Holding

A Court of Session, after a case is committed to it, may summon additional persons as accused under Section 193 CrPC based on prima facie material in the investigation report, and this does not amount to a fresh taking of cognizance.

Summary

The petition challenged the order of the trial court and the High Court that summoned Kallu Nat alias Mayank Kumar Nagar as an accused under Section 193 of the CrPC in a murder‑rape case, despite his name being omitted from the charge‑sheet. The core issue was whether a Court of Session, after a case is committed to it by a magistrate, can summon an additional person as accused based solely on statements and documents in the investigating officer's final report, without recording evidence, and whether this amounts to a second taking of cognizance. The Supreme Court examined the meaning of "cognizance" under the CrPC, the respective roles of magistrates and Sessions courts, and the effect of Sections 190, 209 and 193. It held that once the case is committed, the Sessions court takes cognizance of the offence as a whole and may summon any person who appears prima facie guilty, independent of Section 319. The Court affirmed that this power is part of the original cognizance and not a fresh one. Consequently, the petition was dismissed and the trial court was directed to proceed with framing charges and trial.

Issues considered

Whether a Court of Session can summon a person as an accused under Section 193 CrPC without recording evidence, based on the final report of the investigating officer.
Whether such summoning constitutes a second taking of cognizance of the offence, contrary to the principle that cognizance can be taken only once.
The respective powers of a magistrate and a Court of Session in taking cognizance of offences triable exclusively by the Sessions Court.
The relationship between Sections 190, 209, 193 and 319 of the CrPC in the context of adding additional accused.

Legislation cited

Code of Criminal Procedure, 1973s. 190, s. 193, s. 200, s. 202, s. 204, s. 207, s. 208, s. 209, s. 225, s. 226, s. 227, s. 228, s. 319, s. 319(4)(b)
Indian Penal Code, 1860s. 302, s. 376

Headnote

Issue for Consideration Whether the Court of Session, without itself recording evidence, can summon a person to stand trial in exercise of its powers u/s.193, Code of Criminal Procedure, 1973 as an accused (along with others committed to it by a Magistrate) on the basis form of statements and other documents as contained in the final report of the investigating officer u/s.173, CrPC independently of the provisions of s.319 of the said Code. Headnotes† Code of Criminal Procedure, 1973 – Chapter XIV – s.193 – Cognizance of offences by

Subjects

Section 193 CrPCSection 319 CrPCSection 190 CrPCCognizanceTaking cognizanceCommitment of caseCognizance of offences by Courts of SessionCognizance of offences by MagistratesPower to proceed against other personsChapter XIV CrPCChapter XV CrPCChapter XVI CrPCChapter XVIII CrPCInquiryOffences triable exclusively by Court of SessionsSummon a person as accusedCommittal of case by MagistrateExtra judicial confessionTransfer of investigationSummoning additional personsCourt's duty to find real offendersTrialConscious application of mindAscertainment of truth or falsehood of allegation

Judgment

[2025] 8 S.C.R. 611 : 2025 INSC 930

Kallu Nat Alias Mayank Kumar Nagar
v.
State of U.P. and Anr.
(Special Leave Petition (Criminal) No. 10010 of 2025)
05 August 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]

Issue for Consideration
Whether the Court of Session, without itself recording evidence, can
summon a person to stand trial in exercise of its powers u/s.193,
Code of Criminal Procedure, 1973 as an accused (along with others
committed to it by a Magistrate) on the basis of materials in the
form of statements and other documents as contained in the final
report of the investigating officer u/s.173, CrPC independently of
the provisions of s.319 of the said Code.

Headnotes†
Code of Criminal Procedure, 1973 – Chapter XIV – s.193 –
Cognizance of offences by Courts of Session – “cognizance”;
“taking cognizance” – Whether the Court of Session, without
itself recording evidence, can summon a person to stand
trial in exercise of its powers u/s.193 as an accused (along
with others committed to it by a Magistrate) on the basis of
materials in the form of statements and other documents as
contained in the final report of the investigating officer u/s.173
independently of the provisions of s.319:
Held: The Court of Session has power u/s.193 to summon a
person as accused to stand trial, even if he has not been charge-
sheeted by the police and whose complicity in the crime appears
in the evidence available on record – Both u/ss.209 and 193,
CrPC respectively, commitment is of, the “case” and not of the
“accused” as distinguished from s.193(3) and s.207A respectively
of the old Code where commitment was of the “accused” and not
the “case” – For committing a case there must be an offence and
involvement of a person who committed the same – Even though
the case is committed yet cognizance taken is of the offence and
not the offender – Once the case in respect of the offence qua the

* Author
612 [2025] 8 S.C.R.

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accused, who are before the Court, is committed and cognizance
is taken, the embargo u/s.193 regarding taking cognizance only
by committal goes – Summoning additional persons will then
be regarded as incidental to the cognizance already taken on
committal and as, a part, of, the normal process that follows –
A fresh committal of such person is not necessary – Further,
s.319(4)(b) enacts a deeming provision in that behalf dispensing
with the formal committal order by providing that the person added
will be deemed to have been an accused even when cognizance
was taken first – Proceedings could be instituted and cognizance
taken also against persons not known at that time – Once the Court
takes cognizance of the offence (not of the offender), it becomes
the Court’s duty to find out the real offenders and if it comes to the
conclusion that besides the persons put up for trial by the police
some others are also involved in the commission of the crime, it
is the Court’s duty to summon them to stand trial along with those
already named, since summoning them would only be part of the
process of taking cognizance – Constitution Bench judgment in
Dharam Pal case, explained. [Paras 90, 103]

Code of Criminal Procedure, 1973 – s.193 – Cognizance
of offences by Courts of Session – Rape and murder of
Respondent No.2-complainant’s wife – Crime Branch gave
clean chit to the petitioner herein and the charge-sheet was
filed only against the co-accused – Case came to be committed
u/s.209, CrPC being exclusively triable by the Court of
Session – Respondent No.2 filed application u/s.193 seeking
to summon the petitioner as an accused – Application allowed
by trial court – Order affirmed by High Court – Correctness:
Held: No error in the impugned order – Upon the committal by the
Magistrate, the Court of Sessions is empowered to take cognizance
of the whole of the incident constituting the offence – The Court of
Sessions is thus invested with the complete jurisdiction to summon
any individual accused of the crime – The Court of Session takes
cognizance of the case or the offence as a whole and, therefore, is
entitled to summon anyone who, on the material before it, appears
to be guilty of such offence to stand trial before it – The whole of
the incident constituting the offence is to be taken cognizance of by
the Court of Session on commitment and not that every individual
offender must be so committed or that in case it is not so done
then the Court of Session would be powerless to proceed against
[2025] 8 S.C.R. 613

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

persons regarding whom it may be fully convinced at the very
threshold of the trial that they are prima facie guilty of the crime as
well – Plea of the petitioner that he could have been summoned
as an accused only during the course of trial under the provisions
of s.319 is incorrect. [Paras 80, 82, 84, 101, 104]

Code of Criminal Procedure, 1973 – Chapter XIV, XVI,
XVIII – s.190; ss.207-209, 225-228 – Committal of Case by a
Magistrate to the Court of Sessions – Role of the Court of
Session after the case is committed to it by the Magistrate
u/s.209 – Offences triable exclusively by the Court of
Sessions – Whether cognizance is taken by the Magistrate
or Court of Sessions:
Held: s.190 empowers the Magistrate with the discretion to
decide whether cognizance of an offence should be taken or
not, by application of his mind, there is no provision of the same
similitude as s.190, which empowers the Court of Session to do
so, in respect of cases committed to it by the Magistrate – The
only limited power that the Court of Session has over the order of
committal passed by the Magistrate, is to ascertain and re-decide
if the offence is one exclusively triable by it or not – Unlike a
Magistrate, who is empowered in terms of s.190 of the Code, to
drop proceedings where after application of his mind, he comes to
the finding that there is no offence for taking cognizance to initiate
proceedings in respect of, the Court of Session is not empowered
to drop the proceedings in the case committed to it, it is only
empowered to either proceed to frame charges against the accused
or to discharge the accused or if such offence is not exclusively
triable by it, transfer the case back to the Magistrate, again for
the purpose of commencement of trial by such Magistrate – This
also, when seen in light of the expression “any offence” used in
s.190 of the Code, clearly indicates that it is the Magistrate who
is not only empowered but also indeed does take cognizance of
an offence even if the same is triable exclusively by the Court of
Session. [Para 71]
Words and Phrases – “Cognizance”; “Taking cognizance”;
“discharge”; “any offence”; “the accused appears or is brought
before the Magistrate”; “during, and until the conclusion of,
the trial” – Purport and meaning – Code of Criminal Procedure,
1973 – Chapter XIV, XV, XVI, XVIII – ss.190, 209 – Discussed.
[Paras 19-24, 54, 56, 65, 66, 71]
614 [2025] 8 S.C.R.

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Code of Criminal Procedure, 1973 – s.193 – Cognizance of
offences by Courts of Session – Object and purpose, stated –
Code of Criminal Procedure, 1898 – s.193 – s.193 old Code
vis-à-vis s.193, Code of 1973. [Paras 72-74, 77-80, 82, 84]
Code of Criminal Procedure, 1973 – s.190 – Cognizance of
offences by Magistrates – Three distinct points of origin of
the criminal machinery – Position of law, stated. [Paras 25-27,
29-31, 33, 35-37, 40-43]

Code of Criminal Procedure, 1973 – s.202 – Postponement of
issue of process – Inquiry under – Scope:
Held: The scope of inquiry u/s.202 is limited to the ascertainment
of the truth or falsehood of the allegation made in the complaint
(i) on the materials placed by the complainant before the court;
and (ii) for limited purpose of finding out whether a prima facie
case for issue of process has been made out. [Para 41]

Case Law Cited
Dharam Pal & Ors. v. State of Haryana & Anr. [2013] 13 SCR
1052 : (2014) 3 SCC 306 – explained.
Balveer Singh & Anr. v. State of Rajasthan [2016] 2 SCR 504 :
(2016) 6 SCC 680; Chief Enforcement Officer v. Videocon
International Ltd. [2008] 2 SCR 36 : (2008) 2 SCC 492; R.R.
Chari v. State of U.P. [1951] 1 SCR 312 : AIR 1951 SC 207;
Sarah Mathew v. Institute of Cardio Vascular Diseases [2013] 12
SCR 674 : (2014) 2 SCC 62; Darshan Singh Ram Kishan v. State
of Maharashtra [1972] 1 SCR 571 : (1971) 2 SCC 654; Mohd.
Yousuf v. Afaq Jahan [2006] 1 SCR 1 : (2006) 1 SCC 627; S.R.
Sukumar v. S. Sunaad Raghuram [2015] 9 SCR 1105 : (2015) 9
SCC 609; Mona Panwar v. High Court of Judicature of Allahabad
[2011] 2 SCR 413 : (2011) 3 SCC 496; Maksud Saiyed v. State of
Gujarat [2007] 9 SCR 1113 : (2008) 5 SCC 668; Tula Ram v. Kishore
Singh [1978] 1 SCR 615 : (1977) 4 SCC 459; Kewal Krishan v.
Suraj Bhan, 1981 SCC (Cri) 438; Rameshbhai Pandurao Hedau v.
State of Gujarat [2010] 3 SCR 522 : (2010) 4 SCC 185; Ramdev
Food Products Pvt. Ltd. v. State of Gujarat [2015] 5 SCR 283 :
(2015) 6 SCC 439; Raghubans Dubey v. State of Bihar, 1967 Cri
LJ 1081 (SC); Pradeep S. Wodeyar v. State of Karnataka [2021]
11 SCR 985 : (2021) 19 SCC 62; Nahar Singh v. State of U.P.
[2022] 2 SCR 795 : (2022) 5 SCC 295; Joginder Singh v. State
[2025] 8 S.C.R. 615

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

of Punjab reported,1979 Cri LJ 333 (Para 6); Kishun Singh v.
State of Bihar [1993] 1 SCR 31 : (1993) 2 SCC 16; W.B. v.
Mohd. Khalid [1994] Supp. 6 SCR 1 : (1995) 1 SCC 684; Ranjit
Singh v. State of Punjab [1998] Supp. 2 SCR 8 : (1998) 7 SCC
149; Hareram Satpathy v. Tikaram Agarwala [1979] 1 SCR 349 :
(1978) 4 SCC 58 : AIR 1978 SC 1568 : (1978) Cri LJ 1687; A.R.
Antulay v. Ramdas Sriniwas Nayak [1984] 2 SCR 914 : (1984) 2
SCC 500 – referred to.

List of Acts
Code of Criminal Procedure, 1973; Penal Code, 1860.

Books and Periodicals Cited
Black’s Law Dictionary – referred to.

List of Keywords
Section 193, Code of Criminal Procedure, 1973; Section 319,
Code of Criminal Procedure, 1973; Section 190, Code of Criminal
Procedure, 1973; Cognizance; Taking cognizance; Commitment
of the case; Cognizance of offences by Courts of Session;
Cognizance of offences by Magistrates; Power to proceed against
other persons appearing to be guilty of offence; Chapter XIV, XV,
XVI, XVIII, Code of Criminal Procedure, 1973; Inquiry; Offences
triable exclusively by the Court of Sessions; Summon a person
as accused; Committal of case by a Magistrate to the Court
of Sessions; Name dropped from charge-sheet; Extra judicial
confession; Transfer of investigation; Summoning additional
persons; Summoning the additional accused; Court’s duty to find
out the real offenders; Complaint; Trial; Conscious application of
mind; Ascertainment of the truth or falsehood of the allegation;
Court of Sessions; Suddenly went missing; Extra-marital affair;
Last seen theory; Murder; Application under section 193 CrPC;
Pre-trial stage; Stage of inquiry; Discharge of accused.

Case Arising From
EXTRAORDINARY CRIMINAL APPELLATE JURISDICTION:
Special Leave Petition (Criminal) No. 10010 of 2025
From the Judgment and Order dated 03.04.2025 of the High Court
of Judicature at Allahabad in CRR No. 6732 of 2024
616 [2025] 8 S.C.R.

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Appearances for Parties
Advs. for the Petitioner:
Vikas Upadhyay, Ms. Ankita Kashyap, Shiva Narang, Ranveer
Singh.

Judgment / Order of the Supreme Court

Judgment

J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided in the
following parts: -

INDEX*

A. FACTUAL MATRIX .......................................................................... 3
B. IMPUGNED ORDER ........................................................................ 10
C. SUBMISSIONS ON BEHALF OF THE PETITIONER ................... 12
D. ISSUE FOR DETERMINATION ............................................................ 15
E. ANALYSIS ........................................................................................ 15
i. What is the import and purport of ‘Cognizance’ under the
scheme of the Code of Criminal Procedure, 1973? .......... 15
a. Meaning of the expression ‘Cognizance’ and ‘Taking
Cognizance’ under Chapter XIV of the Code ................... 15
b. Cognizance of offences by Magistrates and the Three
Distinct Points of Origin of the Criminal Machinery under
the Code. ............................................................................ 20
I. On the basis of a Complaint ....................................... 21
ii. Who takes Cognizance of Offence exclusively triable by
Court of Sessions under the Code? ..................................... 36
a. Role of the Magistrate where the Offence is exclusively
triable by a Court of Session .............................................. 37
I. Chapter XVI - Section(s) 207, 208 and 209 of the Code
and Committal of Case by a Magistrate to the Court of
Sessions ..................................................................... 38

* Ed. Note: Pagination as per the original Judgment.
[2025] 8 S.C.R. 617

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

b. Role of the Court of Session after the case is committed to
it by the Magistrate under Section 209 of the Code ........ 48
c. Object and Purpose underlying Section 193 of the Code ... 60
d. How the decision of this Court in Dharam Pal should be
understood ........................................................................ 69
F. CONCLUSION .................................................................................. 83

1. This petition arises from the order passed by the High Court of
judicature at Allahabad dated 03.04.2025 in Criminal Revision No.
6732 of 2024 (for short, the “Impugned Order”) by which the High
Court rejected the revision application filed by the petitioner-herein
and thereby affirmed the order passed by the Additional District and
Sessions Judge-Fast Track Court (Crime against women) Kanpur
Dehat below disposal proposal paper no. 92 of 2019 arising from the
First Information Report bearing case crime no. 402 of 2018 lodged
with the police station Shivali, District Kanpur Dehat for the offence
punishable under Section(s) 302 and 376 of the Indian Penal Code,
1860 (for short, the “IPC”).

A. FACTUAL MATRIX
2. The respondent No. 2 herein (original first informant) is the husband
of the victim (deceased). The victim all of a sudden went missing
on 21.11.2018. On 24.11.2018 the dead body of the victim was
recovered somewhere from the bushes lying on the outskirts of the
village. In such circumstances the first informant i.e. the husband
lodged a First Information Report at the concerned police station.
In the FIR the first informant named one Ajay as the suspect. The
first informant alleged that Ajay had an extra-marital affair with his
wife (victim) and was last seen with the victim and accordingly he
alleged that Ajay might have been involved in the murder of his wife.
In the course of the investigation, the name of the petitioner-herein
surfaced. Some of the witnesses in their police statements recorded
under Section 161 of the CrPC stated that the petitioner herein
had made an extra judicial confession about his involvement in the
618 [2025] 8 S.C.R.

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alleged crime. Later the investigation came to be transferred to the
Crime Branch. The transfer of investigation took place sometime in
2019. The Crime Branch gave a clean chit to the petitioner-herein.
On 21.02.2019 chargesheet came to be filed only against Ajay. The
name of the present petitioner was dropped from the chargesheet.
3. On 11.03.2019 the case came to be committed under Section 209 of
the Code of Criminal Procedure, 1973 (for short, the “CrPC”) being
exclusively triable by the Court of Session. Ajay Kumar (accused)
against whom chargesheet was filed was brought before the trial
court on 02.04.2019 for the purpose of framing of charge. However,
on the same day i.e. 02.04.2019 the respondent No. 2 (husband of
the victim) filed an application under Section 193 of the CrPC seeking
to summon the petitioner-herein as an accused. It took almost five
years for the trial court to decide the application preferred by the
respondent No. 2 under Section 193 of the CrPC seeking to summon
the petitioner-herein as an accused.
4. The trial court in exercise of powers under Section 193 of the CrPC
ordered that the petitioner-herein shall be summoned as an accused
in connection with the crime referred to above and be put to trial
along with Ajay.
5. The order passed by the trial court reads thus: -
“Heard and properly examined the file.
It is clear from the perusal of the file that in the present case,
complainant Vijaylal has registered an FIR on 24.11.2018 at
Police Station- Shivli, Kanpur Dehat, regarding the murder
of his wife/deceased Shivwati between 21.11.2018 and
24.11.2018. The First Information Report was registered
against accused Ajay Kumar under Section-302 IPC.
On behalf of the complainant, Proforma Paper No. 5B
has been presented and it has been stated that till the
time of filing the report, the applicant/ complainant was
not aware of the name of the proposed opponent. But
during the investigation, the name of the accused has
come to light and sufficient evidence is also available in
the case diary, on the basis of which a request has been
made to summon the opponent Mayank Kumar Nagar
alias Kallu Nat.
[2025] 8 S.C.R. 619

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

The statement in the case diary number-2 states that his
wife Shivwati had illicit relations with the cousin” of this
witness. On ‘21,11.2018 at around 7 pm his wife went
out on the pretext of defecation and has not returned
home since then. On 21.11.2018 at around 8 pm Pushpa
Devi, Deepu and Vinod of the village told that they saw
his wife Shivwati going towards the forest with his cousin
Ajay Kumar. On 24.11.2018, at around 5 pm, when they
reached the wasteland while searching, they found the
dead body of his wife lying in the bushes. A noose of
sal was tied around her neck. His wife was killed by his
cousin Ajay Kumar by putting a noose of sal around her
neck due to Illicit relations.
In the statement of Renu, who is the sister-in-law of the
victim/deceased Shivwati, it is mentioned in the case diary
number-l0 that her sister-in-law’s conduct was not good,
she had a love affair with her aunt’s son Ajay and Kallu
Nat, who had come with Ajay, also had a relationship
with her sister-in-law Shivwati. On 21.11.2018, Kallu Nat
had dropped her sister-in-law home on a motorcycle in
the evening. The next day on 22.11.2018, he came home
early in the morning on the pretext of buying a buffalo.
Whereas Kallu Nat is fully aware that there is no buffalo
for sale in this house. His sister-in law stayed with him the
whole day on 21/11/2018 from here to the hospital and
from the hospital to here. The justification of coming on
the morning of 22/11/2018 is doubtful.
In the case diary slip number - 10 itself, the statement of
witness Framed Kumar is recorded that his father Sundar
was ill, who was admitted in Kiran Hospital, his sister-in-
law Mrs. Shivwati came to see his father in Kiran Hospital
Kanpur city on 21.11.2018, who was brought by a person
on a motorcycle, when she asked, he said that he was her
brother-in-law from the village. At that time, this witness’s
brother-in-law and brother-in-law’s son in-law were in the
hospital, who knew that person.
Neeraj’s statement is mentioned in case diary paper
number 10 that his brother-in-law Pramod’s father Sundar
620 [2025] 8 S.C.R.

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was admitted in Kiran Hospital Kanpur Nagar. His younger
sister Shivwati came on a motorcycle with Kallu Nat of
Baghpur on 21/11/2018, whom he already knew, Kallu Nat
used to visit his sister Shivwati’s house earlier also, that’s
why he knew her. On the same day at around 4:00 pm,
Kallu Nat took his sister from the hospital to Ludhaura.
Deepak’s statement is mentioned in case diary paper
number 10 that Shivwati was his wife’s aunt, who was
his paternal aunt-in-law. On 21/11/2018, he went to Kiran
Hospital Kalyanpur to see the father of his paternal atmt
Framod, resident of Kapuipur. Where her aimt-in-law
Mrs. Shivwati came to the hospital sitting on Kallu Nat’s
motorcycle and in the evening Kallu went back to Varshas
along the river. This witness has stated in his statements
that he recognized Kallu Nat, resident of Bagpur, at
Shivwati’s house in Luchaura.
The investigating officer has recorded in paper number 11
that CDR of mobile number 7678819303 of deceased Smt.
Shivwati has been received, on examination of which it
was found that on 21/11/2018 a very long conversation
took place from the above mentioned mobile number of
the deceased to mobile number 6386602633 at different
times from 15-19-18 to 22-55-47 and on 22/11/2018 in the
night from 00-30-15 to 03-31-26 seven times at different
times, details of which are recorded in the CD and it is
also mentioned on examination of the CDR received
from 1/11/2018 to 22/11/2018 that from mobile number
7678819303 of deceased Shivwati to mobile number
17 calls were made to 6386602633 from 21/11/2018 to
22/11/2018 in which the deceased had a long conversation
and it was done at inopportune time. On checking the
software, the mobile number 6386602633 holder is shown
as Shri Mayank Kumar Nagar son of Jeetpal Nagar resident
of 194 Bagpur, Maitha Kanpur Dehat.
In case diary paper number- 11, Surjan Singh’s statement
is recorded that a few days ago at around 4:00 pm, I was
sitting on the high platform in front of Bagpur Inter College
near Ramptakash Aatishbaaz of Ludhaura village. Kallu
[2025] 8 S.C.R. 621

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

Nat of Bagpur came. He told Ramprakash that uncle I want
to talk to you and came on the platform and told in front
of this witness that on 21/11/2018, he had taken Shivwati
on his motorcycle to Kiran Hospital Kalyanpur to see her
relative and give him food. He told that Ajay and he had
illicit relations with Shivwati and also told that both of them
were friends. He told that he had made a plan to elope on
the same day. As per the plan, Ajay had taken Shivwati
from her home to Raipur in the evening and when Kallu
Nat did not reach Raipur as promised, they would talk to
each other throughout the night. In the morning when Kallu
Nat reached Raipur, Shivwati would get upset and want to
go back home and she would insist on elope. And when
she did not agree after being explained, he would come to
Ludhaura village on the night of 22/28-11-18 to get money
and clothes to elope. He also told that he had raped Shivwati
one by one in the cover near Ludhaura in the barren land
and both of them would kill Shivwati by putting a noose
around her neck with a shawl and he was also apologizing.
In the case diary’s paper number 12A, the doctor who
conducted the post mortem of the deceased, Mr. Puneet
Kumar Pandey, has stated that it has been confirmed that
the deceased was raped and strangled to death and it is
also mentioned that the entire investigation revealed that
the deceased Shivwati was in a love relationship with Ajay
Kumar and Kallu Nat alias Mayank Kumar Nagar. Due to
the love affair, the accused Ajay Kumar took Shivwati to
Raipur on the instructions of Kallu Nat with the intention
of elopement on the evening of 21/11/2018 and Kallu Nat
failed in his plan and tried to convince her the next day
and made a plan with Ajay to remove the deceased from
the way on her insistence and under this plan, Shivwati
was lured and taken to the barren land in village Ludhaura
and both of them raped her one by one in the barren
land and as per the plan, both of them together killed the
deceased by strangulating her by putting a noose around
her neck with a sal. On the basis of the above, the name
of Mayank Kumar Nagar alias Kallu Nat came to light and
Section 376 IPC was added.
622 [2025] 8 S.C.R.

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It is mentioned in the case diary paper number-13 that I,
the in-charge inspector, along with my accompanying staff,
vehicle’ and driver left from police station to village Bagpur
and raided the possible locations of the accused Mayank
Kumar Nagar alias Kallu Nat who has come into light
recently, but he was not found. He is absconding as usual.
According to the case diary paper number-17, Deep Kumar
appeared before the Additional Director General of Police,
Kanpur Zone- Kanpur on 13.01.2019 and gave a written
application and stated that his younger brother Kallu has no
involvement in the murder of Shivwati and the Investigating
officer is demanding one lakh rupees through his broker.
On the basis of which application, the investigation of the
case has been transferred from Chandrashekhar Dubey,
Incharge Inspector, Shivli, Kanpur Dehat to Inspector Shri
Naveen Kumar, Crime Branch, Kanpur Dehat.
It is clear from all the above evidence/discussion that
according to complainant Vijaylal, his wife went to the
toilet on 21.11.2018 at around 7 pm. whose dead body
was found lying in the bushes on 24.11.2018 at around
5 pm, with a noose of sal around her neck. According to
the complainant, Ajay Kumar killed the deceased. It is worth
mentioning that the complainant is not an eyewitness to
the incident. According to the other witness of the case,
Renu, the deceased also had illicit relations with Kallu Nat,
who had gone to Kanpur to see her relative on 21.11.2018
with Kallu Nat and on 22.11.2018 also Kallu Nat came
home. According to another witness Pramod Kumar, the
deceased had come to Kiran Hospital to see her relatives
on 21.11.2018 sitting on a person’s motorcycle. On being
asked, the deceased had said that the person was her
brother-in-law from the village, whom the witness’ brother-
in-law and son-in-law knew. According to witness Neeraj,
his younger sister/deceased Shivwati had come to the
hospital on 21.11.2018 sitting on Kallu Nat’s motorcycle and
on the same day at around 4 pm. Kallu Nat had taken his
sister from the hospital to Ludhaura. According to witness
Deepak, on 21.11.2018, the deceased had come to Kiran
Hospital to see her relatives sitting on a motorcycle with
[2025] 8 S.C.R. 623

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

Kallu Nat and had returned with Kallu Nat. According to
witness Surjan, Kallu Nat had told Ramprakash in front
of this witness that Kallu Nat and Ajay Kumar had illicit
relations with the deceased Shivwati and had raped
Shivwati In turns in the bushes near Ludhaura in the
barren land and had killed her by putting a noose around
her neck with a shawl.
The doctor who conducted the post-mortem of the
deceased. Dr. Puneet Kumar Pandey, has stated in the
summary that the deceased was raped and strangulated
to death.
The case diary of the case shows that the deceased had
a long conversation 17 times from her mobile to another
number from 21.11.2018 to 22.11.2018, which other
number 6386602633 belongs to Mayank Kumar Nagar
son of Jeetpal and the deceased had called the above
number several times in the past as well. The case diary
also shows that during investigation, it was found that the
deceased Shivwati had illicit relations with Ajay Kumar
and Kallu Nat alias Mayank Kumar and with the intention
of eliminating the deceased, Ajay Kumar and Kallu Nat
alias Mayank Kumar, as per the plan, took the deceased
Shivwati to the barren village Ludhaura and raped her one
by one and killed her by putting a noose around her neck.
On the basis of the application of Deep Kumar, brother
of the opponent Kallu Nat alias Mayank Kumar Nagar,
the investigation was given to another investigator and
a chargesheet has been sent to the court against only
accused Ajay Kumar under Section 302, 376 IPC.
All the above evidence, facts, circumstances and
investigation show that the opponent Kallu Nat alias
Mayank Kumar Nagar had illegal relations with the
deceased/victim Shivwati. Who is also a friend of the
accused Ajay Kumar in the said opponent case. With the
aim of removing the deceased from their path, accused
Ajay Kumar and opponent Kallu Nat alias Mayank Kumar-
Nagar, as per-the-plan, called-the victim deceased-Shivwati
to the-wasteland in Ludhaura village and forcibly raped the
624 [2025] 8 S.C.R.

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victim Shivwati one by one (gang rape) and by tightening
the noose of shawl around the neck of the victim Shivwati,
killed the victim deceased Shivwati.
Therefore, on the basis of the above facts and circumstances
and evidence available on the file, it is justified to summon
the opposite accused Kallu Nat alias Mayank Kumar Nagar
for trial under Section 376, 302 IPC.
Order
The application presented by complainant case / applicant
Vijay Lai under paper number - SB under Section 193
CrPC dated 26.04.2019 is allowed. Accused Kallu Nat alias
Mayank Kumar Nagar son of Jeetpal Nagar, resident of 194
Baghpur (Maitha), Police Station- Shivli- District - Kanpur
Dehat is taken cognizance under Section 376, 302 IPG.
Accordingly, summons should be issued to accused Kallu
Nat alias Mayank Kumar Nagar. The case be presented
on 07/06/2024 for further action / charge on accused Kallu
Nat alias Mayank Kumar Nagar.”
6. Thus, it appears from the aforesaid that the application filed by the
complainant under Section 193 of the CrPC to summon the petitioner-
herein as an accused came to be allowed. Having regard to the
materials on record the trial court reached the conclusion that there
was prima facie material indicating involvement of the petitioner-
herein in the alleged crime and he should be asked to face the trial
along with the co-accused against whom chargesheet was filed by
the Investigating Agency for the offence of rape and murder.

B. IMPUGNED ORDER
7. The order referred to above came to be challenged before the High
Court by way of criminal revision application. The High Court rejected
the criminal revision application holding as under: -
“5. At the very outset, the learned A.G.A. for State-opposite
party-1 has raised a preliminary objection regarding
maintainability of present Criminal revision. Learned A-G.A.
submits that since applicant has already approached this
Court by means of aforementioned application under
Section 482 Cr.P.C., therefore, present criminal revision
[2025] 8 S.C.R. 625

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

for the same relief is not maintainable. According to the
learned A.G.A., no liberty was granted by this Court to the
applicant to file a criminal revision nor the aforementioned
application was dismissed on the ground of alternative
remedy. He therefore submits that in view of law laid down
by Apex Court in the case of Sarguja Transport Service
Vs. State Transport Appellate tribunal, M.P. Gwalior and
others (1987) 1 SCC 5, the present criminal revision shall
not be maintainable. Learned A.G.A. has then referred to
the judgement of Supreme Court in Prabhu Chawla Vs.
State of Rajasthan and another, (2016) 16 SCC 30 wherein
the Apex Court has held that an application under Section
482 Cr.P.C. is not liable to be dismissed on the ground of
alternative remedy, of filing a revision.
6. On the edifice of aforesaid submissions, the learned
A.G.A. submits that the true import of the order dated
07.08.2024 is that the revisionist has been granted liberty
to approach the competent court and not to file criminal
revision before this Court. As such, present criminal revision
is not maintainable and therefore liable to be dismissed.
7. Learned A.G.A. has then submitted that the Court of
Sessions in exercise of jurisdiction under Section 193
Cr.P.C. has summoned the present applicant/revisionist.
Referring to the five Judges Bench Judgement of Supreme
Court in Dharmpal and others Vs. State of Haryana and
another, (2014) 3 SCC 306, the learned A.G.A. submits
that the order impugned in present criminal revision cannot
be said to be illegal for want of jurisdiction. As such, the
order impugned cannot be challenged on the ground of
jurisdictional error. On the cumulative strength of above
submission, the learned A.G.A. submits that present
criminal revision is not maintainable and therefore liable
to be dismissed.
8. When confronted with above, the learned counsel for
revisionist could not overcome the same.
9. Having heard the learned counsel for revisionist,
the learned AG.A. for State-opposite party-1 and upon
perusal of record that court finds that the preliminary
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objection raised by the learned A.G.A in opposition to
this criminal revision is clearly borne out from the record
and furthermore, the same could not be dislodged by
the learned counsel for revisionist with reference to the
record at this stage. As such, no good ground now exits
to entertain the present criminal revision.
10. In view of above, this criminal revision fails and is
liable to be dismissed.
11. It is accordingly dismissed.”
8. Thus, the High Court rejected the revision application filed by the
petitioner herein and thereby affirmed the order passed by the trial
court summoning the petitioner as an accused to face the trial along
with the accused named in the charge sheet. The High Court rejected
the revision application relying on the Constitution Bench decision
of this Court in Dharam Pal & Ors. vs. State of Haryana & Anr.
reported in (2014) 3 SCC 306.
9. In such circumstances referred to above the petitioner is here before
this Court with the present petition.

C. SUBMISSIONS ON BEHALF OF THE PETITIONER
10. Mr. Vikas Upadhyay, the learned counsel appearing for the petitioner
vehemently submitted that the trial court as well as the High Court
committed a serious error in summoning the petitioner as an accused
to face the trial along with the charge sheeted accused, namely,
Ajay Kumar. He would submit that the petitioner could have been
summoned as an accused to face the trial only after the trial court
would have started recording oral evidence of the witnesses. In other
words, according to the learned counsel it is only if the involvement
of the petitioner would have surfaced from the oral evidence of any
of the witnesses, then the trial court would have been justified to
summon the petitioner to face the trial in exercise of the powers
under Section 319 of the CrPC.
11. The learned counsel vehemently submitted that there was no scope
for the trial court to summon the petitioner in exercise of the powers
under Section 193 of the CrPC as the Magistrate while committing
the case to the Court of Session had already taken cognizance of
the offence and in such circumstances the trial court by invoking
[2025] 8 S.C.R. 627

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

Section 193 of the CrPC could not have taken cognizance for the
second time. He would submit that the power under Section 193
CrPC is a stage specific power and in the exact words of the learned
counsel; once that stage has crossed it gets exhausted unlike the
power under Section 319 of the CrPC which could be exercised
multiple times during a particular period when the trial is on and is
not bound by any specific stage of trial.
12. Relying on the decision of this Court in Balveer Singh & Anr. vs.
State of Rajasthan reported in (2016) 6 SCC 680 he would submit
that there is nothing like second cognizance. According to him if a
Magistrate has taken cognizance in a case before committing the case,
then despite there being power under Section 193 of the CrPC the
Sessions court cannot again take cognizance. The learned counsel
relying on the Constitution Bench decision in the case of Dharam Pal
(supra) would submit that cognizance of offence can be taken only
once i.e. either by the Magistrate or by the Sessions court. According
to the learned counsel there is nothing like ‘part-cognizance’.
13. In other words, the argument of the learned counsel appearing for
the petitioner is that the Constitution Bench decision of this Court
in Dharam Pal (supra) says in so many words that cognizance of a
sessions triable offence cannot be taken by a Magistrate but the same
has to be taken by a Sessions Judge after committal. According to the
learned counsel, cognizance of a police report/chargesheet filed by
the police is always taken by the Magistrate irrespective of whether
the offences alleged therein are triable by a Court of Sessions or
not. He would submit that the ratio of Dharam Pal (supra) should
be understood as conveying that Section 193 does not permit the
Sessions Judge to take cognizance of the same offences of which
cognizance stood taken by the Magistrate under section 190 of
the Code which the Magistrate takes in order to reach the stage of
committal under Section 209 of the Code. And if once cognizance is
taken by the Magistrate, the same cannot be done by the Sessions
Judge. According to the learned counsel Dharam Pal (supra) says
that cognizance of sessions trial offences can only be taken by the
Sessions Judge.
14. In such circumstances referred to above, the learned counsel prayed
that there being merit in his petition, the same may be considered
accordingly.
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D. ISSUE FOR DETERMINATION
15. The seminal issue that falls for our consideration is whether the
Court of Session, without itself recording evidence, can summon a
person to stand trial in exercise of its powers under Section 193 of
the Code of Criminal Procedure (for short, the CrPC) as an accused
(along with others committed to it by a Magistrate) on the basis of
materials in the form of statements and other documents as contained
in the final report of the investigating officer under Section 173 of the
Code of Criminal Procedure, 1973 independently of the provisions
of Section 319 of the said Code?

E. ANALYSIS

i. What is the import and purport of ‘Cognizance’ under the
scheme of the Code of Criminal Procedure, 1973?

a. Meaning of the expression ‘Cognizance’ and ‘Taking
Cognizance’ under Chapter XIV of the Code.
16. Mr. Vikas Upadhyay, the learned counsel appearing for the petitioner
herein has vehemently canvassed that cognizance of an offence, in
law, can be taken only once. He submitted that in cases involving
offences triable exclusively by the Court of Sessions, cognizance of
such offence may be taken either by a Magistrate prior to the committal
of the case, or, in the absence of such cognizance at the instance
of the Magistrate, by the Court of Session alone, to which the case
is committed. However, he would submit that, once cognizance of
the offence has been taken by either the Magistrate or the Court of
Sessions, as the case may be, a second cognizance by the other
is impermissible in law. He urged that there cannot be a second
cognizance nor can there be any part cognizance or bifurcation
of such cognizance by a Magistrate and a Court of Sessions. In
support of his contention, reliance was placed on the decisions of
Dharam Pal (supra) and Balveer Singh (supra).
17. In Dharam Pal (supra) this Court held that “cognizance of an
offence can only be taken once. In the event, the Magistrate takes
cognizance of the offence and then commits the case to the Court of
Sessions, 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
[2025] 8 S.C.R. 629

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

the Magistrate or by the Court of Session.” and that there can be no
“question of part cognizance being taken by the Magistrate and part
cognizance being taken by the learned Session Judge.” Similarly,
in Balveer Singh (supra) it was reiterated 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, proceeding to issue summons, is not in accordance
with law. If cognizance is to be taken of the offence, it could be taken
either by the Magistrate or by the Court of Session”.
18. Before we advert to the submission canvassed by the petitioner
herein, and try to understand what has been conveyed in so many
words by this Court in the aforesaid decisions of Dharam Pal (supra)
and Balveer Singh (supra), it would be apposite to first understand
what is meant by ‘cognizance’ under the Code and the legal import
and significance of the term “taking cognizance”.
19. The term “cognizance” has nowhere been defined under the Code,
but the word itself is of indefinite import. The word itself is derived
from the Latin word ‘cognoscere’, and the French Word “conoisance”
which means “to know”, “to become acquainted with”, or “to recognize”.
The Black’s Law Dictionary defines the term “cognizance” as “Judicial
notice, knowledge or acknowledgement” or “the judicial hearing of
a cause”.
20. In criminal law, the term “cognizance” has no esoteric or mystic
significance, and the same is reflected by the omission of any formulaic
definition of the term under the Code. However, over time, the term
“cognizance” has come to acquire a special and distinct connotation,
through a catena of decisions and authoritative exegesis rendered
by this Court. The expression “cognizance” means to ‘become aware
of’ or ‘to take notice of judicially’. The special connotation that has
been ascribed to the term denotes or indicates the stage at which a
judicial authority such as a Court of Sessions or a Magistrate is said
to have taken judicial notice of the commission of an offence, with a
view to initiate proceedings against the person or persons alleged to
have committed such offence. [See: Chief Enforcement Officer v.
Videocon International Ltd., (2008) 2 SCC 492].
21. Cognizance is, at its heart, always an act of the court. It entails
not merely the receipt of information or the mechanical act of
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acknowledgement of a particular offence by a judicial authority, but
a conscious application of mind by it, to the information disclosed
or received, as the case may be, and the subjective element of
its satisfaction that i) an offence has indeed occurred and ii) the
circumstances necessitate setting into motion criminal proceedings
in respect of the said offence, or at the very least take steps for
ascertaining if there is any basis for initiating such proceedings.
Cognizance is attended by the assumption of jurisdiction for
proceeding further.
22. Having understood the legal import of the term “cognizance”, we
may now profitably turn towards understanding how cognizance may
be taken. Chapter XIV of the Code deals with “Conditions requisite
for initiation of proceedings”, and Section(s) 190 to 199 contained
thereunder, delineates the methods and the limitations subject to
which cognizance of offence may be taken by the various criminal
court empowered thereunder.
23. Remarkably, none of the provisions in the aforesaid Chapter prescribe
how ‘cognizance’ is to be taken, and rather only describe the conditions
and limitations for the initiation of proceedings under the Code. This
is because, taking cognizance, as already stated, is an act of court,
and the prosecuting agency or complainant have no control over the
same. It is predicated upon application of judicial mind and is not
dictated by the complaint or police report, which cannot be construed
by any formulaic approach. ‘Taking cognizance’ does not involve any
formal action of any kind. It occurs as soon as a judicial authority
applies its mind to the suspected commission of an offence. [See:
R.R. Chari v. State of U.P., AIR 1951 SC 207; Sarah Mathew v.
Institute of Cardio Vascular Diseases, (2014) 2 SCC 62]
24. The process of “taking cognizance” is one of variable and inderminate
import; it neither carries a uniform or fixed procedural contour nor
has it been used in the same sense throughout the scheme of the
Code. This is because “taking of cognizance” signifies the setting into
motion, the criminal justice machinery, which may be done, under
the Code, in different ways, which is why it derives its understanding
from the various procedures by which proceedings are initiated under
the Code, and as such its import differs, depending upon the context
of the procedure in which it has been used. Hence, there exists
no rigid taxonomy or formulaic framework for “taking cognizance”,
[2025] 8 S.C.R. 631

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

and the act of “taking cognizance” has to be understood from the
procedure itself, more particularly, at which stage, it could be said
that there has been an application of judicial mind for the purpose of
initiating proceedings under the Code or in simple words, cognizance
has been taken. [See: Darshan Singh Ram Kishan v. State of
Maharashtra, (1971) 2 SCC 654]

b. Cognizance of offences by Magistrates and the Three
Distinct Points of Origin of the Criminal Machinery under
the Code.
25. Section 190 of the Code empowers a Magistrate to take cognizance
of any offence in three distinct manners. As per the said provision,
a Magistrate may take cognizance upon (a) receiving a complaint of
facts which constitute such offence; (b) a police report of such facts;
or (c) information received from any person other than a police officer,
or upon his own knowledge, that such offence has been committed.
The said provision reads as under: -
“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.”
26. A bare perusal of the aforesaid, indicates that there are three distinct
ways in which the criminal machinery may be set into motion i.e.,
cognizance of an offence may be taken by the Magistrate. It may
take place on the basis of a complaint moved before a Magistrate by
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any complainant complaining of any offence, or by the police itself
on the basis of a police report in terms of Section(s) 2(r) and 173(2)
of the Code, or on the basis of the Magistrate’s own knowledge
about any offence.

I. On the basis of a Complaint.
27. As per Section 190 sub-section (1)(a) the first manner in which
a Magistrate may take cognizance of an offence is on the basis
of a complaint received by him. Section 2(d) of the Code defines
“complaint” to mean any allegation, whether made orally or in writing,
by any persons against some other person or persons, whether
known or unknown, who is alleged to have committed an offence,
that has been made to a Magistrate, with a view that he initiates any
action under the Code. Section 2(d) of the Code reads as under: -
“2. Definitions. –
(d) “complaint” means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.”
28. This Court in Mohd. Yousuf v. Afaq Jahan, reported in (2006)
1 SCC 627, explained thus: -
“15. A faint plea was made by learned counsel for
Respondent 1 that the petition filed by the appellant was
not a complaint in the strict sense of the term. The plea
is clearly untenable. The nomenclature of a petition is
inconsequential. [...]
16. There is no particular format of a complaint. A petition
addressed to the Magistrate containing an allegation that
an offence has been committed, and ending with a prayer
that the culprits be suitably dealt with, as in the instant
case, is a complaint.”
(Emphasis supplied)

29. For the purpose of enabling the Magistrate to take cognizance of
an offence on the basis of a complaint as defined above, in terms
of Section 190 sub-section 1(a), such complaint must contain facts
[2025] 8 S.C.R. 633

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

constituting the offence. Once such a complaint is received by a
Magistrate, he will apply his mind to the complaint and the facts
disclosed therein, and ordinarily proceed further under Chapter XV of
the Code, which relates to “Complaints to Magistrates”. Section 200
thereof provides for examination of the complainant and the witnesses
on oath. Section 201 provides for the procedure which a Magistrate
who is not competent to take cognizance has to follow. Section 202
provides for postponement of issue of process.
30. Although, at this stage, the Magistrate is not obliged to proceed
further in terms of Section(s) 200 to 203 in Chapter XV of the Code,
and he may instead, order the police to investigate or inquire into
the offence alleged in the complaint in terms of Section 156 sub-
section (3) of the Code.
31. Section 200 of the Code empowers the Magistrate taking cognizance
of an offence on a complaint to examine upon oath the complainant
and the witnesses present, if any. The section further requires the
such examination to be reduced to writing with the signatures of the
complainant, witnesses and the Magistrate. The object of examination
under Section 200 is to ascertain whether there is a prima facie case
against the accused in the complaint, and to prevent the issue of
process on a complaint which is false or vexatious. In S.R. Sukumar v.
S. Sunaad Raghuram, reported in (2015) 9 SCC 609, this Court
summarized the object of Section 200 of the Code: -
“8. Section 200 CrPC provides for the procedure for the
Magistrate taking cognizance of an offence on complaint.
The Magistrate is not bound to take cognizance of an
offence merely because a complaint has been filed before
him when in fact the complaint does not disclose a cause
of action. The language in Section 200 CrPC
“A Magistrate taking cognizance of an offence
on complaint shall examine upon oath the
complainant and the witnesses present, if any…”
clearly suggests that for taking cognizance of an offence on
complaint, the court shall examine the complainant upon
oath. The object of examination of the complainant is to
find out whether the complaint is justifiable or is vexatious.
Merely because the complainant was examined that does
not mean that the Magistrate has taken cognizance of
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the offence. Taking cognizance of an offence means the
Magistrate must have judicially applied the mind to the
contents of the complaint and indicates that the Magistrate
takes judicial notice of an offence.
xxx
11. Section 200 CrPC contemplates a Magistrate taking
cognizance of an offence on complaint to examine the
complaint and examine upon oath the complainant and
the witnesses present, if any. Then normally three courses
are available to the Magistrate. The Magistrate can either
issue summons to the accused or order an inquiry under
Section 202 CrPC or dismiss the complaint under Section
203 CrPC. Upon consideration of the statement of the
complainant and the material adduced at that stage if the
Magistrate is satisfied that there are sufficient grounds to
proceed, he can proceed to issue process under Section
204 CrPC. Section 202 CrPC contemplates “postponement
of issue of process”. It provides that the Magistrate
on receipt of a complaint of an offence, of which he is
authorised to take cognizance may, if he thinks fit, postpone
the issue of process for compelling the attendance of the
person complained against, and either inquire into the
case himself, or have an inquiry made by any Magistrate
subordinate to him, or an investigation made by a police
officer, or by some other person for the purpose of deciding
whether or not there is sufficient ground for proceeding. If
the Magistrate finds no sufficient ground for proceeding,
he can dismiss the complaint by recording briefly the
reasons for doing so as contemplated under Section 203
CrPC. A Magistrate takes cognizance of an offence when
he decides to proceed against the person accused of
having committed that offence and not at the time when
the Magistrate is just informed either by the complainant
by filing the complaint or by the police report about the
commission of an offence.
12. “Cognizance” therefore has a reference to the
application of judicial mind by the Magistrate in connection
with the commission of an offence and not merely to a
Magistrate learning that some offence had been committed.
[2025] 8 S.C.R. 635

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

Only upon examination of the complainant, the Magistrate
will proceed to apply the judicial mind whether to take
cognizance of the offence or not. Under Section 200
CrPC, when the complainant is examined, the Magistrate
cannot be said to have ipso facto taken the cognizance,
when the Magistrate was merely gathering the material
on the basis of which he will decide whether a prima facie
case is made out for taking cognizance of the offence or
not. “Cognizance of offence” means taking notice of the
accusations and applying the judicial mind to the contents
of the complaint and the material filed therewith. It is
neither practicable nor desirable to define as to what is
meant by taking cognizance. Whether the Magistrate has
taken cognizance of the offence or not will depend upon
the facts and circumstances of the particular case.”
(Emphasis supplied)

32. In Mona Panwar v. High Court of Judicature of Allahabad, reported
in (2011) 3 SCC 496, this Court noted that two options would be
open to a Magistrate, when presented with a complaint: one, to
pass an order as per Section 156(3) of the Code, or two, to direct
examination as per Section 200. Prior to taking cognizance under
Section 190, the Magistrate may order police investigation under
Section 156(3). That is to say, the requirements of Section 200 do
not put a bar on the powers of the Magistrate under Section 156(3)
of the Code. We have produced the relevant paragraphs of Mona
Panwar (supra) below:
“18. When the complaint was presented before the
appellant, the appellant had mainly two options available
to her. One was to pass an order as contemplated by
Section 156(3) of the Code and the second one was to
direct examination of the complainant upon oath and the
witnesses present, if any, as mentioned in Section 200
and proceed further with the matter as provided by Section
202 of the Code. An order made under sub-section (3) of
Section 156 of the Code is in the nature of a peremptory
reminder or intimation to the police to exercise its plenary
power of investigation under Section 156(1). Such an
investigation embraces the entire continuous process which
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begins with the collection of evidence under Section 156
and ends with the final report either under Section 169
or submission of charge-sheet under Section 173 of the
Code. A Magistrate can under Section 190 of the Code
before taking cognizance ask for investigation by the police
under Section 156(3) of the Code. The Magistrate can also
issue warrant for production, before taking cognizance. If
after cognizance has been taken and the Magistrate wants
any investigation, it will be under Section 202 of the Code.
xxx
23. Normally, an order under Section 200 of the Code for
examination of the complainant and his witnesses would not
be passed because it consumes the valuable time of the
Magistrate being vested in inquiring into the matter which
primarily is the duty of the police to investigate. However,
the practice which has developed over the years is that
examination of the complainant and his witnesses under
Section 200 of the Code would be directed by the Magistrate
only when a case is found to be a serious one and not as
a matter of routine course. If on a reading of a complaint
the Magistrate finds that the allegations therein disclose a
cognizable offence and forwarding of the complaint to the
police for investigation under Section 156(3) of the Code will
not be conducive to justice, he will be justified in adopting
the course suggested in Section 200 of the Code.”
33. It is also true that where the Magistrate exercises his jurisdiction
under Section 200, he is required to apply his mind. Exercise of
such jurisdiction cannot be in a routine manner. A careful scrutiny
of evidence placed on record must be made in order to arrive at the
conclusion if any offence is prima facie committed by the accused.
Such strict requirements to exercise the jurisdiction under Section
200 are founded as cornerstones of criminal jurisprudence that a
criminal proceedings must not be initiated lightly and there must be
sufficient grounds to believe that an offence has taken place before
the initiation of such proceedings. In Maksud Saiyed v. State of
Gujarat, reported in (2008) 5 SCC 668, this Court explained the
following in context of the jurisdiction under Sections 156(3) and
Section 200 of the Code:
[2025] 8 S.C.R. 637

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

“13. Where a jurisdiction is exercised on a complaint
petition filed in terms of Section 156(3) or Section 200 of
the Code of Criminal Procedure, the Magistrate is required
to apply his mind. The Penal Code does not contain any
provision for attaching vicarious liability on the part of the
Managing Director or the Directors of the Company when
the accused is the Company. The learned Magistrate
failed to pose unto himself the correct question viz. as to
whether the complaint petition, even if given face value
and taken to be correct in its entirety, would lead to the
conclusion that the respondents herein were personally
liable for any offence. The Bank is a body corporate.
Vicarious liability of the Managing Director and Director
would arise provided any provision exists in that behalf in
the statute. Statutes indisputably must contain provision
fixing such vicarious liabilities. Even for the said purpose,
it is obligatory on the part of the complainant to make
requisite allegations which would attract the provisions
constituting vicarious liability.
15. This Court in Pepsi Foods Ltd. v. Special Judicial
Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400]
held as under: (SCC p. 760, para 28)
“28. Summoning of an accused in a criminal case
is a serious matter. Criminal law cannot be set
into motion as a matter of course. It is not that
the complainant has to bring only two witnesses
to support his allegations in the complaint to
have the criminal law set into motion. The order
of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts
of the case and the law applicable thereto. He
has to examine the nature of allegations made
in the complaint and the evidence both oral and
documentary in support thereof and would that
be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the
time of recording of preliminary evidence before
638 [2025] 8 S.C.R.

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summoning of the accused. The Magistrate has
to carefully scrutinise the evidence brought on
record and may even himself put questions
to the complainant and his witnesses to elicit
answers to find out the truthfulness of the
allegations or otherwise and then examine if
any offence is prima facie committed by all or
any of the accused.”
The learned Magistrate, in our opinion, shall have kept
the said principle in mind.”
34. In R.R. Chari (supra), this Court had held that “when a Magistrate
applies his mind for the purpose of proceeding under Section 200
and subsequent sections of Chapter XV of the Code of Criminal
Procedure, he must be held to have taken cognizance of the offence.”
On the other hand, in Tula Ram v. Kishore Singh reported in (1977)
4 SCC 459, it was held that when the Magistrate applies his mind
not for the purpose of proceeding as abovementioned in R.R. Chari
(supra), but for taking action of some other kind, for instance ordering
investigation or issuing a search warrant he cannot be said to have
taken cognizance of the offence.
35. For the purpose of taking cognizance of an offence on the basis
of a complaint received under Section 190 sub-section (1)(a), a
Magistrate is required to examine upon oath, the complainant
and any witnesses, and reduce in writing the substance of their
examination. This inquiry which is conducted by the Magistrate
pursuant to Section 200 of the Code, cannot always mean, that
cognizance of the offence alleged in the complaint has been taken
by it, as the Magistrate is still empowered to take recourse to the
other provision of Section(s) 201 to 203, whereby he may simply bring
the inquiry before it to an end, without an intention of proceeding
further in terms of the Code.
36. In the same breath, Section 202 of the Code empowers a Magistrate,
who has received a complaint of an offence, to postpone the issue
of process against the accused in terms of Section 204, and either
(i) inquire into the case himself or direct an investigation by the
police or any other person, in the case, for the purpose of deciding
whether or not there is sufficient ground for proceeding. The said
provision reads as under: -
[2025] 8 S.C.R. 639

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

202. Postponement of issue of process.—
(1) Any Magistrate, on receipt of a complaint of an offence
of which he is authorised to take cognizance or which
has been made over to him under section 192, may, if
he thinks fit, and shall, in a case where the accused is
residing at a place beyond the area in which he exercises
his jurisdiction, postpone the issue of process against the
accused, and either inquire into the case himself or direct
an investigation to be made by a police officer or by such
other person as he thinks fit, for the purpose of deciding
whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall
be made,—
(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of
Session; or
(b) where the complaint has not been made by a Court,
unless the complainant and the witnesses present (if any)
have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate
may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the
offence complained of is triable exclusively by the Court
of Session, he shall call upon the complainant to produce
all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by
a person not being a police officer, he shall have for that
investigation all the powers conferred by this Code on an
officer in charge of a police station except the power to
arrest without warrant.
37. The provision empowers the Magistrate to find reasons to doubt
the truthfulness of the complaint and defer issuing process against
the accused. In such a case, the Magistrate may either direct an
investigation by the police, or conduct an inquiry to determine whether
there is sufficient basis to proceed with the complaint. It is pertinent
to underscore that the investigation envisaged in Section 202 is
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different from the investigation contemplated in Section 156(3), as
it is only for assisting the Magistrate to decide whether or not there
is sufficient ground for him to proceed further. This Court in Kewal
Krishan v. Suraj Bhan, reported in 1981 SCC (Cri) 438, lucidly
explained that;
“10. In the instant case, there was prima facie evidence
against Suraj Bhan accused which required to be weighed
and appreciated by the Court of Session. At the stage of
Sections 203 and 204 of the Criminal Procedure Code in
a case exclusively triable by the Court of Session, all that
the Magistrate has to do is to see whether on a cursory
perusal of the complaint and the evidence recorded during
the preliminary inquiry under Sections 200 and 202 of the
Criminal Procedure Code, there is prima facie evidence
in support of the charge levelled against the accused. All
that he has to see is whether or not there is “sufficient
ground for proceeding” against the accused. At this stage,
the Magistrate is not to weigh the evidence meticulously
as if he were the trial court. The standard to be adopted
by the Magistrate in scrutinising the evidence is not the
same as the one which is to be kept in view at the stage
of framing charges. This Court has held in Ramesh Singh
case [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : AIR 1977 SC
2018] that even at the stage of framing charges the truth,
veracity and effect of the evidence which the complainant
produces or proposes to adduce at the trial, is not to be
meticulously judged. The standard of proof and judgment,
which is to be applied finally before finding the accused
guilty or otherwise, is not exactly to be applied at the stage
of framing charges. A fortiori, at the stage of Sections
202/204, if there is prima facie evidence in support of the
allegations in the complaint relating to a case exclusively
triable by the Court of Session, that will be a sufficient
ground for issuing process to the accused and committing
them for trial to the Court of Session.”
38. This Court in Rameshbhai Pandurao Hedau v. State of Gujarat,
reported in (2010) 4 SCC 185, held that a direction for investigation
under Section 156(3) is to ascertain whether the Magistrate shall
take cognizance. Whereas, an investigation under Section 202 is for
[2025] 8 S.C.R. 641

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

ascertaining whether there are sufficient grounds for the Magistrate
to proceed further. The relevant observations read thus;
“22. It is now well settled that in ordering an investigation
under Section 156(3) of the Code, the Magistrate is not
empowered to take cognizance of the offence and such
cognizance is taken only on the basis of the complaint of
the facts received by him which includes a police report
of such facts or information received from any person,
other than a police officer, under Section 190 of the
Code. Section 200 which falls in Chapter XV, indicates
the manner in which the cognizance has to be taken and
that the Magistrate may also inquire into the case himself
or direct an investigation to be made by a police officer
before issuing process.
23. Reference was also made to the decision of this
Court in Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC 627 :
(2006) 1 SCC (Cri) 460] where it has been held that when
a Magistrate orders investigation under Chapter XII of
the Code, he does so before he takes cognizance of the
offence. Once he takes cognizance of the offence, he has
to follow the procedure envisaged in Chapter XV of the
Code. The inquiry contemplated under Section 202(1) or
investigation by a police officer or by any other person is
only to help the Magistrate to decide whether or not there
is sufficient ground for him to proceed further on account
of the fact that cognizance had already been taken by him
of the offence disclosed in the complaint but issuance of
process had been postponed.
xxx
25. The power to direct an investigation to the police
authorities is available to the Magistrate both under
Section 156(3) CrPC and under Section 202 CrPC. The
only difference is the stage at which the said powers may
be invoked. As indicated hereinbefore, the power under
Section 156(3) CrPC to direct an investigation by the police
authorities is at the pre-cognizance stage while the power
to direct a similar investigation under Section 202 is at the
post-cognizance stage.”
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39. In Ramdev Food Products Pvt. Ltd. v. State of Gujarat, reported
in (2015) 6 SCC 439, three-Judge Bench of this Court underscored
the difference in meaning of the term “investigation” under Section
156(3) as compared to Section 202 of the Code. The relevant
observations read thus:
“21. On the other hand, power under Section 202 is of
different nature. Report sought under the said provision
has limited purpose of deciding “whether or not there is
sufficient ground for proceeding”. If this be the object, the
procedure under Section 157 or Section 173 is not intended
to be followed. Section 157 requires sending of report by
the police that the police officer suspected commission
of offence from information received by the police and
thereafter the police is required to proceed to the spot,
investigate the facts and take measures for discovery and
arrest. Thereafter, the police has to record statements
and report on which the Magistrate may proceed under
Section 190. This procedure is applicable when the police
receives information of a cognizable offence, registers a
case and forms the requisite opinion and not every case
registered by the police.
xxx
22.1. The direction under Section 156(3) is to be issued,
only after application of mind by the Magistrate. When
the Magistrate does not take cognizance and does not
find it necessary to postpone the issuance of process
and finds a case made out to proceed forthwith, direction
under the said provision is issued. In other words, where
on account of credibility of information available, or
weighing the interest of justice it is considered appropriate
to straightaway direct investigation, such a direction is
issued.
xxx
37. In Nagawwa v. Veeranna Shivalingappa Konjalgi
[(1976) 3 SCC 736 : 1976 SCC (Cri) 507], referring to
earlier judgments on the scope of Section 202, it was
observed : (SCC p. 740, para 3)
[2025] 8 S.C.R. 643

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

3. “In Chandra Deo Singh v. Prokash Chandra
Bose [AIR 1963 SC 1430 : (1963) 2 Cri LJ 397 :
(1964) 1 SCR 639] this Court had after fully
considering the matter observed as follows :
(AIR p. 1433, para 8)
‘8. … The courts have also pointed
out in these cases that what the
Magistrate has to see is whether
there is evidence in support of the
allegations of the complainant and
not whether the evidence is sufficient
to warrant a conviction. The learned
Judges in some of these cases have
been at pains to observe that an
enquiry under Section 202 is not to
be likened to a trial which can only
take place after process is issued,
and that there can be only one trial.
No doubt, as stated in sub-section
(1) of Section 202 itself, the object of
the enquiry is to ascertain the truth
or falsehood of the complaint, but
the Magistrate making the enquiry
has to do this only with reference to
the intrinsic quality of the statements
made before him at the enquiry
which would naturally mean the
complaint itself, the statement on
oath made by the complainant and
the statements made before him by
persons examined at the instance of
the complainant.’
Indicating the scope, ambit of Section 202 of the Code
of Criminal Procedure this Court in Vadilal Panchal v.
Dattatraya Dulaji Ghadigaonkar [AIR 1960 SC 1113 : 1960
Cri LJ 1499] observed as follows : (AIR p. 1116, para 9)
‘9. … Section 202 says that the Magistrate
may, if he thinks fit, for reasons to be recorded
in writing, postpone the issue of process
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for compelling the attendance of the person
complained against and direct an inquiry for the
purpose of ascertaining the truth or falsehood of
the complaint; in other words, the scope of an
inquiry under the section is limited to finding out
the truth or falsehood of the complaint in order to
determine the question of the issue of process.
The inquiry is for the purpose of ascertaining
the truth or falsehood of the complaint; that is,
for ascertaining whether there is evidence in
support of the complaint so as to justify the issue
of process and commencement of proceedings
against the person concerned. The section does
not say that a regular trial for adjudging the guilt
or otherwise of the person complained against
should take place at that stage; for the person
complained against can be legally called upon
to answer the accusation made against him
only when a process has issued and he is put
on trial.’”
Same view has been taken in Mohinder Singh v. Gulwant
Singh [(1992) 2 SCC 213 : 1992 SCC (Cri) 361],
Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai
Patel [(2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218], Raghu
Raj Singh Rousha v. Shivam Sundaram Promoters (P) Ltd.
[(2009) 2 SCC 363 : (2009) 1 SCC (Cri) 801] and Chandra
Deo Singh v. Prokash Chandra Bose [AIR 1963 SC 1430
: (1963) 2 Cri LJ 397 : (1964) 1 SCR 639] .”
40. Undoubtedly, the inquiry under Section 202 of the Code is to ascertain
the fact whether the complaint has any valid foundation calling for
issuance of process to the person complained against under Section
204, or whether the complaint should be dismissed by resorting to
Section 203. As a natural corollary, at the stage of issuing process
the Magistrate is only concerned with the allegations in the complaint
and the statements of the complainant and the witnesses. The
Magistrate is required only to be prima facie satisfied that sufficient
grounds exist to proceed against the accused.
41. Therefore, the scope of inquiry under Section 202 is limited to the
ascertainment of the truth or falsehood of the allegation made in the
[2025] 8 S.C.R. 645

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

complaint – (i) on the materials placed by the complainant before the
court; and (ii) for limited purpose of finding out whether a prima facie
case for issue of process has been made out. There is no gainsaying
that discretion vested in the Magistrate has to be judicially exercised.
42. The proviso to sub-section (2) stipulates that if it appears to the
Magistrate that the offence complained of is triable by the Court
of Sessions, he must call upon the complainant to produce all
his witnesses and examine them on oath. The intent behind the
provision lies in the fact that in a police case, investigation reveals
the nature of the crime and its truthfulness as opposed to a case
born out of a complaint. Hence, to protect the prospective accused
from harassment from false complaints, the duty of the Magistrate
to examine the complainant and his witnesses becomes onerous.
We must remind that it is imperative on the part of the Magistrate
to examine the complainant and his witnesses in a complaint case
triable exclusively by Court of Sessions.
43. Although, in practice, there may at times be an overlap or convergence
in the procedures envisaged under these three routes, such as
where on the basis of a complaint, police investigation is ordered
under Section 156 sub-section (3), or where upon receiving a police
report under Section 173 sub-section (2), a protest petition filed in
lieu thereof is treated as a complaint in terms of Section 200 of the
Code, yet the procedural trajectory in which a Magistrate is expected
to adopt for the purpose of proceeding in respect of an offence, still
retains a certain degree of distinctiveness, based on how the criminal
machinery came into motion.

ii. Who takes Cognizance of Offence exclusively triable by
Court of Sessions under the Code?
44. To answer the question, whether the summoning of the petitioner
herein by the Court of Session amounts to ‘second cognizance’, we
have to try and understand the decision of this Court in Dharam
Pal (supra), more particularly, its observations that when it comes to
offences exclusively triable by the Court of Session, “if cognizance is
to be taken of the offence, it could be taken either by the Magistrate
or by the Court of Session”. In other words, the question that falls
for our consideration is that, for offences triable exclusively by the
Court of Session, whether cognizance is taken by the Magistrate or
646 [2025] 8 S.C.R.

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by the Court of Session, or either of them as the case may be? To
answer the aforesaid, we may, put aside Section 193 of the Code
for the time being and first try to understand what role is expected to
be played by the Magistrate as-well as the Court of Session under
the Code for offences exclusively triable by the Court of Session.

a. Role of the Magistrate where the Offence is exclusively
triable by a Court of Session.
45. In the foregoing paragraphs of this judgment, we have already
delineated the manner in which a Magistrate, ordinarily takes
cognizance of an offence. To sum it up, where a complaint is received
disclosing facts which constitute an offence, cognizance is taken
after the Magistrate has applied his mind to the complaint and has
proceeded under Section 200 and the subsequent provisions of
Chapter XV, whereupon such complaint is neither returned in terms
of Section 201 nor dismissed under Section 203, and instead there
is issuance of process by the Magistrate in terms of Section 204
and other provisions of Chapter XVI, at which stage it is understood
without a shred of doubt, that cognizance of such offence has been
taken and proceedings under the Code stand initiated. On the other
hand, where a police report is received, proceedings are said to be
initiated i.e., cognizance is affirmatively said to be taken after the
Magistrate has applied its mind to the contents of the police report,
and thereafter he has either issued process to the accused under
Section 204 of the Code, on the basis of such report, or where the
accused is present before it, either on his own or on being produced
by the police, the Magistrate has complied with the requirement
envisaged under Section 207 of the Code. In short, while a Magistrate
who proceeds under Chapter XV of the Code, may or not be said
to have taken cognizance, however, whenever, a Magistrate has
proceeded under the provisions of Chapter XVI which deals with
“Commencement of Proceedings”, cognizance of offence, without
an iota of doubt is understood to have been taken.

I. Chapter XVI - Section(s) 207, 208 and 209 of the Code and
Committal of Case by a Magistrate to the Court of Sessions.
46. We may now turn to see, how the Magistrate is required under the
Code to proceed where the offence is exclusively triable by the
Court of Sessions. Where a case is instituted before a Magistrate,
[2025] 8 S.C.R. 647

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

in terms of Section 190 of the Code, i.e., either upon a complaint, or
a police report, or on the basis of the Magistrate’s own knowledge,
and it appears to the Magistrate, that the case pertains to an offence
triable exclusively by the Court of Session, then the Magistrate has
to commit the said case to the Court of Session. Section 209 of the
Code reads as under: -
“209. Commitment of case to Court of Session when
offence is triable exclusively by it.—
When in a case instituted on a police report or otherwise,
the accused appears or is brought before the Magistrate
and it appears to the Magistrate that the offence is triable
exclusively by the Court of Session, he shall—
(a) commit, after complying with the provisions of
section 207 or section 208, as the case may be,
the case to the Court of Session, and subject
to the provisions of this Code relating to bail,
remand the accused to custody until such
commitment has been made;
(b) subject to the provisions of this Code relating
to bail, remand the accused to custody during,
and until the conclusion of, the trial;
(c) send to that Court the record of the case and
the documents and articles, if any, which are to
be produced in evidence;
(d) notify the Public Prosecutor of the commitment
of the case to the Court of Session.”
47. A plain and careful reading of the aforesaid provision reveals that,
where a case is instituted on a police report or otherwise, that is to
say, on the basis of a complaint received or on the basis of information
by a Magistrate’s own knowledge, and such case involves an offence
which is triable exclusively by the Court of Sessions, the Magistrate
is placed under a statutory obligation to commit such case to the
Court of Sessions in the manner laid down in clauses (a) to (d) of
the said provision. Section 209 of the Code, enjoins a duty upon the
Magistrate to comply with four procedural requirements enumerated
in clauses (a) to (d), thereto, i.e., the commitment of the case by
the Magistrate to the Court of Session, has to take place, strictly in
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accordance with the four procedural steps provided in the provision,
being as under: -
(i) As per clause (a), the Magistrate is required to commit such
case to the Court of Session, and further remand the accused
to custody, subject to the provisions of bail, until such committal
is complete. However, such commitment has to be done after
the Magistrate as complied with the provisions of Section 207
or 208 of the Code, as the case may be;
(ii) In terms of clause (b), the Magistrate must also remand the
accused to custody for the duration of trial, subject to the
provisions relating to bail under the Code;
(iii) Clause (c) enjoins a further duty upon the Magistrate, to forward
to the Court of Session, more particularly the Court to which
the case is committed, the entire record of the case, along with
any documents and articles thereof, that are to be produced or
relied upon as evidence;
(iv) Under clause (d), the Magistrate is further required to notify
the Public Prosecutor regarding the commitment of the case
to the Court of Session.
48. Chapter XVI of the Code which deals with “Commencement of
Proceedings before Magistrates” encompasses the aforementioned
provision of Section 209 as-well as Section(s) 207 and 208. Both
these provisions pertain to the obligation of furnishing to the accused,
copies of documents in respect of any case where proceedings
have been instituted under the Code, with the former dealing with
proceedings instituted upon a police report and the latter pertaining
to proceedings instituted otherwise, such as on a complaint or on
the basis of information by a Magistrate’s own knowledge.
49. Section 207 of the Code stipulates that in every case where
proceedings have been instituted on the basis of a police report,
the Magistrate, shall supply to the accused, without delay and free
of cost, inter-alia, a copy of the police report as contemplated under
Section 173, a copy of the first information report, recorded under
Section 154, if any, the copies of all statements made under Section
161 sub-section (3) by persons, whom the prosecution intends to
examine as witness, subject to the first proviso, the copies of any
confession or statement recorded under Section 164, as-well as
[2025] 8 S.C.R. 649

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

a copy of any other document or relevant extract thereof that was
forwarded to the Magistrate by the police. Section 207 of the Code
reads as under: -
207. Supply to the accused of copy of police report
and other documents.—
In any case where the proceeding has been instituted on a
police report, the Magistrate shall without delay furnish to
the accused, free of cost, a copy of each of the following:—
(i) the police report;
(ii) the first information report recorded under
section 154;
(iii) the statements recorded under sub-section (3) of
section 161 of all persons whom the prosecution
proposes to examine as its witnesses, excluding
therefrom any part in regard to which a request
for such exclusion has been made by the police
officer under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded
under section 164;
(v) any other document or relevant extract thereof
forwarded to the Magistrate with the police report
under sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such
part of a statement as is referred to in clause (iii) and
considering the reasons given by the police officer for the
request, direct that a copy of that part of the statement or
of such portion thereof as the Magistrate thinks proper,
shall be furnished to the accused: Provided further that if
the Magistrate is satisfied that any document referred to
in clause (v) is voluminous, he shall, instead of furnishing
the accused with a copy thereof, direct that he will only be
allowed to inspect it either personally or through pleader
in Court.
50. In the same breadth, Section 208 of the Code, stipulates that in every
case where proceedings have been instituted otherwise than on a
police report, which when understood in the context of Section 190,
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means on the basis of a complaint received by a Magistrate or on
the basis of information by a Magistrate’s own knowledge, and the
offence is triable exclusively by the Court of Session, the Magistrate,
shall supply to the accused, without delay and free of cost, inter-alia,
a copy of the statements recorded under Section(s) 200 or 202, of
all persons examined by the magistrate, the copies of any statement
or confession recorded under Section(s) 161 or 164, as-well as a
copy of any other document produced before the Magistrate, on
which the prosecution proposes to rely. Section 208 of the Code
reads as under: -
208. Supply of copies of statements and documents to
accused in other cases triable by Court of Session.—
Where, in a case instituted otherwise than on a police
report, it appears to the Magistrate issuing process under
section 204 that the offence is triable exclusively by the
Court of Session, the Magistrate shall without delay
furnish to the accused, free of cost, a copy of each of
the following:—
(i) the statements recorded under section 200 or
section 202, of all persons examined by the
Magistrate;
(ii) the statements and confessions, if any, recorded
under section 161 or section 164;
(iii) any documents produced before the Magistrate
on which the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such
document is voluminous, he shall, instead of furnishing
the accused with a copy thereof, direct that he will only be
allowed to inspect it either personally or through pleader
in Court.
51. The stage at which the provisions of Section(s) 207 and 208 of the
Code, respectively spring into action, de hors Section 209, can be
gleaned from the heading of Chapter XVI wherein these provisions
are contained; “Commencement of Proceedings before Magistrates”.
The said Chapter, deals with the stage, where the accused person
is before the Magistrate, either by way of issue of process under
[2025] 8 S.C.R. 651

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

Section 204 of the Code, or if such person appears on his own, or
is brought before the Magistrate by the police, which as already
discussed in the foregoing paragraphs, signifies that the Magistrate
has taken cognizance of the offence, and has now proceeded further
under the Code, by initiating proceedings against persons accused
of committing such offences. That apart, the documents, copies of
which, have to be supplied to the accused, under each of these
provisions, are all documents that have become part of the record
before the Magistrate, by virtue of him, having already proceeded
under the provisions of Section 200 and subsequent sections of
Chapter XV in case of complaint case, which again reinforces that
at this stage the Magistrate has taken cognizance.
52. It could be argued, that in a case instituted upon a police report, the
Magistrate not having proceeded in terms of Chapter XV, as he is no
required to in such cases, may not necessarily have taken cognizance
of the offence. There may be situations where although police report
may have been submitted to a Magistrate under Section 173, but
the stage of taking cognizance of an offence on the basis of such
report in terms of Section 190 of the Code, may not have reached
by the Magistrate. It is particularly in this context, that our discussion
in the foregoing paragraphs assumes importance. We have already
discussed, how the act of taking cognizance of an offence does not
involve any formal action of any kind, and cannot be construed by
any rigid formula. Whether cognizance of an offence has been taken,
or not taken or yet to be taken, depends in the peculiar context of
the case and the stage of proceedings therein, and lodestar for
answering the same has to be discerned from the procedure adopted
by the Magistrate. Nevertheless, when a Magistrate, upon receiving
a police report, proceeds further, by complying with the procedural
requirements laid down in Section 207 of the Code, he is deemed
to have taken cognizance of the offence. For there can be no need
or question of supplying the documents envisaged under Section
207 to the accused, if cognizance of the offence is not taken, and
more importantly, there can be no situation where the accused is
compelled to appear before the Magistrate, or made a part of the
proceedings in connection with any case instituted, if cognizance of
the offence, involved therein is not yet taken. This is because prior
to taking cognizance of an offence, the person alleged to be the
accused, has no locus in the proceedings.
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53. It also flows from the cardinal principal of criminal jurisprudence, that
unless the court is satisfied, upon application of its mind about the
occurrence of an offence, in other words, unless cognizance of an
offence is taken, a person even though alleged or suspected to be
involved in the commission of such offence, cannot be called upon or
compelled to partake in the criminal proceedings, on a mere suspicion,
lest it violate the right of dignity of such person as-well as the right of
such person against self-incrimination enshrined in Article(s) 20 and 21
of the Constitution and undermine the sanctity of criminal proceedings,
the bedrock of which is fairness. The imperative requirement of first
taking cognizance of an offence, before any person is arrayed in the
proceedings as an accused, is not a mere procedural formality, it is
there to ensure that no person is subjected to the rigours of criminal
proceedings on a conjectural suspicions and unverified allegations.
To do so, would gravely prejudice and stigmatize the dignity and
reputation of such person, or put simply, the right to life of such
persons, and more importantly, to ensure that a person suspected
of committing an offence, is not compelled to give any information or
evidence, in other words, incriminate himself, for the very purpose of
then establishing and making out an offence against him or in simple
words taking cognizance of an offence against such person.
54. The expression “the accused appears or is brought before the
Magistrate” used in Section 209 of the Code, which, at the cost of
repetition, deals with committal of cases to the Court of Session
when offence is triable exclusively by it, have to be understood in
the context of the aforesaid paragraphs. Section 209 of the Code,
leaves no room for ambiguity. The words used in it are clear as a
noon day. There can be no committal of a case by a Magistrate to
the Court of Session, unless the accused is before it. It is not difficult
to comprehend why; Section 209 insists upon the requirement for the
person accused to be before the Magistrate before the committal of
the case takes place. The reason is quite simple. There can be no
compliance of the requirements envisaged under Section(s) 207 or
208 of the Code, as the case may be, if a person is not yet arrayed
as an accused to the case instituted before the Magistrate. As both
these provisions mandate the requirement to furnish the copies of the
documents enumerated therein, to the accused, thereby indicating
that when the Magistrate proceeds under the provisions of Section(s)
207 or 208 and then 209 of Chapter of XVI of the Code, cognizance
[2025] 8 S.C.R. 653

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

of the offence is already taken, and further that the Magistrate has
also applied its mind to find out who the offenders really are. [See:
Raghubans Dubey v. State of Bihar, 1967 Cri LJ 1081 (SC)].
55. This is further reinforced from clause(s) (b) and (d) of Section 209
of the Code, which talk about the duty of the Magistrate to remand
the accused to custody and to notify the Public Prosecutor about
the committal of the case to the Court of Session. Section 209(b)
stipulates that for the purpose of committal of the case to the Court
of Session, the Magistrate, has to remand the accused to custody,
subject to the provisions of bail, “during, and until the conclusion of, the
trial”. This itself indicates that, when the accused is being remanded
by the Magistrate, it is being done, for the purpose of undergoing
trial, which presupposes that, the Magistrate is satisfied that there is
enough material for the purpose of sending such accused to trial. On
the other hand, the duty to, notify the Public Prosecutor under Section
209(d), as regards the committal of the case, is for the purpose of
facilitating the opening of the case by the prosecution before the Court
of Session in terms of Section 226 contained in Chapter XVIII, which
specifically deals with “Trial before a Court of Session”.
56. It is worthwhile to note that Section 190 of the Code, which as already
stated deals with Cognizance of offences by Magistrates, specifically
employs the words “any offence”. Thus, subject to conditions laid down
in Chapter XIV, a Magistrate by virtue of Section 190 of the Code has
been specifically and consciously empowered to take cognizance of
“Any Offence”. The use of the expression “Any Offence” is particularly
significant, because even-though the Code, in Chapter(s) XV and
XVI has qualified the meaning of the term “offences” with the
expression “triable exclusively by the Court of Session”, wherever
necessary, no such expression has been juxtaposed with the term
“offences” insofar as Chapter XIV is concerned. This reinforces that
the language couched in Section 190 of the Code, more particularly
the words “any offence” is of wide import and that a Magistrate is
empowered to take cognizance of an offence even if the same is
triable exclusively by the Court of Session.

b. Role of the Court of Session after the case is committed to
it by the Magistrate under Section 209 of the Code.
57. For a better exposition on the issue of who takes cognizance of
offence under which is exclusively triable by a Court of Session,
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under the Code, it would be apposite to under the procedure that is
to be followed after a case where an offence is exclusively triable
by a Court of Session, is committed by a Magistrate to the Court of
Session. In this regard, the provisions of Section(s) 226, 227 and
228 of the Code are of significance.
58. Once a case has been committed by the Magistrate to a Court of
Session in terms of Section 209, the procedure that follows suit, is
provided in Section(s) 225 to 237 in Chapter XVIII of the Code. The
heading of Chapter XVIII is also very clear. It reads, “Trial before
a Court of Session”. Thus, once a case has been committed, the
procedure that now has to be adopted by the Court of Sessions is
in lieu of commencement of trial.
59. Although, one must be mindful that, mere committal of the case,
does not mean that trial has now commenced. Trial in respect of any
case instituted under the Code, commences only after the charges
have been framed. All stages prior to the framing of charges, are
a pre-trial stage, which may also happen to be a stage of inquiry.
All that we are trying to emphasize, on the basis of the heading
of Chapter XVIII of the Code is that, the procedure that the Court
of Session is expected to adopt is towards commencement of
trial, and not for the purpose of taking cognizance of an offence,
which as discussed in the foregoing paragraphs of this judgment,
already stands taken by the Magistrate, who committed the case
to the Court of Session. This may be better understood by taking
a closer look at few provisions of Chapter XVIII, and by discerning
what the Court of Session is empowered to do, post the committal
of the case to it.
60. Section 225 of the Code, although merely explanatory in nature as
to how trials are to be conducted before a Court of Session, yet is of
some degree of aid, inasmuch as it further indicates that the procedure
laid down in Chapter XVIII is for the purpose of facilitating the trial.
The provision simplictier states that in every trial before a Court of
Session, the prosecution shall be done by a Public Prosecutor. The
said provision reads as under: -
“225. Trial to be conducted by Public Prosecutor.—
In every trial before a Court of Session, the prosecution
shall be conducted by a Public Prosecutor.”
[2025] 8 S.C.R. 655

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

61. Section 226 of the Code, is the immediate next procedural step
after the case has been committed by a Magistrate to the Court of
Session in terms of Section 209. The said provision stipulates that,
when the accused appears or is brought before the Court of Session
“in pursuance of a commitment of the case under Section 209” the
prosecutor shall first open his case. In doing so, the prosecutor is
required to describe the charges brought against the accused and
further stating the evidence, he proposes to prove for establishing
the guilt of such accused. Section 226 of the Code reads as under: -
“226. Opening case for prosecution.—
When the accused appears or is brought before the Court
in pursuance of a commitment of the case under section
209, the prosecutor shall open his case by describing
the charge brought against the accused and stating by
what evidence he proposes to prove the guilt of the
accused.”
62. A bare perusal of the aforesaid provision, makes it clear that, the
first procedural step that is ordinarily contemplated to be undertaken
by a Court of Session, under the Code, after the committal of the
case by the Magistrate under Section 209, is to be apprise itself
as-well as the accused about the charges that are brought against
such accused. Section 226 does not contemplate, any procedural
step of first satisfying the Court of Session about the occurrence of
an offence, such that the Court of Session, in turn, take cognizance
of the offence. The procedure contemplated in the said provision,
presupposes the cognizance of the offence. This is because, as
already discussed by us, in the foregoing parts of the judgment, the
Magistrate before committal of the case, is already expected as-well
as deemed to have taken cognizance of the offence, sought to be
brought to trial before the Court of Session.
63. Section 227 of the Code deals with discharge. Where the Court of
Session, upon consideration of the record of the case and documents
tendered with it, and after hearing the accused and the prosecution
in regards to such material on record, considers that there is no
sufficient ground for proceeding against the accused, then the Court
of Sessions, shall discharge the accused, by recording reasons for
the same. The said provision reads as under: -
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“227. Discharge.—
If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this
behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.”
64. At this stage, we may address ourselves on one another aspect,
with a view to obviate any confusion. It may be argued, that the
cognizance of an offence can only be taken by that court who is also
empowered to discharge the accused qua such offence. Since, in a
case where the offence is exclusively triable by the Court of Session,
as is manifest from a reading of Section(s) 209, 226 and 227 of
the Code, only a Court of Sessions is empowered to discharge an
accused, it must be the one who must take cognizance of the offence,
and not the Magistrate, whose role is only confined to committing the
case to the Court of Session. Although, such an argument may be
seemingly lucrative and appealing, the same is a misunderstanding
of the basics of what is meant by “taking cognizance”.
65. One another fundamental aspect pertinent to bear in mind is that,
cognizance of an offence is taken when the judicial authority who
has applied its mind, comes to the finding that it is necessary to
initiate proceedings. The act of “taking cognizance” as already
discussed, signifies judicial application of mind on the allegations
purported to be levelled. Equally important to remember is that
cognizance is of an offence and not the offender. Where, however,
there is no offence, there can be no cognizance, as there can be
no proceedings initiated. In the course of uncovering, whether there
is any offence, whose cognizance is to be taken, the court or the
Magistrate, as the case may be, comes to the finding that there is
no offence, all proceedings initiated leading upto such conclusion
are dropped. In other words, any proceedings that may have been
initiated under the Code, for determining, if there an offence has
taken place or not, come to an end and are dropped once it is found
that no offence had occurred. This is quite distinct from ‘discharge’,
for the reason that discharge does not necessarily, always lead
to dropping of proceeding. Discharge is always qua the accused
person, as opposed to cognizance which is always qua the offence
[2025] 8 S.C.R. 657

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

itself. Discharge of an accused does not tantamount to the negation
or eradication of the necessity to initiate proceedings in the first
place. Discharge only signifies that; there isn’t sufficient ground to
charge the person accused of commission of a particular offence. It
has no bearing on the offence itself whose cognizance was taken,
as the occurrence of such offence and the correlating necessity
for initiation of proceedings still remains. Discharge of an accused
does not mean that no offence had occurred in the first place. Take
for instance, the Magistrate had taken cognizance of an offence,
pursuant to which two persons ‘A’ and ‘B’ came to be arrayed as
accused. Later, the Court of Sessions, finds that there isn’t sufficient
material to proceed against ‘B’. This does not mean that there is no
necessity for initiation of proceedings in respect of the said offence,
as the same may still continue in respect of ‘A’. Even if ‘A’ also
comes to be discharge, it does not stand that no offence had taken
place, and it would be the bounden duty of the Court to find out the
actual offenders. Cognizance is always qua an offence and always
correlates to initiation of proceedings, whereas, discharge is only
qua an accused and concerned with if there is sufficient ground to
proceed against such accused.
66. If at all, there was a correlation between the power to “discharge” and
the act of “taking cognizance”, such that only that court empowered to
discharge an accused for an offence, could be said to be empowered
to also take cognizance of such offence in the first place, then there
would have been no need for the Code to contain the provisions
pertaining to discharge by a Court of Session and by a Magistrate, in
separate distinct Chapters, more particularly Chapter XVIII; Section
227 and Chapter XIX; Section(s) 239 and 245, respectively, which
specifically deal with trials before the Court of Session and Magistrates,
respectively. The Code would have simpliciter empowered the Court
of Session and the Magistrate to discharge an accused under Chapter
XIV, which deals with cognizance of offences by Magistrates and
Courts of Session. This reinforces that, the power to discharge an
accused, is nothing more than a safeguard against any mechanical
or capricious framing of charges; a pre-requisite for commencement
of trials, and thus, correlates only to trials, and has nothing to with
the act of “taking cognizance” under the Code.
67. Section 228 of the Code is particularly of significance for an
insight into the role that a Court of Sessions plays after a case is
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committed to it by the Magistrate. Section 228 which deals with
framing of charges, stipulates that, where after such consideration
and hearing as contemplated under Section(s) 226 and 227 of the
Code, the Court of Session is of the opinion that there is ground for
presuming that the accused has committed an offence, then only
two options are available to it: first, where it finds that the offence
is not exclusively triable by the Court of Session, then, it may either
frame a charge against such accused and thereafter, transfer the
case back to the Magistrate mentioned therein, or simply transfer
the case back without framing any charge; or second, where it finds
that the offence is indeed exclusively triable by the Court of Session,
then it shall proceed to frame a charge against such accused. The
said provision reads as under: -
“228. Framing of charge.—
(1) If, after such consideration and hearing as aforesaid,
the Judge is of opinion that there is ground for presuming
that the accused has committed an offence which—
(a) is not exclusively triable by the Court of Session,
he may, frame a charge against the accused
and, by order, transfer the case for trial to the
Chief Judicial Magistrate, or any other Judicial
Magistrate of the first class and direct the
accused to appear before the Chief Judicial
Magistrate, or, as the case may be, the Judicial
Magistrate of the first class, on such date as he
deems fit, and thereupon such Magistrate shall
try the offence in accordance with the procedure
for the trial of warrant-cases instituted on a
police report;
(b) is exclusively triable by the Court, he shall frame
in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b)
of sub-section (1), the charge shall be read and explained
to the accused and the accused shall be asked whether he
pleads guilty of the offence charged or claims to be tried.
68. It is manifest from a careful reading of the aforesaid provision, that a
Court of Session, after a case has been committed, is only required
[2025] 8 S.C.R. 659

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

to see, if the offence in the case, is one exclusively triable by it or not.
Where, the offence is not exclusively triable by it, the Court of Session
will mandatorily transfer the case to the Magistrate as specified in
Section 228 sub-section (1) clause (a). Where, however the offence is
exclusively triable by it, the Court of Session will mandatorily proceed
to frame charges. The only discretion that has been conferred upon
the Court of Session, is in the former, where it can decide whether
to frame the charge himself or not, before mandatorily transferring
the case back to the Magistrate as specified therein.
69. There is no discretion conferred upon the Court of Session, to whom
a case has been committed to go into the question, whether any
offence has taken place, cognizance of which may be taken. Once
the Court of Session is in seisin of the case in terms of Section 209
of the Code, it cannot go into the question whether, the case is fit
one for it to take cognizance or to drop the proceedings, for it is
assumed that the case has been committed to it by the Magistrate
after application of his mind. Section 228, more particularly the words
“there is ground for presuming that the accused has committed an
offence” presupposes the cognizance of offence, or put simply, it
means that the Court of Session is already alive to the fact that
there has been an offence, which is why it is only required to form
an opinion that there is ground for presuming that the accused has
committed such offence and thereafter, must decide whether, the
offence is one exclusively triable by it or not. Even under Section
228(1)(a), the Court of Session is only empowered to transfer the
case back to the Magistrate, with the discretion of framing the
charge first, if the offence is not exclusively triable by it. It cannot
go into the question, whether there is any offence or not, worth
initiating proceedings under the Code. This is further fortified from the
expression “and thereupon such Magistrate shall try the offence in
accordance with the procedure for the trial of warrant-cases instituted
on a police report” in Section 228(1)(a) which indicates that where
such case is transferred back to the Magistrate, the Magistrate is
mandated to thereafter proceed to try such offence i.e., to commence
trial in respect of the same. The Court of Session is not empowered
to send back the case to the Magistrate for relooking into whether
cognizance should be taken or not.
70. A combined reading of Section(s) 226, 227 and 228, clearly outline,
that after the case is committed to the Court of Session, its role is
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only limited for the purpose of deciding whether the case is a fit one
for commencing trial against the accused, and whether such offence
should be tried by it or by the Magistrate. After a case is committed to
the Court of Session, the first immediate procedural step envisaged
by the Code, is under Section 226, whereby the Court apprises
itself and through it the accused about the charges. Thereafter,
the next course of action available to the Court of Session, is only
in terms of Section(s) 227 and 228 of the Code. The expressions
“considers that there is not sufficient ground for proceeding against
the accused” and “is of opinion that there is ground for presuming
that the accused has committed an offence” used in Section(s) 227
and 228, respectively, to our minds, appear to empower the Court
of Session to only decide whether on the basis of the material on
record and the submissions of the accused and the prosecution,
there is enough material to either commence a trial or discharge
the accused. The framework of the provisions of Section(s) 226,
227 and 228 of the Code, to our minds, do not appear to envisage
any power of the Court of Session, to decide whether cognizance
of the offence should be taken or not, or the question whether the
Magistrate should have taken cognizance or not. For offences which
are exclusively triable by the Court of Session, the role that the
Court of Session is expected to play in terms of Section(s) 226 to
228, after the case has been committed to it, is not only altogether
different from the one that a Magistrate is required to play but also
one concerned only with the stage “post-cognizance of offence” in
respect of the case committed to it.
71. We say so, because, unlike Section 190 of the Code, which empowers
the Magistrate with the discretion to decide whether cognizance of an
offence should be taken or not, by application of his mind, there is
no provision of the same similitude as Section 190, which empowers
the Court of Session to do so, in respect of cases committed to it by
the Magistrate. At the same time, there is also no provision, which
empowers the Court of Session, to decide whether the committal
of the case was correct or not, to such nature and extent, that the
Court of Session be said to be empowered to sit in appeal over
the committal proceedings and decide or rather re-decide if the
cognizance of the offence should be taken or should have been
taken in the first place or not. The only limited power that the Court
of Session has been armed with over the order of committal passed
[2025] 8 S.C.R. 661

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

by the Magistrate, is to ascertain and re-decide if the offence is one
exclusively triable by it or not. Unlike a Magistrate, who is empowered
in terms of Section 190 of the Code, to drop proceedings where
after application of his mind, he comes to the finding that there is no
offence for taking cognizance to initiate proceedings in respect of,
the Court of Session is not empowered to drop the proceedings in
the case committed to it, it is only empowered to either proceed to
frame charges against the accused or to discharge the accused or
if such offence is not exclusively triable by it, transfer the case back
to the Magistrate, again for the purpose of commencement of trial
by such Magistrate. This when seen in light of the expression “Any
Offence” used in Section 190 of the Code, clearly indicates that it
is the Magistrate who is not only empowered but also indeed does
take cognizance of an offence even if the same is triable exclusively
by the Court of Session.

c. Object and Purpose underlying Section 193 of the Code.
72. The proposition of law, that where a case is committed by the
Magistrate in view of the offence being exclusively triable by the
Court of Session, it is only the Magistrate who takes cognizance of
the offence and not the Court of Session has to be understood in
the context of Section 193 of the Code.
73. The marginal note appended to Section 193 of the Code, reads as
“Cognizance of offences by Courts of Session”. It stipulates that no
Court of Session shall be empowered to take cognizance of any
offence as a Court of Original Jurisdiction, unless the case has been
committed to it by the Magistrate, or where it has been expressly
empowered to do so, either under the Code or any other law. Section
193 reads as under: -
“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.”
74. A reading of the aforesaid provision, makes it manifest, that there
is a clear embargo cast upon the Court of Session from taking
cognizance of any offence, as a Court of original jurisdiction i.e., no
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cognizance of an offence can be taken by a Court of Session in its
original capacity, as a point of initiation of any proceedings under the
Code. The expression “as a Court of original jurisdiction” warrants
a careful interpretation. The said expression cannot be construed to
mean that merely because the Court of Session is precluded from
taking cognizance of an offence as forum of inception of proceedings
under the Code i.e., as an original forum, that it must by necessary
implication, be presumed to be empowered to take cognizance of
an offence as a forum of superior jurisdiction or as an intermediate
procedural forum at a subsequent stage in the proceedings already
initiated. To say so, would go against the well-established rule,
that cognizance of an offence can only be taken once, as held
in Dharam Pal (supra) and Balveer Singh (supra). The negative
language employed in Section 193 of the Code, more particularly, “no
Court of Session shall take cognizance of any offence” which has been
used in conjunction with “unless the case has been committed to it”
is not suggestive of the fact that, where a case has been committed
to the Court of Session, it has to then mandatorily take cognizance of
the offence. To say would, resulting in turning the very tenets of the
act of “taking cognizance” over its head. It would lead to an absurd
interpretation, where, although the Magistrate, by way of Section 190
of the Code has the discretion to take cognizance of an offence, no
such discretion exists insofar as the Court of Session is concerned.
75. In Pradeep S. Wodeyar v. State of Karnataka, reported in (2021)
19 SCC 62, this Court has elaborately noted upon the scope of
Section 193 as thus:
“23. … Section 193 stipulates that unless the case has been
committed by a Magistrate to the Sessions Court under the
Code, no Court of Session shall take cognizance of any
offence. But there are two exceptions to this formulation,
namely, where:
(i) the CrPC has made an express provision to
the contrary; and
(ii) an express provision to the contrary is
contained in “any other law for the time being
in force”.
The bar in Section 193 is to the Sessions Court taking
cognizance of an offence, as a court of original jurisdiction
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Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

unless the case has been committed to it by the Magistrate
under the Code.
Xxx
38. Section 193CrPC states that the Sessions Court shall
not take cognizance of an offence as a court of original
jurisdiction unless the Magistrate commits the case to it.
The only exception is if it is expressly provided otherwise
by the Code or the statute. Neither the Code nor the
MMDR Act provide that the Special Court could directly
take cognizance of the offences. Therefore, the Sessions
Court did not have the authority to take cognizance. Section
209CrPC provides the Magistrate the power to commit the
case. In Dharam Pal v. State of Haryana [Dharam Pal v.
State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri)
159], a Constitution Bench, while discussing whether the
committing court was required under Section 209 to take
cognizance of the offence before committing the case to
the Court of Session, held that the Magistrate could either
commit the case before or after taking cognizance. In this
case, the Special Court has directly taken cognizance.
It now needs to be determined if this irregularity in the
cognizance order vitiates the entire proceedings for the
order to be quashed and set aside.
Xxx
50. It is a well-settled principle of law that cognizance as
envisaged in Section 190CrPC is of the offence and not of
the offender. The expression “cognizance of any offence”
is consistently used in the provisions of Sections 190,
191, 192 and 193. [ As a matter of fact, the expression
“cognizance of any offence” is also used in Sections 195,
196, 197, 198, 198-A, 198-B and 199. Chapter XV CrPC
which governs complaints of Magistrates also emphasises
the principle that cognizance is of an offence. The same
principle, as we have seen earlier, is emphasised in Chapter
XVI in which Section 204(1) adverts to a Magistrate “taking
cognizance of an offence”.]
Xxx
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56. It is evident from the discussion in Kishun Singh [Kishun
Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri)
470] and Dharam Pal [Dharam Pal v. State of Haryana,
(2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159] that in view of
the provisions of Section 193CrPC, cognizance is taken of
the offence and not the offender. Thus, the Magistrate or the
Special Judge does not have the power to take cognizance
of the accused. The purpose of taking cognizance of the
offence instead of the accused is because the crime is
committed against the society at large. Therefore, the
grievance of the State is against the commission of the
offence and not the offender. The offender as an actor is
targeted in the criminal procedure to provide punishments
so as to prevent or reduce the crime through different
methods such as reformation, retribution and deterrence.
Cognizance is thus taken against the offence and not the
accused since the legislative intent is to prevent crime.
The accused is a means to reach the end of preventing
and addressing the commission of crime.”
(Emphasis supplied)

76. Likewise in Nahar Singh v. State of U.P., reported in (2022) 5 SCC
295, this Court made the following observations on Kishun Singh
(supra) to comment on the nature of cognizance under Section 197
of the Code:
“23. In Kishun Singh case [Kishun Singh v. State of Bihar,
(1993) 2 SCC 16 : 1993 SCC (Cri) 470], the scope of
jurisdiction of the Court of Session under Section 193 of
the Code was explained, relying on an authority dealing
with similar provision under the 1898 Code (P.C. Gulati v.
Lajya Ram [P.C. Gulati v. Lajya Ram, AIR 1966 SC 595 :
1966 Cri LJ 465 : (1966) 1 SCR 560] ). The phrase used to
explain the implication of taking cognizance by a Court of
Session in the judgment of Kishun Singh [Kishun Singh v.
State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470]
was “cognizance in the limited sense”.
24. In para 8 of the Report (in Kishun Singh case [Kishun
Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri)
470] ), it has been held observed : (SCC pp. 24-25)
[2025] 8 S.C.R. 665

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

“8. Section 193 of the old Code placed an
embargo on the Court of Session from taking
cognizance of any offence as a court of original
jurisdiction unless the accused was committed to
it by a Magistrate or there was express provision
in the Code or any other law to the contrary. In
the context of the said provision this Court in P.C.
Gulati v. Lajya Ram [P.C. Gulati v. Lajya Ram,
AIR 1966 SC 595 : 1966 Cri LJ 465 : (1966) 1
SCR 560], SCR p. 568, AIR p. 599, Cri LJ p.
469 observed as under : (AIR p. 599, para 21)
‘21. When a case is committed to the
Court of Session, the Court of Session
has first to determine whether the
commitment of the case is proper. If
it be of opinion that the commitment
is bad on a point of law, it has to refer
the case to the High Court which is
competent to quash the proceeding
under Section 215 of the Code. It
is only when the Sessions Court
considers the commitment to be
good in law that it proceeds with the
trial of the case. It is in this context
that the Sessions Court has to take
cognizance of the offence as a court
of original jurisdiction and it is such
a cognizance which is referred to in
Section 193 of the Code.’ ””
(Emphasis supplied)

77. It is well noted in a legion of authorities that the commitment which
is talked of under Section 193 of the Code is a commitment of the
“case” and not that of the “offender”. The purpose of Section 193 is
to allow Court of Sessions the limited window to deemed to have
taken cognizance on its own motion.
78. The question of law formulated by us calls for our examination in
the light of the earlier Section 193 of the old Code and the change
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brought therein by the Code of 1973. It is, therefore, necessary to
juxtapose the two provisions:

Old Code New Code
“Section 193(1) : Except as Section 193 : Except as otherwise
otherwise expressly provided expressly provided by this Code or
by this Code or by any other by any other law for the time being
law for the time being in force, in force, no Court of Session shall
no Court of Session shall take take cognizance of any offence as a
cognizance of any offence as Court of original jurisdiction unless
a Court of original jurisdiction the case has been committed to it
unless the accused has been by a Magistrate under this Code.
committed to it by a Magistrate
duly empowered in that behalf.

79. From the above, the meaningful and significant change brought about
in the Code of 1973 seems manifest. In the earlier provision, the
requirement was that the accused must have been committed to the
Court of Session by a Magistrate. The legislature made a change
by deleting the word ‘accused’ and provided instead that the ‘case’
should have been committed to the Court of Session.
80. The Court of Session takes cognizance of the case or the offence
as a whole and, therefore, is entitled to summon anyone who,
on the material before it, appears to be guilty of such offence to
stand trial before it. To highlight, what is committed to the Court of
Session by the Magistrate is the case or the offence for trial and not
the individual offender therefor. To hold otherwise would be again
relapsing into the fallacy that cognizance is taken against individual
accused persons and not of the offence as such. This was the evil
which the amendment sought to remedy in express terms.
81. In the aforesaid context, we must look into the following observations
made in Joginder Singh vs. State of Punjab reported in 1979 Cri LJ
333 (Para 6) :-
“It will be noticed that both under Section 193 and Section
209 the commitment is of ‘the case’ and not of ‘the
accused’ whereas under the equivalent provision of the
old Code, viz., Section 193(1) and Section 207-A it was
‘the accused’ who was committed and not ‘the case’. It is
true that there cannot be a committal of the case without
[2025] 8 S.C.R. 667

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

there being an accused person before the Court, but this
only means that before a case in respect of an offence
is committed there must be some accused suspected to
be involved in the crime before the Court but once “the
case in respect of the offence qua those accused who
are before the Court is committed then the cognizance
of the offence can be said to have been taken properly
by the Sessions Court and the bar of Section 193 would
be out of the way and summoning of additional persons
who appear to be involved in the crime from the evidence
led during the trial and directing them to stand their trial
along with those who had already been committed must
be regarded as incidental to such cognizance and a part
of the normal process that follows it;”
(Emphasis supplied)

82. Therefore, what the law under section 193 seeks to visualise and
provide for now is that the whole of the incident constituting the
offence is to be taken cognizance of by the Court of Session on
commitment and not that every individual offender must be so
committed or that in case it is not so done then the Court of Session
would be powerless to proceed against persons regarding whom it
may be fully convinced at the very threshold of the trial that they
are prima facie guilty of the crime as well.
83. In Kishun Singh vs. State of Bihar reported in (1993) 2 SCC 16,
the question before the Court was whether the Court of Sessions
to which a case has been committed to for trial by the Magistrate,
can without recording evidence, summon a person not named in the
police report by exercise of its power under Section 319 CrPC. The
two judge Bench held that when a case is committed to the Court
of Sessions by the Magistrate under Section 209 on the ground
that it is exclusively triable by it, the Sessions Court would have
the power to take cognizance of the offence. It was thus held that
since cognizance is taken of the offence and not the accused, if any
material suggests the complicity of other persons in the offence, the
Court of Sessions can summon such other persons. The court, by
drawing a comparison between Section 193 of the Code of 1973
and the Code of 1898, and on a reading of Section 209 CrPC held
that both the committal and cognizance is of the offence and not
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the accused/offender. The Court summarized the position in law in
the following observations: -
“7. […] Section 190 of the Code sets out the different ways
in which a Magistrate can take cognizance of an offence,
that is to say, take notice of an allegation disclosing
commission of a crime with a view to setting the law in
motion to bring the offender to book. Under this provision
cognizance can be taken in three ways enumerated in
clauses (a), (b) and (c) of the offence alleged to have been
committed. The object is to ensure the safety of a citizen
against the vagaries of the police by giving him the right
to approach the Magistrate directly if the police does not
take action or he has reason to believe that no such action
will be taken by the police. Even though the expression
take cognizance is not defined, it is well settled by a
catena of decisions of this Court that when the Magistrate
takes notice of the accusations and applies his mind to
the allegations made in the complaint or police report or
information and on being satisfied that the allegations,
if proved, would constitute an offence decides to initiate
judicial proceedings against the alleged offender he is said
to have taken cognizance of the offence. It is essential to
bear in mind the fact that cognizance is in regard to the
offence and not the offender.
[…]
It may Immediately be noticed that under the old provision
a Court of Session could not take cognizance of an offence
as a court of original jurisdiction unless the accused was
committed to it whereas under the recast section as it
presently stands the expression the accused has been
replaced by the words the case. As has been pointed out
earlier, under Section 190 cognizance has to be taken for
the offence and not the offender; so also under Section
193 the emphasis now is to the committal of the case and
no more on the offender. So also Section 209 speaks of
committing the case to the Court of Session. On a conjoint
reading of these provisions it becomes clear that while
under the old Code in view of the language of Section
[2025] 8 S.C.R. 669

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

193 unless an accused was committed to the Court of
Session the said court could not take cognizance of an
offence as a court of original jurisdiction; now under Section
193 as it presently stands once the case is committed the
restriction disappears.”
“16…Thus, on a plain reading of Section 193, as it presently
stands once the case is committed to the Court of Session
by a Magistrate under the Code, the restriction placed on
the power of the Court of Session to take cognizance of
an offence as a court of original jurisdiction gets lifted. On
the Magistrate committing the case under Section 209
to the Court of Session the bar of Section 193 is lifted
thereby investing the Court of Session complete and
unfettered jurisdiction of the court of original jurisdiction
to take cognizance of the offence which would include the
summoning of the person or persons whose complicity in
the commission of the crime can prima facie be gathered
from the material available on record.”
(Emphasis supplied)

84. In other words, upon the committal by the Magistrate, the Court of
Sessions is empowered to take cognizance of the whole of the incident
constituting the offence. The Court of Sessions is thus invested with
the complete jurisdiction to summon any individual accused of the
crime. The above principles were reiterated in a two judge Bench
decision in State of W.B. vs. Mohd. Khalid reported in (1995) 1 SCC
684. Justice S Mohan speaking for the Court observed:
“43.[…] Section 190 of the Code talks of cognizance of
offences by Magistrates. This expression has not been
defined in the Code. In its broad and literal sense, it means
taking notice of an offence. This would include the intention
of initiating judicial proceedings against the offender in
respect of that offence or taking steps to see whether
there is any basis for initiating judicial proceedings or for
other purposes. The word ‗cognizance‘ indicates the point
when a Magistrate or a Judge first takes judicial notice
of an offence. It is entirely a different thing from initiation
of proceedings; rather it is the condition precedent to the
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initiation of proceedings by the Magistrate or the Judge.
Cognizance is taken of cases and not of persons.”
(Emphasis supplied)

d. How the decision of this Court in Dharam Pal (supra) should
be understood.
85. In Dharam Pal (supra) a Constitution Bench was called upon to
answer the following questions:
“7.1 Does the Committing Magistrate have any other role
to play after committing the case to the Court of Session
on finding from the police report that the case was triable
by the Court of Session?
7.2 If the Magistrate disagrees with the police report and
is convinced that a case had also been made out for trial
against the persons who had been placed in column 2 of
the report, does he have the jurisdiction to issue summons
against them also in order to include their names, along
with Nafe Singh, to stand trial in connection with the case
made out in the police report?
7.3 Having decided to issue summons against the
appellants, was the Magistrate required to follow the
procedure of a complaint case and to take evidence before
committing them to the Court of Session to stand trial or
whether he was justified in issuing summons against them
without following such procedure?
7.4 Can the Sessions Judge issue summons under Section
193 CrPC as a court of original jurisdiction?
7.5 Upon the case being committed to the Court of
Session, could the Sessions Judge issue summons
separately under Section 193 of the Code or would
he have to wait till the stage under Section 319 of the
Code was reached in order to take recourse thereto?
7.6 Was Ranjit Singh v. State of Punjab, which set aside
the decision in Kishun Singh v. State of Bihar, rightly
decided or not?”
(Emphasis supplied)
[2025] 8 S.C.R. 671

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

86. Answering the reference, the Constitution Bench held that:-
(i) The Magistrate has ample powers to disagree with the final
report that may be filed by the police authorities under Section
173(2) of the Code and to proceed against the accused
persons dehors the police report. The Magistrate has a role to
play while committing the case to the Court of Session upon
taking cognizance on the police report submitted before him
under Section 173(2) of the Code. In the event the Magistrate
disagrees with the police report, he has two choices. He may
act on the basis of a protest petition that may be filed, or he
may, while disagreeing with the police report, issue process
and summon the accused.
(ii) Thereafter, if on being prima facie satisfied that a case had
been made out to proceed against the persons named in
Column 2 of the report, he may proceed to try the said persons
or if he is satisfied that a case had been made out which was
triable by the Court of Session, he must commit the case to
the Court of Session to proceed further in the matter. Further,
if the Magistrate decides to proceed against the persons
accused, he would have to proceed on the basis of the police
report itself and either inquire into the matter or commit it to
the Court of Session if the same is found to be triable by the
Sessions Court.
(iii) The Sessions Judge is entitled to issue summons under Section
193 of the Code upon the case being committed to him by the
Magistrate. Section 193 speaks of cognizance of offences by
the Court of Session. The key words in the section are that ‘no
Court of Session shall take cognizance of any offence as a court
of original jurisdiction unless the case has been committed to
it by a Magistrate under this Code’. The provision of Section
193 entails that a case must, first of all, be committed to the
Court of Session by the Magistrate. The second condition is that
only after the case had been committed to it, could the Court
of Session take cognizance of the offence exercising original
jurisdiction. The submission that the cognizance indicated in
Section 193 deals not with cognizance of an offence but of the
commitment order passed by the Magistrate, was specifically
rejected in view of the clear wordings of Section 193 that the
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Court of Session may take cognizance of the offences under
the said section.
(iv) Cognizance of an offence can only be taken once. In the
event, a Magistrate takes cognizance of the offence and then
commits the case to the Court of Session, the question of taking
fresh cognizance of the offence and, thereafter, proceeding to
issue summons, is not in accordance with law. If cognizance
is to be taken of the offence, it could be taken either by the
Magistrate or by the Court of Session. The language of Section
193 of the Code very clearly indicates that once the case is
committed to the Court of Session by the Magistrate, the Court
of Session assumes original jurisdiction and all that goes with
the assumption of such jurisdiction. The provisions of Section
209 of the Code will, therefore, have to be understood as the
Magistrate playing a passive role in committing the case to
the Court of Session on finding from the police report that the
case was triable by the Court of Session. Nor can there be any
question of part cognizance being taken by the Magistrate and
part cognizance being taken by the Sessions Judge.
87. In the process of coming to the aforesaid conclusions, this Court
accepted the view expressed in Kishun Singh (supra) that the
Sessions Court has jurisdiction on committal of a case to it, to take
cognizance of the offence which would include the summoning
of the person not named as offender but whose complicity in the
case would be evident from the materials available on record. It
specifically held that upon committal under Section 209 of the Code,
the Sessions Judge may summon those persons shown in Column
2 of the police report to stand trial along with those already named
therein. (See: Balveer Singh (supra))
88. At the same time, the Court also held that it would not be correct
to hold that on receipt of a police report and seeing that the case is
triable by a Court of Session, the Magistrate has no other function
but to commit the case trial to the Court of Session and the Sessions
Judge has to wait till the stage under Section 319 of the Code is
reached before proceeding against the persons against whom a
prima facie case is made out from the material contained in the
case papers sent by the Magistrate while committing the case to
the Court of Session. This is reflected in the following passage:
[2025] 8 S.C.R. 673

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

“33. As far as the first question is concerned, we are
unable to accept the submissions made by Mr. Chahar
and Mr Dave that on receipt of a police report seeing that
the case was triable by Court of Session, the Magistrate
has no other function, but to commit the case for trial to
the Court of Session, which could only resort to Section
319 of the Code to array any other person as accused in
the trial. In other words, according to Mr Dave, there could
be no intermediary stage between taking of cognizance
under Section 190(1)(b) and Section 204 of the Code
issuing summons to the accused. The effect of such an
interpretation would lead to a situation where neither the
Committing Magistrate would have any control over the
persons named in column 2 of the police report nor the
Sessions Judge, till the Section 319 stage was reached
in the trial. Furthermore, in the event the Sessions Judge
ultimately found material against the persons named in
column 2 of the police report, the trial would have to be
commenced de novo against such persons which would
not only lead to duplication of the trial, but also prolong
the same.”
(Emphasis supplied)

89. In Dharam Pal (supra), a Constitution Bench was deciding on whether
the Court of Sessions has the power under Section 193 CrPC to
take cognizance of the offence and then summon other persons not
mentioned as accused in the police report. The issue was referred
to a five-judge Bench in view of the conflicting decisions in Kishun
Singh (supra) and Ranjit Singh v. State of Punjab reported in (1998)
7 SCC 149. As discussed above, while in Kishun Singh (supra), it
was held that the Sessions Court has such a power under Section
193 CrPC, it was held in Ranjit Singh (supra) that from the stage
of committal till the Sessions Court reaches the stage indicated in
Section 230 CrPC, the Court could not arraign any other person as
the accused. The Constitution Bench affirmed the view in Kishun
Singh (supra) on the ground that the Magistrate before whom the
final report is submitted has ample powers to disagree with the
report filed by the police under Section 173(2) and to proceed
against the accused persons de hors the police report. However,
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if the interpretation in Ranjit Singh (supra) were to be followed,
it would lead to an anomaly where the Sessions Court would not
have this power till the Section 319 stage is reached, which the
Magistrate would otherwise have. In that context, the Constitution
Bench observed:
“35. In our view, the Magistrate has a role to play while
committing the case to the Court of Session upon taking
cognizance on the police report submitted before him
under Section 173(2) CrPC. In the event the Magistrate
disagrees with the police report, he has two choices. He
may act on the basis of a protest petition that may be
filed, or he may, while disagreeing with the police report,
issue process and summon the accused. Thereafter, if on
being satisfied that a case had been made out to proceed
against the persons named in column 2 of the report,
proceed to try the said persons or if he was satisfied
that a case had been made out which was triable by the
Court of Session, he may commit the case to the Court
of Session to proceed further in the matter.”
(Emphasis supplied)

90. In view of the aforesaid discussion, the position of law is clear that
the Court of Session has power under Section 193 CrPC to summon
a person as accused to stand trial, even if he has not been charge-
sheeted by the police and whose complexity in the crime appears
in the evidence available on record. To hold in such a situation,
that if the investigating agency blatantly exonerates an accused
person and the Magistrate does not consequently commit him, the
Court of Session itself would be rendered powerless to put such an
offender in the dock at the very opening stage of the trial, would to
our mind only hamper the cause of justice rather than advance it.
It is to be borne in mind that herein we are construing procedural
provisions and it is well-settled that procedure is the hand-maid of
justice and is not to be employed as a roadblock thereto. Therefore
on the larger canon of construction there appears to be no logic
for narrowly construing the statute so as to denude the Court of
Session of the power to summon a person to stand his trial at the
outset even when wholly convinced of a prima facie case against
him on the basis of materials in the final report which is admittedly
[2025] 8 S.C.R. 675

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

adequate for framing a charge against the committed accused under
section 228 or discharging him under section 227 of the Code.
91. Our judgment would remain incomplete without referring to one very
erudite judgment of this Court rendered in Raghubans Dubey vs.
State of Bihar reported in (1967 Cri LJ 1081) (SC). Therein a first
information report had been lodged against as many as 15 persons
including petitioner Raghubans Dubey. On investigation, the police
submitted final form under Section 173 in which Raghubans Dubey
was not sent up by the police for trial whilst the remaining accused
were. The Sub-divisional Magistrate took cognizance against the
fourteen accused persons and expressly discharged Raghubans
Dubey and thereafter transferred the case to a Magistrate for
commitment. In the course of the trial, the transferee Magistrate
noticed that Raghubans Dubey had been named in the first
information report and was also named by 5 more witnesses in their
statements under Section 161. He, therefore, summoned Raghubans
Dubey as an accused to stand his trial along with others. This was
challenged on behalf of the petitioner Raghubans Dubey before
the High Court. But the Division Bench of the High Court while
upholding the action of the Magistrate in summoning the additional
accused person rejected the revision petition. Upholding the High
Court’s view in an even stronger and more categoric terms, Sikri,
J., speaking for the Bench, observed (Para 9 of 1967 Cri LJ 1081):
“In our opinion once cognizance has been taken by the
Magistrate, he takes cognizance of an offence and not the
offenders; once he takes cognizance of an offence it is his
duty to find out who the offenders really are and once he
comes to the conclusion that apart from the persons sent
up by the police some other persons are involved, it is his
duty to proceed against those persons. The summoning of
the additional accused is part of the proceeding initiated
by his taking cognizance of an offence.”
(Emphasis supplied)

92. From the above, it inflexibly follows that once a court of competent
jurisdiction, be it a Magistrate or the Court of Session, takes
cognizance of the offence, it is not only within the court’s powers
to summon any one who, on the adequate materials, appears to it
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to be prima facie guilty of the said offence but indeed it is its duty
to do so. Raghubans Dubey’s case (supra) arose under the old
Code of 1898, but it is manifest that the situation is identical under
the Code of 1973 too, and the same view has then been expressly
reiterated in Hareram Satpathy vs. Tikaram Agarwala, reported in
(1978) 4 SCC 58 : AIR 1978 SC 1568 : (1978 Cri LJ 1687) in the
context of commitment on a murder charge to the Court of Session
by a Magistrate of a person not sent up as an accused by the
investigating agency.
93. The larger and universal principle underlying the aforesaid rationale
has been enunciated in powerful language by Desai, J., speaking for
the Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak,
reported in (1984) 2 SCC 500 in the following terms:
“Punishment of the offender in the interest of the society
being one of the objects behind penal statutes, enacted
for larger good of the society, right to initiate proceedings
cannot be whittled down, circumscribed or fettered by
putting it into a straight-jacket formula of locus standi
unknown to criminal jurisprudence, save and except
specific statutory exception.”
(Emphasis supplied)

94. We shall now proceed to specifically deal with the contention
canvassed by the learned counsel appearing for the petitioner that
cognizance of an offence can only be taken once and, if the Magistrate
has taken cognizance of an offence and committed it to the Court of
Session, then there is no question of taking fresh cognizance of the
offence by the Court of Session upon the case being committed to it.
There is a basic fallacy in this contention of the learned counsel. With
all humility at our command we say that there is a misconception on
the part of the learned counsel so far as the position of law on the
subject is concerned. It appears that the learned counsel thought to
develop such argument relying on some observations made by this
Court in Dharam Pal (supra). The observations are:-
“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
[2025] 8 S.C.R. 677

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

of an offence can only be taken once. In the event, the
Magistrate takes cognizance of the offence and then
commits the case to the Court of Sessions, 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 provision of Section
209 will, therefore, have to be understood as the learned
Magistrate playing a passive role in committing the case
to the Court of session on finding from the police report
that the case was triable by the Court of Session. Nor can
there be any question of part cognizance being taken by
the Magistrate and part cognizance being taken by the
learned Session Judge.”
(Emphasis supplied)

95. The aforesaid observations made by the Constitution Bench of this
Court in Dharam Pal (supra) should be understood to mean that
when the investigating officer files charge sheet for the offence
exclusively triable by the Court of Session, then the Magistrate has
to look into the charge sheet and prima facie ascertain from the
materials on record whether the case is one exclusively triable by
the Court of Session. Once the Magistrate is prima facie convinced
that the case is exclusively triable by the Court of Session, the next
step in the process is to commit the case to the Court of Session
under Section 209 of the CrPC. At this stage, the Magistrate takes
cognizance of the offence and not the offender. Once the case is
committed to the Court of Session and the Court of Session finds
from the materials on record that a particular individual, though not
charge sheeted, is also prima facie involved in the alleged crime,
then the Court of Session has the power to take cognizance of the
offence for the purpose of summoning that person not named as
offender to face the trial. One should try to understand the purport
of Section 193 CrPC. What does Section 193 CrPC provide for?
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Section 193 CrPC removes the legal embargo for the Court of Session
to take cognizance of any offence once the case is committed to
it because upon the committal, the Court of Session assumes the
character of the Court of original jurisdiction.
96. Let us try to understand the issue that was involved in Dharam Pal
(supra). The primary issue in Dharam Pal (supra) was one regarding
the power of the Sessions Court to issue summons against the
person who is not named in the police report after commitment of
case to it by the Magistrate under Section 209 of the Code. The other
question that was considered in Dharam Pal (supra) was whether
under Section 209 of the Code, the Magistrate was obliged to take
cognizance of the offence before committing the case to the Court
of Sessions. This moot question was answered by the Constitution
Bench as under:
“39. This takes us to the next question as to whether
under section 209 the Magistrate was required to take
cognizance of the offence before committing the case to
the Court of Session. It is well settled that cognizance of
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
summon 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 assumption of such
jurisdiction. The provisions of section 209 will, therefore
have to be understood as the learned Magistrate playing a
passive role in committing the case to the Court of Session
on finding from the police report that the case was triable
by the Court of Session. Nor can there be any question of
part cognizance being taken by the Magistrate and part
cognizance being taken by the learned Sessions Judge.”
97. A bare reading of the observations contained in para 39 of Dharam
Pal (supra) referred to above, gives an impression that what the Court
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Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

wanted to convey was that at the time of committal, the Magistrate
does not take cognizance of the offence and plays a very limited and
passive role in committing the case to the Court of Sessions. With all
humility at our command and with due deference if this is what was
in the mind of the learned Judges then we are afraid that is not the
correct position of law. The Magistrate does take cognizance of the
offence but only for the limited purpose of committing the case to
the Court of Sessions, having regard to the nature of the offences.
98. At this stage, we may give one simple illustration as to in what
circumstances, it could be said in law that cognizance of offence
can only be taken once. In other words, if cognizance is to be taken
of the offence, it could be taken either by the Magistrate or by the
Court of Sessions.
99. Take a case where a private complaint is lodged in the Court of
Magistrate for an offence which is exclusively triable by the Court
of Sessions and the Magistrate takes cognizance upon the said
complaint and issues process under Section 204 of the Code and
thereafter commits the case to the Court of Sessions, then in such
circumstances, it could be said that there is no question for the
Court of Sessions once again to take cognizance of the offence.
100. Once again at the cost of repetition, we state that the Court of
Session takes cognizance of the case or the offence as a whole
and, therefore, is entitled to summon anyone who on the materials
before it appears to be involved in such offence to stand for trial
before it. It is very important and necessary to understand that what
is committed to the Court of Session by the Magistrate is the “case”
or the “offence” for trial and not the “individual offender” thereof.
101. In view of what we have explained as aforestated, we have no
hesitation in saying that there is no merit, worth the name, in the
contention of the learned counsel appearing for the petitioner. It is
absolutely incorrect on the part of the learned counsel to assert that
the petitioner could have been summoned as an accused only during
the course of trial under the provisions of Section 319 CrPC. Section
319 CrPC stands absolutely on a different footing.
102. The matter may equally be examined from one another angle. For a
moment one may leave the procedural provisions altogether apart.
On larger principle, one can see no adequate reason to fetter and
680 [2025] 8 S.C.R.

Supreme Court Reports

shackle the power of a superior court like that of the Court of Session
from summoning a person as an additional accused to stand trial
when, on the materials before it, it is satisfied that there exists a
conclusive or, in any case, a prima facie case against him. It is for this
reason that in Raghubans Dubey’s case (supra), this Court labelled
this power as being virtually coupled with the duty of summoning
such an additional accused and such a power is part and parcel of
the proceeding initiated by taking cognizance of the offence. The
glaring instances necessitating the exercise of such power or duty
would be when the investigating agency in its report under Section
173 without any reason or basis whatsoever exonerates a person
specifically named in the first information report and fully implicated
in the crime. Indeed, such an example is provided pertinently in the
present case itself. Herein the Court of Session has come to the
categoric conclusion that the petitioner though not named at the
earliest in the FIR, yet the investigation revealed his involvement
along with the charge sheeted accused.

F. CONCLUSION
103. We summarize our final conclusion as under: -
(i) Both under Sections 209 and 193 respectively of the Code
1973 commitment is of, the “case” and not of the “accused” as
distinguished from Section193(3) and Section 207A respectively
of the old Code where commitment was of the “accused” and not
the “case”. For committing a case there must be an offence and
involvement of a person who committed the same. Even though
the case is committed yet cognizance taken is of the offence
and not the offender. Once the case in respect of the offence
qua the accused, who are before the Court, is committed and
cognizance is taken, the embargo under Section 193 regarding
taking cognizance only by committal goes. Summoning additional
persons will then be regarded as incidental to the cognizance
already taken on committal and as, a part, of, the normal process
that follows. A fresh committal of such person is not necessary.
(ii) Section 319(4)(b) enacts a deeming provision in that behalf
dispensing with the formal committal order by providing that
the person added will be deemed to have been an accused
even when cognizance was taken first. Cognizance is of the
[2025] 8 S.C.R. 681

Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

offence and not the offender and it is the duty of the court to
find out who the offenders are. Proceedings could be instituted
and cognizance taken also against persons not known at that
time. This is clear if the provisions of Section 190 of the Code
are read along with the definition of complaint in Section 2(d)
which include allegations against unknown person also. Making
the unknown persons known is therefore within the powers of
the court. When such persons become known by the evidence
during inquiry or trial it is not only the right but also the duty of
court to bring them on record and proceed against them in an
attempt to bring them to justice. There cannot, therefore, be
any dispute regarding the powers of court to bring the person
under Section 319(1).
(iii) Once the Court takes cognizance of the offence (not of the
offender), it becomes the Court’s duty to find out the real offenders
and if it comes to the conclusion that besides the persons put
up for trial by the police some others are also involved in the
commission of the crime, it is the Court’s duty to summon them
to stand trial along with those already named, since summoning
them would only be part of the process of taking cognizance.
104. For all the foregoing reasons we are of the view that no error not to
speak of any error of law can be said to have been committed by
the High Court in passing the impugned order.
105. In the result, this petition fails and is hereby dismissed.
106. The trial court shall now proceed to frame charge if not yet framed
and start recording with the oral evidence of the witnesses. The trial
shall be completed within a period of six months from the date of
the receipt of the writ of this order.
107. The Registry shall circulate one copy each of this judgment to all
the High Courts.

Result of the case: Special Leave Petition dismissed.

†
Headnotes prepared by: Divya Pandey