Keeping in view the aforesaid legal position, we may now discuss
the circumstances under which the cognizance was taken by the
Session Judge. Here is a case where the Police report which
was submitted to the Magistrate, the IO had not included the
appellants as accused persons. The complainant had filed
application before the learned Magistrate with prayer to take
cognizance against the appellants as well. This application was
duly considered and rejected by the learned Magistrate. The
situation in this case is, thus, not where the investigation
report/chargesheet filed under Section 173(8) of the Code
implicated the appellants and appellants contended that they are
wrongly implicated. On the contrary, the Police itself had
mentioned in its final report that case against the appellants had
not been made out. This was objected to by the complainant who
wanted the Magistrate to summon these appellants as well and
for this purpose the application was filed by the complainant
under Section 190 of the Code. The appellants had replied to the
said application and after hearing the arguments, the application
was rejected by the Magistrate. This shows that order of the
Magistrate was passed with due application of mind whereby he
refused to take cognizance of the alleged offence against the
appellants and confined it only to the son of the appellants. This
order was not challenged. Normally, in such a case, it cannot be
said that the Magistrate had played 'passive role' while
committing the case to the Court of Sessions. He had, thus,
taken cognizance after due application of mind and playing an
“active role” in the process. The position would have been
different if the Magistrate had simply forwarded the application of
the complainant to the Court of Sessions while committing the
case. In this scenario, we are of the opinion that it would be a
case where Magistrate had taken the cognizance of the offence.
Notwithstanding the same, the Sessions Court on the similar
application made by the complainant before it, took cognizance
thereupon. Normally, such a course of action would not be
permissible.
22. The next question is as to whether this Court exercise its powers
under Article 136 of the Constitution to interdict such an order.
We find that the order of the Magistrate refusing to take
cognizance against the appellants is revisable. This power of
revision can be exercised by the superior Court, which in this
case, will be the Court of Sessions itself, either on the revision
petition that can be filed by the aggrieved party or even suo moto
by the revisional Court itself. The Court of Sessions was, thus,
not powerless to pass an order in his revisionary jurisdiction.
Things would have been different had he passed the impugned
order taking cognizance of the offence against the appellants,
without affording any opportunity to them, since with the order
that was passed by the learned Magistrate a valuable right had
accrued in favour of these appellants. However, in the instant
case, we find that a proper opportunity was given to the
appellants herein who had filed reply to the application of the
complainant and the Sessions Court had also heard their
arguments. For this reason, we are not inclined to interfere with
the impugned order and dismiss this appeal.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 253 OF 2016
BALVEER SINGH V STATE OF RAJASTHAN & ANR.
Dated:MAY 10, 2016.
A.K. SIKRI, J.
The appellants in this appeal are the parents of one
Abhimanyu Singh who was married to Renu on 24.02.2014.
Renu was found dead on 27.11.2014 i.e. within ten months of the
wedding. Cause of death was Asphyxia due to hanging. An FIR
was lodged by respondent No. 2 herein (Father of deceased)
alleging that Renu was done to death by her husband Abhimanyu
Singh as well as his parents (appellants herein) for not satiating
the dowry demands of the accused persons. FIR has been
registered under Sections 304-B and 498-A of the Indian Penal
Code. The appellants claimed that it was a case of suicide by
hanging committed by Renu. Matter was investigated which
resulted into the filing of chargesheet against Abhimanyu only,
that too for committing the offence under Section 306 IPC,
namely, abetting the suicide committed by Renu. As per the
Police investigation there was no dowry demands and no offence
under Sections 498-A and 304-B of IPC was made out. Instead it
was a case of suicide and at the most Abhimanyu could be
charged of abetting the suicide committed by Renu. For that
reason, no challan was filed against the appellants herein. On the
filing of the aforesaid chargesheet by the Police on 24.02.2015,
respondent No. 2 filed an application before the learned Judicial
Magistrate, First Class, (JMFC) for taking cognizance against the
appellants and Abhimanyu under Sections 304-B and 498-A IPC.
This application was dismissed by the learned Magistrate vide
order dated 11.03.2015. Thereupon, the learned Magistrate
committed the case before the Sessions Court as the offence
under Section 306 IPC is triable by the Sessions Court. Before
the Sessions Court, respondent No. 2 preferred similar application
once again. Here, respondent No. 2 succeeded in his attempt
inasmuch as vide order dated 08.10.2015, the learned Sessions
Court took cognizance for offences punishable under Sections
304-B and 498-A IPC and, in the alternative, Section 306 IPC,
against the appellants and their son. He, thus, directed issuance
of bailable warrant against the appellants.
2. Aggrieved by the said order, appellants along with their son
Abhimanyu approached the High Court. High Court vide its order
dated 04.11.2015 remanded the matter back to the Sessions
Court with a direction to hear the parties and pass further orders
in the light of judgment of this Court in Dharam Pal & Ors. v.
State of Haryana and Anr.1
. The Sessions Court accorded fresh
hearing and thereafter passed order dated 08.12.2015 thereby
allowing the application once again to the extent of taking
cognizance under Sections 304-B and 498-A IPC and, in the
alternative, Section 306 IPC against the appellants as well as
their son. The appellants challenged this order by filing revision
petition before the High Court which has been dismissed by the
High Court on 18.12.2015. This order is impugned in the present
proceedings.
3. We may record at the outset that the sole ground on which the
1 (2014) 3 SCC 306
order was challenged before the High Court, as well as before us,
is that when the Magistrate had dismissed the application of the
complainant vide order dated 11.03.2015 and refused to take
cognizance under Sections 304-B and 498-A IPC and this order
had attained finality as no revision petition/criminal miscellaneous
appeal was preferred either by the complainant or by the Public
Prosecutor, second application with the same relief was not
maintainable before the Sessions Court. It was emphatically
argued that it amounted to second time cognizance by the Court
of Sessions which was impermissible in law. It was argued that
under Section 190 of the Code of Criminal Procedure, 1973 (for
short, the 'Code'), cognizance of the offence can be taken only
once.
4. Thus, the question that falls for consideration before us is as to
whether the Court of Sessions was empowered to take
cognizance of offence under Sections 304-B and 498-A of IPC,
when similar application to this effect was rejected by the JMFC
while committing the case to Sessions Court, taking cognizance
of offence only under Section 306 IPC and specifically refusing to
take cognizance of offence under Sections 304-B and 498-A IPC.
5. Mr. Raju Ramachandran, learned senior counsel appearing for
the appellants, submitted that when the case is triable by the
Sessions Court, Judicial Magistrate after completing the
committal proceedings can commit the case for trial before the
Court of Sessions. He can do so by simply committing the case
on finding from the Police report that the case was triable by the
Court of Sessions. In the alternative, he can take cognizance of
offence on the basis of Police report and then commit the case for
trial to the Court of Sessions. When the Judicial Magistrate
adopts the former approach by not taking the cognizance of
offence under Section 190 of the Code and commits the case for
trial before the Sessions Court, Sessions Court is competent to
exercise its power under Section 193 of the Code and to take
cognizance of offence in the light of judgment of this Court in
Dharam Pal's case. However, if the Magistrate adopts alternate
course of action, namely, takes cognizance of the offence and
then commits the case to the Court of Sessions, Sessions Court
has no power to take fresh cognizance of the offence inasmuch
as cognizance of offence can be taken only once. Again, in
support of this proposition, aid of the judgment in Dharam Pal's
case is taken.
6. Per contra, Dr. Sushil Balwada, learned counsel who appeared
for respondent No. 2 and Mr. Anish Maheshwari, learned counsel
who appeared for the State argued that since the case is triable
by the Court of Sessions, it is the Court of Sessions only which is
competent to take cognizance and, therefore, order passed by the
Sessions Court on 08.12.2015 should be treating as taking
cognizance of offence for the first time in terms of Section 193 of
the Code. Interestingly, in support of their submissions, the
respondents also rely upon the judgment in Dharam Pal's case.
In addition, they also took support from the judgment of this Court
in Nisar and Another v. State of U.P.2
7. The aforesaid narration unequivocally demonstrates that both the
sides are trying to find support from the judgment in Dharmpal's
case. It would, thus, be apposite to take note of the ratio in the
said judgment. However, before we do so, we would like to refer
to the provisions of Sections 190 and 193 of the Code which have
come into play in the instant case as proper understanding
thereof, in our opinion, shall provide categorical answer to the
issue at hand and will help us in tracing the underlying legal
principle laid down in that case. These provisions make the
2 (1995) 2 SCC 23
following reading:
“190. Cognizance of offences by Magistrates. -
(1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate
of the second class specially empowered in this
behalf under sub-section (2), may take
cognizance of any offence -
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may
empower any Magistrate of the second class to
take cognizance under sub-section (1) of such
offences as are within his competence to inquire
into or try.
193. Cognizance of offences by Courts of
Session. - Except as otherwise expressly
provided by this Code 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
committed to it by a Magistrate under this
Code.”
8. Sections 190 and 193 of the Code are in Chapter XIV. This
Chapter contains the title “Conditions requisite for initiation of
proceedings”. Section 190 deals with cognizance of offence by
Magistrates. It empowers any Magistrate of the First Class, and
any Magistrate of the Second Class which are specially
empowered to take cognizance “of any offence” under three
circumstances mentioned therein. These three circumstances
include taking of cognizance upon a Police report of such facts
which may constitute an offence. It is trite law that even when
Police report is filed stating that no offence is made out, the
Magistrate can ignore the conclusion arrived at by the
Investigating Officer and is competent to apply its independent
mind to the facts emerging from the investigation and take
cognizance of the case if it thinks that the facts emerging from the
investigation do lead to prima facie view that commission of an
offence is made out. In such a situation, the Magistrate is not
bound to follow the procedure laid down in Sections 200 and 202
of the Code for taking cognizance of the case under Section
190(1)(a) though it is open for him to act under Section 200 or
Section 202 as well {See Minu Kumari & Anr. v. State of Bihar
& Ors.3
}. Thus, when a complaint is received by the Magistrate
under Section 190(1)(a) of the Act, the Magistrate is empowered
to resort to procedure laid down in Section 200 or 202 of the
3 (2006) 4 SCC 359
Code and then take cognizance. If Police report is filed, he would
take cognizance upon such a report, as provided under Section
190(1)(b) of the Code in the manner mentioned above as
highlighted in the case of Minu Kumari.
9. Likewise, Section 193 of the Code empowers Court of Session to
take cognizance of offences and states that the Court of Session
shall not take cognizance of any offence as the Court of original
jurisdiction unless the case has been committed to it by the
Magistrate under this Code. As per this Section, the Court of
Session can take cognizance only after the case has been
committed to it by the Magistrate. However, once the case is
committed to it by the Magistrate, the Court of Session is
empowered to take cognizance acting 'as a Court of original
jurisdiction'.
10. In view of the aforesaid provisions, question that arises is as to
whether Magistrate can take cognizance of an offence which is
triable by the Court of Session or he is to simply commit the case
to the Court of Session, after completion of committal
proceedings as it is the Court of Session which is competent to try
such cases. On the one hand, Section 190 of the Code
empowers the Magistrate to “take cognizance of any offence”
which gives an impression that such Magistrate can take
cognizance even of an offence which is triable by the Court of
Session. On the other hand, when the case is committed to the
Court of Session by the Magistrate, Section 193 of the Code
stipulates that Court of Session shall take cognizance 'as a Court
of original jurisdiction' which shows that the cognizance is taken
by the Court of Session as a Court of original jurisdiction and,
thus, it is the first time the cognizance is taken and any order
passed by the Magistrate while committing the case to the Court
of Session did not amount to taking cognizance of the offence
which are triable by the Court of Session.
11. A bare reading of Section 190 of the Code which uses the
expression “any offence” amply shows that no restriction is
imposed on the Magistrate that Magistrate can take cognizance
only for the offence triable by Magistrate Court and not in respect
of offence triable by a Court of Session. Thus, he has the power
to take cognizance of an offence which is triable by the Court of
Session. If it is so, the question is as to what meaning is to be
assigned to the words “as a Court of original jurisdiction”
occurring in Section 193 of the Code when Court of Session takes
cognizance of any offence. To put it otherwise, when the
Magistrate has taken cognizance and thereafter only committed
the case to the Court of Session, whether the Court of Session is
not empowered to take cognizance of an offence again under
Section 193 of the Code or it still has power to take cognizance
acting as Court of original jurisdiction. In order to find the answer,
we now advert to the appraisal of Dharampal's case.
12. In Dharam Pal's case, an FIR was registered against one N and
the appellants for commission of offence under Section 307 and
323 read with Section 34 IPC. The police after investigation
submitted its report under Section 173(2) of the Code before the
Magistrate sending only N for trial while including the names of
the appellants in Column 2 of the report. On receipt of such
police report, the Magistrate did not, straightaway, commit the
case to the Sessions Court but, on an objection being raised by
the complainant, issued summons to the appellants therein to
face trial with the other accused N as the Magistrate was
convinced that a prima facie case to go for trial had been made
out against the appellants as well. Further, while doing so, the
Magistrate did not hold any further inquiry, as contemplated under
Sections 190, 200 or even 202 of the Code, but proceeded to
issue summons on the basis of the police report only. In this
background, the following questions arose for the consideration
by the Constitution Bench:
“7.1 Does the Committing Magistrate have any
other role to play after committing the case to the
Court of Session on finding from the police report
that the case was triable by the Court of Session?
7.2 If the Magistrate disagrees with the police
report and is convinced that a case had also been
made out for trial against the persons who had
been placed in column 2 of the report, does he
have the jurisdiction to issue summons against
them also in order to include their names, along
with Nafe Singh, to stand trial in connection with
the case made out in the police report?
7.3 Having decided to issue summons against the
appellants, was the Magistrate required to follow
the procedure of a complaint case and to take
evidence before committing them to the Court of
Session to stand trial or whether he was justified in
issuing summons against them without following
such procedure?
7.4 Can the Sessions Judge issue summons
under Section 193 CrPC as a court of original
jurisdiction?
7.5 Upon the case being committed to the Court of
Session, could the Sessions Judge issue summons
separately under Section 193 of the Code or would
he have to wait till the stage under Section 319 of
the Code was reached in order to take recourse
thereto?
7.6 Was Ranjit Singh v. State of Punjab4
, which set
aside the decision in Kishun Singh v. State of
Bihar5
, rightly decided or not?”
Answering the reference, the Constitution Bench held that:
(a) The Magistrate has ample powers to disagree with the final report
that may be filed by the police authorities under Section 173(2) of
the Code and to proceed against the accused persons dehors the
police report. The Magistrate has a role to play while committing
the case to the Court of Session upon taking cognizance on the
police report submitted before him under Section 173(2) of the
Code. In the event the Magistrate disagrees with the police
report, he has two choices. He may act on the basis of a protest
petition that may be filed, or he may, while disagreeing with the
police report, issue process and summon the accused.
Thereafter, if on being prima facie satisfied that a case had been
made out to proceed against the persons named in Column 2 of
the report, he may proceed to try the said persons or if he is
satisfied that a case had been made out which was triable by the
Court of Session, he must commit the case to the Court of
Session to proceed further in the matter. Further, if the Magistrate
decides to proceed against the persons accused, he would have
4 (1998) 7 SCC 149
5 (1993) 2 SCC 16
to proceed on the basis of the police report itself and either
inquire into the matter or commit it to the Court of Session if the
same is found to be triable by the Sessions Court.
(b) The Sessions Judge is entitled to issue summons under Section
193 of the Code upon the case being committed to him by the
Magistrate. Section 193 speaks of cognizance of offences by the
Court of Session. The key words in the section are that 'no Court
of Session shall take cognizance of any offence as a court of
original jurisdiction unless the case has been committed to it by a
Magistrate under this Code'. The provision of Section 193 entails
that a case must, first of all, be committed to the Court of Session
by the Magistrate. The second condition is that only after the
case had been committed to it, could the Court of Session take
cognizance of the offence exercising original jurisdiction. The
submission that the cognizance indicated in Section 193 deals not
with cognizance of an offence but of the commitment order
passed by the Magistrate, was specifically rejected in view of the
clear wordings of Section 193 that the Court of Session may take
cognizance of the offences under the said section.
(c) Cognizance of an offence can only be taken once. In the event, a
Magistrate takes cognizance of the offence and then commits the
case to the Court of Session, the question of taking fresh
cognizance of the offence and, thereafter, proceeding to issue
summons, is not in accordance with law. If cognizance is to be
taken of the offence, it could be taken either by the Magistrate or
by the Court of Session. The language of Section 193 of the
Code very clearly indicates that once the case is committed to the
Court of Session by the Magistrate, the Court of Session
assumes original jurisdiction and all that goes with the
assumption of such jurisdiction. The provisions of Section 209 of
the Code will, therefore, have to be understood as the Magistrate
playing a passive role in committing the case to the Court of
Session on finding from the police report that the case was triable
by the Court of Session. Nor can there be any question of part
cognizance being taken by the Magistrate and part cognizance
being taken by the Sessions Judge.
13. In the process of coming to the aforesaid conclusions, this Court
accepted the view expressed in Kishun Singh's6
case that the
Sessions Court has jurisdiction on committal of a case to it, to
take cognizance of the offences of the person not named as
6 Footnote 6 above
Criminal Appeal No. 253 of 2016 Page 15 of 29Page 16
offenders but whose complicity in the case would be evident from
the materials available on record. It specifically held that upon
committal under Section 209 of the Code, the Sessions Judge
may summon those persons shown in Column 2 of the police
report to stand trial along with those already named therein.
14. Interestingly, at the same time, the Court also held that it would
not be correct to hold that on receipt of a police report and seeing
that the case is triable by a Court of Session, the Magistrate has
no other function but to commit the case trial to the Court of
Session and the Sessions Judge has to wait till the stage under
Section 319 of the Code is reached before proceeding against the
persons against whom a prima facie case is made out from the
material contained in the case papers sent by the Magistrate
while committing the case to the Court of Session. This is
reflected in the following passage:
“33. As far as the first question is concerned, we
are unable to accept the submissions made by Mr.
Chahar and Mr Dave that on receipt of a police
report seeing that the case was triable by Court of
Session, the Magistrate has no other function, but
to commit the case for trial to the Court of Session,
which could only resort to Section 319 of the Code
to array any other person as accused in the trial. In
other words, according to Mr Dave, there could be
no intermediary stage between taking of
cognizance under Section 190(1)(b) and Section
Criminal Appeal No. 253 of 2016 Page 16 of 29Page 17
204 of the Code issuing summons to the accused.
The effect of such an interpretation would lead to a
situation where neither the Committing Magistrate
would have any control over the persons named in
column 2 of the police report nor the Sessions
Judge, till the Section 319 stage was reached in
the trial. Furthermore, in the event the Sessions
Judge ultimately found material against the
persons named in column 2 of the police report, the
trial would have to be commenced de novo against
such persons which would not only lead to
duplication of the trial, but also prolong the same.”
However, when we see the discussion in totality, it would be clear
that the aforesaid observations were made in respect of the first
question posed by the Constitution Bench in para 7.1, already
reproduced above, as per which the powers of the Magistrate
while committing the case to the Sessions Court were to be
answered. This is so made clear in the very next para, i.e. para
34 of the judgment, wherein, while approving the dicta laid down
in Kishun Singh's case, the Constitution Bench held that 'the
Magistrate has ample powers to disagree with the final report that
may be filed by the police authorities under Section 173(2) of the
Code and to proceed against the accused persons dehors the
police report, which power the Sessions Court does not have till
the Section 319 stage is reached'. This was put beyond the pale
of any controversy in para 35 of the judgment, which reads as
Criminal Appeal No. 253 of 2016 Page 17 of 29Page 18
under:
“35. In our view, the Magistrate has a role to play
while committing the case to the Court of Session
upon taking cognizance on the police report
submitted before him under Section 173(2) CrPC.
In the event the Magistrate disagrees with the
police report, he has two choices. He may act on
the basis of a protest petition that may be filed, or
he may, while disagreeing with the police report,
issue process and summon the accused.
Thereafter, if on being satisfied that a case had
been made out to proceed against the persons
named in column 2 of the report, proceed to try the
said persons or if he was satisfied that a case had
been made out which was triable by the Court of
Session, he may commit the case to the Court of
Session to proceed further in the matter.”
15. Discussion up to this stage answers the powers of the Magistrate
by laying down the principle that even if the case is triable by the
Court of Session, the function of the Magistrate is not to act
merely as a post office and commit the case to the Court of
Session, but he is also empowered to take cognizance, issue
process and summon the accused and thereafter commit the
case to the Court of Session. The position with regard to that
would become clearer once we find the answer that was given by
the Constitution Bench to questions at paras 7.4 to 7.6 extracted
above. We would like to reproduce paras 37 to 41 of the said
judgment in this behalf, which are as follows:
“37. Questions 4, 5 and 6 are more or less
Criminal Appeal No. 253 of 2016 Page 18 of 29Page 19
interlinked. The answer to Question 4 must be in
the affirmative, namely, that the Sessions Judge
was entitled to issue summons under Section 193
CrPC upon the case being committed to him by the
learned Magistrate.
38. Section 193 of the Code speaks of cognizance
of offences by the Court of Session and provides
as follows:
“193.Cognizance of offences by Courts of
Session.—Except as otherwise expressly
provided by this Code 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 committed to it by a Magistrate
under this Code.”
The key words in the section are that “no Court of
Session shall take cognizance of any offence as a
court of original jurisdiction unless the case has
been committed to it by a Magistrate under this
Code”. The above provision entails that a case
must, first of all, be committed to the Court of
Session by the Magistrate. The second condition is
that only after the case had been committed to it,
could the Court of Session take cognizance of the
offence exercising original jurisdiction. Although, an
attempt has been made by Mr Dave to suggest that
the cognizance indicated in Section 193 deals not
with cognizance of an offence, but of the
commitment order passed by the learned
Magistrate, we are not inclined to accept such a
submission in the clear wordings of Section 193
that the Court of Session may take cognizance of
the offences under the said section.
39. This takes us to the next question as to
whether under Section 209, the Magistrate was
required to take cognizance of the offence before
committing the case to the Court of Session. It is
well settled that cognizance of an offence can only
be taken once. In the event, a Magistrate takes
Criminal Appeal No. 253 of 2016 Page 19 of 29Page 20
cognizance of the offence and then commits the
case to the Court of Session, the question of taking
fresh cognizance of the offence and, thereafter,
proceed to issue summons, is not in accordance
with law. If cognizance is to be taken of the offence,
it could be taken either by the Magistrate or by the
Court of Session. The language of Section 193 of
the Code very clearly indicates that once the case
is committed to the Court of Session by the learned
Magistrate, the Court of Session assumes original
jurisdiction and all that goes with the assumption of
such jurisdiction. The provisions of Section 209 will,
therefore, have to be understood as the learned
Magistrate playing a passive role in committing the
case to the Court of Session on finding from the
police report that the case was triable by the Court
of Session. Nor can there be any question of part
cognizance being taken by the Magistrate and part
cognizance being taken by the learned Sessions
Judge.
40. In that view of the matter, we have no
hesitation in agreeing with the views expressed in
Kishun Singh case that the Sessions Court has
jurisdiction on committal of a case to it, to take
cognizance of the offences of the persons not
named as offenders but whose complicity in the
case would be evident from the materials available
on record. Hence, even without recording
evidence, upon committal under Section 209, the
Sessions Judge may summon those persons
shown in column 2 of the police report to stand trial
along with those already named therein.
41. We are also unable to accept Mr Dave's
submission that the Sessions Court would have no
alternative, but to wait till the stage under Section
319 CrPC was reached, before proceeding against
the persons against whom a prima facie case was
made out from the materials contained in the case
papers sent by the learned Magistrate while
committing the case to the Court of Session.”
Criminal Appeal No. 253 of 2016 Page 20 of 29Page 21
16. It is manifest from the above that the question at para 7.4 was
specifically answered in the affirmative holding that the Sessions
Judge is entitled to issue summons under Section 193 of the
Code 'as a Court of original jurisdiction'. This was
notwithstanding the fact that the Magistrate had taken cognizance
and only thereafter committed the case to the Court of Session,
as is clear from the facts of the said case already noted above.
This seems to be in conflict with the other well-settled position in
law, viz., cognizance of an offence can only be taken once and in
the event a Magistrate takes cognizance of the offence and then
commits the case to the Court of Session, the question of taking
first cognizance of the offence thereafter would not be in
accordance with law. In order to resolve this seeming
contradiction, the Court provided the answer by clarifying that the
provisions of Section 209 of the Code will have to be understood
to mean that the Magistrate plays passive role in committing the
case to the Court of Session on finding from the Police report that
the case was triable by the Court of Session.
17. As pointed out above, the Constitution Bench in this judgment
agreed with the view taken in Kishun Singh's case. In that
Criminal Appeal No. 253 of 2016 Page 21 of 29Page 22
judgment, the Court had explained and clarified the legal position
in the following manner:
“16. We have already indicated earlier from the
ratio of this Court's decisions in the cases of
Raghubans Dubey, (1967) 2 SCR 423, and
Hareram, (1978) 4 SCC 58, that once the court
takes cognizance of the offence (not the offender) it
becomes the court's duty to find out the real
offenders and if it comes to the conclusion that
besides the persons put up for trial by the police
some others are also involved in the commission of
the crime, it is the court's duty to summon them to
stand trial along with those already named, since
summoning them would only be a part of the
process of taking cognizance. We have also
pointed out the difference in the language of
Section 193 of the two Codes; under the old Code
the Court of Session was precluded from taking
cognizance of any offence as a court of original
jurisdiction unless the accused was committed to it
whereas under the present Code the embargo is
diluted by the replacement of the words the
accused by the words the case. Thus, on a plain
reading of Section 193, as it presently stands once
the case is committed to the Court of Session by a
Magistrate under the Code, the restriction placed
on the power of the Court of Session to take
cognizance of an offence as a court of original
jurisdiction gets lifted. On the Magistrate
committing the case under Section 209 to the Court
of Session the bar of Section 193 is lifted thereby
investing the Court of Session complete and
unfettered jurisdiction of the court of original
jurisdiction to take cognizance of the offence which
would include the summoning of the person or
persons whose complicity in the commission of the
crime can prima facie be gathered from the
material available on record....”
Criminal Appeal No. 253 of 2016 Page 22 of 29Page 23
18. Yet another case, which reiterated the aforesaid legal position in
Kishun Singh's case, is Nisar & Anr. v. State of U.P.7
19. Insofar as judgment in Hardeep Singh v. State of Punjab &
Ors.8
case is concerned, that pertains to the powers of the trial
court as contained in Section 319 of the Code, which empower
the trial court to proceed even against persons not arraigned as
accused. The Constitution Bench in the said case primarily
considered the issue about the stage at which such a power
under Section 319 of the Code is to be exercised and the related
issue as to what is the meaning of the word 'evidence' used in
Section 319(1) of the Code on the basis of which power to
summon those who have not been arraigned as accused earlier
can be exercised. Therefore, it is not necessary to discuss that
judgment in detail as the answer to the question with which we
are concerned is provided by the Constitution Bench in its
judgment in Dharam Pal's case itself, which binds us. As per this
judgment, since the Court of Session is acting as the Court of
original jurisdiction under Section 193 of the Code, after the
committal of proceedings to it by the Magistrate, it is empowered
to take cognizance and issue summons and it cannot be treated
7 (1995) 2 SCC 23
8 (2014) 3 SCC 92
Criminal Appeal No. 253 of 2016 Page 23 of 29Page 24
as taking second cognizance of the same offence.
20. This view further gets strengthened from another judgment of this
Court in Ajay Kumar Parmar v. State of Rajasthan9
. In that
case, the Court held that when the offence is exclusively triable
by the Sessions Court, the Magistrate must commit the case to
the Sessions Court and cannot refuse to take cognizance of the
offence and acquit the accused on the basis of material produced
before it. It would be useful to reproduce the following discussion
in the said judgment:
“14. In Sanjay Gandhi v. Union of India, (1978) 2
SCC 39, this Court while dealing with the
competence of the Magistrate to discharge an
accused, in a case like the instant one at hand,
held: (SCC pp. 40-41, para 3)
“3.… it is not open to the committal court to
launch on a process of satisfying itself that a
prima facie case has been made out on the
merits. The jurisdiction once vested in him
under the earlier Code but has been
eliminated now under the present Code.
Therefore, to hold that he can go into the
merits even for a prima facie satisfaction is to
frustrate Parliament's purpose in remoulding
Section 207-A (old Code) into its present nondiscretionary
shape. Expedition was intended
by this change and this will be defeated
successfully if interpretatively we hold that a
dress rehearsal of a trial before the Magistrate
is in order. In our view, the narrow inspection
hole through which the committing Magistrate
has to look at the case limits him merely to
9 (2012) 12 SCC 406
Criminal Appeal No. 253 of 2016 Page 24 of 29Page 25
ascertain whether the case, as disclosed by
the police report, appears to the Magistrate to
show an offence triable solely by the Court of
Session. Assuming the facts to be correct as
stated in the police report, …the Magistrate
has simply to commit for trial before the Court
of Session. If, by error, a wrong section of the
Penal Code is quoted, he may look into that
aspect. … If made-up facts unsupported by
any material are reported by the police and a
sessions offence is made to appear, it is
perfectly open to the Sessions Court under
Section 227 CrPC to discharge the accused.
This provision takes care of the alleged
grievance of the accused.”
(emphasis added)
Thus, it is evident from the aforesaid judgment that
when an offence is cognizable by the Sessions
Court, the Magistrate cannot probe into the matter
and discharge the accused. It is not permissible for
him to do so, even after considering the evidence
on record, as he has no jurisdiction to probe or look
into the matter at all. His concern should be to see
what provisions of the penal statute have been
mentioned and in case an offence triable by the
Sessions Court has been mentioned, he must
commit the case to the Sessions Court and do
nothing else.
15. Thus, we are of the considered opinion that the
Magistrate had no business to discharge the
appellant. In fact, Section 207-A in the old CrPC,
empowered the Magistrate to exercise such a
power. However, in CrPC, 1973, there is no
provision analogous to the said Section 207-A. He
was bound under law, to commit the case to the
Sessions Court, where such application for
discharge would be considered. The order of
discharge is therefore, a nullity, being without
jurisdiction.
17. The court should not pass an order of acquittal
by resorting to a course of not taking cognizance,
where prima facie case is made out by the
investigating agency. More so, it is the duty of the
court to safeguard the rights and interests of the
victim, who does not participate in the discharge
proceedings. At the stage of application of Section
227, the court has to sift the evidence in order to
find out whether or not there is sufficient ground for
proceeding against the accused. Thus,
appreciation of evidence at this stage, is not
permissible. (Vide P. Vijayan v. State of Kerala,
(2010) 2 SCC 398, and R.S. Mishra v. State of
Orissa, (2011) 2 SCC 689)
18. The scheme of the Code, particularly, the
provisions of Sections 207 to 209 CrPC, mandate
the Magistrate to commit the case to the Court of
Session, when the charge-sheet is filed. A conjoint
reading of these provisions makes it crystal clear
that the committal of a case exclusively triable by
the Court of Session, in a case instituted by the
police is mandatory. The scheme of the Code
simply provides that the Magistrate can determine,
whether the facts stated in the report make out an
offence triable exclusively, by the Court of Session.
Once he reaches the conclusion that the facts
alleged in the report, make out an offence triable
exclusively by the Court of Session, he must
commit the case to the Sessions Court.
19. The Magistrate, in exercise of its power under
Section 190 CrPC, can refuse to take cognizance if
the material on record warrants so. The Magistrate
must, in such a case, be satisfied that the
complaint, case diary, statements of the witnesses
recorded under Sections 161 and 164 CrPC, if any,
do not make out any offence. At this stage, the
Magistrate performs a judicial function. However,
he cannot appreciate the evidence on record and
reach a conclusion as to which evidence is
acceptable, or can be relied upon. Thus, at this
stage appreciation of evidence is impermissible.
The Magistrate is not competent to weigh the
evidence and the balance of probability in the
case.”
21. Keeping in view the aforesaid legal position, we may now discuss
the circumstances under which the cognizance was taken by the
Session Judge. Here is a case where the Police report which
was submitted to the Magistrate, the IO had not included the
appellants as accused persons. The complainant had filed
application before the learned Magistrate with prayer to take
cognizance against the appellants as well. This application was
duly considered and rejected by the learned Magistrate. The
situation in this case is, thus, not where the investigation
report/chargesheet filed under Section 173(8) of the Code
implicated the appellants and appellants contended that they are
wrongly implicated. On the contrary, the Police itself had
mentioned in its final report that case against the appellants had
not been made out. This was objected to by the complainant who
wanted the Magistrate to summon these appellants as well and
for this purpose the application was filed by the complainant
under Section 190 of the Code. The appellants had replied to the
said application and after hearing the arguments, the application
was rejected by the Magistrate. This shows that order of the
Magistrate was passed with due application of mind whereby he
refused to take cognizance of the alleged offence against the
appellants and confined it only to the son of the appellants. This
order was not challenged. Normally, in such a case, it cannot be
said that the Magistrate had played 'passive role' while
committing the case to the Court of Sessions. He had, thus,
taken cognizance after due application of mind and playing an
“active role” in the process. The position would have been
different if the Magistrate had simply forwarded the application of
the complainant to the Court of Sessions while committing the
case. In this scenario, we are of the opinion that it would be a
case where Magistrate had taken the cognizance of the offence.
Notwithstanding the same, the Sessions Court on the similar
application made by the complainant before it, took cognizance
thereupon. Normally, such a course of action would not be
permissible.
22. The next question is as to whether this Court exercise its powers
under Article 136 of the Constitution to interdict such an order.
We find that the order of the Magistrate refusing to take
cognizance against the appellants is revisable. This power of
revision can be exercised by the superior Court, which in this
case, will be the Court of Sessions itself, either on the revision
petition that can be filed by the aggrieved party or even suo moto
by the revisional Court itself. The Court of Sessions was, thus,
not powerless to pass an order in his revisionary jurisdiction.
Things would have been different had he passed the impugned
order taking cognizance of the offence against the appellants,
without affording any opportunity to them, since with the order
that was passed by the learned Magistrate a valuable right had
accrued in favour of these appellants. However, in the instant
case, we find that a proper opportunity was given to the
appellants herein who had filed reply to the application of the
complainant and the Sessions Court had also heard their
arguments. For this reason, we are not inclined to interfere with
the impugned order and dismiss this appeal.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R.K. AGRAWAL)
NEW DELHI;
MAY 10, 2016.
Print Page
the circumstances under which the cognizance was taken by the
Session Judge. Here is a case where the Police report which
was submitted to the Magistrate, the IO had not included the
appellants as accused persons. The complainant had filed
application before the learned Magistrate with prayer to take
cognizance against the appellants as well. This application was
duly considered and rejected by the learned Magistrate. The
situation in this case is, thus, not where the investigation
report/chargesheet filed under Section 173(8) of the Code
implicated the appellants and appellants contended that they are
wrongly implicated. On the contrary, the Police itself had
mentioned in its final report that case against the appellants had
not been made out. This was objected to by the complainant who
wanted the Magistrate to summon these appellants as well and
for this purpose the application was filed by the complainant
under Section 190 of the Code. The appellants had replied to the
said application and after hearing the arguments, the application
was rejected by the Magistrate. This shows that order of the
Magistrate was passed with due application of mind whereby he
refused to take cognizance of the alleged offence against the
appellants and confined it only to the son of the appellants. This
order was not challenged. Normally, in such a case, it cannot be
said that the Magistrate had played 'passive role' while
committing the case to the Court of Sessions. He had, thus,
taken cognizance after due application of mind and playing an
“active role” in the process. The position would have been
different if the Magistrate had simply forwarded the application of
the complainant to the Court of Sessions while committing the
case. In this scenario, we are of the opinion that it would be a
case where Magistrate had taken the cognizance of the offence.
Notwithstanding the same, the Sessions Court on the similar
application made by the complainant before it, took cognizance
thereupon. Normally, such a course of action would not be
permissible.
22. The next question is as to whether this Court exercise its powers
under Article 136 of the Constitution to interdict such an order.
We find that the order of the Magistrate refusing to take
cognizance against the appellants is revisable. This power of
revision can be exercised by the superior Court, which in this
case, will be the Court of Sessions itself, either on the revision
petition that can be filed by the aggrieved party or even suo moto
by the revisional Court itself. The Court of Sessions was, thus,
not powerless to pass an order in his revisionary jurisdiction.
Things would have been different had he passed the impugned
order taking cognizance of the offence against the appellants,
without affording any opportunity to them, since with the order
that was passed by the learned Magistrate a valuable right had
accrued in favour of these appellants. However, in the instant
case, we find that a proper opportunity was given to the
appellants herein who had filed reply to the application of the
complainant and the Sessions Court had also heard their
arguments. For this reason, we are not inclined to interfere with
the impugned order and dismiss this appeal.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 253 OF 2016
BALVEER SINGH V STATE OF RAJASTHAN & ANR.
Dated:MAY 10, 2016.
A.K. SIKRI, J.
The appellants in this appeal are the parents of one
Abhimanyu Singh who was married to Renu on 24.02.2014.
Renu was found dead on 27.11.2014 i.e. within ten months of the
wedding. Cause of death was Asphyxia due to hanging. An FIR
was lodged by respondent No. 2 herein (Father of deceased)
alleging that Renu was done to death by her husband Abhimanyu
Singh as well as his parents (appellants herein) for not satiating
the dowry demands of the accused persons. FIR has been
registered under Sections 304-B and 498-A of the Indian Penal
Code. The appellants claimed that it was a case of suicide by
hanging committed by Renu. Matter was investigated which
resulted into the filing of chargesheet against Abhimanyu only,
that too for committing the offence under Section 306 IPC,
namely, abetting the suicide committed by Renu. As per the
Police investigation there was no dowry demands and no offence
under Sections 498-A and 304-B of IPC was made out. Instead it
was a case of suicide and at the most Abhimanyu could be
charged of abetting the suicide committed by Renu. For that
reason, no challan was filed against the appellants herein. On the
filing of the aforesaid chargesheet by the Police on 24.02.2015,
respondent No. 2 filed an application before the learned Judicial
Magistrate, First Class, (JMFC) for taking cognizance against the
appellants and Abhimanyu under Sections 304-B and 498-A IPC.
This application was dismissed by the learned Magistrate vide
order dated 11.03.2015. Thereupon, the learned Magistrate
committed the case before the Sessions Court as the offence
under Section 306 IPC is triable by the Sessions Court. Before
the Sessions Court, respondent No. 2 preferred similar application
once again. Here, respondent No. 2 succeeded in his attempt
inasmuch as vide order dated 08.10.2015, the learned Sessions
Court took cognizance for offences punishable under Sections
304-B and 498-A IPC and, in the alternative, Section 306 IPC,
against the appellants and their son. He, thus, directed issuance
of bailable warrant against the appellants.
2. Aggrieved by the said order, appellants along with their son
Abhimanyu approached the High Court. High Court vide its order
dated 04.11.2015 remanded the matter back to the Sessions
Court with a direction to hear the parties and pass further orders
in the light of judgment of this Court in Dharam Pal & Ors. v.
State of Haryana and Anr.1
. The Sessions Court accorded fresh
hearing and thereafter passed order dated 08.12.2015 thereby
allowing the application once again to the extent of taking
cognizance under Sections 304-B and 498-A IPC and, in the
alternative, Section 306 IPC against the appellants as well as
their son. The appellants challenged this order by filing revision
petition before the High Court which has been dismissed by the
High Court on 18.12.2015. This order is impugned in the present
proceedings.
3. We may record at the outset that the sole ground on which the
1 (2014) 3 SCC 306
order was challenged before the High Court, as well as before us,
is that when the Magistrate had dismissed the application of the
complainant vide order dated 11.03.2015 and refused to take
cognizance under Sections 304-B and 498-A IPC and this order
had attained finality as no revision petition/criminal miscellaneous
appeal was preferred either by the complainant or by the Public
Prosecutor, second application with the same relief was not
maintainable before the Sessions Court. It was emphatically
argued that it amounted to second time cognizance by the Court
of Sessions which was impermissible in law. It was argued that
under Section 190 of the Code of Criminal Procedure, 1973 (for
short, the 'Code'), cognizance of the offence can be taken only
once.
4. Thus, the question that falls for consideration before us is as to
whether the Court of Sessions was empowered to take
cognizance of offence under Sections 304-B and 498-A of IPC,
when similar application to this effect was rejected by the JMFC
while committing the case to Sessions Court, taking cognizance
of offence only under Section 306 IPC and specifically refusing to
take cognizance of offence under Sections 304-B and 498-A IPC.
5. Mr. Raju Ramachandran, learned senior counsel appearing for
the appellants, submitted that when the case is triable by the
Sessions Court, Judicial Magistrate after completing the
committal proceedings can commit the case for trial before the
Court of Sessions. He can do so by simply committing the case
on finding from the Police report that the case was triable by the
Court of Sessions. In the alternative, he can take cognizance of
offence on the basis of Police report and then commit the case for
trial to the Court of Sessions. When the Judicial Magistrate
adopts the former approach by not taking the cognizance of
offence under Section 190 of the Code and commits the case for
trial before the Sessions Court, Sessions Court is competent to
exercise its power under Section 193 of the Code and to take
cognizance of offence in the light of judgment of this Court in
Dharam Pal's case. However, if the Magistrate adopts alternate
course of action, namely, takes cognizance of the offence and
then commits the case to the Court of Sessions, Sessions Court
has no power to take fresh cognizance of the offence inasmuch
as cognizance of offence can be taken only once. Again, in
support of this proposition, aid of the judgment in Dharam Pal's
case is taken.
6. Per contra, Dr. Sushil Balwada, learned counsel who appeared
for respondent No. 2 and Mr. Anish Maheshwari, learned counsel
who appeared for the State argued that since the case is triable
by the Court of Sessions, it is the Court of Sessions only which is
competent to take cognizance and, therefore, order passed by the
Sessions Court on 08.12.2015 should be treating as taking
cognizance of offence for the first time in terms of Section 193 of
the Code. Interestingly, in support of their submissions, the
respondents also rely upon the judgment in Dharam Pal's case.
In addition, they also took support from the judgment of this Court
in Nisar and Another v. State of U.P.2
7. The aforesaid narration unequivocally demonstrates that both the
sides are trying to find support from the judgment in Dharmpal's
case. It would, thus, be apposite to take note of the ratio in the
said judgment. However, before we do so, we would like to refer
to the provisions of Sections 190 and 193 of the Code which have
come into play in the instant case as proper understanding
thereof, in our opinion, shall provide categorical answer to the
issue at hand and will help us in tracing the underlying legal
principle laid down in that case. These provisions make the
2 (1995) 2 SCC 23
following reading:
“190. Cognizance of offences by Magistrates. -
(1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate
of the second class specially empowered in this
behalf under sub-section (2), may take
cognizance of any offence -
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may
empower any Magistrate of the second class to
take cognizance under sub-section (1) of such
offences as are within his competence to inquire
into or try.
193. Cognizance of offences by Courts of
Session. - Except as otherwise expressly
provided by this Code 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
committed to it by a Magistrate under this
Code.”
8. Sections 190 and 193 of the Code are in Chapter XIV. This
Chapter contains the title “Conditions requisite for initiation of
proceedings”. Section 190 deals with cognizance of offence by
Magistrates. It empowers any Magistrate of the First Class, and
any Magistrate of the Second Class which are specially
empowered to take cognizance “of any offence” under three
circumstances mentioned therein. These three circumstances
include taking of cognizance upon a Police report of such facts
which may constitute an offence. It is trite law that even when
Police report is filed stating that no offence is made out, the
Magistrate can ignore the conclusion arrived at by the
Investigating Officer and is competent to apply its independent
mind to the facts emerging from the investigation and take
cognizance of the case if it thinks that the facts emerging from the
investigation do lead to prima facie view that commission of an
offence is made out. In such a situation, the Magistrate is not
bound to follow the procedure laid down in Sections 200 and 202
of the Code for taking cognizance of the case under Section
190(1)(a) though it is open for him to act under Section 200 or
Section 202 as well {See Minu Kumari & Anr. v. State of Bihar
& Ors.3
}. Thus, when a complaint is received by the Magistrate
under Section 190(1)(a) of the Act, the Magistrate is empowered
to resort to procedure laid down in Section 200 or 202 of the
3 (2006) 4 SCC 359
Code and then take cognizance. If Police report is filed, he would
take cognizance upon such a report, as provided under Section
190(1)(b) of the Code in the manner mentioned above as
highlighted in the case of Minu Kumari.
9. Likewise, Section 193 of the Code empowers Court of Session to
take cognizance of offences and states that the Court of Session
shall not take cognizance of any offence as the Court of original
jurisdiction unless the case has been committed to it by the
Magistrate under this Code. As per this Section, the Court of
Session can take cognizance only after the case has been
committed to it by the Magistrate. However, once the case is
committed to it by the Magistrate, the Court of Session is
empowered to take cognizance acting 'as a Court of original
jurisdiction'.
10. In view of the aforesaid provisions, question that arises is as to
whether Magistrate can take cognizance of an offence which is
triable by the Court of Session or he is to simply commit the case
to the Court of Session, after completion of committal
proceedings as it is the Court of Session which is competent to try
such cases. On the one hand, Section 190 of the Code
empowers the Magistrate to “take cognizance of any offence”
which gives an impression that such Magistrate can take
cognizance even of an offence which is triable by the Court of
Session. On the other hand, when the case is committed to the
Court of Session by the Magistrate, Section 193 of the Code
stipulates that Court of Session shall take cognizance 'as a Court
of original jurisdiction' which shows that the cognizance is taken
by the Court of Session as a Court of original jurisdiction and,
thus, it is the first time the cognizance is taken and any order
passed by the Magistrate while committing the case to the Court
of Session did not amount to taking cognizance of the offence
which are triable by the Court of Session.
11. A bare reading of Section 190 of the Code which uses the
expression “any offence” amply shows that no restriction is
imposed on the Magistrate that Magistrate can take cognizance
only for the offence triable by Magistrate Court and not in respect
of offence triable by a Court of Session. Thus, he has the power
to take cognizance of an offence which is triable by the Court of
Session. If it is so, the question is as to what meaning is to be
assigned to the words “as a Court of original jurisdiction”
occurring in Section 193 of the Code when Court of Session takes
cognizance of any offence. To put it otherwise, when the
Magistrate has taken cognizance and thereafter only committed
the case to the Court of Session, whether the Court of Session is
not empowered to take cognizance of an offence again under
Section 193 of the Code or it still has power to take cognizance
acting as Court of original jurisdiction. In order to find the answer,
we now advert to the appraisal of Dharampal's case.
12. In Dharam Pal's case, an FIR was registered against one N and
the appellants for commission of offence under Section 307 and
323 read with Section 34 IPC. The police after investigation
submitted its report under Section 173(2) of the Code before the
Magistrate sending only N for trial while including the names of
the appellants in Column 2 of the report. On receipt of such
police report, the Magistrate did not, straightaway, commit the
case to the Sessions Court but, on an objection being raised by
the complainant, issued summons to the appellants therein to
face trial with the other accused N as the Magistrate was
convinced that a prima facie case to go for trial had been made
out against the appellants as well. Further, while doing so, the
Magistrate did not hold any further inquiry, as contemplated under
Sections 190, 200 or even 202 of the Code, but proceeded to
issue summons on the basis of the police report only. In this
background, the following questions arose for the consideration
by the Constitution Bench:
“7.1 Does the Committing Magistrate have any
other role to play after committing the case to the
Court of Session on finding from the police report
that the case was triable by the Court of Session?
7.2 If the Magistrate disagrees with the police
report and is convinced that a case had also been
made out for trial against the persons who had
been placed in column 2 of the report, does he
have the jurisdiction to issue summons against
them also in order to include their names, along
with Nafe Singh, to stand trial in connection with
the case made out in the police report?
7.3 Having decided to issue summons against the
appellants, was the Magistrate required to follow
the procedure of a complaint case and to take
evidence before committing them to the Court of
Session to stand trial or whether he was justified in
issuing summons against them without following
such procedure?
7.4 Can the Sessions Judge issue summons
under Section 193 CrPC as a court of original
jurisdiction?
7.5 Upon the case being committed to the Court of
Session, could the Sessions Judge issue summons
separately under Section 193 of the Code or would
he have to wait till the stage under Section 319 of
the Code was reached in order to take recourse
thereto?
7.6 Was Ranjit Singh v. State of Punjab4
, which set
aside the decision in Kishun Singh v. State of
Bihar5
, rightly decided or not?”
Answering the reference, the Constitution Bench held that:
(a) The Magistrate has ample powers to disagree with the final report
that may be filed by the police authorities under Section 173(2) of
the Code and to proceed against the accused persons dehors the
police report. The Magistrate has a role to play while committing
the case to the Court of Session upon taking cognizance on the
police report submitted before him under Section 173(2) of the
Code. In the event the Magistrate disagrees with the police
report, he has two choices. He may act on the basis of a protest
petition that may be filed, or he may, while disagreeing with the
police report, issue process and summon the accused.
Thereafter, if on being prima facie satisfied that a case had been
made out to proceed against the persons named in Column 2 of
the report, he may proceed to try the said persons or if he is
satisfied that a case had been made out which was triable by the
Court of Session, he must commit the case to the Court of
Session to proceed further in the matter. Further, if the Magistrate
decides to proceed against the persons accused, he would have
4 (1998) 7 SCC 149
5 (1993) 2 SCC 16
to proceed on the basis of the police report itself and either
inquire into the matter or commit it to the Court of Session if the
same is found to be triable by the Sessions Court.
(b) The Sessions Judge is entitled to issue summons under Section
193 of the Code upon the case being committed to him by the
Magistrate. Section 193 speaks of cognizance of offences by the
Court of Session. The key words in the section are that 'no Court
of Session shall take cognizance of any offence as a court of
original jurisdiction unless the case has been committed to it by a
Magistrate under this Code'. The provision of Section 193 entails
that a case must, first of all, be committed to the Court of Session
by the Magistrate. The second condition is that only after the
case had been committed to it, could the Court of Session take
cognizance of the offence exercising original jurisdiction. The
submission that the cognizance indicated in Section 193 deals not
with cognizance of an offence but of the commitment order
passed by the Magistrate, was specifically rejected in view of the
clear wordings of Section 193 that the Court of Session may take
cognizance of the offences under the said section.
(c) Cognizance of an offence can only be taken once. In the event, a
Magistrate takes cognizance of the offence and then commits the
case to the Court of Session, the question of taking fresh
cognizance of the offence and, thereafter, proceeding to issue
summons, is not in accordance with law. If cognizance is to be
taken of the offence, it could be taken either by the Magistrate or
by the Court of Session. The language of Section 193 of the
Code very clearly indicates that once the case is committed to the
Court of Session by the Magistrate, the Court of Session
assumes original jurisdiction and all that goes with the
assumption of such jurisdiction. The provisions of Section 209 of
the Code will, therefore, have to be understood as the Magistrate
playing a passive role in committing the case to the Court of
Session on finding from the police report that the case was triable
by the Court of Session. Nor can there be any question of part
cognizance being taken by the Magistrate and part cognizance
being taken by the Sessions Judge.
13. In the process of coming to the aforesaid conclusions, this Court
accepted the view expressed in Kishun Singh's6
case that the
Sessions Court has jurisdiction on committal of a case to it, to
take cognizance of the offences of the person not named as
6 Footnote 6 above
Criminal Appeal No. 253 of 2016 Page 15 of 29Page 16
offenders but whose complicity in the case would be evident from
the materials available on record. It specifically held that upon
committal under Section 209 of the Code, the Sessions Judge
may summon those persons shown in Column 2 of the police
report to stand trial along with those already named therein.
14. Interestingly, at the same time, the Court also held that it would
not be correct to hold that on receipt of a police report and seeing
that the case is triable by a Court of Session, the Magistrate has
no other function but to commit the case trial to the Court of
Session and the Sessions Judge has to wait till the stage under
Section 319 of the Code is reached before proceeding against the
persons against whom a prima facie case is made out from the
material contained in the case papers sent by the Magistrate
while committing the case to the Court of Session. This is
reflected in the following passage:
“33. As far as the first question is concerned, we
are unable to accept the submissions made by Mr.
Chahar and Mr Dave that on receipt of a police
report seeing that the case was triable by Court of
Session, the Magistrate has no other function, but
to commit the case for trial to the Court of Session,
which could only resort to Section 319 of the Code
to array any other person as accused in the trial. In
other words, according to Mr Dave, there could be
no intermediary stage between taking of
cognizance under Section 190(1)(b) and Section
Criminal Appeal No. 253 of 2016 Page 16 of 29Page 17
204 of the Code issuing summons to the accused.
The effect of such an interpretation would lead to a
situation where neither the Committing Magistrate
would have any control over the persons named in
column 2 of the police report nor the Sessions
Judge, till the Section 319 stage was reached in
the trial. Furthermore, in the event the Sessions
Judge ultimately found material against the
persons named in column 2 of the police report, the
trial would have to be commenced de novo against
such persons which would not only lead to
duplication of the trial, but also prolong the same.”
However, when we see the discussion in totality, it would be clear
that the aforesaid observations were made in respect of the first
question posed by the Constitution Bench in para 7.1, already
reproduced above, as per which the powers of the Magistrate
while committing the case to the Sessions Court were to be
answered. This is so made clear in the very next para, i.e. para
34 of the judgment, wherein, while approving the dicta laid down
in Kishun Singh's case, the Constitution Bench held that 'the
Magistrate has ample powers to disagree with the final report that
may be filed by the police authorities under Section 173(2) of the
Code and to proceed against the accused persons dehors the
police report, which power the Sessions Court does not have till
the Section 319 stage is reached'. This was put beyond the pale
of any controversy in para 35 of the judgment, which reads as
Criminal Appeal No. 253 of 2016 Page 17 of 29Page 18
under:
“35. In our view, the Magistrate has a role to play
while committing the case to the Court of Session
upon taking cognizance on the police report
submitted before him under Section 173(2) CrPC.
In the event the Magistrate disagrees with the
police report, he has two choices. He may act on
the basis of a protest petition that may be filed, or
he may, while disagreeing with the police report,
issue process and summon the accused.
Thereafter, if on being satisfied that a case had
been made out to proceed against the persons
named in column 2 of the report, proceed to try the
said persons or if he was satisfied that a case had
been made out which was triable by the Court of
Session, he may commit the case to the Court of
Session to proceed further in the matter.”
15. Discussion up to this stage answers the powers of the Magistrate
by laying down the principle that even if the case is triable by the
Court of Session, the function of the Magistrate is not to act
merely as a post office and commit the case to the Court of
Session, but he is also empowered to take cognizance, issue
process and summon the accused and thereafter commit the
case to the Court of Session. The position with regard to that
would become clearer once we find the answer that was given by
the Constitution Bench to questions at paras 7.4 to 7.6 extracted
above. We would like to reproduce paras 37 to 41 of the said
judgment in this behalf, which are as follows:
“37. Questions 4, 5 and 6 are more or less
Criminal Appeal No. 253 of 2016 Page 18 of 29Page 19
interlinked. The answer to Question 4 must be in
the affirmative, namely, that the Sessions Judge
was entitled to issue summons under Section 193
CrPC upon the case being committed to him by the
learned Magistrate.
38. Section 193 of the Code speaks of cognizance
of offences by the Court of Session and provides
as follows:
“193.Cognizance of offences by Courts of
Session.—Except as otherwise expressly
provided by this Code 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 committed to it by a Magistrate
under this Code.”
The key words in the section are that “no Court of
Session shall take cognizance of any offence as a
court of original jurisdiction unless the case has
been committed to it by a Magistrate under this
Code”. The above provision entails that a case
must, first of all, be committed to the Court of
Session by the Magistrate. The second condition is
that only after the case had been committed to it,
could the Court of Session take cognizance of the
offence exercising original jurisdiction. Although, an
attempt has been made by Mr Dave to suggest that
the cognizance indicated in Section 193 deals not
with cognizance of an offence, but of the
commitment order passed by the learned
Magistrate, we are not inclined to accept such a
submission in the clear wordings of Section 193
that the Court of Session may take cognizance of
the offences under the said section.
39. This takes us to the next question as to
whether under Section 209, the Magistrate was
required to take cognizance of the offence before
committing the case to the Court of Session. It is
well settled that cognizance of an offence can only
be taken once. In the event, a Magistrate takes
Criminal Appeal No. 253 of 2016 Page 19 of 29Page 20
cognizance of the offence and then commits the
case to the Court of Session, the question of taking
fresh cognizance of the offence and, thereafter,
proceed to issue summons, is not in accordance
with law. If cognizance is to be taken of the offence,
it could be taken either by the Magistrate or by the
Court of Session. The language of Section 193 of
the Code very clearly indicates that once the case
is committed to the Court of Session by the learned
Magistrate, the Court of Session assumes original
jurisdiction and all that goes with the assumption of
such jurisdiction. The provisions of Section 209 will,
therefore, have to be understood as the learned
Magistrate playing a passive role in committing the
case to the Court of Session on finding from the
police report that the case was triable by the Court
of Session. Nor can there be any question of part
cognizance being taken by the Magistrate and part
cognizance being taken by the learned Sessions
Judge.
40. In that view of the matter, we have no
hesitation in agreeing with the views expressed in
Kishun Singh case that the Sessions Court has
jurisdiction on committal of a case to it, to take
cognizance of the offences of the persons not
named as offenders but whose complicity in the
case would be evident from the materials available
on record. Hence, even without recording
evidence, upon committal under Section 209, the
Sessions Judge may summon those persons
shown in column 2 of the police report to stand trial
along with those already named therein.
41. We are also unable to accept Mr Dave's
submission that the Sessions Court would have no
alternative, but to wait till the stage under Section
319 CrPC was reached, before proceeding against
the persons against whom a prima facie case was
made out from the materials contained in the case
papers sent by the learned Magistrate while
committing the case to the Court of Session.”
Criminal Appeal No. 253 of 2016 Page 20 of 29Page 21
16. It is manifest from the above that the question at para 7.4 was
specifically answered in the affirmative holding that the Sessions
Judge is entitled to issue summons under Section 193 of the
Code 'as a Court of original jurisdiction'. This was
notwithstanding the fact that the Magistrate had taken cognizance
and only thereafter committed the case to the Court of Session,
as is clear from the facts of the said case already noted above.
This seems to be in conflict with the other well-settled position in
law, viz., cognizance of an offence can only be taken once and in
the event a Magistrate takes cognizance of the offence and then
commits the case to the Court of Session, the question of taking
first cognizance of the offence thereafter would not be in
accordance with law. In order to resolve this seeming
contradiction, the Court provided the answer by clarifying that the
provisions of Section 209 of the Code will have to be understood
to mean that the Magistrate plays passive role in committing the
case to the Court of Session on finding from the Police report that
the case was triable by the Court of Session.
17. As pointed out above, the Constitution Bench in this judgment
agreed with the view taken in Kishun Singh's case. In that
Criminal Appeal No. 253 of 2016 Page 21 of 29Page 22
judgment, the Court had explained and clarified the legal position
in the following manner:
“16. We have already indicated earlier from the
ratio of this Court's decisions in the cases of
Raghubans Dubey, (1967) 2 SCR 423, and
Hareram, (1978) 4 SCC 58, that once the court
takes cognizance of the offence (not the offender) it
becomes the court's duty to find out the real
offenders and if it comes to the conclusion that
besides the persons put up for trial by the police
some others are also involved in the commission of
the crime, it is the court's duty to summon them to
stand trial along with those already named, since
summoning them would only be a part of the
process of taking cognizance. We have also
pointed out the difference in the language of
Section 193 of the two Codes; under the old Code
the Court of Session was precluded from taking
cognizance of any offence as a court of original
jurisdiction unless the accused was committed to it
whereas under the present Code the embargo is
diluted by the replacement of the words the
accused by the words the case. Thus, on a plain
reading of Section 193, as it presently stands once
the case is committed to the Court of Session by a
Magistrate under the Code, the restriction placed
on the power of the Court of Session to take
cognizance of an offence as a court of original
jurisdiction gets lifted. On the Magistrate
committing the case under Section 209 to the Court
of Session the bar of Section 193 is lifted thereby
investing the Court of Session complete and
unfettered jurisdiction of the court of original
jurisdiction to take cognizance of the offence which
would include the summoning of the person or
persons whose complicity in the commission of the
crime can prima facie be gathered from the
material available on record....”
Criminal Appeal No. 253 of 2016 Page 22 of 29Page 23
18. Yet another case, which reiterated the aforesaid legal position in
Kishun Singh's case, is Nisar & Anr. v. State of U.P.7
19. Insofar as judgment in Hardeep Singh v. State of Punjab &
Ors.8
case is concerned, that pertains to the powers of the trial
court as contained in Section 319 of the Code, which empower
the trial court to proceed even against persons not arraigned as
accused. The Constitution Bench in the said case primarily
considered the issue about the stage at which such a power
under Section 319 of the Code is to be exercised and the related
issue as to what is the meaning of the word 'evidence' used in
Section 319(1) of the Code on the basis of which power to
summon those who have not been arraigned as accused earlier
can be exercised. Therefore, it is not necessary to discuss that
judgment in detail as the answer to the question with which we
are concerned is provided by the Constitution Bench in its
judgment in Dharam Pal's case itself, which binds us. As per this
judgment, since the Court of Session is acting as the Court of
original jurisdiction under Section 193 of the Code, after the
committal of proceedings to it by the Magistrate, it is empowered
to take cognizance and issue summons and it cannot be treated
7 (1995) 2 SCC 23
8 (2014) 3 SCC 92
Criminal Appeal No. 253 of 2016 Page 23 of 29Page 24
as taking second cognizance of the same offence.
20. This view further gets strengthened from another judgment of this
Court in Ajay Kumar Parmar v. State of Rajasthan9
. In that
case, the Court held that when the offence is exclusively triable
by the Sessions Court, the Magistrate must commit the case to
the Sessions Court and cannot refuse to take cognizance of the
offence and acquit the accused on the basis of material produced
before it. It would be useful to reproduce the following discussion
in the said judgment:
“14. In Sanjay Gandhi v. Union of India, (1978) 2
SCC 39, this Court while dealing with the
competence of the Magistrate to discharge an
accused, in a case like the instant one at hand,
held: (SCC pp. 40-41, para 3)
“3.… it is not open to the committal court to
launch on a process of satisfying itself that a
prima facie case has been made out on the
merits. The jurisdiction once vested in him
under the earlier Code but has been
eliminated now under the present Code.
Therefore, to hold that he can go into the
merits even for a prima facie satisfaction is to
frustrate Parliament's purpose in remoulding
Section 207-A (old Code) into its present nondiscretionary
shape. Expedition was intended
by this change and this will be defeated
successfully if interpretatively we hold that a
dress rehearsal of a trial before the Magistrate
is in order. In our view, the narrow inspection
hole through which the committing Magistrate
has to look at the case limits him merely to
9 (2012) 12 SCC 406
Criminal Appeal No. 253 of 2016 Page 24 of 29Page 25
ascertain whether the case, as disclosed by
the police report, appears to the Magistrate to
show an offence triable solely by the Court of
Session. Assuming the facts to be correct as
stated in the police report, …the Magistrate
has simply to commit for trial before the Court
of Session. If, by error, a wrong section of the
Penal Code is quoted, he may look into that
aspect. … If made-up facts unsupported by
any material are reported by the police and a
sessions offence is made to appear, it is
perfectly open to the Sessions Court under
Section 227 CrPC to discharge the accused.
This provision takes care of the alleged
grievance of the accused.”
(emphasis added)
Thus, it is evident from the aforesaid judgment that
when an offence is cognizable by the Sessions
Court, the Magistrate cannot probe into the matter
and discharge the accused. It is not permissible for
him to do so, even after considering the evidence
on record, as he has no jurisdiction to probe or look
into the matter at all. His concern should be to see
what provisions of the penal statute have been
mentioned and in case an offence triable by the
Sessions Court has been mentioned, he must
commit the case to the Sessions Court and do
nothing else.
15. Thus, we are of the considered opinion that the
Magistrate had no business to discharge the
appellant. In fact, Section 207-A in the old CrPC,
empowered the Magistrate to exercise such a
power. However, in CrPC, 1973, there is no
provision analogous to the said Section 207-A. He
was bound under law, to commit the case to the
Sessions Court, where such application for
discharge would be considered. The order of
discharge is therefore, a nullity, being without
jurisdiction.
17. The court should not pass an order of acquittal
by resorting to a course of not taking cognizance,
where prima facie case is made out by the
investigating agency. More so, it is the duty of the
court to safeguard the rights and interests of the
victim, who does not participate in the discharge
proceedings. At the stage of application of Section
227, the court has to sift the evidence in order to
find out whether or not there is sufficient ground for
proceeding against the accused. Thus,
appreciation of evidence at this stage, is not
permissible. (Vide P. Vijayan v. State of Kerala,
(2010) 2 SCC 398, and R.S. Mishra v. State of
Orissa, (2011) 2 SCC 689)
18. The scheme of the Code, particularly, the
provisions of Sections 207 to 209 CrPC, mandate
the Magistrate to commit the case to the Court of
Session, when the charge-sheet is filed. A conjoint
reading of these provisions makes it crystal clear
that the committal of a case exclusively triable by
the Court of Session, in a case instituted by the
police is mandatory. The scheme of the Code
simply provides that the Magistrate can determine,
whether the facts stated in the report make out an
offence triable exclusively, by the Court of Session.
Once he reaches the conclusion that the facts
alleged in the report, make out an offence triable
exclusively by the Court of Session, he must
commit the case to the Sessions Court.
19. The Magistrate, in exercise of its power under
Section 190 CrPC, can refuse to take cognizance if
the material on record warrants so. The Magistrate
must, in such a case, be satisfied that the
complaint, case diary, statements of the witnesses
recorded under Sections 161 and 164 CrPC, if any,
do not make out any offence. At this stage, the
Magistrate performs a judicial function. However,
he cannot appreciate the evidence on record and
reach a conclusion as to which evidence is
acceptable, or can be relied upon. Thus, at this
stage appreciation of evidence is impermissible.
The Magistrate is not competent to weigh the
evidence and the balance of probability in the
case.”
21. Keeping in view the aforesaid legal position, we may now discuss
the circumstances under which the cognizance was taken by the
Session Judge. Here is a case where the Police report which
was submitted to the Magistrate, the IO had not included the
appellants as accused persons. The complainant had filed
application before the learned Magistrate with prayer to take
cognizance against the appellants as well. This application was
duly considered and rejected by the learned Magistrate. The
situation in this case is, thus, not where the investigation
report/chargesheet filed under Section 173(8) of the Code
implicated the appellants and appellants contended that they are
wrongly implicated. On the contrary, the Police itself had
mentioned in its final report that case against the appellants had
not been made out. This was objected to by the complainant who
wanted the Magistrate to summon these appellants as well and
for this purpose the application was filed by the complainant
under Section 190 of the Code. The appellants had replied to the
said application and after hearing the arguments, the application
was rejected by the Magistrate. This shows that order of the
Magistrate was passed with due application of mind whereby he
refused to take cognizance of the alleged offence against the
appellants and confined it only to the son of the appellants. This
order was not challenged. Normally, in such a case, it cannot be
said that the Magistrate had played 'passive role' while
committing the case to the Court of Sessions. He had, thus,
taken cognizance after due application of mind and playing an
“active role” in the process. The position would have been
different if the Magistrate had simply forwarded the application of
the complainant to the Court of Sessions while committing the
case. In this scenario, we are of the opinion that it would be a
case where Magistrate had taken the cognizance of the offence.
Notwithstanding the same, the Sessions Court on the similar
application made by the complainant before it, took cognizance
thereupon. Normally, such a course of action would not be
permissible.
22. The next question is as to whether this Court exercise its powers
under Article 136 of the Constitution to interdict such an order.
We find that the order of the Magistrate refusing to take
cognizance against the appellants is revisable. This power of
revision can be exercised by the superior Court, which in this
case, will be the Court of Sessions itself, either on the revision
petition that can be filed by the aggrieved party or even suo moto
by the revisional Court itself. The Court of Sessions was, thus,
not powerless to pass an order in his revisionary jurisdiction.
Things would have been different had he passed the impugned
order taking cognizance of the offence against the appellants,
without affording any opportunity to them, since with the order
that was passed by the learned Magistrate a valuable right had
accrued in favour of these appellants. However, in the instant
case, we find that a proper opportunity was given to the
appellants herein who had filed reply to the application of the
complainant and the Sessions Court had also heard their
arguments. For this reason, we are not inclined to interfere with
the impugned order and dismiss this appeal.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R.K. AGRAWAL)
NEW DELHI;
MAY 10, 2016.
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