TMI Blog2013 (7) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... such power under Section 193 of the Code. On the other hand, in Ranjit Singh's case, it was held that from the stage of committal till the Session Court reached the stage indicated in Section 230 of the Code, that Court could deal only with the accused referred to in Section 209 of the Code and there is no intermediary stage till then enabling the Session Court to add any other person to the array of the accused. HELD THAT:- the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein. Consequent upon our aforesaid decision, the view taken by the Referring Court is accepted and it is held that the decision in the case of Kishun Singh v. State of Bihar [ 1993 (1) TMI 304 - SUPREME COURT] and not the decision in Ranjit Singh v. State of Punjab [ 1998 (9) TMI 696 - SUPREME COURT] and lays down the law cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was held that from the stage of committal till the Session Court reached the stage indicated in Section 230 of the Code, that Court could deal only with the accused referred to in Section 209 of the Code and there is no intermediary stage till then enabling the Session Court to add any other person to the array of the accused. 2. The Three-Judge Bench took note of the fact that the effect of such a conclusion is that the accused named in column 2 of the charge-sheet and not put up for trial could not be tried by exercise of power by the Session Judge under Section 193 read with Section 228 of the Code. In other words, even when the Session Court applied its mind at the time of framing of charge and came to the conclusion from the materials available on record that, in fact, an offence is made out against even those who are shown in column 2, it has no power to proceed against them and has to wait till the stage under Section 319 of the Code is reached to include such persons as accused in the trial if from the evidence adduced, their complicity was also established. The further effect as noted by the Three-Judge Bench was that in less serious offences triable by the Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court are that except for one Nafe Singh, who was shown as an accused, the Appellants Dharam Pal and others were included in column 2 of the police report, despite the fact that they too had been named as accused in the First Information Report. After going through the police report, the learned Judicial Magistrate First Class, Hansi, summoned the Appellant and three others, who were not included as accused in the charge-sheet for the purpose of facing trial along with Nafe Singh. The learned Magistrate purported to act in exercise of his powers under Section 190 of the Code, but without taking recourse to the other provisions indicated in Sections 200 and 202 of the Code, before proceeding to issue summons under Section 204 of the Code. 6. The order of the learned Magistrate was questioned by way of Revision before the Additional Session Judge, Hisar, in Criminal Revision No. 27 of 2000, who upheld the order of the learned Magistrate and dismissed the Revision. The order of the learned Session Judge was, thereafter, challenged before the High Court, which also upheld the views expressed by the learned Magistrate as well as the Session Judge, and dismissed the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved from any person other than a police report, or upon his own knowledge, that such offence has been committed. 8. Mr. Chahar submitted that the difference in the two provisions was intentional and had been made in order to shorten the proceedings before the Magistrate. Learned Counsel submitted that, in terms of the old Code, two stages of trial were contemplated which were eliminated by the amended provisions of the Code of 1973. In such circumstances, the view expressed in Ranjit Singh's case appeared to be correct as against the decision in Kishun Singh's case, wherein it was held that the Session Court had power under Section 193 of the Code to take cognizance of the offence and summon other persons, whose complicity in the commission of the offence could prima facie be gathered from the materials available on record. 9. The submissions made in the above Appeal were also reiterated in Criminal Appeal No. 865 of 2004, filed by Naushad Ali, as the point involved in the said appeal is more or less the same as in the appeal filed by Dharam Pal and others. 10. Mr. Amarendra Sharan, learned Senior Advocate, appearing for the Appellant in Criminal Appeal No. 1334 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any further recourse to the other provisions relating to cognizance of offences on a complaint petition. Mr. Dave submitted that after taking cognizance upon a police report under Section 190(1)(b), the next stage would be issuance of summons under Section 204 of the Code and there are no intervening stages in the matter. Accordingly, the only course available to the Committing Magistrate, on receipt of a police report under Section 173(3) of the Code, in a Session triable case, would be to commit the case to the Court of Session, which could, thereafter, take recourse to Section 319 of the Code, since it did not have any other power to summon any other person named in column 2 of the charge-sheet, without receiving fresh evidence against them. Mr. Dave submitted that the cognizance referred to in Section 193 of the Code would be not of the offence in respect of which cognizance had already been taken by the Magistrate, but cognizance of the commitment of the case to the Court of Session for trial. 13. Mr. Dave submitted that having regard to the provisions of Section 204 of the Code, where some amount of application of mind was required by the learned Magistrate, the necessity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by it. Mr. Dave also urged that in the decision of this Court in SWIL Limited (supra), which was one of the cases brought to the notice of the Referring Court, it was held that a person not mentioned as accused in the charge-sheet could also be summoned by the Magistrate after taking cognizance of the offence, if some material was found against him, having regard to the FIR, his statement recorded by the police and other documents. It was also held that Section 319 of the Code did not operate in such a situation. Mr. Dave submitted that the aforesaid decision had not taken note of the decision in Raj Kishore Prasad's case (supra), wherein just the contrary view had been taken and was, therefore, per incuriam. Mr. Dave submitted that the entire exercise undertaken by the Magistrate was contrary to the provisions of law and orders summoning the Appellants as accused in these cases, were, therefore, liable to be quashed. 16. On behalf of the State, it was sought to be urged by Mr. Rajeev Gaur 'Naseem', learned AAG, that under Section 193 of the Code, the Session Court was entitled to take cognizance and issue summons. Contrary to what had been indicated by the Referrin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r initiation of proceedings. 21. Section 190, which has been extracted hereinbefore, empowers any Magistrate of the First Class or the Second Class specially empowered in this behalf under Sub-section (2) to take cognizance of any offence in three contingencies. In the instant case, we are concerned with the provisions of Section 190(1)(b) since a police report has been submitted by the police, under Section 173(3) of the Code sending up one accused for trial, while including the names of the other accused in column 2 of the report. The facts as revealed from the materials on record and the oral submissions made on behalf of the respective parties indicate that, on receiving such police report, the learned Magistrate did not straight away proceed to commit the case to the Court of Session but, on an objection taken on behalf of the complainant, treated as a protest petition, issued summons to those accused who had been named in column 2 of the charge-sheet, without holding any further inquiry, as contemplated under Sections 190, 200 or even 202 of the Code, but proceeded to issue summons on the basis of the police report only. The learned Magistrate did not accept the Final Repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross-examined on behalf of the accused. 24. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Code of Criminal Procedure. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column No. 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter. 25. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge. 28. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh's case (supra) that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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