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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 443 OF 2022

(Arising out of Petition for Special Leave to Appeal

(Crl.) No.8447 OF 2015)

NAHAR SINGH .....APPELLANT(S)

VERSUS

THE STATE OF UTTAR PRADESH

& ANR. …..RESPONDENT (S)

J U D G M E N T

ANIRUDDHA BOSE , J.

Leave granted.

2. The question which we shall be addressing in this appeal

is whether a Magistrate taking cognizance of an offence on the

basis of a police report in terms of Section 190 (1)(b) of The Code

of Criminal Procedure, 1973 (the Code) can issue summons to

any person not arraigned as an accused in the police report and

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whose name also does not feature in column (2) of such report.

In this case the person concerned, being the appellant, was not

named in the First Information Report either. The High Court of

Judicature at Allahabad has opined on this question in the

affirmative in the judgment delivered on 14

th May, 2015. This

judgment is under appeal before us. The Chief Judicial

Magistrate (CJM), Bulandshahr, Uttar Pradesh had taken

cognizance of offences under Sections 363, 366 and 376 of the

Indian Penal Code, 1860 (1860 Code) on 8

th August, 2012 on the

basis of police report. These are offences triable before a Court

of Session. The police report had named two individuals as

accused-Yogesh and Rupa (the spelling of the name of the latter

has been interchangeably used in different proceedings

emanating from the First Information Report (F.I.R.) as Roopa

and Rupa). The police report was made on the basis of an F.I.R

made by the mother of a lady victim (prosecutrix) on 9

th May,

2012 in Police Station Chhatari, sub-district Shikarpur in the

district of Bulandshahr, Uttar Pradesh. In this F.I.R, she stated

that on 4

th May, 2012, her minor daughter was enticed away by

said Yogesh and his two or three associates. Later on, a

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radiologist on the basis of x-ray had found her to be a major,

aged about 18 years. But the age-issue of the victim is not in

controversy involved in this appeal.

3. The Investigating Officer recovered the prosecutrix on 10

th

May, 2012. Her statement under Section 161 of the Code was

recorded on 10

th May itself. In her statement, in substance, she

stated that Yogesh had committed rape upon her. The victim

was, thereafter, produced before the Additional Chief Judicial

Magistrate, Bulandshahr and her statement under Section 164

of the Code was recorded on 14

th May, 2012. In that statement,

she had disclosed the names of the accused Rupa, Yogesh as also

the appellant herein-Nahar Singh, as the persons who had

committed rape upon her. Her statement, inter -alia, was

recorded in the following terms:-

“It is an incident of 02.5.2012. It was 12 O’clock in the day.

I was standing at the bus stand at that time. Two persons

Rupa and Yogesh were standing there. Both of them

forcibly took me to Pahasu. Both of them telephoned Nahar

Singh there. He came there with a vehicle and all of them

made me sit in that four wheeler vehicle and took me from

there to Khurja. After closing the vehicle all of them took

turns of rape on me. Thereafter, all of them consumed

liquor and also forcibly made me drink liquor by putting it

in Pepsi. Then again all of them forcibly raped me and

threatened me if you may not live as wife of Yogesh we will

ruin your family. These people made me unconscious and

dressed me in bangles, Bichhia and also filled my Maang

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and left me at Kamauna. I want to go with my father and

mother.”

(quoted verbatim from the copy of the statement as

annexed to the paperbook)

4. In her initial statement recorded under Section 161 of the

Code, the name of Nahar Singh did not figure. The chargesheet

was submitted subsequently, in which Yogesh and Rupa were

arraigned as accused persons. On 8

th August, 2012, the CJM,

Bulandshahr took cognizance of offence under Sections 363, 366

and 376 of the 1860 Code against accused Yogesh and R upa.

The de facto complainant, being mother of the victim thereafter

had filed an application before the Court of the CJM in Criminal

Case No. 102/2012 praying for an order requiring appearance of

the appellant before the Court. In this application, it was inter-

alia, stated:-

“Accused Yogesh and Rupa are in judicial custody of the

District Jail. Accused Nahar Singh is not arrested.

Accused Nahar Singh has threatened the complainant and

her family for number of times that they may withdraw the

case against him otherwise he will implicate them in any

false case. In this regard the complainant has submitted

application before the Police Officers for arrest of Nahar

Singh and for the safety and security of her family.

Thereafter, the investigation of this case is transferred

from PS: Chhattari to PS: Dibai. The Investigating Officer

of PS: Dibai didn’t conduct impartial investigation. Despite

having sufficient evidence against accused Nahar Singh

the charge sheet is not submitted and the name of Nahar

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Singh is deleted whereas accused Rupa and Nahar Singh

have committed an offence of rape with xxxx against her

consent, as is evident from statement recorded under

sections 161 and 164 Cr.P.C. There are sufficient grounds

in the case diary to summon accused Nahar Singh in the

matter. The complainant and her daughter had also given

statement before the I.O. of PS: Dibai for commission of

offence of rap by Nahar Singh. As per the provisions of

Section 190 Cr.P.C. the court takes cognizance for the

offence and not for the accused.

Therefore, it is prayed that this Hon’ble Court may pass

an order against accused Nahar Singh son of Megh Singh,

resident of village Waan, PS: Chhattari to appear before

the court. I shall be grateful to you.”

(quoted verbatim from the copy o f the application as

annexed to the paperbook. Name of the victim has been

masked with xxxx)

5. In an order passed on 7

th November, 2012, the CJM found

that there was no ground to summon the appellant for trial and

the said application was dismissed. The file was directed to be

presented for commitment on 16

th November, 2012. Against this

order, the de facto complainant invoked the revisional

jurisdiction of the Sessions Judge. Her application was registered

as Criminal Revision No.588/2012 and was listed before

Additional District and Sessions Judge Court No. 1,

Bulandshahr. We find from the order of the Revisional Court

passed on 13

th January, 2015 that investigation of this case was

transferred from the first Investigating Officer of police station

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Chhatari to the Inspector in-charge of Police Station, Dibai, Shri

Ashok Kumar Yadav. There was thus, change of the police

station also. The chargesheet was submitted by the latter on the

basis of which cognizance was taken. In the aforesaid order, the

sequence of events showing the trajectory of the investigation

was recorded by the Revisional Court in the following manner:-

“After the recovery of the daughter of the complainant the

I.O. recorded her statement on 10.5.2012 under Section

161 Cr.P.C. Accused xxxx mentioned the name of accused

Yogesh only in her statement whom she has stated to have

induced and abducted her. Thereafter, the statement of

the abducted was recorded under Section 164 Cr.P.C. on

14.5.2012 before the Magistrate wherein the victim stated

that other than Yogesh two more persons being Rupa and

Nahar Singh were involved in the offence. While

mentioning the aforesaid statement made under section

164 Cr.P.C. on 19.50.2012 in Case Diary the I.O. added

section 376(g) I.P.C. as two more persons being Rupa and

Nahar Singh were implicated in the offence. Upon adding

section 376(g) in the matter the then S.H.O. Hari sh

Vardhan Singh took over the investigation and recorded

the statements of the brother of the victim Sonu son of Sh.

Ramesh Chand resident of villag Waan and another person

Boby son of Babu Lal resident of village Waan on 3.6.2012.

Both the witnesses substantiated the occurrence of

incident. It appears from the perusal of records that on an

application of proposed accused Nahar Singh the

Superintendent of Police, Bulandshehar transferred the

investigation from Police Station Chhattari to Police

Station Dibai on 14.6.2012 and entrusted the

investigation to I.O. Ashok Kumar. The aforesaid Ashok

Kumar Yadav, the in-charge Inspector of Police Station

Dibai, during the investigation, again recorded the

statements of victim xxxx, her mother Smt. Kam lesh,

complainant under Section 161 Cr.P.C and concluded that

Nahar Singh son of Sh. Megh Singh resident of village

Waan had no role in the abduction of xxxx nor he

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committed any offence like rape with her. He was

implicated by complainant and the opposite party of Nahar

Singh only due to enmity in the village. As a result, the I.O.

filed charge sheet against the nominated accused Yogesh

and co-accused Rupa.”

(quoted verbatim from the copy of the Revisional Court’s

judgment as annexed to the paperbook .

Name of the victim has been masked with xxxx)

6. The Revisional Court set aside the order passed by the

CJM on 7

th November, 2012 by which the application of the

de facto complainant was rejected. The matter was remanded to

the Court of the CJM and the latter was directed to dispose of

the said application in view of the observations made in the

judgment of the Revisional Court. It was also observed in the

order of the Revisional Court that the Magistrate should pass a

lawful order to summon the accused, Nahar Singh in the matter.

This order was passed on 13

th January, 2015.

7. Thereafter, the CJM heard the matter on remand and in

an order passed on 5

th February 2015, Nahar Singh (the

appellant) was directed to be summoned for tr ial on 21

st

February, 2015. This order of the CJM was challenged by the

appellant by filing a Criminal Revision Petition before the

Sessions Judge, Bulandshahr. By a decision delivered on 20

th

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April, 2015, the revisional application was dismissed. Against

this order of dismissal, the appellant approached the High Court

of Judicature at Allahabad by filing a Criminal Miscellaneous

Writ Petition bearing No. 11538/2015. Before the High Court,

apart from other points, it was argued that exercise of

jurisdiction by the CJM, under Section 190 (1)(b) of the Code was

impermissible in the subject case. The appellant’s case was that

as he had not been named as accused in the chargesheet, he

could only be summoned in exercise of jurisdiction under Section

319 of the Code. Such submissions have been recorded in the

judgment under appeal.

Section 190 of the Code reads:-

“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.”

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8. In the judgment under appeal delivered on 14

th May, 2015,

the High Court reiterated the well established principle of

criminal jurisprudence that cognizance taken by the Magistrate

is of an offence and not of an offender. The High Court held that

it was the duty of the Magistrate to find out with respect to the

complicity of any person apart from those who were

chargesheeted by sifting the corroborative evidence on record. In

case the Magistrate came to the conclusion that there was

clinching evidence supporting the allegations made against

persons who have not been chargesheeted, it was his duty to

proceed against such persons as well by summoning them. It

was, inter-alia, held by the High Court in the judgment under

appeal:-

“The summoning of additional accused person is an

integral part of the proceedings where allegations of facts

constituting an offence is made out for taking cognizance.

At the time of taking cognizance, the Magistrate has only

to see whether prima facie there are cogent reasons for

issuing the process. The Magistrate is fully competent to

take cognizance of an offence and there is no bar under

section 190 Cr.P.C. that once the process is issued against

some of the accused persons, the Magistrate can not issue

process to some other person against whom charge sheet

was not submitted and against whom there is some

material on record. The investigation was transferred at

the instance of the accused persons who did not have any

locus to direct the investigation to be transferred from one

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police station to another police station. Only when the

investigation was transferred to another police station on

further investigation the witnesses were re-examined

under section 161 Cr.P.C pursuant to which the charge

sheet was submitted against Yogesh and Roopa. Section

376(g) IPC was also added after recording the statement of

the victim recorded under section 164 Cr.P.C which is a

public document but the investigating officer did not

seriously show or attach any importance to the statement

recorded under section 164 Cr.P.C before the court and

proceeded to exonerate the applicant which clearly show

the manner in which the investigation was done by Sri

Harsh Vardhan, the investigating officer on the direction

of S.S.P.Bulandshahar. The mere fact that the statement

of the victim was subsequently recorded will not

overshadow the statement recorded under section 164

Cr.P.C. The victim cannot be treated with suspicion or

discredited that she had not disclosed the complicity of the

applicant in her statement under section 161 Cr.P.C.”

(quoted verbatim from the copy of the impugned

judgment as annexed to the paperbook)

9. As regards the point of law with which we are dealing with

in this appeal, in the impugned judgment, the High Court had

relied on decision of a Coordinate Bench of this Court in the case

of SWIL Ltd. vs. State of Delhi and Another [(2001) 6 SCC 670].

In this decision, argument was advanced that under Section 190

of the Code, once process is issued against some accused, the

Magistrate cannot issue process to any other accused against

whom there might be materials on record. Such argument was

repelled. It was held by the Coordinate Bench in this case:-

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“7. Further, in the present case, there is no question of

referring to the provisions of Section 319 CrPC. That

provision would come into operation in the course of any

enquiry into or trial of an offence. In the present case,

neither the Magistrate was holding enquiry as

contemplated under Section 2(g) CrPC nor had the trial

started. He was exercising his jurisdiction under Section

190 of taking cognizance of an offence and issuing process.

There is no bar under Section 190 CrPC that once the

process is issued against some accused, on the next date,

the Magistrate cannot issue process to some other person

against whom there is some material on record, but his

name is not included as accused in the charge-sheet.”

10. There was divergence of views of different Benches of this

Court on this point and ultimately the issue has been settled by

a Constitution Bench in the case of Dharam Pal and Others vs.

State of Haryana and Another [(2014) 3 SCC 306]. Before

dealing with the ratio of this decision, we shall narrate the

journey of the legal dispute to that stage, which has been

recorded in the judgment of Dharam Pal (supra) itself by the

Constitution Bench:-

“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 Kishori

Singh v. State of Bihar, [(2004) 13 SCC 11: (2006) 1 SCC

(Cri) 275]; Rajinder Prasad v. Bashir [(2001) 8 SCC 522:

2002 SCC (Cri) 28] and SWIL Ltd. v. State of Delhi, [(2001)

6 SCC 670: 2001 SCC (Cri) 1205]. When the matter was

taken up for consideration by the three-Judge Bench on 1-

12-2004 [Dharam Pal v. State of Haryana, (2004) 13 SCC

9: (2006) 1 SCC (Cri) 273], 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 Kishun

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Singh v. State of Bihar, [(1993) 2 SCC 16: 1993 SCC (Cri)

470], and the other is a decision of a three-Judge Bench

in Ranjit Singh v. State of Punjab, [(1998) 7 SCC 149: 1998

SCC (Cri) 1554].

2. Ranjit Singh case [(1998) 7 SCC 149 : 1998 SCC (Cri)

1554] disapproved the observations made in Kishun Singh

case [(1993) 2 SCC 16 : 1993 SCC (Cri) 470] which was to

the effect that the Sessions 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.

3. According to the decision in Kishun Singh case [(1993)

2 SCC 16 : 1993 SCC (Cri) 470], the Sessions Court has

such power under Section 193 of the Code. On the other

hand, in Ranjit Singh case [(1998) 7 SCC 149 : 1998 SCC

(Cri) 1554], it was held that from the stage of committal till

the Sessions 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 Sessions Court

to add any other person to the array of the accused.

4. The three-Judge Bench [ Dharam Pal v. State of

Haryana, (2004) 13 SCC 9 : (2006) 1 SCC (Cri) 273] 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 Sessions Judge under Se ction 193 read with

Section 228 of the Code. In other words, even when the

Sessions 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 the accused in the trial if from the evidence

adduced, their complicity was also es tablished. The

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

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Session, the Court would have to wait till the stage of

Section 319 of the Code was reached.

5. The three-Judge Bench disagreed with the views

expressed in Ranjit Singh case [(1998) 7 SCC 149 : 1998

SCC (Cri) 1554], but since the contrary view expressed

in Ranjit Singh case [(1998) 7 SCC 149 : 1998 SCC (Cri)

1554] had been taken by a three-Judge Bench, the three-

Judge Bench hearing this matter, by its order dated 1-12-

2004 [Dharam Pal v. State of Haryana, (2004) 13 SCC 9 :

(2006) 1 SCC (Cri) 273] , directed the matter to be placed

before the Chief Justice for placing the same before a larger

Bench.”

11. The questions which were formulated for answer by the

Constitution Bench in the case of Dharam Pal (supra) were:-

“7.1. Does the Committing Magistrate have any other 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?

7.2. 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?

7.3. 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?

7.4. Can the Sessions Judge issue summons under

Section 193 CrPC as a court of original jurisdiction?

7.5. Upon the case being committed to the Court of

Session, could the Sessions Judge issue summons

separately under Section 193 of the Code or would he have

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to wait till the stage under Section 319 of the Code was

reached in order to take recourse thereto?

7.6. Was Ranjit Singh case [(1998) 7 SCC 149 : 1998 SCC

(Cri) 1554], which set aside the decision in Kishun Singh

case [(1993) 2 SCC 16 : 1993 SCC (Cri) 470] , rightly

decided or not?”

12. As regards scope of jurisdiction of the Magistrate in a

situation of this nature, it was held by the Constitution Bench in

the case of Dharam Pal (supra):-

“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.

36. 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 Sessions Court.”

13. Another Constitution Bench in the case of Hardeep Singh

vs. State of Punjab and Others [(2014) 3 SCC 92] followed

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Dharam Pal (supra). It was opined by the Constitution Bench in

the case of Hardeep Singh (supra):-

“111. Even the Constitution Bench in Dharam Pal

(CB) [(2014) 3 SCC 306 : AIR 2013 SC 3018] has held that

the Sessions Court can also exercise its original

jurisdiction and summon a person as an accused in case

his name appears in Column 2 of the charge-sheet, once

the case had been committed to it. It means that a person

whose name does not appear even in the FIR or in the

charge-sheet or whose name appears in the FIR and

not in the main part of the charge-sheet but in Column

2 and has not been summoned as an accused in

exercise of the powers under Section 1 93 CrPC can

still be summoned by the court, provided the court is

satisfied that the conditions provided in the said

statutory provisions stand fulfilled.”

(emphasis added)

14. Earlier, a Coordinate Bench in the case of Raj Kishore

Prasad vs. State of Bihar and Another [(1996) 4 SCC 495]

expressed the view that power under Section 209 of the Code to

summon a new offender was not vested with a Magistrate. In this

decision, the correctness of the view taken in the cases of Kishun

Singh & Others vs. State of Bihar [(1993) 2 SCC 16] and Nisar

and Another vs. State of U.P. [(1995) 2 SCC 23] was doubted.

The latter decision followed Kishun Singh (supra). The

Constitution Bench in the case of Dharam Pal (supra) affirmed

the view taken by this Court in the case of Kishun Singh (supra)

and overruled Raj Kishore Prasad (supra). In fact, again a

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Coordinate Bench in the case of Balveer Singh and Another vs.

State of Rajasthan and Another [(2016) 6 SCC 680] has

followed both Dharam Pal (supra) and Kishun Singh (supra). In

the latter authority (i.e., Kishun Singh), it was, inter-alia, held:-

“13. The question then is whether de hors Section 319 of

the Code, can similar power be traced to any other

provision in the Code or can such power be implied from

the scheme of the Code? We have already pointed out

earlier the two alternative modes in which the Criminal

Law can be set in motion; by the filing of information with

the police under Section 154 of the Code or upon receipt

of a complaint or information by a Magistrate. The former

would lead to investigation by the police and may

culminate in a police report under Section 173 of the Code

on the basis whereof cognizance may be taken by the

Magistrate under Section 190(1)(b) of the Code. In the

latter case, the Magistrate may either order investigation

by the police under Section 156(3) of the Code or himself

hold an inquiry under Section 202 before taking

cognizance of the offence under Section 190(1)(a) or (c), as

the case may be, read with Section 204 of the Code. Once

the Magistrate takes cognizance of the offence he may

proceed to try the offender (except where the case is

transferred under Section 191) or commit him for trial

under Section 209 of the Code if the offence is triable

exclusively by a Court of Session. As pointed out earlier

cognizance is taken of the offence and not the offender.

This Court in Raghubans Dubey v. State of Bihar [(1967) 2

SCR 423 : AIR 1967 SC 1167 : 1967 Cri LJ 1081] stated

that once cognizance of an offence is taken it becomes the

Court's duty ‘to find out who the offenders really are’ and

if the Court finds ‘that apart from the persons sent up by

the police some other persons are involved, it is its duty to

proceed against those persons’ by summoning them

because ‘the summoning of the additional accused is part

of the proceeding initiated by its taking cognizance of an

offence’. Even after the present Code came into force, the

legal position has not undergone a change; on the contrary

the ratio of Dubey case [(1967) 2 SCR 423 : AIR 1967 SC

1167 : 1967 Cri LJ 1081] was affirmed in Hareram

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Satpathy v. Tikaram Agarwala [(1978) 4 SCC 58 : 1978

SCC (Cri) 496 : (1979) 1 SCR 349 : AIR 1978 SC 1568].

Thus far there is no difficulty.”

15. There is a difference so far as the position of law on which

the opinions of the two Constitution Benches were delivered in

relation to the facts of the present case. In the cases of Dharam

Pal (supra) and Hardeep Singh (supra), summons were issued

against the persons whose names had figured in column (2) of

the chargesheet. Both these authorities also dealt with exercise

of jurisdiction of the Court of Session under Section 193 of the

Code. This provision reads:-

“193. Cognizance of offences by Courts of Session.

Except as otherwise expressly provided by this Code or by

any other law for the time being in force, no Court of

Session shall take cognizance of any offence as a Court of

original jurisdiction unless the case has been committed

to it by a Magistrate under this Code.”

16. It would appear from the Code that the jurisdiction to take

cognizance has been vested in the Magistrate (under Section 190

thereof) as also Court of Session under Section 193, which we

have quoted above. This question has been examined in the case

of Dharam Pal (supra) and on this point it has been held:-

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“39. This takes us to the next question as to whether

under Section 209, the Magistrate was required to take

cognizance of the offence before committing the case to 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 report that the case was triable

by the Court of Session. Nor can there be any question of

part cognizance being taken by the Magistrate and part

cognizance being taken by the learned Sessions Judge.”

(emphasis added)

The scope of jurisdiction of the Magistrate in taking

cognizance of an offence was earlier examined by a three-judge

Bench of this court in the case of Raghubans Dubey vs. State

of Bihar [AIR 1967 SC 1167]. This authority was relied upon by

the Coordinate Bench in the case of Kishun Singh (supra).

Dealing with broadly similar provisions of the old Code, of 1898,

it was observed by this Court:-

“8. ……….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

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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. As pointed out by

this Court in Pravin Chandra Mody v. State of Andhra

Pradesh [(1965) 1 SCR 269] the term “complaint” would

include allegations made against persons unknown. If a

Magistrate takes cognizance under Section 190(1)(a) on

the basis of a complaint of facts he would take cognizance

and a proceeding would be instituted even though persons

who had committed the offence were not known at that

time. The same position prevails, in our view, under

Section 190(1)(b).”

17. In the case of Kishun Singh (supra), the scope of

jurisdiction of the Court of Session under Section 193 of the Code

was explained, relying on an authority dealing with similar

provision under the 1898 Code (P.C. Gulati vs. Lajya Ram and

Others [AIR 1966 SC 595]). The phrase used to explain the

implication of taking cognizance by a Court of Session in the

judgment of Kishun Singh (supra) was “cognizance in the limited

sense.” In paragraph 8 of the report (in Kishun Singh’s case), it

has been held observed:-

“8. Section 193 of the old Code placed an embargo on the

Court of Session from taking cognizance of any offence as

a court of original jurisdiction unless the accused was

committed to it by a Magistrate or there was express

provision in the Code or any other law to the contrary. In

the context of the said provision this Court in P.C.

Gulati v. L.R. Kapur [(1966) 1 SCR 560, 568 : AIR 1966 SC

595 : 1966 Cri LJ 465] observed as under:

“When a case is committed to the Court of

Session, the Court of Session has fir st to

Page | 20

determine whether the commitment of the case

is proper. If it be of opinion that the commitment

is bad on a point of law, it has to refer the case

to the High Court which is competent to quash

the proceeding under Section 215 of the Code. It

is only when the Sessions Court considers the

commitment to be good in law that it proceeds

with the trial of the case. It is in this context that

the Sessions Court has to take cognizance of the

offence as a court of original jurisdiction and it

is such a cognizance which is referred to in

Section 193 of the Code.””

18. Jurisdiction of the Magistrate to take cognizance of an

offence triable by a Court of Session is not in controversy before

us. The course open to a Magistrate on submission of a police

report has been discussed in the case of Dharam Pal (supra). In

paragraph 39 of the report in Dharam Pal’s case, such power or

jurisdiction of the Magistrate has been spelt out. We have quoted

this passage earlier in this judgment.

19. The other difference so far as this case is concerned in

relation to the factual basis on which the decision of the

Constitution Bench in Dharam Pal (supra) as also the judgment

in the case of Raghubans Dubey (supra) were delivered is that

in both these cases, the names of the persons arraigned as

accused had figured in column (2) of the charge sheet. This

column, as it appears from the judgment in the case of

Page | 21

Raghubans Dubey (supra), records the name of a person under

the heading “not sent up”. In that case, the person

concerned was named in the F.I.R. But that factor, by itself, in

our opinion ought not to be considered as a reason for the

Court in not summoning an accused not named in the F.I.R. and

whose name also does not feature in chargesheet at all. These

judgments were delivered in cases whe re the names of the

persons sought to be arraigned as accused appeared in

column (2) of the police report . In our opinion the

legal proposition laid down while dealing with this point was not

confined to the power to summon those persons only, whose

names featured in column (2) of the chargesheet. In the case of

Dharam Pal (supra), the second point formulated (para 7.2)

related to persons named in column (2), but the issue

before the Constitution Bench related to that category of persons

only. This is the position of law enunciated in the cases of

Hardeep Singh (supra) and Raghubans Dubey (supra). In the

latter authority, the duty of the Court taking cognizance of an

offence has been held “to find out who the offenders really are

and once he comes to the conclusion that apart from the persons

Page | 22

sent up by the police some other persons are involved, it is his

duty to proceed against those persons”. Such duty to proceed

against other persons cannot be held to be confined to only those

whose names figure in column (2) of the chargesheet. As we have

already observed that in the aforesaid authorities, the question

of summoning the per sons named in column (2) of the

chargesheet was involved, in our opinion inclusion in column (2)

was not held to be the determinant factor for summoning persons

other than those named as accused in the police report or

chargesheet. The principle of law enunciated in Raghubans

Dubey (supra), Dharam Pal (supra) and Hardeep Singh (supra)

does not constrict exercise of such power of the Court taking

cognizance in respect of this category of persons (i.e., whose

names feature in column (2) of the chargesheet).

20. In the cases of Raghubans Dubey (supra), SWIL Ltd.

(supra) and Dharam Pal (supra), the power or jurisdiction of the

Court or Magistrate taking cognizance of an offence on the basis

of a police report to summon an accused not named in the police

report, before commitment has been analysed. The uniform view

on this point, irrespective of the fact as to whether cognizance is

Page | 23

taken by the Magistrate under Section 190 of the Code or

jurisdiction exercised by the Court of Session under Section 193

thereof is that the aforesaid judicial authorities would not have

to wait till the case reaches the stage when jurisdiction under

Section 319 of the Code is capable of being exercised for

summoning a person as accused but not named as such in police

report. We have already expressed our opinion that such

jurisdiction to issue summons can be exercised even in respect

of a person whose name may not feature at all in the police

report, whether as accused or in column (2) thereof if the

Magistrate is satisfied that there are materials on record which

would reveal prima facie his involvement in the offence. None of

the authorities limit or restrict the power or jurisdiction of the

Magistrate or Court of Session in summoning an accused upon

taking cognizance, whose name may not feature in the F.I.R. or

police report.

21. In the present case, the name of the accused had

transpired from the statement made by the victim under Section

164 of the Code. In the case of Dharam Pal (supra), it has been

laid down in clear terms that in the event t he Magistrate

Page | 24

disagrees with the police report, he may act on the basis of a

protest petition that may be filed and commit the case to the

Court of Session. This power of the Magistrate is not exercisable

only in respect of persons whose names appear in column (2) of

the chargesheet, apart from those who are arraigned as accused

in the police report. In the subject-proceeding, the Magistrate

acted on the basis of an independent application filed by the de

facto complainant. If there are materials before the Magistrate

showing complicity of persons other than those arraigned as

accused or named in column 2 of the police report in commission

of an offence, the Magistrate at that stage could summon such

persons as well upon taking cognizance of the offence. As we have

already discussed, this was the view of this Court in the case of

Raghubans Dubey (supra). Though this judgment dealt with the

provisions of the 1898 Code, this authority was followed in the

case of Kishun Singh (supra). For summoning persons upon

taking cognizance of an offence, the Magistrate has to examine

the materials available before him for coming to the conclusion

that apart from those sent up by the police some other persons

are involved in the offence. These materials need not remain

Page | 25

confined to the police report, charge sheet or the F.I.R. A

statement made under Section 164 of the Code could also be

considered for such purpose.

22. Turning to the facts of the present case, we do not find any

error in the order of the Magistrate, which was affirmed by the

High Court. We accordingly affirm the judgment under appeal.

23. The appeal is dismissed and the interim order passed in

this matter shall stand dissolved.

24. Pending application(s), if any, shall stand disposed of.

…………………………J.

(VINEET SARAN)

..……………………….J.

(ANIRUDDHA BOSE)

NEW DELHI;

16

th

March, 2022