Kallu Nat Alias Mayank Kumar Nagar vs. State Of U P

REPORTABLE
2025 INSC 930
IN THE SUPREME COURT OF INDIA
EXTRAORDINAIRY CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO. 10010 OF 2025

KALLU NAT ALIAS MAYANK KUMAR NAGAR ...PETITIONER(S)

VERSUS

STATE OF U.P. AND ANR. ...RESPONDENT(S)


J U D G M E N T






Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.08.05
17:55:25 IST
Reason:

J.B. PARDIWALA, J.,
For the convenience of exposition, this judgment is divided in the following parts: -
INDEX
A. FACTUAL MATRIX ................................................................................... 3
B. IMPUGNED ORDER ................................................................................. 10
C. SUBMISSIONS ON BEHALF OF THE PETITIONER ........................ 12
D. ISSUE FOR DETERMINATION ............................................................. 15
E. ANALYSIS .................................................................................................. 15
i. What is the import and purport of ‘Cognizance’ under the scheme of the
Code of Criminal Procedure, 1973? ............................................................... 15

a. Meaning of the expression ‘Cognizance’ and ‘Taking Cognizance’ under
Chapter XIV of the Code. ............................................................................ 15
b. Cognizance of offences by Magistrates and the Three Distinct Points of
Origin of the Criminal Machinery under the Code. .................................... 20
I. On the basis of a Complaint. .............................................................. 21
ii. Who takes Cognizance of Offence exclusively triable by Court of Sessions
under the Code? ................................................................................................ 36
a. Role of the Magistrate where the Offence is exclusively triable by a Court
of Session. .................................................................................................... 37
I. Chapter XVI - Section(s) 207, 208 and 209 of the Code and

Committal of Case by a Magistrate to the Court of Sessions. ............ 38
b. Role of the Court of Session after the case is committed to it by the

Magistrate under Section 209 of the Code. ................................................. 48
c. Object and Purpose underlying Section 193 of the Code. ........................... 60

d. How the decision of this Court in Dharam Pal should be understood. ...... 69
F. CONCLUSION ........................................................................................... 83

Special Leave Petition (Crl) No. 10010 of 2025 Page 2 of 85

1. This petition arises from the order passed by the High Court of judicature at
Allahabad dated 03.04.2025 in Criminal Revision No. 6732 of 2024 (for short,
the “ Impugned Order ”) by which the High Court rejected the revision
application filed by the petitioner-herein and thereby affirmed the order passed
by the Additional District and Sessions Judge-Fast Track Court (Crime against
women) Kanpur Dehat below disposal proposal paper no. 92 of 2019 arising
from the First Information Report bearing case crime no. 402 of 2018 lodged
with the police station Shivali, District Kanpur Dehat for the offence
punishable under Section(s) 302 and 376 of the Indian Penal Code, 1860 (for
short, the “ IPC ”).

A. FACTUAL MATRIX

2. The respondent No. 2 herein (original first informant) is the husband of the
victim (deceased). The victim all of a sudden went missing on 21.11.2018. On
24.11.2018 the dead body of the victim was recovered somewhere from the
bushes lying on the outskirts of the village. In such circumstances the first
informant i.e. the husband lodged a First Information Report at the concerned
police station. In the FIR the first informant named one Ajay as the suspect.
The first informant alleged that Ajay had an extra-marital affair with his wife
(victim) and was last seen with the victim and accordingly he alleged that Ajay
might have been involved in the murder of his wife. In the course of the
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investigation, the name of the petitioner-herein surfaced. Some of the
witnesses in their police statements recorded under Section 161 of the CrPC
stated that the petitioner herein had made an extra judicial confession about
his involvement in the alleged crime. Later the investigation came to be
transferred to the Crime Branch. The transfer of investigation took place
sometime in 2019. The Crime Branch gave a clean chit to the petitioner-
herein. On 21.02.2019 chargesheet came to be filed only against Ajay. The
name of the present petitioner was dropped from the chargesheet.

3. On 11.03.2019 the case came to be committed under Section 209 of the Code
of Criminal Procedure, 1973 (for short, the “ CrPC ”) being exclusively triable
by the Court of Session. Ajay Kumar (accused) against whom chargesheet was
filed was brought before the trial court on 02.04.2019 for the purpose of
framing of charge. However, on the same day i.e. 02.04.2019 the respondent
No. 2 (husband of the victim) filed an application under Section 193 of the
CrPC seeking to summon the petitioner-herein as an accused. It took almost
five years for the trial court to decide the application preferred by the
respondent No. 2 under Section 193 of the CrPC seeking to summon the
petitioner-herein as an accused.

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4. The trial court in exercise of powers under Section 193 of the CrPC ordered
that the petitioner-herein shall be summoned as an accused in connection with
the crime referred to above and be put to trial along with Ajay.

5. The order passed by the trial court reads thus: -
“Heard and properly examined the file.
It is clear from the perusal of the file that in the present case,
complainant Vijaylal has registered an FIR on 24.11.2018 at
Police Station- Shivli, Kanpur Dehat, regarding the murder of his
wife/deceased Shivwati between 21.11.2018 and 24.11.2018. The
First Information Report was registered against accused Ajay
Kumar under Section-302 IPC.

On behalf of the complainant, Proforma Paper No. 5B has been
presented and it has been stated that till the time of filing the
report, the applicant/ complainant was not aware of the name of
the proposed opponent. But during the investigation, the name of
the accused has come to light and sufficient evidence is also
available in the case diary, on the basis of which a request has
been made to summon the opponent Mayank Kumar Nagar alias
Kallu Nat.

The statement in the case diary number-2 states that his wife
Shivwati had illicit relations with the cousin" of this witness. On
'21,11.2018 at around 7 pm his wife went out on the pretext of
defecation and has not returned home since then. On 21.11.2018
at around 8 pm Pushpa Devi, Deepu and Vinod of the village told
that they saw his wife Shivwati going towards the forest with his
cousin Ajay Kumar. On 24.11.2018, at around 5 pm, when they
reached the wasteland while searching, they found the dead body
of his wife lying in the bushes. A noose of sal was tied around her
neck. His wife was killed by his cousin Ajay Kumar by putting a
noose of sal around her neck due to Illicit relations.

In the statement of Renu, who is the sister-in-law of the
victim/deceased Shivwati, it is mentioned in the case diary
number-l0 that her sister-in-law's conduct was not good, she had
a love affair with her aunt's son Ajay and Kallu Nat, who had come
with Ajay, also had a relationship with her sister-in-law Shivwati.
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On 21.11.2018, Kallu Nat had dropped her sister-in-law home on
a motorcycle in the evening. The next day on 22.11.2018, he came
home early in the morning on the pretext of buying a buffalo.
Whereas Kallu Nat is fully aware that there is no buffalo for sale
in this house. His sister-in law stayed with him the whole day on
21/11/2018 from here to the hospital and from the hospital to here.
The justification of coming on the morning of 22/11/2018 is
doubtful.

In the case diary slip number - 10 itself, the statement of witness
Framed Kumar is recorded that his father Sundar was ill, who was
admitted in Kiran Hospital, his sister-in-law Mrs. Shivwati came
to see his father in Kiran Hospital Kanpur city on 21.11.2018, who
was brought by a person on a motorcycle, when she asked, he said
that he was her brother-in-law from the village. At that time, this
witness's brother-in-law and brother-in-law's son in-law were in
the hospital, who knew that person.

Neeraj's statement is mentioned in case diary paper number 10
that his brother-in-law Pramod's father Sundar was admitted in
Kiran Hospital Kanpur Nagar. His younger sister Shivwati came
on a motorcycle with Kallu Nat of Baghpur on 21/11/2018, whom
he already knew, Kallu Nat used to visit his sister Shivwati's house
earlier also, that's why he knew her. On the same day at around
4:00 pm, Kallu Nat took his sister from the hospital to Ludhaura.
Deepak's statement is mentioned in case diary paper number 10
that Shivwati was his wife's aunt, who was his paternal aunt-in-
law. On 21/11/2018, he went to Kiran Hospital Kalyanpur to see
the father of his paternal atmt Framod, resident of Kapuipur.
Where her aimt-in-law Mrs. Shivwati came to the hospital sitting
on Kallu Nat's motorcycle and in the evening Kallu went back to
Varshas along the river. This witness has stated in his statements
that he recognized Kallu Nat, resident of Bagpur, at Shivwati's
house in Luchaura.

The investigating officer has recorded in paper number 11 that
CDR of mobile number 7678819303 of deceased Smt. Shivwati has
been received, on examination of which it was found that on
21/11/2018 a very long conversation took place from the above
mentioned mobile number of the deceased to mobile number
6386602633 at different times from 15-19-18 to 22-55-47 and on
22/11/2018 in the night from 00-30-15 to 03-31-26 seven times at
different times, details of which are recorded in the CD and it is
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also mentioned on examination of the CDR received from
1/11/2018 to 22/11/2018 that from mobile number 7678819303 of
deceased Shivwati to mobile number 17 calls were made to
6386602633 from 21/11/2018 to 22/11/2018 in which the
deceased had a long conversation and it was done at inopportune
time. On checking the software, the mobile number 6386602633
holder is shown as Shri Mayank Kumar Nagar son of Jeetpal
Nagar resident of 194 Bagpur, Maitha Kanpur Dehat.

In case diary paper number- 11, Surjan Singh's statement is
recorded that a few days ago at around 4:00 pm, I was sitting on
the high platform in front of Bagpur Inter College near
Ramptakash Aatishbaaz of Ludhaura village. Kallu Nat of Bagpur
came. He told Ramprakash that uncle I want to talk to you and
came on the platform and told in front of this witness that on
21/11/2018, he had taken Shivwati on his motorcycle to Kiran
Hospital Kalyanpur to see her relative and give him food. He told
that Ajay and he had illicit relations with Shivwati and also told
that both of them were friends. He told that he had made a plan to
elope on the same day. As per the plan, Ajay had taken Shivwati
from her home to Raipur in the evening and when Kallu Nat did
not reach Raipur as promised, they would talk to each other
throughout the night. In the morning when Kallu Nat reached
Raipur, Shivwati would get upset and want to go back home and
she would insist on elope. And when she did not agree after being
explained, he would come to Ludhaura village on the night of
22/28-11-18 to get money and clothes to elope. He also told that
he had raped Shivwati one by one in the cover near Ludhaura in
the barren land and both of them would kill Shivwati by putting a
noose around her neck with a shawl and he was also apologizing.
In the case diary's paper number 12A, the doctor who conducted
the post mortem of the deceased, Mr. Puneet Kumar Pandey, has
stated that it has been confirmed that the deceased was raped and
strangled to death and it is also mentioned that the entire
investigation revealed that the deceased Shivwati was in a love
relationship with Ajay Kumar and Kallu Nat alias Mayank Kumar
Nagar. Due to the love affair, the accused Ajay Kumar took
Shivwati to Raipur on the instructions of Kallu Nat with the
intention of elopement on the evening of 21/11/2018 and Kallu Nat
failed in his plan and tried to convince her the next day and made
a plan with Ajay to remove the deceased from the way on her
insistence and under this plan, Shivwati was lured and taken to the
barren land in village Ludhaura and both of them raped her one
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by one in the barren land and as per the plan, both of them together
killed the deceased by strangulating her by putting a noose around
her neck with a sal. On the basis of the above, the name of Mayank
Kumar Nagar alias Kallu Nat came to light and Section 376 IPC
was added.

It is mentioned in the case diary paper number-13 that I, the in-
charge inspector, along with my accompanying staff, vehicle' and
driver left from police station to village Bagpur and raided the
possible locations of the accused Mayank Kumar Nagar alias
Kallu Nat who has come into light recently, but he was not found.
He is absconding as usual.

According to the case diary paper number-17, Deep Kumar
appeared before the Additional Director General of Police,
Kanpur Zone- Kanpur on 13.01.2019 and gave a written
application and stated that his younger brother Kallu has no
involvement in the murder of Shivwati and the Investigating officer
is demanding one lakh rupees through his broker. On the basis of
which application, the investigation of the case has been
transferred from Chandrashekhar Dubey, Incharge Inspector,
Shivli, Kanpur Dehat to Inspector Shri Naveen Kumar, Crime
Branch, Kanpur Dehat.

It is clear from all the above evidence/discussion that according
to complainant Vijaylal, his wife went to the toilet on 21.11.2018
at around 7 pm. whose dead body was found lying in the bushes
on 24.11.2018 at around 5 pm, with a noose of sal around her
neck. According to the complainant, Ajay Kumar killed the
deceased. It is worth mentioning that the complainant is not an
eyewitness to the incident. According to the other witness of the
case, Renu, the deceased also had illicit relations with Kallu Nat,
who had gone to Kanpur to see her relative on 21.11.2018 with
Kallu Nat and on 22.11.2018 also Kallu Nat came home.
According to another witness Pramod Kumar, the deceased had
come to Kiran Hospital to see her relatives on 21.11.2018 sitting
on a person's motorcycle. On being asked, the deceased had said
that the person was her brother-in-law from the village, whom the
witness' brother-in-law and son-in-law knew. According to
witness Neeraj, his younger sister/deceased Shivwati had come to
the hospital on 21.11.2018 sitting on Kallu Nat's motorcycle and
on the same day at around 4 pm. Kallu Nat had taken his sister
from the hospital to Ludhaura. According to witness Deepak, on
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21.11.2018, the deceased had come to Kiran Hospital to see her
relatives sitting on a motorcycle with Kallu Nat and had returned
with Kallu Nat. According to witness Surjan, Kallu Nat had told
Ramprakash in front of this witness that Kallu Nat and Ajay
Kumar had illicit relations with the deceased Shivwati and had
raped Shivwati In turns in the bushes near Ludhaura in the barren
land and had killed her by putting a noose around her neck with a
shawl.

The doctor who conducted the post-mortem of the deceased. Dr.
Puneet Kumar Pandey, has stated in the summary that the
deceased was raped and strangulated to death.

The case diary of the case shows that the deceased had a long
conversation 17 times from her mobile to another number from
21.11.2018 to 22.11.2018, which other number 6386602633
belongs to Mayank Kumar Nagar son of Jeetpal and the deceased
had called the above number several times in the past as well. The
case diary also shows that during investigation, it was found that
the deceased Shivwati had illicit relations with Ajay Kumar and
Kallu Nat alias Mayank Kumar and with the intention of
eliminating the deceased, Ajay Kumar and Kallu Nat alias Mayank
Kumar, as per the plan, took the deceased Shivwati to the barren
village Ludhaura and raped her one by one and killed her by
putting a noose around her neck.

On the basis of the application of Deep Kumar, brother of the
opponent Kallu Nat alias Mayank Kumar Nagar, the investigation
was given to another investigator and a chargesheet has been sent
to the court against only accused Ajay Kumar under Section 302,
376 IPC.

All the above evidence, facts, circumstances and investigation
show that the opponent Kallu Nat alias Mayank Kumar Nagar had
illegal relations with the deceased/victim Shivwati. Who is also a
friend of the accused Ajay Kumar in the said opponent case. With
the aim of removing the deceased from their path, accused Ajay
Kumar and opponent Kallu Nat alias Mayank Kumar-Nagar, as
per-the-plan, called-the victim deceased-Shivwati to the-
wasteland in Ludhaura village and forcibly raped the victim
Shivwati one by one (gang rape) and by tightening the noose of
shawl around the neck of the victim Shivwati, killed the victim
deceased Shivwati.
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Therefore, on the basis of the above facts and circumstances and
evidence available on the file, it is justified to summon the opposite
accused Kallu Nat alias Mayank Kumar Nagar for trial under
Section 376, 302 IPC.

Order
The application presented by complainant case / applicant Vijay
Lai under paper number - SB under Section 193 CrPC dated
26.04.2019 is allowed. Accused Kallu Nat alias Mayank Kumar
Nagar son of Jeetpal Nagar, resident of 194 Baghpur (Maitha),
Police Station- Shivli- District - Kanpur Dehat is taken cognizance
under Section 376, 302 IPG. Accordingly, summons should be
issued to accused Kallu Nat alias Mayank Kumar Nagar. The case
be presented on 07/06/2024 for further action / charge on accused
Kallu Nat alias Mayank Kumar Nagar.”

6. Thus, it appears from the aforesaid that the application filed by the
complainant under Section 193 of the CrPC to summon the petitioner-herein
as an accused came to be allowed. Having regard to the materials on record
the trial court reached the conclusion that there was prima facie material
indicating involvement of the petitioner-herein in the alleged crime and he
should be asked to face the trial along with the co-accused against whom
chargesheet was filed by the Investigating Agency for the offence of rape and
murder.

B. IMPUGNED ORDER

7. The order referred to above came to be challenged before the High Court by
way of criminal revision application. The High Court rejected the criminal
revision application holding as under: -

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“5. At the very outset, the learned A.G.A. for State-opposite party-
1 has raised a preliminary objection regarding maintainability of
present Criminal revision. Learned A-G.A. submits that since
applicant has already approached this Court by means of
aforementioned application under Section 482 Cr.P.C., therefore,
present criminal revision for the same relief is not maintainable.
According to the learned A.G.A., no liberty was granted by this
Court to the applicant to file a criminal revision nor the
aforementioned application was dismissed on the ground of
alternative remedy. He therefore submits that in view of law laid
down by Apex Court in the case of Sarguja Transport Service Vs.
State Transport Appellate tribunal, M.P. Gwalior and others
(1987) 1 SCC 5, the present criminal revision shall not be
maintainable. Learned A.G.A. has then referred to the judgement
of Supreme Court in Prabhu Chawla Vs. State of Rajasthan and
another, (2016) 16 SCC 30 wherein the Apex Court has held that
an application under Section 482 Cr.P.C. is not liable to be
dismissed on the ground of alternative remedy, of filing a revision.

6. On the edifice of aforesaid submissions, the learned A.G.A.
submits that the true import of the order dated 07.08.2024 is that
the revisionist has been granted liberty to approach the competent
court and not to file criminal revision before this Court. As such,
present criminal revision is not maintainable and therefore liable
to be dismissed.

7. Learned A.G.A. has then submitted that the Court of Sessions in
exercise of jurisdiction under Section 193 Cr.P.C. has summoned
the present applicant/revisionist. Referring to the five Judges
Bench Judgement of Supreme Court in Dharmpal and others Vs.
State of Haryana and another, (2014) 3 SCC 306, the learned
A.G.A. submits that the order impugned in present criminal
revision cannot be said to be illegal for want of jurisdiction. As
such, the order impugned cannot be challenged on the ground of
jurisdictional error. On the cumulative strength of above
submission, the learned A.G.A. submits that present criminal
revision is not maintainable and therefore liable to be dismissed.

8. When confronted with above, the learned counsel for revisionist
could not overcome the same.

9. Having heard the learned counsel for revisionist, the learned
AG.A. for State-opposite party-1 and upon perusal of record that
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court finds that the preliminary objection raised by the learned
A.G.A in opposition to this criminal revision is clearly borne out
from the record and furthermore, the same could not be dislodged
by the learned counsel for revisionist with reference to the record
at this stage. As such, no good ground now exits to entertain the
present criminal revision.

10. In view of above, this criminal revision fails and is liable to be
dismissed.

11. It is accordingly dismissed.”

8. Thus, the High Court rejected the revision application filed by the petitioner
herein and thereby affirmed the order passed by the trial court summoning the
petitioner as an accused to face the trial along with the accused named in the
charge sheet. The High Court rejected the revision application relying on the
Constitution Bench decision of this Court in Dharam Pal & Ors. vs. State of
Haryana & Anr. reported in (2014) 3 SCC 306 .

9. In such circumstances referred to above the petitioner is here before this Court
with the present petition.

C. SUBMISSIONS ON BEHALF OF THE PETITIONER

10. Mr. Vikas Upadhyay, the learned counsel appearing for the petitioner
vehemently submitted that the trial court as well as the High Court committed
a serious error in summoning the petitioner as an accused to face the trial along
with the charge sheeted accused, namely, Ajay Kumar. He would submit that
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the petitioner could have been summoned as an accused to face the trial only
after the trial court would have started recording oral evidence of the
witnesses. In other words, according to the learned counsel it is only if the
involvement of the petitioner would have surfaced from the oral evidence of
any of the witnesses, then the trial court would have been justified to summon
the petitioner to face the trial in exercise of the powers under Section 319 of
the CrPC.

11. The learned counsel vehemently submitted that there was no scope for the trial
court to summon the petitioner in exercise of the powers under Section 193 of
the CrPC as the Magistrate while committing the case to the Court of Session
had already taken cognizance of the offence and in such circumstances the
trial court by invoking Section 193 of the CrPC could not have taken
cognizance for the second time. He would submit that the power under Section
193 CrPC is a stage specific power and in the exact words of the learned
counsel; once that stage has crossed it gets exhausted unlike the power under
Section 319 of the CrPC which could be exercised multiple times during a
particular period when the trial is on and is not bound by any specific stage of
trial.

12. Relying on the decision of this Court in Balveer Singh & Anr. vs. State of
Rajasthan reported in (2016) 6 SCC 680 he would submit that there is nothing
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like second cognizance. According to him if a Magistrate has taken
cognizance in a case before committing the case, then despite there being
power under Section 193 of the CrPC the Sessions court cannot again take
cognizance. The learned counsel relying on the Constitution Bench decision
in the case of Dharam Pal (supra) would submit that cognizance of offence
can be taken only once i.e. either by the Magistrate or by the Sessions court.
According to the learned counsel there is nothing like ‘part-cognizance’.

13. In other words, the argument of the learned counsel appearing for the
petitioner is that the Constitution Bench decision of this Court in Dharam Pal
(supra) says in so many words that cognizance of a sessions triable offence
cannot be taken by a Magistrate but the same has to be taken by a Sessions
Judge after committal. According to the learned counsel, cognizance of a
police report/chargesheet filed by the police is always taken by the Magistrate
irrespective of whether the offences alleged therein are triable by a Court of
Sessions or not. He would submit that the ratio of Dharam Pal (supra) should
be understood as conveying that Section 193 does not permit the Sessions
Judge to take cognizance of the same offences of which cognizance stood
taken by the Magistrate under section 190 of the Code which the Magistrate
takes in order to reach the stage of committal under Section 209 of the Code.
And if once cognizance is taken by the Magistrate, the same cannot be done
by the Sessions Judge. According to the learned counsel Dharam Pal (supra)
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says that cognizance of sessions trial offences can only be taken by the
Sessions Judge.

14. In such circumstances referred to above, the learned counsel prayed that there
being merit in his petition, the same may be considered accordingly.

D. ISSUE FOR DETERMINATION

15. The seminal issue that falls for our consideration is whether the Court of
Session, without itself recording evidence, can summon a person to stand trial
in exercise of its powers under Section 193 of the Code of Criminal Procedure
(for short, the CrPC) as an accused (along with others committed to it by a
Magistrate) on the basis of materials in the form of statements and other
documents as contained in the final report of the investigating officer under
Section 173 of the Code of Criminal Procedure, 1973 independently of the
provisions of Section 319 of the said Code?
E. ANALYSIS

i. What is the import and purport of ‘Cognizance’ under the scheme of
the Code of Criminal Procedure, 1973?

a. Meaning of the expression ‘Cognizance’ and ‘Taking Cognizance’
under Chapter XIV of the Code.

16. Mr. Vikas Upadhyay, the learned counsel appearing for the petitioner herein
has vehemently canvassed that cognizance of an offence, in law, can be taken
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only once. He submitted that in cases involving offences triable exclusively
by the Court of Sessions, cognizance of such offence may be taken either by
a Magistrate prior to the committal of the case, or, in the absence of such
cognizance at the instance of the Magistrate, by the Court of Session alone, to
which the case is committed. However, he would submit that, once cognizance
of the offence has been taken by either the Magistrate or the Court of Sessions,
as the case may be, a second cognizance by the other is impermissible in law.
He urged that there cannot be a second cognizance nor can there be any part
cognizance or bifurcation of such cognizance by a Magistrate and a Court of
Sessions. In support of his contention, reliance was placed on the decisions of
Dharam Pal (supra) and Balveer Singh (supra).

17. In Dharam Pal (supra) this Court held that “cognizance of an offence can only
be taken once. In the event, the Magistrate takes cognizance of the offence and
then commits the case to the Court of Sessions, 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.” and that there can
be no “ question of part cognizance being taken by the Magistrate and part
cognizance being taken by the learned Session Judge .” Similarly, in Balveer
Singh (supra) it was reiterated that “ cognizance of an offence can only be
taken once. In the event, a Magistrate takes cognizance of the offence and then
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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 ”.

18. Before we advert to the submission canvassed by the petitioner herein, and try
to understand what has been conveyed in so many words by this Court in the
aforesaid decisions of Dharam Pal (supra) and Balveer Singh (supra), it
would be apposite to first understand what is meant by ‘cognizance’ under the
Code and the legal import and significance of the term “taking cognizance”.

19. The term “cognizance” has nowhere been defined under the Code, but the
word itself is of indefinite import. The word itself is derived from the Latin
word ‘ cognoscere’ , and the French Word “ conoisance ” which means “ to
know” , “ to become acquainted with” , or “ to recognize” . The Black’s Law
Dictionary defines the term “cognizance” as “ Judicial notice, knowledge or
acknowledgement ” or “ the judicial hearing of a cause ”.

20. In criminal law, the term “cognizance” has no esoteric or mystic significance,
and the same is reflected by the omission of any formulaic definition of the
term under the Code. However, over time, the term “cognizance” has come to
acquire a special and distinct connotation, through a catena of decisions and
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authoritative exegesis rendered by this Court. The expression “cognizance”
means to ‘become aware of’ or ‘to take notice of judicially’. The special
connotation that has been ascribed to the term denotes or indicates the stage
at which a judicial authority such as a Court of Sessions or a Magistrate is said
to have taken judicial notice of the commission of an offence, with a view to
initiate proceedings against the person or persons alleged to have committed
such offence. [See: Chief Enforcement Officer v. Videocon International
Ltd. , (2008) 2 SCC 492] .

21. Cognizance is, at its heart, always an act of the court. It entails not merely the
receipt of information or the mechanical act of acknowledgement of a
particular offence by a judicial authority, but a conscious application of mind
by it, to the information disclosed or received, as the case may be, and the
subjective element of its satisfaction that i) an offence has indeed occurred and
ii) the circumstances necessitate setting into motion criminal proceedings in
respect of the said offence, or at the very least take steps for ascertaining if
there is any basis for initiating such proceedings. Cognizance is attended by
the assumption of jurisdiction for proceeding further.

22. Having understood the legal import of the term “cognizance”, we may now
profitably turn towards understanding how cognizance may be taken. Chapter
XIV of the Code deals with “Conditions requisite for initiation of
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proceedings”, and Section(s) 190 to 199 contained thereunder, delineates the
methods and the limitations subject to which cognizance of offence may be
taken by the various criminal court empowered thereunder.

23. Remarkably, none of the provisions in the aforesaid Chapter prescribe how
‘cognizance’ is to be taken, and rather only describe the conditions and
limitations for the initiation of proceedings under the Code. This is because,
taking cognizance, as already stated, is an act of court, and the prosecuting
agency or complainant have no control over the same. It is predicated upon
application of judicial mind and is not dictated by the complaint or police
report, which cannot be construed by any formulaic approach. ‘Taking
cognizance’ does not involve any formal action of any kind. It occurs as soon
as a judicial authority applies its mind to the suspected commission of an
offence. [See: R.R. Chari v. State of U.P., AIR 1951 SC 207; Sarah Mathew
v. Institute of Cardio Vascular Diseases , (2014) 2 SCC 62]

24. The process of “taking cognizance” is one of variable and inderminate import;
it neither carries a uniform or fixed procedural contour nor has it been used in
the same sense throughout the scheme of the Code. This is because “taking of
cognizance” signifies the setting into motion, the criminal justice machinery,
which may be done, under the Code, in different ways, which is why it derives
its understanding from the various procedures by which proceedings are
initiated under the Code, and as such its import differs, depending upon the
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context of the procedure in which it has been used. Hence, there exists no rigid
taxonomy or formulaic framework for “taking cognizance”, and the act of
“taking cognizance” has to be understood from the procedure itself, more
particularly, at which stage, it could be said that there has been an application
of judicial mind for the purpose of initiating proceedings under the Code or in
simple words, cognizance has been taken. [See: Darshan Singh Ram Kishan
v. State of Maharashtra , (1971) 2 SCC 654]

b. Cognizance of offences by Magistrates and the Three Distinct Points of
Origin of the Criminal Machinery under the Code.

25. Section 190 of the Code empowers a Magistrate to take cognizance of any
offence in three distinct manners. As per the said provision, a Magistrate may
take cognizance upon (a) receiving a complaint of facts which constitute such
offence; (b) a police report of such facts; or (c) information received from any
person other than a police officer, or upon his own knowledge, that such
offence has been committed. The said provision reads as under: -
“ 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;
Special Leave Petition (Crl) No. 10010 of 2025 Page 20 of 85

(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.”

26. A bare perusal of the aforesaid, indicates that there are three distinct ways in
which the criminal machinery may be set into motion i.e., cognizance of an
offence may be taken by the Magistrate. It may take place on the basis of a
complaint moved before a Magistrate by any complainant complaining of any
offence, or by the police itself on the basis of a police report in terms of
Section(s) 2(r) and 173(2) of the Code, or on the basis of the Magistrate’s own
knowledge about any offence.

I. On the basis of a Complaint.

27. As per Section 190 sub-section (1)(a) the first manner in which a Magistrate
may take cognizance of an offence is on the basis of a complaint received by
him. Section 2(d) of the Code defines “complaint” to mean any allegation,
whether made orally or in writing, by any persons against some other person
or persons, whether known or unknown, who is alleged to have committed an
offence, that has been made to a Magistrate, with a view that he initiates any
action under the Code. Section 2(d) of the Code reads as under: -
“ 2. Definitions. –
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(d) “complaint” means any allegation made orally or in writing
to a Magistrate, with a view to his taking action under this Code,
that some person, whether known or unknown, has committed an
offence, but does not include a police report.”

28. This Court in Mohd. Yousuf v. Afaq Jahan , reported in (2006) 1 SCC 627,
explained thus: -
“15. A faint plea was made by learned counsel for Respondent 1
that the petition filed by the appellant was not a complaint in the
strict sense of the term. The plea is clearly untenable. The
nomenclature of a petition is inconsequential. [...]

16. There is no particular format of a complaint. A petition
addressed to the Magistrate containing an allegation that an
offence has been committed, and ending with a prayer that the
culprits be suitably dealt with, as in the instant case, is a
complaint.”
(Emphasis supplied)

29. For the purpose of enabling the Magistrate to take cognizance of an offence
on the basis of a complaint as defined above, in terms of Section 190 sub-
section 1(a), such complaint must contain facts constituting the offence. Once
such a complaint is received by a Magistrate, he will apply his mind to the
complaint and the facts disclosed therein, and ordinarily proceed further under
Chapter XV of the Code, which relates to “Complaints to Magistrates”.
Section 200 thereof provides for examination of the complainant and the
witnesses on oath. Section 201 provides for the procedure which a Magistrate
who is not competent to take cognizance has to follow. Section 202 provides
for postponement of issue of process.
Special Leave Petition (Crl) No. 10010 of 2025 Page 22 of 85


30. Although, at this stage, the Magistrate is not obliged to proceed further in
terms of Section(s) 200 to 203 in Chapter XV of the Code, and he may instead,
order the police to investigate or inquire into the offence alleged in the
complaint in terms of Section 156 sub-section (3) of the Code.

31. Section 200 of the Code empowers the Magistrate taking cognizance of an
offence on a complaint to examine upon oath the complainant and the
witnesses present, if any. The section further requires the such examination to
be reduced to writing with the signatures of the complainant, witnesses and
the Magistrate. The object of examination under Section 200 is to ascertain
whether there is a prima facie case against the accused in the complaint, and
to prevent the issue of process on a complaint which is false or vexatious. In
S.R. Sukumar v. S. Sunaad Raghuram , reported in (2015) 9 SCC 609 , this
Court summarized the object of Section 200 of the Code: -


“8. Section 200 CrPC provides for the procedure for the
Magistrate taking cognizance of an offence on complaint. The
Magistrate is not bound to take cognizance of an offence merely
because a complaint has been filed before him when in fact the
complaint does not disclose a cause of action. The language in
Section 200 CrPC

“A Magistrate taking cognizance of an offence on
complaint shall examine upon oath the complainant
and the witnesses present, if any…”

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clearly suggests that for taking cognizance of an offence on
complaint, the court shall examine the complainant upon oath. The
object of examination of the complainant is to find out whether the
complaint is justifiable or is vexatious. Merely because the
complainant was examined that does not mean that the Magistrate
has taken cognizance of the offence. Taking cognizance of an
offence means the Magistrate must have judicially applied the
mind to the contents of the complaint and indicates that the
Magistrate takes judicial notice of an offence.

xxx

11. Section 200 CrPC contemplates a Magistrate taking
cognizance of an offence on complaint to examine the complaint
and examine upon oath the complainant and the witnesses present,
if any. Then normally three courses are available to the
Magistrate. The Magistrate can either issue summons to the
accused or order an inquiry under Section 202 CrPC or dismiss
the complaint under Section 203 CrPC. Upon consideration of the
statement of the complainant and the material adduced at that
stage if the Magistrate is satisfied that there are sufficient grounds
to proceed, he can proceed to issue process under Section 204
CrPC. Section 202 CrPC contemplates “postponement of issue of
process”. It provides that the Magistrate on receipt of a complaint
of an offence, of which he is authorised to take cognizance may, if
he thinks fit, postpone the issue of process for compelling the
attendance of the person complained against, and either inquire
into the case himself, or have an inquiry made by any Magistrate
subordinate to him, or an investigation made by a police officer,
or by some other person for the purpose of deciding whether or
not there is sufficient ground for proceeding. If the Magistrate
finds no sufficient ground for proceeding, he can dismiss the
complaint by recording briefly the reasons for doing so as
contemplated under Section 203 CrPC. A Magistrate takes
cognizance of an offence when he decides to proceed against the
person accused of having committed that offence and not at the
time when the Magistrate is just informed either by the
complainant by filing the complaint or by the police report about
the commission of an offence.

12. “Cognizance” therefore has a reference to the application of
judicial mind by the Magistrate in connection with the commission
of an offence and not merely to a Magistrate learning that some
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offence had been committed. Only upon examination of the
complainant, the Magistrate will proceed to apply the judicial
mind whether to take cognizance of the offence or not. Under
Section 200 CrPC, when the complainant is examined, the
Magistrate cannot be said to have ipso facto taken the cognizance,
when the Magistrate was merely gathering the material on the
basis of which he will decide whether a prima facie case is made
out for taking cognizance of the offence or not. “Cognizance of
offence” means taking notice of the accusations and applying the
judicial mind to the contents of the complaint and the material
filed therewith. It is neither practicable nor desirable to define as
to what is meant by taking cognizance. Whether the Magistrate
has taken cognizance of the offence or not will depend upon the
facts and circumstances of the particular case.”

(Emphasis supplied)

32. In Mona Panwar v. High Court of Judicature of Allahabad , reported in
(2011) 3 SCC 496 , this Court noted that two options would be open to a
Magistrate, when presented with a complaint: one , to pass an order as per
Section 156(3) of the Code, or two, to direct examination as per Section 200.
Prior to taking cognizance under Section 190, the Magistrate may order police
investigation under Section 156(3). That is to say, the requirements of Section
200 do not put a bar on the powers of the Magistrate under Section 156(3) of
the Code. We have produced the relevant paragraphs of Mona Panwar ( supra )
below:
“18. When the complaint was presented before the appellant, the
appellant had mainly two options available to her. One was to pass
an order as contemplated by Section 156(3) of the Code and the
second one was to direct examination of the complainant upon
oath and the witnesses present, if any, as mentioned in Section 200
and proceed further with the matter as provided by Section 202 of
the Code. An order made under sub-section (3) of Section 156 of
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the Code is in the nature of a peremptory reminder or intimation
to the police to exercise its plenary power of investigation under
Section 156(1). Such an investigation embraces the entire
continuous process which begins with the collection of evidence
under Section 156 and ends with the final report either under
Section 169 or submission of charge-sheet under Section 173 of
the Code. A Magistrate can under Section 190 of the Code before
taking cognizance ask for investigation by the police under Section
156(3) of the Code. The Magistrate can also issue warrant for
production, before taking cognizance. If after cognizance has been
taken and the Magistrate wants any investigation, it will be under
Section 202 of the Code.
xxx

23. Normally, an order under Section 200 of the Code for
examination of the complainant and his witnesses would not be
passed because it consumes the valuable time of the Magistrate
being vested in inquiring into the matter which primarily is the
duty of the police to investigate. However, the practice which has
developed over the years is that examination of the complainant
and his witnesses under Section 200 of the Code would be directed
by the Magistrate only when a case is found to be a serious one
and not as a matter of routine course. If on a reading of a
complaint the Magistrate finds that the allegations therein
disclose a cognizable offence and forwarding of the complaint to
the police for investigation under Section 156(3) of the Code will
not be conducive to justice, he will be justified in adopting the
course suggested in Section 200 of the Code.”

33. It is also true that where the Magistrate exercises his jurisdiction under
Section 200, he is required to apply his mind. Exercise of such jurisdiction
cannot be in a routine manner. A careful scrutiny of evidence placed on
record must be made in order to arrive at the conclusion if any offence is
prima facie committed by the accused. Such strict requirements to exercise
the jurisdiction under Section 200 are founded as cornerstones of criminal
jurisprudence that a criminal proceedings must not be initiated lightly and
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there must be sufficient grounds to believe that an offence has taken place
before the initiation of such proceedings. In Maksud Saiyed v. State of
Gujarat , reported in (2008) 5 SCC 668 , this Court explained the following
in context of the jurisdiction under Sections 156(3) and Section 200 of the
Code:
“13. Where a jurisdiction is exercised on a complaint petition filed
in terms of Section 156(3) or Section 200 of the Code of Criminal
Procedure, the Magistrate is required to apply his mind. The Penal
Code does not contain any provision for attaching vicarious
liability on the part of the Managing Director or the Directors of
the Company when the accused is the Company. The learned
Magistrate failed to pose unto himself the correct question viz. as
to whether the complaint petition, even if given face value and
taken to be correct in its entirety, would lead to the conclusion that
the respondents herein were personally liable for any offence. The
Bank is a body corporate. Vicarious liability of the Managing
Director and Director would arise provided any provision exists
in that behalf in the statute. Statutes indisputably must contain
provision fixing such vicarious liabilities. Even for the said
purpose, it is obligatory on the part of the complainant to make
requisite allegations which would attract the provisions
constituting vicarious liability.
15. This Court in Pepsi Foods Ltd. v. Special Judicial Magistrate
[(1998) 5 SCC 749 : 1998 SCC (Cri) 1400] held as under: (SCC
p. 760, para 28)

“28. Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the complainant has
to bring only two witnesses to support his allegations
in the complaint to have the criminal law set into
motion. The order of the Magistrate summoning the
accused must reflect that he has applied his mind to the
facts of the case and the law applicable thereto. He has
to examine the nature of allegations made in the
complaint and the evidence both oral and documentary
in support thereof and would that be sufficient for the
complainant to succeed in bringing charge home to the
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accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary
evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence
brought on record and may even himself put questions
to the complainant and his witnesses to elicit answers
to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima
facie committed by all or any of the accused.”

The learned Magistrate, in our opinion, shall have kept the said
principle in mind.”

34. In R.R. Chari (supra), this Court had held that “ when a Magistrate applies his
mind for the purpose of proceeding under Section 200 and subsequent sections
of Chapter XV of the Code of Criminal Procedure, he must be held to have
taken cognizance of the offence .” On the other hand, in Tula Ram v. Kishore
Singh reported in (1977) 4 SCC 459 , it was held that when the Magistrate
applies his mind not for the purpose of proceeding as abovementioned in R.R.
Chari (supra), but for taking action of some other kind, for instance ordering
investigation or issuing a search warrant he cannot be said to have taken
cognizance of the offence.

35. For the purpose of taking cognizance of an offence on the basis of a complaint
received under Section 190 sub-section (1)(a), a Magistrate is required to
examine upon oath, the complainant and any witnesses, and reduce in writing
the substance of their examination. This inquiry which is conducted by the
Magistrate pursuant to Section 200 of the Code, cannot always mean, that
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cognizance of the offence alleged in the complaint has been taken by it, as the
Magistrate is still empowered to take recourse to the other provision of
Section(s) 201 to 203, whereby he may simply bring the inquiry before it to
an end, without an intention of proceeding further in terms of the Code.

36. In the same breath, Section 202 of the Code empowers a Magistrate, who has
received a complaint of an offence, to postpone the issue of process against
the accused in terms of Section 204, and either (i) inquire into the case himself
or direct an investigation by the police or any other person, in the case, for the
purpose of deciding whether or not there is sufficient ground for proceeding.
The said provision reads as under: -
202. Postponement of issue of process.—
(1) Any Magistrate, on receipt of a complaint of an offence of
which he is authorised to take cognizance or which has been made
over to him under section 192, may, if he thinks fit, and shall, in a
case where the accused is residing at a place beyond the area in
which he exercises his jurisdiction, postpone the issue of process
against the accused, and either inquire into the case himself or
direct an investigation to be made by a police officer or by such
other person as he thinks fit, for the purpose of deciding whether
or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be
made,—
(a) where it appears to the Magistrate that the offence complained
of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the
complainant and the witnesses present (if any) have been
examined on oath under section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he
thinks fit, take evidence of witnesses on oath:
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Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he
shall call upon the complainant to produce all his witnesses and
examine them on oath.

(3) If an investigation under sub-section (1) is made by a
person not being a police officer, he shall have for that
investigation all the powers conferred by this Code on an officer
in charge of a police station except the power to arrest without
warrant.

37. The provision empowers the Magistrate to find reasons to doubt the
truthfulness of the complaint and defer issuing process against the accused. In
such a case, the Magistrate may either direct an investigation by the police, or
conduct an inquiry to determine whether there is sufficient basis to proceed
with the complaint. It is pertinent to underscore that the investigation
envisaged in Section 202 is different from the investigation contemplated in
Section 156(3), as it is only for assisting the Magistrate to decide whether or
not there is sufficient ground for him to proceed further. This Court in Kewal
Krishan v . Suraj Bhan , reported in 1981 SCC (Cri) 438 , lucidly explained
that;
“10. In the instant case, there was prima facie evidence against
Suraj Bhan accused which required to be weighed and
appreciated by the Court of Session. At the stage of Sections 203
and 204 of the Criminal Procedure Code in a case exclusively
triable by the Court of Session, all that the Magistrate has to do is
to see whether on a cursory perusal of the complaint and the
evidence recorded during the preliminary inquiry under Sections
200 and 202 of the Criminal Procedure Code, there is prima facie
evidence in support of the charge levelled against the accused. All
that he has to see is whether or not there is “sufficient ground for
proceeding” against the accused. At this stage, the Magistrate is
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not to weigh the evidence meticulously as if he were the trial court.
The standard to be adopted by the Magistrate in scrutinising the
evidence is not the same as the one which is to be kept in view at
the stage of framing charges. This Court has held in Ramesh Singh
case [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : AIR 1977 SC 2018]
that even at the stage of framing charges the truth, veracity and
effect of the evidence which the complainant produces or proposes
to adduce at the trial, is not to be meticulously judged. The
standard of proof and judgment, which is to be applied finally
before finding the accused guilty or otherwise, is not exactly to be
applied at the stage of framing charges. A fortiori, at the stage of
Sections 202/204, if there is prima facie evidence in support of the
allegations in the complaint relating to a case exclusively triable
by the Court of Session, that will be a sufficient ground for issuing
process to the accused and committing them for trial to the Court
of Session.”

38. This Court in Rameshbhai Pandurao Hedau v . State of Gujarat , reported in
(2010) 4 SCC 185 , held that a direction for investigation under Section 156(3)
is to ascertain whether the Magistrate shall take cognizance. Whereas, an
investigation under Section 202 is for ascertaining whether there are sufficient
grounds for the Magistrate to proceed further. The relevant observations read
thus;
“22. It is now well settled that in ordering an investigation under
Section 156(3) of the Code, the Magistrate is not empowered to
take cognizance of the offence and such cognizance is taken only
on the basis of the complaint of the facts received by him which
includes a police report of such facts or information received from
any person, other than a police officer, under Section 190 of the
Code. Section 200 which falls in Chapter XV, indicates the manner
in which the cognizance has to be taken and that the Magistrate
may also inquire into the case himself or direct an investigation to
be made by a police officer before issuing process.

23. Reference was also made to the decision of this Court in Mohd.
Yousuf v. Afaq Jahan [(2006) 1 SCC 627 : (2006) 1 SCC (Cri)
Special Leave Petition (Crl) No. 10010 of 2025 Page 31 of 85

460] where it has been held that when a Magistrate orders
investigation under Chapter XII of the Code, he does so before he
takes cognizance of the offence. Once he takes cognizance of the
offence, he has to follow the procedure envisaged in Chapter XV
of the Code. The inquiry contemplated under Section 202(1) or
investigation by a police officer or by any other person is only to
help the Magistrate to decide whether or not there is sufficient
ground for him to proceed further on account of the fact that
cognizance had already been taken by him of the offence disclosed
in the complaint but issuance of process had been postponed.

xxx

25. The power to direct an investigation to the police authorities
is available to the Magistrate both under Section 156(3) CrPC and
under Section 202 CrPC. The only difference is the stage at which
the said powers may be invoked. As indicated hereinbefore, the
power under Section 156(3) CrPC to direct an investigation by the
police authorities is at the pre-cognizance stage while the power
to direct a similar investigation under Section 202 is at the post-
cognizance stage.”

39. In Ramdev Food Products Pvt. Ltd. v . State of Gujarat , reported in (2015) 6
SCC 439 , three-Judge Bench of this Court underscored the difference in
meaning of the term “ investigation ” under Section 156(3) as compared to
Section 202 of the Code. The relevant observations read thus:

“21. On the other hand, power under Section 202 is of different
nature. Report sought under the said provision has limited
purpose of deciding “whether or not there is sufficient ground for
proceeding”. If this be the object, the procedure under Section 157
or Section 173 is not intended to be followed. Section 157 requires
sending of report by the police that the police officer suspected
commission of offence from information received by the police and
thereafter the police is required to proceed to the spot, investigate
the facts and take measures for discovery and arrest. Thereafter,
the police has to record statements and report on which the
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Magistrate may proceed under Section 190. This procedure is
applicable when the police receives information of a cognizable
offence, registers a case and forms the requisite opinion and not
every case registered by the police.

xxx

22.1. The direction under Section 156(3) is to be issued, only after
application of mind by the Magistrate. When the Magistrate does
not take cognizance and does not find it necessary to postpone the
issuance of process and finds a case made out to proceed
forthwith, direction under the said provision is issued. In other
words, where on account of credibility of information available,
or weighing the interest of justice it is considered appropriate to
straightaway direct investigation, such a direction is issued.

xxx

37. In Nagawwa v. Veeranna Shivalingappa Konjalgi [(1976) 3
SCC 736 : 1976 SCC (Cri) 507] , referring to earlier judgments
on the scope of Section 202, it was observed : (SCC p. 740, para
3)

3. “In Chandra Deo Singh v. Prokash Chandra Bose
[AIR 1963 SC 1430 : (1963) 2 Cri LJ 397 : (1964) 1
SCR 639] this Court had after fully considering the
matter observed as follows : (AIR p. 1433, para 8)

‘8. … The courts have also pointed out
in these cases that what the Magistrate
has to see is whether there is evidence in
support of the allegations of the
complainant and not whether the
evidence is sufficient to warrant a
conviction. The learned Judges in some
of these cases have been at pains to
observe that an enquiry under Section
202 is not to be likened to a trial which
can only take place after process is
issued, and that there can be only one
trial. No doubt, as stated in sub-section
(1) of Section 202 itself, the object of the
enquiry is to ascertain the truth or
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falsehood of the complaint, but the
Magistrate making the enquiry has to do
this only with reference to the intrinsic
quality of the statements made before
him at the enquiry which would naturally
mean the complaint itself, the statement
on oath made by the complainant and the
statements made before him by persons
examined at the instance of the
complainant.’

Indicating the scope, ambit of Section 202 of the Code of Criminal
Procedure this Court in Vadilal Panchal v. Dattatraya Dulaji
Ghadigaonkar [AIR 1960 SC 1113 : 1960 Cri LJ 1499] observed
as follows : (AIR p. 1116, para 9)

‘9. … Section 202 says that the Magistrate may, if
he thinks fit, for reasons to be recorded in writing,
postpone the issue of process for compelling the
attendance of the person complained against and
direct an inquiry for the purpose of ascertaining the
truth or falsehood of the complaint; in other words,
the scope of an inquiry under the section is limited
to finding out the truth or falsehood of the complaint
in order to determine the question of the issue of
process. The inquiry is for the purpose of
ascertaining the truth or falsehood of the complaint;
that is, for ascertaining whether there is evidence in
support of the complaint so as to justify the issue of
process and commencement of proceedings against
the person concerned. The section does not say that
a regular trial for adjudging the guilt or otherwise
of the person complained against should take place
at that stage; for the person complained against can
be legally called upon to answer the accusation
made against him only when a process has issued
and he is put on trial.’”

Same view has been taken in Mohinder Singh v. Gulwant Singh
[(1992) 2 SCC 213 : 1992 SCC (Cri) 361] , Manharibhai
Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel [(2012) 10
SCC 517 : (2013) 1 SCC (Cri) 218] , Raghu Raj Singh Rousha v.
Shivam Sundaram Promoters (P) Ltd. [(2009) 2 SCC 363 : (2009)
Special Leave Petition (Crl) No. 10010 of 2025 Page 34 of 85

1 SCC (Cri) 801] and Chandra Deo Singh v. Prokash Chandra
Bose [AIR 1963 SC 1430 : (1963) 2 Cri LJ 397 : (1964) 1 SCR
639] .”

40. Undoubtedly, the inquiry under Section 202 of the Code is to ascertain the fact
whether the complaint has any valid foundation calling for issuance of process
to the person complained against under Section 204, or whether the complaint
should be dismissed by resorting to Section 203. As a natural corollary, at the
stage of issuing process the Magistrate is only concerned with the allegations
in the complaint and the statements of the complainant and the witnesses. The
Magistrate is required only to be prima facie satisfied that sufficient grounds
exist to proceed against the accused.

41. Therefore, the scope of inquiry under Section 202 is limited to the
ascertainment of the truth or falsehood of the allegation made in the complaint
– (i) on the materials placed by the complainant before the court; and (ii) for
limited purpose of finding out whether a prima facie case for issue of process
has been made out. There is no gainsaying that discretion vested in the
Magistrate has to be judicially exercised.

42. The proviso to sub-section (2) stipulates that if it appears to the Magistrate
that the offence complained of is triable by the Court of Sessions, he must call
upon the complainant to produce all his witnesses and examine them on oath.
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The intent behind the provision lies in the fact that in a police case,
investigation reveals the nature of the crime and its truthfulness as opposed to
a case born out of a complaint. Hence, to protect the prospective accused from
harassment from false complaints, the duty of the Magistrate to examine the
complainant and his witnesses becomes onerous. We must remind that it is
imperative on the part of the Magistrate to examine the complainant and his
witnesses in a complaint case triable exclusively by Court of Sessions.

43. Although, in practice, there may at times be an overlap or convergence in the
procedures envisaged under these three routes, such as where on the basis of
a complaint, police investigation is ordered under Section 156 sub-section (3),
or where upon receiving a police report under Section 173 sub-section (2), a
protest petition filed in lieu thereof is treated as a complaint in terms of Section
200 of the Code, yet the procedural trajectory in which a Magistrate is
expected to adopt for the purpose of proceeding in respect of an offence, still
retains a certain degree of distinctiveness, based on how the criminal
machinery came into motion.

ii. Who takes Cognizance of Offence exclusively triable by Court of
Sessions under the Code?

44. To answer the question, whether the summoning of the petitioner herein by
the Court of Session amounts to ‘second cognizance’, we have to try and
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understand the decision of this Court in Dharam Pal (supra), more
particularly, its observations that when it comes to offences exclusively triable
by the Court of Session, “ if cognizance is to be taken of the offence, it could
be taken either by the Magistrate or by the Court of Session ”. In other words,
the question that falls for our consideration is that, for offences triable
exclusively by the Court of Session, whether cognizance is taken by the
Magistrate or by the Court of Session, or either of them as the case may be?
To answer the aforesaid, we may, put aside Section 193 of the Code for the
time being and first try to understand what role is expected to be played by the
Magistrate as-well as the Court of Session under the Code for offences
exclusively triable by the Court of Session.

a. Role of the Magistrate where the Offence is exclusively triable by a
Court of Session.

45. In the foregoing paragraphs of this judgment, we have already delineated the
manner in which a Magistrate, ordinarily takes cognizance of an offence. To
sum it up, where a complaint is received disclosing facts which constitute an
offence, cognizance is taken after the Magistrate has applied his mind to the
complaint and has proceeded under Section 200 and the subsequent provisions
of Chapter XV, whereupon such complaint is neither returned in terms of
Section 201 nor dismissed under Section 203, and instead there is issuance of
process by the Magistrate in terms of Section 204 and other provisions of
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Chapter XVI, at which stage it is understood without a shred of doubt, that
cognizance of such offence has been taken and proceedings under the Code
stand initiated. On the other hand, where a police report is received,
proceedings are said to be initiated i.e., cognizance is affirmatively said to be
taken after the Magistrate has applied its mind to the contents of the police
report, and thereafter he has either issued process to the accused under Section
204 of the Code, on the basis of such report, or where the accused is present
before it, either on his own or on being produced by the police, the Magistrate
has complied with the requirement envisaged under Section 207 of the Code.
In short, while a Magistrate who proceeds under Chapter XV of the Code, may
or not be said to have taken cognizance, however, whenever, a Magistrate has
proceeded under the provisions of Chapter XVI which deals with
“Commencement of Proceedings”, cognizance of offence, without an iota of
doubt is understood to have been taken.

I. Chapter XVI - Section(s) 207, 208 and 209 of the Code and Committal
of Case by a Magistrate to the Court of Sessions.

46. We may now turn to see, how the Magistrate is required under the Code to
proceed where the offence is exclusively triable by the Court of Sessions.
Where a case is instituted before a Magistrate, in terms of Section 190 of the
Code, i.e., either upon a complaint, or a police report, or on the basis of the
Magistrate’s own knowledge, and it appears to the Magistrate, that the case
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pertains to an offence triable exclusively by the Court of Session, then the
Magistrate has to commit the said case to the Court of Session. Section 209 of
the Code reads as under: -
“ 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 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 .”

47. A plain and careful reading of the aforesaid provision reveals that, where a
case is instituted on a police report or otherwise, that is to say, on the basis of
a complaint received or on the basis of information by a Magistrate’s own
knowledge, and such case involves an offence which is triable exclusively by
the Court of Sessions, the Magistrate is placed under a statutory obligation to
commit such case to the Court of Sessions in the manner laid down in clauses
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(a) to (d) of the said provision. Section 209 of the Code, enjoins a duty upon
the Magistrate to comply with four procedural requirements enumerated in
clauses (a) to (d), thereto, i.e., the commitment of the case by the Magistrate
to the Court of Session, has to take place, strictly in accordance with the four
procedural steps provided in the provision, being as under: -
(i) As per clause (a), the Magistrate is required to commit such case to the
Court of Session, and further remand the accused to custody, subject to
the provisions of bail, until such committal is complete. However, such
commitment has to be done after the Magistrate as complied with the
provisions of Section 207 or 208 of the Code, as the case may be;
(ii) In terms of clause (b), the Magistrate must also remand the accused to
custody for the duration of trial, subject to the provisions relating to bail
under the Code;
(iii) Clause (c) enjoins a further duty upon the Magistrate, to forward to the
Court of Session, more particularly the Court to which the case is
committed, the entire record of the case, along with any documents and
articles thereof, that are to be produced or relied upon as evidence;
(iv) Under clause (d), the Magistrate is further required to notify the Public
Prosecutor regarding the commitment of the case to the Court of
Session.

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48. Chapter XVI of the Code which deals with “Commencement of Proceedings
before Magistrates” encompasses the aforementioned provision of Section
209 as-well as Section(s) 207 and 208. Both these provisions pertain to the
obligation of furnishing to the accused, copies of documents in respect of any
case where proceedings have been instituted under the Code, with the former
dealing with proceedings instituted upon a police report and the latter
pertaining to proceedings instituted otherwise, such as on a complaint or on
the basis of information by a Magistrate’s own knowledge.

49. Section 207 of the Code stipulates that in every case where proceedings have
been instituted on the basis of a police report, the Magistrate, shall supply to
the accused, without delay and free of cost, inter-alia, a copy of the police
report as contemplated under Section 173, a copy of the first information
report, recorded under Section 154, if any, the copies of all statements made
under Section 161 sub-section (3) by persons, whom the prosecution intends
to examine as witness, subject to the first proviso, the copies of any confession
or statement recorded under Section 164, as-well as a copy of any other
document or relevant extract thereof that was forwarded to the Magistrate by
the police. Section 207 of the Code reads as under: -
207. Supply to the accused of copy of police report and other
documents.—
In any case where the proceeding has been instituted on a police
report, the Magistrate shall without delay furnish to the accused,
free of cost, a copy of each of the following:—
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(i) the police report;
(ii) the first information report recorded under section
154;
(iii) the statements recorded under sub-section (3) of
section 161 of all persons whom the prosecution
proposes to examine as its witnesses, excluding
therefrom any part in regard to which a request for
such exclusion has been made by the police officer
under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded
under section 164;
(v) any other document or relevant extract thereof
forwarded to the Magistrate with the police report
under sub-section (5) of section 173:

Provided that the Magistrate may, after perusing any such
part of a statement as is referred to in clause (iii) and considering
the reasons given by the police officer for the request, direct that
a copy of that part of the statement or of such portion thereof as
the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any
document referred to in clause (v) is voluminous, he shall, instead
of furnishing the accused with a copy thereof, direct that he will
only be allowed to inspect it either personally or through pleader
in Court.

50. In the same breadth, Section 208 of the Code, stipulates that in every case
where proceedings have been instituted otherwise than on a police report,
which when understood in the context of Section 190, means on the basis of a
complaint received by a Magistrate or on the basis of information by a
Magistrate’s own knowledge, and the offence is triable exclusively by the
Court of Session, the Magistrate, shall supply to the accused, without delay
and free of cost, inter-alia, a copy of the statements recorded under Section(s)
200 or 202, of all persons examined by the magistrate, the copies of any
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statement or confession recorded under Section(s) 161 or 164, as-well as a
copy of any other document produced before the Magistrate, on which the
prosecution proposes to rely. Section 208 of the Code reads as under: -
208. Supply of copies of statements and documents to accused in
other cases triable by Court of Session.—
Where, in a case instituted otherwise than on a police report, it
appears to the Magistrate issuing process under section 204 that
the offence is triable exclusively by the Court of Session, the
Magistrate shall without delay furnish to the accused, free of cost,
a copy of each of the following:—
(i) the statements recorded under section 200 or section
202, of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded
under section 161 or section 164;
(iii) any documents produced before the Magistrate on
which the prosecution proposes to rely:

Provided that if the Magistrate is satisfied that any such
document is voluminous, he shall, instead of furnishing the
accused with a copy thereof, direct that he will only be allowed to
inspect it either personally or through pleader in Court.

51. The stage at which the provisions of Section(s) 207 and 208 of the Code,
respectively spring into action, de hors Section 209, can be gleaned from the
heading of Chapter XVI wherein these provisions are contained;
“Commencement of Proceedings before Magistrates”. The said Chapter, deals
with the stage, where the accused person is before the Magistrate, either by
way of issue of process under Section 204 of the Code, or if such person
appears on his own, or is brought before the Magistrate by the police, which
as already discussed in the foregoing paragraphs, signifies that the Magistrate
has taken cognizance of the offence, and has now proceeded further under the
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Code, by initiating proceedings against persons accused of committing such
offences. That apart, the documents, copies of which, have to be supplied to
the accused, under each of these provisions, are all documents that have
become part of the record before the Magistrate, by virtue of him, having
already proceeded under the provisions of Section 200 and subsequent
sections of Chapter XV in case of complaint case, which again reinforces that
at this stage the Magistrate has taken cognizance.

52. It could be argued, that in a case instituted upon a police report, the Magistrate
not having proceeded in terms of Chapter XV, as he is no required to in such
cases, may not necessarily have taken cognizance of the offence. There may
be situations where although police report may have been submitted to a
Magistrate under Section 173, but the stage of taking cognizance of an offence
on the basis of such report in terms of Section 190 of the Code, may not have
reached by the Magistrate. It is particularly in this context, that our discussion
in the foregoing paragraphs assumes importance. We have already discussed,
how the act of taking cognizance of an offence does not involve any formal
action of any kind, and cannot be construed by any rigid formula. Whether
cognizance of an offence has been taken, or not taken or yet to be taken,
depends in the peculiar context of the case and the stage of proceedings
therein, and lodestar for answering the same has to be discerned from the
procedure adopted by the Magistrate. Nevertheless, when a Magistrate, upon
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receiving a police report, proceeds further, by complying with the procedural
requirements laid down in Section 207 of the Code, he is deemed to have taken
cognizance of the offence. For there can be no need or question of supplying
the documents envisaged under Section 207 to the accused, if cognizance of
the offence is not taken, and more importantly, there can be no situation where
the accused is compelled to appear before the Magistrate, or made a part of
the proceedings in connection with any case instituted, if cognizance of the
offence, involved therein is not yet taken. This is because prior to taking
cognizance of an offence, the person alleged to be the accused, has no locus
in the proceedings.

53. It also flows from the cardinal principal of criminal jurisprudence, that unless
the court is satisfied, upon application of its mind about the occurrence of an
offence, in other words, unless cognizance of an offence is taken, a person
even though alleged or suspected to be involved in the commission of such
offence, cannot be called upon or compelled to partake in the criminal
proceedings, on a mere suspicion, lest it violate the right of dignity of such
person as-well as the right of such person against self-incrimination enshrined
in Article(s) 20 and 21 of the Constitution and undermine the sanctity of
criminal proceedings, the bedrock of which is fairness. The imperative
requirement of first taking cognizance of an offence, before any person is
arrayed in the proceedings as an accused, is not a mere procedural formality,
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it is there to ensure that no person is subjected to the rigours of criminal
proceedings on a conjectural suspicions and unverified allegations. To do so,
would gravely prejudice and stigmatize the dignity and reputation of such
person, or put simply, the right to life of such persons, and more importantly,
to ensure that a person suspected of committing an offence, is not compelled
to give any information or evidence, in other words, incriminate himself, for
the very purpose of then establishing and making out an offence against him
or in simple words taking cognizance of an offence against such person.

54. The expression “ the accused appears or is brought before the Magistrate ”
used in Section 209 of the Code, which, at the cost of repetition, deals with
committal of cases to the Court of Session when offence is triable exclusively
by it, have to be understood in the context of the aforesaid paragraphs. Section
209 of the Code, leaves no room for ambiguity. The words used in it are clear
as a noon day. There can be no committal of a case by a Magistrate to the
Court of Session, unless the accused is before it. It is not difficult to
comprehend why; Section 209 insists upon the requirement for the person
accused to be before the Magistrate before the committal of the case takes
place. The reason is quite simple. There can be no compliance of the
requirements envisaged under Section(s) 207 or 208 of the Code, as the case
may be, if a person is not yet arrayed as an accused to the case instituted before
the Magistrate. As both these provisions mandate the requirement to furnish
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the copies of the documents enumerated therein, to the accused, thereby
indicating that when the Magistrate proceeds under the provisions of
Section(s) 207 or 208 and then 209 of Chapter of XVI of the Code, cognizance
of the offence is already taken, and further that the Magistrate has also applied
its mind to find out who the offenders really are. [See: Raghubans Dubey v.
State of Bihar, 1967 Cri LJ 1081 (SC)] .

55. This is further reinforced from clause(s) (b) and (d) of Section 209 of the Code,
which talk about the duty of the Magistrate to remand the accused to custody
and to notify the Public Prosecutor about the committal of the case to the Court
of Session. Section 209(b) stipulates that for the purpose of committal of the
case to the Court of Session, the Magistrate, has to remand the accused to
custody, subject to the provisions of bail, “ during, and until the conclusion of,
the trial ”. This itself indicates that, when the accused is being remanded by
the Magistrate, it is being done, for the purpose of undergoing trial, which
presupposes that, the Magistrate is satisfied that there is enough material for
the purpose of sending such accused to trial. On the other hand, the duty to,
notify the Public Prosecutor under Section 209(d), as regards the committal of
the case, is for the purpose of facilitating the opening of the case by the
prosecution before the Court of Session in terms of Section 226 contained in
Chapter XVIII, which specifically deals with “Trial before a Court of
Session”.
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56. It is worthwhile to note that Section 190 of the Code, which as already stated
deals with Cognizance of offences by Magistrates, specifically employs the
words “any offence”. Thus, subject to conditions laid down in Chapter XIV, a
Magistrate by virtue of Section 190 of the Code has been specifically and
consciously empowered to take cognizance of “Any Offence”. The use of the
expression “Any Offence” is particularly significant, because even-though the
Code, in Chapter(s) XV and XVI has qualified the meaning of the term
“offences” with the expression “triable exclusively by the Court of Session”,
wherever necessary, no such expression has been juxtaposed with the term
“offences” insofar as Chapter XIV is concerned. This reinforces that the
language couched in Section 190 of the Code, more particularly the words
“any offence” is of wide import and that a Magistrate is empowered to take
cognizance of an offence even if the same is triable exclusively by the Court
of Session.

b. Role of the Court of Session after the case is committed to it by the
Magistrate under Section 209 of the Code.

57. For a better exposition on the issue of who takes cognizance of offence under
which is exclusively triable by a Court of Session, under the Code, it would
be apposite to under the procedure that is to be followed after a case where an
offence is exclusively triable by a Court of Session, is committed by a
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Magistrate to the Court of Session. In this regard, the provisions of Section(s)
226, 227 and 228 of the Code are of significance.

58. Once a case has been committed by the Magistrate to a Court of Session in
terms of Section 209, the procedure that follows suit, is provided in Section(s)
225 to 237 in Chapter XVIII of the Code. The heading of Chapter XVIII is
also very clear. It reads, “Trial before a Court of Session”. Thus, once a case
has been committed, the procedure that now has to be adopted by the Court of
Sessions is in lieu of commencement of trial.

59. Although, one must be mindful that, mere committal of the case, does not
mean that trial has now commenced. Trial in respect of any case instituted
under the Code, commences only after the charges have been framed. All
stages prior to the framing of charges, are a pre-trial stage, which may also
happen to be a stage of inquiry. All that we are trying to emphasize, on the
basis of the heading of Chapter XVIII of the Code is that, the procedure that
the Court of Session is expected to adopt is towards commencement of trial,
and not for the purpose of taking cognizance of an offence, which as discussed
in the foregoing paragraphs of this judgment, already stands taken by the
Magistrate, who committed the case to the Court of Session. This may be
better understood by taking a closer look at few provisions of Chapter XVIII,
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and by discerning what the Court of Session is empowered to do, post the
committal of the case to it.

60. Section 225 of the Code, although merely explanatory in nature as to how
trials are to be conducted before a Court of Session, yet is of some degree of
aid, inasmuch as it further indicates that the procedure laid down in Chapter
XVIII is for the purpose of facilitating the trial. The provision simplictier
states that in every trial before a Court of Session, the prosecution shall be
done by a Public Prosecutor. The said provision reads as under: -

“ 225. Trial to be conducted by Public Prosecutor.—
In every trial before a Court of Session, the prosecution shall be
conducted by a Public Prosecutor.”


61. Section 226 of the Code, is the immediate next procedural step after the case
has been committed by a Magistrate to the Court of Session in terms of Section
209. The said provision stipulates that, when the accused appears or is brought
before the Court of Session “in pursuance of a commitment of the case under
Section 209 ” the prosecutor shall first open his case. In doing so, the
prosecutor is required to describe the charges brought against the accused and
further stating the evidence, he proposes to prove for establishing the guilt of
such accused. Section 226 of the Code reads as under: -
“ 226. Opening case for prosecution.—
When the accused appears or is brought before the Court in
pursuance of a commitment of the case under section 209, the
prosecutor shall open his case by describing the charge brought
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against the accused and stating by what evidence he proposes to
prove the guilt of the accused.”

62. A bare perusal of the aforesaid provision, makes it clear that, the first
procedural step that is ordinarily contemplated to be undertaken by a Court of
Session, under the Code, after the committal of the case by the Magistrate
under Section 209, is to be apprise itself as-well as the accused about the
charges that are brought against such accused. Section 226 does not
contemplate, any procedural step of first satisfying the Court of Session about
the occurrence of an offence, such that the Court of Session, in turn, take
cognizance of the offence. The procedure contemplated in the said provision,
presupposes the cognizance of the offence. This is because, as already
discussed by us, in the foregoing parts of the judgment, the Magistrate before
committal of the case, is already expected as-well as deemed to have taken
cognizance of the offence, sought to be brought to trial before the Court of
Session.

63. Section 227 of the Code deals with discharge. Where the Court of Session,
upon consideration of the record of the case and documents tendered with it,
and after hearing the accused and the prosecution in regards to such material
on record, considers that there is no sufficient ground for proceeding against
the accused, then the Court of Sessions, shall discharge the accused, by
recording reasons for the same. The said provision reads as under: -
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“ 227. Discharge.—
If, upon consideration of the record of the case and the documents
submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers
that there is not sufficient ground for proceeding against the
accused, he shall discharge the accused and record his reasons
for so doing.”


64. At this stage, we may address ourselves on one another aspect, with a view to
obviate any confusion. It may be argued, that the cognizance of an offence can
only be taken by that court who is also empowered to discharge the accused
qua such offence. Since, in a case where the offence is exclusively triable by
the Court of Session, as is manifest from a reading of Section(s) 209, 226 and
227 of the Code, only a Court of Sessions is empowered to discharge an
accused, it must be the one who must take cognizance of the offence, and not
the Magistrate, whose role is only confined to committing the case to the Court
of Session. Although, such an argument may be seemingly lucrative and
appealing, the same is a misunderstanding of the basics of what is meant by
“taking cognizance”.

65. One another fundamental aspect pertinent to bear in mind is that, cognizance
of an offence is taken when the judicial authority who has applied its mind,
comes to the finding that it is necessary to initiate proceedings. The act of
“taking cognizance” as already discussed, signifies judicial application of
mind on the allegations purported to be levelled. Equally important to
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remember is that cognizance is of an offence and not the offender. Where,
however, there is no offence, there can be no cognizance, as there can be no
proceedings initiated. In the course of uncovering, whether there is any
offence, whose cognizance is to be taken, the court or the Magistrate, as the
case may be, comes to the finding that there is no offence, all proceedings
initiated leading upto such conclusion are dropped. In other words, any
proceedings that may have been initiated under the Code, for determining, if
there an offence has taken place or not, come to an end and are dropped once
it is found that no offence had occurred. This is quite distinct from ‘discharge’,
for the reason that discharge does not necessarily, always lead to dropping of
proceeding. Discharge is always qua the accused person, as opposed to
cognizance which is always qua the offence itself. Discharge of an accused
does not tantamount to the negation or eradication of the necessity to initiate
proceedings in the first place. Discharge only signifies that; there isn’t
sufficient ground to charge the person accused of commission of a particular
offence. It has no bearing on the offence itself whose cognizance was taken,
as the occurrence of such offence and the correlating necessity for initiation
of proceedings still remains. Discharge of an accused does not mean that no
offence had occurred in the first place. Take for instance, the Magistrate had
taken cognizance of an offence, pursuant to which two persons ‘A’ and ‘B’
came to be arrayed as accused. Later, the Court of Sessions, finds that there
isn’t sufficient material to proceed against ‘B’. This does not mean that there
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is no necessity for initiation of proceedings in respect of the said offence, as
the same may still continue in respect of ‘A’. Even if ‘A’ also comes to be
discharge, it does not stand that no offence had taken place, and it would be
the bounden duty of the Court to find out the actual offenders. Cognizance is
always qua an offence and always correlates to initiation of proceedings,
whereas, discharge is only qua an accused and concerned with if there is
sufficient ground to proceed against such accused.

66. If at all, there was a correlation between the power to “discharge” and the act
of “taking cognizance”, such that only that court empowered to discharge an
accused for an offence, could be said to be empowered to also take cognizance
of such offence in the first place, then there would have been no need for the
Code to contain the provisions pertaining to discharge by a Court of Session
and by a Magistrate, in separate distinct Chapters, more particularly Chapter
XVIII; Section 227 and Chapter XIX; Section(s) 239 and 245, respectively,
which specifically deal with trials before the Court of Session and Magistrates,
respectively. The Code would have simpliciter empowered the Court of
Session and the Magistrate to discharge an accused under Chapter XIV, which
deals with cognizance of offences by Magistrates and Courts of Session. This
reinforces that, the power to discharge an accused, is nothing more than a
safeguard against any mechanical or capricious framing of charges; a pre-
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requisite for commencement of trials, and thus, correlates only to trials, and
has nothing to with the act of “taking cognizance” under the Code.

67. Section 228 of the Code is particularly of significance for an insight into the
role that a Court of Sessions plays after a case is committed to it by the
Magistrate. Section 228 which deals with framing of charges, stipulates that,
where after such consideration and hearing as contemplated under Section(s)
226 and 227 of the Code, the Court of Session is of the opinion that there is
ground for presuming that the accused has committed an offence, then only
two options are available to it: first , where it finds that the offence is not
exclusively triable by the Court of Session, then, it may either frame a charge
against such accused and thereafter, transfer the case back to the Magistrate
mentioned therein, or simply transfer the case back without framing any
charge; or second , where it finds that the offence is indeed exclusively triable
by the Court of Session, then it shall proceed to frame a charge against such
accused. The said provision reads as under: -
“ 228. Framing of charge.—
(1) If, after such consideration and hearing as aforesaid, the Judge
is of opinion that there is ground for presuming that the accused
has committed an offence which—

(a) is not exclusively triable by the Court of Session, he
may, frame a charge against the accused and, by order,
transfer the case for trial to the Chief Judicial
Magistrate, or any other Judicial Magistrate of the
first class and direct the accused to appear before the
Chief Judicial Magistrate, or, as the case may be, the
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Judicial Magistrate of the first class, on such date as
he deems fit, and thereupon such Magistrate shall try
the offence in accordance with the procedure for the
trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in
writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-
section (1), the charge shall be read and explained to the accused
and the accused shall be asked whether he pleads guilty of the
offence charged or claims to be tried.

68. It is manifest from a careful reading of the aforesaid provision, that a Court of
Session, after a case has been committed, is only required to see, if the offence
in the case, is one exclusively triable by it or not. Where, the offence is not
exclusively triable by it, the Court of Session will mandatorily transfer the
case to the Magistrate as specified in Section 228 sub-section (1) clause (a).
Where, however the offence is exclusively triable by it, the Court of Session
will mandatorily proceed to frame charges. The only discretion that has been
conferred upon the Court of Session, is in the former, where it can decide
whether to frame the charge himself or not, before mandatorily transferring
the case back to the Magistrate as specified therein.

69. There is no discretion conferred upon the Court of Session, to whom a case
has been committed to go into the question, whether any offence has taken
place, cognizance of which may be taken. Once the Court of Session is in
seisin of the case in terms of Section 209 of the Code, it cannot go into the
Special Leave Petition (Crl) No. 10010 of 2025 Page 56 of 85

question whether, the case is fit one for it to take cognizance or to drop the
proceedings, for it is assumed that the case has been committed to it by the
Magistrate after application of his mind. Section 228, more particularly the
words “ there is ground for presuming that the accused has committed an
offence ” presupposes the cognizance of offence, or put simply, it means that
the Court of Session is already alive to the fact that there has been an offence,
which is why it is only required to form an opinion that there is ground for
presuming that the accused has committed such offence and thereafter, must
decide whether, the offence is one exclusively triable by it or not. Even under
Section 228(1)(a), the Court of Session is only empowered to transfer the case
back to the Magistrate, with the discretion of framing the charge first, if the
offence is not exclusively triable by it. It cannot go into the question, whether
there is any offence or not, worth initiating proceedings under the Code. This
is further fortified from the expression “ and thereupon such Magistrate shall
try the offence in accordance with the procedure for the trial of warrant-cases
instituted on a police report ” in Section 228(1)(a) which indicates that where
such case is transferred back to the Magistrate, the Magistrate is mandated to
thereafter proceed to try such offence i.e., to commence trial in respect of the
same. The Court of Session is not empowered to send back the case to the
Magistrate for relooking into whether cognizance should be taken or not.

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70. A combined reading of Section(s) 226, 227 and 228, clearly outline, that after
the case is committed to the Court of Session, its role is only limited for the
purpose of deciding whether the case is a fit one for commencing trial against
the accused, and whether such offence should be tried by it or by the
Magistrate. After a case is committed to the Court of Session, the first
immediate procedural step envisaged by the Code, is under Section 226,
whereby the Court apprises itself and through it the accused about the charges.
Thereafter, the next course of action available to the Court of Session, is only
in terms of Section(s) 227 and 228 of the Code. The expressions “ considers
that there is not sufficient ground for proceeding against the accused ” and “ is
of opinion that there is ground for presuming that the accused has committed
an offence ” used in Section(s) 227 and 228, respectively, to our minds, appear
to empower the Court of Session to only decide whether on the basis of the
material on record and the submissions of the accused and the prosecution,
there is enough material to either commence a trial or discharge the accused.
The framework of the provisions of Section(s) 226, 227 and 228 of the Code,
to our minds, do not appear to envisage any power of the Court of Session, to
decide whether cognizance of the offence should be taken or not, or the
question whether the Magistrate should have taken cognizance or not. For
offences which are exclusively triable by the Court of Session, the role that
the Court of Session is expected to play in terms of Section(s) 226 to 228, after
the case has been committed to it, is not only altogether different from the one
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that a Magistrate is required to play but also one concerned only with the stage
“post-cognizance of offence” in respect of the case committed to it.

71. We say so, because, unlike Section 190 of the Code, which empowers the
Magistrate with the discretion to decide whether cognizance of an offence
should be taken or not, by application of his mind, there is no provision of the
same similitude as Section 190, which empowers the Court of Session to do
so, in respect of cases committed to it by the Magistrate. At the same time,
there is also no provision, which empowers the Court of Session, to decide
whether the committal of the case was correct or not, to such nature and extent,
that the Court of Session be said to be empowered to sit in appeal over the
committal proceedings and decide or rather re-decide if the cognizance of the
offence should be taken or should have been taken in the first place or not.
The only limited power that the Court of Session has been armed with over
the order of committal passed by the Magistrate, is to ascertain and re-decide
if the offence is one exclusively triable by it or not. Unlike a Magistrate, who
is empowered in terms of Section 190 of the Code, to drop proceedings where
after application of his mind, he comes to the finding that there is no offence
for taking cognizance to initiate proceedings in respect of, the Court of Session
is not empowered to drop the proceedings in the case committed to it, it is only
empowered to either proceed to frame charges against the accused or to
discharge the accused or if such offence is not exclusively triable by it, transfer
Special Leave Petition (Crl) No. 10010 of 2025 Page 59 of 85

the case back to the Magistrate, again for the purpose of commencement of
trial by such Magistrate. This when seen in light of the expression “Any
Offence” used in Section 190 of the Code, clearly indicates that it is the
Magistrate who is not only empowered but also indeed does take cognizance
of an offence even if the same is triable exclusively by the Court of Session.

c. Object and Purpose underlying Section 193 of the Code.

72. The proposition of law, that where a case is committed by the Magistrate in
view of the offence being exclusively triable by the Court of Session, it is only
the Magistrate who takes cognizance of the offence and not the Court of
Session has to be understood in the context of Section 193 of the Code.

73. The marginal note appended to Section 193 of the Code, reads as “ Cognizance
of offences by Courts of Session ”. It stipulates that no Court of Session shall
be empowered to take cognizance of any offence as a Court of Original
Jurisdiction, unless the case has been committed to it by the Magistrate, or
where it has been expressly empowered to do so, either under the Code or any
other law. Section 193 reads as under: -

“ 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
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the case has been committed to it by a Magistrate under this
Code.”


74. A reading of the aforesaid provision, makes it manifest, that there is a clear
embargo cast upon the Court of Session from taking cognizance of any
offence, as a Court of original jurisdiction i.e., no cognizance of an offence
can be taken by a Court of Session in its original capacity, as a point of
initiation of any proceedings under the Code. The expression “ as a Court of
original jurisdiction” warrants a careful interpretation. The said expression
cannot be construed to mean that merely because the Court of Session is
precluded from taking cognizance of an offence as forum of inception of
proceedings under the Code i.e., as an original forum, that it must by necessary
implication, be presumed to be empowered to take cognizance of an offence
as a forum of superior jurisdiction or as an intermediate procedural forum at a
subsequent stage in the proceedings already initiated. To say so, would go
against the well-established rule, that cognizance of an offence can only be
taken once, as held in Dharam Pal (supra) and Balveer Singh (supra). The
negative language employed in Section 193 of the Code, more particularly,
“ no Court of Session shall take cognizance of any offence” which has been
used in conjunction with “ unless the case has been committed to it ” is not
suggestive of the fact that, where a case has been committed to the Court of
Session, it has to then mandatorily take cognizance of the offence. To say
would, resulting in turning the very tenets of the act of “taking cognizance”
Special Leave Petition (Crl) No. 10010 of 2025 Page 61 of 85

over its head. It would lead to an absurd interpretation, where, although the
Magistrate, by way of Section 190 of the Code has the discretion to take
cognizance of an offence, no such discretion exists insofar as the Court of
Session is concerned.

75. In Pradeep S. Wodeyar v. State of Karnataka , reported in (2021) 19 SCC
62 , this Court has elaborately noted upon the scope of Section 193 as thus:

“23. … Section 193 stipulates that unless the case has been
committed by a Magistrate to the Sessions Court under the Code,
no Court of Session shall take cognizance of any offence. But there
are two exceptions to this formulation, namely, where:

(i) the CrPC has made an express provision to the
contrary; and
(ii) an express provision to the contrary is contained in
“any other law for the time being in force”.

The bar in Section 193 is to the Sessions Court taking cognizance
of an offence, as a court of original jurisdiction unless the case
has been committed to it by the Magistrate under the Code.

Xxx

38. Section 193CrPC states that the Sessions Court shall not take
cognizance of an offence as a court of original jurisdiction unless
the Magistrate commits the case to it. The only exception is if it is
expressly provided otherwise by the Code or the statute. Neither
the Code nor the MMDR Act provide that the Special Court could
directly take cognizance of the offences. Therefore, the Sessions
Court did not have the authority to take cognizance. Section
209CrPC provides the Magistrate the power to commit the case.
In Dharam Pal v. State of Haryana [Dharam Pal v. State of
Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159] , a
Constitution Bench, while discussing whether the committing
court was required under Section 209 to take cognizance of the
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offence before committing the case to the Court of Session, held
that the Magistrate could either commit the case before or after
taking cognizance. In this case, the Special Court has directly
taken cognizance. It now needs to be determined if this irregularity
in the cognizance order vitiates the entire proceedings for the
order to be quashed and set aside.

Xxx

50. It is a well-settled principle of law that cognizance as
envisaged in Section 190CrPC is of the offence and not of the
offender. The expression “cognizance of any offence” is
consistently used in the provisions of Sections 190, 191, 192 and
193. [ As a matter of fact, the expression “cognizance of any
offence” is also used in Sections 195, 196, 197, 198, 198-A, 198-
B and 199. Chapter XV CrPC which governs complaints of
Magistrates also emphasises the principle that cognizance is of an
offence. The same principle, as we have seen earlier, is
emphasised in Chapter XVI in which Section 204(1) adverts to a
Magistrate “taking cognizance of an offence”.]

Xxx

56. It is evident from the discussion in Kishun Singh [Kishun Singh
v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] and
Dharam Pal [Dharam Pal v. State of Haryana, (2014) 3 SCC 306
: (2014) 2 SCC (Cri) 159] that in view of the provisions of Section
193CrPC, cognizance is taken of the offence and not the offender.
Thus, the Magistrate or the Special Judge does not have the power
to take cognizance of the accused. The purpose of taking
cognizance of the offence instead of the accused is because the
crime is committed against the society at large. Therefore, the
grievance of the State is against the commission of the offence and
not the offender. The offender as an actor is targeted in the
criminal procedure to provide punishments so as to prevent or
reduce the crime through different methods such as reformation,
retribution and deterrence. Cognizance is thus taken against the
offence and not the accused since the legislative intent is to prevent
crime. The accused is a means to reach the end of preventing and
addressing the commission of crime.”
(Emphasis supplied)

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76. Likewise in Nahar Singh v. State of U.P., reported in (2022) 5 SCC 295 , this
Court made the following observations on Kishun Singh ( supra ) to comment
on the nature of cognizance under Section 197 of the Code:
“23. In Kishun Singh case [Kishun Singh v. State of Bihar, (1993)
2 SCC 16 : 1993 SCC (Cri) 470] , the scope of jurisdiction of the
Court of Session under Section 193 of the Code was explained,
relying on an authority dealing with similar provision under the
1898 Code (P.C. Gulati v. Lajya Ram [P.C. Gulati v. Lajya Ram,
AIR 1966 SC 595 : 1966 Cri LJ 465 : (1966) 1 SCR 560] ). The
phrase used to explain the implication of taking cognizance by a
Court of Session in the judgment of Kishun Singh [Kishun Singh
v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] was
“cognizance in the limited sense”.

24. In para 8 of the Report (in Kishun Singh case [Kishun Singh v.
State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] ), it has
been held observed : (SCC pp. 24-25)

“8. 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 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. Lajya Ram [P.C. Gulati v. Lajya Ram, AIR 1966 SC 595
: 1966 Cri LJ 465 : (1966) 1 SCR 560] , SCR p. 568, AIR
p. 599, Cri LJ p. 469 observed as under : (AIR p. 599, para
21)
‘21. 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 take cognizance of the offence as a court of
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original jurisdiction and it is such a cognizance
which is referred to in Section 193 of the Code.’ ””

(Emphasis supplied)

77. It is well noted in a legion of authorities that the commitment which is talked
of under Section 193 of the Code is a commitment of the “case” and not that
of the “offender”. The purpose of Section 193 is to allow Court of Sessions
the limited window to deemed to have taken cognizance on its own motion.

78. The question of law formulated by us calls for our examination in the light of
the earlier Section 193 of the old Code and the change brought therein by the
Code of 1973. It is, therefore, necessary to juxtapose the two provisions:

79. From the above, the meaningful and significant change brought about in the
Code of 1973 seems manifest. In the earlier provision, the requirement was
that the accused must have been committed to the Court of Session by a
Magistrate. The legislature made a change by deleting the word ‘accused’ and
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provided instead that the ‘case’ should have been committed to the Court of
Session.

80. The Court of Session takes cognizance of the case or the offence as a whole
and, therefore, is entitled to summon anyone who, on the material before it,
appears to be guilty of such offence to stand trial before it. To highlight, what
is committed to the Court of Session by the Magistrate is the case or the
offence for trial and not the individual offender therefor. To hold otherwise
would be again relapsing into the fallacy that cognizance is taken against
individual accused persons and not of the offence as such. This was the evil
which the amendment sought to remedy in express terms.

81. In the aforesaid context, we must look into the following observations made
in Joginder Singh vs. State of Punjab reported in 1979 Cri LJ 333 (Para 6) :-

“It will be noticed that both under Section 193 and Section 209 the
commitment is of ‘the case’ and not of ‘the accused’ whereas under the
equivalent provision of the old Code, viz., Section 193(1) and Section 207-
A it was ‘the accused’ who was committed and not ‘the case’. It is true that
there cannot be a committal of the case without there being an accused
person before the Court, but this only means that before a case in respect
of an offence is committed there must be some accused suspected to be
involved in the crime before the Court but once “the case in respect of the
offence qua those accused who are before the Court is committed then the
cognizance of the offence can be said to have been taken properly by the
Sessions Court and the bar of Section 193 would be out of the way and
summoning of additional persons who appear to be involved in the crime
from the evidence led during the trial and directing them to stand their
trial along with those who had already been committed must be regarded
as incidental to such cognizance and a part of the normal process that
follows it;” (Emphasis supplied)
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82. 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.

83. In Kishun Singh vs. State of Bihar reported in (1993) 2 SCC 16, the question
before the Court was whether the Court of Sessions to which a case has been
committed to for trial by the Magistrate, can without recording evidence,
summon a person not named in the police report by exercise of its power under
Section 319 CrPC. The two judge Bench held that when a case is committed
to the Court of Sessions by the Magistrate under Section 209 on the ground
that it is exclusively triable by it, the Sessions Court would have the power to
take cognizance of the offence. It was thus held that since cognizance is taken
of the offence and not the accused, if any material suggests the complicity of
other persons in the offence, the Court of Sessions can summon such other
persons. The court, by drawing a comparison between Section 193 of the Code
of 1973 and the Code of 1898, and on a reading of Section 209 CrPC held that
both the committal and cognizance is of the offence and not the
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accused/offender. The Court summarized the position in law in the following
observations: -

“7. […] 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) and
(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.
[…]
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 could 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.”

“16…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
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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.”
(Emphasis supplied)

84. In other words, upon the committal by the Magistrate, the Court of Sessions
is empowered to take cognizance of the whole of the incident constituting the
offence. The Court of Sessions is thus invested with the complete jurisdiction
to summon any individual accused of the crime. The above principles were
reiterated in a two judge Bench decision in State of W.B. vs. Mohd. Khalid
reported in (1995) 1 SCC 684. Justice S Mohan speaking for the Court
observed:
“43.[…] Section 190 of the Code talks of cognizance of offences by
Magistrates. This expression has not been defined in the Code. In its
broad and literal sense, it means taking notice of an offence. This would
include the intention of initiating judicial proceedings against the
offender in respect of that offence or taking steps to see whether there is
any basis for initiating judicial proceedings or for other purposes. The
word ‗cognizance‘ indicates the point when a Magistrate or a Judge first
takes judicial notice of an offence. It is entirely a different thing from
initiation of proceedings; rather it is the condition precedent to the
initiation of proceedings by the Magistrate or the Judge. Cognizance is
taken of cases and not of persons.”

(Emphasis supplied)

d. How the decision of this Court in Dharam Pal (supra) should be
understood.

85. In Dharam Pal (supra) a Constitution Bench was called upon to answer the
following questions:
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“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, which set aside the decision in
Kishun Singh v. State of Bihar, rightly decided or not?”
(Emphasis supplied)


86. Answering the reference, the Constitution Bench held that:-
(i) 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
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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.
(ii) 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.
(iii) 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
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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.
(iv) 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
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cognizance being taken by the Magistrate and part cognizance being
taken by the Sessions Judge.

87. In the process of coming to the aforesaid conclusions, this Court accepted the
view expressed in Kishun Singh (supra) that the Sessions Court has
jurisdiction on committal of a case to it, to take cognizance of the offence
which would include the summoning of the person not named as offender 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. (See:
Balveer Singh (supra))

88. 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
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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.”
(Emphasis supplied)

89. In Dharam Pal (supra), a Constitution Bench was deciding on whether the Court of
Sessions has the power under Section 193 CrPC to take cognizance of the offence
and then summon other persons not mentioned as accused in the police report. The
issue was referred to a five-judge Bench in view of the conflicting decisions in
Kishun Singh (supra) and Ranjit Singh v. State of Punjab reported in (1998) 7 SCC
149 . As discussed above, while in Kishun Singh (supra), it was held that the
Sessions Court has such a power under Section 193 CrPC, it was held in Ranjit
Singh (supra) that from the stage of committal till the Sessions Court reaches the
stage indicated in Section 230 CrPC, the Court could not arraign any other person
as the accused. The Constitution Bench affirmed the view in Kishun Singh (supra)
on the ground that the Magistrate before whom the final report is submitted has
ample powers to disagree with the report filed by the police under Section 173(2)
and to proceed against the accused persons de hors the police report. However, if
the interpretation in Ranjit Singh (supra) were to be followed, it would lead to an
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anomaly where the Sessions Court would not have this power till the Section 319
stage is reached, which the Magistrate would otherwise have. In that context, the
Constitution Bench observed:
“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.”
(Emphasis supplied)


90. In view of the aforesaid discussion, the position of law is clear that the Court
of Session has power under Section 193 CrPC to summon a person as accused
to stand trial, even if he has not been charge-sheeted by the police and whose
complexity in the crime appears in the evidence available on record. To hold
in such a situation, that if the investigating agency blatantly exonerates an
accused person and the Magistrate does not consequently commit him, the
Court of Session itself would be rendered powerless to put such an offender
in the dock at the very opening stage of the trial, would to our mind only
hamper the cause of justice rather than advance it. It is to be borne in mind
that herein we are construing procedural provisions and it is well-settled that
procedure is the hand-maid of justice and is not to be employed as a roadblock
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thereto. Therefore on the larger canon of construction there appears to be no
logic for narrowly construing the statute so as to denude the Court of Session
of the power to summon a person to stand his trial at the outset even when
wholly convinced of a prima facie case against him on the basis of materials
in the final report which is admittedly adequate for framing a charge against
the committed accused under section 228 or discharging him under section
227 of the Code.

91. Our judgment would remain incomplete without referring to one very erudite
judgment of this Court rendered in Raghubans Dubey vs. State of Bihar
reported in (1967 Cri LJ 1081) (SC). Therein a first information report had
been lodged against as many as 15 persons including petitioner Raghubans
Dubey. On investigation, the police submitted final form under Section 173 in
which Raghubans Dubey was not sent up by the police for trial whilst the
remaining accused were. The Sub-divisional Magistrate took cognizance
against the fourteen accused persons and expressly discharged Raghubans
Dubey and thereafter transferred the case to a Magistrate for commitment. In
the course of the trial, the transferee Magistrate noticed that Raghubans Dubey
had been named in the first information report and was also named by 5 more
witnesses in their statements under Section 161. He, therefore, summoned
Raghubans Dubey as an accused to stand his trial along with others. This was
challenged on behalf of the petitioner Raghubans Dubey before the High
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Court. But the Division Bench of the High Court while upholding the action
of the Magistrate in summoning the additional accused person rejected the
revision petition. Upholding the High Court's view in an even stronger and
more categoric terms, Sikri, J., speaking for the Bench, observed (Para 9 of
1967 Cri LJ 1081):
“In our opinion once cognizance has been taken by the Magistrate,
he takes cognizance of an offence and not the offenders; once he takes
cognizance of an offence it is his duty to find out who the offenders
really are and once he comes to the conclusion that apart from the
persons sent up by the police some other persons are involved, it is
his duty to proceed against those persons. The summoning of the
additional accused is part of the proceeding initiated by his taking
cognizance of an offence.”
(Emphasis supplied)

92. From the above, it inflexibly follows that once a court of competent
jurisdiction, be it a Magistrate or the Court of Session, takes cognizance of the
offence, it is not only within the court's powers to summon any one who, on
the adequate materials, appears to it to be prima facie guilty of the said offence
but indeed it is its duty to do so. Raghubans Dubey's case (supra) arose under
the old Code of 1898, but it is manifest that the situation is identical under the
Code of 1973 too, and the same view has then been expressly reiterated in
Hareram Satpathy vs. Tikaram Agarwala, reported in (1978) 4 SCC 58 : AIR
1978 SC 1568 : (1978 Cri LJ 1687) in the context of commitment on a murder
charge to the Court of Session by a Magistrate of a person not sent up as an
accused by the investigating agency.

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93. The larger and universal principle underlying the aforesaid rationale has been
enunciated in powerful language by Desai, J., speaking for the Constitution
Bench in A.R. Antulay v. Ramdas Sriniwas Nayak, reported in (1984) 2 SCC
500 in the following terms:
“Punishment of the offender in the interest of the society being one
of the objects behind penal statutes, enacted for larger good of the
society, right to initiate proceedings cannot be whittled down,
circumscribed or fettered by putting it into a straight-jacket formula
of locus standi unknown to criminal jurisprudence, save and except
specific statutory exception.”
(Emphasis supplied)

94. We shall now proceed to specifically deal with the contention canvassed by
the learned counsel appearing for the petitioner that cognizance of an offence
can only be taken once and, if the Magistrate has taken cognizance of an
offence and committed it to the Court of Session, then there is no question of
taking fresh cognizance of the offence by the Court of Session upon the case
being committed to it. There is a basic fallacy in this contention of the learned
counsel. With all humility at our command we say that there is a
misconception on the part of the learned counsel so far as the position of law
on the subject is concerned. It appears that the learned counsel thought to
develop such argument relying on some observations made by this Court in
Dharam Pal (supra). The observations are:-
“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,
the Magistrate takes cognizance of the offence and then commits the
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case to the Court of Sessions, 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 provision
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 Session Judge.”

(Emphasis supplied)


95. The aforesaid observations made by the Constitution Bench of this Court in
Dharam Pal (supra) should be understood to mean that when the investigating
officer files charge sheet for the offence exclusively triable by the Court of
Session, then the Magistrate has to look into the charge sheet and prima facie
ascertain from the materials on record whether the case is one exclusively
triable by the Court of Session. Once the Magistrate is prima facie convinced
that the case is exclusively triable by the Court of Session, the next step in the
process is to commit the case to the Court of Session under Section 209 of the
CrPC. At this stage, the Magistrate takes cognizance of the offence and not
the offender. Once the case is committed to the Court of Session and the Court
of Session finds from the materials on record that a particular individual,
though not charge sheeted, is also prima facie involved in the alleged crime,
then the Court of Session has the power to take cognizance of the offence for
the purpose of summoning that person not named as offender to face the trial.
One should try to understand the purport of Section 193 CrPC. What does
Section 193 CrPC provide for? Section 193 CrPC removes the legal embargo
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for the Court of Session to take cognizance of any offence once the case is
committed to it because upon the committal, the Court of Session assumes the
character of the Court of original jurisdiction.

96. Let us try to understand the issue that was involved in Dharam Pal (supra).
The primary issue in Dharam Pal (supra) was one regarding the power of the
Sessions Court to issue summons against the person who is not named in the
police report after commitment of case to it by the Magistrate under Section
209 of the Code. The other question that was considered in Dharam Pal
(supra) was whether under Section 209 of the Code, the Magistrate was
obliged to take cognizance of the offence before committing the case to the
Court of Sessions. This moot question was answered by the Constitution
Bench as under:
“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 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 summon 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
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.”

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97. A bare reading of the observations contained in para 39 of Dharam Pal (supra)
referred to above, gives an impression that what the Court wanted to convey
was that at the time of committal, the Magistrate does not take cognizance of
the offence and plays a very limited and passive role in committing the case
to the Court of Sessions. With all humility at our command and with due
deference if this is what was in the mind of the learned Judges then we are
afraid that is not the correct position of law. The Magistrate does take
cognizance of the offence but only for the limited purpose of committing the
case to the Court of Sessions, having regard to the nature of the offences.

98. At this stage, we may give one simple illustration as to in what circumstances,
it could be said in law that cognizance of offence can only be taken once. In
other words, if cognizance is to be taken of the offence, it could be taken either
by the Magistrate or by the Court of Sessions.

99. Take a case where a private complaint is lodged in the Court of Magistrate for
an offence which is exclusively triable by the Court of Sessions and the
Magistrate takes cognizance upon the said complaint and issues process under
Section 204 of the Code and thereafter commits the case to the Court of
Sessions, then in such circumstances, it could be said that there is no question
for the Court of Sessions once again to take cognizance of the offence.

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100. Once again at the cost of repetition, we state that the Court of Session takes
cognizance of the case or the offence as a whole and, therefore, is entitled to
summon anyone who on the materials before it appears to be involved in such
offence to stand for trial before it. It is very important and necessary to
understand that what is committed to the Court of Session by the Magistrate
is the “case” or the “offence” for trial and not the “individual offender”
thereof.

101. In view of what we have explained as aforestated, we have no hesitation in
saying that there is no merit, worth the name, in the contention of the learned
counsel appearing for the petitioner. It is absolutely incorrect on the part of
the learned counsel to assert that the petitioner could have been summoned as
an accused only during the course of trial under the provisions of Section 319
CrPC. Section 319 CrPC stands absolutely on a different footing.

102. The matter may equally be examined from one another angle. For a moment
one may leave the procedural provisions altogether apart. On larger principle,
one can see no adequate reason to fetter and shackle the power of a superior
court like that of the Court of Session from summoning a person as an
additional accused to stand trial when, on the materials before it, it is satisfied
that there exists a conclusive or, in any case, a prima facie case against him. It
is for this reason that in Raghubans Dubey's case (supra), this Court labelled
this power as being virtually coupled with the duty of summoning such an
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additional accused and such a power is part and parcel of the proceeding
initiated by taking cognizance of the offence. The glaring instances
necessitating the exercise of such power or duty would be when the
investigating agency in its report under Section 173 without any reason or
basis whatsoever exonerates a person specifically named in the first
information report and fully implicated in the crime. Indeed, such an example
is provided pertinently in the present case itself. Herein the Court of Session
has come to the categoric conclusion that the petitioner though not named at
the earliest in the FIR, yet the investigation revealed his involvement along
with the charge sheeted accused.

F. CONCLUSION
103. We summarize our final conclusion as under: -
(i) Both under Sections 209 and 193 respectively of the Code 1973
commitment is of, the “case” and not of the “accused” as distinguished
from Section193(3) and Section 207A respectively of the old Code where
commitment was of the “accused” and not the “case”. For committing a
case there must be an offence and involvement of a person who committed
the same. Even though the case is committed yet cognizance taken is of the
offence and not the offender. Once the case in respect of the offence qua
the accused, who are before the Court, is committed and cognizance is
taken, the embargo under Section 193 regarding taking cognizance only by
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committal goes. Summoning additional persons will then be regarded as
incidental to the cognizance already taken on committal and as, a part, of,
the normal process that follows. A fresh committal of such person is not
necessary.
(ii) Section 319(4)(b) enacts a deeming provision in that behalf dispensing
with the formal committal order by providing that the person added will be
deemed to have been an accused even when cognizance was taken first.
Cognizance is of the offence and not the offender and it is the duty of the
court to find out who the offenders are. Proceedings could be instituted and
cognizance taken also against persons not known at that time. This is clear
if the provisions of Section 190 of the Code are read along with the
definition of complaint in Section 2(d) which include allegations against
unknown person also. Making the unknown persons known is therefore
within the powers of the court. When such persons become known by the
evidence during inquiry or trial it is not only the right but also the duty of
court to bring them on record and proceed against them in an attempt to
bring them to justice. There cannot, therefore, be any dispute regarding the
powers of court to bring the person under Section 319(1).
(iii) Once the Court takes cognizance of the offence (not of 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
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duty to summon them to stand trial along with those already named, since
summoning them would only be part of the process of taking cognizance.

104. For all the foregoing reasons we are of the view that no error not to speak of
any error of law can be said to have been committed by the High Court in
passing the impugned order.

105. In the result, this petition fails and is hereby dismissed.

106. The trial court shall now proceed to frame charge if not yet framed and start
recording with the oral evidence of the witnesses. The trial shall be completed
within a period of six months from the date of the receipt of the writ of this
order.

107. The Registry shall circulate one copy each of this judgment to all the High
Courts.


................................ J.
(J.B. Pardiwala)



................................. J.
(R. Mahadevan)

New Delhi;
th
5 August, 2025.

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