Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15
PETITIONER:
KISHUN SINGH AND ORS.
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT11/01/1993
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
SINGH N.P. (J)
CITATION:
1993 SCR (1) 31 1993 SCC (2) 16
JT 1993 (1) 173 1993 SCALE (1)79
ACT:
Code of Criminal Procedure, 1973--Section 319--Application
and procedure of--Power under--Invokability.
Code of Criminal Procedure, 1973--Sections 154, 156, 173,
190, 191, 193, 200, 204, 209, 227, 228--Setting Criminal Law
into motion--Modes of--Cognizance of offence--Duty of
Court--’Take Cognizance’--Meaning of.
HEADNOTE:
On the evening of 27th February, 1990, informant’s younger
brother was attacked by twenty persons including the present
two appellants with sticks, etc. First Information Report
was lodged at about 9.30 pm. on the same day in which all
the twenty persons were named as the assailants. The
injured died in the hospital on the next day.
In course of investigation statements of the informant and
others were recorded and a charge-sheet was forwarded to the
Court of the Magistrate wherein eighteen persons, were shown
as the offenders. The names of the present two appellants
were not included In the report, as In the opinion of the
investigating officer their involvement in the commission of
the crime was not established.
The eighteen persons named in the report were committed to
the Court of Session under Section 209 of the Code of
Criminal Procedure to stand trial.
When the matter came up before the Sessions Judge, an
application was presented under Section 319 of the Code
praying to implead the appellants also as accused persons.
To the show cause notice issued to the appellants, they
submitted that though they were not present at the place of
occurrence, they falsely named in the First Information
Report and the investigating officer had rightly omitted
their names from the charge-sheet filed in Court
32
The Sessions Judge rejected the plea of the appellants and
impleaded them as co-accused along with the eighteen others.
This was done before the commencement of the actual trial.
The appellants’ revision flied before the High Court was
dismissed.
The appellants moved this Court by special leave under
Article 136 of the Constitution of India, against the High
Court’s order contending that unless evidence was recorded
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15
during the course of trial, the Sessions Judge had no
jurisdiction under Section 319 of the Code of Criminal
Procedure to take cognizance and implead the appellants as
co-accused solely on the basis of the material collected in
the course of investigation and appended to the report
forwarded under Section 173 of the Code in view of the clear
mandate of Section 193 of the Code; that since the trial had
not commenced and the prosecution had not led any evidence,
the stage for the exercise of the power had not reached.
Dismissing the appeal, this Court
HELD : 1.01. On a plain reading of sub-section (1) of
Section 319 there can be no doubt that it must appear from
the evidence tendered in the course of any Inquiry or trial
that any person not being the accused has committed any
offence for which he could be tried together with the
accused.
1.02. This power, can be exercised only if it so appears
from the evidence at the trial and not otherwise.
Therefore, the sub-section contemplates existence of some
evidence appearing in the course of trial wherefrom the
Court can prima facie conclude that the person not arraigned
before It Is also involved in the commission of the crime
for which he can be tried with those already named by the
police.
1.03. Even a person who has earlier been discharged
would fall within the sweep of the power conferred by
Section 319 of the Code. Therefore, stricto sensu Section
319 of the Code cannot be invoked in a case where. no
evidence has been led at a trial wherefrom It can be said
that the appellants appear to have been involved In the
commission of the crime along with these already sent up for
trial by the prosecution.
1.04. Section 319 covers the post-congnizance stage
where in the course of an inquiry or trial the involvement
or complicity of a person or
33
persons not named by the investigating agency has surfaced
which necessitates the exercise of the discretionary power
conferred by the said provision.
1.05. Section 319 can be invoked both by the Court
having original jurisdiction as well as the Court to which
the case has been committed or transferred for trial. The
sweep of Section 319 is, therefore, limited in that, it is
an enabling provision which can be invoked only if evidence
surfaces in the course of an inquiry or a trial disclosing
the complicity of a person or persons other than the person
or persons already arraigned before it
1.06. Section 319 deals with only one situation, namely,
the complicity coming to light from the evidence taken and
recorded In the course of an Inquiry or trial. This may
happen not merely In cases where despite the name of a
person figuring in the course of investigation the
investigatIng agency does not send him up for trial but even
in cases where the complicity of such a person comes to
light for the first time in the course of evidence recorded
at the inquiry or trial.
1.07. The scope of Its operation or the area of its play
would also be limited to cases where after cognizance the
involvement of any person or persons in the commission of
the crime comes to light in the course of evidence recorded
at the Inquiry or trial. Thus the Section does not apply to
all situations and cannot be Interpreted to be the
repository of all power for summoning such person or persons
to stand trial along with others arraigned before the Court
1.08. Once the case is committed to the Court of Session
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15
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 by gathered from the material
available on record.
1.09. The stage for the exercise of power under section
319 of the Code had not reached, inasmuch as, the trial had
not commenced and
34
evidence was not led. The Court of Session bad, however,
the power under Section 193 of the Code to summon the
appellants as their involvement in the commission of the
crime prima facie appeared from the record of the case.
Once It is found that the power exists the exercise of power
under a wrong provision will not render the order illegal or
invalid.
Joginder Singh v. State of Punjab, AIR 1979 SC 339- [1979] 2
SCR 306 and Sohan Lal & Ors. v. State of Rajasthan; [1990] 4
SCC 580. referred to.
2.01.The two alternative modes In which the Criminal
Law cm be set in motion are: by the filing of information
with the police under Section 154 of the Code or upon
receipt of a complaint or information by a Magistrate. The
former would lead to investigation by the police and may
culminate In a police report under Section 173 of the Code
on the basis whereof cognizance may be taken by the
Magistrate under Section 190(1)(b) of the Code. In the
latter case, the Magistrate may either order investigation
by the police under Section 156(3) of the Code or himself
hold an inquiry under Section 202 before taking cognizance
of the offence under Section 190(1) (a) or (c), as the case
may be, mad with Section 204 of the Code. Once the
Magistrate takes cognizance of the offence he may proceed to
try the offender (except where the case is transferred
under section 191 or commit him for trial under Section 209
of the Code if the offence Is triable exclusively by a Court
of Session.
2.02. Once cognizance of an offence is taken It becomes the
Courts duty to find out who the offenders really am and if
the Court finds that apart from the persons sent up by the
police some other persons am involved, It Is his duty to
proceed against those persons by summoning then because ’the
summoning of the additional accused Is part of the
proceeding initiated by his taking cognizance of an
offence,.
2.03.After cognizance is taken under Section 190(1) of
the Code, in warrant cases the Court is required to frame a
charge containing particulars as to the time and place of
the alleged offence and the person (if any) against whom, or
the thing (if any) in respect of which, it was committed.
But before framing the charge section 227 of the Code
provides that if, upon a consideration of the record of the
case and the documents submitted therewith, the Sessions
Judge considers that them
35
is not sufficient ground for proceeding against the accused,
he shall, for reasons to be recorded, discharge the accused.
2.04. It Is only when the Judge is of opinion that there
is ground for presuming that the accused was committed an
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15
offence that he will proceed to frame a charge and record
the plea of the accused (vide, section 228). R becomes
Immediately clear that for the limited purpose of deciding
whether or not to frame a charge against the accused, the
judge would be required to examine the record of the case
and the documents submitted therewith, which would comprise
the police report, the statements of witnesses recorded
under Section 161 of the Code, the seizure- memoranda, etc.
etc.
2.05. Once the court takes cognizance of the offence (not
the offender) it becomes the court’s duty to rind 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.
2.06. Even though the expression ’take cognizance’ is
not defined, it is well settled that when the Magistrate
takes notice of the accusations and applies his mind to the
allegations made In the complaint or police report or
information and on being satisfied that the allegations, if
proved, would constitute an offence decides to initiate
judicial proceedings against the alleged offender he Is said
to have taken cognizance of the offence. It is essential to
bear in mind the fact that cognizance is in regard to the
offence and not the offender. Mere application of mind does
not amount to taking cognizance unless the magistrate does
so for proceeding under Section 200/204 of the Code.
Jamuna Singh & Ors. v. Bhadai Sak [1964] 5 SCR 37 at 4041;
Raghubans Dubey v. State of Bihar [1967] 2 SCR 423 AIR 1967
SC 1167 and Hariram Satpathy v. Tikaram Agarwala, [1979] 1
SCR 349 AIR 1978 SC 1S68, referred to.
S.K Latfur Rahman & Ors. v. The State, (1985) PLJR 640
(1985)
Criminal Law Journal 1238, approved.
36
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 24 of
1993.
From the Judgment and Order dated 6.8.1991 of the Patna High
Court in Criminal Rev. No. 307 of 1991.
Uday Sinha and M.P. Jha for the Appellants.
B.B. Singh Adv. for the Respondent.
The Judgment of the Court was delivered by
AHMADI, J. Special leave granted.
Whether a Court of Session to which a case is committed for
trial by a Magistrate can, without itself recording
evidence, summon a person not named in the Police Report
presented under Section 173 of the Code of Criminal
Procedure, 1973 (’The Code’ for short) to stand trial along
with those already named therein, in exercise of power
conferred by Section 319 of the Code? This neat question of
law arises in the backdrop of the following allegations.
On the evening of 27th February, 1990 Umakant Thakur,
younger brother of the informant, was attacked by twenty
persons including the present two appellants with sticks,
etc. A First Information Report was lodged at about 9.30
p.m. on the same day in which all the twenty persons were
named as the assailants. The injured Umakant Thakur died in
the Patna Hospital on the next day. In the course of
investigation statements of the informant as well as others
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15
came to be recorded and a charge-sheet dated 10th June, 1990
was forwarded to the Court of the learned Magistrate on 17th
June, 1990 wherein eighteen persons other than the two
appellants were shown as the offenders. The names of the
present two appellants were not included in the said report
as in the opinion of the investigating officer their
involvement in the commission of the crime was not
established. A final report to that effect was submitted on
4th September, 1990 to the Chief Judicial Magistrate on
which no orders were passed. The concerned Magistrate
committed the eighteen persons named in the report to the
Court of Session, Dharbanga, under Section 209 of the Code
to stand trial. When the matter came up before the learned
Sessions Judge, Dharbanga, an application was presented
under Section 319 of the Code praying that the material on
record annexed to the report under Section 173 of the Code
37
revealed the involvement of the two appellants also and
hence they should be summoned and arraigned before the Court
as accused persons along with the eighteen already named in
the charge-sheet. Thereupon a show cause notice was issued
to the present two appellants in response whereto they
contended that though they were not present at the place of
occurrence, they were falsely named in the First Information
Report and the investigating officer had rightly omitted
their names from the charge-sheet filed in Court. The
learned Sessions Judge rejected. the plea put forth by the
appellants and exercised the discretion vested in him under
Section 319 of the Code by impleading the appellants as co-
accused along with the eighteen others. Indisputably this
was done before any evidence was recorded i.e. before the
commencement of the actual trial. The appellants thereupon
filed a Criminal Revision Application before the High Court
of Patna assailing the order passed by the learned Sessions
Judge taking cognizance against them. The High Court after
hearing counsel for the parties dismissed the Revision
Application relying on the ratio of the Full Bench decision
of that Court in S.K Laytfur Rahman & Ors. v. The State,
[(1985) PLJR 640 = (1985)] Criminal Law Journal 12381. It
is against this order passed by the learned Single Judge of
the High Court that the appellants have moved this Court by
special leave under Article 136 of the Constitution of
India.
The learned counsel for the appellants contended that unless
evidence was recorded during the course of trial. The
Sessions Judge had no jurisdiction under Section 319 of the
Code to take cognizance and implead the appellants as co-
accused solely on the basis of the material collected in the
course of investigation and appended to the report forwarded
under Section 173 of the Code in view of the clear mandate
of Section 193 of the Code. The question which arises for
consideration in the backdrop of the aforestated facts is
whether the learned Sessions Judge was justified in law in
invoking Section 319 of the Code at the stage at which the
proceedings were pending before him solely on the basis of
the documents including statements recorded under Section
161 of the Code during investigation without commencing
trial and recording evidence therein?
Section 319 corresponds to Section 351 of the repealed Code
of Criminal Procedure, 1898 (hereinafter called ’the old
Code’). That Section must be read in juxtaposition with
Section 319 of the Code. Before we do so it is necessary to
state that Section 319 of the Code as it presently stands is
the recast version of Section 351 of the old Code based on
the recommendations
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15
38
made by the Law Commission in its 41st Report as under:
"It happens sometimes, though not very often,
that a Magistrate hearing a case against
certain accused finds from the evidence that
some person, other than the accused before
him, is also concerned. in that very offence
or in a connected offence. It is only proper
that the Magistrate should "have the power to
call and join him in the proceedings’.
Section 351 provides for such a situation, but
only if that person happens to be attending
the Court. He can then be detained and
proceeded against. There is no express
provision in section 351 for summoning such a
person if he is not present in Court. Such a
provision would made section 351 fairly
comprehensive, and we think it proper to
expressly provide for that situation. (para
24.80)
About the true position under the existing
law, there has been difference of opinion, and
we think it should be made clear. It seems to
us that the main purpose of this particular
provision is, that the whole case against all
known suspects should be proceeded with
expeditiously, and convenience requires that
cognizance against the newly added accused
should be taken in the same manner as against
the other accused. We, therefore, propose to
recast section 351 making it comprehensive and
providing that there will be no difference in
the mode of taking cognizance if a new person
is added as an accused during the
proceedings." (para 24.81)
It will be seen from the above paragraphs that the Law
Commission suggested that section 351 should be recast with
a view to (i) empowering the court to summon a person not
present in court to stand trial along with the named accused
and (ii) enabling the court to take cognizance against the
newly added accused by making it explicit that there will be
no difference in the mode of taking cognizance against the
added accused. Pursuant to the said recommendations made by
the Law Commission Section 351 of the old Code was replaced
by Section 319 in the present Code. We may now read the two
provisions in juxtaposition
"Old Code
Section 351 (1) Any person attending a
Criminal Court,
39
although not under arrest or upon a summons,
may be detained by such Court for the purpose
of inquiry into or trial of any offence of
which such Court can take cognizance and
which, from the evidence, may appear to have
been committed, and may be proceeded against
as though he had been arrested or summoned.
(2) When the detention takes place in the
course of an inquiry under Chapter XVIII or
after a trial has been begun, the proceedings
in respect of such person shall be commenced
afresh, and the witnesses re-heard.
New Code
Section 319 (1) Where, in the course of any
inquiry into or trial of an offence, it
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15
appears from the evidence that any person not
being the accused has committed any offence
for which such person should be tried together
with the accused, the Court may proceed
against such person for the offence which he
appears to have committed.
(2) Where such person is not attending the
Court, he may be arrested or summoned, as the
circumstances of the case may require, for the
purpose aforesaid.
(3) Any person attending the Court, although
not under arrest, or upon a summons, may be
detained by such Court for the purpose of the
inquiry into, or trial of, the offence which
he appears to have committed.
(4) Where the Court proceeds against any
person under subsection (1), then
(a) the proceedings in respect of such
Person shall be commenced afresh and the
witnesses re-heard;
(b) subject to the provisions of Cl.(a), the
case may proceed as if such person had been an
accused person when the Court took cognizance
of the offence upon which the inquiry or trial
was commenced."
40
Section 351 of the old Code empowered detention of any
person attending a Criminal Court, although not under arrest
or upon a summon, for the purpose of inquiry into or trial
of any offence of which such Court could take cognizance, if
it appeared from the evidence so recorded that he may have
committed an offence along with others. Sub-section (2) of
section 319 came to be inserted in response to the Law
Commission’s recommendation in paragraph 24.80 of its report
to enlarge the Court’s power to arrest or summon any person
who appears to be involved in the commission of the crime
along with others but who is not present in court. Next, it
is significant to note that the words ’of which such Court
can take cognizance’ have been omitted by the Legislature.
Instead the newly added sub-section 4(b) expressly states
that the case against the added accused may proceed as if
such person had been an accused person when the court took
cognizance of the offence. This takes care of the Law
Commission’s recommendation found in paragraph 24.81
extracted earlier. It is, therefore, manifest that Section
319 of the Code is an improved version of Section 351 of the
old Code; the changes having been introduced therein on the
suggestion of the Law Commission to make it comprehensive so
that even persons not attending the Court can be arrested or
summoned as the circumstances of the case may require and by
deleting the words ’of which such Court can take cognizance’
and by adding clause (b) it is clarified that the
impleadment of a new person as an accused in the pending
proceedings will not make any difference insofar as taking
of cognizance is concerned. In other words it is made clear
that cognizance against the added person would be deemed to
have been taken as originally against the other co-accused.
It is thus clear that the difficulty in regard to taking of
cognizance which would have been experienced by the Court
has been done away with. The section comes into operation
at the post-cognizance stage when it appears to the court
from the evidence recorded at the trial that any person
other than those named as offenders appears to have com-
mitted any offence in relation to the incident for which the
co-accused are on trial.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15
But counsel for the appellants contended that section 319
being a self contained provision, the power thereunder can
be exercised strictly in terms of the section which permits
the exercise of power only if ’it appears from the evidence’
in the course of the inquiry or trial of an offence, that
any person, besides the accused already put up for trial,
has committed any offence arising from the incident in
question. Counsel submitted that the
41
power cannot be exercised before ’evidence’ is led as the
involvement of the person must appear from the evidence
tendered at the trial because it is at that stage that the
court must apply its mind about the complicity of the person
not arraigned before it in the commission of the crime. He,
therefore, submitted that in the present case since the
trial had not commenced and the prosecution had not led any
evidence, the stage for the exercise of the power had not
reached.
In order to appreciate the contention urged before us, it is
necessary to notice a few provisions. Section 190 of the
Code sets out the different ways in which a Magistrate can
take cognizance of an offence, that is to say, take notice
of an allegation disclosing commission of a crime with a
view to setting the law in motion to bring the offender to
book. Under this provision cognizance can be taken in three
ways enumerated in clauses (a), (b) & (c) of the offence
alleged to have been committed. The object is to ensure the
safety of a citizen against the vagaries of the police by
giving him the right to approach the Magistrate directly if
the police does not take action or he has reason to believe
that no such action will be taken by the police. Even
though the expression ’take cognizance’ is not defined, it
is well settled by a catena of decisions of this Court that
when the Magistrate takes notice of the accusations and
applies his mind to the allegations made in the complaint or
police report or information and on being satisfied that the
allegations, if proved, would constitute an offence decides
to initiate judicial proceedings against the alleged
offender he is said to have taken cognizance of the offence.
It is essential to bear in mind the fact that cognizance is
in regard to the offence and not the offender. Mere
application of mind does not amount to taking cognizance
unless the magistrate does so for proceeding under Section
200/204 of the Code /See Jamuna Singh & Ors. v. Bhadai Sah,
[1964] 5 SCR 37 at 40-41. It is, therefore, obvious that if
on receipt of a complaint under Section 154 of the Code in
regard to a cognizable offence, an offence is registered and
the concerned Police Officer embarks on an investigation and
ultimately submits a police report under Section 173 of the
Code, the Magistrate may take cognizance and if the offence
is exclusively triable by a Court of Sessions, he must
follow the procedure set out in Section 209. That section
provides that when in a case instituted on a police report,
as defined in section 2(r), or otherwise, the accused
appears or is brought before the Magistrate and it appears
to the Magistrate that the offence is triable
42
exclusively by the Court of Session, he shall commit the
case to the Court of Session and remand the accused to
custody. Section 193 of the Old Code and as it presently
stands have a bearing and may be extracted at this stage:
"Old Code
Section 193 Cognizance of offences by Courts
of Session (1) Except as othewise expressly
provided by this Code or by any other law for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15
the time being in force, no Court of Session
shall take cognizance of any offence as a
Court of original jurisdiction unless the
accused has been committed to it by a
Magistrate duly empowered in that behalf.
New Code
Section 193 Cognizance of offences by Court
of Sessions 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."
It may immediately be noticed that under the old provision a
Court of Session could not take cognizance of an offence as
a Court of original jurisdiction unless the accused was
committed to it whereas under the recast section as it
presently stands the expression the accused has been
replaced by the words the case. As has been pointed out
earlier. Under section 190 cognizance has to be taken for
the offence and not the offender: so also under section 193
the emphasis now is to the committal of the case and no more
on the offender. So also section 209 speaks of committing
the case to the Court of Session. On a conjoint reading of
these provisions it becomes clear that while under the Old
Code in view of the language of section 193 unless an
accused was committed to the Court of Session the said court
not take cognizance of an offence as a court of original
jurisdiction; now under section 193 as it presently stands
once the case is committed the restriction disappears. More
of it later but first the case law.
Section 193 of the Old Code placed an embargo on the Court
of Session from taking cognizance of any offence as a Court
of original jurisdiction unless the accused was committed to
it by a Magistrate or there
43
was express provision in the Code or any other law to the
contrary. In the context of the said provision this Court
in P.C Gulati v. L.R. Kapur, [1966] I SCR 560 at p.568
observed as under;
"When a case is committed to the Court of
Session, the Court of Session has first to
determine whether the commitment of the case
is proper. If it be of opinion that the
commitment is bad on a point of law, it has to
refer the case to the High Court which is
competent to quash the proceeding under
section 215 of the Code. It is only, when the
Sessions Court considers the commitment to be
good in law that it proceeds with the trial of
the case. It is in this context that the
Sessions Court has to I take cognizance of the
offence as a Court or original jurisdiction
and it is such a cognizance which is referred
to in section 193 of the Code."
In Joginder Singh v. State of Punjab, AIR 1979 SC 339 =
[1979] 2 SCR 306 the facts were that a criminal case was
registered against Joginder Singh and four others on the
allegation that they had committed house tresspass and had
caused injuries to two persons. During the investigation
the police found Joginder Singh and Ram Singh (the
appellants in the case) to be innocent and submitted a
charge-sheet against the remaining three persons only. The
learned Magistrate who held a preliminary inquiry committed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15
the three accused to the Court of Session whereupon the
Additional Sessions Judge, Ludhiana, framed charges against
them. At the trial evidence of two witnesses came to be
recorded during the course of which the complicity of the
two appellants came to light. Thereupon, at the instance of
the informant the Public Prosecutor moved an application for
summoning and trying the two appellants along with the three
accused who were already arraigned before the court. The
application was opposed principally on the ground that the
Sessions Judge had no jurisdiction or power to summon the
two appellants and direct them to stand their trial along
with the three persons already named in the police report.
This objection was negatived and the learned Additional
Sessions Judge passed G an order, presumably under section
319 of the Code, directing the attendance of the two
appellants and further directing that they stand trial
together with the three accused arraigned before the court.
The High Court dismissed the Revision Application whereupon
the appellants approached this Court by special leave. The
real question centered round the
44
scope and ambit of section 319 of the Code. This Court
after considering the relevant provisions of the Old Code in
juxtaposition with similar provisions in the New Code
observed as under :
"It will thus appear clear that under Section
193 read with Section 209 of the Code when a
case is committed to the Court of Session in
respect of an offence the Court of Session
takes cognizance of the offence and not of the
accused and once the Sessions Court is
properly seized of the case as a result of the
committal order against some accused the power
under Section 319(1) can come into play and
such Court can add any person, not an accused
before it, as an accused and direct him to be
tried along with the other accused for the
offence which such added accused appears to
have committed from the evidence recorded at
the trial.’
This view came to be reiterated in a recent decision of this
Court in Sohan Lal & Ors. v. State of Rajasthan, [1990] 4
SCC 580. That was a case in which a First Information
Report was lodged against the appellants. On completion of
the investigation the police forwarded a charge- sheet under
section 173 of the Code. The Judicial Magistrate after
taking cognizance ordered discharge of appellants 4 and 5
and directed that the remaining 3 appellants be charged only
under section 427 IPC and not under Sections 147, 323, 325
and 336 in respect whereof the charge-sheet was forwarded.
The Additional Public Prosecutor, therefore, submitted an
application signed by one of the victims praying that on the
basis of the entire evidence a prima facie case was made out
under sections 147, 325 and 336, IPC and requested that the
charge be amended and the accused persons be charged
accordingly. After recording the plea of the accused the
prosecution led evidence and examined witnesses. The
learned Magistrate after hearing the Additional Public
Prosecutor and counsel for the defence and after discussing
the evidence took cognizance of the other offences against
the appellants. The Revision Application preferred to the
High Court was dismissed. This Court after considering the
relevant provisions of the Code concluded as under :
"Section 319 empowers the court to proceed
against persons not being the accused
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15
appearing to be guilty of offence. Sub-
sections (1) and (2) of this section provide
for a situation when
45
a court hearing a case against certain accused
person finds from A the evidence that some
person or persons, other than the accused
before it, is or are also connected in this
very offence or any connected offence; and it
empowers the court to proceed against such
person or persons for the offence which he or
they appears or appear to have committed and
issue process for the purpose. It provides
that the cognizance against newly added
accused is deemed to have been taken in the
same manner in which cognizance was first
taken of the offence against the earlier
accused. It naturally deals with a matter
arising from the course of the proceeding
already initiated. The scope of the section
is wide enough to include cases instituted on
private complaint.’
The learned counsel for the appellants submitted that once a
Court of Session takes cognizance in the limited sense
explained in Gulati’s case, the power to summon or arrest a
person not named in the police report can be exercised under
Section 319 of the Code only if the condition precedent,
namely, the commencement of the trial and recording of
evidence, is satisfied. This, he contends, is manifest from
the last-mentioned two cases in which the power was
exercised only after the condition precedent was satisfied
and the complicity of a person not shown as an offender in
the police report surfaced from the evidence recorded in the
course of the trial. That prima facie appears to be so but
it must at the same time be remembered that in both the
cases the Court was not called upon to consider whether a
Court of Session to which a case is committed for trial
under Section 209 of the Code can, while taking cognizance,
summon a person to stand trial along with others even though
he is not shown as an offender in the police report if the
court on a perusal of the case papers prima facie finds his
complicity in the commission of the crime and the omission
of his name as an offender by the investigating officer not
proper.
On a plain reading of sub-section (1) of Section 319 there
can be no doubt that it must appear from the evidence
tendered in the course of any inquiry or trial that any
person not being the accused has committed any offence for
which he could be tried together with the accused. This
power, it seems clear to us, can be exercised only if it so
appears from the evidence at the trial and not otherwise.
Therefore, this sub-section contemplates
46
existence of some evidence appearing in the course of trial
wherefrom the Court can prima facie conclude that the person
not arraigned before it is also involved in the commission
of the crime for which he can be tried with those already
named by the police. Even a person who has earlier been
discharged would fall within the sweep of the power
conferred by Section 319 of the Code. Therefore, stricto
sensu, Section 319 of the Code cannot be invoked in a case
like the present one where no evidence has been led at a
trial wherefrom it can be said that the appellants appear to
have been involved in the commission of the crime along with
those already sent up for trial by the prosecution.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15
But then it must be conceded that Section 319 covers the
postcognizance stage where in the course of an inquiry or
trial the involvement or complicity of a person or persons
not named by the investigating agency has surfaced which
necessitates the exercise of the discretionary power
conferred by the said provision. Section 319 can be invoked
both by the Court having original jurisdiction as well as
the Court to which the case has been committed or
transferred for trial. The sweep of Section 319 is,
therefore, limited, in that, it is an enabling provision
which can be invoked only if evidence surfaces in the course
of an inquiry or a trial disclosing the complicity of a
person or persons other than the person or persons already
arraigned before it. If this is the true scope and ambit of
Section 319 of the Code, the question is whether there is
any other provision in the Code which would entitle the
Court to pass a similar order in similar circumstances. The
search for such a provision would be justified only on the
premiss that Section 319 is not exhaustive of all post-
cognizance stituations. Now as pointed out earlier Section
319 deals with only one situation, namely, the complicity
coming to light from the evidence taken and recorded in the
course of an inquiry or trial. This may happen not merely
in cases where despite the name of a person figuring in the
course of investigation the investigating agency does not
send him up for trial but even in cases where the complicity
of such a person comes to light for the first time in the
course of evidence recorded at the inquiry or trial. Once
the purport of Section 319 is so understood it is obvious
that the scope of its operation or the area of its play
would also be limited to cases where after cognizance the
involvement of any person or persons in the commission of
the crime comes to light in the course of evidence recorded
at the Inquiry or trial. Thus the Section does not apply to
all situations and cannot be interpreted to be repository of
all power for summoning such person or
47
persons to stand trial along with others arraigned before
the Court.
The question then is whether dehors Section 319 the Code,
can similar power be traced to any other provision in the
Code or can such power be implied from the scheme of the
Code? We have already pointed out earlier the two
alternative modes in which the Criminal Law can be set in
motion: by the filing of information with the police under
Section 154 of the Code or upon receipt of a complaint or
information by a Magistrate. The former would lead to
investigation by the police and may culminate in a police
report under Section 173 of the Code on the basis whereof
cognizance may be taken by the Magistrate under Section
190(1)(b) of the Code. In the latter case, the Magistrate
may either order investigation by the police under Section
156(3) of the Code or himself hold an inquiry under Section
202 before taking cognizance of the offence under Section
190(1)(a) or (c), as the case may be, read with Section 204
of the Code. Once the Magistrate takes cognizance of the
offence he may proceed to try the offender (except where the
case is transferred under Section 191) or commit him for
trial under Section 209 of the Code if the offence is
triable exclusively by a Court of Session. As pointed out
earlier cognizance is taken of the offence and not the
offender. This Court in Raghubans Dubey v. State of Bihar,
[1967] 2 SCR 423 = AIR 1967 SC 1167 stated that once
cognizance of an offence is taken it becomes the Court’s
duty ’to find out who the offenders really are’ and if the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15
Court finds ’that apart from the persons sent up by the
police some other person are involved, it is his duty to
proceed against those persons’ by summoning them because
’the summoning of the additional accused is part of the
proceeding initiated by his taking cognizance of an
offence’. Even after the present Code came into force, the
legal position has not undergone a change; on the contrary
the ratio of Dubey’s case was affirmed in Hariram Satpathy
v. Tikaram Agarwala [1979] 1 SCR 349 = AIR 1978 SC 1568.
Thus far there is no difficulty.
We have now reached the crucial point in our journey. After
cognizance is taken under section 190(1) of the Code, in
warrant cases the Court is required to frame a charge
containing particulars as to the time and place of the
alleged offence and the person (if any) against whom, or the
thing (if any) in respect of which, it was committed. But
before framing the charge section 227 of the Code provides
that if, upon a consideration of the record of the case and
the documents submitted therewith, the
48
Sessions Judge considers that there is not sufficient ground
for proceeding against the accused, he shalt for reasons to
be recorded, discharge the accused. It is only when the
Judge is of opinion that there is ground for presuming that
the accused has committed an offence that he will proceed to
frame a charge and record the plea of the accused (vide,
section 228). It becomes immediately clear that for the
limited purpose of deciding whether or not to frame a charge
against the accused, the judge would be required to examine
the record of the case and the documents submitted
therewith, which would comprise the police report, the
statements of witnesses recorded under section 161 of the
Code, the seizure-memoranda, etc., etc. If, on application
of mind for this limited purpose, the Judge finds that
besides the accused arraigned before the him the complicity
or involvement of others in the commission of the crime
prima facie surfaces from the material placed before him,
what course of action should he adopt?
The learned counsel for the State, therefore, argued that
even if two views are possible, this being a matter of
procedure not likely to cause prejudice to the person or
persons proposed to be summoned, the court should accept the
view which would advance the cause of justice, namely, to
bring the real offender to book. If such an approach is not
adopted, the matter will slip into the hands of the
investigation officer who may or may not send up for trial
an offender even if prima facie evidence exists, which may
in a given situation cause avoidable difficulties to the
trial court. Take for example a case where two persons A
and B attach and kill X and it is found from the material
placed before the Judge that the fatal blow was given by A
whereas the blow inflicted by B had fallen on a non-vital
part of the body of x. If A is not challenge by the police,
the Judge may find it difficult to charge B for the murder
of X with the aid of section 34, IPC. If he cannot summon
A, how does he frame the charge against B? In such a case he
may have to wait till evidence is laid at the trial to
enable him to invoke section 319 of the Code. Then he would
have to commence the proceedings afresh in respect of the
added accused and recall the witnesses. This, submitted
counsel for the State, would result in avoidable waste of
public time. He, therefore, submitted that this Court
should place a construction which would advance the cause of
justice rather than stiffle it.
We have already indicated earlier from the ratio of this
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15
Court’s decisions in the cases of Raghubans Dubey and
Hariram that once the court
49
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 pacic be gathered from the material
available on record. The Full Bench of the High Court of
Patna rightly appreciated the shift in section 193 of the
Code from that under the old Code in the case of S.K Lutfur
Rahman (supra) as under :
"Therefore, what the law under section 193
seeks to visualise and provide for now is that
the whole of the incident constituting the
offence is to be taken cognizance of by the
Court of Session on commitment and not that
every individual offender must be so committed
or that in case it is not so done then the
Court of Session would be powerless to proceed
against persons regarding whom it may be fully
convinced at the very threshold of the trial
that they are prima facie guilty of the crime
as well.
Once the case has been committed, the bar of
section 193 is removed or, to put it in other
words, the condition therefore
50
stands satisfied vesting the Court of Session
with the fullest jurisdiction to summon and
individual accused of the crime."
We are in respectful agreement with the distinction brought
out between the old section 193 and the provision as it now
stands.
For the reasons stated above while as are in agreement with
the submission of the learned counsel for the appellants
that the stage for tile exercise of power under section 319
of the Code had not reached, inasmuch as, the trial had not
commenced and evidence was not led, since the Court of
Session had the power under section 193 of the Code to
summon the appellants as their involvement in the commission
of the crime prima facie appeared from the record of the
case, we see no reason to interfere with the impugned order
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15
as it is well-settled that once under it is found that the
power exists the exercise of power under a wrong provision
will not render the order illegal or invalid. We,
therefore, dismiss this appeal.
V.P.R. Appeal dismissed.
51