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.

whether reservation was inapplicable to specialty and super-specialty faculty posts in the All India Institute of Medical Sciences, hereinafter referred to as “AIIMS”.= While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/ institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.” the Nine-Judge Bench while discussing the provisions of Article 335 also observed that there were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such situations, it cannot be advised to provide for reservations. In the paragraph following, the position was made even more clear when Their Lordships observed that they were of the opinion that in certain services in respect of certain posts, application of rule of reservation may not be advisable in regard to various technical posts including posts in super specialty in medicine, engineering and other scientific and technical posts. 19. We cannot take a different view, even though it has been suggested that such an observation was not binding, being obiter in nature. We cannot ascribe to such a view since the very concept of reservation implies mediocrity and we will have to take note of the caution indicated in Indra Sawhney's case. While reiterating the views expressed by the Nine-Judge Bench in Indra Sawhney’s case, we dispose of the two Civil Appeals in the light of the said views, which were also expressed in Dr. Jagadish Saran's case, Dr. Pradeep Jain's case, Dr. Preeti Srivastava's case. We impress upon the Central and State Governments to take appropriate steps in accordance with the views expressed in Indra Sawhney's case and in this case, as also the other decisions referred to above, keeping in mind the provisions of Article 335 of the Constitution. 20. There will be no order as to costs.

                             Reported in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40578
                                    REPORTABLE


                        IN THE SUPREME COURT OF INDIA



                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 4500 of 2002



   1


2 FACULTY ASSOCIATION OF AIIMS                  … APPELLANT



                 VS.



   2 UNION OF INDIA & ORS.                             … RESPONDENTS



                                    WITH


                        CIVIL APPEAL NO. 5119 OF 2002







                               J U D G M E N T



   ALTAMAS KABIR, CJI.


   1.    When Special Leave Petition (Civil) No. 2106 of 2002, filed by the
   Faculty Association of AIIMS, was taken  up  for  consideration,  notice
   thereupon was issued by a Bench of Two-Judges and it was stipulated that
   any appointment to be made, after the order  was  passed  in  accordance
   with the reservation policy, would only be  tentative  in  nature  until
   further orders.
When the Appeal  was  taken  up  for  hearing  on  20th
   February, 2003, along with Civil Appeal No. 5119  of  2002,  considering
   the important nature of the issues involved  for  determination  in  the
   said cases, as also the recurring nature of the problem, it was  thought
   appropriate that the matters be heard by a larger Bench.
Thereafter, on
   12th February, 2004, a Bench of Three-Judges headed by the Chief Justice
   was of the view that the matters involved substantial questions  of  law
   as to the interpretation of the Constitution and  were  required  to  be
   heard by a Bench of Five-Judges.
It is pursuant to such direction  that
   the matter appeared before the Bench of Five-Judges on several occasions
   and ultimately they were listed before a Bench  of  Five-Judges  on  2nd
   July, 2013.


   2.   Although the matter is now before a Bench of five Judges, the terms
   of reference are not very clear.
From what we have been able to  gather
   from the pleadings and the judgment of the Division Bench  of  the  High
   Court,  the  question  to  be  considered  is
whether  reservation  was inapplicable to specialty and super-specialty faculty posts in  the  All India Institute of Medical Sciences, hereinafter referred to as “AIIMS”.
    Faced with the decisions of this Court in the case of Indra Sawhney Vs.
   Union of India & Ors. [(1992) Supp. (3) SCC 215]; Jagdish Saran  &  Ors.
   Vs. Union of India & Ors. [(1980) 2 SCR 831]; and Dr. Pradeep Jain  etc.
   Vs. Union of India & Ors. etc. [(1984) 3 SCR 942],
wherein  reservation
in admission to specialty and super-specialty  courses  was disallowed, the Division Bench of the High Court  confined  itself  to the  limited issue, namely, 
whether reservation policy was inapplicable  for  making appointments to the entry level faculty post of Assistant Professor  and to super specialty posts and also whether the  resolutions  adopted  by AIIMS on 11.1.1983 and 27.5.1994 were liable to be struck down.


   3.    Appearing  for  the  Petitioner,  Mr.  P.P.  Rao,  learned  Senior
   Advocate, firstly referred to the statement of objects  and  reasons  of
   the All India Institute of Medical Sciences Act, 1956, which provides as
   follows :


      “For improving professional competence among medical practitioners, it
      is necessary to place a high standard of medical education, both post-
      graduate and under-graduate, before all  medical  colleges  and  other
      allied institutions in the country.  Similarly, for the  promotion  of
      medical research it is necessary that the country should attain  self-
      sufficiency in post-graduate medical education.  These objectives  are
      hardly capable of realisation unless facilities of a very  high  order
      for  both  undergraduate  and  post-graduate  medical  education   and
      research are provided by a central authority in one place.   The  Bill
      seeks to achieve these ends by the establishment in New  Delhi  of  an
      institution under the name  of  the  All-India  Institute  of  Medical
      Sciences.  The Institute will develop patterns of teaching  in  under-
      graduate and post-graduate medical education in all its branches so as
      to demonstrate a high standard of medical  education  to  all  medical
      colleges and other allied institutions, will provide facilities  of  a
      high order for training of personnel  in  all  important  branches  of
      health activities  and  also  for  medical  research  in  its  various
      aspects.  The Institute will have the power to grant medical  degrees,
      diplomas and other academic distinctions  which  would  be  recognised
      medical degrees for the purpose of the  Indian  Medical  Council  Act,
      1933.”





   4.   Mr. Rao also referred to Section 5 of the Act  which  declared  the
   institute to be an institution of national importance.  As  pointed  out
   by Mr. Rao, Section 13 of the Act is in line with the objects for  which
   the institute was created and Section 14 deals with the functions of the
   institute relating to the academic aspects of the institutes's functions
   as a teaching institute.




   5.   Mr. Rao submitted that the question had earlier been gone into  and
   considered in Indra Sawhney's  case (supra), wherein  while  considering
   the question of reservation the Bench also took into  consideration  the
   provisions of Article 335 of the Constitution regarding  the  claims  of
   Scheduled Castes and Scheduled Tribes to services and posts.  
Referring
   to the concurring Judgment of Jeevan Reddy, J., learned counsel referred
   to Paragraphs 838 and 839   in  particular  and  the  observations  made
   therein.  Since Paragraph 838 places in focus the view of the Nine-Judge
   Bench, the same is extracted hereinbelow:



       “838. While on Article 335, 
we are of  the  opinion  that  there  are certain services and positions 
where either on account of the  nature of duties attached to them or the level (in the hierarchy)  at  which they obtain, merit as explained hereinabove, alone counts.   
In  such situations, it may not be advisable to provide for reservations.  
For example,   
technical    posts    in    research    and    development
organisations/departments/ institutions, in specialities  and  super-specialities in medicine,  engineering  and  other  such  courses  in physical sciences and mathematics, in defence  services  and  in  the  establishments connected therewith.  Similarly, in the case of  posts at the higher echelons e.g., Professors  (in  Education),  Pilots  in  Indian Airlines and Air India, Scientists and Technicians in  nuclear  and  space  application,  provision  for  reservation  would  not  be
  advisable.”





   6.   In fact, both in Paragraphs 838 and 839,  
while  specifying  areas,
   where it may not be advisable to put reservation, the learned Judge  has included posts in research and  development  organisations/  departments /institutions, in specialties and super-specialties  in  medicine.   
The
   same observation is repeated in Paragraph 839, wherein, categorically it  was held that the Bench was of the opinion that in certain services  and  in respect of certain posts, application of the rule of reservation  may  not be advisable and once again included as the fourth item –  posts  in super-specialties in medicine,  engineering  and  other  scientific  and  technical subjects. 
 Mr. Rao  submitted  that  as  far  as  medicine  is
   concerned “super-specialty” means “post doctoral courses”.


   7.   Mr. Rao submitted that in the instant case, reservation  was  being
   provided for up to the doctoral stage, but at the stage  of  recruitment
   for a post doctoral  courses  and  research  at  the  initial  stage  of
   candidates were required to sit for a written examination and those  who
   are successful, were, thereafter, recruited in the different disciplines
   of teaching.  Mr. Rao submitted that the problem begins  at  that  stage
   when posts are thereafter, reserved in  respect  of  different  courses.
   Mr. Rao submitted that once a candidate qualified for recruitment in the
   different  posts  of  faculty  beginning  from  the  post  of  Assistant
   Professor onward, there was no further  logic  in  thereafter  reserving
   posts for candidates from the Scheduled Castes and Scheduled Tribes  and
   OBC communities.  Mr.  Rao  submitted  that  at  that  level  of  super-
   specialty, the question  of  reservation  ought  not  to  arise  as  was
   observed by the Nine-Judge Bench in Indra Sawhney's case (supra).




   8.   Mr. Rao submitted that while Article 16(4) empowers  the  State  in
   making provisions for reservation of appointments or posts in favour  of
   any backward class of citizens which, in the opinion of the  State,  was
   not adequately represented in the services under  the  State,  the  same
   would have to be read and understood in the manner  indicated  in  Indra
   Sawhney's case (supra).   The  learned  Senior  counsel  submitted  that
   although definite directions have not been given in Paragraphs  838  and
   839 of the judgment in Indra Sawhney's case  (supra),  the  observations
   made therein were guidelines for the Government and  institutions,  such
   as AIIMS, to follow, in order to provide the best  candidates  available
   with the opportunity of going  in  for  super-specialties  which  entail
   higher degree of skill and where no compromise in quality and  expertise
   could be entertained.




   9.   In support of his aforesaid submissions, Mr. Rao also  referred  to
   the decision of a Three-Judge Bench in Dr. Jagadish  Saran  &  Ors.  Vs.
   Union of India [(1980) 2 SCC 768], wherein in Paragraphs 21, 22 and  23,
   Krishna Iyer, J., writing the judgment, spoke about reservation and what
   he referred as wholesale  banishment  of  proven  ability  to  open  up,
   hopefully, some dalit talent, total sacrifice of excellence at the altar
   of equalisation – when the Constitution mandates for every one  equality
   before and equal protection of the law  –  may  be  fatal  folly,  self-
   defeating educational technology and anti-national  if  made  a  routine
   rule of State  Policy.   His  Lordship  further  observed  that  a  fair
   preference, a reasonable reservation, a just  adjustment  of  the  prior
   needs and real potential of the weak with the partial recognition of the
   presence of competitive merit – such is the dynamics of  social  justice
   with animates the three egalitarian articles of the  Constitution.   The
   learned Judge goes on to observe in Paragraph 23 that flowing  from  the
   same stream of equalism is another limitation.  The basic medical  needs
   of a region or the preferential push justified for a  handicapped  group
   cannot prevail in the same measure at the highest  scales  of  specialty
   where the  best  skill  or  talent,  must  be  handpicked  by  selecting
   according to capability.  The learned Judge  went  on  to  restrict  the
   Indian Medical Council's recommendations which indicated  that  students
   of post-graduate courses therein should be selected strictly  on  merit,
   judged on the basis of academic record in the undergraduate course.




   10.  The next decision referred to by Mr. Rao is a short judgment in the
   case of Dr. Fazal Ghafoor Vs. Union of India & Ors.  [(1988)  Supp.  SCC
   794], which was a decision by two Judges, wherein, reliance  was  placed
   on the decision of this Court in the case of Dr. Pradeep Jain & Ors. Vs.
   Union of India & Ors. [(1984) 3 SCC 654], wherein, a  Three-Judge  Bench
   of this Court, while considering the  question  of  reservation  in  the
   light of the aspirations of the citizens of India, as contained  in  the
   Preamble to  the  Constitution,  observed  that  while  reservation  was
   acceptable  with  regard  to   the   undergraduate   course,   different
   considerations will have to prevail when it  came  to  the  question  of
   reservation based on residents’  requirement  within  the  State  or  on
   institutional preference for admission  to  the  post-graduate  courses,
   such as MD, MS and the like.  Following the  decision  in  Dr.  Jagadish
   Saran's case (supra), Their Lordship  observed  that  “there  we  cannot
   allow excellence to be compromised by any  other  consideration  because
   that would  be  detrimental  to  the  interest  of  the  nation.   Their
   Lordships also observed that if equality of opportunity for every  other
   person in the country is the constitutional guarantee, merit must be the
   test when choosing the best.




   11.  Mr. Rao lastly referred to the Constitution Bench decision of  this
   Court in Dr. Preeti Srivastava Vs. State of M.P.  [(1999)  7  SCC  120],
   which was a writ petition heard along with several other writ  petitions
   on various aspects  of  reservation.   Mr.  Rao  pointed  out  that  the
   Constitution Bench also referred to the decision in Dr.  Pradeep  Jain’s
   case (supra) and also Dr. Jagadish Saran’s  case  (supra),  referred  to
   hereinbefore, in expressing its concurrence  with  the  views  expressed
   therein.  In Paragraph 25  of  the  judgment,  Sujata  V.  Manohar,  J.,
   speaking for the Constitution Bench, observed  that  the  specialty  and
   super-specialty courses in medicine also entailed on-hand experience  of
   treating or operating on patients in the  attached  teaching  hospitals.
   Those undergoing these programmes are expected to occupy  posts  in  the
   teaching hospitals or discharge duties  attached  to  such  posts.   The
   elements of Article 335, therefore, colour the selection  of  candidates
   for these course and the rules framed for this  purpose.   Consequently,
   in Paragraph 26, it was  further  observed  that  in  the  premises  the
   special provisions for SC/ST candidates – whether reservations or  lower
   qualifying marks – at the specialty level have  to  be  minimal.   There
   cannot, however, be any such special provisions at the level  of  super-
   specialties.  In  keeping  with  its  findings  the  Constitution  Bench
   ultimately held that since no relaxation is permissible at  the  highest
   levels in the medical institutions, the Petitioners therein  were  right
   when they contended that the reservations made for the Scheduled  Castes
   and Scheduled Tribes candidates for admission to  DM  and  MCH  courses,
   which  are  super-specialty  courses,  in  not   consistent   with   the
   constitutional  mandate  under  Articles  15(4)  and  16(4),  and   that
   Regulation 27 of the Post Graduate Institute of  Medical  Education  and
   Research, Chandigarh Regulations, 1967, would not apply at the levels of
   admissions to DM and MCH courses.


   12.  Mr. Rao submitted that the Health Survey and Development Committee,
   popularly known as the Bhore Committee, in its report published in  1946
   recommended the establishment of a national  medical  centre  at  Delhi,
   which  would  concentrate  on  training,  well-qualified  teachers   and
   research workers in order  that  a  steady  stream  of  those  could  be
   maintained to meet the needs of the rapidly expanding health  activities
   throughout the country.  It seems that pursuant to the said  report  and
   after attainment of Independence, the Union Ministry of Health proceeded
   to implement the aforesaid idea resulting in the enactment  of  the  All
   India Institute of Medical  Sciences  Act,  1956,  with  the  All  India
   Institute of Medical Sciences as an autonomous institution  of  national
   importance and defined its  objectives  and  functions.   Various  other
   decisions, including the decisions in Saurabh  Chaudri  and  Others  Vs.
   Union of India and Others [(2003) 11 SCC 146] and T.M.A. Pai  Foundation
   Vs. State of Karnataka [(2002) 8 SCC 481] were referred to by Mr. Rao to
   urge that the observations made in Indra Sawhney's  case as well  as  in
   Preeti  Srivastava’s  case  were  binding,  though  in  the  nature   of
   observations made in the judgments.  Mr. Rao referred to the decision of
   this Court in Commissioner of Income  Tax,  Hyderabad-Deccan  Vs.  Vazir
   Sultan and Sons [1959 Supp (2) SCR 375], wherein a Bench of Three-Judges
   examined the doctrine of “obiter dicta” and arrived at  a  finding  that
   even obiter at times has the force of law declared by the Supreme  Court
   under Article 141 of the Constitution.  Mr. Rao ended on the  note  that
   the introduction of the concept of reservation in specialty  and  super-
   specialty subjects or for the appointment of  faculty  in  AIIMS,  would
   defeat the very purpose for which the institute  was  established.   Mr.
   Rao also submitted that if excellence was to be achieved at the level of
   super-specialty disciplines, no  compromise  could  be  made  in  either
   imparting such education or recruiting persons  who  would  impart  such
   education at such level.


   13.  Dr. Rajiv Dhawan, learned Senior Advocate, who  appeared  in  Civil
   Appeal No. 5119 of 2002, submitted that the AIIMS Act  did  not  empower
   the Governing Body to impose reservation at any stage, much less at  the
   stage of super-specialty.  Referring  to  the  affidavit  filed  by  the
   Director of AIIMS, Dr. Dhawan submitted that the decision  of  the  High
   Court was contrary to the decision of this Court in Indra Sawhney's case
   and also in M. Nagaraj and Others Vs. Union of India and Others  [(2006)
   8 SCC 212] where it was held that there should be no reservation at  the
   super-specialty stage, and, in any event, the  same  would  have  to  be
   based  on  quantifiable  data.   Mr.  Rao  submitted  that  proportional
   representation and not adequacy, as understood in Indra  Sawhney’s  case
   or even in M. Nagaraj’s case, has been resorted to in the  instant  case
   in the teeth of the said two  cases.   While  making  reference  to  the
   concept of creamy layer, Dr. Dhawan urged that “equality” does not  mean
   that reservation had to be applied in each and every  case  to  maintain
   such equality, for example, the creamy layer concept as  was  considered
   by this Court in E.V. Chinnaiah Vs. State of A.P. and Others  [(2005)  1
   SCC 394].


   14.  Appearing for the Institute, Mr. Mehmood Pracha,  learned  Advocate
   contended that people from Backward classes and the Scheduled Castes and
   the Scheduled Tribes were often discriminated against and even in  spite
   of having excellent qualities, they were not  provided  with  sufficient
   opportunities to come up  to  the  standards,  as  contemplated  by  the
   various medical colleges and, in particular, the All India Institute  of
   Medical Sciences, which is an institution of national  importance.   Mr.
   Pracha urged that although reservation at all different  levels  of  the
   Institute had  been  introduced,  for  quite  some  time,  there  is  no
   available data to indicate that there has been any deterioration in  the
   quality of medical services being provided in AIIMS.  On the other hand,
   AIIMS was one of the most sought after medical institute, not  only  for
   promotion and research  work,  but  also  for  the  purpose  of  medical
   education.  Taking a leaf out of Hindu mythology,  Mr.  Pracha  drew  an
   analogy from the story of Eklavya and Arjun in  the  Mahabharta.   While
   Arjun belonged to the princely class, Eklavya  was  a  tribal  boy,  who
   without actual training  or  guidance  from  any  teacher,  by  his  own
   efforts, excelled in the art of archery.   The  famous  Dronacharya  was
   Arjun’s teacher in archery and Eklavya had acquired the skills  that  he
   had by merely watching Dronacharya guiding Arjun.  However, when it came
   to an archery competition, Dronacharya, who was  more  or  less  certain
   that, if allowed an opportunity,  Eklavya  would  possibly  beat  Arjun,
   requested Eklavya that if he really loved and respected him,  he  should
   give his right thumb as gurudakshina to his master.   Eklavya  dutifully
   obeyed the person he had chosen as his master  and  was  thus  prevented
   from competing in the competition which Arjun won.  Mr. Pracha submitted
   that simply  because  Eklavya  was  a  tribal  boy  he  was  denied  the
   opportunity  of  competing  with  Arjun,  despite  his  brilliance   and
   excellence.  Mr. Pracha submitted that there are many more  Eklavyas  in
   today’s society, who, if  not  suppressed  and  given  a  chance,  would
   possibly even  outshine  those  belonging  to  the  higher  echelons  of
   Society.


   15.  Mr. Pracha strongly supported the concept  of  reservation  at  all
   stages, including at the super-specialty stage.  He urged  that  at  the
   entry level for recruitment to the faculty posts, which were all treated
   as super-specialty disciplines after the Post Graduate course, a  member
   of the Backward Classes had  to  sit  for  an  examination  with  others
   without any separate weightage given for reservation.  It is only  after
   having passed the written examination along with other candidates, was a
   member of the Backward Classes appointed in a teaching post on the basis
   of reservation.  Mr. Pracha submitted that this was done only  with  the
   intention of giving such a candidate  an  opportunity  of  reaching  the
   level of his other fellow faculty members.  Mr. Pracha submitted that  a
   little support was intended to help people from the Backward communities
   to make their presence felt in  academia,  so  as  to  encourage  others
   similarly situated.  Mr. Pracha also relied  on  the  decision  of  this
   Court in Indra Sawhney’s case, in support of his contention that members
   of the Scheduled Castes and Scheduled Tribes and Other Backward  Classes
   were not adequately represented and  for  the  said  purpose  a  certain
   amount of reservation was necessary so  that  they  could  compete  with
   others and excel in academics.  Strongly supporting the  policy  adopted
   by the Institute, Mr. Pracha submitted that the Civil  Appeal  filed  by
   the Faculty of Association of AIIMS was liable to be dismissed.


   16.  Appearing for the Union of India,  the  learned  Solicitor  General
   repeated the submissions made by Mr. Pracha and added that the State had
   a constitutional duty to empower certain sections of society who  needed
   help to uplift themselves from their particular situations.  The learned
   Solicitor General submitted that Article 46 of the Constitution,  though
   a Directive Principle, was  in  the  nature  of  a  guideline  for  good
   governance to the Government of the day.  The said Article was  intended
   to help the depressed classes, who otherwise had little  opportunity  of
   raising their standards.  Faced with the question as to  when  initially
   the Central Government had opposed the doctrine of  reservation  on  the
   ground of excellence in education, why was it necessary in 1972 to  take
   a different stand and come out in support of reservation, even in super-
   specialty courses, the learned Solicitor General urged that  the  policy
   was based not  on  the  question  of  adequacy,  but  as  a  measure  of
   empowerment for the Backward Classes.  While referring to  the  decision
   in M. Nagaraj’s case, which has been referred to by  the  other  learned
   counsel,  the  learned  Solicitor  General  contended  that   with   the
   introduction of Article 16(4A) in the Constitution, the decision arrived
   at in M. Nagaraj’s  case,  would  have  to  be  read  differently.   He,
   however, also urged that there  was  no  constitutional  prohibition  to
   impose reservation, if it was felt necessary  to  benefit  the  Backward
   Classes, who had little or no support to help them  improve  their  lot.
   Referring to the decisions of this Court in Dr.  Jagadish  Saran's  case
   and Dr. Pradeep Jain’s case, which have been  referred  to  hereinabove,
   the learned Solicitor General urged that  the  direction  given  in  Dr.
   Pradeep Jain’s case that reservation should not exceed 70%, did not take
   into consideration Article 16(4A) of the Constitution, while giving such
   directions.


   17.  Although, the matter has been argued at some length, the main issue
   raised regarding reservation at the super-specialty  level  has  already
   been considered in Indra Sawhney’s case (supra) by a Nine-Judge Bench of
   this Court. Having regard to such decision, we are not inclined to  take
   any view other than the view expressed by the Nine-Judge  Bench  on  the
   issue.  Apart from the decisions rendered by this Court in Dr.  Jagadish
   Saran's case (supra) and Dr. Pradeep Jain’s case (supra), the issue also
   fell for considerate in Preeti Srivastava’s case (supra) which was  also
   decided by a Bench of Five Judges.  While in Dr. Jagadish  Saran's  case
   (supra) and in Dr. Pradeep Jain’s case (supra) it was categorically held
   that there could be no compromise with  merit  at  the  super  specialty
   stage, the same sentiments were also expressed  in  Preeti  Srivastava’s
   case  (supra)  as  well.  In  Preeti  Srivastava’s  case  (supra),   the
   Constitution Bench had an occasion to consider Regulation 27 of the Post
   Graduate  Institute  of  Medical  Education  and  Research,   Chandigarh
   Regulations, 1967, whereby 20% of seats in every course of study in  the
   Institute was to be reserved for candidates belonging to  the  Scheduled
   Castes, Scheduled Tribes or other categories of persons,  in  accordance
   with the general rules of the Central Government promulgated  from  time
   to time.  The Constitution Bench came to the conclusion that  Regulation
   27 could not  have  any  application  at  the  highest  level  of  super
   specialty as this would defeat the very object  of  imparting  the  best
   possible  training  to  selected  meritorious  candidates,   who   could
   contribute to the advancement of  knowledge  in  the  field  of  medical
   research and its applications.   Their Lordships ultimately went  on  to
   hold that there could not  be  any  type  of  relaxation  at  the  super
   specialty level.


   18.  In paragraph 836 of the judgment in Indra Sawhney’s  case  (supra),
   it was observed that while the relevance and significance  of  merit  at
   the stage of initial recruitment cannot be ignored, it  cannot  also  be
   ignored that the same idea of reservation implies selection  of  a  less
   meritorious person. It was also observed that at the same  time  such  a
   price would have to be paid if  the  constitutional  promise  of  social
   justice was to be redeemed.  However, after making such  suggestions,  a
   note of caution was introduced in the very next paragraph in  the  light
   of Article 15 of the Constitution.
A  distinction  was,  however,  made
   with regard to the provisions of Article 16 and it was held that Article
   335 would be relevant and it would not be permissible not  to  prescribe
   any minimum standard at all.
Of course, the said observation  was  made
   in the context of admission to medical colleges and reference  was  also
   made to the decision in State of M.P. Vs. Nivedita Jain  [(1981)  4  SCC
   296],
where admission to medical courses was regulated  by  an  entrance
   test.
It was  held  that  in  the  matter  of  appointment  of  medical
officers, the Government or the Public Service Commission would  not  be entitled to say that there would not be  minimum  qualifying  marks  for Scheduled Castes/Scheduled Tribes candidates while prescribing a minimum for others. 
In the very  next  paragraph,  the  Nine-Judge  Bench  while
   discussing the provisions of Article 335 also observed that  there  were certain services and posts where either on  account  of  the  nature  of duties attached to them or the level in  the  hierarchy  at  which  they stood, merit alone counts.
In such situations, it cannot be advised  to  provide for reservations.  
In the paragraph following, the position  was
   made even more clear when
Their Lordships observed that they were of the
 opinion  that  in  certain  services  in  respect  of   certain   posts,
 application of rule of reservation may not be  advisable  in  regard  to various technical posts including posts in super specialty in  medicine, engineering and other scientific and technical posts.


   19.  We cannot take a different view, even though it has been  suggested
   that such an observation was not binding, being obiter in  nature.    We
   cannot ascribe to such a view since  the  very  concept  of  reservation
   implies mediocrity and  we  will  have  to  take  note  of  the  caution
   indicated  in  Indra  Sawhney's  case.   While  reiterating  the   views
   expressed by the Nine-Judge Bench in Indra Sawhney’s case, we dispose of
   the two Civil Appeals in the light of the said views,  which  were  also
   expressed in Dr. Jagadish Saran's case, Dr.  Pradeep  Jain's  case,  Dr.
   Preeti Srivastava's  case.   We  impress  upon  the  Central  and  State
   Governments to take appropriate  steps  in  accordance  with  the  views
   expressed in Indra Sawhney's case and in this case, as  also  the  other
   decisions referred to above, keeping in mind the provisions  of  Article
   335 of the Constitution.


   20.  There will be no order as to costs.


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

                                          (ALTAMAS KABIR)





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






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

                                       (RANJAN GOGOI)







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

                                                 (M.Y. EQBAL)







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

                                       (VIKRAMAJIT SEN)

   New Delhi
   Dated: July 18, 2013.