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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 148 of 2003

DHARAM PAL & ORS. … APPELLANTS

VS.

STATE OF HARYANA & ANR. …

RESPONDENTS

WITH

CRIMINAL APPEAL NOS. 865 of 2004, 1334 of 2005 and 537

of 2006

J U D G M E N T

ALTAMAS KABIR, CJI.

1. This matter was initially directed to be heard by

a Bench of Three-Judges in view of the conflict of

opinion in the decisions of two Two-Judge Benches, in

the cases of Kishori Singh and Others Vs. State of Bihar

and Others [(2004) 13 SCC 11]; Rajender Prasad Vs.

Bashir and Others [(2001) 8 SCC 522] and SWIL Limited

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Vs. State of Delhi and Others [(2001) 6 SCC 670]. When

the matter was taken up for consideration by the Three-

Judge Bench on 1

st

September, 2004, it was brought to the

notice of the court that two other decisions had a

direct bearing on the question sought to be determined.

The first is the case of Kishun Singh Vs. State of Bihar

[(1993) 2 SCC 16], and the other is a decision of a

Three-Judge Bench in the case of Ranjit Singh Vs. State

of Punjab [(1998) 7 SCC 149]. Ranjit Singh’s case

disapproved the observations made in Kishun Singh’s

case, which was to the effect that the Session Court has

power under Section 193 of the Code of Criminal

Procedure, 1973, hereinafter referred to as “the Code”,

to take cognizance of an offence and summon other

persons whose complicity in the commission of the trial

could prima facie be gathered from the materials

available on record. According to the decision in

Kishun Singh’s case (supra), the Session Court has such

power under Section 193 of the Code. On the other hand,

in Ranjit Singh’s case (supra), it was held that from

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the stage of committal till the Session Court reached

the stage indicated in Section 230 of the Code, that

Court could deal only with the accused referred to in

Section 209 of the Code and there is no intermediary

stage till then enabling the Session Court to add any

other person to the array of the accused.

2. The Three-Judge Bench took note of the fact that

the effect of such a conclusion is that the accused

named in column 2 of the charge-sheet and not put up for

trial could not be tried by exercise of power by the

Session Judge under Section 193 read with Section 228 of

the Code. In other words, even when the Session Court

applied its mind at the time of framing of charge and

came to the conclusion from the materials available on

record that, in fact, an offence is made out against

even those who are shown in column 2, it has no power to

proceed against them and has to wait till the stage

under Section 319 of the Code is reached to include such

persons as accused in the trial if from the evidence

adduced, their complicity was also established. The

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further effect as noted by the Three-Judge Bench was

that in less serious offences triable by the Magistrate,

he would have the power to proceed against those

mentioned in column 2, in case he disagreed with the

police report, but in regard to serious offences triable

by the Court of Session, the Court could have to wait

till the stage of Section 319 of the Code was reached.

The Three-Judge Bench disagreed with the views expressed

in Ranjit Singh’s case, but since the contrary view

expressed in Ranjit Singh’s case had been taken by a

Three-Judge Bench, the Three-Judge Bench hearing this

matter, by its order dated 20

th

January, 2005, directed

the matter to be placed before the Chief Justice for

placing the same before a larger Bench.

3. In view of the above, the matter has been placed

before the Constitution Bench for consideration.

4. The questions which require the consideration of

the Constitution Bench are as follows:

(i) Does the Committing Magistrate have any other

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role to play after committing the case to the

Court of Session on finding from the police

report that the case was triable by the Court of

Session?

(ii)If the Magistrate disagrees with the police

report and is convinced that a case had also

been made out for trial against the persons who

had been placed in column 2 of the report, does

he have the jurisdiction to issue summons

against them also in order to include their

names, along with Nafe Singh, to stand trial in

connection with the case made out in the police

report?

(iii)Having decided to issue summons against the

Appellants, was the Magistrate required to

follow the procedure of a complaint case and to

take evidence before committing them to the

Court of Session to stand trial or whether he

was justified in issuing summons against them

without following such procedure?

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(iv)Can the Session Judge issue summons under

Section 193 Cr.P.C. as a Court of original

jurisdiction?

(v) Upon the case being committed to the Court of

Session, could the Session Judge issue summons

separately under Section 193 of the Code or

would he have to wait till the stage under

Section 319 of the Code was reached in order to

take recourse thereto?

(vi)Was Ranjit Singh's case (supra), which set aside

the decision in Kishun Singh's case(supra),

rightly decided or not?

5. The facts which led to the order of the learned

Magistrate, which was subsequently challenged in

Revision before the Session Judge and the High Court are

that except for one Nafe Singh, who was shown as an

accused, the Appellants Dharam Pal and others were

included in column 2 of the police report, despite the

fact that they too had been named as accused in the

First Information Report. After going through the

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police report, the learned Judicial Magistrate First

Class, Hansi, summoned the Appellant and three others,

who were not included as accused in the charge-sheet for

the purpose of facing trial along with Nafe Singh. The

learned Magistrate purported to act in exercise of his

powers under Section 190 of the Code, but without taking

recourse to the other provisions indicated in Sections

200 and 202 of the Code, before proceeding to issue

summons under Section 204 of the Code.

6. The order of the learned Magistrate was questioned

by way of Revision before the Additional Session Judge,

Hisar, in Criminal Revision No. 27 of 2000, who upheld

the order of the learned Magistrate and dismissed the

Revision. The order of the learned Session Judge was,

thereafter, challenged before the High Court, which also

upheld the views expressed by the learned Magistrate as

well as the Session Judge, and dismissed the Appellants’

application under Section 482 of the Code for quashing

the order dated 25

th

March, 2002, passed by the

Additional Session Judge, Hisar, affirming the order

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dated 21

st

July, 2000, of the Judicial Magistrate First

Class, Hansi, passed on an application filed under

Section 190 of the Code for summoning the Appellants in

connection with FIR No. 272 dated 13

th

October, 1999,

registered under Sections 307 and 323 read with Section

34 of the Indian Penal Code, with Narnaund Police

Station.

7. Appearing for the Appellants in Criminal Appeal

No. 148 of 2003, filed by Dharam Pal and Others, Mr.

Brijender Chahar, learned Senior Advocate, submitted

that the learned Session Judge and the High Court erred

in holding that the Committing Magistrate was competent

to entertain a protest petition in order to summon the

Appellants who had not been shown as accused in the

charge-sheet. Mr. Chahar contended that in fact the

Magistrate under the garb of a protest petition had

usurped the powers of the Session Judge under Section

319 of the Code in a case triable exclusively by the

Court of Session. Mr. Chahar urged that once a police

report was filed before a Magistrate, which disclosed

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that an offence had been committed, which was

exclusively triable by Court of Session, the Magistrate

had no other function but to commit the same to the

Court of Session, even if on looking into the police

report, he was convinced that the others mentioned in

column 2 of the police report were also required to be

sent up for trial. Mr. Chahar submitted that the

Magistrate had exceeded his jurisdiction and both the

Session Judge and the High Court had misconstrued the

provisions of Sections 190, 193 and 209 of the Code, in

upholding the order of the learned Magistrate. In this

regard, Mr. Chahar brought into focus the provisions of

the 1898 Code of Criminal Procedure and the

corresponding provisions in the present Code, which

replaced the 1898 Code. Learned counsel pointed out

that in Section 207A of the 1898 Code, the Magistrate

was mandatorily required to hold a mini-trial before

committing the case to the Court of Session, whereas

under Section 190 of the Code of 1973, the Magistrate,

having jurisdiction, may take cognizance of any offence:

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(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 report, or upon his own knowledge,

that such offence has been committed.

8. Mr. Chahar submitted that the difference in the

two provisions was intentional and had been made in

order to shorten the proceedings before the Magistrate.

Learned counsel submitted that, in terms of the old

Code, two stages of trial were contemplated which were

eliminated by the amended provisions of the Code of

1973. In such circumstances, the view expressed in

Ranjit Singh’s case appeared to be correct as against

the decision in Kishun Singh’s case, wherein it was held

that the Session Court had power under Section 193 of

the Code to take cognizance of the offence and summon

other persons, whose complicity in the commission of the

offence could prima facie be gathered from the materials

available on record.

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9. The submissions made in the above Appeal were also

reiterated in Criminal Appeal No. 865 of 2004, filed by

Naushad Ali, as the point involved in the said appeal is

more or less the same as in the appeal filed by Dharam

Pal and others.

10. Mr. Amarendra Sharan, learned Senior Advocate,

appearing for the Appellant in Criminal Appeal No. 1334

of 2005, took an additional ground that the order of the

learned Magistrate, as upheld by the superior Courts,

was in violation of the provisions of Article 21 of the

Constitution, inasmuch as, the learned Magistrate issued

summons to those included in column 2, without following

the procedure indicated in Sections 190, 200, 202 and

thereafter 204 of the Code. Mr. Sharan submitted that

when the Magistrate decided to take cognizance on the

basis of the protest petition filed in regard to the

charge-sheet filed by the investigating authorities, he

ought to have taken recourse to the provisions relating

to taking cognizance on the basis of a complaint within

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the meaning of Section 190(1)(a) of the aforesaid Code.

Not having done so, the order directing summons to issue

against the Appellants was in violation of the

provisions of Article 21 of the Constitution and was,

therefore, liable to be set aside.

11. Appearing for the Appellants in Criminal Appeal

No. 148 of 2003 and Criminal M.P. No. 12963 of 2013, Mr.

Siddhartha Dave, learned Advocate, submitted that in

order to appreciate the order of the Magistrate issuing

summons in a Session triable case, it would be necessary

to go back to the source of power of the Magistrate in

issuing summons to the Appellants under Section 204 of

the Code. Mr. Dave urged that the source of power of

the Magistrate to issue such summons could only be

traced back to Section 190(1)(b) of the Code, which

provides as follows:

“190.Cognizance of offences by Magis -

trates.-

(1) Subject to the provisions of this

Chapter, any Magistrate of the first

class, and any Magistrate of the second

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class specially empowered in this be -

half under sub-section (2), may take

cognizance of any offence -

(a) upon receiving a complaint of

facts which constitute such of -

fence;

(b) upon a police report of such

facts;

(c) upon information received from

any person other than a police of -

ficer, or upon his own knowledge,

that such offence has been commit -

ted.

(2) The Chief Judicial Magistrate may

empower any Magistrate of the second

class to take cognizance under sub-sec -

tion (1) of such offences as are within

his competence to inquire into or try.”

12. Mr. Dave submitted that it is only upon receipt of

a police report and the objection thereto that the

Magistrate may issue summons to the Appellants under

Section 204 of the Code, without taking any further

recourse to the other provisions relating to cognizance

of offences on a complaint petition. Mr. Dave submitted

that after taking cognizance upon a police report under

Section 190(1)(b), the next stage would be issuance of

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summons under Section 204 of the Code and there are no

intervening stages in the matter. Accordingly, the only

course available to the Committing Magistrate, on

receipt of a police report under Section 173(3) of the

Code, in a Session triable case, would be to commit the

case to the Court of Session, which could, thereafter,

take recourse to Section 319 of the Code, since it did

not have any other power to summon any other person

named in column 2 of the charge-sheet, without receiving

fresh evidence against them. Mr. Dave submitted that the

cognizance referred to in Section 193 of the Code would

be not of the offence in respect of which cognizance had

already been taken by the Magistrate, but cognizance of

the commitment of the case to the Court of Session for

trial.

13. Mr. Dave submitted that having regard to the

provisions of Section 204 of the Code, where some amount

of application of mind was required by the learned

Magistrate, the necessity of applying his mind by

holding an independent inquiry was minimal. It was

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urged that since the Magistrate had no power to proceed

to Section 190 of the Code, the matter has to be

committed to the Session Court, without any choice being

left to the learned Magistrate to take recourse to any

other course of action. In support of his submissions,

Mr. Dave referred to the decision of this Court in

Rashmi Kumar Vs. Mahesh Kumar Bhada [(1997) 2 SCC 397],

wherein the question of the court’s powers at the stage

of taking cognizance of an offence under Sections 190,

200 and 202 of the Code fell for consideration and it

was held that at the stage of taking cognizance of an

offence, the court should consider only the averments

made in the complaint as the court is not required to

sift or appreciate any evidence at that stage.

14. Mr. Dave also referred to the decision of this

Court in Indian Carat Pvt. Ltd. Vs. State of Karnataka

and Another [(1989) 2 SCC 132], wherein this Court has

held that despite a police report that no case had been

made out against an accused, the Magistrate could take

cognizance of the offence under Section 190(1)(b),

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taking into account the statement of witnesses made

under police investigation and issue process. Reference

was also made to the decision of this Court in

Abhinandan Jha Vs. Dinesh Mishra [(1967) 3 SCR 668], in

which the same view had been expressed. In the said

case, it was held that the Magistrate had no power to

direct the police to submit a charge-sheet, when the

police, after investigation into a cognizable offence,

had submitted a report of the action taken under Section

169 of the 1898 Code that there was no case made out for

sending of the accused for trial.

15. Mr. Dave also referred to the decision of this

Court in Raj Kishore Prasad Vs. State of Bihar and

Another [(1996) 4 SCC 495], in which it was also held

that while committing a case under Section 209 of the

Code, the Magistrate had no jurisdiction to associate

any other person as accused in exercise of powers under

Section 319 of the Code or under any other provision.

It was further observed that a proceeding under Section

209 of the Code before a Magistrate is not an inquiry

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and material before him is not evidence. It is only

upon committal can the Court of Session exercise

jurisdiction under Section 319 of the Code and add a new

accused, on the basis of evidence recorded by it. Mr.

Dave also urged that in the decision of this Court in

SWIL Limited (supra), which was one of the cases brought

to the notice of the Referring Court, it was held that a

person not mentioned as accused in the charge-sheet

could also be summoned by the Magistrate after taking

cognizance of the offence, if some material was found

against him, having regard to the FIR, his statement

recorded by the police and other documents. It was also

held that Section 319 of the Code did not operate in

such a situation. Mr. Dave submitted that the aforesaid

decision had not taken note of the decision in Raj

Kishore Prasad’s case (supra), wherein just the contrary

view had been taken and was, therefore, per incuriam.

Mr. Dave submitted that the entire exercise undertaken

by the Magistrate was contrary to the provisions of law

and orders summoning the Appellants as accused in these

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cases, were, therefore, liable to be quashed.

16. On behalf of the State, it was sought to be urged

by Mr. Rajeev Gaur ‘Naseem’, learned AAG, that under

Section 193 of the Code, the Session Court was entitled

to take cognizance and issue summons. Contrary to what

had been indicated by the Referring Court, Mr. Gaur

urged that the law had been correctly stated in Kishun

Singh’s case (supra) and the Session Court, after

receiving the case for commitment, was entitled under

Section 193 of the Code to take cognizance and issue

summons to those not named as accused in the charge-

sheet.

17. Mr. Gopal Singh, learned Standing Counsel for the

State of Bihar, appearing in three of the matters,

submitted that the question has been considered in the

case of Kishori Singh (supra), in which the view

expressed in Ranjit Singh’s case (supra) was followed

and it was held that under the scheme of the Code, in a

case where the offence is triable solely by the Court of

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Session, when the police files a charge-sheet and arrays

some only as accused persons, though many more might

have been named in the FIR, the Magistrate or even the

Session Judge would have no jurisdiction to array them

as accused persons at a stage prior to Section 319 of

the Code, when some evidence or materials were collected

during the trial.

18. In the last of several matters heard by this

Court, namely, Criminal Appeal No. 1334 of 2005, filed

by one Chandrika Prasad Yadav against the State of

Bihar, Mr. K.K. Tyagi, learned counsel, appearing for

the Respondent No. 2 – complainant, contended that the

Magistrate had sufficient powers to issue process

against those persons who had not been shown as accused,

but had been included in column 2 of the charge-sheet,

even after cognizance was taken. He referred to various

decisions, which had already been referred to by the

other counsel.

19. Even in Criminal Appeal No. 865 of 2004, Mr.

Shishir Pinaki, learned Advocate appearing for

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Respondent No. 2 (complainant), urged that the

Magistrate has been vested with control over the

proceedings under Article 20 of the Constitution and

hence it was within his powers to issue summons under

Section 204 of the Code, even if he disagreed with the

police report filed under Section 173(3) of the Code,

without taking recourse to the provisions of Section

202, before proceeding to issue process under Section

204 of the Code.

20. The issue in the Reference being with regard to

the powers of the Magistrate to whom a report is

submitted by the police authorities under Section 173(3)

of the Code, it is necessary for us to examine the

scheme of Chapter XIV of the Code, dealing with the

conditions requisite for initiation of proceedings.

21. Section 190, which has been extracted

hereinbefore, empowers any Magistrate of the First Class

or the Second Class specially empowered in this behalf

under Sub-section (2) to take cognizance of any offence

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in three contingencies. In the instant case, we are

concerned with the provisions of Section 190(1)(b) since

a police report has been submitted by the police, under

Section 173(3) of the Code sending up one accused for

trial, while including the names of the other accused in

column 2 of the report. The facts as revealed from the

materials on record and the oral submissions made on

behalf of the respective parties indicate that, on

receiving such police report, the learned Magistrate did

not straight away proceed to commit the case to the

Court of Session but, on an objection taken on behalf of

the complainant, treated as a protest petition, issued

summons to those accused who had been named in column 2

of the charge-sheet, without holding any further

inquiry, as contemplated under Sections 190, 200 or even

202 of the Code, but proceeded to issue summons on the

basis of the police report only. The learned Magistrate

did not accept the Final Report filed by the

Investigating Officer against the accused, whose names

were included in column 2, as he was convinced that a

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prima facie case to go to trial had been made out

against them as well, and issued summons to them to

stand trial with the other accused, Nafe Singh. The

questions which have arisen from the procedure adopted

by the learned Magistrate in summoning the Appellants to

stand trial along with Nafe Singh, have already been set

out hereinbefore in paragraph 4 of this judgment.

22. As far as the first question is concerned, we are

unable to accept the submissions made by Mr. Chahar and

Mr. Dave that on receipt of a police report seeing that

the case was triable by Court of Session, the Magistrate

had no other function, but to commit the case for trial

to the Court of Session, which could only resort to

Section 319 of the Code to array any other person as

accused in the trial. In other words, according to Mr.

Dave, there could be no intermediary stage between

taking of cognizance under Section 190(1)(b) and Section

204 of the Code issuing summons to the accused. The

effect of such an interpretation would lead to a

situation where neither the Committing Magistrate would

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have any control over the persons named in column 2 of

the police report nor the Session Judge, till the

Section 319 stage was reached in the trial.

Furthermore, in the event, the Session Judge ultimately

found material against the persons named in column 2 of

the police report, the trial would have to be commenced

de novo against such persons which would not only lead

to duplication of the trial, but also prolong the same.

23. The view expressed in Kishun Singh's 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

Section 173(3) of the Code and to proceed against the

accused persons dehors the police report, which power

the Session 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

disagree with the police report filed under Section

173(3) of the Code, he was helpless in taking recourse

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to such a course of action while the Session Judge was

also unable to proceed against any person, other than

the accused sent up for trial, till such time evidence

had been adduced and the witnesses had been cross-

examined on behalf of the accused.

24. 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(3) Cr.P.C. 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

no.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.

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25. This brings us to the third question as to the

procedure to be followed by the Magistrate if he was

satisfied that a prima facie case had been made out to

go to trial despite the final report submitted by the

police. In such an event, if the Magistrate decided to

proceed against the persons accused, he would have to

proceed on the basis of the police report itself and

either inquire into the matter or commit it to the Court

of Session if the same was found to be triable by the

Session Court.

26. Questions 4, 5 and 6 are more or less inter-

linked. The answer to question 4 must be in the

affirmative, namely, that the Session Judge was entitled

to issue summons under Section 193 Cr.P.C. upon the case

being committed to him by the learned Magistrate.

Section 193 of the Code speaks of cognizance of offences

by Court of Session and provides as follows :-

“193. Cognizance of offences by Courts of

Session. - Except as otherwise expressly

provided by this Code or by any other law for

Page 26 26

the time being in force, no Court of Session

shall take cognizance of any offence as a Court

of original jurisdiction unless the case has

been committed to it by a Magistrate under this

Code.”

The key words in the Section are that “no Court of

Session shall take cognizance of any offence as a Court

of original jurisdiction unless the case has been

committed to it by a Magistrate under this Code.” The

above provision entails that a case must, first of all,

be committed to the Court of Session by the Magistrate.

The second condition is that only after the case had

been committed to it, could the Court of Session take

cognizance of the offence exercising original

jurisdiction. Although, an attempt has been made by Mr.

Dave to suggest that the cognizance indicated in Section

193 deals not with cognizance of an offence, but of the

commitment order passed by the learned Magistrate, we

are not inclined to accept such a submission in the

clear wordings of Section 193 that the Court of Session

may take cognizance of the offences under the said

Section.

Page 27 27

27. This takes us to the next question as to whether

under Section 209, the Magistrate was required to take

cognizance of the offence before committing the case to

the Court of Session. It is well settled that

cognizance 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, proceed to issue summons, is not in

accordance with law. If cognizance is to be taken of

the offence, it could be taken either by the Magistrate

or by the Court of Session. The language of Section 193

of the Code very clearly indicates that once the case is

committed to the Court of Session by the learned

Magistrate, the Court of Session assumes original

jurisdiction and all that goes with the assumption of

such jurisdiction. The provisions of Section 209 will,

therefore, have to be understood as the learned

Magistrate playing a passive role in committing the

case to the Court of Session on finding from the police

Page 28 28

report that the case was triable by the Court of

Session. Nor can there by any question of part

cognizance being taken by the Magistrate and part

cognizance being taken by the learned Session Judge.

28. In that view of the matter, we have no hesitation

in agreeing with the views expressed in Kishun Singh’s

case (supra) that the Session Courts 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 on record. Hence, even without

recording evidence, upon committal under Section 209,

the Session Judge may summon those persons shown in

column 2 of the police report to stand trial along with

those already named therein.

29. We are also unable to accept Mr. Dave’s submission

that the Session Court would have no alternative, but to

wait till the stage under Section 319 Cr.P.C. was

reached, before proceeding against the persons against

Page 29 29

whom a prima facie case was made out from the materials

contained in the case papers sent by the learned

Magistrate while committing the case to the Court of

Session.

30. The Reference to the effect as to whether the

decision in Ranjit Singh’s case (supra) was correct or

not in Kishun Singh’s case (supra), is answered by

holding that the decision in Kishun Singh’s case was the

correct decision and the learned Session Judge, acting

as a Court of original jurisdiction, could issue summons

under Section 193 on the basis of the records

transmitted to him as a result of the committal order

passed by the learned Magistrate.

31. Consequent upon our aforesaid decision, the view

taken by the Referring Court is accepted and it is held

that the decision in the case of Kishun Singh vs. State

of Bihar and not the decision in Ranjit Singh Vs. State

of Punjab lays down the law correctly in respect of the

powers of the Session Court after committal of the case

Page 30 30

to it by the learned Magistrate under Section 209

Cr.P.C.

32. The matter is remitted to the Three-Judge Bench to

dispose of the pending Criminal Appeals in accordance

with the views expressed by us in this judgment.

………………………………………………… CJI.

(ALTAMAS KABIR)

…………… ...…………………………………… J

(SURINDER SINGH NIJJAR)

…………………………………………………… J.

(RANJAN GOGOI)

…………………………………………………… J.

(M.Y. EQBAL)

…………………………………………………… J.

(VIKRAMAJIT SEN)

New Delhi

Dated: July 18,2013.