Supreme Court of India
BALVEER SINGH & ANR.versusSTATE OF RAJASTHAN & ANR.
- Citation
- 2016 INSC 401
- Decided
- 10 May 2016
- Disposal
- Dismissed
- Bench
- A K SIKRI
Holding
A Court of Session, once a case is committed to it by a Magistrate, may take cognizance as a court of original jurisdiction, and this does not constitute a second cognizance of the same offence.
Summary
The appeal arose from a dowry‑death case where the police report did not name the parents of the deceased as accused. The complainant sought cognizance against them under Sections 304‑B and 498‑A IPC. The Judicial Magistrate of First Class rejected the application and committed the case to the Sessions Court for trial on the basis of Section 306 IPC (abetment of suicide). The Sessions Court later took cognizance of the offences under Sections 304‑B and 498‑A and issued bailable warrants. The appellants challenged this on the ground that cognizance had already been taken (and rejected) by the Magistrate, so a second cognizance by the Sessions Court was impermissible. The Supreme Court examined Sections 190 and 193 of the CrPC, held that once a case is committed to the Sessions Court, the Court may take cognizance as a court of original jurisdiction and this does not amount to a second cognizance. Consequently, the appeal was dismissed.
Issues considered
- Whether a Court of Session can take cognizance of an offence after a Magistrate has already considered and rejected an application for cognizance and committed the case to the Sessions Court.
- Whether cognizance of an offence can be taken more than once under the CrPC.
- Whether Section 190 CrPC empowers a Magistrate to take cognizance of offences triable by a Court of Session.
- Interpretation of the phrase ‘as a Court of original jurisdiction’ in Section 193 CrPC.
- Whether the Supreme Court can exercise its Article 136 jurisdiction to interdict the Sessions Court’s order.
Legislation cited
- Code of Criminal Procedure, 1973s. 173, s. 190, s. 193, s. 200, s. 202, s. 207-A, s. 209, s. 227, s. 319
Subjects
cognizanceSection 190 CrPCSection 193 CrPCSessions CourtMagistratecommittaloriginal jurisdictiondouble cognizancedowry deathIPC 304-BIPC 498-AIPC 306criminal procedure
Judgment
[2016] 2 S.C.R. 504
A BALVEER SINGH & ANR.
v.
STATE OF RAJASTHAN & ANR.
(Criminal Appeal No. 253of2016)
B MAYI0,2016
[A. K. SIKRI AND R. K. AGRAWAL, JJ.)
Code ofCriminal Procedure, 1973: ss.190 and 193 - Commita/
of case to the Court of Session after cognizance of offence by the
Magistrate - Whether Court of Session is empowered to take
c cognizance of offence when similar application to the effect was
rejected by Magistrate while committing the case to Sessions Court
- Held: When the case is committed to the Court of Session by the
Magistrate, per s.193 Court of Session shall take cognizance 'as a
Court of original jurisdiction' and, thus, it is the first time the
• D cognizance is taken and any order passed by the Magistrate while
committing the case to the Court of Session would not amount to
taking cognizance of the offence which are triable by the Court of
Session - Since the Court of Session is acting as the Court of original
iurisdiction u!s.193, after the commital of proceedings to it by the
Magistrate, it is empowered to take cognizance and issue summons
E
and it cannot be treated as taking second cognizance of the same
offence.
Dismissing the appeal, the Court
HELD: 1. Section 190 empowers any Magistrate of the
F First Class, and any Magistrate of the Second Class which are
specially empowered to take cognizance "of any offence" under
three circumstances mentioned therein. These three
circumstances include taking of cognizance upon a Police report
of such facts which may constitute an offence. It is trite law that
even when Police report is filed stating that no offence is made
G out, the Magistrate can ignore the conclusion arrived at by the
Investigating Officer and is competent to apply its independent
mind to the facts emerging from the investigation and take
cognizance of the case if it thinks that the facts emerging from
the investigation do lead to prima facie view that commission of
H an offence is made out. In such a situation, the Magistrate is not
504
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 505
bound to follow the procedure laid down in Sectious 200 and 202 A
of the Code for taking coguizance of the case under Section
190(l)(a) though it is open for him to act under Section 200 or
Section 202 as well. Thus, when a complaint is received by the
Magistrate under Section 190(1)(a) of the Act, the Magistrate is
empowered to resort to procedure laid down in Section 200 or
B
202 of the Code and then take cognizance. If Police report is
filed, he would take cognizance upon such a report, as provided
under Section 190(l)(b) of the Code. Likewise, Section 193 of
the Code empowers Court of Session to take cognizance of
offences and states that the Court of Session shall not take
cognizance of any offence as the Court of original jurisdiction c
unless the case has been committed to it by the Magistrate under
this Code. As per this Sectiou, the Court of Session. can take
cognizance only after the case has been committed to it by the
Magistrate. However, once the case is committed to it by the
Magistrate, the Court of Session is empowered to take cognizance
D
acting 'as a Court of original jurisdiction'. In view of the said
provisions, question that arises is as to whether Magistrate can
take cognizance of an offence which is triable by the Court of
Session or he is to simply commit the case to the Court of Session,
after completion of committal proceedings as it is the Court of
Session which is competent to try such cases. On the one hand, E
Section 190. of the Code empowers the Magistrate to "take
cognizance of any. offence" which gives an impression that such
Magistrate can take cognizance even of an offence which is triable
by the Court of Session. On the other hand, when the case is
committed to the Court of SessiOn by the Magistrate, _Section
F
193 of the Code stipulates that Court of Session shall take
cognizance 'as a Court of original jurisdiction' which shows that
the cognizance is taken by the Court of Session as a Court of
original jurisdiction and, thus, it is the first time the cognizance
is taken aud any order passed by the Magistrate while committing
the case to the Court of Session did not amount to taking G
cognizance of the offence which are triable by the Court of Session.
A bare reading of Section 190 of the Code which uses the
expression "any offence" amply shows that no restriction is
imposed ·on the Magistrate that Magistrate can take cognizance
only for the offence triable by Magistrate Court and not in respect
·H
506 SUPREME COURT REPORTS [2016] 2 S.C.R.
A of offence triable by a Court of Session. Thus, he has the power
to take cognizance of an offence which is triable by the Court of
Session. If it is so, the question is as to what meaning is to be
assigned to'the words "as a Court of original jurisdiction"
occurring in Section 193 of the Code when Court of Session takes
B cognizance of any offence. To put it otherwise, when the
Magistrate has taken cognizance and thereafter only committed
the case to the Court of Session, whether .the Court of Session is
not empowered to take cognizance of an offence again under
Section 193 of the Code or it still has power to take cognizance
acting as Court of original jurisdiction. (Paras 8 to 11) (511-D-H;
C 512-A-HJ
2. Here is a case where the Police report which was
submitted to the Magistrate, the IO had not included the
appellants as accused persons. The complainant had filed
application before the Magistrate with prayer to take cognizance
D against the appellants as well. This application was duly
considered and rejected by the Magistrate. The situation in this
case is, thus, not where the investigation report/chargesheet filed
under Section 173(8) of the Code implicated the appellants and
appellants contended that they are wrongly implicated. On the
contrary, the Police itself had mentioned in its final report that
E
case against the appellants had not been made out. This was
objected to by the complainant who wanted the Magistrate to
summon these appellants as well and for this purpose the
application was filed by the complainant under Section 190 of the
Code. The appellants had replied to the said application and
F after hearing the arguments, the application was rejected by the
Magistrate. This shows that order of the Magistrate was passed
with due application of mind whereby he refused to take
cognizance of the alleged offence against the appellants and
confined it only to the son of the appellants. This onler was not
challenged. Normally, in such a case, it cannot be said that the
G Magistrate bad played 'passive role' while committing the case
to the Court of Sessions•. He bad, thus, taken cognizance after
due application of mind and playing an "active role" in the process.
The position would have been different if the Magistrate bad
simply forwarded the application of the complainant to the Court
H of Sessions while committing the case. In this scenario, it would
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 507
be a case where Magistrate had taken the cognizance of the A
offence. Notwithstanding the same, the Sessions Court on the
similar application made by the complain_ant before it, took
cognizance thereupon. Normally, such a course of action would
not be permissible. [Para 21) [523-A-F]
3. The next question is as to whether this Court exercise B
its powers under Article 136 of the Constitution to interdict such
an order. In the instant case, a proper opportunity was given to
the appellants who had flied reply to the application of the
complainant and the Sessions Court had also heard their
arguments. There is no reason to interfere with the impugned
order. [Para 22) [523-G; 524-A-B]
c
Dharam Pal & Ors. v. State of Haryana and Anr. (2014)
3 SCC 306 - Followed.
Nisar and Another v. State of U.P. 1994 (5) Suppl. SCR
368 : (1995) 2 SCC 23; Minu Kumari & Anr. v. State of D
Bihar & Ors. 2006 (3) SCR1086 : (2006) 4 SCC 359;
Kishun Singh v. State of Bihar 1993 (1) SCR 31: (1993)
2 SCC 16; Hardeep Singh v. State of Punjab & Ors.
2014 (2) SCR.1 : (2014) 3 SCC 92; Ajay Kumar Parmar
v. State of Rajasthan 2012 (8) SCR 970 : (2012) 12
sec 406 - relied on. . E
Case Law Reference
(2014) 3 sec 306 Followed. Para2
1994 (5) Suppl. SCR 368 relied on. Para6
2006 (3) SCR1086 relied on. Paras F
1993 (1) SCR 31 relied on. Para 13
2014 (2) SCR 1 relied on. Para 19
2012 (8) SCR 970 relied on. Para 20
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 253 of2016 G
From the Judgment and Order dated 18.12.2015 of the High Court
ofRajasthan, Jaipur Bench at Jaipur in S. B. Criminal Revision Petition
No. 1591 of20l5
Raju Ramachandran, Sr. Adv., Neeraj Kumar, Vijay KumarThallan, H
508 SUPREME COURT REPORTS [2016] 2 S.C.R.
A Vikram Aditya Narayan, Advs., with him for the Appellants.
Dr. Sushi! Balwada, Jai Nadhna, K. Singh Mane, Anish
Maheshwari, Advs., for the Respondents.
The Judgment of the Court was delivered by
B A. K. SIKRI, J. I. The appellants in this appeal are the parents
of oneAbhimanyu Singh who was married to Renu on 24.02.2014. Renu
was found dead on 27.11.2014 i.e. within ten months of the wedding.
Cause of death was Asphyxia due to hanging. An FIR was lodged by
respondent No. 2 herein (Father of deceased) alleging that Renu was
done to death by her husband Abhimanyu Singh as well as his parents
C (appellants herein) for not satiating the dowry demands of the accused
persons. FIR has been registered under Sections 304-B and 498-A of
the Indian Penal Code. The appellants claimed that it was a case of
suicide by hanging committed by Renu. Matter was investigated which
resulted into the filing of chargesheet against Abhimanyu only, that too
D for committing the offence under Section 306 IPC, namely, abetting the
suicide committed by Renu. As per the Police investigation there was
no dowry demands and no offence under Sections 498-A and 304-B of
!PC was made out. Instead it was a case of suicide and at the most
Abhimanyu could be charged of abetting the suicide committed by Renu.
For that reason, no challan was filed against the appellants herein. On
E · the filing of the aforesaid chargesheet by the Police on 24.02.2015,
respondent No. 2 filed an application before the learned Judicial
Magistrate, First Class, (JMFC) for taking cognizance against the
appellants and Abhimanyu under Sections 304-B and 498-A !PC. This
application was dismissed by the learned Magistrate vide order dated
F I 1.03.2015. Thereupon, the learned Magistrate committed the case
before the Sessions Court as the offence under Section 306 lPC is triable
by the Sessions Court. Before the Sessions Court, respondent No. 2
preferred similar application once again. Here, respondent No. 2
succeeded in his attempt inasmuch as vide order dated 08.10.2015, the
learned Sessions Court took cognizance for offences punishable under
G Sections 304-B and 498-A !PC and, in the alternative, Section 306 IPC,
against the appellants and their son. He, thus, directed issuance of
bailable warrant against the appellants.
2. Aggrieved by the said order, appellants along with their son
Abhimanyu approached the High Court. High Court vide its order dated
H 04.11.2015 remanded the matter back to the Sessions Court with a
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 509
fA. K. SIKRI, J.l
direction to hear the parties and pass further orders in the light ofjudgment A
of this Court in Dlwram Pal & Ors. v. State of Haryana and Anr. '.
The Sessions Court accorded fresh hearing and thereafter passed order
dated 08.12.2015 thereby allowing the application once again to the extent
of taking cognizance under Sections 304-B and 498-A !PC and, in the
alternative, Section 306 !PC against the appellants as well as their son.
B
The appellants challenged this order by filing revision petition before the
High Court which has been dismissed by the High Court on 18.12.2015.
This order is impugned in the present proceedings.
3. We may record at the outset that the sole ground on which the
order was challenged beforethe High Court, as well as before us, is that
when the Magistrate had dismissed the application of the complainant
c
'<ide order dated 11.03.2015 and refused to take cognizance under
Sections 304-B and 498-A !PC and this order had attained finality as no
revision petition/criminal miscellaneous appeal was preferred either by
the complainant or by the Public Prosecutor, second application with the
same relief was not maintainable before the Sessions Court. It was D
emphatically argued that it amounted to second time cognizance.by the
Court of Sessions which was impermissible in law. It was argued that
under Section 190 of the Code of Criminal Procedure, 1973 (for short,
the 'Code'), cognizance of the offence can be taken only once.
4. Thus, the question that falls for consideration before us is as to E
whether the Court of Sessions was empowered to take cognizance of
offence under Sections 304-B and 498-A oflPC, when similar application
to this effect was rejected by the JMFC while committing the case to
Sessions Court, taking cognizance of offence only under Section 306
IPC and specifically refusing to take cognizance of offence under
Sections 304-B and 498-A IPC. F
5. Mr. Raju Ramachandran, learned senior counsel appearing for
the appellants, submitted that when the case is triable by the Sessions
Court, Judicial Magistrate after completing the committal proceedings
can commit the case for trial before the Court of Sessions: He can do
so by simply committing the case on finding from the Police report that G
· the case was triable by the Court of Sessions. In the alternative, he can
take cognizance of offence on the basis of Police report and then commit
the case for trial to the Court bf Sessions. When the Judicial Magistrate
adopts the former approach by not taking the cognizance of offence
1
(2014) 3 sec 306 H
510 SUPREME COURT REPORTS [2016] 2 S.C.R.
A under Section 190 of the Code and commits the case for trial before the
Sessions Court, Sessions Cou.rt is competent to exercise its power under
Section 193 of the Code and to take cognizance of offence in the light of
judgment of this Court in Dftaram Pal's case. However, ifthe Magistrate
adopts alternate course of action, namely, takes cognizance of the offence
and then commits the case to the Court of Sessions, Sessions Court has
B
no power to take fresh cognizance of the offence inasmuch as cognizance
ofoffence can be taken only once. Again, in support of this proposition,
aid of the judgment in Dlwram Pal's case is taken.
6. Per contra, Dr. Sushi I Balwada, learned counsel who appeared
for respondent No. 2 and Mr. Anish Maheshwari, learned counsel who
c appeared for the State argued that since the case is triable by the Court
of Sessions, it is the Court of Sessions only which is competent to take
cognizance and, therefore, order passed by the Sessions Court on
08.12.2015 should be treating as taking cognizance of offence for the
first time in terms of Section 193 of the Code. Interestingly, in support
D of their submissions, the respondenls also rely upon the judgment in
Dlwram Pal's case. In addition, they also took support from the
judgment of this Court in Nisar and Another v. State of U.P.'
7. The aforesaid narration unequivocally demonstrates that both
the sides are trying to find support from the judgment in Dltarmpal's
E case. It would, thus, be apposite to take note of the ratio in the said
judgment. However, before we do so, we would like to refer to the
provisions of Sections 190 and 193 of the Code which have come into
play in the instant case as proper understanding thereof, in our opinion,
shall provide categorical answer to the issue at hand and will help us in
tracing the underlying legal principle laid down in that case. These
F provisions make the following reading:
"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
G cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such
offence;
.(b) upon a police report of such facts;
' (1995) 2 sec 23
H
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 511
fA. K: SJKRI, J.l
(c) upon information received from any person other than a police A
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 (I) of
such offences as are within his competence to inquire into or try. B
xx xx xx
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 c
unless the case has been committed to it by a Magistrate under
this Code."
8. Sections 190 and 193 of the Code are in Chapter XIV. This
Chapter contains the title "Conditions requisite for initiation of
proceedings". Section 190 deals with cognizance of offence by
D
Magistrates. It empowers any Magistrate of the First Class, and any
Magistrate of the Second Class which are specially empowered to take
cogni:lance "of any offence" under three circumstances mentioned
therein. These three circumstances include taking of cognizance upon a
Police report of such facts which may constitute an offence. It is trite
law that even when Police report is filed stating that no offence is made E
out, the Magistrate can ignore the conclusion arrived at by the Investigating
Officer and is competent to apply its independent mind to the facts
emerging from the investigation and take cognizance of the case if it
thinks that the facts emerging from the investigation do lead to prima
facie view that commission of an offence is made out. In such a situation,
F
the Magistrate is not bound to follow the procedure laid down in Sections
200 ani:l 202 of the Code for taking cognizance of the case under Section
190(1 )(a) though it is open for him to act under Section 200 or Section
20~ as well fSee Minu Kumari & Anr. v. State of Biliar & Ors.').
Thus, when a complaint is received by the Magistrate under Section
l 90(l)(a) of the Act, the Magistrate is empowered to resort to procedure G
laid down in Section 200 or 202 of the Code and then take cognizance.
If Police report is filed, he woukj take cognizance upon such a report, as
provided under Section l 90(l)(b) of the Code in the manner mentioned
above as highlighted in the case of Minu Kumari.
' (2006) 4 sec 359 H
512 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 9. Likewise, Section 193 of the Code empowers Court of Session
to take cognizance ofoffences and states that the Court of Session shall
not take cognizance of any offence as the Court of original jurisdiction
unless the case has been committed to it by the Magistrate under this
Code. As per this Section, the Court of Session can take cognizance
only after the case has been committed to it by the Magistrate. However,
B
once the case is committed to it by the Magistrate, the Court of Session
is empowered to take cognizance acting 'as a Court of original
jurisdiction'.
l 0. In view of the aforesaid provisions, question that arises is as
to whether Magistrate can take cognizance ofan offence which is triable
c by the Court of Session or he is to simply commit the case to the Court
of Session, after completion of committal proceedings as it is the Court
of Session which is competent to try such cases. On the one hand,
Section 190 of the Code empowers the Magistrate to "take cognizance
of any offence" which gives an impression that such Magistrate can
D take cognizance even of an offence which is triable by the Court of
Session. On the other hand, when the case is committed to the Court of
Session by the Magistrate, Section 193 of the Code stipulates that Court
of Session shall take cognizance 'as a Court of original jurisdiction' which
shows that the cognizance is taken by the Court of Session as a Court of
original jurisdiction and, thus, it is the first time the cognizance is taken
E and any order passed by the Magistrate while committing the case to
the Court of Session did not amount to taking cognizance of the offence
which are triable by the Court of Session.
11. A bare reading of Section 190 of the Code which uses the
expression "any offence" amply shows that no restriction is imposed on
F the Magistrate that Magistrate can take cognizance only for the offence
triable by Magistrate Court and not in respect of offence triable by a
Court of Session. Thus, he has the power to take cognizance of an
offence which is triable by the Court of Session. If it is so, the question
is as to what meaning is to be assigned to the words "as a Court of
G original jurisdiction" occurring in Section 193 of the Code when Court of
Session takes cognizance of any offence. To put it otherwise, when the
Magistrate has taken cognizance and thereafter only committed the case
to the Court of Session, whether the Court of Session is not empowered
to take cognizance of an offence again under Section 193 of the Code or
it still has power to take cognizance acting as Court of original jurisdiction.
H
BALVEER'SINGH & ANR. v. STATE OF RAJASTHAN 513
rA. K. SIKRI, J.l
In order to find the ans~er, we now advert to the appraisal of A
Dharampal's case.
12. In Dharam Pal's case, an FIR was registered against one N
and the appellants for commission of offence under Section 307 and 323
read with Section 34 !PC. The police after investigation submitted its
report under Section 173(2) of the Code before the Magistrate sending B
only N for trial while including the names of the appellants in Column 2
of the report. On receipt of such police report, the Magistrate did not,
straightaway, commit the case to the Sessions Court but, on an objection
being raised by the complainant, issued summons to the appellants therein
to face trial with the other accused N as the Magistrate was convinced
that a prima facie case to go for trial had been made out against the
c
appellants as well. Further, while doing so, the Magistrate did not hold
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. In this background, the following questions arose for
the consideration by the Constitution Bench: D
"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 E
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, t~ stand trial .in
connection with the case made out in the police report?
7.3 Having decided to issue summons against the appellants, was F
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 G
CrPC as a court oforiginaljurisdiction?
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 to wait till the stage under Section
319 of the Code was reached in order to take recourse thereto? H
514 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 7.6 Was Ranjit Singh v. State of Punjab', which set aside the
decision in Kishun Singh v. State of Bihm-' , rightly decided or
not?"
Answering the reference, the Constitution Bench held that:
(a) The Magistrate has ample powers to disagree with the final
B 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. 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) of the Code. In the event the Magistrate
disagrees with the police report, he has two choices. He may act on the
c 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 primafacie satisfied that a case had been made out to proceed
against the persons named in Column 2 of the report, he may proceed to
try the said persons or if he is satisfied that a case had been made out
D which was triable by the Court of Session, he must commit the case to the
Court of Session to proceed further in the matter. Further, ifthe Magistrate
decides 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 ifthe same is found to be triable by the
Sessions Court.
E (b) The Sessions Judge is entitled to issue summons under Section
193 of the Code upon the case being committed to him by the Magistrate.
Section 193 speaks of cognizance of offences by the Court of Session.
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
F case has been committed to it by a Magistrate under this Code'. The
provision of Section 193 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. The
submission that the cognizance indicated in Section 193 deals not with
G cognizance of an offence but of the commitment order passed by the
Magistrate, was specifically rejected in view ofthe clear wordings of Section
I 93 that the Court of Session may take cognizance of the offences under
the said section.
' (1998) 1sec149
H ' (1993) 2sec 16
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 515
[A. K. SIKRI, J.l
(c) Cognizance of an offence can only be taken once. In the A
event, a Magistrate takes cognizance of the offence and then commits
the case to the Court of Session, the question of taking fresh cognizance
of the offence and, thereafter, proceeding to issue summons, is not in
accordance with law. If cognizance is to be taken of the offence, it
could be taken either by the Magistrate or by the Court of Session. The
B
language of Section 193 of the Code very clearly indicates that once the
case is committed to the Court of Session by the Magistrate, the Court
of Session assumes original'jurisdiction and all that goes with the
assumption of such jurisdiction. The provisions of Section 209 of the
Code will, therefore, have to be understood as the Magistrate playing a
passive role in committing the case to the Court of Session on finding c
from the police report that the case was triable by the Court of Session.
Nor can there be any question of part cognizance being taken by the
Magistrate and part cognizance being taken by the Sessions Judge.
13. In the process of coming to the aforesaid conclusions, this
Court accepted the view expressed in Kisltun Singh 's6 case that the D
Sessions Court has jurisdiction on committal of a case to it, to take
cognizance of the offences of the person not named as offenders but
whose complicity in the case would be evident from the materials available
on record. It specifically held that upon committal under Section 209 of
the Code, the Sessions Judge may summon those persons sho\vn in
Column 2 of the police report to stand trial along with those already E
named therein.
14. lnterestingly, at the same time, the Court also held that it would
not be correct to hold that on receipt of a police report and seeing that
the case is triable by ii Court of Session, the Magistrate has no other
function but to commit the case trial to the Court of Session and the F
Sessions Judge has to wait ti II the stage under Section 319 of the Code is
reached before proceeding against the persons against whom a prima
facie case is made out from the material contained in the case papers
sent by the Magistrate while committing the case to the Court of Session.
This is reflected in the following passage: G
"33. 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 has no· other function, but to
' Footnote 6 above H
516 SUPREME COURT REPORTS [2016] 2 S.C.R.
A commit the case for trial to the Court of Session, which could only
resort to Section 3 19 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 l 90(l)(b) and Section 204 of the Code issuing summons
to the accused. The effect of such an interpretation would lead to
B
a situation where neither the Committing Magistrate would have
any control over the persons named in column 2 of the police.
report nor the Sessions Judge, till the Section 319 stage was
reached in the trial. Furthermore, in the event the Sessions Judge
ultimately found material against the persons named in column 2
c 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."
However, when we see the discussion in totality, it would be
clear that the aforesaid observations were made in respect of the first
D question posed by the Constitution Bench in para 7 .1, already reproduced
above, as per which the powers of the Magistrate while committing the
case to the Sessions Court were to be answered. This is so made clear
in the very next para, i.e. para 34 of the judgment, wherein, while
approving the dicta laid down in Kisftun Singh 's case, the Constitution
Bench held that 'the Magistrate has ample powers to disagree with
E 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'. This was put
beyond the pale of any controversy in para 35 of the judgment, which
F reads as under:
"35. Jn 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
G 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
H
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 517
fA. K. SIKRI, J.l
which was triable by the Court of Session, he may commit the A
case to the Court of Session to proceed further in the matter."
15. Discussion up to this stage answers the powers of the
Magistrate by laying down the principle that even if' the case is triable by
the Court of Session, the function of the Magistrate is not to act merely
as a post office and commit the case to the Court of Session, but he is B
also empowered to take cognizance, issue process and summon the
accused and thereafter commit the case to the Court of Session. The
position with regard to that would become. clearer once we find the
answer that was given by the Constitution Bench to questions at paras
7.4 to 7.6 extracted above. We would like to reproduce paras 37 to 41
of the said judgment in this behalf, which are as follows: c
. "37. Questions 4, 5 and 6 are more or less interlinked. The answer
to Question 4 must be in the affirmative, namely, that the Sessions
Judge was entitled to issue summons under Section 193 CrPC
upon the case being committed to him by the learned Magistrate.
38. Section 193 of the Code speaks of cognizance of offences by D
the Court of Session and provides as follows:
"193.Cognizance of offences by Courts ofSession.-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 E
unless the case has been committed to it by a Magistrate under
this Code."
The key word~ 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 F
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 heen 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 G
193 deals not with cognizance ofan 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
j
under the said section. · " H
518 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 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
B
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
c 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.
D
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
E 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
F may summon those persons shown in column 2 of the police report
to stand trial along with those already named therein.
41. We are also unable to accept Mr Dave's submission that the
Sessions Court would have no alternative, but to wait till the stage
under Section 319 Cr PC was reached, before proceeding against
G the persons against 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."
16. It is manifest from the above that the question at para 7.4 was
specifically answered in the affirmative holding that the Sessions Judge
is entitled to issue summons under Section 193 of the Code 'as a Court
H
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 519
rA. K. SIKRJ, J.l
of original jurisdiction'. This was notwithstanding the fact that the A
Magistrate had taken cognizance and only thereafter committed the case
to the Court of Session, as is clear from the facts of the said case already
noted above. This seems to be in conflict with the other well-settled
position in law, viz., cognizance of an offence can only be taken once
and in the event a Magistrate takes cognizance of the offence and then
B
commits the case to the Court of Session, the question of taking first
cognizance of the offence thereafter would not be in accordance with
law. In order to resolve this seeming contradiction, the Court provided
the answer by clarifying that the provisions of Section 209 of the Code
will have to be understood to mean that the Magistrate plays passive
role in committing the case to the Court of Session on finding from the c
Police report that the case was triable by the Court of Session.
17. As pointed out above, the Constitution Bench in this judgment
agreed with the view taken in Kisliun Sing/i's case. In that judgment,
the Court had explained and clarified the legal position in the following
manner: D
"16. We have already indicated earlier from the ratio of this Court's
decisions in the cases of Raghubans Dubey, (1967) 2 SCR 423,
and Hareram, ( 1978) 4 SCC 58, 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 E
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 F
Court of Session was precluded from taking cognizance of any
offence as a court oforiginaljurisdiction 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 ca~e. Thus, on a plain reading of Section 193, as it presently G
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
oforiginaljurisdiction gets lifted. On the Magistrate committing
the case under Section 209 to the Court of Session the bar of
H
520 SUPREME COURT REPORTS (2016] 2 S.C.R.
A 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 .... "
B
18. Yet another case, which reiterated the aforesaid legal position
in Kishun Singh 's case, is Nisar & Anr. v. State of U.P. 7
19. Insofar as judgment in Hardeep Singh v. State of Punjab &
Ors.' case is concerned, that pertains to the powers of the trial court as
contained in Section 319 of the Code, which empower the trial court to
c proceed even against persons not arraigned as accused. The Constitution
Bench in the said case primarily considered the issue about the stage at
which such a power under Section 319 of the Code is to be exercised
and the related issue as to what is the meaning of the word 'evidence'
used in Section 319( I) of the Code on the basis of which power to
D summon those who have not been arraigned as accused earlier can be
exercised. Therefore, it is not necessary to discuss that judgment in
detail as the answer to the question with which we are concerned is
provided by ihe Constitution Bench in its judgment in Dfmram Pal's
case itself, which binds us. As per this judgment, since the Court of
Session is acting as the Court oforiginaljurisdiction under Section 193
E of the Code, after the committal of proceedings to it by the Magistrate,
it is empowered to take cognizance and issue summons and it cannot be
treated as taking second cognizance of the same offence.
20. Th is view further gets strengthened from another judgment of
this Court in Ajay Kumar Parmar v. State of Rajastlwn9 • In that
F case, the Court held that when the offence is exclusively triable by the
Sessions Court, the Magistrate must commit the case to the Sessions
Court and cannot refuse to take cognizance of the offence and acquit
the accused on the basis of material produced before it. It would be
useful to reproduce the following discussion in the said judgment:
G "14. In Sanjay Gandhi v. Union of India, (1978) 2 SCC 39, this
Court while dealing with the competence of the Magistrate to
discharge an accused, in a case like the instant one at hand, held:
(SCC pp. 40-41, para 3)
7
(1995)2SCC23
't20l4) 3 secn
H 'r2012J 12 sec 406
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 521
[A. K. SIKRI, J.]
"3 .... it is not open to the committal court to launch on a process A
of satisfying itself that a prima facie case has been made out on
the merits. The jurisdiction once vested in him under the earlier
Code but has been eliminated now under the present Code.
Therefore, to hold that he can go into the merits even for a prima
facie satisfaction is to frustrate Parliament's purpose in remoulding
B
Section 207-A (old Code) into its present non-discretionary shape.
Expedition was intended by this change and this will be defeated
successfully ifi.nterpretatively we hold that a dress rehearsal of a
trial before the Magistrate is in order. In our view, the narrow
inspection hole through which the committing Magistrate has to
look at the case limits him merely to ascertain whether the case, c
as disclosed by the police report, appears to the Magistrate to
show an offence triable solely by the Court of Session. Assuming
the facts to be correct as stated in the police report, ... the
Magistrate has simply to comm if for trial before the Court of
Session. If, by error, a wrong section of the Penal Code is quoted,
D
~e may look into that aspect. ... If made-up facts unsupported by
any material are reported by the police and a sessions offence is
made to appear, it is perfectly open to the Sessions Court under
Section 227 CrPC to discharge the accused. This provision takes
care of the alleged grievance of the accused."
(emphasis added) E
Thus, it is evident from the aforesaid judgment that when an
offence is cognizable by the Sessions Court, the Magistrate cannot
probe into the matter and discharge the accused. It is not
permissible for him to do so, even after considering the evidence
on record, as he has no jurisdiction to probe or look into the matter F
at all. His concern should be to see what provisions of the penal
statute have been mentioned and in case an offence triable by the
Sessions Court has been mentioned, he must commit the case to
the Sessions Court and do nothing else.
15. Thus, we are of the considered opinion that the Magistrate G
had no business to discharge the appellant. In fact, Section 207-A
in the old CrPC, empowered the Magistrate to exercise such a
power. However, in CrPC, 1973, there is no provision analogou~
to the said Section 207-A. He was bound under law, to commit
the case to.the Sessions Court, where sucfi application for discharge
H
522 SUPREME COURT REPORTS (2016] 2 S.C.R.
A would be considered. The order of discharge is therefore, a nullity,
being without jurisdiction.
xx xx xx
17. The court should not pass an order of acquittal by resorting to
a course of not taking cognizance, where prima facie case is made
B out by the investigating agency. More so, it is the duty of the court
to safeguard the rights and interests of the victim, who does not
participate in the discharge proceedings. At the stage of application
of Section 227, the court has to sift the evidence in order to find
out whether or not there is sufficient ground for proceeding against
c the accused. Thus, appreciation of evidence at this stage, is not
permissible. (Vide P. Vijayan v. State of Kera/a, (20 I 0) 2 SCC
398, and RS. Mishra v. State of Orissa, (2011) 2 SCC 689)
18. The scheme of the Code, particularly, the provisions of Sections
207 to 209 CrPC, mandate the Magistrate to commit the case to
D the Court of Session, when the charge-sheet is filed. A conjoint
reading of these provisions makes it crystal clear that the committal
of a case exclusively triable by the Court of Session, in a case
instituted by the police is mandatory. The scheme of the Code
simply provides that the Magistrate can determine, whether the
facts stated in the report make out an offence triable exclusively,
E by the Court of Session. Once he reaches the conclusion that the
facts alleged in the report, make out an offence triable exclusively
by the Court of Session, he must commit the case to the Sessions
Court.
19. The Magistrate, in exercise of its power under Section 190
F CrPC, can refuse to take cognizance if the material on record
warrants so. The Magistrate must, in such a case, be satisfied
that the complaint, case diary, statements of the witnesses recorded
under Sections 161 and 164 CrPC, if any, do not make out any
offence. At this stage, the Magistrate performs a judicial function.
G However, he cannot appreciate the evidence on record and reach
a conclusion as to which evidence is acceptable, or can be relied
upon. Thus, at this stage appreciation of evidence is impermissible.
The Magistrate is not competent to weigh the evidence and the
balance of probability in the case."
21. Keeping in view the aforesaid legal position, we may now
H
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 523
[A. K. SIKRI, J.l
discuss the circumstances under which the cognizance was taken by A
the Session Judge. Here is a case where the Police report which was
submitted t.5.the Magistrate, the IO had not included the appellants as
aecused_persons. The complainant had filed application before the
learned Magistrate with prayer to take cognizance against the appellants
as well. This application was duly considered and rejected by the learned
B
Magistrate. The situation in this case is, thus, not where the investigation
report/chargesheet filed under Section 173(8) of the Code implicated
the appellants and appellants contended thatthey are wrongly implicated.
On the contrary, the Police itself had mentioned in its final report that
case against the appellants had not been made out. This was objected
to by the complainant who wanted the Magistrate to summon these c
appellants as well and for this purpose the application was filed by the
complainant under Section 190 of the Code. The appellants had replied
to the said application and after hearing the arguments, the application
was rejected by the Magistrate. This shows that order of the Magistrate
was passed with due application of mind whereby he refused to take
D
cognizance of the alleged offence against the appellants and confined it
only to the son of the appellants. This order was not challenged.
Normally, in such a case, it cannot be.said that the Magistrate had played
'passive role' while committing the case to the Court of Sessions. He
had, thus, taken cognizance after due application of mind and playing an
"active role" in the process. The position would have been different if E
the Magistrate had simply forwarded the application of the complainant
to the Court of Sessions while committing the case. In this scenario, we
are of the opinion that it would be a case where Magistrate had taken
the cognizance of the offence. Notwithstanding the same, the Sessions
Court on the similar application made by the complainant before it, took
F
cognizance thereupon. Normally, such a course of action would not be
pern1issible.
22. The next question is as. to whether this Court exercise its
powers under Article 136 of the Constitution to interdict such an order.
We find that the order of the Magistrate refusing to take cognizance
against the appellants is revisable. This power of revision can be G
exereised by the superior Court, which in this case, will be the Court of
Sessions itself, either on the revision petition that can be filed by the
aggrieved party or even suo 111010 by the revisional Court itself. The
Court of Sessions was, thus, not powerless to pass an order in his
revisionary jurisdiction. Things would have been different had he passed H
524 SUPREME COURT REPORTS [2016] 2 S.C.R.
A the impugned order taking cognizance of the offence against the appellants,
without affording any opportunity to them, since with the order that was
passed by the learned Magistrate a valuable right had accrued in favour
of these appellants. However, in the instant case, we find that a proper
opportunity was given to the appellants herein who had tiled reply to the
application of the complainant and the Sessions Court had·aJso heard
B
their arguments. For this reason, we are not inclined to interfere with
the impugned order and dismiss this appeal.
Devika Gujral Appeal dismissed.
.·.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "cognizance"Sign in to search