Question of law
4. Thus, the question that falls for consideration before us is as to whether the Court of Sessions was empowered to take cognizance of offence under Sections 304-B and 498-A of lPC, when similar application to this effect was rejected by the JMFC while committing the case to Sessions Court, taking cognizance of offence only under Section 306 IPC and specifically refusing to take cognizance of offence under Sections 304-B and 498-A IPC?
Explaining cognizance
8. Sections 190 and 193 of the Code are in Chapter XIV. This Chapter contains the title “Conditions requisite for initiation of proceedings”. Section 190 deals with cognizance of offence by Magistrates. It empowers any Magistrate of the First Class, and any Magistrate of the Second Class which are specially empowered to take cognizance “of any offence” under three circumstances mentioned therein. These three circumstances include taking of cognizance upon a Police report of such facts which may constitute an offence. It is trite law that even when Police report is filed stating that no offence is made out, the Magistrate can ignore the conclusion arrived at by the Investigating Officer and is competent to apply its independent mind to the facts emerging from the investigation and take cognizance of the case if it thinks that the facts emerging from the investigation do lead to prima facie view that commission of an offence is made out. In such a situation, the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of the case under Section 190(1 )(a) though it is open for him to act under Section 200 or Section 202 as well {See Minu Kumari & Anr. v. State of Biliar & Ors – (2006) 4 SCC 359}. Thus, when a complaint is received by the Magistrate under Section l90(l)(a) of the Act, the Magistrate is empowered to resort to procedure laid down in Section 200 or 202 of the Code and then take cognizance. If Police report is filed, he would take cognizance upon such a report, as provided under Section 190(l)(b) of the Code in the manner mentioned above as highlighted in the case of Minu Kumari.
section 193 Cr.P.C
9. Likewise, Section 193 of the Code empowers Court of Session to take cognizance of offences and states that the Court of Session shall not take cognizance of any offence as the Court of original jurisdiction unless the case has been committed to it by the Magistrate under this Code. As per this Section, the Court of Session can take cognizance only after the case has been committed to it by the Magistrate. However, once the case is committed to it by the Magistrate, the Court of Session is empowered to take cognizance acting ‘as a Court of original jurisdiction’.
l0. In view of the aforesaid provisions, question that arises is as to whether Magistrate can take cognizance of an offence which is triable by the Court of Session or he is to simply commit the case to the Court of Session, after completion of committal proceedings as it is the Court of Session which is competent to try such cases. On the one hand, Section 190 of the Code empowers the Magistrate to “take cognizance of any offence” which gives an impression that such Magistrate can take cognizance even of an offence which is triable by the Court of Session. On the other hand, when the case is committed to the Court of Session by the Magistrate, Section 193 of the Code stipulates that Court of Session shall take cognizance ‘as a Court of original jurisdiction’ which shows that the cognizance is taken by the Court of Session as a Court of original jurisdiction and, thus, it is the first time the cognizance is taken and any order passed by the Magistrate while committing the case to the Court of Session did not amount to taking cognizance of the offence which are triable by the Court of Session.
11. A bare reading of Section 190 of the Code which uses the expression “any offence” amply shows that no restriction is imposed on the Magistrate that Magistrate can take cognizance only for the offence triable by Magistrate Court and not in respect of offence triable by a Court of Session. Thus, he has the power to take cognizance of an offence which is triable by the Court of Session. If it is so, the question is as to what meaning is to be assigned to the words “as a Court of original jurisdiction” occurring in Section 193 of the Code when Court of Session takes cognizance of any offence. To put it otherwise, when the Magistrate has taken cognizance and thereafter only committed the case to the Court of Session, whether the Court of Session is not empowered to take cognizance of an offence again under Section 193 of the Code or it still has power to take cognizance acting as Court of original jurisdiction.
In order to find the answer, we now advert to the appraisal of Dharampal’s case reported in (2014) 3 SCC 306.
“7.4 Can the Sessions Judge issue summons under Section 193 Cr.P.C as a court of original jurisdiction?
Answering the reference, the Constitution Bench held that:
(c) Cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceeding to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 of the Code will, therefore, have to be understood as the Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the Sessions Judge”.
15. Discussion up to this stage answers the powers of the Magistrate by laying down the principle that even if’ the case is triable by the Court of Session, the function of the Magistrate is not to act merely as a post office and commit the case to the Court of Session, but he is also empowered to take cognizance, issue process and summon the accused and thereafter commit the case to the Court of Session. The position with regard to that would become. clearer once we find the answer that was given by the Constitution Bench to questions at paras 7.4 to 7.6 extracted above.
Sessions court has power to summon new accused u/s 319 Cr.P.C after committal proceedings it cannot be treated as taking second cognizance of the same offence
19. Insofar as judgment in Hardeep Singh v. State of Punjab & Ors.’ case is concerned, that pertains to the powers of the trial court as contained in Section 319 of the Code, which empower the trial court to proceed even against persons not arraigned as accused. The Constitution Bench in the said case primarily considered the issue about the stage at which such a power under Section 319 of the Code is to be exercised and the related issue as to what is the meaning of the word ‘evidence’ used in Section 319(I) of the Code on the basis of which power to summon those who have not been arraigned as accused earlier can be exercised. Therefore, it is not necessary to discuss that judgment in detail as the answer to the question with which we are concerned is provided by the Constitution Bench in its judgment in Dharam Pal’s case itself, which binds us. As per this judgment, since the Court of Session is acting as the Court of original jurisdiction under Section 193 of the Code, after the committal of proceedings to it by the Magistrate, it is empowered to take cognizance and issue summons and it cannot be treated as taking second cognizance of the same offence.
Magistrate refused to take cognizance on some persons on application but session court entertained the same application which is not permissible
21. Keeping in view the aforesaid legal position, we may now discuss the circumstances under which the cognizance was taken by the Session Judge. Here is a case where the Police report which was submitted to the Magistrate, the IO had not included the appellants as accused persons. The complainant had filed application before the learned Magistrate with prayer to take cognizance against the appellants as well. This application was duly considered and rejected by the learned Magistrate. The situation in this case is, thus, not where the investigation report/chargesheet filed under Section 173(8) of the Code implicated the appellants and appellants contended that they are wrongly implicated. On the contrary, the Police itself had mentioned in its final report that case against the appellants had not been made out. This was objected to by the complainant who wanted the Magistrate to summon these appellants as well and for this purpose the application was filed by the complainant under Section 190 of the Code. The appellants had replied to the said application and after hearing the arguments, the application was rejected by the Magistrate. This shows that order of the Magistrate was passed with due application of mind whereby he refused to take cognizance of the alleged offence against the appellants and confined it only to the son of the appellants. This order was not challenged. Normally, in such a case, it cannot be said that the Magistrate had played ‘passive role’ while committing the case to the Court of Sessions. He had, thus, taken cognizance after due application of mind and playing an “active role” in the process. The position would have been different if the Magistrate had simply forwarded the application of the complainant to the Court of Sessions while committing the case. In this scenario, we are of the opinion that it would be a case where Magistrate had taken the cognizance of the offence. Notwithstanding the same, the Sessions Court on the similar application made by the complainant before it, took cognizance thereupon. Normally, such a course of action would not be permissible.
PARTY: Balveer Singh & anr vs. State of Rajasthan & anr – Criminal Appeal No. 253 Of 2016 – May.I0.2016 – [2016] 2 S.C.R. 504.
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