BALVEER SINGH AND ANR Vs. STATE OF RAJASTHAN AND ANR
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 190 - Cognizance of offences by Magistrates
Section 193 - Cognizance of offences by Courts of Session
Section 304 - Legal aid to accused at State expense in certain cases
Section 498 - Enticing or taking away or detaining with criminal intent a married woman
Section 304 - Punishment for culpable homicide not amounting to murder
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 253 of 2016, Judgment Date: May 10, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 253 OF 2016
BALVEER SINGH & ANR. .....APPELLANT(S)
VERSUS
STATE OF RAJASTHAN & ANR. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
The appellants in this appeal are the parents of one
Abhimanyu 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 (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 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 IPC 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 IPC.
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 IPC 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 Sections 304-B and 498-A IPC
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
04.11.2015 remanded the matter back to the Sessions Court with a direction
to hear the parties and pass further orders in the light of judgment of
this Court in Dharam Pal & Ors. v. State of Haryana and Anr.[1]. 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 IPC and, in the
alternative, Section 306 IPC against the appellants as well as their son.
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.
We may record at the outset that the sole ground on which the order was
challenged before the High Court, as well as before us, is that when the
Magistrate had dismissed the application of the complainant vide order
dated 11.03.2015 and refused to take cognizance under Sections 304-B and
498-A IPC 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 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.
Thus, the question that falls for consideration before us is as to whether
the Court of Sessions was empowered to take cognizance of offence under
Sections 304-B and 498-A of IPC, 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.
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 to the
Court of Sessions, Sessions Court has no power to take fresh cognizance of
the offence inasmuch as cognizance of offence can be taken only once.
Again, in support of this proposition, aid of the judgment in Dharam Pal's
case is taken.
Per contra, Dr. Sushil Balwada, learned counsel who appeared for respondent
No. 2 and Mr. Anish Maheshwari, learned counsel who 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 of their submissions,
the respondents also rely upon the judgment in Dharam Pal's case. In
addition, they also took support from the judgment of this Court in Nisar
and Another v. State of U.P.[2]
The aforesaid narration unequivocally demonstrates that both the sides are
trying to find support from the judgment in Dharmpal's 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 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 cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer,
or upon his own knowledge, that such offence has been committed.
The Chief Judicial Magistrate may empower any Magistrate of the second
class to take cognizance under sub-section (1) of such offences as are
within his competence to inquire into or try.
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 unless the case has been committed to it by a
Magistrate under this Code.”
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 is not bound to follow the
procedure laid down in Sections 200 and 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 202 as well {See Minu Kumari & Anr. v.
State of Bihar & Ors.[3]}. 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 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(1)(b) of the Code in the
manner mentioned above as highlighted in the case of Minu Kumari.
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 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, 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'.
In view of the aforesaid 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, 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
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 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.
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 Dharampal's case.
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 IPC. The police after investigation submitted its report under
Section 173(2) of the Code before the Magistrate sending 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 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:
“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 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?
7.3 Having decided to issue summons against the appellants, was 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 CrPC as a court
of original jurisdiction?
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?
7.6 Was Ranjit Singh v. State of Punjab[4], which set aside the decision
in Kishun Singh v. State of Bihar[5] , rightly decided or not?”
Answering the reference, the Constitution Bench held that:
(a) The Magistrate has ample 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 found to be triable by the
Sessions Court.
(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 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 cognizance of an offence
but of the commitment order passed by the Magistrate, was specifically
rejected in view of the clear wordings of Section 193 that the Court of
Session may take cognizance of the offences under the said section.
(c) 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, 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 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 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.
In the process of coming to the aforesaid conclusions, this Court accepted
the view expressed in Kishun Singh's[6] case that the 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 shown in Column 2 of the police
report to stand trial along with those already named therein.
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 trial to the Court of
Session, which could only resort to Section 319 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 190(1)(b) and Section 204 of the Code issuing summons to the
accused. The effect of such an interpretation would lead to 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 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
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 Kishun Singh's case, the Constitution Bench held that
'the Magistrate has ample 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, 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 reads as under:
“35. 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(2) CrPC. 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 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.”
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 CrPC upon the case being
committed to him by the learned Magistrate.
38. Section 193 of the Code speaks of cognizance of offences by the Court
of Session and provides as follows:
“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 unless the case has been committed to it by a
Magistrate under this Code.”
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
case has been committed to it by a Magistrate under 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 been 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
193 deals not with cognizance of an 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 under the said section.
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 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 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 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 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 CrPC 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.”
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 of
original jurisdiction'. This was notwithstanding the fact that the
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 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 Police report that the
case was triable by the Court of Session.
As pointed out above, the Constitution Bench in this judgment agreed with
the view taken in Kishun Singh's case. In that judgment, the Court had
explained and clarified the legal position in the following manner:
“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 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 Court of Session
was precluded from taking cognizance of any offence as a court of original
jurisdiction 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 case. Thus, on a plain reading of Section 193, as
it presently 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 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....”
Yet another case, which reiterated the aforesaid legal position in Kishun
Singh's case, is Nisar & Anr. v. State of U.P.[7]
Insofar as judgment in Hardeep Singh v. State of Punjab & Ors.[8] 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 meaning of the word 'evidence' used in Section
319(1) of the Code on the basis of which power to 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 the Constitution Bench in its
judgment in Dharam Pal's case itself, which binds us. As per this
judgment, since the Court of Session is acting as the Court of original
jurisdiction under Section 193 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.
This view further gets strengthened from another judgment of this Court in
Ajay Kumar Parmar v. State of Rajasthan[9]. In that 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:
“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)
“3.… it is not open to the committal court to launch on a process 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 Section 207-A (old Code) into its
present non-discretionary shape. Expedition was intended by this change and
this will be defeated successfully if interpretatively 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, 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 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 CrPC
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 the old
CrPC, empowered the Magistrate to exercise such a power. However, in CrPC,
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.
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 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 the accused. Thus, appreciation of
evidence at this stage, is not permissible. (Vide P. Vijayan v. State of
Kerala, (2010) 2 SCC 398, and R.S. 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 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, 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 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. 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.”
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 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 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 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 cognizance thereupon. Normally, such a course of action would not
be permissible.
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 exercised 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 moto 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 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 filed reply to the application of the
complainant and the Sessions Court had also heard their arguments. For
this reason, we are not inclined to interfere with the impugned order and
dismiss this appeal.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R.K. AGRAWAL)
NEW DELHI;
MAY 10, 2016.
-----------------------
[1] (2014) 3 SCC 306
[2] (1995) 2 SCC 23
[3] (2006) 4 SCC 359
[4] (1998) 7 SCC 149
[5] (1993) 2 SCC 16
[6] Footnote 6 above
[7] (1995) 2 SCC 23
[8] (2014) 3 SCC 92
[9] (2012) 12 SCC 406
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