Dharam pal vs state of haryana : constitution bench Supreme Court 2013

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 148 of 2003

DHARAM PAL & ORS. … APPELLANTS
VS.

2 STATE OF HARYANA & ANR. …
RESPONDENTS
WITH

CRIMINAL APPEAL NOS. 865 of 2004, 1334 of 2005 and 537 of 2006

J U D G M E N T

ALTAMAS KABIR, CJI.

1. This matter was initially directed to be heard by a Bench of Three-
Judges in view of the conflict of opinion in the decisions of two Two-Judge
Benches, in the cases of Kishori Singh and Others Vs. State of Bihar and
Others [(2004) 13 SCC 11]; Rajender Prasad Vs. Bashir and Others [(2001) 8
SCC 522] and SWIL Limited Vs. State of Delhi and Others [(2001) 6 SCC 670].
When the matter was taken up for consideration by the Three-Judge Bench on
1st September, 2004, it was brought to the notice of the court that two
other decisions had a direct bearing on the question sought to be
determined. The first is the case of Kishun Singh Vs. State of Bihar
[(1993) 2 SCC 16], and the other is a decision of a Three-Judge Bench in
the case of Ranjit Singh Vs. State of Punjab [(1998) 7 SCC 149]. Ranjit
Singh’s case disapproved the observations made in Kishun Singh’s case,
which was to the effect that the Session Court has power under Section 193
of the Code of Criminal Procedure, 1973, hereinafter referred to as “the
Code”, to take cognizance of an offence and summon other persons whose
complicity in the commission of the trial could prima facie be gathered
from the materials available on record. According to the decision in
Kishun Singh’s case (supra), the Session Court has such power under Section
193 of the Code. On the other hand, in Ranjit Singh’s case (supra), it was
held that from the stage of committal till the Session Court reached the
stage indicated in Section 230 of the Code, that Court could deal only with
the accused referred to in Section 209 of the Code and there is no
intermediary stage till then enabling the Session Court to add any other
person to the array of the accused.

2. The Three-Judge Bench took note of the fact that the effect of such
a conclusion is that the accused named in column 2 of the charge-sheet and
not put up for trial could not be tried by exercise of power by the Session
Judge under Section 193 read with Section 228 of the Code. In other words,
even when the Session Court applied its mind at the time of framing of
charge and came to the conclusion from the materials available on record
that, in fact, an offence is made out against even those who are shown in
column 2, it has no power to proceed against them and has to wait till the
stage under Section 319 of the Code is reached to include such persons as
accused in the trial if from the evidence adduced, their complicity was
also established. The further effect as noted by the Three-Judge Bench was
that in less serious offences triable by the Magistrate, he would have the
power to proceed against those mentioned in column 2, in case he disagreed
with the police report, but in regard to serious offences triable by the
Court of Session, the Court could have to wait till the stage of Section
319 of the Code was reached. The Three-Judge Bench disagreed with the
views expressed in Ranjit Singh’s case, but since the contrary view
expressed in Ranjit Singh’s case had been taken by a Three-Judge Bench, the
Three-Judge Bench hearing this matter, by its order dated 20th January,
2005, directed the matter to be placed before the Chief Justice for placing
the same before a larger Bench.

3. In view of the above, the matter has been placed before the
Constitution Bench for consideration.

4. The questions which require the consideration of the Constitution
Bench are as follows:
i) 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?
ii) 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?
iii) Having decided to issue summons against the Appellants, was the
Magistrate required to follow the procedure of a complaint case
and to take evidence before committing them to the Court of
Session to stand trial or whether he was justified in issuing
summons against them without following such procedure?
iv) Can the Session Judge issue summons under Section 193 Cr.P.C. as
a Court of original jurisdiction?
v) Upon the case being committed to the Court of Session, could the
Session Judge issue summons separately under Section 193 of the
Code or would he have to wait till the stage under Section 319
of the Code was reached in order to take recourse thereto?
vi) Was Ranjit Singh’s case (supra), which set aside the decision in
Kishun Singh’s case(supra), rightly decided or not?

5. The facts which led to the order of the learned Magistrate, which
was subsequently challenged in Revision before the Session Judge and the
High Court are that except for one Nafe Singh, who was shown as an accused,
the Appellants Dharam Pal and others were included in column 2 of the
police report, despite the fact that they too had been named as accused in
the First Information Report. After going through the police report, the
learned Judicial Magistrate First Class, Hansi, summoned the Appellant and
three others, who were not included as accused in the charge-sheet for the
purpose of facing trial along with Nafe Singh. The learned Magistrate
purported to act in exercise of his powers under Section 190 of the Code,
but without taking recourse to the other provisions indicated in Sections
200 and 202 of the Code, before proceeding to issue summons under Section
204 of the Code.
6. The order of the learned Magistrate was questioned by way of
Revision before the Additional Session Judge, Hisar, in Criminal Revision
No. 27 of 2000, who upheld the order of the learned Magistrate and
dismissed the Revision. The order of the learned Session Judge was,
thereafter, challenged before the High Court, which also upheld the views
expressed by the learned Magistrate as well as the Session Judge, and
dismissed the Appellants’ application under Section 482 of the Code for
quashing the order dated 25th March, 2002, passed by the Additional Session
Judge, Hisar, affirming the order dated 21st July, 2000, of the Judicial
Magistrate First Class, Hansi, passed on an application filed under Section
190 of the Code for summoning the Appellants in connection with FIR No. 272
dated 13th October, 1999, registered under Sections 307 and 323 read with
Section 34 of the Indian Penal Code, with Narnaund Police Station.

7. Appearing for the Appellants in Criminal Appeal No. 148 of 2003,
filed by Dharam Pal and Others, Mr. Brijender Chahar, learned Senior
Advocate, submitted that the learned Session Judge and the High Court erred
in holding that the Committing Magistrate was competent to entertain a
protest petition in order to summon the Appellants who had not been shown
as accused in the charge-sheet. Mr. Chahar contended that in fact the
Magistrate under the garb of a protest petition had usurped the powers of
the Session Judge under Section 319 of the Code in a case triable
exclusively by the Court of Session. Mr. Chahar urged that once a police
report was filed before a Magistrate, which disclosed that an offence had
been committed, which was exclusively triable by Court of Session, the
Magistrate had no other function but to commit the same to the Court of
Session, even if on looking into the police report, he was convinced that
the others mentioned in column 2 of the police report were also required to
be sent up for trial. Mr. Chahar submitted that the Magistrate had
exceeded his jurisdiction and both the Session Judge and the High Court had
misconstrued the provisions of Sections 190, 193 and 209 of the Code, in
upholding the order of the learned Magistrate. In this regard, Mr. Chahar
brought into focus the provisions of the 1898 Code of Criminal Procedure
and the corresponding provisions in the present Code, which replaced the
1898 Code. Learned counsel pointed out that in Section 207A of the 1898
Code, the Magistrate was mandatorily required to hold a mini-trial before
committing the case to the Court of Session, whereas under Section 190 of
the Code of 1973, the Magistrate, having jurisdiction, may take cognizance
of any offence:
a) Upon receiving a complaint of facts, which constitute such offence;
b) Upon a police report of such facts;
c) Upon information received from any person other than a police
report, or upon his own knowledge, that such offence has been
committed.

8. Mr. Chahar submitted that the difference in the two provisions was
intentional and had been made in order to shorten the proceedings before
the Magistrate. Learned counsel submitted that, in terms of the old Code,
two stages of trial were contemplated which were eliminated by the amended
provisions of the Code of 1973. In such circumstances, the view expressed
in Ranjit Singh’s case appeared to be correct as against the decision in
Kishun Singh’s case, wherein it was held that the Session Court had power
under Section 193 of the Code to take cognizance of the offence and summon
other persons, whose complicity in the commission of the offence could
prima facie be gathered from the materials available on record.

9. The submissions made in the above Appeal were also reiterated in
Criminal Appeal No. 865 of 2004, filed by Naushad Ali, as the point
involved in the said appeal is more or less the same as in the appeal filed
by Dharam Pal and others.

10. Mr. Amarendra Sharan, learned Senior Advocate, appearing for the
Appellant in Criminal Appeal No. 1334 of 2005, took an additional ground
that the order of the learned Magistrate, as upheld by the superior Courts,
was in violation of the provisions of Article 21 of the Constitution,
inasmuch as, the learned Magistrate issued summons to those included in
column 2, without following the procedure indicated in Sections 190, 200,
202 and thereafter 204 of the Code. Mr. Sharan submitted that when the
Magistrate decided to take cognizance on the basis of the protest petition
filed in regard to the charge-sheet filed by the investigating authorities,
he ought to have taken recourse to the provisions relating to taking
cognizance on the basis of a complaint within the meaning of Section
190(1)(a) of the aforesaid Code. Not having done so, the order directing
summons to issue against the Appellants was in violation of the provisions
of Article 21 of the Constitution and was, therefore, liable to be set
aside.

11. Appearing for the Appellants in Criminal Appeal No. 148 of 2003 and
Criminal M.P. No. 12963 of 2013, Mr. Siddhartha Dave, learned Advocate,
submitted that in order to appreciate the order of the Magistrate issuing
summons in a Session triable case, it would be necessary to go back to the
source of power of the Magistrate in issuing summons to the Appellants
under Section 204 of the Code. Mr. Dave urged that the source of power of
the Magistrate to issue such summons could only be traced back to Section
190(1)(b) of the Code, which provides as follows:

“190.Cognizance of offences by Magistrates.-
(1) Subject to the provisions of this Chapter, any Magistrate of
the first class, and any Magistrate of the second class
specially empowered in this behalf under sub-section (2), may
take cognizance of any offence –
(a) upon receiving a complaint of facts which constitute
such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such
offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of
the second class to take cognizance under sub-section (1) of
such offences as are within his competence to inquire into or
try.”
12. Mr. Dave submitted that it is only upon receipt of a police report
and the objection thereto that the Magistrate may issue summons to the
Appellants under Section 204 of the Code, without taking any further
recourse to the other provisions relating to cognizance of offences on a
complaint petition. Mr. Dave submitted that after taking cognizance upon a
police report under Section 190(1)(b), the next stage would be issuance of
summons under Section 204 of the Code and there are no intervening stages
in the matter. Accordingly, the only course available to the Committing
Magistrate, on receipt of a police report under Section 173(3) of the Code,
in a Session triable case, would be to commit the case to the Court of
Session, which could, thereafter, take recourse to Section 319 of the Code,
since it did not have any other power to summon any other person named in
column 2 of the charge-sheet, without receiving fresh evidence against
them. Mr. Dave submitted that the cognizance referred to in Section 193 of
the Code would be not of the offence in respect of which cognizance had
already been taken by the Magistrate, but cognizance of the commitment of
the case to the Court of Session for trial.

13. Mr. Dave submitted that having regard to the provisions of Section 204
of the Code, where some amount of application of mind was required by the
learned Magistrate, the necessity of applying his mind by holding an
independent inquiry was minimal. It was urged that since the Magistrate
had no power to proceed to Section 190 of the Code, the matter has to be
committed to the Session Court, without any choice being left to the
learned Magistrate to take recourse to any other course of action. In
support of his submissions, Mr. Dave referred to the decision of this Court
in Rashmi Kumar Vs. Mahesh Kumar Bhada [(1997) 2 SCC 397], wherein the
question of the court’s powers at the stage of taking cognizance of an
offence under Sections 190, 200 and 202 of the Code fell for consideration
and it was held that at the stage of taking cognizance of an offence, the
court should consider only the averments made in the complaint as the court
is not required to sift or appreciate any evidence at that stage.

14. Mr. Dave also referred to the decision of this Court in Indian
Carat Pvt. Ltd. Vs. State of Karnataka and Another [(1989) 2 SCC 132],
wherein this Court has held that despite a police report that no case had
been made out against an accused, the Magistrate could take cognizance of
the offence under Section 190(1)(b), taking into account the statement of
witnesses made under police investigation and issue process. Reference was
also made to the decision of this Court in Abhinandan Jha Vs. Dinesh Mishra
[(1967) 3 SCR 668], in which the same view had been expressed. In the said
case, it was held that the Magistrate had no power to direct the police to
submit a charge-sheet, when the police, after investigation into a
cognizable offence, had submitted a report of the action taken under
Section 169 of the 1898 Code that there was no case made out for sending of
the accused for trial.

15. Mr. Dave also referred to the decision of this Court in Raj Kishore
Prasad Vs. State of Bihar and Another [(1996) 4 SCC 495], in which it was
also held that while committing a case under Section 209 of the Code, the
Magistrate had no jurisdiction to associate any other person as accused in
exercise of powers under Section 319 of the Code or under any other
provision. It was further observed that a proceeding under Section 209 of
the Code before a Magistrate is not an inquiry and material before him is
not evidence. It is only upon committal can the Court of Session exercise
jurisdiction under Section 319 of the Code and add a new accused, on the
basis of evidence recorded by it. Mr. Dave also urged that in the decision
of this Court in SWIL Limited (supra), which was one of the cases brought
to the notice of the Referring Court, it was held that a person not
mentioned as accused in the charge-sheet could also be summoned by the
Magistrate after taking cognizance of the offence, if some material was
found against him, having regard to the FIR, his statement recorded by the
police and other documents. It was also held that Section 319 of the Code
did not operate in such a situation. Mr. Dave submitted that the aforesaid
decision had not taken note of the decision in Raj Kishore Prasad’s case
(supra), wherein just the contrary view had been taken and was, therefore,
per incuriam. Mr. Dave submitted that the entire exercise undertaken by
the Magistrate was contrary to the provisions of law and orders summoning
the Appellants as accused in these cases, were, therefore, liable to be
quashed.

16. On behalf of the State, it was sought to be urged by Mr. Rajeev
Gaur ‘Naseem’, learned AAG, that under Section 193 of the Code, the Session
Court was entitled to take cognizance and issue summons. Contrary to what
had been indicated by the Referring Court, Mr. Gaur urged that the law had
been correctly stated in Kishun Singh’s case (supra) and the Session Court,
after receiving the case for commitment, was entitled under Section 193 of
the Code to take cognizance and issue summons to those not named as accused
in the charge-sheet.

17. Mr. Gopal Singh, learned Standing Counsel for the State of Bihar,
appearing in three of the matters, submitted that the question has been
considered in the case of Kishori Singh (supra), in which the view
expressed in Ranjit Singh’s case (supra) was followed and it was held that
under the scheme of the Code, in a case where the offence is triable solely
by the Court of Session, when the police files a charge-sheet and arrays
some only as accused persons, though many more might have been named in the
FIR, the Magistrate or even the Session Judge would have no jurisdiction to
array them as accused persons at a stage prior to Section 319 of the Code,
when some evidence or materials were collected during the trial.
18. In the last of several matters heard by this Court, namely,
Criminal Appeal No. 1334 of 2005, filed by one Chandrika Prasad Yadav
against the State of Bihar, Mr. K.K. Tyagi, learned counsel, appearing for
the Respondent No. 2 – complainant, contended that the Magistrate had
sufficient powers to issue process against those persons who had not been
shown as accused, but had been included in column 2 of the charge-sheet,
even after cognizance was taken. He referred to various decisions, which
had already been referred to by the other counsel.

19. Even in Criminal Appeal No. 865 of 2004, Mr. Shishir Pinaki,
learned Advocate appearing for Respondent No. 2 (complainant), urged that
the Magistrate has been vested with control over the proceedings under
Article 20 of the Constitution and hence it was within his powers to issue
summons under Section 204 of the Code, even if he disagreed with the police
report filed under Section 173(3) of the Code, without taking recourse to
the provisions of Section 202, before proceeding to issue process under
Section 204 of the Code.

20. The issue in the Reference being with regard to the powers of the
Magistrate to whom a report is submitted by the police authorities under
Section 173(3) of the Code, it is necessary for us to examine the scheme of
Chapter XIV of the Code, dealing with the conditions requisite for
initiation of proceedings.

21. Section 190, which has been extracted hereinbefore, empowers any
Magistrate of the First Class or the Second Class specially empowered in
this behalf under Sub-section (2) to take cognizance of any offence in
three contingencies. In the instant case, we are concerned with the
provisions of Section 190(1)(b) since a police report has been submitted by
the police, under Section 173(3) of the Code sending up one accused for
trial, while including the names of the other accused in column 2 of the
report. The facts as revealed from the materials on record and the oral
submissions made on behalf of the respective parties indicate that, on
receiving such police report, the learned Magistrate did not straight away
proceed to commit the case to the Court of Session but, on an objection
taken on behalf of the complainant, treated as a protest petition, issued
summons to those accused who had been named in column 2 of the charge-
sheet, without holding any further inquiry, as contemplated under Sections
190, 200 or even 202 of the Code, but proceeded to issue summons on the
basis of the police report only. The learned Magistrate did not accept the
Final Report filed by the Investigating Officer against the accused, whose
names were included in column 2, as he was convinced that a prima facie
case to go to trial had been made out against them as well, and issued
summons to them to stand trial with the other accused, Nafe Singh. The
questions which have arisen from the procedure adopted by the learned
Magistrate in summoning the Appellants to stand trial along with Nafe
Singh, have already been set out hereinbefore in paragraph 4 of this
judgment.

22. 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 of Session, the Magistrate
had 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 Session Judge, till
the Section 319 stage was reached in the trial. Furthermore, in the event,
the Session 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.

23. The view expressed in Kishun Singh’s case, in our view, is more
acceptable since, as has been held by this Court in the cases referred to
hereinbefore, the Magistrate has ample powers to disagree with the Final
Report that may be filed by the police authorities under Section 173(3) of
the Code and to proceed against the accused persons dehors the police
report, which power the Session Court does not have till the Section 319
stage is reached. The upshot of the said situation would be that even
though the Magistrate had powers to disagree with the police report filed
under Section 173(3) of the Code, he was helpless in taking recourse to
such a course of action while the Session Judge was also unable to proceed
against any person, other than the accused sent up for trial, till such
time evidence had been adduced and the witnesses had been cross-examined on
behalf of the accused.

24. In our view, the Magistrate has a role to play while committing the
case to the Court of Session upon taking cognizance on the police report
submitted before him under Section 173(3) Cr.P.C. 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 no.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.

25. This brings us to the third question as to the procedure to be
followed by the Magistrate if he was satisfied that a prima facie case had
been made out to go to trial despite the final report submitted by the
police. In such an event, if the Magistrate decided 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 was found to be triable by the Session Court.

26. Questions 4, 5 and 6 are more or less inter-linked. The answer to
question 4 must be in the affirmative, namely, that the Session Judge was
entitled to issue summons under Section 193 Cr.P.C. upon the case being
committed to him by the learned Magistrate. Section 193 of the Code speaks
of cognizance of offences by Court of Session and provides as follows :-
“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 the case has been
committed to it by a Magistrate under this Code.”
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 above
provision entails that a case must, first of all, be committed to the Court
of Session by the Magistrate. The second condition is that only after the
case had been committed to it, could the Court of Session take cognizance
of the offence exercising original jurisdiction. Although, an attempt has
been made by Mr. Dave to suggest that the cognizance indicated in Section
193 deals not with cognizance of an offence, but of the commitment order
passed by the learned Magistrate, we are not inclined to accept such a
submission in the clear wordings of Section 193 that the Court of Session
may take cognizance of the offences under the said Section.

27. This takes us to the next question as to whether under Section 209,
the Magistrate was required to take cognizance of the offence before
committing the case to the Court of Session. It is well settled that
cognizance of an offence can only be taken once. In the event, a
Magistrate takes cognizance of the offence and then commits the case to the
Court of Session, the question of taking fresh cognizance of the offence
and, thereafter, proceed to issue summons, is not in accordance with law.
If cognizance is to be taken of the offence, it could be taken either by
the Magistrate or by the Court of Session. The language of Section 193 of
the Code very clearly indicates that once the case is committed to the
Court of Session by the learned Magistrate, the Court of Session assumes
original jurisdiction and all that goes with the 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 by any question of
part cognizance being taken by the Magistrate and part cognizance being
taken by the learned Session Judge.
28. In that view of the matter, we have no hesitation in agreeing with
the views expressed in Kishun Singh’s case (supra) that the Session Courts
has jurisdiction on committal of a case to it, to take cognizance of the
offences of the persons not named as offenders but whose complicity in the
case would be evident from the materials available on record. Hence, even
without recording evidence, upon committal under Section 209, the Session
Judge may summon those persons shown in column 2 of the police report to
stand trial along with those already named therein.

29. We are also unable to accept Mr. Dave’s submission that the Session
Court would have no alternative, but to wait till the stage under Section
319 Cr.P.C. was reached, before proceeding against the persons against whom
a prima facie case was made out from the materials contained in the case
papers sent by the learned Magistrate while committing the case to the
Court of Session.
30. The Reference to the effect as to whether the decision in Ranjit
Singh’s case (supra) was correct or not in Kishun Singh’s case (supra), is
answered by holding that the decision in Kishun Singh’s case was the
correct decision and the learned Session Judge, acting as a Court of
original jurisdiction, could issue summons under Section 193 on the basis
of the records transmitted to him as a result of the committal order passed
by the learned Magistrate.

31. Consequent upon our aforesaid decision, the view taken by the
Referring Court is accepted and it is held that the decision in the case of
Kishun Singh vs. State of Bihar and not the decision in Ranjit Singh Vs.
State of Punjab lays down the law correctly in respect of the powers of the
Session Court after committal of the case to it by the learned Magistrate
under Section 209 Cr.P.C.
32. The matter is remitted to the Three-Judge Bench to dispose of the
pending Criminal Appeals in accordance with the views expressed by us in
this judgment.

…………………………………………………CJI.

(ALTAMAS KABIR)

……………………………………………………J
(SURINDER SINGH NIJJAR)
……………………………………………………J.

(RANJAN GOGOI)
……………………………………………………J.

(M.Y. EQBAL)
……………………………………………………J.

(VIKRAMAJIT SEN)

New Delhi
Dated: July 18,2013.