IMPORTANT POINT
The Court of Sessions can take cognizance of offences against accused not charge-sheeted by the police after the case is committed to it, based on prima facie evidence.

ORDER :

Anoop Kumar Dhand, J.

This petition challenges the impugned order dated 30.08.2018 passed by the Additional Sessions Judge No.1 Sambhar Lake, District Jaipur in Sessions Case No.12/2013 by which the application filed by the complainant respondent under Section 193 Cr.P.C. for taking cognizance against the accused petitioners has been allowed and accordingly cognizance has been taken against them for the offences punishable under Sections 147, 148, 341, 323, 325, 308 and 149 IPC.

2. Learned counsel for the petitioner submits that in the instant matter, the FIR was lodged against several accused persons and after investigation chargesheet was submitted only against the accused Gulab, Gafoor, Ramzan, Shahjad, Gafar Sayeed and after submission of chargesheet cognizance was taken against them by the Additional Chief Judicial Magistrate, Sambharlake, District Jaipur vide order dated 25.02.2023. Counsel submits that since the offences were triable by the Sessions, the case was committed to the Court of Additional Sessions Judge, Sambhar Lake. Counsel submits that after committal of the case, the learned Additional Sessions Judge took cognizance against those accused persons for the same offences on 13.03.2013 and thereafter the case was posted for framing of charge. Counsel submits that at this stage, the complainant respondent submitted an application under Section 193 Cr.P.C. on 27.01.2014 for taking cognizance against rest of the accused i.e. the petitioners. Counsel submits that overlooking the settled proposition of law, cognizance has been taken against the petitioners for the offences as stated above. Counsel submits that it is the settled proposition of law that cognizance of an offence is taken and not of the offender. Counsel submits that in the instant matter, thrice cognizance has been taken, once by the Judicial Magistrate and twice by the Court of Additional Sessions Judge. Counsel submits that when the case was committed to the Court of Additional Sessions Judge and cognizance was taken against rest of the accused persons who were chargesheeted there was an occasion available with the complainant and the State for moving appropriate application for taking cognizance, but at that stage, no such application was submitted. Counsel submits that the application was submitted at later stage which has been erroneously allowed by the learned Additional Sessions Judge i.e. trial Judge. Counsel submits that under these circumstances, the impugned order passed by the learned trial Judge is not legally sustainable in the eye of law. In support of his contentions, he has placed reliance upon the judgment passed by the Hon'ble Apex Court in the case of Dharam Pal and Ors. v. State of Haryana and Ors. reported in 2014 (3) SCC 306 and this Court in the case of Shodan Singh and Anr. v. State of Rajasthan (S.B. Criminal Misc. Petition No.2281/2016). Counsel submits that in view of the submissions made herein above, interference of this Court is warranted and the impugned order dated 30.08.2018 is liable to be quashed and set aside.

3. Per contra, learned Public Prosecutor as well as the counsel for the complainant opposed the arguments raised by the counsel for the petitioner and submitted that as per Section 193 Cr.P.C., cognizance can be taken by the Court of Sessions against those accused persons, who have not been chargesheeted by the Investigating Agency. Counsel submits that when clear and specific evidence was there against the petitioners, even then they were left by the police, hence under these circumstances, the complainant was left with no other option except to submit an application under Section 193 Cr.P.C. for taking cognizance against them. Counsel submits that Section 193 Cr.P.C. empowers the learned Sessions Judge to take cognizance against the accused who have not been chargesheeted. In support of her contention, she has placed reliance upon the following judgments:

1. Dharam Pal and Ors. v. State of Haryana and Or