TMI Blog2016 (5) TMI 1563X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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. The Magistrate had no business to discharge the Appellant. In fact, Section 207-A in the old Code of Criminal Procedure, empowered the Magistrate to exercise such a power. However, in Code of Criminal Procedure, 1973, there is no provision analogous to the said Section 207-A. He was bound under law, to commit the case to the Sessions Court, where such application for discharge would be considered. The order of discharge is therefore, a nullity, being without jurisdiction. 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 learned Magistrate with prayer to take cognizance against the Appellants as well. This application was duly considered and rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging committed by Renu. Matter was investigated which resulted into the filing of chargesheet against Abhimanyu only, that too for committing the offence Under Section 306 Indian Penal Code, 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 Indian Penal Code 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 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 Indian Penal Code. This application was dismissed by the learned Magistrate vide order dated 11.03.2015. Thereupon, the learned Magistrate committed the case before the Sessions Court as the offence Under Section 306 Indian Penal Code is triable by the Sessions Court. Before the Sessions Court, Respondent No. 2 preferred similar application once again. Here, Respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizance of offence only Under Section 306 Indian Penal Code and specifically refusing to take cognizance of offence under Sections 304-B and 498-A Indian Penal Code. 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 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 of Sessions. When the Judicial Magistrate adopts the former approach by not taking the cognizance of offence Under Section 190 of the Code and commits the case for trial before the Sessions Court, Sessions Court 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 Dharam Pal's case. However, if the Magistrate adopts alternate course of action, namely, takes cognizance of the offence and then commits the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 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 Magistrates. It empowers any Magistrate of the 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 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, the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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. In order to find the answer, we now advert to the appraisal of Dharam Pal'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 Indian Penal Code. The police af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple 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. 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 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 prima facie 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 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, if the 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 if the same is foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nders 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 shown in Column 2 of the police report to stand trial along with those already named therein. 14. Interestingly, 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 a Court of Session, the Magistrate has no other function but to commit the case trial to the Court of Session and the Sessions Judge has to wait till 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: 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 commit the case for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 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: 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 Code of Criminal Procedure upon the case being committed to him by the learned Magistrate. 38. Section 193 of the Code speaks of cognizance of offences by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izance 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. 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 Code of Criminal Procedure was reached, before proceeding against 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.... 18. Yet another case, which reiterated the aforesaid legal position in Kishun Singh's case, is Nisar and Anr. v. State of U.P. (1995) 2 SCC 23. 19. Insofar as judgment in Hardeep Singh v. State of Punjab and Ors. (2014) 3 SCC 92 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 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 mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice report, ...the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong Section of the Penal Code is quoted, he 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 Code of Criminal Procedure to discharge the accused. This provision takes care of the alleged grievance of the accused. (Emphasis added) 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 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 had no business to discharge the Appellant. In fact, Section 207-A in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 discuss the circumstances under which the cognizance was taken by the Session Judge. 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 learned Magistrate with prayer to take cognizance against the Appellants as well. This application was duly considered and rejected by the learned 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 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 rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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