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Thursday, July 25, 2013

Section 193 Cr.P.C. =Constitution Bench for consideration. 4. The questions which require the consideration of the Constitution Bench are as follows: i) 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? ii) 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? iii) 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? iv) Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction? v) Upon the case being committed to the Court of Session, could the Session 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? vi) Was Ranjit Singh's case (supra), which set aside the decision in Kishun Singh's case(supra), rightly decided or not? = “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.”= whether the decision in Ranjit Singh’s case (supra) was correct or not in Kishun Singh’s case (supra), is answered by holding that the decision in Kishun Singh’s case was the correct decision and the learned Session Judge, acting as a Court of original jurisdiction, could issue summons under Section 193 on the basis of the records transmitted to him as a result of the committal order passed by the learned Magistrate. 31. Consequent upon our aforesaid decision, the view taken by the Referring Court is accepted and it is held that the decision in the case of Kishun Singh vs. State of Bihar and not the decision in Ranjit Singh Vs. State of Punjab lays down the law correctly in respect of the powers of the Session Court after committal of the case to it by the learned Magistrate under Section 209 Cr.P.C. 32. The matter is remitted to the Three-Judge Bench to dispose of the pending Criminal Appeals in accordance with the views expressed by us in this judgment.

                                        Reported in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40579
                         REPORTABLE
                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 148 of 2003



1


2 DHARAM PAL & ORS.                                     … APPELLANTS


                         VS.



           2 STATE OF HARYANA & ANR.                           …
     RESPONDENTS


                                    WITH

       CRIMINAL APPEAL NOS. 865 of 2004, 1334 of 2005 and 537 of 2006





                               J U D G M E N T



ALTAMAS KABIR, CJI.

1.       This matter was initially directed to be heard by a Bench of Three-
Judges in view of the conflict of opinion in the decisions of two  Two-Judge
Benches, in the cases of Kishori Singh and Others Vs.  State  of  Bihar  and
Others [(2004) 13 SCC 11]; Rajender Prasad Vs. Bashir and Others  [(2001)  8
SCC 522] and SWIL Limited Vs. State of Delhi and Others [(2001) 6 SCC  670].
 When the matter was taken up for consideration by the Three-Judge Bench  on
1st September, 2004, it was brought to the notice  of  the  court  that  two
other  decisions  had  a  direct  bearing  on  the  question  sought  to  be
determined.  The first is the case  of  Kishun  Singh  Vs.  State  of  Bihar
[(1993) 2 SCC 16], and the other is a decision of  a  Three-Judge  Bench  in
the case of Ranjit Singh Vs. State of Punjab [(1998)  7  SCC  149].   Ranjit
Singh’s case disapproved the  observations  made  in  Kishun  Singh’s  case,
which was to the effect that the Session Court has power under  Section  193
of the Code of Criminal Procedure, 1973, hereinafter  referred  to  as  “the
Code”, to take cognizance of an  offence  and  summon  other  persons  whose
complicity in the commission of the trial  could  prima  facie  be  gathered
from the materials available  on  record.   According  to  the  decision  in
Kishun Singh’s case (supra), the Session Court has such power under  Section
193 of the Code.  On the other hand, in Ranjit Singh’s case (supra), it  was
held that from the stage of committal till the  Session  Court  reached  the
stage indicated in Section 230 of the Code, that Court could deal only  with
the accused referred to  in  Section  209  of  the  Code  and  there  is  no
intermediary stage till then enabling the Session Court  to  add  any  other
person to the array of the accused.

2.      The Three-Judge Bench took note of the fact that the effect of  such
a conclusion is that the accused named in column 2 of the  charge-sheet  and
not put up for trial could not be tried by exercise of power by the  Session
Judge under Section 193 read with Section 228 of the Code.  In other  words,
even when the Session Court applied its mind  at  the  time  of  framing  of
charge and came to the conclusion from the  materials  available  on  record
that, in fact, an offence is made out against even those who  are  shown  in
column 2, it has no power to proceed against them and has to wait  till  the
stage under Section 319 of the Code is reached to include  such  persons  as
accused in the trial if from the  evidence  adduced,  their  complicity  was
also established. The further effect as noted by the Three-Judge  Bench  was
that in less serious offences triable by the Magistrate, he would  have  the
power to proceed against those mentioned in column 2, in case  he  disagreed
with the police report, but in regard to serious  offences  triable  by  the
Court of Session, the Court could have to wait till  the  stage  of  Section
319 of the Code was reached.   The  Three-Judge  Bench  disagreed  with  the
views expressed  in  Ranjit  Singh’s  case,  but  since  the  contrary  view
expressed in Ranjit Singh’s case had been taken by a Three-Judge Bench,  the
Three-Judge Bench hearing this matter, by  its  order  dated  20th  January,
2005, directed the matter to be placed before the Chief Justice for  placing
the same before a larger Bench.

3.      In view of  the  above,  the  matter  has  been  placed  before  the
Constitution Bench for consideration.

4.      The questions which require the consideration  of  the  Constitution
Bench are as follows:
        i) 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?
       ii) 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?
      iii) 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?
       iv) Can the Session Judge issue summons under Section 193 Cr.P.C. as
           a Court of original jurisdiction
        v) Upon the case being committed to the Court of Session, could the
           Session 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?
       vi) Was Ranjit Singh's case (supra), which set aside the decision in
           Kishun Singh's case(supra), rightly decided or not?

5.      The facts which led to the order of the  learned  Magistrate,  which
was subsequently challenged in Revision before the  Session  Judge  and  the
High Court are that except for one Nafe Singh, who was shown as an  accused,
the Appellants Dharam Pal and others  were  included  in  column  2  of  the
police report, despite the fact that they too had been named as  accused  in
the First Information Report.  After going through the  police  report,  the
learned Judicial Magistrate First Class, Hansi, summoned the  Appellant  and
three others, who were not included as accused in the charge-sheet  for  the
purpose of facing trial along  with  Nafe  Singh.   The  learned  Magistrate
purported to act in exercise of his powers under Section 190  of  the  Code,
but without taking recourse to the other provisions  indicated  in  Sections
200 and 202 of the Code, before proceeding to issue  summons  under  Section
204 of the Code.
6.      The order of  the  learned  Magistrate  was  questioned  by  way  of
Revision before the Additional Session Judge, Hisar,  in  Criminal  Revision
No. 27 of  2000,  who  upheld  the  order  of  the  learned  Magistrate  and
dismissed the Revision.   The  order  of  the  learned  Session  Judge  was,
thereafter, challenged before the High Court, which also  upheld  the  views
expressed by the learned Magistrate  as  well  as  the  Session  Judge,  and
dismissed the Appellants’ application under Section  482  of  the  Code  for
quashing the order dated 25th March, 2002, passed by the Additional  Session
Judge, Hisar, affirming the order dated 21st July,  2000,  of  the  Judicial
Magistrate First Class, Hansi, passed on an application filed under  Section
190 of the Code for summoning the Appellants in connection with FIR No.  272
dated 13th October, 1999, registered under Sections 307 and  323  read  with
Section 34 of the Indian Penal Code, with Narnaund Police Station.

7.      Appearing for the Appellants in Criminal Appeal  No.  148  of  2003,
filed by Dharam  Pal  and  Others,  Mr.  Brijender  Chahar,  learned  Senior
Advocate, submitted that the learned Session Judge and the High Court  erred
in holding that the Committing  Magistrate  was  competent  to  entertain  a
protest petition in order to summon the Appellants who had  not  been  shown
as accused in the charge-sheet.  Mr.  Chahar  contended  that  in  fact  the
Magistrate under the garb of a protest petition had usurped  the  powers  of
the Session  Judge  under  Section  319  of  the  Code  in  a  case  triable
exclusively by the Court of Session.  Mr. Chahar urged that  once  a  police
report was filed before a Magistrate, which disclosed that  an  offence  had
been committed, which was exclusively  triable  by  Court  of  Session,  the
Magistrate had no other function but to commit the  same  to  the  Court  of
Session, even if on looking into the police report, he  was  convinced  that
the others mentioned in column 2 of the police report were also required  to
be sent up  for  trial.   Mr.  Chahar  submitted  that  the  Magistrate  had
exceeded his jurisdiction and both the Session Judge and the High Court  had
misconstrued the provisions of Sections 190, 193 and 209  of  the  Code,  in
upholding the order of the learned Magistrate.  In this regard,  Mr.  Chahar
brought into focus the provisions of the 1898  Code  of  Criminal  Procedure
and the corresponding provisions in the present  Code,  which  replaced  the
1898 Code.  Learned counsel pointed out that in Section  207A  of  the  1898
Code, the Magistrate was mandatorily required to hold  a  mini-trial  before
committing the case to the Court of Session, whereas under  Section  190  of
the Code of 1973, the Magistrate, having jurisdiction, 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
        report, or upon his own  knowledge,  that  such  offence  has  been
        committed.

8.      Mr. Chahar submitted that the difference in the two  provisions  was
intentional and had been made in order to  shorten  the  proceedings  before
the Magistrate.  Learned counsel submitted that, in terms of the  old  Code,
two stages of trial were contemplated which were eliminated by  the  amended
provisions of the Code of 1973.  In such circumstances, the  view  expressed
in Ranjit Singh’s case appeared to be correct as  against  the  decision  in
Kishun Singh’s case, wherein it was held that the Session  Court  had  power
under Section 193 of the Code to take cognizance of the offence  and  summon
other persons, whose complicity in  the  commission  of  the  offence  could
prima facie be gathered from the materials available on record.

9.      The submissions made in the above Appeal  were  also  reiterated  in
Criminal Appeal No. 865  of  2004,  filed  by  Naushad  Ali,  as  the  point
involved in the said appeal is more or less the same as in the appeal  filed
by Dharam Pal and others.

10.     Mr. Amarendra Sharan, learned Senior  Advocate,  appearing  for  the
Appellant in Criminal Appeal No. 1334 of 2005,  took  an  additional  ground
that the order of the learned Magistrate, as upheld by the superior  Courts,
was in violation of the  provisions  of  Article  21  of  the  Constitution,
inasmuch as, the learned Magistrate issued  summons  to  those  included  in
column 2, without following the procedure indicated in  Sections  190,  200,
202 and thereafter 204 of the Code.  Mr.  Sharan  submitted  that  when  the
Magistrate decided to take cognizance on the basis of the  protest  petition
filed in regard to the charge-sheet filed by the investigating  authorities,
he ought to have  taken  recourse  to  the  provisions  relating  to  taking
cognizance on the basis  of  a  complaint  within  the  meaning  of  Section
190(1)(a) of the aforesaid Code.  Not having done so,  the  order  directing
summons to issue against the Appellants was in violation of  the  provisions
of Article 21 of the Constitution and  was,  therefore,  liable  to  be  set
aside.

11.     Appearing for the Appellants in Criminal Appeal No. 148 of 2003  and
Criminal M.P. No. 12963 of 2013,  Mr.  Siddhartha  Dave,  learned  Advocate,
submitted that in order to appreciate the order of  the  Magistrate  issuing
summons in a Session triable case, it would be necessary to go back  to  the
source of power of the Magistrate  in  issuing  summons  to  the  Appellants
under Section 204 of the Code.  Mr. Dave urged that the source of  power  of
the Magistrate to issue such summons could only be traced  back  to  Section
190(1)(b) of the Code, which provides as follows:

           “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.”




12.     Mr. Dave submitted that it is only upon receipt of a  police  report
and the objection thereto that the  Magistrate  may  issue  summons  to  the
Appellants under Section  204  of  the  Code,  without  taking  any  further
recourse to the other provisions relating to cognizance  of  offences  on  a
complaint petition.  Mr. Dave submitted that after taking cognizance upon  a
police report under Section 190(1)(b), the next stage would be  issuance  of
summons under Section 204 of the Code and there are  no  intervening  stages
in the matter.  Accordingly, the only course  available  to  the  Committing
Magistrate, on receipt of a police report under Section 173(3) of the  Code,
in a Session triable case, would be to commit  the  case  to  the  Court  of
Session, which could, thereafter, take recourse to Section 319 of the  Code,
since it did not have any other power to summon any other  person  named  in
column 2 of the  charge-sheet,  without  receiving  fresh  evidence  against
them. Mr. Dave submitted that the cognizance referred to in Section  193  of
the Code would be not of the offence in  respect  of  which  cognizance  had
already been taken by the Magistrate, but cognizance of  the  commitment  of
the case to the Court of Session for trial.

13.  Mr. Dave submitted that having regard to the provisions of Section  204
of the Code, where some amount of application of mind was  required  by  the
learned Magistrate, the  necessity  of  applying  his  mind  by  holding  an
independent inquiry was minimal.  It was urged  that  since  the  Magistrate
had no power to proceed to Section 190 of the Code, the  matter  has  to  be
committed to the Session  Court,  without  any  choice  being  left  to  the
learned Magistrate to take recourse to  any  other  course  of  action.   In
support of his submissions, Mr. Dave referred to the decision of this  Court
in Rashmi Kumar Vs. Mahesh Kumar Bhada  [(1997)  2  SCC  397],  wherein  the
question of the court’s powers at the  stage  of  taking  cognizance  of  an
offence under Sections 190, 200 and 202 of the Code fell  for  consideration
and it was held that at the stage of taking cognizance of  an  offence,  the
court should consider only the averments made in the complaint as the  court
is not required to sift or appreciate any evidence at that stage.

14.     Mr. Dave also referred to the  decision  of  this  Court  in  Indian
Carat Pvt. Ltd. Vs. State of Karnataka  and  Another  [(1989)  2  SCC  132],
wherein this Court has held that despite a police report that  no  case  had
been made out against an accused, the Magistrate could  take  cognizance  of
the offence under Section 190(1)(b), taking into account  the  statement  of
witnesses made under police investigation and issue process.  Reference  was
also made to the decision of this Court in Abhinandan Jha Vs. Dinesh  Mishra
[(1967) 3 SCR 668], in which the same view had been expressed.  In the  said
case, it was held that the Magistrate had no power to direct the  police  to
submit  a  charge-sheet,  when  the  police,  after  investigation  into   a
cognizable offence, had  submitted  a  report  of  the  action  taken  under
Section 169 of the 1898 Code that there was no case made out for sending  of
the accused for trial.

15.     Mr. Dave also referred to the decision of this Court in Raj  Kishore
Prasad Vs. State of Bihar and Another [(1996) 4 SCC 495], in  which  it  was
also held that while committing a case under Section 209 of  the  Code,  the
Magistrate had no jurisdiction to associate any other person as  accused  in
exercise of powers under  Section  319  of  the  Code  or  under  any  other
provision.  It was further observed that a proceeding under Section  209  of
the Code before a Magistrate is not an inquiry and material  before  him  is
not evidence.  It is only upon committal can the Court of  Session  exercise
jurisdiction under Section 319 of the Code and add a  new  accused,  on  the
basis of evidence recorded by it.  Mr. Dave also urged that in the  decision
of this Court in SWIL Limited (supra), which was one of  the  cases  brought
to the notice of the  Referring  Court,  it  was  held  that  a  person  not
mentioned as accused in the charge-sheet  could  also  be  summoned  by  the
Magistrate after taking cognizance of the  offence,  if  some  material  was
found against him, having regard to the FIR, his statement recorded  by  the
police and other documents.  It was also held that Section 319 of  the  Code
did not operate in such a situation.  Mr. Dave submitted that the  aforesaid
decision had not taken note of the decision in  Raj  Kishore  Prasad’s  case
(supra), wherein just the contrary view had been taken and  was,  therefore,
per incuriam.  Mr. Dave submitted that the  entire  exercise  undertaken  by
the Magistrate was contrary to the provisions of law  and  orders  summoning
the Appellants as accused in these cases,  were,  therefore,  liable  to  be
quashed.

16.     On behalf of the State, it was sought to  be  urged  by  Mr.  Rajeev
Gaur ‘Naseem’, learned AAG, that under Section 193 of the Code, the  Session
Court was entitled to take cognizance and issue summons.  Contrary  to  what
had been indicated by the Referring Court, Mr. Gaur urged that the  law  had
been correctly stated in Kishun Singh’s case (supra) and the Session  Court,
after receiving the case for commitment, was entitled under Section  193  of
the Code to take cognizance and issue summons to those not named as  accused
in the charge-sheet.

17.     Mr. Gopal Singh, learned Standing Counsel for the  State  of  Bihar,
appearing in three of the matters, submitted  that  the  question  has  been
considered in  the  case  of  Kishori  Singh  (supra),  in  which  the  view
expressed in Ranjit Singh’s case (supra) was followed and it was  held  that
under the scheme of the Code, in a case where the offence is triable  solely
by the Court of Session, when the police files  a  charge-sheet  and  arrays
some only as accused persons, though many more might have been named in  the
FIR, the Magistrate or even the Session Judge would have no jurisdiction  to
array them as accused persons at a stage prior to Section 319 of  the  Code,
when some evidence or materials were collected during the trial.
18.     In the  last  of  several  matters  heard  by  this  Court,  namely,
Criminal Appeal No. 1334 of  2005,  filed  by  one  Chandrika  Prasad  Yadav
against the State of Bihar, Mr. K.K. Tyagi, learned counsel,  appearing  for
the Respondent No. 2  –  complainant,  contended  that  the  Magistrate  had
sufficient powers to issue process against those persons who  had  not  been
shown as accused, but had been included in column  2  of  the  charge-sheet,
even after cognizance was taken.  He referred to  various  decisions,  which
had already been referred to by the other counsel.

19.     Even in Criminal  Appeal  No.  865  of  2004,  Mr.  Shishir  Pinaki,
learned Advocate appearing for Respondent No. 2  (complainant),  urged  that
the Magistrate has been vested  with  control  over  the  proceedings  under
Article 20 of the Constitution and hence it was within his powers  to  issue
summons under Section 204 of the Code, even if he disagreed with the  police
report filed under Section 173(3) of the Code, without  taking  recourse  to
the provisions of Section 202, before  proceeding  to  issue  process  under
Section 204 of the Code.

20.     The issue in the Reference being with regard to the  powers  of  the
Magistrate to whom a report is submitted by  the  police  authorities  under
Section 173(3) of the Code, it is necessary for us to examine the scheme  of
Chapter  XIV  of  the  Code,  dealing  with  the  conditions  requisite  for
initiation of proceedings.

21.     Section 190, which has been  extracted  hereinbefore,  empowers  any
Magistrate of the First Class or the Second  Class  specially  empowered  in
this behalf under Sub-section (2) to  take  cognizance  of  any  offence  in
three contingencies.  In  the  instant  case,  we  are  concerned  with  the
provisions of Section 190(1)(b) since a police report has been submitted  by
the police, under Section 173(3) of the Code  sending  up  one  accused  for
trial, while including the names of the other accused in  column  2  of  the
report.  The facts as revealed from the materials on  record  and  the  oral
submissions made on behalf of  the  respective  parties  indicate  that,  on
receiving such police report, the learned Magistrate did not  straight  away
proceed to commit the case to the Court of  Session  but,  on  an  objection
taken on behalf of the complainant, treated as a  protest  petition,  issued
summons to those accused who had been named  in  column  2  of  the  charge-
sheet, without holding 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.  The learned Magistrate did not accept  the
Final Report filed by the Investigating Officer against the  accused,  whose
names were included in column 2, as he was  convinced  that  a  prima  facie
case to go to trial had been made out  against  them  as  well,  and  issued
summons to them to stand trial with the  other  accused,  Nafe  Singh.   The
questions which have arisen  from  the  procedure  adopted  by  the  learned
Magistrate in summoning the  Appellants  to  stand  trial  along  with  Nafe
Singh, have already been  set  out  hereinbefore  in  paragraph  4  of  this
judgment.

22.     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
had 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 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 Session  Judge,  till
the Section 319 stage was reached in the trial.  Furthermore, in the  event,
the Session 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.

23.     The view expressed in Kishun Singh's case,  in  our  view,  is  more
acceptable since, as has been held by this Court in the  cases  referred  to
hereinbefore, the Magistrate has ample powers to  disagree  with  the  Final
Report that may be filed by the police authorities under Section  173(3)  of
the Code and to proceed  against  the  accused  persons  dehors  the  police
report, which power the Session Court does not have  till  the  Section  319
stage is reached.  The upshot of the  said  situation  would  be  that  even
though the Magistrate had powers to disagree with the  police  report  filed
under Section 173(3) of the Code, he was  helpless  in  taking  recourse  to
such a course of action while the Session Judge was also unable  to  proceed
against any person, other than the accused sent  up  for  trial,  till  such
time evidence had been adduced and the witnesses had been cross-examined  on
behalf of the accused.

24.     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(3)  Cr.P.C.   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 no.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.

25.     This brings us to the third question  as  to  the  procedure  to  be
followed by the Magistrate if he was satisfied that a prima facie  case  had
been made out to go to trial despite  the  final  report  submitted  by  the
police.   In such an event, if the Magistrate  decided  to  proceed  against
the persons accused, he would have 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 was found to be triable by the Session Court.

26.     Questions 4, 5 and 6 are more or less inter-linked.   The answer  to
question 4 must be in the affirmative, namely, that the  Session  Judge  was
entitled to issue summons under Section 193  Cr.P.C.  upon  the  case  being
committed to him by the learned Magistrate.  Section 193 of the Code  speaks
of cognizance of offences by 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.

27.     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 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 by any question  of
part cognizance being taken by the  Magistrate  and  part  cognizance  being
taken by the learned Session Judge.


28.     In that view of the matter, we have no hesitation in  agreeing  with
the views expressed in Kishun Singh’s case (supra) that the  Session  Courts
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  Session
Judge may summon those persons shown in column 2 of  the  police  report  to
stand trial along with those already named therein.

29.     We are also unable to accept Mr. Dave’s submission that the  Session
Court would have no alternative, but to wait till the  stage  under  Section
319 Cr.P.C. 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.


30.     The Reference to the effect as to
whether  the  decision  in  Ranjit
Singh’s case (supra) was correct or not in Kishun Singh’s case  (supra),
is
answered by holding that  the  decision  in  Kishun  Singh’s  case  was  the correct decision
and 
the  learned  Session  Judge,  acting  as  a  Court  of
original jurisdiction, could issue summons under Section 193  on  the  basis of the records transmitted to him as a result of the committal order  passed by the learned Magistrate.

31.     Consequent upon our  aforesaid  decision,  the  view  taken  by  the
Referring Court is accepted and it is held that the decision in the case  of
Kishun Singh vs. State of Bihar and not the decision  in  Ranjit  Singh  Vs.
State of Punjab lays down the law correctly in respect of the powers of  the
Session Court after committal of the case to it by  the  learned  Magistrate
under Section 209 Cr.P.C.


32.     The matter is remitted to the Three-Judge Bench to  dispose  of  the
pending Criminal Appeals in accordance with the views  expressed  by  us  in
this judgment.

                                                     …………………………………………………CJI.

                                     (ALTAMAS KABIR)



                                                     ……………...……………………………………J
                                   (SURINDER SINGH NIJJAR)




                                                      ……………………………………………………J.

                                     (RANJAN GOGOI)






                                                      ……………………………………………………J.

                                     (M.Y. EQBAL)






                                                      ……………………………………………………J.

                                     (VIKRAMAJIT SEN)

New Delhi
Dated: July 18,2013.

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