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SUPREME COURT OF INDIA
ALTAMAS KABIR, CJI., SURINDER SINGH NIJJAR, RANJAN GOGOI, M.Y. EQBAL & VIKRAMAJIT SEN, JJ.
DHARAM PAL & ORS. - APPELLANTS
VS.
STATE OF HARYANA & ANR. - RESPONDENTS
CRIMINAL APPEAL NO. 148 of 2003
CRIMINAL APPEAL NOS. 865 of 2004, 1334 of 2005 and 537 of 2006
Decided On : Dated: July 18, 2013.
Z
Code of Criminal Procedure, 1973- Section 209- 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- 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 Session Judge (Para 27)
Facts of the case:
On receiving such police report, the learned Magistrate did not straight away proceed to commit the case to the Court of Session but, on an objection taken on behalf of the complainant, treated as a protest petition, issued summons to those accused who had been named in column 2 of the charge-sheet, without holding any further inquiry, as contemplated under Sections 190, 200 or even 202 of the Code, but proceeded to issue summons on the basis of the police report only. The learned Magistrate did not accept the Final Report filed by the Investigating Officer against the accused, whose names were included in column 2, as he was convinced that a prima facie case to go to trial had been made out against them as well, and issued summons to them to stand trial with the other accused, Nafe Singh.
Findings of the Court :
The decision in the case of Kishun Singh vs. State of Bihar and not the decision in Ranjit Singh Vs. State of Punjab lays down the law correctly in respect of the powers of the Session Court after committal of the case to it by the learned Magistrate under Section 209 Cr.P.C.
Result : The matter remitted to the Three-Judge Bench to dispose of the pending Criminal Appeals in accordance with the views expressed.
The statement "Once cognizance is taken, the Magistrate retains full power to proceed against persons not sent up by the police, if from the materials on record their involvement is disclosed" is generally derived from principles related to the powers of a Magistrate after taking cognizance of an offence. It reflects the procedural understanding that, upon initiating proceedings, the Magistrate's authority is not limited solely to the accused persons initially presented by the police but extends to any other individuals whose involvement becomes evident from the case record.
This principle can typically be found in discussions about the scope of judicial authority in criminal proceedings, particularly in the context of the Magistrate's powers under criminal procedure laws. It emphasizes that the Magistrate's jurisdiction continues beyond the initial police report and that the proceedings can be extended to other accused persons as the case develops, based on the evidence on record.
In legal texts or judgments, this principle is often articulated in the context of the Magistrate's powers after taking cognizance, usually in sections discussing the procedure following the filing of a charge or the recording of a complaint. It underscores the importance of the materials on record in enabling the Magistrate to take further action against additional accused persons if their involvement is established.
[Note: Since you requested not to include specific case law references, the explanation is based on general legal principles and procedural norms.]
JUDGMENT
ALTAMAS KABIR, CJI.
1. This matter was initially directed to be heard by a Bench of Three- Judges in view of the conflict of opinion in the decisions of two Two-Judge Benches, in the cases of Kishori Singh and Others Vs. State of Bihar and Others [(2004) 13 SCC 11]; Rajender Prasad Vs. Bashir and Others [(2001) 8 SCC 522] and SWIL Limited Vs. State of Delhi and Others [(2001) 6 SCC 670]. When the matter was taken up for consideration by the Three-Judge Bench on 1st September, 2004, it was brought to the notice of the court that two other decisions had a direct bearing on the question sought to be determined. The first is the case of Kishun Singh Vs. State of Bihar [(1993) 2 SCC 16], and the other is a decision of a Three-Judge Bench in the case of Ranjit Singh Vs. State of Punjab [(1998) 7 SCC 149]. Ranjit Singh’s case disapproved the observations made in Kishun Singh’s case, which was to the effect that the Session Court has power under Section 193 of the Code of Criminal Procedure, 1973, hereinafter referred to as “the Code”, to take cognizance of an offence and summon other persons whose complicity in the commission of the trial could prima facie be gathered from the materials available on record. According to the decision in Kishun Singh’s case (supra), the Session Court has such power under Section 193 of the Code. On the other hand, in Ranjit Singh’s case (supra), it was held that from 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 Magistrate, he would have the power to proceed against those mentioned in column 2, in case he disagreed with the police report, but in regard to serious offences triable by the Court of Session, the Court could have to wait till the stage of Section 319 of the Code was reached. The Three-Judge Bench disagreed with the views expressed in Ranjit Singh’s case, but since the contrary view expressed in Ranjit Singh’s case had been taken by a Three-Judge Bench, the Three-Judge Bench hearing this matter, by its order dated 20th January, 2005, directed the matter to be placed before the Chief Justice for placing the same before a larger Bench.
3. In view of the above, the matter has been placed before the Constitution Bench for consideration.
4. The questions which require the consideration of the Constitution Bench are as follows:
i) Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session?
ii) If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report?
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