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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTON

CRIMINAL APPEAL Nos. 2199-2201 OF 2014 (Arising out of SLP (Crl.) Nos.1730-1732 of 2011)

R.N.Agarwal ……Appellant

Versus

R.C. Bansal and others         ……Respondents

J U D G M E N T

M.Y. EQBAL, J.

Leave granted.

2. These appeals  are  directed against  the  judgment  and  

order dated 2.2.2011 passed by the High Court of Delhi in  

Crl.M.C. Nos.2955 and 3779 of 2009 and Crl.Rev.No. 575 of  

2009, whereby the High Court of Delhi while quashing the  

order dated 10th July, 2009 of the Special Judge, CBI Court  

Rohini, allowed aforesaid Section 482 criminal petitions filed  

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by the alleged culprits and Section 397 criminal revision of  

the Investigating Officer.

3. The brief facts of the case are that in the year 1983, a  

Society named Maharani Avanti Bai Co-operative Society was  

formed and from time to time members were enrolled by its  

Managing  Committee.   Upto  the  year  1989 there  were  90  

members of the Society and thereafter further enrolment of  

members was stopped.  However, no land was allotted to the  

Society  for  many years and in the  meantime its  members  

became disinterested in  the  running  of  the  Society  as  the  

cost of the flats to be constructed had gone very high and  

beyond their reach. The society thus became dormant.

4. Some persons who were not members of the Society but  

were far-sighted and clever minded became interested to take  

over  its  management and got  the land allotted  from Delhi  

Development Authority (in short, ‘DDA’) to be utilized for the  

benefits of their own persons. They forged certain records of  

the Society to show that many of the original members of the  

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Society  had resigned and a new Managing Committee had  

been constituted. By forged resignation letters of the original  

members of the Society, new members were shown to have  

been enrolled and the forged records were submitted in the  

office of the Registrar of Co-operative Societies after entering  

into some kind of criminal understanding with the officials in  

that office.  It is alleged that based on the forged documents,  

which  included  minutes  purporting  to  be  of  the  illegally  

constituted Managing Committee of the Society comprising of  

all new members and also of General Body Meetings which  

were never held, DDA was approached for allotment of land  

with the assistance rendered by the Registrar of Co-operative  

Societies by certifying that all  the meetings were duly held  

and a list of new members of the Society was forwarded to  

DDA.  Accepting the same, DDA allotted a plot  measuring  

600 sq. meters to the Society in Dwarka for the benefit of the  

90 members of the Society in the year 1998. All these facts  

emerged during the investigation by CBI.

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5. On  completion  of  the  investigation,  the  CBI  filed  a  

charge-sheet  in  the  Court  of  Special  Judge  against  six  

persons, out of whom two were public servants while other  

four were the members of the bogus Managing Committee of  

the  Society,  who  had  taken  over  the  dormant  Society  by  

resorting to forgery etc.

6. The Special Judge, CBI vide order dated 23rd July, 2008,  

after  perusing  the  material  submitted  by  the  CBI,  took  

cognizance of the offences punishable under Section 120-B,  

420, 468 and 471 of the Indian Penal Code (in short, ‘IPC’) as  

well as Section 13(1)(d) of the Prevention of Corruption Act,  

and ordered summoning of six persons who had been named  

by the CBI in its charge-sheet as accused persons alleged to  

have committed the offences in conspiracy with each other.  

After all the accused persons entered appearance, the Special  

Judge furnished them copies of all the documents as per the  

requirement of Section 207 of the Code of Criminal Procedure  

and, thereafter, the matter was adjourned to 9th March, 2009.  

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However,  before  the  next  date  of  hearing,  accused  R.N.  

Aggarwal moved an application under Section 190 read with  

Section 193 Cr.P.C. before the Special Judge for summoning  

three  more  persons,  namely,  Madan Sharma (PW-21),  Ms.  

Sujata  Chauhan  (PW-23)  and  R.C.  Bansal  (PW-30)  as  

accused,  who had been cited by the CBI as its  witnesses.  

The  learned  Special  Judge  kept  that  application  for  

consideration on 9th March, 2009. However, on that day the  

matter  was  adjourned  to  5th May,  2009 for  arguments  on  

charge  without  mentioning  anything  about  the  application  

which  had  been  moved  by  the  accused  R.N.  Aggarwal.  

Special  Judge heard arguments  on that  application on 5th  

June, 2009 and then by order dated 10th July, 2009 allowed  

that  application and summoned the prosecution witnesses  

Madan Sharma, Sujata Chauhan and R.C. Bansal and also  

directed the Director of CBI to get a case registered against  

the Investigating Officer of the case under Section 217, IPC  

for letting off these three persons.

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7. Aggrieved by order dated 10th July, 2009, prosecution  

witnesses  Sujata  Chauhan  and  R.C.  Bansal  (respondents  

herein)  approached  the  High  Court  by  filing  separate  

petitions under Section 482, Cr.P.C. read with Article 227 of  

the  Constitution  of  India.   CBI,  feeling  aggrieved  by  the  

direction given by the Special Judge in the impugned order  

for registration of  a criminal  case against the investigating  

officer, also approached the High Court by way of a revision  

petition.

8. Learned  Single  Judge  of  the  High  Court,  while  

considering the order passed by the Special Judge, held that  

the case is squarely covered by the decision of the Delhi High  

Court in the case of  Anirudh Sen vs. State, (2006) 3 JCC  

2081 (Delhi), and consequently quashed the order passed by  

the Special Judge.

9. Mr. Ajit Kumar Sinha, learned senior counsel appearing  

for the appellant assailed the impugned order passed by the  

High Court as being illegal and wholly without jurisdiction.  

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Learned counsel submitted that the learned single Judge of  

the High Court relied upon the decision of Delhi High Court  

in  Anirudh  Sen’s case  (supra),  which  followed  the  ratio  

decided by this Court in  Raj Kishore Prasad vs. State of  

Bihar, (1996) 4 SCC 495, and held that the Magistrate has  

no jurisdiction to summon the persons shown in column 4 of  

the  charge-sheet.   Mr.  Sinha,  learned   counsel  further  

submitted that a Constitution Bench of this Court in the case  

of  Dharam Pal vs. State of Haryana, (2014) 3 SCC 306,  

after  considering various judgments overruled the decision  

rendered  in  Raj  Kishore  Prasad’s  case  (supra).   Learned  

counsel  submitted  that  the  Magistrate  is  empowered  to  

summon other accused persons even before the examination  

of  witnesses.   Mr.  Sinha  also  relied  upon  another  

Constitution Bench decision of this Court in Hardeep Singh  

vs. State of Punjab, (2014) 3 SCC 92, and submitted that  

the  Constitution  Bench  agreed  with  the  view  taken  in  

Dahram Pal’s case (supra).

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10. Mr.  Basava  Prabhu  Patil,  learned  senior  counsel  

appearing for the respondent, on the other hand submitted  

that once cognizance was taken by the Magistrate, it has no  

jurisdiction to summon the persons shown in column 4 of  

the charge-sheet.  Learned counsel submitted that the ratio  

decided by the Constitution Bench in Dharam Pal’s case is  

not applicable in the facts of the present case.

11.  Mr. Pradeep K. Ghose, learned counsel appearing for  

the  respondent  no.8,  relied  on  the  decision  rendered  in  

A.R.Antuley vs. Ramdas Srinivas Nayak,  (1984) 2 SCC  

500,  and  submitted  that  in  the  case  pending  before  the  

Special Judge, Section 193 of the Code will not be attracted  

and it has no role to play.

12. Mr. Atul Chitley, learned senior counsel appearing for  

C.B.I.,  contended  that  the  CBI  has  acted  in  a  bona  fide  

manner and, therefore, the observations made by the Special  

Judge and directions issued to register the case against the  

officers does not arise.

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13. We  have  considered  the  submissions  made  by  the  

learned counsel appearing for the parties.  

14. In Anirudh Singh’s case (supra), charge-sheet was filed  

showing the petitioner in column 2 as there was no material  

available against the petitioner.  The Magistrate summoned  

only those accused shown in column 4 of the charge-sheet.  

The  successor  Magistrate,  however,  later  on  summoned  

persons, including petitioner, who were shown in column 2  

of the charge-sheet.  The High Court fully relied upon the  

decision of this Court in Raj Kishore Prasad case (supra) and  

held that the Magistrate had no jurisdiction to summon the  

petitioner of that case since no new material/evidence had  

been collected in the course of trial.

15. In Raj Kishore Prasad’s case, this Court came to the  

conclusion  that  power  under  Section  209,  Cr.P.C.  to  

summon a new offender was not vested with the Magistrate  

on the plain reading of its text as well as proceedings before  

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him not being an ‘inquiry’ and the material before him not  

being ‘evidence’.  The question considered by this Court was  

whether  the  undertaking  under  Section  209,  Cr.P.C.  of  a  

case triable by a Court of Sessions, associate another person  

as an accused in exercise of power under Section 319 of the  

Code  or  any  other  provision  of  Cr.P.C.   Answering  the  

question this Court held as under:-  

“16. Thus we come to hold that the power under Section  209 CrPC to summon a new offender was not vested with a  Magistrate  on  the  plain  reading  of  its  text  as  well  as  proceedings before him not being an ‘inquiry’ and material  before him not being ‘evidence’. When such power was not  so vested, his refusal to exercise it cannot be corrected by a  Court of Revision, which may be the Court of Session itself  awaiting the case on commitment, merely on the specious  ground  that  the  Court  of  Session  can,  in  any  event,  summon the accused to stand trial, along with the accused  meant to  be committed for  trial  before  it.  Presently  it  is  plain that the stage for employment of Section 319 CrPC  has not arrived. The order of the Court of Session requiring  the Magistrate to arrest and logically commit the appellant  along with the accused proposed to be committed to stand  trial  before it,  is patently illegal and beyond jurisdiction.  Since the Magistrate has no such power to add a person as  accused under Section 319 CrPC when handling a matter  under  Section  209  CrPC,  the  Court  of  Session,  in  purported exercise of revisional powers cannot obligate it to  do  so.  The  question  posed  at  the  outset  is  answered  accordingly  in  this  light.  When  the  case  comes  after  commitment  to  the  Court  of  Session  and  evidence  is  recorded,  it  may  then  in  exercise  of  its  powers  under  Section 319 CrPC on the basis of the evidence recorded by  it,  if  circumstances  warranting,  proceed  against  the  

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appellant,  summon  him  for  the  purpose,  to  stand  trial  along  with  the  accused  committed,  providing  him  the  necessary  safeguards  envisaged  under  sub-section  (4)  of  Section 319. Such course is all the more necessary in the  instant case when expressions on merit  have extensively  been made in the orders of  the Magistrate,  the Court  of  Session  and  that  of  the  High  Court.  Any  other  course  would cause serious prejudice to the appellant. We order  accordingly.”

16. In the case of Kishun Singh and Others vs.  State of  

Bihar, (1993) 2 SCC 16, a Division Bench of this Court was  

considering the question as to whether a Court of Sessions,  

to  which  a  case  is  committed  for  trial  by  a  Magistrate,  

without  itself  recording  evidence,  summon  a  person  not  

named  in  the  police  report  presented  under  Section  173  

Cr.P.C. to stand trial along with those already named therein,  

in exercise of power conferred by Section 319 of the Code.  

While answering the question this Court considered various  

provisions of the Code and came to the following conclusion:-

“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  

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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 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 was  affirmed in  Hareram Satpathy v.  Tikaram Agarwala. Thus  far there is no difficulty.

14. We have now reached the crucial point in our journey.  After cognizance is taken under Section 190(1) of the Code,  in warrant-cases the Court is required to frame a charge  containing  particulars  as  to  the  time  and  place  of  the  alleged offence and the person (if any) against whom, or the  thing (if  any) in respect of which, it  was committed.  But  before framing the charge Section 227 of the Code provides  that if, upon a consideration of the record of the case and  the  documents  submitted  therewith,  the  Sessions  Judge  considers that there is not sufficient ground for proceeding  against the accused, he shall, for reasons to be recorded,  discharge  the  accused.  It  is  only  when  the  Judge  is  of  opinion  that  there  is  ground  for  presuming  that  the  accused has committed an offence that he will proceed to  frame a charge and record the plea of the accused (vide  

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Section  228).  It  becomes  immediately  clear  that  for  the  limited  purpose  of  deciding  whether  or  not  to  frame  a  charge against the accused, the Judge would be required to  examine  the  record  of  the  case  and  the  documents  submitted  therewith,  which  would  comprise  the  police  report, the statements of witnesses recorded under Section  161 of the Code, the seizure-memoranda, etc.,  etc. If,  on  application  of  mind  for  this  limited  purpose,  the  Judge  finds  that  besides  the  accused arraigned before  him the  complicity or involvement of others in the commission of  the  crime  prima facie  surfaces  from the  material  placed  before him, what course of action should he adopt?

 16. We have already indicated earlier from the ratio of this  Court’s  decisions  in  the  cases  of  Raghubans  Dubey and  Hareram that  once  the  court  takes  cognizance  of  the  offence (not the offender) it becomes the court’s duty to find  out the real offenders and if it comes to the conclusion that  besides  the persons  put  up for  trial  by  the  police  some  others are also involved in the commission of the crime, it  is the court’s duty to summon them to stand trial along  with those already named, since summoning them would  only be a part of the process of taking cognizance. We have  also pointed out the difference in the language of Section  193 of  the two Codes;  under  the  old  Code the Court  of  Session  was  precluded  from  taking  cognizance  of  any  offence  as  a  court  of  original  jurisdiction  unless  the  accused was committed to it  whereas under  the present  Code  the  embargo  is  diluted  by  the  replacement  of  the  words the accused by the words the case. Thus, on a plain  reading of Section 193, as it presently stands once the case  is committed to the Court of Session by a Magistrate under  the Code, the restriction placed on the power of the Court  of Session to take cognizance of an offence as a court of  original  jurisdiction  gets  lifted.  On  the  Magistrate  committing  the  case  under  Section  209  to  the  Court  of  Session the bar of Section 193 is lifted thereby investing  the Court of Session complete and unfettered jurisdiction  of the court of original jurisdiction to take cognizance of the  offence which would include the summoning of the person  or persons whose complicity in the commission of the crime  can prima facie be gathered from the material available on  record. The Full Bench of the High Court of Patna rightly  

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appreciated the shift in Section 193 of the Code from that  under the old Code in the case of  Sk. Lutfur Rahman as  under:

“Therefore,  what  the  law under  Section  193  seeks  to  visualise  and  provide  for  now  is  that  the  whole  of  the  incident constituting the offence is to be taken cognizance  of  by the Court of  Session on commitment and not that  every individual offender must be so committed or that in  case it is not so done then the Court of Session would be  powerless  to  proceed  against  persons  regarding  whom it  may be fully convinced at the very threshold of the trial  that  they are prima facie  guilty  of  the crime as well  ….  Once the case has been committed, the bar of Section 193  is  removed  or,  to  put  it  in  other  words,  the  condition   therefore stands satisfied vesting the Court of Session with  the fullest jurisdiction to summon any individual accused  of the crime.” We are in respectful agreement with the distinction brought  out between the old Section 193 and the provision as it  now stands.”

17. The ratio laid down in Kishun Singh’s case (supra) and  

Raj  Kishore’s  Prasad’s  case (supra)  came for  consideration  

before  a  three  Judge  Bench  of  this  Court  in  the  case  of  

Ranjit  Singh  vs.   State  of  Punjab,  (1998)  7  SCC 149.  

Disapproving the judgment in Kishun Singh’s case (supra),  

the Full Bench of this Court relied upon Raj Kishore Prasad’s  

case (supra), and held :-

“19. So from the stage of committal till the Sessions Court  reaches the stage indicated in Section 230 of the Code,  that court can deal with only the accused referred to in  Section 209 of the Code. There is no intermediary stage till  

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then for the Sessions Court to add any other person to the  array of the accused. 20. Thus, once the Sessions Court takes cognizance of the  offence pursuant to the committal  order,  the only other  stage  when  the  court  is  empowered  to  add  any  other  person  to  the  array  of  the  accused  is  after  reaching  evidence collection when powers under Section 319 of the  Code  can be  invoked.  We are  unable  to  find  any  other  power  for  the Sessions Court  to permit  addition of  new  person or persons to the array of the accused. Of course it  is  not  necessary  for  the  court  to  wait  until  the  entire  evidence is collected for exercising the said powers.

xxxxxxx 24.  For  the  foregoing  reasons,  we  find  it  difficult  to  support the observations in Kishun Singh case that powers  of the Sessions Court under Section 193 of the Code to  take  cognizance  of  the  offence  would  include  the  summoning of the person or persons whose complicity in  the commission of the trial can prima facie be gathered  from the materials available on record.”

18. A similar matter came for consideration before a three  

Judge  Bench  of  this  Court  in  Dharam  Pal  Singh’s case  

(supra) since the conflicting view expressed by this Court in  

Ranjit  Singh’ case  and  Kishun Singh’s case,  the matter  

was referred to the Constitution Bench of this Court.  The  

question has now been finally set at rest by the Constitution  

Bench in Dharam Pal Singh’s case, (2014) 3 SCC 306.

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19. The Constitution Bench has overruled the ratio decided  

in Ranjit Singh’s case (supra) and Raj Kishore Prasad’s case  

and held  that  the  ratio  laid  down in  Kishun Singh’s  case  

(supra) has been correctly decided.  The Constitution Bench  

held as under:-

“34. The view expressed in Kishun Singh 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(2) of the  Code and to proceed against the accused persons dehors  the police report, which power the Sessions 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(2) of the Code, he was helpless in  taking  recourse  to  such  a  course  of  action  while  the  Sessions  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.

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  

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commit the case to the Court of Session to proceed further  in the matter.

xxxxxxxxxxx 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.

40.  In that view of the matter,  we have no hesitation in  agreeing  with  the  views  expressed  in  Kishun  Singh  case  that the Sessions Court 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 Sessions Judge may summon those  persons shown in column 2 of the police report to stand  trial along with those already named therein.”

20. In another  Constitution  Bench judgment  in  Hardeep  

Singh vs.  State of  Punjab,  (2014)  3  SCC 92,  this  Court  

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while discussing the powers of the Court  concurred with the  

view taken in Dharam Pal’s case and observed as under:-

“53. It is thus aptly clear that until and unless the case  reaches the stage of inquiry or trial by the court, the power  under Section 319 CrPC cannot be exercised. In fact, this  proposition does not seem to have been disturbed by the  Constitution  Bench  in  Dharam  Pal  (CB).  The  dispute  therein  was  resolved  visualising  a  situation  wherein  the  court was concerned with procedural delay and was of the  opinion that the Sessions Court should not necessarily wait  till  the stage of  Section 319 CrPC is reached to direct  a  person,  not  facing  trial,  to  appear  and  face  trial  as  an  accused. We are in full agreement with the interpretation  given  by  the  Constitution  Bench that  Section  193  CrPC  confers  power  of  original  jurisdiction  upon  the  Sessions  Court to add an accused once the case has been committed  to it.

54.  In  our  opinion,  the  stage  of  inquiry  does  not  contemplate any evidence in its strict legal sense, nor could  the  legislature  have  contemplated  this  inasmuch  as  the  stage for evidence has not yet arrived. The only material  that the court has before it is the material collected by the  prosecution  and the  court  at  this  stage  prima facie  can  apply its mind to find out as to whether a person, who can  be an accused, has been erroneously omitted from being  arraigned  or  has  been  deliberately  excluded  by  the  prosecuting  agencies.  This  is  all  the  more  necessary  in  order to ensure that the investigating and the prosecuting  agencies have acted fairly in bringing before the court those  persons who deserve to be tried and to prevent any person  from being deliberately shielded when they ought to have  been tried. This is necessary to usher faith in the judicial  system whereby the court should be empowered to exercise  such powers even at the stage of inquiry and it is for this  reason that the legislature has consciously used separate  terms, namely, inquiry or trial in Section 319 CrPC.”

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21. The Constitution Bench further answered the question  

as under:-

“117.1. In Dharam Pal case, the Constitution Bench has  already held that after committal, cognizance of an offence  can be taken against a person not named as an accused  but against whom materials are available from the papers  filed  by  the  police  after  completion  of  the  investigation.  Such cognizance can be taken under  Section 193 Cr.PC  and the Sessions Judge need not wait till “evidence” under  Section  319  CrPC  becomes  available  for  summoning  an  additional accused.

117.2.  Section  319  Cr.PC,  significantly,  uses  two  expressions that have to be taken note of i.e. (1) inquiry (2)  trial.  As  a  trial  commences  after  framing  of  charge,  an  inquiry can only be understood to be a pre-trial  inquiry.  Inquiries under Sections 200, 201, 202 CrPC, and under  Section 398 Cr.PC are species of the inquiry contemplated  by Section 319 CrPC. Materials coming before the court in  course of such inquiries can be used for corroboration of  the  evidence  recorded  in  the  court  after  the  trial  commences,  for the exercise of power under Section 319  Cr.PC, and also to add an accused whose name has been  shown in Column 2 of the charge-sheet.

117.3. In view of the above position the word “evidence”  in Section 319 CrPC has to be broadly understood and not  literally i.e. as evidence brought during a trial.

117.4.  Considering  the  fact  that  under  Section  319  CrPC a person against whom material is disclosed is only  summoned to face the trial and in such an  event under  Section 319(4) CrPC the proceeding against such person is  to commence from the stage of taking of cognizance,  the  court need not wait for the evidence against the accused  proposed  to  be  summoned  to  be  tested  by  cross- examination.”

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22. As noticed above, after completion of investigation, CBI  

filed charge-sheet in the Court of Special Judge to deal with  

the cases in the Prevention of Corruption Act, as also under  

the Indian Penal Code.  The procedure and the powers of the  

Special Judge have been prescribed in Section 5 of the said  

Act.  For  better  appreciation,  Section  5  of  the  Act  is  

reproduced hereinbelow:-

“5. Procedure and powers of special Judge.— (1) A  special  Judge  may  take  cognizance  of  offences  without the accused being committed to him for trial and,  in trying the accused persons, shall follow the procedure  prescribed by the Code of Criminal Procedure, 1973 (2 of  1974), for the trial of warrant cases by the Magistrates. (2) A  special  Judge  may,  with  a  view  to  obtaining  the  evidence of any person supposed to have been directly or  indirectly concerned in, or privy to, an offence, tender a  pardon to such person on condition of his making a full  and true disclosure of the whole circumstances within his  knowledge  relating  to  the  offence  and  to  every  other  person concerned, whether as principal or abettor, in the  commission thereof and any pardon so tendered shall, for  the purposes of sub-sections (1) to (5) of section 308 of  the  Code  of  Criminal  Procedure,  1973  (2  of  1974),  be  deemed to have been tendered under section 307 of that  Code. (3) Save as provided in sub-section (1) or sub-section (2),  the provisions of the Code of Criminal Procedure, 1973 (2  of 1974), shall, so far as they are not inconsistent with  this Act, apply to the proceedings before a special Judge;  and for purposes of the said provisions, the Court of the  special Judge shall be deemed to be a Court of Session  and the person conducting a prosecution before a special  Judge shall be deemed to be a public prosecutor.

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24. The  constitution  Bench  in  the  case  of  A.R.  Antuley  

(supra),  was  of  the  view  that  the  special  judge  appointed  

under  the  Prevention  of  Corruption  Act,  enjoys  all  powers  

conferred  on  the  Court  of  original  jurisdiction  functioning  

under  the  High  Court  except  those  specifically  conferred  

under the Act.  The Bench observed :-

“27……..While  setting  up  a  Court  of  a  Special  Judge  keeping in view the fact that the high dignitaries in public  life are likely to be tried by such a court, the qualification  prescribed was that the person to be appointed as Special  Judge  has  to  be  either  a  Sessions  Judge,  Additional  Sessions Judge or Assistant Sessions Judge. These three  dignitaries  are  above  the  level  of  a  Magistrate.  After  prescribing the qualification, the Legislature proceeded to  confer power upon a Special Judge to take cognizance of  offences  for  the  trial  of  which  a  special  court  with  exclusive jurisdiction was being set up. If a Special Judge  has  to  take  cognizance  of  offences,  ipso  facto  the  procedure for trial of such offences has to be prescribed.  Now the Code prescribes different procedures for trial of  cases  by  different  courts.  Procedure  for  trial  of  a  case  before a Court of Session is set out in Chapter XVIII; trial  of warrant cases by Magistrates is set out in Chapter XIX  and the provisions therein included catered to both the  types  of  cases  coming  before  the  Magistrate,  namely,  upon police report or otherwise than on a police report.  Chapter XX prescribes the procedure for trial of summons  cases  by  Magistrates  and  Chapter  XXI  prescribes  the  procedure  for  summary trial.  Now that  a  new criminal  court was being set up, the Legislature took the first step  of providing its comparative position in the hierarchy of  

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courts under Section 6 CrPC by bringing it on level more  or less comparable to the Court of Session, but in order to  avoid any confusion arising out of comparison by level, it  was made explicit  in Section 8(1)  itself  that it  is  not  a  Court  of  Session  because  it  can  take  cognizance  of  offences without commitment as contemplated by Section  193 CrPC. Undoubtedly in Section 8(3) it was clearly laid  down that  subject  to  the provisions of  sub-sections (1)  and (2) of Section 8, the Court of Special Judge shall be  deemed to be a Court of Session trying cases without a  jury or without the aid of assessors.”

25.  In  the  case  of  Harshad  S.  Mehta  vs.  State  of   

Maharashtra, (2001) 8 SCC 257,  the Bench while dealing  

with  the  case  under  the  Special  Court  (Trial  of  Offences  

Relating  to  Transactions  in  Securities)  Act,  1992 observed  

that  special  court  is  a  Court  of  exclusive  jurisdiction  in  

respect of offences under Section 3(2) of the Act, like special  

court  under  Prevention  of  Corruption  Act  it  has  original  

criminal  jurisdiction.  The  special  court  per  se is  not  a  

Magistrate  and  also  it  is  not  a  court  to  which  the  

commitment of a case is made.

26. In  the  case  of  State  of  T.N.  vs.  V.  Krishnaswami  

Naidu,  (1979)  4  SCC  5,  this  Court  while  answering  a  

question, as to whether the special judge under the Criminal  

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Law (Amendment) Act, 1952 can exercise the power conferred  

on a Magistrate under Section 167 Cr.P.C. to authorise the  

detention  of the accused in the custody  of police, held that a  

special judge is empowered to take cognizance of the offence  

without  the accused being committed to him for trial. Their  

Lordship observed:-

“5.  It  may  be  noted  that  the  Special  Judge  is  not  a  Sessions  Judge,  Additional  Sessions  Judge  or  an  Assistant  Sessions  Judge  under  the  Code  of  Criminal  Procedure  though  no  person  can  be  appointed  as  a  Special Judge unless he is or has been either a Sessions  Judge or an Additional Sessions Judge or an Assistant  Sessions Judge. The Special Judge is empowered to take  cognizance  of  the  offences  without  the  accused  being  committed  to  him  for  trial.  The  jurisdiction  to  try  the  offence  by a Sessions Judge is  only  after  committal  to  him.  Further  the  Sessions  Judge  does  not  follow  the  procedure for the trial of warrant cases by Magistrates.  The Special Judge is deemed to be a Court of Session only  for certain purposes as mentioned in Section 8(3) of the  Act  while  the  first  part  of  sub-section  3  provides  that  except as provided in sub-sections (1) and (2) of Section 8  the provisions of the Code of Criminal Procedure, 1898  shall,  so far as they are not inconsistent with this Act,  apply to the proceedings before the Special Judge.”

27. In the case of  Raghubans Dubey vs. State of Bihar,  

AIR 1967 SC 1167, this Court while dealing with the similar  

matter  held  that  once  cognizance  has  been  taken  by  the  

Magistrate,  he takes cognizance  of  an offence and not  the  

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offenders and once he comes to the conclusion that  apart  

from the persons sent 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.

28. In  the  case  of  Kishun  Singh  vs.  State  of  Bihar  

(supra), the scope and power of a Court  under Sections 193,  

209 and 319 observed as:-

“16. We have already indicated earlier from the ratio of  this Court’s decisions in the cases of  Raghubans Dubey  and Hareram that once the court takes cognizance of the  offence (not the offender) it becomes the court’s duty to  find  out  the  real  offenders  and  if  it  comes  to  the  conclusion that besides the persons put up for trial by  the  police  some  others  are  also  involved  in  the  commission of the crime, it is the court’s duty to summon  them to stand trial along with those already named, since  summoning them would only be a part of the process of  taking  cognizance.  We  have  also  pointed  out  the  difference  in  the  language  of  Section  193  of  the  two  Codes;  under  the  old  Code  the  Court  of  Session  was  precluded  from  taking  cognizance  of  any  offence  as  a  court  of  original  jurisdiction  unless  the  accused was  committed  to  it  whereas  under  the  present  Code  the  embargo is diluted by the replacement of the words  the  accused by the words the case. Thus, on a plain reading  of  Section 193,  as it  presently stands once  the case is  committed to the Court of Session by a Magistrate under  the Code, the restriction placed on the power of the Court  of Session to take cognizance of an offence as a court of  original  jurisdiction  gets  lifted.  On  the  Magistrate  committing the case under Section 209 to the Court of  

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Session the bar of Section 193 is lifted thereby investing  the Court of Session complete and unfettered jurisdiction  of the court of original jurisdiction to take cognizance of  the offence which would include the summoning of the  person or persons whose complicity in the commission of  the crime can prima facie be gathered from the material  available on record. The Full Bench of the High Court of  Patna rightly appreciated the shift in Section 193 of the  Code from that  under  the old Code in the case of  Sk.  Lutfur Rahman as under:

“Therefore, what the law under Section 193 seeks to  visualise  and provide  for  now is  that  the  whole  of  the  incident constituting the offence is to be taken cognizance  of by the Court of Session on commitment and not that  every individual offender must be so committed or that in  case it is not so done then the Court of Session would be  powerless to proceed against persons regarding whom it  may be fully convinced at the very threshold of the trial  that they are prima facie guilty of the crime as well ….  Once the case  has been committed,  the bar of  Section  193 is removed or, to put it in other words, the condition  therefore  stands  satisfied  vesting  the  Court  of  Session  with  the  fullest  jurisdiction  to  summon any  individual  accused of the crime.” We  are  in  respectful  agreement  with  the  distinction  brought  out  between  the  old  Section  193  and  the  provision as it now stands.”

29. The order passed by the Special Judge would show that  

while issuing summons against the respondents the Court  

has  considered  in  detail  the  material  brought  on  record  

during  investigation.   We  would  like  to  refer  some  of  the  

paragraphs, which are quoted hereinbelow:-

“14.  During investigation. It  was also revealed that  Sh.  Ram  Narain  Aggarwal  got  procured  the  various  false  documents in order to regularize the society fraudulently,  

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which was submitted to the office of the RCS. The details  of the documents are as follows:- Proceedings of general body meetings dated 15-11-1998  and 23-01-2000. Proceedings register having proceedings with effect from  22-11-1998. Membership  register  having  members  numbers  101  onwards. 15. Proceedings of General Body Meeting (GBM) dated 15- 11-1998  which  shown  to  be  held  in  the  office  of  the  society at 303. 3rd Floor, C-50, Vasant Tower Community  Centre, Janak Puri where the approval of resignation of  46  members and enrollment of 35 new members during  the period of  1996-97 by the managing committee was  falsely shown. Similarly, proceeding of GBM dated 23-01- 2000 falsely show approval of regisnation of 10 promoter  members by the managing committee. In that GBM, false  election  of  managing  committee  was  shown  to  be  conducted, in which, Sh. OP Aggarwal-  the President, Sh.  Anil  Kumar  Sharma-  Vice  President  and  all  other  members  of  the  managing  committee  of  the  society,  whose name are Sh. R.N. Aggarwal, Ms. Sujata Chauhan,  Sh. Sudhir Aggarwal, Sh. CL Bansal and Ms. Janak are  shown to be elected by showing conducting false elections  of  the  management  committee.  The  signature  of  Sh.  Sudhir Aggarwal is forged on these proceedings of GBM  dated 15-11-1998, 23-1-2000 which are written by Ms.  Sujata on the instance of Sh. RN Aggarwal.  16. It was also revealed that Sh. MIshri Lal Lodhi and Sh.  Bhupinder  Kumar,  the then president  and secretary  of  the  society  respectively  had  never  approved  the  resignation of the promoter members and enrollment of  new members during the year 1996-97 as shown in GBM  dated 15-11-1998. 17. After obtaining demand letter dated 21-9-1998 from  DDA, a post letter dated 2-11-1998 under the signature  of  SH.  Bhupinder  Kumar,  Secretary  of  the  society  was  submitted  fraudulently  to  the  commissioner  (Housing),  DDA,  New  Delhi,  whereby  more  time  was  sought  for  making payment. 18.  Investigation further revealed that Sh. RN Aggarwal  in pursuance of criminal consipray with Sh. Bhim Singh  Mahur  fraduently  obtained  a  letter  dated  15-11-1998  

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signed  by  Sh.  Mishri  Lal  (President),  Sh.  Bhupinder  Kumar  (Secretary)  and  Smt.  Kela  Devi  (Treasurer)  and  sent  the same to the Manager,  Delhi  State Cooperative  Bank Ltd., Dariya Ganj, New Delhi falsely stated therein  that Sh. Anil Kumar Sharma, Sh. RN Aggarwal and Sh.  Om Prakash  Aggarwal  have  been  elected  as  President,  Secretary and Treasurer respectively in the new Managing  Committee of the said society and the said office bearer  have been authorized to operate the bank accounts of the  said society and this way all the above named accused  had fraudulently taken over control of the operation of the  bank account of the said society.   xxxxxxx  20.  Investigation further revealed that Sh. Ganesh Jha,  a  promoter  member  of  the  society  lodged  complaints  dated 26.6.2000 and 5.10.2000 to the office of RCS, New  Delhi alleging therein that the society had not intimated  him for allotment of land by DDA nor demanded his share  of contribution towards costs of land and he suspected  that  the  Secretary  fraudulently  manipulated  the  membership register.  The society has secretly shifted the  registered  office  without  holding  any  meeting  of  the  members,  nor  called him to attend any meeting of  the  society with some ulterior motive.

21. It is also revealed in the investigation that Sh. Leela  Krishan  Seth  appointed  Sh.  Jafar  Iqbal  for  conducting  verification on the allotments made in the complaints who  gave a false verification report at the behest of Sh. R.N.  Aggarwal in which he fraudulently certified that election  were  satisfactorily  held  by  society  on  15.11.98  and  facilitated  dishonestly  the  accused  persons  by  giving  them clean chit to the society.

22. Investigation  also  disclosed  that  person  to  the  aforesaid criminal conspiracy Leela Krishna Seth the then  Assistant  Registrar,  Sh.  Jafar Iqbal,  the then Inspector  Grade-III by abusing their official position by entering into  criminal conspiracy with sh. R. N. Aggarwal and Sh. O.P.  Aggarwal with the intention to cheat DDA got allotment  and  possession  of  land  from  DDA  in  favour  of  the  society.”

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30. The  Special  Judge  considering  all  those  materials  

brought on record during investigation and relying upon the  

decisions  of  this  Court  in  the  case  of  M/s  Swill  Ltd.  vs.  

State  of  Delhi  and Anr., (2001)  6  SCC 670;  Nisar  and  

Another vs.  State of  U.P.,  (1995)  2 SCC 23;1995 Crl  LJ  

2118;  Kishan  Singh  vs.  State  of  Bihar (supra);  

Raghubans Dubey vs. State of Bihar, (1967) 2 SCR 423,  

came to the conclusion that the respondents are involved in  

the commission of offence and consequently summons were  

issued against them.

31. While  passing  the  impugned  order  the  High  Court  

instead of relying on the decisions of this Court reversed the  

order passed by the Special Judge by following the decision  

of  the  Single  Judge  of  the  Delhi  High  Court  in   Anirudh  

Sen’s  Case  (supra).   Prima facie,  therefore,  the  impugned  

order  passed  by  the  High  Court  quashing  issuance  of  

summons by the Special Judge against the respondents is  

erroneous in law and cannot be sustained.  However, at this  

stage  it  was not  necessary  for  the  Special  Judge  to  issue  

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directions to CBI to get a case registered against the guilty  

officers who have investigated the case.

32. For the reasons aforesaid, we allow these appeals and  

quash the order passed by the High Court and restore the  

order passed by the Special Judge except the direction issued  

to the CBI as indicated above.

…………………………….J. [ M.Y. Eqbal ]  

.…………………………….J [Pinaki Chandra Ghose]

New Delhi October 14, 2014

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