- 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 Dharam Pal & Ors. v. State of Haryana and Anr., (2014) 3 SCC 306.
The following questions arose for the consideration by the Constitution Bench:-
- (a) 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?
- (b) If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial, does he have the jurisdiction to issue summons against them?
- (c) Having decided to issue summons, 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?
- (d) Can the Sessions Judge issue summons under Section 193 CrPC as a court of original jurisdiction?
- (e) 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?
- (f) Was Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 which set aside the decision in Kishun Singh v. State of Bihar, (1993) 2 SCC 16 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, the Apex Court accepted the view expressed in Kishun Singh’s 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:-