, on an application filed by the de facto complainant, proceeded to take cognizance of the alleged offences against the petitioner.

               4.2. It is further submitted that the petitioner was neither impleaded as a party to the said application nor afforded notice or an opportunity of hearing before the impugned order was passed. According to the learned counsel, such procedure is in violation of the principles of natural justice. It is also contended that the learned Magistrate committed a further procedural irregularity by recording statements under Section 161 of the CrPC after submission of the charge sheet and thereafter relying upon such statements for the purpose of taking cognizance against the petitioner, even though, according to the petitioner, such a course is not contemplated under the CrPC.

               4.3. Learned Counsel for the petitioner further contends that the statement recorded under Section 161 CrPC do not implicate the petitioner and that the Investigating officer after fulfledged investigation consciously excluded him from the final result. It is argued that in a case exclusively triable by the Court of Session, the learned Magistrate could not have exercised powers akin to Section 319 of CrPC to summon the petitioner as an additional accused. Such powers vests only in the Sessions Court, after committal and upon emerges of strong and cogent evidence during trial. Lastly it is submitted that the impugned order is contrary to the settled law laid down by the Hon’ble Supreme Court regarding the scope of Sections 164 and 319 of CrPC particularly the requirement of strong and convincing evidence before adding a person as an accused after completion of investigation. It is therefore prayed for indulgence and in exercise of extraordinary jurisdiction to quash the impugned order and consequential summons issued to the petitioner.

5. Learned Additional Public Prosecutor opposed the petition and supported the impugned order. It is submitted that the learned Magistrate rightly exercised jurisdiction in taking cognizance against the petitioner upon being satisfied that sufficient material disclosed his involvement in the alleged offences. It is contended that the learned Magistrate was not bound by the Investigating officer’s omission of the petitioner’s name from the charge sheet and was competent to independently apply his judicial mind to the material available on record. It is further submitted that the material collected during the proceedings including the statements recorded under Section 164 of CrPC prima facie disclosed the petitioner’s participation in an unlawful assembly which attacked the complainant’s husband and another person with deadly weapons the learned Magistrate was therefore justified in considering the entire material before the Court while deciding whether to take cognizance. The respondents further contended that the petitioner had no vested right to be heard before taking cognizance in judicial function based on the material on record. The issuance of summons pursuant to the impugned order provides the petitioner with adequate opportunity to appear and arrest all permissible defences in accordance with law. It is also submitted that the complaint discloses that the petitioner along with the other accused had taken part in the occurrence in prosecution of common object assaulted the complainant’s husband and another person with an intention causing death thereby attracting the alleged offences against him. Further, at the stage of cognizance the Court is required to ascertain whether a prima facie case exists and not to undertake a meticulous appreciation of evidence. Lastly it is contended that the inherent jurisdiction under Section 482 of CrPC is to be exercised sparingly and only where continuation of proceedings amounts to an abuse of process. Since the impugned order is based on prima facie material disclosing the petitioner’s involvement the disputed questions raised can be adjudicated only during trial. The respondents therefore prayed for dismissal of the petition.

6. I have carefully considered the submissions and perused the material available on record.

7. It is evident from the prosecution case that the Investigating Agency, while filing the final report, omitted the name of the petitioner herein, who had originally been shown as Accused No. 4. Thereafter, Respondent No. 2/de facto complainant is stated to have filed a protest petition seeking the Court’s indulgence for taking cognizance against the petitioner/Accused No. 4. The materials on record indicate that the proceedings before the learned Magistrate were conducted in connection with a case triable by the Court of Session. The pleadings further make it clear that, after submission of the charge-sheet but before the matter was committed to the Sessions Division, the protest petition seeking cognizance against the petitioner was filed.

8. The primary question that therefore arises for consideration is whether the learned Magistrate was empowered to entertain a protest petition challenging the deletion of an accused from the charge-sheet. This question assumes particular significance in the context of the objection raised by the petitioner that, in a Sessions case, the addition of an accused is permissible only before the Sessions Court and only within the scope of Section 319 of the Cr.P.C.

9. This Court, in Law Finder Doc Id # 2788650 had considered a similar issue in similar circumstances and, upon examining the relevant aspects, held in paraNo.s 12 to 17 as hereunder.

               “12. The legal position on this issue is no longer res integra. The Hon’ble Supreme Court, in Dharam Pal and Others v. State of Haryana [(2014) 3 SCC 306], has conclusively clarified the scope of jurisdiction. In that case, certain accused persons named in the FIR were not included in the charge-sheet and were relegated to Column 2 of the police report. The Magistrate, disagreeing with the police report, issued summons to them under Section 190 Cr.P.C. without invoking the procedure under Sections 200 or 202. That order was upheld in revision and confirmed by the High Court.

               13. The matter ultimately reached the Supreme Court, where, in view of conflicting precedents (Kishun Singh and Ranjit Singh), a Constitution Bench of five Judges considered the following questions (para 7 of the judgment):

                A. Whether a committing Magistrate has any role to play after committing the case to the Court of Session?

               B. Whether the Magistrate, on disagreeing with the police report, has jurisdiction to summon accused persons shown in Column 2?

               C. Whether, before issuing such summons, the Magistrate must follow the complaint procedure under Sections 200–202 Cr.P.C.?

               D. Whether the Sessions Judge can issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction?

               E. Whether, after committal, the Sessions Judge must wait until Section 319 Cr.P.C. stage to summon additional accused?

               F. Whether the decision in Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 (overruling Kishun Singh v. State of Bihar (1993) 2 SCC 16 : 1993 SCC (Cri) 470) was rightly decided?

               14. The Constitution Bench held inter alia:

               i. On receiving a police report disclosing that the case is triable by the Sessions Court, the Magistrate’s only function is to commit the case.

               ii. However, the Magistrate has ample powers to disagree with the police report under Section 173(2) Cr.P.C. and may proceed against persons omitted in the charge-sheet, even dehors the police report. This power, significantly, is not available to the Sessions Court until the stage of Section 319 Cr.P.C. is reached.

               iii. Thus, before committal, the Magistrate may entertain a protest petition, issue process, or summon additional accused if satisfied that a prima facie case exists.

               iv. After committal, the Sessions Court assumes original jurisdiction under Section 193 Cr.P.C. and, in that capacity, can itself entertain a protest petition or private complaint, and pass orders in accordance with law.

               v. It was clarified that the Sessions Court is not required to wait until the Section 319 stage to summon additional accused once cognizance is taken under Section 193.

               15. The Bench thus reconciled the earlier conflicting views and laid down that both the Magistrate (pre-committal) and the Sessions Court (post-committal) possess powers to deal with protest petitions/complaints, albeit at different procedural stages.

               16. In the present case, the protest petition/private complaint was admittedly filed after committal of the matter and after the Sessions Court had already taken cognizance. In view of the law laid down in Dharam Pal (supra), it is the Sessions Court alone that possesses jurisdiction to entertain such a protest petition. Accordingly, the order of the learned Principal Sessions Judge, Bhupalpally, refusing to entertain the petition is legally unsustainable. Conversely, the return endorsement by the learned Magistrate declining jurisdiction is found to be proper and justified.

               17. In light of the foregoing discussion, the following legal position emerges:

               a) Under Section 193 Cr.P.C., once a case is committed by the Magistrate, the Court of Session assumes original jurisdiction and is competent to take cognizance of offences.

               b) Before committal, the Magistrate may entertain a protest petition or private complaint and proceed under Section 190 Cr.P.C., including against persons whose names appear in Column 2 of the police report.

               c) After committal, the Sessions Court, exercising original jurisdiction, alone is competent to entertain and adjudicate a protest petition or private complaint concerning deletion of accused, and it need not defer such consideration until the stage of Section 319 Cr.P.C. is reached.”

10. Thus, the filing of a protest petition, before the learned Magistrate in a Sessions case is legally permissible prior to committal of the case. Once the matter has been committed to the Sessions Division, an application of such nature may be filed before the Principal Sessions Court or before the Court to which the case has been made over. In the present case, since the protest petition was filed prior to committal, the learned Magistrate was justified in entertaining the petition, and the exercise of such jurisdiction is legally sustainable.

11. Once a protest petition is filed, while taking cognizance under Section 190 of the CrPC, the learned Magistrate is not bound by the opinion formed by the Investigating Officer. The Magistrate may, upon an independent application of mind to the materials accompanying the police report, take cognizance of an offence even against a person who has been omitted from the charge-sheet. At the same time, the order taking cognizance must disclose due application of mind and indicate the reasons that persuaded the Court to differ from or depart from the conclusion arrived at by the Investigating Officer. The exercise of such jurisdiction must strictly conform to the procedure contemplated under the Code. In this context, it is pertinent to note that, the Constitution Bench of the Hon’ble Supreme Court in Dharam Pal v. State of Haryana, (2014) 3 SCC 306, categorically held that the learned Magistrate is competent to summon a person who has not been charge sheeted if the materials accompanying the police report disclose sufficient grounds for proceeding against such person.

12. In the present case, the statements of the eyewitnesses relating to the latter part of the occurrence specifically implicate the petitioner as one of the members of the unlawful assembly. Their version finds substantial corroboration in the statements of the injured witnesses and the accompanying injured witness, who consistently narrated the occurrence and attributed participation in the assault to the accused. The prosecution case also receives support from the statements of L.Ws. 3 to 5 concerning the motive arising out of the previous enmity between the parties.

13. At the stage of taking cognizance, the Court is not expected to meticulously evaluate the credibility of witnesses or to weigh the probative value of their statements, as those are matters to be considered during the course of trial. At that stage, the existence of a prima facie case is sufficient for proceeding against the accused. The learned Counsel for the petitioner has placed considerable emphasis on the contention that, according to certain witnesses, the petitioner was not present at the scene of occurrence, and that this constitutes a material discrepancy when compared with the statements of the alleged injured witnesses. Such discrepancies, however, primarily relate to the appreciation of evidence and the opportunity of the witnesses to observe the occurrence. Minor inconsistencies or contradictions in the statements of witnesses are matters to be tested during trial through cross-examination and appreciation of evidence. Such inconsistencies, by themselves, cannot ordinarily constitute a ground for invoking the inherent jurisdiction of this Court to quash the proceedings.

14. The contention that the learned Magistrate illegally relied upon statements recorded under Section 164 of the CrPC after submission of the charge-sheet also does not merit acceptance. Even assuming that such statements were taken into consideration, the statements recorded under Section 161 of the Cr.P.C., coupled with the complaint and other materials collected during the investigation, prima facie disclose the petitioner’s involvement in the alleged offences. Therefore, the order taking cognizance cannot be said to be founded solely upon the statements recorded under Section 164 of the Cr.P.C. The petitioner will have ample opportunity during the course of trial to challenge the admissibility, evidentiary value and reliability of such statements in accordance with law.

15. The further contention that the petitioner ought to have been afforded an opportunity of hearing before issuance of summons is also devoid of merit. At the stage of taking cognizance of the offence and issuance of process, the proposed accused has no vested right to be heard. The CrPC does not contemplate issuance of notice to the proposed accused before the Court takes cognizance of an offence and issues process. The petitioner will have full opportunity to defend himself before the trial Court in accordance with law.

16. It is also well settled that the inherent jurisdiction of this Court under Section 482 of the Cr.P.C. is extraordinary in nature and is required to be exercised with great caution and circumspection. Such jurisdiction may be invoked only in appropriate cases, including where the allegations, even if taken at their face value, do not disclose the commission of any offence, or where continuation of the proceedings would otherwise amount to an abuse of the process of the Court. The Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, has enumerated the categories of cases in which such inherent power may appropriately be exercised. The present case does not fall within any of the parameters laid down in Bhajan Lal (supra). The materials collected during the investigation, if accepted at their face value, prima facie disclose the commission of cognizable offences and the alleged participation of the petitioner therein. Whether the prosecution ultimately succeeds in establishing the guilt of the petitioner is a matter to be determined only upon appreciation of the evidence during trial.

17. In view of the foregoing discussion, this Court is of the considered view that the petitioner has failed to make out any ground warranting interference under Section 482 of the CrPC. The impugned order taking cognizance does not suffer from any patent illegality, perversity or jurisdictional error warranting exercise of the inherent powers of this Court. Accordingly, no interference is called for.

18. Accordingly, the Criminal petition is dismissed.

Consequently, all pending miscellaneous applications, if any, shall stand closed.