Page 1

1

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

Page 2

2

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

the matter was taken up for consideration by the Three-

Judge Bench on 1st 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

Page 3

3

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

Page 4

4

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 20th 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

Page 5

5

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?

Page 6

6

(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

Page 7

7

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  25th March,  2002,  passed  by  the  

Additional  Session  Judge,  Hisar,  affirming  the  order

Page 8

8

dated 21st 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 13th 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

Page 9

9

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:

Page 10

10

(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.

Page 11

11

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

Page 12

12

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

Page 13

13

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

Page 14

14

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

Page 15

15

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),

Page 16

16

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

Page 17

17

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

Page 18

18

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

Page 19

19

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

Page 20

20

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

Page 21

21

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

Page 22

22

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

Page 23

23

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

Page 24

24

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.

Page 25

25

  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.