Appeal
Appeal against the order of Hon’ble High Court confirming the order of Sessions court
1. This petition arises from the order passed by the High Court of judicature at Allahabad dated 03.04.2025 in Criminal Revision No. 6732 of 2024 (for short, the “Impugned Order”) by which the High Court rejected the revision application filed by the petitioner-herein and thereby affirmed the order passed by the Additional District and Sessions Judge-Fast Track Court (Crime against women) Kanpur Dehat below disposal proposal paper no. 92 of 2019 arising from the First Information Report bearing case crime no. 402 of 2018 lodged with the police station Shivali, District Kanpur Dehat for the offence punishable under Section(s) 302 and 376 of the Indian Penal Code, 1860 (for short, the “IPC”).
Facts
Factual matrix: Husband (respondent no.2) is the informant for the death of his wife (deceased) alleging accused for extra marital affair with the deceased. FIR registered and Final report filed
2. The respondent No. 2 herein (original first informant) is the husband of the victim (deceased). The victim all of a sudden went missing on 21.11.2018. On 24.11.2018 the dead body of the victim was recovered somewhere from the bushes lying on the outskirts of the village. In such circumstances the first informant i.e. the husband lodged a First Information Report at the concerned police station. In the FIR the first informant named one Ajay as the suspect. The first informant alleged that Ajay had an extra-marital affair with his wife (victim) and was last seen with the victim and accordingly he alleged that Ajay might have been involved in the murder of his wife. In the course of the investigation, the name of the petitioner-herein surfaced. Some of the witnesses in their police statements recorded under Section 161 of the CrPC stated that the petitioner herein had made an extra judicial confession about his involvement in the alleged crime. Later the investigation came to be transferred to the Crime Branch. The transfer of investigation took place sometime in 2019. The Crime Branch gave a clean chit to the petitioner herein. On 21.02.2019 chargesheet came to be filed only against Ajay. The name of the present petitioner was dropped from the chargesheet.
After committal during the framing of charge respondent (informant) filed petition under section 193 Cr.P.C to add the petitioner as accused
3. On 11.03.2019 the case came to be committed under Section 209 of the Code of Criminal Procedure, 1973 (for short, the “CrPC”) being exclusively triable by the Court of Session. Ajay Kumar (accused) against whom chargesheet was filed was brought before the trial court on 02.04.2019 for the purpose of framing of charge. However, on the same day i.e. 02.04.2019 the respondent No. 2 (husband of the victim) filed an application under Section 193 of the CrPC seeking to summon the petitioner-herein as an accused. It took almost five years for the trial court to decide the application preferred by the respondent No. 2 under Section 193 of the CrPC seeking to summon the petitioner-herein as an accused.
Trial court allowed the petition and summoned the petitioner as co-accused
4. The trial court in exercise of powers under Section 193 of the CrPC ordered that the petitioner-herein shall be summoned as an accused in connection with the crime referred to above and be put to trial along with Ajay.
5. “…………. order “
6. Thus, it appears from the aforesaid that the application filed by the complainant under Section 193 of the CrPC to summon the petitioner-herein as an accused came to be allowed. Having regard to the materials on record the trial court reached the conclusion that there was prima facie material indicating involvement of the petitioner-herein in the alleged crime and he should be asked to face the trial along with the co-accused against whom chargesheet was filed by the Investigating Agency for the offence of rape and murder.
Petitioner challenged the summoning order before the High Court
7. The order referred to above came to be challenged before the High Court by way of criminal revision application. The High Court rejected the criminal revision application holding as under: –
“…… order”
Hon’ble High Court rejected the revision application
8. Thus, the High Court rejected the revision application filed by the petitioner herein and thereby affirmed the order passed by the trial court summoning the petitioner as an accused to face the trial along with the accused named in the charge sheet. The High Court rejected the revision application relying on the Constitution Bench decision of this Court in Dharam Pal & Ors. vs. State of Haryana & Anr. reported in (2014) 3 SCC 306.
Present appeal
9. In such circumstances referred to above the petitioner is here before this Court with the present petition.
Issue for determination: Whether Trial court can summon a new accused as co-accused without recording evidence?
15. The seminal issue that falls for our consideration is whether the Court of Session, without itself recording evidence, can summon a person to stand trial in exercise of its powers under Section 193 of the Code of Criminal Procedure (for short, the CrPC) as an accused (along with others committed to it by a Magistrate) on the basis of materials in the form of statements and other documents as contained in the final report of the investigating officer under Section 173 of the Code of Criminal Procedure, 1973 independently of the provisions of Section 319 of the said Code?
Analysis
i. What is the import and purport of ‘Cognizance’ under the scheme of the Code of Criminal Procedure, 1973?
a. Meaning of the expression ‘Cognizance’ and ‘Taking Cognizance’ under Chapter XIV of the Code.
16. Mr. Vikas Upadhyay, the learned counsel appearing for the petitioner herein has vehemently canvassed that cognizance of an offence, in law, can be taken only once. He submitted that in cases involving offences triable exclusively by the Court of Sessions, cognizance of such offence may be taken either by a Magistrate prior to the committal of the case, or, in the absence of such cognizance at the instance of the Magistrate, by the Court of Session alone, to which the case is committed. However, he would submit that, once cognizance of the offence has been taken by either the Magistrate or the Court of Sessions, as the case may be, a second cognizance by the other is impermissible in law. He urged that there cannot be a second cognizance nor can there be any part cognizance or bifurcation of such cognizance by a Magistrate and a Court of Sessions. In support of his contention, reliance was placed on the decisions of Dharam Pal (supra) and Balveer Singh (supra).
Cognizance cannot be taken twice
17. In Dharam Pal (supra) this Court held that “cognizance of an offence can only be taken once. In the event, the Magistrate takes cognizance of the offence and then commits the case to the Court of Sessions, the question of taking fresh cognizance of the offence, and thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session.” and that there can be no “question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge.” Similarly, in Balveer Singh (supra) it was reiterated that “cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceeding to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session”.
What is meant by cognizance? Explained
18. Before we advert to the submission canvassed by the petitioner herein, and try to understand what has been conveyed in so many words by this Court in the aforesaid decisions of Dharam Pal (supra) and Balveer Singh (supra), it would be apposite to first understand what is meant by ‘cognizance’ under the Code and the legal import and significance of the term “taking cognizance”.
19. The term “cognizance” has nowhere been defined under the Code, but the word itself is of indefinite import. The word itself is derived from the Latin word ‘cognoscere’, and the French Word “conoisance” which means “to know”, “to become acquainted with”, or “to recognize”. The Black’s Law Dictionary defines the term “cognizance” as “Judicial notice, knowledge or acknowledgement” or “the judicial hearing of a cause”.
The expression “cognizance” means to ‘become aware of’ or ‘to take notice of judicially’
20. In criminal law, the term “cognizance” has no esoteric or mystic significance, and the same is reflected by the omission of any formulaic definition of the term under the Code. However, over time, the term “cognizance” has come to acquire a special and distinct connotation, through a catena of decisions and authoritative exegesis rendered by this Court. The expression “cognizance” means to ‘become aware of’ or ‘to take notice of judicially’. The special connotation that has been ascribed to the term denotes or indicates the stage at which a judicial authority such as a Court of Sessions or a Magistrate is said to have taken judicial notice of the commission of an offence, with a view to initiate proceedings against the person or persons alleged to have committed such offence. [See: Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492].
21. Cognizance is, at its heart, always an act of the court. It entails not merely the receipt of information or the mechanical act of acknowledgement of a particular offence by a judicial authority, but a conscious application of mind by it, to the information disclosed or received, as the case may be, and the subjective element of its satisfaction that i) an offence has indeed occurred and ii) the circumstances necessitate setting into motion criminal proceedings in respect of the said offence, or at the very least take steps for ascertaining if there is any basis for initiating such proceedings. Cognizance is attended by the assumption of jurisdiction for proceeding further.
22. Having understood the legal import of the term “cognizance”, we may now profitably turn towards understanding how cognizance may be taken. Chapter XIV of the Code deals with “Conditions requisite for initiation of proceedings”, and Section(s) 190 to 199 contained thereunder, delineates the methods and the limitations subject to which cognizance of offence may be taken by the various criminal court empowered thereunder.
Taking cognizance, as already stated, is an act of court, and the prosecuting agency or complainant have no control over the same
23. Remarkably, none of the provisions in the aforesaid Chapter prescribe how ‘cognizance’ is to be taken, and rather only describe the conditions and limitations for the initiation of proceedings under the Code. This is because, taking cognizance, as already stated, is an act of court, and the prosecuting agency or complainant have no control over the same. It is predicated upon application of judicial mind and is not dictated by the complaint or police report, which cannot be construed by any formulaic approach. ‘Taking cognizance’ does not involve any formal action of any kind. It occurs as soon as a judicial authority applies its mind to the suspected commission of an offence. [See: R.R. Chari v. State of U.P., AIR 1951 SC 207; Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62].
24. The process of “taking cognizance” is one of variable and inderminate import; it neither carries a uniform or fixed procedural contour nor has it been used in the same sense throughout the scheme of the Code. This is because “taking of cognizance” signifies the setting into motion, the criminal justice machinery, which may be done, under the Code, in different ways, which is why it derives its understanding from the various procedures by which proceedings are initiated under the Code, and as such its import differs, depending upon the context of the procedure in which it has been used. Hence, there exists no rigid taxonomy or formulaic framework for “taking cognizance”, and the act of “taking cognizance” has to be understood from the procedure itself, more particularly, at which stage, it could be said that there has been an application of judicial mind for the purpose of initiating proceedings under the Code or in simple words, cognizance has been taken. [See: Darshan Singh Ram Kishan v. State of Maharashtra, (1971) 2 SCC 654].
b. Cognizance of offences by Magistrates and the Three Distinct Points of Origin of the Criminal Machinery under the Code
25.Section 190 of the Code empowers a Magistrate to take cognizance of any offence in three distinct manners. As per the said provision, a Magistrate may take cognizance upon (a) receiving a complaint of facts which constitute such offence; (b) a police report of such facts; or (c) information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. The said provision reads as under: –
“190. Cognizance of offences by Magistrates. –
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence —
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.”
Three types of cognizance can be taken under section 190 Cr.P.C
26. A bare perusal of the aforesaid, indicates that there are three distinct ways in which the criminal machinery may be set into motion i.e., cognizance of an offence may be taken by the Magistrate. It may take place on the basis of a complaint moved before a Magistrate by any complainant complaining of any offence, or by the police itself on the basis of a police report in terms of Section(s) 2(r) and 173(2) of the Code, or on the basis of the Magistrate’s own knowledge about any offence.
On the basis of a Complaint: Cognizance based on filing of complaint
27. As per Section 190 sub-section (1)(a) the first manner in which a Magistrate may take cognizance of an offence is on the basis of a complaint received by him. Section 2(d) of the Code defines “complaint” to mean any allegation, whether made orally or in writing, by any persons against some other person or persons, whether known or unknown, who is alleged to have committed an offence, that has been made to a Magistrate, with a view that he initiates any action under the Code. Section 2(d) of the Code reads as under: –
“2. Definitions. – (d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.”
28. This Court in Mohd. Yousuf v. Afaq Jahan, reported in (2006) 1 SCC 627, explained thus: –
“15. A faint plea was made by learned counsel for Respondent 1 that the petition filed by the appellant was not a complaint in the strict sense of the term. The plea is clearly untenable. The nomenclature of a petition is inconsequential. […]
16. There is no particular format of a complaint. A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprits be suitably dealt with, as in the instant case, is a complaint.” (Emphasis supplied)
Complaint once received the Magistrate will apply his mind to the facts of the complaint and ordinarily proceed to chapter XV
29. For the purpose of enabling the Magistrate to take cognizance of an offence on the basis of a complaint as defined above, in terms of Section 190 subsection 1(a), such complaint must contain facts constituting the offence. Once such a complaint is received by a Magistrate, he will apply his mind to the complaint and the facts disclosed therein, and ordinarily proceed further under Chapter XV of the Code, which relates to “Complaints to Magistrates”. Section 200 thereof provides for examination of the complainant and the witnesses on oath. Section 201 provides for the procedure which a Magistrate who is not competent to take cognizance has to follow. Section 202 provides for postponement of issue of process.
Magistrate may order for investigation instead of proceed to chapter XV
30. Although, at this stage, the Magistrate is not obliged to proceed further in terms of Section(s) 200 to 203 in Chapter XV of the Code, and he may instead, order the police to investigate or inquire into the offence alleged in the complaint in terms of Section 156 sub-section (3) of the Code.
Section 200 is to ascertain if there is a prima facie case against accused in the complaint
31. Section 200 of the Code empowers the Magistrate taking cognizance of an offence on a complaint to examine upon oath the complainant and the witnesses present, if any. The section further requires the such examination to be reduced to writing with the signatures of the complainant, witnesses and the Magistrate. The object of examination under Section 200 is to ascertain whether there is a prima facie case against the accused in the complaint, and to prevent the issue of process on a complaint which is false or vexatious. In S.R. Sukumar v. S. Sunaad Raghuram, reported in (2015) 9 SCC 609, this Court summarized the object of Section 200 of the Code: –
“paras. 8, 11, 12”
Powers of Magistrate when complaint is presented
32.In Mona Panwar v. High Court of Judicature of Allahabad, reported in (2011) 3 SCC 496, this Court noted that two options would be open to a Magistrate, when presented with a complaint: one, to pass an order as per Section 156(3) of the Code, or two, to direct examination as per Section 200. Prior to taking cognizance under Section 190, the Magistrate may order police investigation under Section 156(3). That is to say, the requirements of Section 200 do not put a bar on the powers of the Magistrate under Section 156(3) of the Code. We have produced the relevant paragraphs of Mona Panwar (supra) below:
“paras. 18 and 23”
What is not cognizance? Explained
34. In R.R. Chari (supra), this Court had held that “when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent sections of Chapter XV of the Code of Criminal Procedure, he must be held to have taken cognizance of the offence.” On the other hand, in Tula Ram v. Kishore Singh reported in (1977) 4 SCC 459, it was held that when the Magistrate applies his mind not for the purpose of proceeding as abovementioned in R.R. Chari (supra), but for taking action of some other kind, for instance ordering investigation or issuing a search warrant he cannot be said to have taken cognizance of the offence.
Section 202 Cr.P.C: To postpone the issue of process against the accused in terms of Section 204
36. In the same breath, Section 202 of the Code empowers a Magistrate, who has received a complaint of an offence, to postpone the issue of process against the accused in terms of Section 204, and either (i) inquire into the case himself or direct an investigation by the police or any other person, in the case, for the purpose of deciding whether or not there is sufficient ground for proceeding.
Difference between investigation under sections 156(3) Cr.P.C and section 202 Cr.P.C
37. The provision empowers the Magistrate to find reasons to doubt the truthfulness of the complaint and defer issuing process against the accused. In such a case, the Magistrate may either direct an investigation by the police, or conduct an inquiry to determine whether there is sufficient basis to proceed with the complaint. It is pertinent to underscore that the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156(3), as it is only for assisting the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This Court in Kewal Krishan v. Suraj Bhan, reported in 1981 SCC (Cri) 438, lucidly explained that;
“10. In the instant case, there was prima facie evidence against Suraj Bhan accused which required to be weighed and appreciated by the Court of Session. At the stage of Sections 203 and 204 of the Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 of the Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is “sufficient ground for proceeding” against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh case [(1977) 4 SCC 39: 1977 SCC (Cri) 533: AIR 1977 SC 2018] that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session.”
41. Therefore, the scope of inquiry under Section 202 is limited to the ascertainment of the truth or falsehood of the allegation made in the complaint – (i) on the materials placed by the complainant before the court; and (ii) for limited purpose of finding out whether a prima facie case for issue of process has been made out. There is no gainsaying that discretion vested in the Magistrate has to be judicially exercised.
42. The proviso to sub-section (2) stipulates that if it appears to the Magistrate that the offence complained of is triable by the Court of Sessions, he must call upon the complainant to produce all his witnesses and examine them on oath. The intent behind the provision lies in the fact that in a police case, investigation reveals the nature of the crime and its truthfulness as opposed to a case born out of a complaint. Hence, to protect the prospective accused from harassment from false complaints, the duty of the Magistrate to examine the complainant and his witnesses becomes onerous. We must remind that it is imperative on the part of the Magistrate to examine the complainant and his witnesses in a complaint case triable exclusively by Court of Sessions.
Who takes Cognizance of Offence exclusively triable by Court of Sessions under the Code?
44. To answer the question, whether the summoning of the petitioner herein by the Court of Session amounts to ‘second cognizance’, we have to try and understand the decision of this Court in Dharam Pal (supra), more particularly, its observations that when it comes to offences exclusively triable by the Court of Session, “if cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session”. In other words, the question that falls for our consideration is that, for offences triable exclusively by the Court of Session, whether cognizance is taken by the Magistrate or by the Court of Session, or either of them as the case may be? To answer the aforesaid, we may, put aside Section 193 of the Code for the time being and first try to understand what role is expected to be played by the Magistrate as-well as the Court of Session under the Code for offences exclusively triable by the Court of Session.
Role of the Magistrate where the Offence is exclusively triable by a Court of Session
45. In the foregoing paragraphs of this judgment, we have already delineated the manner in which a Magistrate, ordinarily takes cognizance of an offence. To sum it up, where a complaint is received disclosing facts which constitute an offence, cognizance is taken after the Magistrate has applied his mind to the complaint and has proceeded under Section 200 and the subsequent provisions of Chapter XV, whereupon such complaint is neither returned in terms of Section 201 nor dismissed under Section 203, and instead there is issuance of process by the Magistrate in terms of Section 204 and other provisions of Chapter XVI, at which stage it is understood without a shred of doubt, that cognizance of such offence has been taken and proceedings under the Code stand initiated. On the other hand, where a police report is received, proceedings are said to be initiated i.e., cognizance is affirmatively said to be taken after the Magistrate has applied its mind to the contents of the police report, and thereafter he has either issued process to the accused under Section 204 of the Code, on the basis of such report, or where the accused is present before it, either on his own or on being produced by the police, the Magistrate has complied with the requirement envisaged under Section 207 of the Code. In short, while a Magistrate who proceeds under Chapter XV of the Code, may or not be said to have taken cognizance, however, whenever, a Magistrate has proceeded under the provisions of Chapter XVI which deals with “Commencement of Proceedings”, cognizance of offence, without an iota of doubt is understood to have been taken.
Chapter XVI – Section(s) 207, 208 and 209 of the Code and Committal of Case by a Magistrate to the Court of Sessions
46. We may now turn to see, how the Magistrate is required under the Code to proceed where the offence is exclusively triable by the Court of Sessions. Where a case is instituted before a Magistrate, in terms of Section 190 of the Code, i.e., either upon a complaint, or a police report, or on the basis of the Magistrate’s own knowledge, and it appears to the Magistrate, that the case pertains to an offence triable exclusively by the Court of Session, then the Magistrate has to commit the said case to the Court of Session. Section 209 of the Code reads as under: –
47. A plain and careful reading of the aforesaid provision reveals that, where a case is instituted on a police report or otherwise, that is to say, on the basis of a complaint received or on the basis of information by a Magistrate’s own knowledge, and such case involves an offence which is triable exclusively by the Court of Sessions, the Magistrate is placed under a statutory obligation to commit such case to the Court of Sessions in the manner laid down in clauses (a) to (d) of the said provision. Section 209 of the Code, enjoins a duty upon the Magistrate to comply with four procedural requirements enumerated in clauses (a) to (d), thereto, i.e., the commitment of the case by the Magistrate to the Court of Session, has to take place, strictly in accordance with the four procedural steps provided in the provision, being as under: –
“ …………….. “
(i) As per clause (a), the Magistrate is required to commit such case to the Court of Session, and further remand the accused to custody, subject to the provisions of bail, until such committal is complete. However, such commitment has to be done after the Magistrate as complied with the provisions of Section 207 or 208 of the Code, as the case may be;
(ii) In terms of clause (b), the Magistrate must also remand the accused to custody for the duration of trial, subject to the provisions relating to bail under the Code;
(iii) Clause (c) enjoins a further duty upon the Magistrate, to forward to the Court of Session, more particularly the Court to which the case is committed, the entire record of the case, along with any documents and articles thereof, that are to be produced or relied upon as evidence;
(iv) Under clause (d), the Magistrate is further required to notify the Public Prosecutor regarding the commitment of the case to the Court of Session.
48. Chapter XVI of the Code which deals with “Commencement of Proceedings before Magistrates” encompasses the aforementioned provision of Section 209 as-well as Section(s) 207 and 208. Both these provisions pertain to the obligation of furnishing to the accused, copies of documents in respect of any case where proceedings have been instituted under the Code, with the former dealing with proceedings instituted upon a police report and the latter pertaining to proceedings instituted otherwise, such as on a complaint or on the basis of information by a Magistrate’s own knowledge.
Supply of documents to the accused in Criminal cases
49. Section 207 of the Code stipulates that in every case where proceedings have been instituted on the basis of a police report, the Magistrate, shall supply to the accused, without delay and free of cost, inter-alia, a copy of the police report as contemplated under Section 173, a copy of the first information report, recorded under Section 154, if any, the copies of all statements made under Section 161 sub-section (3) by persons, whom the prosecution intends to examine as witness, subject to the first proviso, the copies of any confession or statement recorded under Section 164, as-well as a copy of any other document or relevant extract thereof that was forwarded to the Magistrate by the police. Section 207 of the Code reads as under: –
“ …………….. “
50. In the same breadth, Section 208 of the Code, stipulates that in every case where proceedings have been instituted otherwise than on a police report, which when understood in the context of Section 190, means on the basis of a complaint received by a Magistrate or on the basis of information by a Magistrate’s own knowledge, and the offence is triable exclusively by the Court of Session, the Magistrate, shall supply to the accused, without delay and free of cost, inter-alia, a copy of the statements recorded under Section(s) 200 or 202, of all persons examined by the magistrate, the copies of any statement or confession recorded under Section(s) 161 or 164, as-well as a copy of any other document produced before the Magistrate, on which the prosecution proposes to rely. Section 208 of the Code reads as under: –
“ ………………. “
51. The stage at which the provisions of Section(s) 207 and 208 of the Code, respectively spring into action, de hors Section 209, can be gleaned from the heading of Chapter XVI wherein these provisions are contained; “Commencement of Proceedings before Magistrates”. The said Chapter, deals with the stage, where the accused person is before the Magistrate, either by way of issue of process under Section 204 of the Code, or if such person appears on his own, or is brought before the Magistrate by the police, which as already discussed in the foregoing paragraphs, signifies that the Magistrate has taken cognizance of the offence, and has now proceeded further under the Code, by initiating proceedings against persons accused of committing such offences. That apart, the documents, copies of which, have to be supplied to the accused, under each of these provisions, are all documents that have become part of the record before the Magistrate, by virtue of him, having already proceeded under the provisions of Section 200 and subsequent sections of Chapter XV in case of complaint case, which again reinforces that at this stage the Magistrate has taken cognizance
Supply of documents to be decided based on the cognizance
52. It could be argued, that in a case instituted upon a police report, the Magistrate not having proceeded in terms of Chapter XV, as he is no required to in such cases, may not necessarily have taken cognizance of the offence. There may be situations where although police report may have been submitted to a Magistrate under Section 173, but the stage of taking cognizance of an offence on the basis of such report in terms of Section 190 of the Code, may not have reached by the Magistrate. It is particularly in this context, that our discussion in the foregoing paragraphs assumes importance. We have already discussed, how the act of taking cognizance of an offence does not involve any formal action of any kind, and cannot be construed by any rigid formula. Whether cognizance of an offence has been taken, or not taken or yet to be taken, depends in the peculiar context of the case and the stage of proceedings therein, and lodestar for answering the same has to be discerned from the procedure adopted by the Magistrate. Nevertheless, when a Magistrate, upon receiving a police report, proceeds further, by complying with the procedural requirements laid down in Section 207 of the Code, he is deemed to have taken cognizance of the offence. For there can be no need or question of supplying the documents envisaged under Section 207 to the accused, if cognizance of the offence is not taken, and more importantly, there can be no situation where the accused is compelled to appear before the Magistrate, or made a part of the proceedings in connection with any case instituted, if cognizance of the offence, involved therein is not yet taken. This is because prior to taking cognizance of an offence, the person alleged to be the accused, has no locus in the proceedings.
54. The expression “the accused appears or is brought before the Magistrate” used in Section 209 of the Code, which, at the cost of repetition, deals with committal of cases to the Court of Session when offence is triable exclusively by it, have to be understood in the context of the aforesaid paragraphs. Section 209 of the Code, leaves no room for ambiguity. The words used in it are clear as a noon day. There can be no committal of a case by a Magistrate to the Court of Session, unless the accused is before it. It is not difficult to comprehend why; Section 209 insists upon the requirement for the person accused to be before the Magistrate before the committal of the case takes place. The reason is quite simple. There can be no compliance of the requirements envisaged under Section(s) 207 or 208 of the Code, as the case may be, if a person is not yet arrayed as an accused to the case instituted before the Magistrate. As both these provisions mandate the requirement to furnish the copies of the documents enumerated therein, to the accused, thereby indicating that when the Magistrate proceeds under the provisions of Section(s) 207 or 208 and then 209 of Chapter of XVI of the Code, cognizance of the offence is already taken, and further that the Magistrate has also applied its mind to find out who the offenders really are. [See: Raghubans Dubey v. State of Bihar, 1967 Cri LJ 1081 (SC)].
55. This is further reinforced from clause(s) (b) and (d) of Section 209 of the Code, which talk about the duty of the Magistrate to remand the accused to custody and to notify the Public Prosecutor about the committal of the case to the Court of Session. Section 209(b) stipulates that for the purpose of committal of the case to the Court of Session, the Magistrate, has to remand the accused to custody, subject to the provisions of bail, “during, and until the conclusion of, the trial”. This itself indicates that, when the accused is being remanded by the Magistrate, it is being done, for the purpose of undergoing trial, which presupposes that, the Magistrate is satisfied that there is enough material for the purpose of sending such accused to trial. On the other hand, the duty to, notify the Public Prosecutor under Section 209(d), as regards the committal of the case, is for the purpose of facilitating the opening of the case by the prosecution before the Court of Session in terms of Section 226 contained in Chapter XVIII, which specifically deals with “Trial before a Court of Session”.
Cognizance on ‘any offence’
56. It is worthwhile to note that Section 190 of the Code, which as already stated deals with Cognizance of offences by Magistrates, specifically employs the words “any offence”. Thus, subject to conditions laid down in Chapter XIV, a Magistrate by virtue of Section 190 of the Code has been specifically and consciously empowered to take cognizance of “Any Offence”. The use of the expression “Any Offence” is particularly significant, because even-though the Code, in Chapter(s) XV and XVI has qualified the meaning of the term “offences” with the expression “triable exclusively by the Court of Session”, wherever necessary, no such expression has been juxtaposed with the term “offences” insofar as Chapter XIV is concerned. This reinforces that the language couched in Section 190 of the Code, more particularly the words “any offence” is of wide import and that a Magistrate is empowered to take cognizance of an offence even if the same is triable exclusively by the Court of Session.
Role of the Court of Session after the case is committed to it by the Magistrate under Section 209 of the Code
58. Once a case has been committed by the Magistrate to a Court of Session in terms of Section 209, the procedure that follows suit, is provided in Section(s) 225 to 237 in Chapter XVIII of the Code. The heading of Chapter XVIII is also very clear. It reads, “Trial before a Court of Session”. Thus, once a case has been committed, the procedure that now has to be adopted by the Court of Sessions is in lieu of commencement of trial.
59. Although, one must be mindful that, mere committal of the case, does not mean that trial has now commenced. Trial in respect of any case instituted under the Code, commences only after the charges have been framed. All stages prior to the framing of charges, are a pre-trial stage, which may also happen to be a stage of inquiry. All that we are trying to emphasize, on the basis of the heading of Chapter XVIII of the Code is that, the procedure that the Court of Session is expected to adopt is towards commencement of trial, and not for the purpose of taking cognizance of an offence, which as discussed in the foregoing paragraphs of this judgment, already stands taken by the Magistrate, who committed the case to the Court of Session. This may be better understood by taking a closer look at few provisions of Chapter XVIII, and by discerning what the Court of Session is empowered to do, post the committal of the case to it.
Every sessions case prosecution shall be done by a public prosecutor
60. Section 225 of the Code, although merely explanatory in nature as to how trials are to be conducted before a Court of Session, yet is of some degree of aid, inasmuch as it further indicates that the procedure laid down in Chapter XVIII is for the purpose of facilitating the trial. The provision simplictier states that in every trial before a Court of Session, the prosecution shall be done by a Public Prosecutor. The said provision reads as under: –
“225. Trial to be conducted by Public Prosecutor.— In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.”
Prosecutor shall open the case in session cases
61. Section 226 of the Code, is the immediate next procedural step after the case has been committed by a Magistrate to the Court of Session in terms of Section 209. The said provision stipulates that, when the accused appears or is brought before the Court of Session “in pursuance of a commitment of the case under Section 209” the prosecutor shall first open his case. In doing so, the prosecutor is required to describe the charges brought against the accused and further stating the evidence, he proposes to prove for establishing the guilt of such accused.
62. A bare perusal of the aforesaid provision, makes it clear that, the first procedural step that is ordinarily contemplated to be undertaken by a Court of Session, under the Code, after the committal of the case by the Magistrate under Section 209, is to be apprise itself as-well as the accused about the charges that are brought against such accused. Section 226 does not contemplate, any procedural step of first satisfying the Court of Session about the occurrence of an offence, such that the Court of Session, in turn, take cognizance of the offence. The procedure contemplated in the said provision, presupposes the cognizance of the offence. This is because, as already discussed by us, in the foregoing parts of the judgment, the Magistrate before committal of the case, is already expected as-well as deemed to have taken cognizance of the offence, sought to be brought to trial before the Court of Session.
Discharge in sessions court and its procedures
63. Section 227 of the Code deals with discharge. Where the Court of Session, upon consideration of the record of the case and documents tendered with it, and after hearing the accused and the prosecution in regards to such material on record, considers that there is no sufficient ground for proceeding against the accused, then the Court of Sessions, shall discharge the accused, by recording reasons for the same.
Difference between cognizance and discharge
65. One another fundamental aspect pertinent to bear in mind is that, cognizance of an offence is taken when the judicial authority who has applied its mind, comes to the finding that it is necessary to initiate proceedings. The act of “taking cognizance” as already discussed, signifies judicial application of mind on the allegations purported to be levelled. Equally important to remember is that cognizance is of an offence and not the offender. Where, however, there is no offence, there can be no cognizance, as there can be no proceedings initiated. In the course of uncovering, whether there is any offence, whose cognizance is to be taken, the court or the Magistrate, as the case may be, comes to the finding that there is no offence, all proceedings initiated leading upto such conclusion are dropped. In other words, any proceedings that may have been initiated under the Code, for determining, if there an offence has taken place or not, come to an end and are dropped once it is found that no offence had occurred. This is quite distinct from ‘discharge’, for the reason that discharge does not necessarily, always lead to dropping of proceeding. Discharge is always qua the accused person, as opposed to cognizance which is always qua the offence itself. Discharge of an accused does not tantamount to the negation or eradication of the necessity to initiate proceedings in the first place. Discharge only signifies that; there isn’t sufficient ground to charge the person accused of commission of a particular offence. It has no bearing on the offence itself whose cognizance was taken, as the occurrence of such offence and the correlating necessity for initiation of proceedings still remains. Discharge of an accused does not mean that no offence had occurred in the first place. Take for instance, the Magistrate had taken cognizance of an offence, pursuant to which two persons ‘A’ and ‘B’ came to be arrayed as accused. Later, the Court of Sessions, finds that there isn’t sufficient material to proceed against ‘B’. This does not mean that there is no necessity for initiation of proceedings in respect of the said offence, as the same may still continue in respect of ‘A’. Even if ‘A’ also comes to be discharge, it does not stand that no offence had taken place, and it would be the bounden duty of the Court to find out the actual offenders. Cognizance is always qua an offence and always correlates to initiation of proceedings, whereas, discharge is only qua an accused and concerned with if there is sufficient ground to proceed against such accused.
66.If at all, there was a correlation between the power to “discharge” and the act of “taking cognizance”, such that only that court empowered to discharge an accused for an offence, could be said to be empowered to also take cognizance of such offence in the first place, then there would have been no need for the Code to contain the provisions pertaining to discharge by a Court of Session and by a Magistrate, in separate distinct Chapters, more particularly Chapter XVIII; Section 227 and Chapter XIX; Section(s) 239 and 245, respectively, which specifically deal with trials before the Court of Session and Magistrates, respectively. The Code would have simpliciter empowered the Court of Session and the Magistrate to discharge an accused under Chapter XIV, which deals with cognizance of offences by Magistrates and Courts of Session. This reinforces that, the power to discharge an accused, is nothing more than a safeguard against any mechanical or capricious framing of charges; a pre-requisite for commencement of trials, and thus, correlates only to trials, and has nothing to with the act of “taking cognizance” under the Code.
Framing of charge and its procedures
67.Section 228 of the Code is particularly of significance for an insight into the role that a Court of Sessions plays after a case is committed to it by the Magistrate. Section 228 which deals with framing of charges, stipulates that, where after such consideration and hearing as contemplated under Section(s) 226 and 227 of the Code, the Court of Session is of the opinion that there is ground for presuming that the accused has committed an offence, then only two options are available to it: first, where it finds that the offence is not exclusively triable by the Court of Session, then, it may either frame a charge against such accused and thereafter, transfer the case back to the Magistrate mentioned therein, or simply transfer the case back without framing any charge; or second, where it finds that the offence is indeed exclusively triable by the Court of Session, then it shall proceed to frame a charge against such accused.
68.It is manifest from a careful reading of the aforesaid provision, that a Court of Session, after a case has been committed, is only required to see, if the offence in the case, is one exclusively triable by it or not. Where, the offence is not exclusively triable by it, the Court of Session will mandatorily transfer the case to the Magistrate as specified in Section 228 sub-section (1) clause (a). Where, however the offence is exclusively triable by it, the Court of Session will mandatorily proceed to frame charges. The only discretion that has been conferred upon the Court of Session, is in the former, where it can decide whether to frame the charge himself or not, before mandatorily transferring the case back to the Magistrate as specified therein.
69. There is no discretion conferred upon the Court of Session, to whom a case has been committed to go into the question, whether any offence has taken place, cognizance of which may be taken. Once the Court of Session is in seisin of the case in terms of Section 209 of the Code, it cannot go into the question whether, the case is fit one for it to take cognizance or to drop the proceedings, for it is assumed that the case has been committed to it by the Magistrate after application of his mind. Section 228, more particularly the words “there is ground for presuming that the accused has committed an offence” presupposes the cognizance of offence, or put simply, it means that the Court of Session is already alive to the fact that there has been an offence, which is why it is only required to form an opinion that there is ground for presuming that the accused has committed such offence and thereafter, must decide whether, the offence is one exclusively triable by it or not. Even under Section 228(1)(a), the Court of Session is only empowered to transfer the case back to the Magistrate, with the discretion of framing the charge first, if the offence is not exclusively triable by it. It cannot go into the question, whether there is any offence or not, worth initiating proceedings under the Code. This is further fortified from the expression “and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report” in Section 228(1)(a) which indicates that where such case is transferred back to the Magistrate, the Magistrate is mandated to thereafter proceed to try such offence i.e., to commence trial in respect of the same. The Court of Session is not empowered to send back the case to the Magistrate for relooking into whether cognizance should be taken or not.
70. A combined reading of Section(s) 226, 227 and 228, clearly outline, that after the case is committed to the Court of Session, its role is only limited for the purpose of deciding whether the case is a fit one for commencing trial against the accused, and whether such offence should be tried by it or by the Magistrate. After a case is committed to the Court of Session, the first immediate procedural step envisaged by the Code, is under Section 226, whereby the Court apprises itself and through it the accused about the charges. Thereafter, the next course of action available to the Court of Session, is only in terms of Section(s) 227 and 228 of the Code. The expressions “considers that there is not sufficient ground for proceeding against the accused” and “is of opinion that there is ground for presuming that the accused has committed an offence” used in Section(s) 227 and 228, respectively, to our minds, appear to empower the Court of Session to only decide whether on the basis of the material on record and the submissions of the accused and the prosecution, there is enough material to either commence a trial or discharge the accused. The framework of the provisions of Section(s) 226, 227 and 228 of the Code, to our minds, do not appear to envisage any power of the Court of Session, to decide whether cognizance of the offence should be taken or not, or the question whether the Magistrate should have taken cognizance or not. For offences which are exclusively triable by the Court of Session, the role that the Court of Session is expected to play in terms of Section(s) 226 to 228, after the case has been committed to it, is not only altogether different from the one that a Magistrate is required to play but also one concerned only with the stage “post-cognizance of offence” in respect of the case committed to it.
Object and Purpose underlying Section 193 of the Code
72. The proposition of law, that where a case is committed by the Magistrate in view of the offence being exclusively triable by the Court of Session, it is only the Magistrate who takes cognizance of the offence and not the Court of Session has to be understood in the context of Section 193 of the Code.
74. A reading of the aforesaid provision, makes it manifest, that there is a clear embargo cast upon the Court of Session from taking cognizance of any offence, as a Court of original jurisdiction i.e., no cognizance of an offence can be taken by a Court of Session in its original capacity, as a point of initiation of any proceedings under the Code. The expression “as a Court of original jurisdiction” warrants a careful interpretation. The said expression cannot be construed to mean that merely because the Court of Session is precluded from taking cognizance of an offence as forum of inception of proceedings under the Code i.e., as an original forum, that it must by necessary implication, be presumed to be empowered to take cognizance of an offence as a forum of superior jurisdiction or as an intermediate procedural forum at a subsequent stage in the proceedings already initiated. To say so, would go against the well-established rule, that cognizance of an offence can only be taken once, as held in Dharam Pal (supra) and Balveer Singh (supra). The negative language employed in Section 193 of the Code, more particularly, “no Court of Session shall take cognizance of any offence” which has been used in conjunction with “unless the case has been committed to it” is not suggestive of the fact that, where a case has been committed to the Court of Session, it has to then mandatorily take cognizance of the offence. To say would, resulting in turning the very tenets of the act of “taking cognizance” over its head. It would lead to an absurd interpretation, where, although the Magistrate, by way of Section 190 of the Code has the discretion to take cognizance of an offence, no such discretion exists insofar as the Court of Session is concerned.
77. It is well noted in a legion of authorities that the commitment which is talked of under Section 193 of the Code is a commitment of the “case” and not that of the “offender”. The purpose of Section 193 is to allow Court of Sessions the limited window to deemed to have taken cognizance on its own motion.
80. The Court of Session takes cognizance of the case or the offence as a whole and, therefore, is entitled to summon anyone who, on the material before it, appears to be guilty of such offence to stand trial before it. To highlight, what is committed to the Court of Session by the Magistrate is the case or the offence for trial and not the individual offender therefor. To hold otherwise would be again relapsing into the fallacy that cognizance is taken against individual accused persons and not of the offence as such. This was the evil which the amendment sought to remedy in express terms.
81. In the aforesaid context, we must look into the following observations made in Joginder Singh vs. State of Punjab reported in 1979 Cri LJ 333 (Para 6) :-
“It will be noticed that both under Section 193 and Section 209 the commitment is of ‘the case’ and not of ‘the accused’ whereas under the equivalent provision of the old Code, viz., Section 193(1) and Section 207- A it was ‘the accused’ who was committed and not ‘the case’. It is true that there cannot be a committal of the case without there being an accused person before the Court, but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court but once “the case in respect of the offence qua those accused who are before the Court is committed then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it;” (Emphasis supplied)
82. Therefore, what the law under section 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima facie guilty of the crime as well.
84. In other words, upon the committal by the Magistrate, the Court of Sessions is empowered to take cognizance of the whole of the incident constituting the offence. The Court of Sessions is thus invested with the complete jurisdiction to summon any individual accused of the crime. The above principles were reiterated in a two judge Bench decision in State of W.B. vs. Mohd. Khalid reported in (1995) 1 SCC 684. Justice S Mohan speaking for the Court observed:
“43. […] Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word ‗cognizance‘ indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.” (Emphasis supplied)
89. In Dharam Pal (supra), a Constitution Bench was deciding on whether the Court of Sessions has the power under Section 193 CrPC to take cognizance of the offence and then summon other persons not mentioned as accused in the police report. The issue was referred to a five-judge Bench in view of the conflicting decisions in Kishun Singh (supra) and Ranjit Singh v. State of Punjab reported in (1998) 7 SCC 149. As discussed above, while in Kishun Singh (supra), it was held that the Sessions Court has such a power under Section 193 CrPC, it was held in Ranjit Singh (supra) that from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 CrPC, the Court could not arraign any other person as the accused. The Constitution Bench affirmed the view in Kishun Singh (supra) on the ground that the Magistrate before whom the final report is submitted has ample powers to disagree with the report filed by the police under Section 173(2) and to proceed against the accused persons de hors the police report. However, if the interpretation in Ranjit Singh (supra) were to be followed, it would lead to an anomaly where the Sessions Court would not have this power till the Section 319 stage is reached, which the Magistrate would otherwise have. In that context, the Constitution Bench observed:
“35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) CrPC. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.” (Emphasis supplied)
Under section 193 Cr.P.C the Court of Sessions has power to summon a person as accused to stand trial even if he has not been charge-sheeted
90. In view of the aforesaid discussion, the position of law is clear that the Court of Session has power under Section 193 CrPC to summon a person as accused to stand trial, even if he has not been charge-sheeted by the police and whose complexity in the crime appears in the evidence available on record. To hold in such a situation, that if the investigating agency blatantly exonerates an accused person and the Magistrate does not consequently commit him, the Court of Session itself would be rendered powerless to put such an offender in the dock at the very opening stage of the trial, would to our mind only hamper the cause of justice rather than advance it. It is to be borne in mind that herein we are construing procedural provisions and it is well-settled that procedure is the hand-maid of justice and is not to be employed as a roadblock thereto. Therefore on the larger canon of construction there appears to be no logic for narrowly construing the statute so as to denude the Court of Session of the power to summon a person to stand his trial at the outset even when wholly convinced of a prima facie case against him on the basis of materials in the final report which is admittedly adequate for framing a charge against the committed accused under section 228 or discharging him under section 227 of the Code.
91. Our judgment would remain incomplete without referring to one very erudite judgment of this Court rendered in Raghubans Dubey vs. State of Bihar reported in (1967 Cri LJ 1081) (SC). Therein a first information report had been lodged against as many as 15 persons including petitioner Raghubans Dubey. On investigation, the police submitted final form under Section 173 in which Raghubans Dubey was not sent up by the police for trial whilst the remaining accused were. The Sub-divisional Magistrate took cognizance against the fourteen accused persons and expressly discharged Raghubans Dubey and thereafter transferred the case to a Magistrate for commitment. In the course of the trial, the transferee Magistrate noticed that Raghubans Dubey had been named in the first information report and was also named by 5 more witnesses in their statements under Section 161. He, therefore, summoned Raghubans Dubey as an accused to stand his trial along with others. This was challenged on behalf of the petitioner Raghubans Dubey before the High Court. But the Division Bench of the High Court while upholding the action of the Magistrate in summoning the additional accused person rejected the revision petition. Upholding the High Court’s view in an even stronger and more categoric terms, Sikri, J., speaking for the Bench, observed (Para 9 of 1967 Cri LJ 1081):
“In our opinion once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.” (Emphasis supplied)
92. From the above, it inflexibly follows that once a court of competent jurisdiction, be it a Magistrate or the Court of Session, takes cognizance of the offence, it is not only within the court’s powers to summon any one who, on the adequate materials, appears to it to be prima facie guilty of the said offence but indeed it is its duty to do so. Raghubans Dubey’s case (supra) arose under the old Code of 1898, but it is manifest that the situation is identical under the Code of 1973 too, and the same view has then been expressly reiterated in Hareram Satpathy vs. Tikaram Agarwala, reported in (1978) 4 SCC 58 : AIR 1978 SC 1568 : (1978 Cri LJ 1687) in the context of commitment on a murder charge to the Court of Session by a Magistrate of a person not sent up as an accused by the investigating agency.
100. Once again at the cost of repetition, we state that the Court of Session takes cognizance of the case or the offence as a whole and, therefore, is entitled to summon anyone who on the materials before it appears to be involved in such offence to stand for trial before it. It is very important and necessary to understand that what is committed to the Court of Session by the Magistrate is the “case” or the “offence” for trial and not the “individual offender” thereof.
Conclusion
103.We summarize our final conclusion as under: –
(i) Both under Sections 209 and 193 respectively of the Code 1973 commitment is of, the “case” and not of the “accused” as distinguished from Section193(3) and Section 207A respectively of the old Code where commitment was of the “accused” and not the “case”. For committing a case there must be an offence and involvement of a person who committed the same. Even though the case is committed yet cognizance taken is of the offence and not the offender. Once the case in respect of the offence qua the accused, who are before the Court, is committed and cognizance is taken, the embargo under Section 193 regarding taking cognizance only by committal goes. Summoning additional persons will then be regarded as incidental to the cognizance already taken on committal and as, a part, of, the normal process that follows. A fresh committal of such person is not necessary.
(ii) Section 319(4)(b) enacts a deeming provision in that behalf dispensing with the formal committal order by providing that the person added will be deemed to have been an accused even when cognizance was taken first. Cognizance is of the offence and not the offender and it is the duty of the court to find out who the offenders are. Proceedings could be instituted and cognizance taken also against persons not known at that time. This is clear if the provisions of Section 190 of the Code are read along with the definition of complaint in Section 2(d) which include allegations against unknown person also. Making the unknown persons known is therefore within the powers of the court. When such persons become known by the evidence during inquiry or trial it is not only the right but also the duty of court to bring them on record and proceed against them in an attempt to bring them to justice. There cannot, therefore, be any dispute regarding the powers of court to bring the person under Section 319(1).
(iii) Once the Court takes cognizance of the offence (not of the offender), it becomes the Court’s duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the Court’s duty to summon them to stand trial along with those already named, since summoning them would only be part of the process of taking cognizance.
104. For all the foregoing reasons we are of the view that no error not to speak of any error of law can be said to have been committed by the High Court in passing the impugned order.
105. In the result, this petition fails and is hereby dismissed.
106. The trial court shall now proceed to frame charge if not yet framed and start recording with the oral evidence of the witnesses. The trial shall be completed within a period of six months from the date of the receipt of the writ of this order.
107. The Registry shall circulate one copy each of this judgment to all the High Courts.
Judgments involved or cited
* Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P. Gwalior and others (1987) 1 SCC 5
* Prabhu Chawla Vs. State of Rajasthan and another, (2016) 16 SCC 30
* Dharam Pal and others Vs. State of Haryana and another, (2014) 3 SCC 306
* Balveer Singh & Anr. vs. State of Rajasthan reported in (2016) 6 SCC 680
* Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492
* R.R. Chari v. State of U.P., AIR 1951 SC 207
* Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62
* Darshan Singh Ram Kishan v. State of Maharashtra, (1971) 2 SCC 654
* Mohd. Yousuf v. Afaq Jahan, reported in (2006) 1 SCC 627
* S.R. Sukumar v. S. Sunaad Raghuram, reported in (2015) 9 SCC 609
* Mona Panwar v. High Court of Judicature of Allahabad, reported in (2011) 3 SCC 496
* Maksud Saiyed v. State of Gujarat, reported in (2008) 5 SCC 668
* Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749: 1998 SCC (Cri) 1400]
* Tula Ram v. Kishore Singh reported in (1977) 4 SCC 459
* Kewal Krishan v. Suraj Bhan, reported in 1981 SCC (Cri) 438
* Ramesh Singh case [(1977) 4 SCC 39: 1977 SCC (Cri) 533: AIR 1977 SC 2018]
* Rameshbhai Pandurao Hedau v. State of Gujarat, reported in (2010) 4 SCC 185
* Ramdev Food Products Pvt. Ltd. v. State of Gujarat, reported in (2015) 6 SCC 439
* Nagawwa v. Veeranna Shivalingappa Konjalgi [(1976) 3 SCC 736: 1976 SCC (Cri) 507]
* Chandra Deo Singh v. Prokash Chandra Bose [AIR 1963 SC 1430: (1963) 2 Cri LJ 397: (1964) 1 SCR 639]
* Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar [AIR 1960 SC 1113: 1960 Cri LJ 1499]
* Mohinder Singh v. Gulwant Singh [(1992) 2 SCC 213: 1992 SCC (Cri) 361]
* Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel [(2012) 10 SCC 517: (2013) 1 SCC (Cri) 218]
* Raghu Raj Singh Rousha v. Shivam Sundaram Promoters (P) Ltd. [(2009) 2 SCC 363: (2009) 1 SCC (Cri) 801]
* Raghubans Dubey v. State of Bihar, 1967 Cri LJ 1081 (SC)
* Kishun Singh vs. State of Bihar reported in (1993) 2 SCC 16
* P.C. Gulati v. Lajya Ram, AIR 1966 SC 595: 1966 Cri LJ 465: (1966) 1 SCR 560
* Joginder Singh vs. State of Punjab reported in 1979 Cri LJ 333
* State of W.B. vs. Mohd. Khalid reported in (1995) 1 SCC 684
* Ranjit Singh v. State of Punjab reported in (1998) 7 SCC 149
* Hareram Satpathy vs. Tikaram Agarwala, reported in (1978) 4 SCC 58: AIR 1978 SC 1568: (1978 Cri LJ 1687)
* A.R. Antulay v. Ramdas Sriniwas Nayak, reported in (1984) 2 SCC 500
* Pradeep S. Wodeyar v. State of Karnataka, reported in (2021) 19 SCC 62
* Nahar Singh v. State of U.P., reported in (2022) 5 SCC 295.
Acts and Sections
Code of Criminal Procedure, 1973 (CrPC)
* Section 2(d) – Definition of “complaint”
* Section 2(r) – Police report
* Section 154 – First Information Report (FIR)
* Section 156(1) – Police power of investigation
* Section 156(3) – Magistrate’s power to order police investigation
* Section 161 – Police statements
* Section 161(3) – Statements recorded by police
* Section 164 – Confession or statement recorded by Magistrate
* Section 173 – Police report
* Section 173(2) – Police report
* Section 173(5) – Document forwarding to Magistrate
* Section 190 – Cognizance of offences by Magistrates
* Section 190(1)(a) – Cognizance upon complaint
* Section 190(1)(b) – Cognizance upon police report
* Section 190(1)(c) – Cognizance upon information or own knowledge
* Section 192 – Magistrate making over cases
* Section 193 – Cognizance of offences by Courts of Session
* Section 195 – Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence
* Section 196 – Prosecution for offences against the State and for criminal conspiracy to commit such offence
* Section 197 – Prosecution of Judges and public servants
* Section 198 – Prosecution for offences against marriage
* Section 198-A – Prosecution of offences under section 498A of the Indian Penal Code
* Section 198-B – Cognizance of offence
* Section 199 – Prosecution for defamation
* Section 200 – Examination of complainant
* Section 201 – Procedure by Magistrate not competent to take cognizance
* Section 202 – Postponement of issue of process
* Section 202(1) – Postponement of issue of process
* Section 202(2) – Magistrate may take evidence of witnesses on oath
* Section 203 – Dismissal of complaint
* Section 204 – Issue of process
* Section 204(1) – Issue of process
* Section 207 – Supply to the accused of copy of police report and other documents
* Section 208 – Supply of copies of statements and documents to accused in other cases triable by Court of Session
* Section 209 – Commitment of case to Court of Session when offence is triable exclusively by it
* Section 209(a) – Commitment of case and remand of accused
* Section 209(b) – Remand of accused to custody during trial
* Section 209(c) – Sending record of case to Court of Session
* Section 209(d) – Notifying Public Prosecutor of commitment
* Section 225 – Trial to be conducted by Public Prosecutor
* Section 226 – Opening case for prosecution
* Section 227 – Discharge
* Section 228 – Framing of charge
* Section 228(1)(a) – Framing charge and transfer to Magistrate
* Section 228(1)(b) – Framing charge for exclusively triable offence
* Section 230 – Procedure after framing of charge
* Section 319 – Power to proceed against other persons appearing to be guilty of offence
* Section 319(1) – Power to proceed against other persons
* Section 319(4)(b) – Deeming provision for added accused
Indian Penal Code, 1860 (IPC)
* Section 302 – Punishment for murder
* Section 376 – Punishment for rape
Party
Kallu Nat alias Mayank Kumar Nagar (Petitioner) and State of U.P. and Anr (Respondent) – Special Leave Petition (Criminal) No. 10010 of 2025 – 2025 INSC 930 – August 5, 2025 – Hon’ble Mr. Justice J.B. Pardiwala and Hon’ble Mr. Justice R. Mahadevan.
