Holding

A Court of Session, once a case is committed to it, may summon and implead additional persons whose involvement appears prima facie from the case record, and the order remains valid even if based on a technically incorrect provision.

Summary

The appellants, Kishun Singh and others, were not named in the charge‑sheet filed after a police investigation of a murder, but were listed in the FIR. The Sessions Judge, after the case was committed to his court under Section 209 of the CrPC, impleaded them as co‑accused under Section 319 before any trial evidence was recorded. The High Court dismissed their revision, and they appealed to the Supreme Court. The Court examined the scope of Section 319, the effect of Section 193 on the Sessions Court’s jurisdiction after committal, and whether the power to summon additional persons could be exercised without trial evidence. It held that once a case is committed, the Sessions Court has full jurisdiction to summon persons whose complicity appears prima facie from the case record, and that invoking a technically wrong provision does not invalidate the order. Consequently, the appeal was dismissed.

Issues considered

The power of a Court of Session to summon and implead a person not named in the police report under Section 319 of the CrPC before trial commences and without evidence being led.
Whether Section 319 can be exercised only after evidence is recorded in the trial.
The effect of Section 193 of the CrPC on the Sessions Court’s jurisdiction to take cognizance and summon additional accused after committal.
Whether any other provision in the CrPC confers a similar power to the Sessions Court.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 156, s. 173, s. 190, s. 191, s. 193, s. 200, s. 204, s. 209, s. 227, s. 228, s. 31, s. 319

Subjects

Section 319Code of Criminal ProcedureCourt of Sessioncognizanceimpleadmentadditional accusedcriminal procedurespecial leaveappellate jurisdiction

Judgment

KISHUN SINGH AND ORS. A
v.
STATE OF BIHAR

JANUARY 11, 1993

[A.M. AHMADI AND N.P. SINGH, JJ.] B
•
Code of Criminal Procedure, 1973-Section 31'>-Application and pro-
cedure of-l'ower under-lnvokability.

Code of Criminal Procedure, 1973-Sections 154, 156, 173, 190, 191, C
193, 200, 204, 209, 227, 22S-Setting Criminal Law into motion-Modes
of-Cognizance of offencHJuty of Court-'Take Cognizance'-Meaning of.

On the evening or 27th February, 1990, informant's yonnger brother
was attacked by twenty persons including the present two appellants wl~
. sticks, etc. First Information Report was lodged at about 9.30 p.m. on the D
· same day in .which all the twenty .persons were named as the assailants.
The injured died in the hospital on the next day.

In course of investigation statements of the informant and others
-re recorded and a charge-sheet was forwarded to the Court of the _ E
Magistrate wherein eighteen persons, were shown as ·the offenders. The
names of the present two appellants were not Included In the report, as in
the opinion of the investigating officer their Involvement in the commls·
sion of the crime was not established.

The eighteen persons named in the report were c"mmitted to the F
Court of Session under Section 209 of the Code of Criminal Procedure te
·~ stand trial.

When the matter came up before the Sessions Judge, an application
was presented under Section 319 of the Code praying to lmplead the G
appellants also as accused persons.

To the show cause notice issued to the appellants, they submitted
) that though they were not present at the place or occurrence, they were
falsely named In the First Information Report and'the investigating ofticer
bad rlglldy omitted their .names from the charge-sheet filed in Court. H
31
32 SUPREME COURT REPORTS [1993) 1 S.C.R.

A The Sessions Judge rejected the plea of the appellants and im-
pleaded them as co-accused along with the eighteen others. This was done
before the commencement of the actual trial.

The appellants' revision filed before the High Court was dismissed.

B The appellants moved this Court by special leave under Article 136
or the Constitution of India, against the High Court's order contending
that unless evidence was recorded during the course or trial, the Sessions
Judge bad no jurisdiction under Section 319 of the Code of Criminal
Procedure to take cognizance and implead the appellants as co-accused
C solely on the basis or the material collected in the course of investigation
and appended to the report forwarded under Section 173 or the Code in
view oC the clear mandate of Section 193 of the Code; that since the trial
bad not commenced and the prosecution bad not led any evidence, the
stage for the exercise of the power had not reached.

D Dismissing the appeal, this Court

HELD : 1.01. On a plain reading of sub-section (1) of Section 319
there can be no donbt that it must appear from the evidence tendered in
the conrse of any inquiry or trial that any persoil not being the accused
has committed any offence for which he could be tried together with the
E accused.

1.02. This power, can be exercised only if it so appears from the
evidence at the trial and not otherwise., Therefore, the sub-section con·
templates existence of some evidence appearing in the course of trial
wherefrom the Court can prima facie conclude that the person not ar·
F raigned before It is also involved in the commission of the crime for which
be can be tried with those already named by the police.

1.03. Even a person who bas earlier been discharged would fall
within the sweep of the power conrerred by Section 319 of the Code.
G Therefore, stricto sensu Section 319 of the Code cannot be invoked in a case
where no evidence has been led at a trial wherefrom it can be said that the
appellants appear to have been involved in the commission of the crime
along with these already sent up for trial by the prosecution.

1.ll4. Section 319 covers the post-congnizance stage where in the
H course of an inquiry or trial the involvement or complicity of a person or
KISHUN SINGH v. STATE 33

persons not named by the investigating agency has surfaced which neces· A
sitates the exercise of the ·discretionary power conferred by the said
-...,.
provision.

1.05. Section 319 can be invoked both by the Court !laving original
jurisdiction as well as the Court to which the case has been committed or
transferred for trial. The sweep of Section 319 is, therefore, limited in that, B
it is an enabling provision which can be invoked only if evidence surfaces
in the course of an inquiry or a trial disclosing the complicity of a person
or persons other than the person or persons already arraigned before IL

Ul6•. Section 319 deals with only one sitnation, namely, the. com• c
plicity CO!Jling to ligb_t from the evidence taken and recorded in the course
of an inquiry or trial. This may happen not merely in cases where despite
the name of a person figuring in the course of Investigation the invebtigat·
Ing agency does not .send him .up for trial but even in cases where the
"'\ complicity of such a person comes to light for the first time in the course
of evidence recorded at the iuquiry or trial. D

1.07. The scope of its operation '!r the area of its. play would also be
limited to cases where after cognizance the involvement of any person or
persons in the commission of the crime comes to light in the course of
evidence recorded at the inquiry or trial. Thus the Section does not apply E
->. to all situations and cannot be interpreted to be the repository of all power
for summoning such person or persons to stand trial along with others
arraigned before the Court.

--· 1.08. Once the case is committed to the Court of Session by a
magistrate undet the Code, the restriction placed on the power of the F
<;:ourt of Session lo take cognizance of an ofl'ence as a court of original
--{ jurisdiction gets lifted. On the magistrate committing the · case under
Section 209 to the Court of Session the bor of section 193· is lifted thereby
investing the Court of Session complete and unfettered jurisdiction of the

-
court of original jurisdiction to take cognlzance,or the oll'eoce which would
include the summoning of the person or persons whose complicity in the
G
commission, of the crime can prima facie by gathered from the material
available on record.
'r . 1.09'. he stage for. the .exercise ~f power under section· 319 of the
' Code h.ad not reached, Inasmuch as, the trial had not commenced. and H
"')-

34 SUPREME COURT REPORTS (1993) 1 S.C.R.

A evidence was not led. 'l11e Court of Session bad, hCMeVer, tile power nnder
Section 193 of the Code to summon the appellants as tllelr lavol~ la y
the commission of the crime prima facie appeand l'rom the recard el tlle
case. Once It Is fonnd that tile power exists tile exerdse of power Hder a
wrong provision will not reader the order Illegal or lamld.

B logi.nder Singh v. State of Punjab, AIR 1979 SC 339 • (1'79) 2 SCR
,-~
306 and Sohan Lal ct Ors. v. State of Rajasthan, (1990) 4 SCC $81, aefeued
to.
-" . ~

2.01. The two alternative modes In which the Crflllilllll r..w cu be ~
~~
c set In motion are: by the filing of Information with the polite ..... Sectloa
154 of the Code or upon ncelpl of a complaint or lnfOl'MlltiO. by a
Magistrate. The funner would lead to investigation by the police and may
'-- ."',.
culminate In a police report under Section 173 of the Code on tile basis
•
whereof cognizance may be taken by the Mlllllstrate nader Sectloa ~·
.,.,--
lllO(l)(b) of the Code. lu the latter case, the Magistrate may either order
D luvestlgatlou by the police under Section 156(3) of the Code or •1mse11
hold an Inquiry under Sectloa 202 before taking coplza11tt of the offence
under Section lllO(l)(a) or (c), as the case may be, read with, Sectloa ~
of the Code. Once tile Magistrate takes cognbaaa: of the ollence. he may
proceed to try the ollender (except where the aise, ls transferred 1!11.r
E section 191 or commit him for trial under Section. 209 of the (;ode If tile
offence Is triable exclusively by a Court or Session.
) ... 11
~~

2.82. Once cognizance of au offence Is taken It. ~ tile COINt'a
duty to llnd out who the offenders really are and If tile Court ftada tlaat. -
apart from the persons sent up by the police some other persOBS 8"
F
Involved, It is bis duty to proceed against those persoas by s - • •
them because 'the summoning of the additional 11CC11sed Is part of tile ",.---- .
proceeding Initiated by his taklug cognizance of an offence'.

-
2.03. After cognizance Is taken under Section lllO(l) of the Code, lu
G warrant cases the Court Is l'l!quired to frame a charge containing par·
tlculars as to the time and place of the alleged offence aud the persOll (If
any) agalust whom, or the thing (if any) In respect of whldl, It was
-/
committed. But before framing the charge section 227 of tile Code
provides that If, upoa a COBSiderat1ou of the recard of the cue _. die
H docu-ts ~bmltted therewith, the Sessions Judp considers lllat tlien
--(

KISHUN SINGH v. STATE 35

is not sufficient ground for proceeding against the accused, he shall, for A
reasons to be recorded, discharge the accused.
-· "\.
2.04. It Is only when the Judge is of opinion that there is ground for
presuming that the accused was committed an offence that he will proceed
to frame a charge and record the plea of the accused (vlde, section 228).
It becomes immediately clear that for the limited purpose of deciding
B
whether or not to frame a charge against the accused, the judge would be
required to examine the record of the case and the documents submitted
)- therewith, which would comprise the police report, the statements of
witnesses recorded under Section 161 of the Code, the seizure- memoran-
da, etc. etc. c
_,
2.05. Once the court takes cognizance of the offence (not the of·
fender) 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
D
named, since summoning them would only be a part of the process of
taking cognizance.

• 2.06. Even though the expression 'take cognizance' is not defined, it
is well settled that when the Magistrate takes notice of the accusations and E
A-
applies bis 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 be 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 F
offence and not the offender. Mere application of mind does not amount
to taking cognizance unless the magistrate does so for proceeding under
Section 200/204 of the Code.

Jamuna Singh & Ors. v. Bhadai Sah, [1964] 5 SCR 37 at 40-41;
Raghubans Dubey v. State of Bihar [1967] 2 SCR 423 ·AIR 1967 SC 1167 G
and Hariram Satpathy v. Trkaram Agarwala, [1979] 1 SCR 349 - AIR 1978
SC 1568, referred to.
·1
S.K Latfur Rahman & Ors. v. The State, (1985) PLJR 640 • (1985)
Criminal Law Journal 1238, approved. H
36 SUPREME COURT REPORTS (1993] 1 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
24 of 1993. r
From the Judgment and Order dated 6.8.1991 of the Patna High
Court in Criminal Rev. No. 307 of 1991.

B Uday Sinha and M.P. Jha for the Appellants.

B.B. Singh Adv. for the Respondent.

The Judgment of the Court was delivered by

C AHMADI, J. Special leave granted.

Whether a Court of Session to which a case is committed for trial by
a Magistrate can, without its.elf recording evidence, summon a person not
named in the Police Report presented under Section 173 of the Code of
Criminal Procedure, 1973 ('The Code' for short) to stand trial along with
D those already named therein, in exercise of power conferred by Section 319
of the Code? This neat question of law arises in the backdrop of the
following allegations.

On the evening of 27th February, 1990 Umakant Thakur; younger
brother of the informant, was attacked by twenty persons including the
E present two appellants with sticks; etc. A First Information Report was
lodged at about 9.30 p.m. on the same day in which all the twenty persons
were named as the assailants. The injured Umakant Thakur died in the Patna
Hospital on the next day. In the course of investigation statements of the
informant as well as others came to be recorded and a charge-sheet dated
F 10th June, 1990 was forwarded to the Court of the lea,rned Magistrate on 17th
June, 1990 wherein eighteen persons other than the two appellants were
shown as the offenders. The names of the present two appellants were not
included in the said report as in the opinion of the investigating officer their
involvement in the commission of the crime was not established. A final
report to that effect was submitted on 4th September, 1990 to the Chief
G Judicial Magistrate on which no orders were passed. The ) concerned
Magistrate committed the eighteen persons named in the report to the Court
of Session, Dharbanga, under Section 209 of the Code to stand trial. When
the matter came up before the learned Sessions Judge, Dharbanga, an
application was presented under Section 319 of the Code praying that the
H material on record annexed to the report under Section 173 of the Code
KISHUN SINGH v. STATE [AHMADI, J.] 37

revealed the involvement of the two appellants also and hence they should be A
summoned and arraigned before the Court as accused persons along with'(he
eighteen already named in the charge-sheet. Thereupon a show cause notice
was issued to the present two appellants in response whereto they contended
that though they were not present at the place of occurrence, they were
falsely named in the First Information Report and the investigating officer B
had rightly omitted their names from the charge-sheet filed in Court. The
learned Sessions Judge rejected. the plea put forth by the appellants and
j exercised the discretion vested in him under Section 319 of the Code by
impleading the appellants as co- accused along with the eighteen others.
Indisputably 'this was done before any evidence was recorded i.e. before the
commencement of the actual trial. The appellants thereupon filed a Criminal C
Revision Application before the High Court of Patna assailiitg the order
passed by the learned Sessions Judge taking cognizance against them. The
High Court after hearing counsel for the parties dismissed the Revision
Application relying on the ratio of the Full Bench decision of that Court in
S.KLalfurRahman& Ors. v. The State, [(1985) PUR640 = (1985) Criminal D
Law Journal 1238]. It is against this order passed by the learned Single Judge
of the High Court that the appellants have moved this Court by special leave
under Article 136 of the Constitution oflndia.

The learned counsel for the appellants contended that unless evidence
1. was recorded during the course of trial. The Sessions Judge had no jufisdic- E
tion under Section 319 of the Code to take cognizance and implead the
of
appellants as co-accused solely on the basis the material collected in the

- course of investigation and appended to the report forwarded under Section
173 of the Code in view of the clear mandate of Section 193 of the Code. The
question which arises for consideration in the backdrop of the aforestated
facts is whether the learned Sessions Judge was justified in law in invoking
F

Section 319 of the Code at the stage at which the proceedings were pending
before him solely on the basis of the documents including statements
recorded under Section 161 of the Code during investigation without com-
mencing trial and recording evidence therein?
G
Section 319 corresponds to Section 351 of the repealed Code of
Criminal Procedure, 1898 (hereinafter called 'the old Code'). That Section
must be read in juxta-position with Section 319 of the Code. Before we do so
it is necessary to state that Section 319 of the Code as it presently stands is the
reca5t version of Section 351 of the old Code based on the recommendations H
38 SUPREME COURT REPORTS (1993) 1 S.C.R.

A made by the Law Commission in its 4lst Report as under :
'It happens sometimes, though not very often, that a Magistrate
hearing a case 3gainst certain accused finds from the evidence
that some person, other than the accused before him, is also
concerned· in that very offence or in a connected offence. It is
B only proper that the Magistrate should 'have the power to call
and join him in the proceedings'. Section 351 provides for such
a situation, but only if that person happens to be attending the
Court. He can then be detained and proceeded against. There
is no express provision in section 351 for summoning such a
c person if he is not present in Court. Such a provision would
made section 351 fairly comprehensive, and we think it proper
to expressly provide for that situation. (para 24.80)

About the true position under the existing law, there has been
difference of opinion, and we think it should be made clear. It
D seems to us that the main purpose of this particular provision
is, that the whole case against all known suspects should be
proceeded with expeditiously, and convenience requires that
cognizance against the newly added accused should be taken
in the same manner as against the other accused. We, therefore,
E propose to re-cast section 351 making it comprehensive and
providing that 'there will be no difference in the mode of taking
cognizance if a new person is added as an accused during the
proceedings.' (para 24.81)

It will be. seen from the above paragraphs that the Law Commission
F suggested that section 351 should be recast with a view to (i) empowering
the court to summon a person not present in court to stand trial along with
the named accused and (ii) enabling the court to take cognizance against
the newly added accused by making it explicit that there will be no
difference in the mode of taking cognizance against the added accused.
G Pursuant to the said recommendations made by the Law Commission
Section 351 of the old Code was replaced by Section 319 in the present
Code. We may now read the two provisons in juxta-position :

"Old Code

H Section 351 - (1) Any person attending a Criminal Court,
KISHUN SINGH v. STATE [AHMADI, J.] 39

although not under arrest or upon a summons, may be detained A
by such Court for the purpose of inquiry into or trial of any
offence of which such Court can take cognizance and which,
from the evidence, may appear to have been committed, and
may be proceeded against as though be bad been arrested or
summoned.
B
(2) When the detention takes place in the course of an inquiry
) under Chapter XVIII or after a trial bas been begun, the
proceedings in respect of such person shall be commenced
afresh, and the witnesses re-beard.

New Code
c
Section 319 - (1) Where, in the course of any inquiry into or
trial of an offence, it appears from the evidence that any person
"""\
not being the accused has committed any offence for which
such person should be tried together with the accused, the D
Court may proceed against such person for the offence .which
be appears to have committed.

(2) Where such person is not attending the Court, he may be
A arrested or summoned, as the circumstances of the case may
E
require, for the purpose aforesaid.

(3) Any person attending the _Court, although not under arrest,
or upon a summons, may be detained by such Court for the
purpose of the inquiry into, or trial of, the offence which he
appears to have committed. F
(4) Where the Court proceeds against any person under sub-
section (1), then -

(a) the proceedings in respect of such f>erson shall be com-
menced afresh and the witnesses re-heard;
G

(b) subject to the provisions of Cl.(a), the case may proceed as
if such person had been an accused person when the Court
took cognizance of the offence upon which the inquiry or trial
was commenced." H
40 SUPREME COURT REPORTS (1993) 1 S.C.R.

A Section 351 of the old Code empowered detention of any person
·attending a Criminal Court, although not under arrest or upon a summon,
for the purpose of inquiry into or trial of any offence of which such Court
could take cognizance, if it appeared from the evidence so recorded that
he may have committed an offence along with others. Sub-section (2) of
section 319 came to be inserted in response to the Law Commission's
B recommendation in paragraph 24.80 of its report to enlarge the Court's
power to arrest or summon any person who appears to be involved in the
commission of the crime along with others but who is not present in court.
Next, it is significant to note that the words 'of which such Court can take
cognizance' have been omitted by the Legislature. Instead the newly added
C sub-section 4(b) expressly states that the case against the added accused
may proceed as if such person had been an accused person when the court
took cognizance of the offence. This takes care of the Law Commission's
recommendation found in paragraph 24.81 extracted earlier. It is, there-
fore, manifest that Section 319 of the Code is an improved version of ,.. -

D Section 351 of the old Code; the changes having been introduced therein
on the suggestion of the Law Commission to make it comprehensive so that
even persons not attending the Court can be arrested or summoned as the
circumstances of the case may require and by deleting the words 'of which
such Court can take cognizance' and by adding clause (b) it is clarified that
the impleadment of a new person as an accused in the pending proceedings
E will not make any difference insofar as taking of cognizance is concerned.
In other words it is made clear that cognizance against the added person
would be deemed to have been taken as originally against the other
co-accused. It is thus clear that the difficulty in regard to taking of cog-
nizance which would have been experienced by the Court has been done
F away with. The section comes into operation at the post-cognizance stage
when it appears to the court from the evidence recm·ded at the trial that
any person other than those named as offenders appears to have com-
mitted any offence in relation to the incident for which the co-accused are
on trial.

G But counsel for the appellants contended that section 319 being a
self contained provision, the power thereunder can be exercised strictly in
terms of the section which permits the exercise of power only if 'it appears
from the evidence' in the course of the inquiry or trial of an offence, that
any person, besides the accused already put up for trial, has committed any
H offence arising from the incident in question. Counsel submitted that the
KISHUN SINGH v. STATE [AHMADI, J.] 41

power cannot be exercised before 'evidence' is led as the involvement of A
the person must appear from the evidence tendered at the trial because it
is at that stage that the court must apply its mind about the complicity of
the person not arraigned before it in the commission of the crime. He,
therefore, submitted that in the present case since the trial had not com-
menced and the prosecution had not led any evidence, the stage for the
exercise of the power had not reached.
B

In order to appreciate the contention urged before us, it is necessary
to notice a few provisions. 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 C
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) & (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 D
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
E
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.
Mere application of mind does not amount to taking cognizance unless the
magistrate does so for proceeding under Section 200/204 of the Code [See F
Jamuna Singh & Ors. v. Bhadai Sah, (1964) 5 SCR 37 at 40-41. It is,
therefore, obvious that if on receipt of a complaint under Section 154 of
the Code in regard to a cognizable offence, an offence is registered and
the concerned Police Officer embarks on an investigation and ultimately
submits a police report under Section 173 ofthe Code, the Magistrate may G
take cogniz3oce and if the offence is exclusively traiable by a Court of
0

Sessions, he must follow the procedure set out in Section 209. That section
provides that when in a case instituted on a police report, as defined in
section 2(r), or otherwise, the accused appears or is brought before the
Magistrate and it appears to the Magistrate that the offence is triable H
42 SUPREME COURT REPORTS [1993) 1 S.C.R.

A exclusively by the Court of Session, he shall commit the case to the Court
of Session and remand the accused to custody. Section 193 of the Old Code
and as it presently stands have a bearing and may be extracted at this stage:

"Old Code

B Section 193 - Cognizance of offences by Courts of Session - (1)
Except as othewise 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 jurisdic-
tion unless the accused has been committed to it by a
c Magistrate duly empowered in that behalf.

New Code
-
Section 193 - Cognizance of offences by Court of Sessions -
Except as otherwise expressly provided by this Code or by any
D other law for the time being in force, no Court of Session shall
take cognizance of any offence as a Court of original jurisdic-
tion unless the case has been committed to it by a Magistrate
under this Code.'

E 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:
F 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 .193 unless an accused was committed to the Court of Session the
G said court not take cognizance of an offence as a court of original jurisdic-
tion; now under section 193 as it presently stands once the case is com-
mitted the restriction disappears. More of it later but first the case law.

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
H jurisdiction unless the accused was committed to it by a Magistrate or there
· KISHUN SINGH v. STATE (AHMADI, J.] 43

was express provision in the Code or any other law to the contrary. In the A
I . context of the said provision this Court in P.C. Gulati v. LR. Kapur, (1966)
1 SCR 560 at p.568 observed as under :

'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
B
bad on a point oflaw, 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 c
take cognizance of the offence as a Court or original jurisdic-
tion and it is such a cognizance which is referred to in section
193 of the Code."

In Joginder Singh v. State of Punjab, AIR 1979 SC 339 = (1979) 2 D
SCR 306 the facts were that a c1 iminal case was registered against J oginder
Singh and four others on the allegation that they had committed house
tresspass and had caused injuries to two persons. During the investigation
the police found Joginder Singh and Ram Singh (the appellants in the case)
to be innocent and submitted a charge-sheet against the remaining three
persons only. The learned Magistrate who held a preliminary inquiry E
committed the three accused to the Court of Session whereupon the
Additional Sessions Judge, Ludhiana, framed charges against them. At the
trial evidence of two witnesses cam~ to be recorded during the course of
which the complicity of the two appellants came to light. Thereupon, at the
instance of the informant the Public Prosecutor moved an application for F
......, summoning and tr}'ing the two appellants along with the three accused who
were already arraigned before the court. The application was opposed
principally on the ground that the Sessions Judge had no jurisdiction or
power to summon the two appellants and direct them to stand their trial
along with the three persons already named in the police report. This
objection was negatived and the learned Additional Sessions Judge passed
G
an order, presumably under section 319 of the Code, directing the atten-
dance of the two appellants and further directing that they stand trial
) together with the three accused arraigned before the court. The High
Court dismissed the Revision Application whereupon the appellants ap-
proached this Court by special leave. The real question centered round the H
44 SUPREME COURT REPORTS [1993) 1 S.C.R.

A scope and ambit of section 319 of the Code. This Court after considering
the relevant provisions of the Old Code in juxta-position with similar
provisions in the New Code observed as under :

"It will thus appear clear that under Section 193 read with
Section 209 of the Code when a case is committed to the Court
B of Session in respect of an offence the Court of Session takes
cognizance of the offence and not of the accused and once the
Sessions Court '.s properly seized of the case as a result of the
committal order against some accused the power under Section
319(1) can come into play and such Court can add any person,
c not an accused before it, as an accused and direct him to be
tried along with the other accused for the offence which such
added accused appears to have committed from the e\idence
recorded at the trial."

D This view came to be reiterated in a recent decision of this Court in Sohan
Lal & Ors. v. State of Rajasthan, [1990) 4 sec 580. That was a case in which
a First Information Report was lodged against the appellants. On comple-
tion of the investigation the police forwarded a charge- sheet under section
173 of the Code. The Judicial Magistrate after taking cognizance ordered
discharge of appellants 4 and 5 and directed that the remaining 3 appel-
E !ants be charged only under section 427 IPC and not under Sections 147,
323, 325 and 336 in respect whereof the charge-sheet was forwarded. The
Additional Public Prosecutor, therefore, submitted an application signed
by one of the victims praying that on the basis of the entire evidence a
prima fade case was made out under sections 147, 325 and 336, IPC and
F requested that the charge be amended and the accused persons be charged
accordingly. After recording the plea of the accused the prosecution led
evidence an<1 examined witnesses. The learned Magistrate after bearing the
Additional Public Prosecutor and counsel for the defence and after dis-
cussing the evidence took cognizance of the other offences against the
appellants. The Revision Application preferred to the High Court was
G dismissed. This Court after considering the relevant provisions of the Code
concluded as under :

"Section 319 empowers the court to proceed against persons
not being the accused appearing to be guilty of offence. Sub-
H sections (1) and (2) of this section provide for a situation when
KISHUN SINGH v. STATE [AHMADI, J.] 45

a court hearing a case against certain accused person finds from A
the evidence that some person or persons, other than the
accused before it, is or are also connected in this very 9ffence
or any connected offence; and it empowers the court to proceed
against such person or persons for the offence which he or they
appears or appear to have committed and issue process for the
purpose. It provides that the cognizance against newly added
B
accused is deemed to have been taken in the same manner in
which cognizance was first taken of the offence against the
earlier accused. It naturally deals with a matter arising from
the course of the proceeding already initiated. The scope of

-·
the section is wide enough to include cases instituted on private C
complaint.'

The learned counsel for the appellants submitted that once a Court
- .., of Session tak~s cognizance in the limited sense explained in Gulati's case,
the power to summon or arrest a person not named in the police report D
can be exercised under Section 319 of the Code only if the condition
precedent, namely, the commencement of the trial and recording of
evidence, is satisfied. This, he contends, is manifest from the last-men-
tioned two cases in which the power was exercised only after the condition
precedant was satisfied and the complicity of a person not shown as an
offender in the police report surfaced from the evidence recorded in the E
course of the trial. That prima facie appears to be so but it must at the
same time be remembered that in both the cases the Court was not called
upon to consider whether a Court of Session to which a case is committed
for trial under Section 209 of the Code can, while taking cognizance,
summon a person to stand trial along with others even though he is not F
shown as an offender in the police report if the court on a perusal of the
case papers prima facie finds his complicity in the commission of the crime
and the omission of his name as an offender by the investigating officer not
proper.

On a plain reading of sub-section (1) of Section 319 there can be no G
doubt that it must appear from the evidence tendered in the course of any
inquiry or trial that any person not being the accu;ed has committed any
)~ offence for which he could be tried together with the accused. This power,
it seems clear to us, can be exercised only if it so appears from the evidence
at the trial and not otherwise. Therefore, this sub-section comtemplates H
46 SUPREME COURT REPORTS [1993) 1 S.C.R.

A existence of some evidence appearing in the course of trial wherefrom the
Court can prima facie conclude that the person not arraigned before it is
also involved in the commission of the crime for which he can be tried with
those already named by the police. Even a person who has earlier been
--
discharged would fall within the sweep of the power conferred by Secti.on-
319 of the Code. Therefore, stricto sensu, Section 319 of the Code cannot
B be invoked in a case like the present one where no evidence has been led
at a trial wherefrom it can be said that the appellants appear to have been
involved in the commission of the crime along with those already sent up
for trial by the prosecution.

c But then it must be conceded that Section 319 covers the post-
cognizance stage where in the course of an inquiry or trial the involvement
or complicity of a person or persons not named by the investigating agency
has surfaced which necessitates the exercise of the discretionary power
conferred by the said provision. Section 319 can be invoked both by the
D Court having original jurisdiction as well as the Court to which the case
has been committed or transferred for trial. The sweep of Section 319 is,
therefore, limited, in that, it is an· enabling provision which can be invoked
only if evidence surfaces in the course of an inquiry or a trial disclosing
the complicity of a person or persons other than the person or persons
already arraigned before it. If this is the true scope and ambit of Section
E 319 of the Code, the question is whether there is any other provision in the
Code which would entitle the Court to pass a similar order in similar
circumstances. The search for such a provision would be justified only on
the premiss that Section 319 is not exhaustive of all post-cognizance
stituations. Now as pointed out earlier Section 319 deals with only one
F situation, namely, the complicity coming to light from the evidence taken
and recorded in the course of an inquiry or trial. This may happen not
merely in cases where despite the name of a person figuring in the course
of investigation the investigating agency does not send him up for trial but
even in cases where the complicity of such a person comes to light for the
first time in the course of evidence recorded at the inquiry or trial. Once
G the purport of Section 319 is so understood it is obvious that the scope of
its operation or the area of its play would also be limited to cases where
after cognizance the involvement of any person or persons in the commis-
sion of the crime comes to light in the course of evidence recorded at the
inquiry or trial. Thus the Section does not apply to all situations and cannot
H be interpreted to be repository of all power for summoning such person or
KISHUN SINGH v. STATE [AHMADI, J.] 47

persons to stand trial along with others arraigned before the Court. A

The question then is whether dehors Section 319 the Code, can
similar power be traced to any other provision in the Code or can such
power be implied from the scheme of the Code? We have already pointed
out earlier the two alternative inodes in which the Criminal Law can be set
in motion: by the filing of information with the police under Section 154 of
B
the Code or upon receipt of a complaint or information by a Magistrate.
The former would lead to invr-stigation by the police and may culminate in
a police report under Section 173 of the Code on the basis whereof
cognizance may be taken by the Magistrate under Section 190( 1)(b) of the
c
-
Code. In the latter case, the Magistrate may either order investigation by
the police under Section 156(3) of the Code or himself hold an inquiry
under Section 202 before taking cognizance of the offence under Section
190(1)(a) or (c), as the case may be, read with Section 204 of the Code.
Once the Magistrate takes cognizance of the offence he may proceed to
try the offender (except where the case is transferred under Section 191) D
or commit him for trial under Section 209 of the Code if the offence is
triable exclusively by a Court of Session. As pointed out earlier cognizance
is taken of the offence and not the offender. This Court in Raghubans
Dubey v. State of Bihar, [1967] 2 SCR 423 = AIR 1%7 SC 1167 stated that
once cognizance of an offence is taken it becomes the Court's duty 'to find
out who the offenders really are' and if the Court finds 'that apart from E
the persons sent up by the police some other person are involved, it is his
duty to proceed against those persons' by summoning them because 'the
summoning of the additional accused is part of the proceeding initiated by
his taking cognizance of an offence'. Even after the present Code came
into force, the legal position has LOI undergone a change; on the contrary F
the ratio of Dubey's case was affirmed in Hariram Satpathy v. Tikaram
Agarwala, [1979) 1 SCR 349 = AIR 1978 SC 1568. Thus far there is no
difficulty.

We have now reached the crucial point in our journey. After cog-
nizance is taken under section 190(1) of the Code, in warrant cases the G
Court is required to frame a charge containing particulars as to the time
and place of the alleged offence and the person (if any) against whom, or
'( . the thing (if any) in respect of which, it was committed. But before framing
the charge section 227 of the Code provides that if, upon a consideration
of the record of. ihe case and th~ocuinents .......... submitted therewith, the H

.
.
,.,,,,..~

-~--
·-
,..,..,- .
;,."f-'~
.
48 SUPREME COURT REPORTS (1993) 1 S.C.R.

A Sessions Judge considers that there is not sufficient ground for proceeding ·
against the accused, he shall, for reasons to be recorded, discharge the
accused. It is only when the Judge is of opinion that there is ground for
presummg that the accused has committed an offence that he will proceed
to frame a charge and record the plea of the accused (vide, section 228).
It becomes immediately clear that for the limited purpose of deciding
B whether· or not to frame a charge against the accused, the judge would be
required to examine the record of the case and the documents submitied
therewith, which would comprise the police report, the statements of
witnesses recorded under section 161 of the Code, the seizure-memoranda,
· etc., etc. If, on application of mind for this limited purpose, the Judge finds
C that besides the accused arraigned before the him the complicity or invol-
vement of others in the commission of the crime prima facie surfaces from
the material placed before him, what course of action should he adopt?

The learned COUDSel for the State, therefore, argued that even if two
D views are' poSSJole, this being a matter of procedure not likely to cause
prejudice' to the person or persons proposed to be swiunoned, the court
should accept the view which would advance the cause of justice, namely,
to bring the real offender to book. If such an approach is not adopted, the
matter will slip into the hands of the investigation officer who may or may
· not send up for trial an offender even if prima facie evidence exists, which
E may in a given situation cause avoidable difficulties to the trial court. Take
for example acase where two persons A and B ~ttach and kill X and it is
found from the material placed before the Judge that the fatal blow was )..
given by A whereas the blow inflicted by B had fallen on a non-vital part
of the body of X. If A is not challaned by the police, the Judge may fmd
F' it difficult to charge B for the murder of x with the aid of section 34, !PC.
·If he cannot summon A, how does he frame the charge against B? In such
a case he may have to wait till evidence is laid at the trial to enable him to
invoke seCtion 319 of the Code. Then he would have to commence the
proeeedings afresh in respect of the added accused and recan the wit-
nesses.· ThiS, submitted COUDSel for the state, would result in avoidable
G Waste of public time. He, therefore, submitted that this Court should place

--
a construction which would advance the cause of justice rather than stiffle
~

We have already indicated earlier from the ratio of this Court's
•
H decisions in the cases of Raghubans Dubey and Hariram that once the rourt
KISHUN SINGH v. STATE [AHMADI, J.] 49

takes cognizance of the offence (not tlie offender) it becomes the court's A
duty to find out the real offenders and if it comes to the conclusion that
besides the persons put up for trial by the police some others are also
involved in the commission of the crime, it is the court's duty to summon
them to stand trial along with those already named, since summoning them
would only be a part of the process of taking cognizance. We. have also
B
pointed outthe difference in the language of section 193 of the two Codes;
under the old Code the Court of Session was precluded from taking
cognizance of any offence as a Court of original jurisdiction unless the
accused was committed to it whereas under the present Code the embargo
is diluted by the replacement of the words the accused by the words the
case. Thus, on a plain reading of section 193 as it presently stands once the c
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 D
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 pacic be gathered from the material available on
record. The Full Bench of the High Court of Patna rightly appreciated the
shift in section 193 of the Code from that under the old Code in the case E
of S.K. Lutfur Rahman (supra) as under :

"Therefore, what the law under section 193 seeks to visualise
and provide for now is that the whole of the incident constitut-
ing the offence is to be taken cognizance of by the Court of
F
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 per-
sons 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. G

••• ••• ••• •••
Once the case has been committed, the bar of section 193 is
removed or, to put it in other words, the condition therefore H
50 SUPREME COURT REPORTS f1993J 1 S.C.R.

A stands satisfied vesting the Court of Session with the fullest
jurisdiction to summon and individual accused of the crime.'"

We are in respectful agreement with the distinction brought out between
the old section 193 and the provision as it now stands.

B For the reasons stated above while as are in agreement with the
submission of the learned counsel for the appellants that the stage for the <
t'."
exercise of power under section 319 of the Code had not reached, inas-
much as, the trial had not commenced and evidence was not led, since the
Court of Session had the power under section 193 of the Code to summon
C the appellants as their involvement in the commission of the crime prima
facie appeared from the record of the case, we see no reason to interfere
with the impugned order as it is well-settled that once under it is found
that the power exists the exercise of power under a wrong provision will
not render the order illegal or invalid. We, therefore, dismiss this appeal.

V.P.R. Appeal dismissed.