Supreme Court of India
DHARAM PAL & ORS.versusSTATE OF HARYANA & ANR.
- Citation
- 2013 INSC 479
- Decided
- 18 July 2013
- Disposal
- Disposed off
- Bench
- ALTAMAS KABIR
Holding
The magistrate may disagree with the police report and summon column 2 persons, and the Sessions Court, upon committal, may take cognizance and summon those persons under Section 193 without waiting for Section 319, affirming the view in Kishun Singh’s case.
Summary
The Supreme Court examined whether a magistrate, after receiving a police report under Section 173(3) CrPC, could disagree with the report, issue summons to persons listed in column 2 and either try them or commit the case to a Sessions Court, and whether the Sessions Court could, upon committal, take cognizance and summon those persons under Section 193 without waiting for the Section 319 stage. The Court held that the magistrate does have the power to disagree with the police report, issue summons to column 2 persons and either try them or commit the case to the Sessions Court. It also held that, once the case is committed, the Sessions Court may take cognizance and summon the column 2 persons under Section 193 as a court of original jurisdiction. The view in Kishun Singh’s case was affirmed and the contrary view in Ranjit Singh’s case was rejected. The matter was remitted to a three‑judge bench to dispose of the pending appeals.
Issues considered
- Whether the committing magistrate has any role after committing a case to the Sessions Court when the police report shows the case is triable by the Sessions Court.
- If a magistrate disagrees with the police report, can he issue summons against persons listed in column 2 of the report and include them in the trial.
- Whether the magistrate must follow complaint‑case procedure and take evidence before issuing summons to column 2 persons.
- Whether a Sessions Judge can issue summons under Section 193 CrPC as a court of original jurisdiction.
- Whether, after committal, the Sessions Judge must wait for the Section 319 stage before issuing summons under Section 193.
- Whether the decision in Ranjit Singh’s case overturning Kishun Singh’s decision was correct.
Legislation cited
- Code of Criminal Procedure, 1973s. 173(3), s. 190, s. 193, s. 200, s. 202, s. 204, s. 207A, s. 209, s. 319
Subjects
Criminal Procedure CodeSection 190Section 193Section 204Section 209Section 319Magistrate powersSession Court jurisdictionPolice reportSummonsCommittalArticle 21Article 20
Judgment
[2013] 13 S.C.R. 1052
A DHARAM PAL & ORS.
v.
STATE OF HARYANA & ANR.
(Criminal Appeal No. 148 of 2003)
JULY 18, 2013
B
[ALTAMAS KABIR, CJI, SURINDER SINGH NIJJAR,
RANJAN GOGOi, M.Y. EQBAL AND
VIKRAMAJIT SEN, JJ.]
C Code of Criminal Procedure, 1973:
ss. 190, 204 and 209 ~Power of Magistrate - To issue
summons to those not named as accused in Police Report
- Held: The Magistrate has power to disagree with the Police
0 Report u/s. 173(3) and proceed against the accused persons
de hors- the J?olice Report - Thus, the Magistrate can
summon the persons n.srned in Column 2 of the Police
Report, and on being satisfied that case is made out against
them, can try the case himself or commit the same to
E Sessions Court as the case may be.
s. 193 and 319 - Power of Sessions Court - To· take
cognizance of offence of persons not named as accused in
Charge-sheet - Held: After committal of case, Sessions Court
has jurisdiction to take cognizance as a Court of original
F jurisdiction, of the offences of the persons who have not been
named as offenders, but whose complicity in the case is
evident from the materials available on record - Hence, can
summon the persons shown in Column 2 of Police Report -
Before proceeding against such persons, Sessions Court
G does not need to waittill the stage u/s. 319 is reached. -r '
The matter was referred by Three-Judge Bench of
this.court. The following questions were before the Court
for consi.deration:
H 1052
DHARAM PAL v. STATE OF HARYANA 1053
(i) Does the Committing Magistrate have any othey A
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 B
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
or9er to include their names, to stand trial in C
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 .0
"j.
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?
E
·(iv) Can the Session Judge issue summons under
Section 193 Cr.P.C. as a Court of original
.. r jurisdiction?
(v) Upon the case being committed to the Court of
Session, could the Session Judge issue summons F
s.eparately 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?
G
(vi) Was **Ranjit Singh's case which set aside the
decision in *Kishun Singh's case rightly decided or
not?
Deciding the questions and remitting the matter to
Three-Judge Bench, the Court H
'
~
1054 SUPREME COURT REPORTS (2013] 13 S.G.R.
A HELD: 1.1., It is not correct to say 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 Cr.P.C. to array any other
B person as accused in the trial. It cannot be said that there
could be no intermediary stage between taking of
cognizance under Section 190(1)(b) and Section 204 •
Cr.P.C. issuing summons to the accused. The effect of
¥
such an interpretation would lead to a situation where
c 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
D
would have to be commenced de novo against such
persons whi_ch would not only lead to duplication of the
-"'
.
r
trial, but also prolong the same. [Para 22] [1070-A-D]
1.2. The view expressed in *Kishun Singh's case, is
E more acceptable, since the- Magistrate has ample powers
'.
to disagree with the Final Report that may be filed by the
police authorities under Section 173(3) Cr.P.C. and to
proceed against the accused persons dehors the police
report, which power the Session Court does not have till
~
.
F 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), he was helpless in taking recourse to
such a course of action while the Session Judge was
r
• G 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. [Para 23] [1070-E, G]
1.3. The Magistrate has a role to play while committing
H
DHARAM PAL v. STATE OF HARYANA 1055
the case to the Court of Session upon taking cognizance A
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 B
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 c
Session, he may commit the case to the Court of Session
to proceed further in the matter. [Para 24) [1070-H; 1071-
A-C]
1.4. As to the procedure to be followed by the
Magistrate , if he was satisfied that a prima facie case D
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 E
commit it to the Court of Session if the same was found
to be triable by the Session Court. [Para 25) [1071-C-E]
2.1. The Session Judge was entitled to issue
summons under Section 193 Cr.P.C. upon the case being F
committed to him by the Magistrate. Section 193 of the
Code speaks of cognizance of offences by Court of
Session. The key words in the Section are that "no Court
of Session shall take cognizance of any offence as a
Court of original jurisdiction unless the case has been G
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
H
1056 SUPREME COURT REPORTS [2013) 13 S.C.R.
A cognizance of the offence exercising original jurisdiction.
It cannot be said that the cognizance indicated in
Section 193 deals not with cognizance of an offence, but
of the commitment order passed by the Magistrate, in the
clear wordings of Section 193 that the Court of Session
B may take cognizance of the offences under the said
Section. [Para 26] [1071-E, F, H; 1072-A-C]
2.2. It is well settled that cognizance of an offence
can only be taken once. In the event, a Magistrate takes
C 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
D language of Section 193 of the Code very clearly indicates
that once the case is committed to the Court of Session
by the Magistrate, the Court of Session assumes original
jurisdiction and all that goes with the assumption of such
jurisdiction. The provisions of Section 209 will, therefore,
E have to be understood as the Magistrate playing a
passive role in committing the case to the Court ot
Session on finding from the police report that the case
was triable by the Court of Session. Nor can there be
any question of part cognizance being taken by the
F Magistrate and part cognizance being taken by the
Session Judge. [Para 27] [1072-E-H]
2.3. The Court agrees with the views expressed· in
*Kishun Singh's case that the Session Courts has
G 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
H
DHARAM PAL v. STATE OF HARYANA 1057
t Section 209, the Session Judge may summon those A
persons shown in column 2 of the police report to stand
trial along with those already named therein. [Para 28]
[1073-A-B]
2.4. It is also not correct to say that the Session Court
B
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 Magistrate while committing the case
..,;
to the Court of Session. [Para 29] [1073-C-D] c
2.5. The decision in *Kishun Singh's case was the
correct decision and the Session Judge, acting as a
Court of original jurisdiction, could issue summons under
Section 193 on the basis of the records transmitted to D
r him as a result of the committal order passed by the
Magistrate. The decision **Ranjit Singh vs. State of
Punjab does not lay down the law correctly in respect of
the powers of the Session Court after committal of the
case to it, by the Magistrate under Section 209 Cr.P.C. E
[Paras 30 and 31] [1073-D-G]
*Kishun Singh vs. State of Bihar (1993) 2 SCC 16: 1993
'r (1) SCR 31 - affirmed.
**Ranjit Singh vs. State of Punjab (1998) 7 SCC 149: F
'.
1998 (2) Suppl. SCR 8- held inapplicable.
Kishori Singh and Ors. vs. State of Bihar and Ors. (2004)
13 SCC 11; Rajender Prasad vs. Bashir and Ors. (2001) 8
SCC 522: 2001 (3) Suppl. SCR 156; SWIL Limited vs. State G
of Delhi and Ors. (2001) 6 SCC 670:2001 ~1) Suppl. SCR
527; Rashmi Kumar vs. Mahesh Kumar Bhada (1997) 2 SCC
397: 1996 (10) Suppl. SCR 347; Indian Carat Pvt. Ltd. VS.
State of Karnataka and Anr (1989) 2 SCC 132: 1989 (1)
SCR 718; Abhinandan Jha vs. Dinesh Mishra (196J) 3 SCR
H
10,58 SUPREME COURT REPORTS (2013] 13 S.C.R.
A 668; Raj Kishore Prasad vs. State of Bihar and Anr. (1996)
4 SCC 495: 1996 (2) Suppl. SCR 125 - referred to.
Case Law Reference:
(2004) 13 sec 11 referred to Para 1
8
2001 (3) Suppl. SCR 156 referred to Para 1
2901 (1) Suppl. SCR 527 referred to Para 1
1993 (1) SCR 31 affirmed Para 1
c 1998 (2) Suppl. SCR 8 held inapplicable Para 1
1996 (10) Suppl. SCR 347 referred to Para 13
1989 (1) SCR '718 referred to Para 14
D (1967) 3 SCR 668 referred to Para 14
1996 (2) Suppl. SCR 125 referred to Para 15
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 148 of 2003.
E
From the Judment & Order dated 27.05.2002 of the High
Court of Punjab & Haryana at Chandigrah in Criminal Misc.
No. 21505-M of 2002.
WITH
F
Crl. A. Nos. 865 of 2004, 1334 of 2005 & 537 of 2006
Brijender Chahar, Rajeev Gaur 'Naseem', AAG, Jyoti
Chahar, Vinay Garg, Manu Shanker Mishra, Naveen Kumar,
Alok Kumar, Siddhartha Dave, Jemtiben AO, Vibha Datta
G Makhija, Kamal Mohan Gupta, Gopal Singh, Manish Kumar,
Chandan Kumar, J.P.Dhanda, Shishir Pinaki, Ravi Chandra.
Prakash, Mukesh Kr Singh, Prusottam Tripathi. Fiza Munish,
Amit Kumar, K.K. Tyagi, lmaran Alam. lftekhar Ahmad, P.
Narasimhan, Rahul Shaukla, Bachita 8. Shukla, Dr Kailash
H Chand for the appearing parties
DHARAM PAL v. STATE OF HARYANA 1059
,. Tne Judgment of the Court was delivered by A
ALTAMAS KABIR, CJI. 1. This matter was initially
directed to be heard by a Bench of Three-Judges in view of
the conmct of opinion in the decisions of two Two-Judge
Benches, in the cases of Kishori Singh and Others Vs. State B
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
f
Bench on 1st September, 2004, it was brought to the notice of
'~
the court that two other decisions had a direct bearing on the
c
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 D
~
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 E
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
* r hand, in Ranjit Singh's case (supra), it wa3 held that from the
stage of committal till the Session Court reached the stage F
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.
-...- G
2. The Three-Judge
I
Elench 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
H
1060 SUPREME COURT REPORTS [2013] 13 S.C.R.
A 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
agaJnst them and has to wait till the stage under Section 319
B 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
c 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
0
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.
E 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:
F (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?
G (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 al~o in
H
DHARAM PAL v STATE OF HARYANA 1061
[ALTAMAS KABIR, CJI.]
j order to include their names, along wi!h Nafe Singh._ A
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 B
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
i in issuing summons against them without following
such procedure?
c
(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 0
.,;.,.
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? E
(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 F
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 G
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 H
1062 SUPREME COURT REPORTS [2013) 13 S.C.R.
A 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
C 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
D 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
E 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 i
F 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 charne-sheet. Mr. Chahar contended
that in fact the Magistrate under the garb of a protest petition
G 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 disclos.ed that an offence had been 1
committed, which was exclusively triable by Court of Session,
H the Magistrate had no other function but to commit the same1
DHARAM PAL v. STATE OF HARYANA 1063
[ALTAMAS KABIR, CJI.]
to the Court of Session, even if on looking into the police report, A
he was convinced that the others mentioned in column 2 ofthe
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 B
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 207 A of the 1898 c
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: D
(a) Upon receiving a complaint of facts, which
constitute such offence;
(b) Upon a police report of such facts;
E
(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 th.e two
provisions was intentio·nal and had been made in order to F
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 G
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
H
1064 SUPREME COURT REPORTS (2013] 13 S.C.R.
A 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
8 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
C 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.
D 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
E 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.
F 11. Appearing for the Appellants in C_fiminal Appeal N~.
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
G 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:
H
DHARAM PAL v. STATE OF HARYANA 1065
[ALTAMAS KABIR, CJI.]
..,,-. j· "190.Cognizance of offences by Magistrates.- A
(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 - B
(a) upon receiving a complaint of facts which
constitute such offence;
--t·
(b) upon a police report of such facts;
.., c
(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 D
-+,
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 E
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.
·r Dave submitted that after taking cognizance upon a police
report under Section 190(1 )(b), the next stage would be F
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
G
Session, which could, thereafter, take recourse to Section 3f9
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
H
1066 SUPREME COURT REPORTS [2013] 13 S.C.R.
A the Code would be not of the o'ffence 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
8
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
C 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
D 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
E 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 i
F 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
G 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
H case made out for sending of the accused for trial.
DHARAM PAL v. STATE OF HARYANA 1067
[ALTAMAS KABIR, CJI.)
I 15. Mr. Dave also referred to the decision of this Court in A
Raj Kishore Prasad Vs. State of Bihar and Another [(1996) 4
sec 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 B
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
f committal can the Court of Session exercise jurisdiction under
Section 319 of the Code and add a new accused, on the basis c
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
D
-i., 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 PrasfJ.d's case (supra), wherein E
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. F
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
't' cognizance and issue summons. Contrary to what had been G
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
H
1068 SUPREME COURT REPORTS [2013] 13 S.C.R.
A 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
B 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
c 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.
D
+-
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 -
E 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 charg~~sheet, even after cognizance was taken. He referred ~
to.various decisions, which had already been referred to by "+
F . the ?P1~wcounse!; ...
" . J9.; Even in C_rirninal Appeal No. B65 of 2004, Mr. Shishir
Pina_ki, learned Advocate appearing for Respondent No. 2
(corripl~inant), urged that the Magistrate has been vested with
qo(ifrol,:over the proceedings under Article 20 of the Constitution -f'"
G and. hence itwas 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 tinder Section 204 of the Code.
H
DHARAM PAL v. STATE OF HARYANA 1069
[ALTAMAS KABIR, CJI.]
l , 20. The issue in the Reference being with regard to the A
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 .cond.itions requisite. for initiation of
proceedings. B
,
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. C
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 <;>f the report. The facts as revealed from
the materials on record and the oral submissions made on D
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 E
been named in column 2 of the charge-sheet, without holding
any further inquiry, as contemplated under Sections 190, 200
or even ~02 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 F
- against the accused, whose names were included in column
2, as he was convinced that a prima facie CiiSe 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 G
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. Ks-far as the first question is concerned, we are unable
H
1070 SUPREME COURT REPORTS [2013] 13 S.C.R.
A to accept the submissions made by Mr. Chahar and Mr. Dave Joi:-
that on receipt of a police report seeing that the case was
!riable 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
B 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 ~
c 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
D
against such persons which would no~ 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 ~urt
E in the cases referred to hereinbefore, the Magistrate has a pie
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.
F 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 -"-
G
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 tel play while
,
~
committing the case to the Court of Session upon taking
H
't
I DHARAM-PAL v. STATE OF HARYANA 1071
[ALTAMAS KABIR, CJI.]
cognizance on the police report submitted before him under A
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
oasis 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 B
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. c
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, D
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.
E
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
r· Section 193 Cr.P.C. upon the case being committed to him
by the learned Magistrate. Section 193 of the Code speaks of F
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 G
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 H
1072 SUPREME COURT REPORTS· [2013] 13 S.C.R.
A 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
B 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 ~
c 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
D 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
E 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 +-
F 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
G 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.
H 28. In that view of the matter, we have no hesitation in
DHARAM PAL v. STATE OF HARYANA 1073
[ALTAMAS KABIR, CJI.]
agreeing with the views expressed in Kishun Singh's case A
(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 evidentfrom the materials available on record. Hence, even
without recording evidence, upon committal under Section 209, · B
the Session Judge may summon those persons shown in
column 2 of the police report to stand trial along with those ·
f 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 ·C ·
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. o
30. The Reference to the. effect as to wheth.er the decision
in· Ranjit Singh's case (supra) was correct or not in Kishun
s/ngh'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 E
jurisdiction, could issue summons under Section 193 on the·
basis of the records transmitted to him as a result of the
r 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 F
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· refilled of the powers of the Session Court
.... after committal of the case to it by the learned Magistrate under
Section 209 Cr.P.C. G
32. The matter is remitted to the Three-Judge Bench to
dispose of the pending Criminal Appeals in accordance with
the v!ews expressed by Lis in this judgment.
Kalpana K Tripathy Remitting the matter to Three-Judge Bench. H
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