TaxTMI 
TaxTMI 
2013 (7) TMI 1181
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....State of Delhi and Ors. (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 v. State of Bihar (1993) 2 SCC 16, and the other is a decision of a Three-Judge Bench in the case of Ranjit Singh v. 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 ....
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.... stand trial in connection with the case made out in the police report? (iii) 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? (iv) Can the Session Judge issue summons under Section 193 Code of Criminal Procedure as a Court of original jurisdiction? (v) Upon the case being committed to the Court of Session, could the Session 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? (vi) Was Ranjit Singh's case (supra), which set aside the decision in Kishun Singh's case(supra), rightly decided or not? 5. The facts which led to the order of the learned Magistrate, which was subsequently challenged in Revision before the Session Judge and the High Court are that except for one Nafe Singh, who was shown as an accused, the Appellants Dharam Pal and others were included in column 2 of the police repor....
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....ven if on looking into the police report, he was convinced that the others mentioned in column 2 of the police report were also required to be sent up for trial. Mr. Chahar submitted that the Magistrate had exceeded his jurisdiction and both the Session Judge and the High Court had misconstrued the provisions of Sections 190, 193 and 209 of the Code, in upholding the order of the learned Magistrate. In this regard, Mr. Chahar brought into focus the provisions of the 1898 Code of Criminal Procedure and the corresponding provisions in the present Code, which replaced the 1898 Code. Learned Counsel pointed out that in Section 207A of the 1898 Code, the Magistrate was mandatorily required to hold a mini-trial before committing the case to the Court of Session, whereas under Section 190 of the Code of 1973, the Magistrate, having jurisdiction, 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 report, or upon his own knowledge, that such offence has been committed. 8. Mr. Chahar submitted that the difference in the two ....
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....uch summons could only be traced back to Section 190(1)(b) of the Code, which provides as follows: 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. (2) 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. 12. Mr. Dave submitted that it is only upon receipt of a police report and the objection thereto that the Magistrate may issue summons to the Appellants under Section 204 of the Code, without taking any further recourse to the other provisions relating to cognizance of offences on a complaint petition. Mr. Dave submitted that after taking cognizance upon a police report under Secti....
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....ressed. In the said case, it was held that the Magistrate had no power to direct the police to submit a charge-sheet, when the police, after investigation into a cognizable offence, had submitted a report of the action taken under Section 169 of the 1898 Code that there was no case made out for sending of the accused for trial. 15. Mr. Dave also referred to the decision of this Court in Raj Kishore Prasad v. State of Bihar and Anr. (1996) 4 SCC 495, in which it was also held that while committing a case under Section 209 of the Code, the Magistrate had no jurisdiction to associate any other person as accused in exercise of powers under Section 319 of the Code or under any other provision. It was further observed that a proceeding under Section 209 of the Code before a Magistrate is not an inquiry and material before him is not evidence. It is only upon committal can the Court of Session exercise jurisdiction under Section 319 of the Code and add a new accused, on the basis of evidence recorded by it. Mr. Dave also urged that in the decision of this Court in SWIL Limited (supra), which was one of the cases brought to the notice of the Referring Court, it was held that a person not ....
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...., but had been included in column 2 of the charge-sheet, even after cognizance was taken. He referred to various decisions, which had already been referred to by the other counsel. 19. Even in Criminal Appeal No. 865 of 2004, Mr. Shishir Pinaki, learned Advocate appearing for Respondent No. 2 (complainant), urged that the Magistrate has been vested with control over the proceedings under Article 20 of the Constitution and hence it was within his powers to issue summons under Section 204 of the Code, even if he disagreed with the police report filed under Section 173(3) of the Code, without taking recourse to the provisions of Section 202, before proceeding to issue process under Section 204 of the Code. 20. The issue in the Reference being with regard to the powers of the Magistrate to whom a report is submitted by the police authorities under Section 173(3) of the Code, it is necessary for us to examine the scheme of Chapter XIV of the Code, dealing with the conditions requisite for initiation of proceedings. 21. Section 190, which has been extracted hereinbefore, empowers any Magistrate of the First Class or the Second Class specially empowered in this behalf under Sub-section....
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....tely 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. 23. The view expressed in Kishun Singh's case, in our view, is more acceptable since, as has been held by this Court in the cases referred to hereinbefore, the Magistrate has ample powers to disagree with the Final Report that may be filed by the police authorities under Section 173(3) of the Code and to proceed against the accused persons dehors the police report, which power the Session Court does not have till the Section 319 stage is reached. The upshot of the said situation would be that even though the Magistrate had powers to disagree with the police report filed under Section 173(3) of the Code, he was helpless in taking recourse to such a course of action while the Session Judge was also unable to proceed against any person, other than the accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross-examined on behalf of the accused. 24. In our view, the Magistrate has a role to play while committing th....
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....ginal 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. 27. 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 juri....