R. N. AGARWALversusR. C. BANSAL & ORS.

                      (2014] 14 S.C.R. 1124


A                        R. N. AGARWAL
                                 v.
                      R. C. BANSAL & ORS.
             (Criminal Appeal No. 2199-2201 of2014)
B                      OCTOBER 14, 2014
      [M. Y. EQBAL AND PINAKI CHANDRA GHOSE, JJ.]
        Code of Criminal Procedure, 1973 - ss. 319, 5, 209
  and 193 - Power to proceed against other persons appearing
C to be guilty of offence - Charge-sheet filed by CBI before
  Special Judge against six persons, as regards offence of
  conspiracy- Order of summoning of six persons- Thereafter,
  application by accused before Special Judge for summoning
  of three more persons as accused, who had been cited by
  CBI as witnesses - Special Judge pas_sed an order of
0
  summoning the prosecution witnesses as also directed CBI
  to register case against Investigating Officer for letting off
  these persons - Said order quashed by the High Court -
  Sustainability of- Held: In terms of s. 5, the Special Judge
  may take cognizance of the offence without the accused being
E committed to him for trial- On facts, the Special Judge issued
  summons against the witnesses after considering in detail
  the material brought on record during investigation - Thus,
  the order passed by the High Court quashing issuance of
  summons by the Special Judge against the witnesses not
F sustainable - However, it was not necessary for the Special
  Judge to issue directions to CBI to register a case against
  the investigating officer.
         Allowing the appeals, the Court
G       HELD: 1.1 After completion of investigation, CBI
  filed charge-sheet in the Court of Special Judge to deal
  with the cases in the Prevention of Corruption Act, 1947
  as also under the Penal Code. The procedure and the
  powers of the Special Judge have been prescribed in
H Section 5 of the said Act. A bare reading of the provision
                              1124
        R. N.AGARWALv. R. C. BANSAL&ORS.                 1125


would show that the Special Judge may take cognizance A
of the offence without the accused being committed to
him for trial and the court of Special Judge shall be
deemed to be a court of session. The Special Judge in
trying the accused persons shall follow the procedure
prescribed by the Code of Criminal Procedure, 1973 for B
the trial of warrant cases by the Magistrate. Indisputably,
a person holding the post of either a Sessions Judge,
Additional Sessions Judge or Assistant Sessions Judge
is appointed as Special Judge and shall follow the
procedure prescribed in the Code for trial of warrant c
cases. [Para 22, 23][1141-D-E; 1142-G-H; 1143-A]
     1.2. The order passed by the Special Judge would
show that whi·le issuing summons against the
respondents, the Court had considered in detail the
material brought on record during investigation. D
[Para 29][1147-B-C]
     1.3 While passing the impugned order, the High
Court reversed the order passed by the Special Judge.
Prima facie, therefore, the impugned order passed by
the High Court quashing issuance of summons by the E ·
Special Judge against the respondents is erroneous in
law and cannot be sustained. However, at this stage it
was not necessary for the Special Judge to issue
directions to CBI to get a case registered against
the guilty officers who have investigated the case. F
[Para 31][1150-8-C]                      ·
      :Anirudh Sen v. State (2006) 3 JCC 2081 (Delhi);
     · Raj Kishore Prasad v. State .of Bihar 1996
    ·. (2 ) Suppl. scR 125 : (1996) 4 sec 495 ;
      . Dharam Pal v. State of Haryana (2014) 3 sec      G
    •. ~06; Hardeep Singh v. State of Punjab 2014 (2)
       •SCR 1 : (2014) 3 SCC 92 ; A.R. Antuley v.
       :Ramdas Srinivas Nayak 1984 (2) SCR 914 ;
        f1984) 2 SCC 500 ; Kishun Singh and Others v.
                                                          H
1126        SUPREME COURT REPORTS                 (2014] 14 S.C.R.


 A         State of Bihar 1993 (1) SCR 31 : (1993) 2 SCC
           16 ; Ranjit Singh v. State of Punjab 1998 (2)
           Suppl. SCR 8 : (1998) 7 SCC 149 ; Harshad S.
           Mehta v. State of Maharashtra 2001 (2) Suppl.
           SCR 577 : (2001) 8 SCC 257; State of T. N. v. V.
 B         Krishnaswami Naidu 1979 (3) SCR 928: (1979)
           4 SCC 5 ; Raghubans Dubey v. State of Bihar
           1967 SCR 423 : AIR 1967 SC 1167 ; Mis Swill
           Ltd. v. State of Delhi and Anr. 2001 (1) Suppl.
           SCR 527: (2001) 6 SCC 670; NisarandAnother
 c         v. State of U.P 1994 (5) Suppl. SCR 368: (1995)
           2 SCC 23 ; 1995 Crl LJ 2118 ; Raghubans Dubey
           v. State of Bihar (1967) 2 SCR 423 - referred to.
                     CASE LAW REFERENCE
       (2006) 3 JCC 2081           referred to .Para 8, 9, 14, 31
 D                             '
       1996 (2) Suppl. SCR 125 referred to Para 9, 14, 15
       (2014) 3 sec 306            referred to   Para 9, 18
       2014 (2) SCR 1              referred to   Para 9, 20.
       1984 (2) SCR 914            referred to   Para 11, 24
 E
       1993 (1) SCR 31             referred to   Para 16, 28
       1998 (2) Suppl. SCR 8       referred to   Para 17
       2001 (2) Suppl. SCR 577 referred to       Para 25
       1979 (3) SCR 928            referred to   Para 26
 F
       1967 SCR 423                referred to   Para 27
       2001 (1) Suppl. SCR 527 referred to       Para 30
       1994 (5) Suppl. SCR 368 referred to       Para 30
       (1967) 2 SCR 423            referred to   Para 30.
 G
           CRIMINAL APPELLATE JURISDICTION : Criminal
       Appeal No. 2199-2201 of2014.
            _From the Judgment and Order dated 02.02.2011 in
       CRLMC No. 2955/2009, 575/2009 and 3779/2009 passed
 H     by the High Court of Delhi at N. Delhi.
         R. N. AGARWAL v. R. C. BANSAL & ORS.                       1127


     Ajit Kumar Sinha, Sr. Adv., Anoop Kr. Srivastav, Gaurav        A
 Dhama, Rana Pratap Singh and Ms. Saakshi, Advs. for the
·Appellant.
     Atul Yeshwant Chitale, Sr. Adv., Basava Prabhu S. Patil,
Annam D. N. Rao, Ms. Neelam Jain, Ms. Vaishali R., Pradip
Kr. Ghosh, Mangal Jit Mukherjee, Sanjai Kumar Pathak, Rajiv         B
Nanda, Ms. Vaishnavi Rao, B.V. Bairam Das, Arvind Kumar
Sharma, Mrs. Priya Puri· and Ranjay Dubey, Advs. for the
Respondent.
     The Judgment of the Court was delivered by
                                                                    c
      M. Y. EQBAL, J.1. Leave granted.
     2. These appeals are directed against the judgment and
order dated 2.2.2011 passed by the High Court of Delhi in
Crl.M.C. Nos.2955 and 3779 of2009 and Crl.Rev.No. 575 of
2009, wherebyttie High Court of Delhi while quashing the order D
dated 10'" July, 2009 of the Special Judge, CBI Court Rohini,
allowed aforesaid Section 482 criminal petitions filed by the
alleged culprits and Section 397 criminal revision of the
Investigating Officer.
       3. The brieffacts of the case are that in the year 1983, a   E
Society named MaharaniAvanti Bai Co-operative Society was
formed and from time to time members were enrolled by its
Managing Committee. Upto the year 1989 there were 90
members of the Society and thereafter further enrolment of
members was stopped. However, no land was allotted to the           F
Society for many years and in the meantime its members
became disinterested in the running of the Society as the cost
of the flats to be constructed had gone very high and beyond
their reach. The society thus became dormant.
      4. Some persons who were .not members of the Society G
but were far-sighted and clever minded became interested to
take over its management and got the land allotted from Delhi
Development Authority (in short, 'DOA') to be utilized for the
benefits of their own persons. They forged certain records of
                                                                     H
1128         SUPREME COURT REPORTS                 [2014] 14 S.C.R.


 A the Society to show that many of the original members of the
   Society had resigned and a new Managing Committee had
   been constituted. By forged resignation letters of the original
   members of the Society, newmembers were shown .to have
   been enrolled and the forged records were submitted in the
 B office of the Registrar of Co-opera,tive Societies after entering
   into some kind of criminal under~tanding with the officials in
   that office. It is alleged that based on the forged documents,
   which included minutes purporting to be of the illegally
   constituted Managing Committee of the Society comprising
 C of all new members and also of General Body Meetings which
   were never held, ODA was approached for allotment of land
   with the assistance rendered by the Registrar of Co-operative
   Societies by certifying that all the l11eetings were duly held and
   a list of new members of the Soc;iety was forwarded to DOA.
 o Accepting the same, ODA allott13d a plot measuring 600 sq.
   meters to the Society in Dwarka for the benefit of the 90
   members of the Society in the year 1998. All these facts
   emerged during the investigatiom by CBI.
            5. On completion of the iiwestigation, the CBI filed a
 E     charge-sheet in the Court of Special Judge against six persons,
       out of whom two were public servants while other four were
       the members of the bogus Managing Committee of the Society,
       who had taken over the dormant Society by resorting to forgery
       etc.
 F       6. The Special Judge, CBI vide order dated 23'd July,
   2008, after perusing the material submitted by the CBI, took
   cognizance of the offences pun'ishable under Section 120-B,
   420, 468 and 471 of the Indian Penal Code (in short, 'JPC') as
   well as Section 13(1)(d) of the Prevention of Corruption Act,
 G and ordered summoning of six persons who had been named
   by the CBI in its charge-sheet as accused persons alleged fo
   have committed the offences in conspiracy with each Other.
   After all the accused persons entered appearance, the Special
   Judge furnished them copies of all the documents as per the
 H requirement of Section 207 of the Code of Criminal Procedure
         R. N.AGARWALv. R. C. BANSAL&ORS.                       1129
                  [M. Y. EQBAL, J.)

and, thereafter, the matter was adjourned to 9'h March, 2009. A
However, before the next date of hearing, accused R.N.
Aggarwal moved an application under Section 190 read with
Section 193 Cr.P.C. before the Special Judge for summoning
three more persons, namely, Madan Sharma (PW-21), Ms.
Sujata Chauhan (PW-23) and R.c: Bansal (PW-30) as B
accused, who had been cited by the CBI as its witnesses. The
learned Special Judge kept that application for consideration
on 9'h March, 2009. However, on that day the matter was
adjourned to 5'" May, 2009 for arguments on charge without
mentioning anything about the application which had been c
moved by the accused R.N. Aggarwal. Special Judge heard
arguments on that application on 5th June, 2009 anq then by
order dated 1o•h July, 2009 allowed that application and
summoned the prosecution witnesses Madan Sharma, Sujata
Chauhan and R.C. Bansal and also directed the Director of D
CBI to get a case registered against the Investigating Officer
of the case under Section 217, IPC for letting off these three
persons.
      7. Aggrieved by order dated 1Oth July, 2009, prosecution
witnesses Sujata Chauhan and R.C. Bansal (respondents E
herein) approached the High Court by filing separate petitions
under Section 482, Cr.P,C. read with Article 227 of the
Constitution of India. CBI, feeling aggrieved by the direction
given by the Special Judge in the impugned order for
registration of a criminal case against the investigating officer, F
also approached the High Court by way of a revision petition.
      8. Learned Single Judge of the High Court, while
considering the order passed by the Special Judge, held that
the case is squarely covered by the decision of the Delhi High
Court in the case of Anirudh Sen vs. State, (2006) 3 JCC G
2081 (Delhi), and consequently quashed the order passed by
the Special Judge.
    9. Mr. Ajit Kumar Sinha, learned senior counsel
appearing for the appellant assailed the impugned order
                                                                  H
1130       SUPREME COURT REPORTS                [2014] 14 S.C.R.


 A passed by the High Court as being'illegal.and wholly without
   jurisdiction. Learned counsel submitted that the learned single
   Judge of the High Court relied upon the decision of Delhi High
   Court in Anirudh Sen's case (supra), which followed the ratio
   decided by this Court in Raj Kishore Prasad vs. State of
 B Bihar, (1!'l96)4 SCC 495, and held' that the Magistrate has no
   jurisdiction to summon the persons shown in column 4 of the
   charge-sheet. Mr. Sinha, learned :counsel further submitted
                                  . Court in the case of Dharam
   that a Constitution Bench of this  .

   Pal vs. State of Haryana, (2014) 3 SCC 306; after
 c considering various judgments overruled the decision rendered
   in Raj Kishore Prasad's case (supra). Learned counsel
   submitted that the Magistrate is empowered to summon other
   accused persons even before th~ examination of witnesses.
   Mr. Sinha also relied upon another,Constitution Bench decision
 o of this Court in Hardeep Singh vs. State of Punjab, (2014)
   3 SCC 92, and submitted that the Constitution Bench agreed
   with the view taken in Dahram Pal's case (supra).
          10. Mr. Basava Prabhu Patil, learned senior counsel
   appearing forthe respondent, on the other hand submitted that
 E once cognizance was taken by the Magistrate, it has no
   jurisdiction to summon the persons shown in column 4 of the
   charge-sheet. Learned counsel submitted that the ratio
   decided by the Constitution Bench in Dharam Pal's case is
   not c;ipplicable in the facts of therpresent case.
 F       11. Mr. Pradeep K. Ghos~. learned counsel appearing
   for the respondent no.8, relied, on the decision rendered in
   A.R.Antu/ey vs. Ramdas Srinivas Nayak, (1984) 2 SCC
   500, and submitted that in the e<1se pending before the Special
   Judge, Section 193 of the Code will not be attracted and it
 G has no role to play.
         12. Mr. Atul Chitley, learned senior counsel appearing ·
   for C.B.I., contended that the ,CBI has acted in a bona fide
   manner and, therefore, the observations made by the Special
 H Judge and directions issued t0 register the case against the
   officers does not arise.
         R. N. AGARWAL v. R. C. BANSAL & ORS.                 1131
                     [M. Y. EQBAL, J.]

     13. We have considered the submissions made by the        A
learned counsel appearing for the parties.
       14. In Anirudh Singh's case (supra), charge-sheet was
filed showing the petitioner in column 2 as there was no material
available against the petitioner. The Magistrate summoned
only those accused shown in column 4 of the charge-sheet. B
The successor Magistrate, however, later on summoned
persons, including petitioner, who were shown in column 2 of
the charge-sheet. The High Court fully relied upon the decision
of this Court in Raj Kishore Prasad case (supra) and held that
the Magistrate had no jurisdiction to summon the petitioner of C
that case since no new material/evidence had been collected
in the course of trial.
      15. In Raj Kishore Prasad's case, this Court came to the
conclusion that power under Section 209, Cr.P.C. to summon
a new offender was not vested with the Magistrate on the plain D
reading of its text as well as proceedings before him not being
an 'inquiry' and the material before him not being 'evidence'.
The question considered by this Court was whether the
undertaking under Section 209, Cr.P.C. of a case triable by a
Court of Sessions, associate another person as an accused E
in exercise of power under Section 319 of the Code or any
other provision of Cr.P.C. Answering the question this Court
held as under:-
      "16. Thus we come to hold that the power under Section F
      209 CrPC to summon a new offender was not vested
      with a Magistrate on the plain reading of its text as well
      as proceedings before him not being an 'inquiry' and
      material before him not being 'evidence'. When such
      power was not so vested, his refusal to exercise it cannot G
      be corrected by a Court of Revision, which may be the
      Court of Session itself awaiting the case on commitment,
    · m.erely on the specious ground that the Court of Session
      can, in any event, summon the accused to stand trial,
      along with the accused meant to be committed for trial
                                                                 H
1132       SUPREME COURT REPORTS                  [2014] 14 S.C.R.


 A        . before it. Presently it is plain that the stage for
         ' employment of Section 319 CrPC has not arrived. The
            order of the Court of Session requiring the Magistrate to
            arrest and logically commit the appellant along with the
            accused proposed to be committed to stand trial before
 B          it, is patently illegal and beyond jurisdiction. Since the
            Magistrate has no such power to add a person as
            accused under Section 3'19 CrPC when handling a
            matter under Section 209 CrPC, the Court of Session,
            in purported exercise of' revisional powers cannot
 C          obligate it to do so. The question posed at the outset is ·
            answered accordingly in this light. When the case comes
            after commitment to the Court of Session and evidence
            is recorded, it may then in 'exercise of its powers under
            Section 319 CrPC on the basis of the evidence recorded
. D.        by it, if circumstances warranting, proceed against the
            appellant, summon him for the purpose, to stand trial
            along with the accused committed, providing him the
            necessary safeguards envisaged under sub-section (4)
            of Section 319. Such course is all the more necessary in
 E          the instant case when expressions on merit have
            extensively been made iri the orders of the MagJstrate,
            the Court of Session and that of the High Court. Any.other
            course would cause serious prejudice to the appellant.
            We order accordingly."
 F        16. In the case of Kishurl Singh and Others vs. State
    of Bihar, (1993) 2    sec       a
                                 16, Division Bench of this Court
  . was considering the questlc)n as to whether a Court of
    Sessions, to which a case is committed for trial by a Magistrate,
    without itself recording evidence, summon a person not named
 G in the police report presented under Section 173 Cr.P..C. to
    stand trial along with those already named therein, in exercise
    of power conferred by Section 319 of the Code. , While                !-
    answering the question this Court considered• various
    provisions of the Code and came to the following conclusion:-
 H
                                               •

   R. N.AGARWALv. R. C. BANSAL&ORS.                           1133
            [M. Y. EQBAL, J.]

"13. The question then is whether de hors Section 319         A
of 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 modes in which the Criminal
Law.can be set in motion; by the filing of information with   B
the police under Section 154 of the Code or upon receipt
of a complaint or information by a Magistrate. The former
would lead to investigation 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          C
the Magistrate under Section 190(1 )(b) of the 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)     o
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) or commit
 him for trial under Section 209 of the Code if the offence   E
 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
 Biharstated that once cognizance of an offence is taken
 it becomes the Court's duty 'to find out who the offenders   F
 really are' and if the Court finds 'that apart from the
 persons sent up by the police some other persons are
jnvolved, it is its duty to proceed against those persons'
by summoning them because 'the summoning of the
 additional accused is part of the proceeding initiated by    G
 its taking cognizance of an offence'. Even after the
 present Code came into force, the legal position has not
 undergone a change; on the contrary the ratio of Dubey
 case was affirmed in Hareram Satpathy v. Tikaram
Agarwala. Thus far there is no difficulty.
                                                               H
           •

1134   SUPREME COURT REPORTS                   (2014] 14 S.C.R.


 A     14. We have now reached the crucial point in our journey.
       After cognizance is taken under Section 190(1) of the
       Code, in warrant-cases the 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,
 B     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 the
       case and the documents submitted therewith, the
       Sessions Judge considers that there is not sufficient
 C     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
       presuming that the accused has committed an offence
       that he will proceed to frame a charge and record the
 o     plea of the accused (vide Section 228). It becomes
       immediately clear that for the lil)'1ited purpose of deciding
       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
 E     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 that besides the
       accused arraigned before him the complicity or
 F     involvement of others in the commission of the crime
       prima facie surfaces from the material placed before him,
       what course of action should he adopt?
       16. We have already indicated earlier from the ratio of
       this Court's decisions in the cases of Raghubans Dubey.
 G     and Hareram that once the court takes cognizance of
       the offence (not 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
 H     commission of the crime, it is the court's duty to summon
   R. N.AGARWALv. R. C. BANSAL&ORS.                        1135
            [M. Y. EQBAL, J.]

them to stand trial along with those already named, since A
summoning them would only be a part of the process of
taking cognizance. We have also pointed out the
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 B
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 case is C
 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 D
 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 E
 of the crime can prima facie 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
 of Sk. Lutfur Rahman as under:                              F
  ''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 G
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 .... Once the case has been committed, the bar of H
1136         SUPREME COURT REPORTS                   [2014] 14 S.C.R.


 A          Section 193 is removed or, to put it in other words, the
            condition therefore stands satisfied vesting the Court of
            Session with the fullest jurisdiction to summon any
            individual accused of the crime."
            We are in respectful agreement with the distinction
 B          brought out between the old Section 193 and the·
            provision as it now stands."
            17. The ratio laid down in Kishun Singh's case (supra)
       and Raj Kishore's Prasad's case (supra) came for.
 C     consideration before a three Judge Bench of this Court inthe
       case of Ranjit Singh vs. State of Punjab, ( 1998) 7 SCC
       149. Disapproving the judgment in Kishun Singh's case
       (supra), the Full Bench of this Court relied upon Raj Kishore
       Prasad's case (supra), and held :-

 D          "19. So from the stage of committal till the Sessions Court
            reaches the stage indicated in Section 230 of the Code,
            that court can deal with only the accused referred to in
            Section 209 of the Code. There is no intermediary stage
            till then for the Sessions Court to add any other person
            to the array of the accused.
 E
             20. Thus, once the Sessions Court takes cognizance of
             the offence pursuant to the committal order, the only other
             stage when the court is empowered to add any other
             person to the array of the accused is after reaching
 F           evidence collection when powers under Section 319 of
             the Code can be invoked. We are unable to find any other
             power for the Sessions Court to permit addition of new
             person or persons to the array of the accused. Of course
           . it is not necessary for the court to wait until the entire
 G           evidence is collected for exercising the said powers.
                                      xxxxxxx
            24. For the foregoing reasons, we find it difficult to support
            the observations in Kishun Singh case that powers of
            the Sessions Court under Section· 193 of the Code to
 H          take cognizance of the offence would include the
         R. N. AGARWAL v. R. C. BANSAL & ORS.                     1137
                   [M. Y. EQBAL, J.]

     summoning of the person or persons whose complicity          A
     in the commission of the trial can prima facie be gathered
     from the materials available on record."
      18. A similar matter came for consideration before a three
Judge Bench of this Court in Dharam Pal Singh's case (supra)
since the conflicting view expressed by this Court in· Ranjit B
Singh' case and Kishun Singh's case, the matter was
referred to the Constitution Bench of this Court. The question ·
has now been finally set at rest by the Constitution Bench in
Dharam Pal Singh's case, (2014) 3 SCC 306.
     19. The Constitution Bench has overruled the ratio           C
decided in Ranjit Singh's case (supra) and Raj Kishore
Prasad's case and held that the ratio laid down in Kishun
Singh's case (supra) has been correctly decided. Th.e
Constitution Bench held as under:-
                                                                  D
     "34. The view expressed in Kishun Singh case, in our
     view, is more acceptable since, as has been held by this
     Court in the cases referred to hereinbefore, the
     Magistrate has ample powers to disagree with the final
     report that may be filed by the police authorities under E
     Section 173(2) of the Code and to proceed against the
     accused persons dehors the police report, which power
     the Sessions Court does not have till the Section 319
     stage is reached. The upshot of the said situation would
     be that even though the Magistrate had powers to · F
     disagree with the police report filed under Section 173(2)
     of the Code, he wa's helpless in taking recourse to such
     a course of action while the Sessions Judge was also
     unable to proceed against any person, other than the
     accused sent up for trial, till such time evidence had been G
     adduced and the witnesses had been cross-examined
     on behalf of the accused.
     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          H
1138    SUPREME COURT REPORTS                  [2014] 14 S.C.R.


 A     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
 B     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
 c     to the Court of Session to proceed further in the matter.
                               xxxxxxxxxxx
       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
 D
       the Court of Session. It is well settled that cognizance of
       an offence can only be taken once. In the event, a
       Magistrate takes cognizance of the offence and then
       commits the case to the Court of Session, the question
       of taking fresh cognizance of the offence and, thereafter,
 E     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 t~e case is committed to the
 F     Court of Session by the learned Magistrate, the Court of
       Session assumes original jurisdiction and all that goes
       with the assumption of such jurisdiction. The provisions
       of Section 209 will, therefore, have to be understood as
       the learned Magistrate playing a passive role in
 G     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.
 H
        R. N. AGARWAL v. R. C. BANSAL & ORS.                   1139
                     [M. Y. EQBAL, J.. ]

     40. In that view of the matter, we have no hesitation in A
     agreeing with the views expressed in Kishun Singh case
     that the Sessions Cqurt has jurisdiction on committal of
     a case to it, to take cognizance of the offences of the
     persons not named as offenders but whose complicity
     in the case would be evident from the materials available B
     on record. Hence, even without recording evidence, upon
     committal under Section 209, the Sessions Judge may
     summon those persons shown in column 2 of the police
     report to stand trial along with those already named
     therein·."                                                C
     20. In another Constitution Bench judgment in Hardeep
Singh vs. State of Punjab, (2014) 3 SCC 92, this Court while
discussing the powers of the Court concurred with the view
taken in Dharam Pal's case and observed as under:-
           "53. It is thus aptly clear that until and unless the D
     case reaches the stage of inquiry or trial by the court, the
     power under Section 319 CrPC cannot be exercised. In
     fact, this proposition· does not seem to have been
     disturbed by the Constitution Bench in Dharam Pal (CB).
     The dispute therein was resolved visualising a situation E
     wherein the court was concerned with procedural delay
     and was of the opinion that the Sessions Court should
     not necessarily wait till the stage of Section 319 CrPC is
     reached to direct a person, not facing trial, to appear
     and face trial as an accused. We are il'.l full agreement F
     with the interpretation given by the Constitution Bench
     that Section 193 CrPC confers power of original
     jurisdiction upon the Sessions Court to add an accused
     once the case has been committed to it:
                                                                  G
           54. In our opinion, the stage of fnquiry does not
     contemplate any evidence in its strict legal sense, nor
     could the legislature have contemplated this inasmuch
     as the stage for evidence has· not yet arrived. The only
     material that the court has before it is the material
                                                                 H
1140         SUPREME COURT REPORTS                   [2014] 14 $.C.R.


 A         . collected by the prosecution and the court at this stage
             prima facie can apply its mind to find out as to whether a
             person, who can be an accused, has beeh erroneously
             omitted from being arraigned or has been deliberately
             excluded by the prosecuting agencies. This is all the more
 B           necessary in order to ensure that the investigating and
             the prosecuting agencies have acted fairly in bringing
             before the court those persons who deserve to be tried
             and to prevent any person from being deliberately
             shielded when they ought to have been tried. This is
 c           necessary to usher faith in the judicial system whereby
             the court should be empowered to exercise such powers
             even at the stage of inquiry and it is for this reason that
             the legislature has consciously used separate terms,
             namely, inquiry or trial in Section 319 CrPC."
 D          21. The Constitution Bench further answered the question
       as under:-
                  "117.1. In Dharam Pa/case, the Constitution Bench
            has already held that after committal, cognizance of an
            offence can be taken against a person not named as an
 E          accused but against whom materials are available from
            the papers filed by the police. after completion of the
            investigation. Such cognizance can be taken under .
            Section 193 Cr.PC and the Sessions Judge need not
            wait till "evidence" under Section 319. CrPC becomes
 F          available for summoning an additional accused.
                   117.2. Section 319 Cr.PC, significantly, uses two
            expressions that have to be taken note of i.e. ( 1) inquiry
            (2) trial. As a trial commences after framing of charge,
            an inquiry can only be understood to be a pre-trial inquiry.
 G
            Inquiries urider Sections 200, 201, 202 CrPC, and under
            Section 398 Cr. PC are species of the inquiry ·
            contemplated by Section 319 CrPC. Materials coming
            before the court in course of such inquiries can be used
            for corroboration of the evidence recorded in the court
 H
         R. N.AGARWALv. R. C. BANSAL&ORS.                           1141
                  [M. Y. EQBAL, J.]

     after the trial commences, for the exercise of power under A
     Section 319 Cr. PC, and also to add an accused whose
     name has been shown in Column 2 of the charge-sheet.
             117.3. In view of the above position the word
     "evidence" in Section 319 CrPC has to be broadly
     1,1nderstood and not literally i.e. as evidence brought during B
     a trial.
             117.4. Considering the fact that under Section 319·
       CrPC a person against whom material is disclosed is
       only summoned to face the trial and in such an event under C
       Section 319(4) CrPC the proceeding against such
       person is to commence from·. the stage of taking of
       cognizance, the court need not wait for the evidence
       against the accused proposed to be summoned to be
       tested by cross-examination."
                                                                  D
       22. As noticed above, after completion of investigation, .
CBI filed charge-sheet in the Court of Special Judge to deal
with the cases in the Prevention of Corruption Act, as also under
the Indian Penal Code. The procedure and the powers of the
Special Judge have been prescribed in Section 5 of the said E
Act. For better appreciation, Section 5 of the Act is reproduced
hereinbelow:-
     "5. Procedure and powers of special Judge.-
     ( 1) A special Judge may take cognizance of offences
     without the accused being committed to him for trial and,       F
     in trying the accused persons, shall follow the procedure
     prescribed by the Code of Criminal Procedure, 1973 (2
     of 1974), for the trial of warrant cases by the Magistrates.
     (2) A special Judge may, with a view to obtaining the
     evidence of any person supposed to have been directly G
     or indirectly concerned in, or privy to, an offence, tender.
     a pardon to such person on condition of his making a full
     and tru~ disclosure of the whole circumstances within
     his knowledge relating to the offence and to every other
     person concerned, whether as principal or abettor, in the H
1142         SUPREME COURT REPORTS                  (2014] 14 S.C.R.


 A          commission thereof and any pardon so tendered shall,
            forthe purposes of sub-sections (1) to (5) of section 308
            of the Code of Criminal Procedure, 1973 (2of1974), be
            deemed to have been tendered ·under section 307 of
            that Code.
 B          (3) Save as provided in sub-section (1) or sub-section
            (2), the provisions of the Code of Criminal Procedure,
            1973 (2of1974), shall, so far as they are not inconsistent
            with this Act, apply to the proceedings before a special
            Judge; and for purposes of the said provisions, the Court
 c          of the special Judge shall be deemed to be a Court of
            Session and the person conducting a prosecution before
            a special Judge shall be deemed to be a public
            prosecutor.
            (4) In particular and without prejudice to the generality of.
 D          the provisions contained in sub-section (3), the provisions
            of sections 326 and 475 of the Code of Criminal
            Procedure, 1973 (2 of 1974), shall, so far as may be,
            apply to the proceedings before a special Judge and for
            the purposes of the said provisions, a special Judge shall
 E          be deemed to be a Magistrate.
            (5) A special Judge may pass upon any person convicted
            by him any sentence authorised by law for the punishment
            of the offence of which such person is convicted.
            (6) A special Judge, whiletrying an offence punishable
 F
            under thisAct, shall exercise all the powers and functions
            exercisable by a District Judge under the Criminal Law
            Amendment Ordinance, 1944 (Ord. 38of1944)."
              23.Abare reading of the provision would show that the
 G     special judge may take cognizance of the offence without the
       accused being committed to him for trial and the court of special
       judge shall be deemed to be a court of session. The special
       judge in trying the accused persons shall follow the procedure
       prescribed by the Code of Criminal Procedure, ~ 973 for the
 H     trial of warrant cases by the Magistrate. Indisputably, a person
         R. N.AGARWALv. R. C. BANSAL&ORS.                        1143
                  [M. Y. EQBAL, J.]

holding the post of either a Sessions Judge, Additional           A
Sessions Judge or Assistant Sessions Judge is appointed
as Special Judge and shall follow the procedure prescribed in
the Code for trial of warrant cases.
     ·24.The constitution Bench in the case of A.R. Antuley
(supra), was of the view that the special judge appointed under B
the Prevention of Corruption Act, enjoys all powers conferred
on the Court of original jurisdiction functioning under the High
Court except those specifically conferred under the Act. The
Bench observed:-
       "27 ........ While setting up a Court of a Special Judge C
       keeping in view the fact that the high dignitaries in public
       life are likely to be tried by such a court, the qualification
       prescribed was that the persori to be appointed as
       Special Judge has to be either a Sessions Judge,
   · Additional Sessions Judge or Assistant Sessions Judge. D
   :These three dignitaries are above the level of a
      .Magistrate. After prescribing the qualification, the
       Legislature proceeded to confer power upon a Special
   , Judge to take cognizance of offences for the trial of which
   · a special court with exclusive jurisdiction was being set E
   :: \1p. If a Special Judge has to take cognizance of offences,
   ,-::ipso facto the procedure for trial of such offences has to
    : 'be prescribed. Now the Code prescribes different
       procedures for trial of cases by different courts.
       Procedure for trial of a case before a Court of Session F
       is set out in Chapter XVIII; trial of warrant cases by
    .. Magistrates is set out in Chapter XIX and the provisions
    • _therein included catered to both the types of cases
   , coming before the Magistrate, namely, upon police report
      .or otherwise than. on a police report. Chapter XX G
       prescribes the procedure for trial of summons cases by
       Magistrates and Chapter XXI prescribes the procedure
   .. for summary trial. Now that a new criminal court was being
       set up, the Legislature took the first step of providing its
   .. comparative position in the hierarchy of courts under H
1144         SUPREME COURT REPORTS                    [2014] 14 S.C.R.


 A          Section 6 CrPC by bringing it on level more or less
            comparable to the Court of Session, but in order to avoid
            any confusiqn arising out of comparison by level, it was
            made explicit in Section 8( 1) itself that it is not a Court of
            Session because it can take cognizance of offences
 B          without commitment as contemplated by Section 193
            CrPC. Undoubtedly in Section 8(3) it was clearly laid down
            that subject to the provisions of sub-sections (1) and (2)
            of Section 8, the Court of Special Judge shall be deemed
            to be a Court of Session trying cases without a jury or
 c          without the aid of assessors."
         25. In the case of Harshad S. Mehta vs. State of
   Maharashtra, (2001) 8 SCC 257, the Bench while dealing
   with the case under the Special Court (Trial of Offences Relating
   to Transactions in Securities)Act; 1992 observed that special
 D court is a Court of exclusive jurisdiction in respect of offences
   under Section 3(2) of the Act, like special court under Prevention
   of Corruption Act it has original criminal jurisdiction. The special
   court per se is not a Magistrate and also it is not a court to
   which the commitment of a case is made.
 E          26. In the case of State of T.N. vs. II. Krishnaswami
       Naidu, (1979) 4 SCC 5, this Court while answering a question, .
       as to whether the special judge under the Criminal Law
       (Amendment) Act, 1952 can exercise the power conferred on
       a Magistrate under Section 167 Cr.P.C. to authorise the
 F     detention of the accused in the custody of police; held that a
       special judge is empowered to take cognizance of the offence
       without the accused being committed to him for trial. Their
       Lordship observed:-
            "5. It may be noted that the Special Judge is not a
 G
            Sessions Judge, Additional Sessions Judge or an
            Assistant Sessions Judge under the Code of Criminal
            Procedure though no person ca.n be appointed as a
            Special Judge unless he is or has been either a Sessions
            Judge or an Additional Sessions Judge or an Assistant
 H
         R. N. AGARWAL v. R. C. BANSAL & ORS.                    1145
                      [M. Y. EQBAL, J.]

     Sessions Judge. The Special Judge is empowered to A
     take cognizance of the offences without the accused
     being committed to him for trial. The jurisdiction to try the
     offence by a Sessions Judge is only after committal to
     him. Further the Sessions Judge does not follow the
     procedure for the trial of warrant cases by Magistrates. B
     The Special Judge is deemed to bea Court of Session
     only for certain purposes as mentioned in Section 8(3)
     of the Act while the first part of sub-section 3 provides
     that except as provided in sub-sections (1) and (2) of
     Section 8 the provisions of the Code of Criminal C
     Procedure, 1898 shall, so far as they are not inconsistent
     with this Act, apply to the proceedings before the Special
     Judge."
       27. In the case of Raghubans Dubey vs. State of Bihar,
AIR 1967 SC 1167, this Court while dealing with the similar      D
matter held that once cognizance has been taken by the
Magistrate, he takes cognizance of an offence and not the
offender's and once he comes to.the conclusion that apart from
the persons sent by the police some other persons are
involved, it is his duty to proceed against those persons. The    E
summoning of the additional accused is part of the proceeding
initiated by his taking cognizance of an offence.
     28. In the case cif Kishlhl Si11gh vs. State of Bihar
(supra), the scope and power of a Court under Sections 193,
209 and 319 observed as:-                                   F
            "16. We have already indicated earlier from the ratio
     of this Court's decisions in the cases of Raghubans
     Dubey and· Hareram that once the court takes
     cognizance of the offence (not the offender) it becomes G
     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
                                ~··                               H
1146   SUPREME COURT REPORTS                   [2014] 14 S.C.R.


 A     named, since summoning them would only be a part of
       the process of taking cognizance. We have also pointed
       out the_,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
 B     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 case is
 C     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
 D     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
 E     of the crime can prima facie be gathered from the
       material available ori record. The Full Bench oftheHigh
       Court of Patna rightly appreciated the shift in Section
       193 of the Code from that under the old Code in the case
       of Sk. Lutfur Rahman as under:
 F           "Therefore, what the law under Section 193 seeks
       to visualise and provide for now is that the whole of the
       incident constituting the offerice 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
 G     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 .... Once the case has been committed, the bar of
 H     Section 193 is removed or, to put it in other words, the .
         R. N.AGARWALv. R. C. BANSAL&ORS.                         1147
                      [M. Y. EQBAL, J.]

     condition therefore stands satisfied vesting t~e Court of A
     Session with the fullest jurisdiction to summon any
     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
      29. The order passed by the Special Judge would show
that while issuing summons against the respondents the Court
has considered in detail the material brought on record during
investigation. We would like to refer some of the paragraphs,     C
which are quoted hereinbelow:-
     "14. During investigation. It was also r~vealed that Sh.
     Ram Narain Aggarwal got procured the various false
     documents in order to regularize the society fraudulently,
     which was submitted to the office of the RCS. The details    0
     of the documents are as follows:-
     Proceedings of general body meetings dated 15-11-
     1998 and 23-01-2000.
     Proceedings register having proceedings with effect
     from22-11-1998. ·                                            E
     Membership register having members numbers 101
     onwards.
     15. Proceedings of General Body Meeting (GBM) dated
     15-11-1998 which shown to be held in the office of the F
     society at 30~. 3"' Floor, C-50, Vasant Tower Community
     Centre, Janak Puri where the approval of resignation of
     46 members and enrollment of 35 new members during
     the period of 1996-97 by the managing committee was
     falsely shown. Similarly, proceeding of GBM dated 23- G
     01-2000 falsely show approval of regisnation of 10
     promoter members by the managing committee. In that
     GBM, false election of managing committee was shown
     to be conducted, in which, Sh. OP Aggarwal- the
     President, Sh. Anil Kumar Sharma- Vice President and H
1148    SUPREME COURT REPORTS                   [2014] 14 S.C.R:


 A      all other members of the managing committee of the
        society, whose name are Sh. R.N. Aggarwal, Ms. Sujata
        Chauhan, Sh. Sudhir Aggarwal, Sh. CL Bansal and Ms.
        Janak are shown to be elected by showing conducting
        false elections of the management committee. The
 B      signature of Sh. Sudhir Aggarwal is forged on these
        proceedings of GBM dated 15-11-1998, 23-1-2000
        which are written by Ms. Sujata on the instance of Sh.
        RN Aggarwal.
                                I
       · 16. It was also revealed that Sh. Mlshri Lal Lodhi and Sh.
 c       Bhupinder Kumar, the then president and secretary of
        the society respectively had never approved the
         resignation of the promoter members and enrollment of
         new members during the year 1996-97 as shown in GBM
        dated 15-11-1998.        '
 D      17. After obtaining demand letter dated 21-9-1998 from
        ODA, a post letter dated 2-11-1998 under the signature
        of SH. Bhupinder Kumar, Secretary of the society was
        submitted fraudulently to the commissioner (Housing),
        ODA, New Delhi, whereby more time was sought for
 E      making payment.
         1'8. Investigation further revealed that Sh. RN Aggarwal
         in pursuance of criminal consipray with Sh. Bhim Singh
         Mahur fraduently obtained a letter dated 15-11-1998
         signed by Sh. Mishri Lal (President), Sh. Bhupinder
 F
       · Kumar (Secretary) and Smt. Kela Devi (Treasurer) and
         sent the same to the Manager, Delhi State Cooperative
         Bank Ltd., Dariya "Ganj, New Delhi falsely stated therein
         that Sh. Anil Kumar Sharma, Sh. RN Aggarwal and Sh.
         Om Prakash Aggarwal have been elected as President,
 G
         Secretary and Treasurer respectively in the new
         Managing Committee of the said society and the said
         office bearer have been authorized to operate the bank        I
                                                                      ·1
         accounts of the said society and this way all the above

 H
         R. N.AGARWALv. R. C. BANSAL&ORS.                            1149
                  [M. Y. EQBAL, J.]

     named accused had fraudulently taken over control of A
     the operation of the bank account of the said society.
     xxxxxxx
      20.      Investigation further revealed that Sh. Ganesh
      Jha, a promoter member of the society lodged
                                                                 8
      complaints dated 26.6.2000 and 5.10.2000 to the office
    · of RCS, New Delhi alleging therein that the society had
      not intimated him for allotment of land by ODA nor
      demanded his share of contribution towards costs of land
      and he suspected that the Secretary fraudulently
      manipulated the membership register. The society has C
      secretly shifted the registered office without holding any
      meeting of the members, nor called him to attend any
      meeting of the society with some ulterior motive.
     21. It is also revealed in the investigation that Sh. Leela     0
     Krishan Seth appointed Sh. Jafar Iqbal for conducting
     verification on the allotments made in the complaints who
     gave a false verification report at the behest of Sh. R.N.
     Aggarwal in which he fraudulently certified that election
     were satisfactorily held by society on 15.11.98 and             E
     facilitated dishonestly the accused persons by giving
     them clean chit to the society.
     22. Investigation also disclosed that person to the
     aforesaid criminal conspiracy Leela Krishna Seth the then
     Assistant Registrar, Sh. Jafar Iqbal, the then Inspector        F
     Grade-Ill by abusing their official position by entering into
     criminal conspiracy with sh. R. N. Aggarwal and Sh. O.P.
     Aggarwal with the intention to cheat ODA got allotment
     and possession of land from DOA in favour of the society."
     30. The Special Judge considering all those materials G
brought on record during investigation and relying upon the
decisions of this Court in the case of Mis Swill Ltd. vs. State
of Delhi and Anr., (2001) 6 SCC 670; Nisar and Another
vs. State ofU.P., (1995) 2 SCC 23;1995 Crl LJ 2118; Kishan
Singh vs. State of Bihar (supra); Raghubans Dubey vs. H
1150          SUPREME COURT REPORTS                (2014] 14 S.C.R.


 A     State of Bihar, (1967) 2 SCR 423, came to the conclusion
       that the.respondents are involved in the commission of offence
       ahd consequently summons were issued against them.
             31. While passing the impugned order the High Court
       instead of relying on the decisions of this Court reversed the
 B     order passed by the Special Judge by following the decision
       of the Single Judge of the Delhi High Court in Anirudh Sen's
       Case (supra). Prima facie,; therefore, the impugned order
       passed by the High Court quashing issuance of summons by
       the Special Judge against the respondents is erroneous in
 C     law and cannot be sustained. However, at this stage it was
       not necessary for the Special Judge to issue directions to CBI
       to get a case registered against the guilty officers who have
       investigated the case.
             32. For the reasons aforesaid.we allow these appeals
 D     and quash the order passed by the High Court and restore the
       order passed by the Special Judge except the direction issued
       to the CBI as indicated above.


       Nidhi Jain                                     Appeals allowed.