Neeraj Gupta vs Pardeep Kumar Bansal
- Court
- Supreme Court
2026 INSC 660
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. _ __ OF 2026
(@Special Leave Petition (Criminal) No.776 of 2020)
NEERAJ GUPTA … APPELLANT(S)
Versus
PARDEEP KUMAR BANSAL
& ORS. … RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
1. Leave Granted.
2. This appeal assails the common judgment and order dated
nd
2 September 2019 passed in CRR-993-2011 (O&M) passed by
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
the High Court of Punjab & Haryana, Chandigarh whereby the
Date: 2026.07.01
15:10:16 IST
Reason:
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learned Single Judge of the High Court, remanded the matter in
dispute to the Judicial Magistrate First Class, Chandigarh to
comply with the provisions of Section 244 Code of Criminal
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Procedure, 1973 .
3. The facts triggering this appeal are:
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3.1 On 12 April 2007, a verbal/physical altercation
took place between the appellant-complainant and his
father on one side, with the respondents on the other. His
father in the course thereof fell down and lost
consciousness. Upon being taken to the hospital, he was
declared dead. At this point, no first information report was
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registered. On 16 April, the appellant gave a complaint to
the Senior Superintendent of Police, Chandigarh seeking
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registration of FIR. A second complaint was made on 19
April 2007.
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3.2 On 5 February 2008, he sought direction before
the Judicial Magistrate First Class, Chandigarh under
Section 156(3) CrPC which was accepted vide order dated
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19 February 2008 and the process as under section 200
CrPC was initiated.
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3.3 Certain evidence was recorded on 21 April 2008
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and 10 January 2009 before summoning orders were
1
CrPC
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issued on 8 December 2009. The case came to be
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committed to the jurisdictional Court of Session on 3
May 2010. All the three respondents went before the High
Court seeking quashing of the complaint and summoning
order but in the pendency thereof, the learned Sessions
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Court framed the charges vide order dated 5 April 2011,
but only against respondent no.2 namely Narinder Bansal.
3.4 Aggrieved by the discharge of respondent no.1 and
3 namely Pardeep Kumar Bansal and Gurmail Singh, the
complainant filed a criminal revision (CRR-993-2011
(O&M)) against the said order. It is in this revision petition
that the impugned order came to be passed. It may also be
noted that the respondent no.2, against whom charges were
framed, had challenged the order framing charge as also
the summoning order and prayed for quashing of
complaint, by filing criminal revision (CRM-M-26058 of
2011) which was also disposed of vide the same impugned
order.
4. The reasoning adopted by the High Court is that Section
244 CrPC requires that a Magistrate hear all prosecution evidence
irrespective of whether or not the offence with which the
evidence is concerned is triable by the Magistrate or not. We may
reproduce the part thereof:
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“Once the Legislature has provided a specific
procedure for recording the pre-charge evidence
before framing of charges in a Magisterial trial, it
does not appear to prudence that the said
requirement was not essential for an offence triable
by the Sessions Court, if the case is based upon the
complaint. It may be again added here that if the
offence is serious, there has to be sufficient material
in the shape of some evidence which is to be
examined by the Magistrate before passing the
Committal Order, the same has to be other than the
pre-summoning evidence. Time and again, this
Court as well as the Hon'ble Supreme Court have
held that the Magistrate while passing the Committal
Order is not to act as a mouthpiece of the
prosecution, but is supposed to examine the material
carefully to arrive at such a conclusion. In cases
based upon the police report, the entire evidence
collected by the police after investigation is
contained in Final report under Section 173(2)
Cr.P.C. whereupon an opinion is formed by the
Magistrate for Commitment and likewise in the
other cases, the Court has to examine pre-charge
evidence before passing the Committal Order. ”
5. Heard learned counsel for the parties.
6. The issue, simply put is whether a Magistrate must record
evidence when the offence is strictly triable by the Court of
Sessions as in this case, where the allegations were inter alia
2
under section 302 Indian Penal Code, 1860 .
7. The relevant provisions are reproduced below for ready
reference:
2
IPC
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7.1 Section 200 CrPC is found in chapter XV titled
‘ Complaints to Magistrates ’, it reads as under:
“ 200. Examination of complainant.—A Magistrate
taking cognizance of an offence on complaint shall
examine upon oath the complainant and the witnesses
present, if any, and the substance of such examination
shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:
Provided that, when the complaint is made in
writing, the Magistrate need not examine the
complainant and the witnesses—
(a) if a public servant acting or purporting to act in
the discharge of his official duties or a Court has
made the complaint; or
(b) if the Magistrate makes over the case for inquiry
or trial to another Magistrate under
section 192:
Provided further that if the Magistrate makes over
the case to another Magistrate under section 192
after examining the complainant and the witnesses,
the latter Magistrate need not re-examine them .”
7.2 Chapter XVI titled ‘ Commencement of proceedings
before Magistrates ’ houses Section 209 which provides for
commitment of case when offence is exclusively triable by
court of session.
“ 209. Commitment of case to Court of Session
when offence is triable exclusively by it.—When in
a case instituted on a police report or otherwise, the
accused appears or is brought before the Magistrate
and it appears to the Magistrate that the offence is
triable exclusively by the Court of Session, he
shall—
(a) commit, after complying with the provisions of
section 207 or section 208, as the case may be, the
case to the Court of Session, and subject to the
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provisions of this Code relating to bail, remand the
accused to custody until such commitment has been
made;
(b) subject to the provisions of this Code relating to
bail, remand the accused to custody during, and until
the conclusion of, the trial;
(c) send to that Court the record of the case and the
documents and articles, if any, which are to be
produced in evidence;
(d) notify the Public Prosecutor of the commitment
of the case to the Court of Session.”
7.3 Chapter XIX provides for a procedure to be adopted
by a Magistrate in warrant cases. There are two categories
therein – (i) cases instituted on a police report; and
(ii) cases instituted otherwise than on police report. Section
244 finds its place in the latter half and spells out as
follows:
“B.—Cases instituted otherwise than on police
report
244. Evidence for prosecution.—(1) When, in any
warrant-case instituted otherwise than on a police
report, the accused appears or is brought before a
Magistrate, the Magistrate shall proceed to hear the
prosecution and take all such evidence as may be
produced in support of the prosecution.
(2) The Magistrate may, on the application of the
prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document
or other thing.”
8. Having understood the application of these provisions, let
us now examine the reasoning of the High Court. In holding as it
did, reliance was placed on primarily three judgments, Ajoy
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3
Kumar Ghose v. State of Jharkhand , ; Sunil Mehta v. State of
4 5
Gujarat ; Harinarayan G. Bajaj v. State of Maharashtra
8.1 In Ajoy Kumar Ghose (supra) the question that
concerned the coordinate Bench was the difference
between the procedures mentioned in 238 and 239 CrPC
on one side and 244 and 245 on the other, in a case arising
out of Sections 177, 181, 468, 471 IPC etc. The finding
made in this case that it is incumbent upon the Magistrate
to record evidence under 244 CrPC is made in the context
of offences that are triable by Magistrate as is obvious, in
the present case, they are not.
8.2 In Harinarayan G. Bajaj supra, the interpretation
of Section 319 CrPC was the question which engaged the
attention of the Court. It was held therein that once
additional accused are called before the Court under this
Section, they too would have the right to cross-examine
witnesses before the framing of charge. The word
‘ proceedings ’ as used in Section 319 would cover not only
trial but also inquiry beginning with Section 244 CrPC and
ending in Section 246 CrPC. In the present case, however
there is no question regarding the right of cross
3
2009) 14 SCC 115
4
(2013) 9 SCC 209
5
(2010) 11 SCC 520.
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examination and neither does anything turn on the
understanding of the word ‘ proceedings ’. Reliance
therefore on this judgment appears misplaced.
8.3 In Sunil Mehta supra, the question was whether the
evidence of the complainant recorded under Section 202
CrPC prior to taking cognizance, would constitute
evidence to frame charge under Part B of Chapter XIX of
the CrPC. It was concluded that it would not count as
evidence. It is important to note that the sections involved
in this case were 406 read with 114 IPC. The
distinguishing factor with the present case is that ambit of
the case was squarely within the powers granted to the
Magistrate by the CrPC unlike the present one.
9. If the reasoning of the High Court is accepted, a number of
witnesses would be required to depose about the same set of facts
and circumstances, at least twice. This may not be of any
particular use, nor mandate of law.
10. The Constitution Bench in Hardeep Singh v. State of
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Punjab while dealing with section 319 made following
observations which are relevant for our discussion:
“47. .. At this pre-trial stage, the Magistrate is required to
perform acts in the nature of administrative work rather than
6
(2014) 3 SCC 92
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judicial such as ensuring compliance with Sections 207 and
208 CrPC, and committing the matter if it is exclusively
triable by the Sessions Court. Therefore, it would be
legitimate for us to conclude that the Magistrate at the stage
of Sections 207 to 209 CrPC is forbidden, by express
provision of Section 319 CrPC, to apply his mind to the
merits of the case and determine as to whether any accused
needs to be added or subtracted to face trial before the Court
of Session.”
11. In Supdt. and Remembrancer of Legal Affairs v.
7
Ashutosh Ghosh it was held that under CrPC, the only
requirement from the Magistrate is to see whether the offence is
exclusively triable by the Court of Sessions and in doing so, no
evidence need be taken.
12. The following two judgments relevant portion thereof
extracted herein later, both rendered by a Bench of three judges
analysed the difference between the CrPC and its predecessor
from the year 1898, to observe that the Legislature has
consciously built in this difference of doing away with the
hearing and evidence at pre-committal stage. This is what V.R.
8
Krishna Iyer J. in Sanjay Gandhi v. Union of India , observed
to be frustrating the purpose of the Legislature if the Magistrate
goes into the merits of the matter. The power of the Magistrate
has been described to be a ‘ narrow inspection hole ’.
7
(1979) 4 SCC 381
8
(1978) 2 SCC 39
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12.1 State of Orissa v. Debendra Nath Padhi :
“8. What is the meaning of the expression “the record of
the case” as used in Section 227 of the Code. Though the
word “case” is not defined in the Code but Section 209
throws light on the interpretation to be placed on the said
word. Section 209 which deals with the commitment of
case to the Court of Session when offence is triable
exclusively by it, inter alia, provides that when it appears
to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall commit “the case” to
the Court of Session and send to that court “the record of
the case” and the document and articles, if any, which
are to be produced in evidence and notify the Public
Prosecutor of the commitment of the case to the Court of
Session. It is evident that the record of the case and
documents submitted therewith as postulated in Section
227 relate to the case and the documents referred in
Section 209. That is the plain meaning of Section 227
read with Section 209 of the Code. No provision in the
Code grants to the accused any right to file any material
or document at the stage of framing of charge. That right
is granted only at the stage of the trial.
9. Further, the scheme of the Code when examined in the
light of the provisions of the old Code of 1898, makes
the position more clear. In the old Code, there was no
provision similar to Section 227. Section 227 was
incorporated in the Code with a view to save the accused
from prolonged harassment which is a necessary
concomitant of a protracted criminal trial. It is calculated
to eliminate harassment to accused persons when the
evidential materials gathered after investigation fall
short of minimum legal requirements. If the evidence
even if fully accepted cannot show that the accused
committed the offence, the accused deserves to be
discharged. In the old Code, the procedure as contained
in Sections 207 and 207-A was fairly lengthy. Section
207, inter alia, provided that the Magistrate, where the
case is exclusively triable by a Court of Session in any
proceedings instituted on a police report, shall follow the
procedure specified in Section 207-A. Under Section
9
(2005) 1 SCC 568
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207-A in any proceeding instituted on a police report the
Magistrate was required to hold inquiry in terms
provided under sub-section (1), to take evidence as
provided in sub-section (4), the accused could cross-
examine and the prosecution could re-examine the
witnesses as provided in sub-section (5), discharge the
accused if in the opinion of the Magistrate the evidence
and documents disclosed no grounds for committing him
for trial, as provided in sub-section (6) and to commit the
accused for trial after framing of charge as provided in
sub-section (7), summon the witnesses of the accused to
appear before the court to which he has been committed
as provided in sub-section (11) and send the record of
the inquiry and any weapon or other thing which is to be
produced in evidence, to the Court of Session as
provided in sub-section (14). The aforesaid Sections 207
and 207-A have been omitted from the Code and a new
Section 209 enacted on the recommendation of the Law
Commission contained in its 41st Report. It was realised
that the commitment inquiry under the old Code was
resulting in inordinate delay and served no useful
purpose. That inquiry has, therefore, been dispensed
with in the Code with the object of expeditious disposal
of cases. Instead of the committal Magistrate framing the
charge, it is now to be framed by the Court of Session
under Section 228 in case the accused is not discharged
under Section 227. This change brought out in the Code
is also required to be kept in view while determining the
question. Under the Code, the evidence can be taken
only after framing of charge.”
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12.2 Rattiram v. State of M.P. :
“56. Evidently, there is a sea of difference in the
proceeding for commitment to the Court of Session
under the old Code and under the existing Code. There
is nothing in Section 209 of the Code to even remotely
suggest that any of the protections as provided under the
old Code has been telescoped to the existing one.
57. It is worth noting that under the Code of Criminal
Procedure, 1898, a full-fledged Magisterial enquiry was
10
(2012) 4 SCC 516 (three-judge bench)
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postulated in the committal proceeding and the
prosecution was then required to examine all the
witnesses at this stage itself. In 1955, Parliament by Act
26 of 1955 curtailed the said procedure and brought in
Section 207-A to the old Code. Later on, the Law
Commission of India in its 41st Report, recommended
thus:
“ 18.19. Abolition of committal proceedings
recommended .—After a careful consideration
we are of the unanimous opinion that
committal proceedings are largely a waste of
time and effort and do not contribute
appreciably to the efficiency of the trial before
the Court of Session. While they are obviously
time-consuming, they do not serve any
essential purpose. There can be no doubt or
dispute as to the desirability of every trial, and
more particularly of the trial for a grave
offence, beginning as soon as practicable after
the completion of investigation. Committal
proceedings which only serve to delay this
step, do not advance the cause of justice. The
primary object of protecting the innocent
accused from the ordeal of a sessions trial has
not been achieved in practice; and the other
main object of apprising the accused in
sufficient detail of the case he has to meet at
the trial could be achieved by other methods
without going through a very partial and
ineffective trial rehearsal before a Magistrate.
We recommend that committal proceedings
should be abolished.”
We have reproduced the same to accentuate the change
that has taken place in the existing Code. True it is, the
committal proceedings have not been totally abolished
but in the present incarnation, it has really been
metamorphosed and the role of the Magistrate has been
absolutely constricted.
58. In our considered opinion, because of the restricted
role assigned to the Magistrate at the stage of
commitment under the new Code, the non-compliance
with the same and raising of any objection in that regard
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after conviction attracts the applicability of the principle
of “failure of justice” and the convict appellant becomes
obliged in law to satisfy the appellate court that he has
been prejudiced and deprived of a fair trial or there has
been miscarriage of justice. The concept of fair trial and
the conception of miscarriage of justice are not in the
realm of abstraction. They do not operate in a vacuum.
They are to be concretely established on the bedrock of
facts and not to be deduced from procedural lapse or an
interdict like commitment as enshrined under Section
193 of the Code for taking cognizance under the Act. It
should be a manifestation of reflectible and visible
reality but not a routine matter which has roots in
appearance sans any reality. Tested on the aforesaid
premised reasons, it is well-nigh impossible to conceive
of any failure of justice or causation of prejudice or
miscarriage of justice on such non-compliance. It would
be totally inapposite and inappropriate to hold that such
non-compliance vitiates the trial.”
13. Consequent upon the above discussion, we have no
hesitation in holding that the High Court proceeded with an
erroneous reading of the law and the impugned judgment cannot
be sustained. It is required to be set aside. Ordered accordingly.
14. The main prayer of the appellant before the High Court
was that the Court of Sessions that seized the matter had erred in
not framing charges against the other two accused persons. In
our view, holding that the remand to the Magistrate was incorrect
in law, we now ask the High Court to hear the petition of the
appellant as well as the one filed by respondent no.2, afresh and
decide the same independently. Since the charges against one of
the respondents were far framed back in 2011, we request that
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both the petitions be decided as expeditiously as possible, and not
later than nine months. Parties to appear before the High Court
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on 16 July 2026.
15. Appeal is allowed. Pending application(s), if any, stand
disposed of.
………………………………..……………J.
(SANJAY KAROL )
………………………………………………J.
(NONGMEIKAPAM KOTISWAR SINGH)
New Delhi;
July 1, 2026
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