REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.             OF 2009 (Arising out of SLP (Crl.) No.3786 of 2007)

Jaswant & Anr. … Appellants

Versus

State of Rajasthan … Respondent

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. As to whether a trial of a sessions case could have commenced and  

completed although no cognizance of it could have been taken against the  

appellants is the question that arises for consideration herein.

3. Before, however, adverting to the said question, we may notice the  

undisputed fact of the matter.   

Appellants were named in a First Information Report for commission  

of offences under Section 302, 147, 302/149, 324, 326 and 323 of the Indian  

Penal  Code.   Subsequently,  a  charge  sheet  was  submitted  on  12.2.1993  

wherein they were shown to be absconding.  It, however, stands admitted  

that the investigation against them was not completed.  Cognizance of the  

offence, however, was taken.  The case was also committed to the Court of  

Sessions  in  terms  of  Section  209  of  the  Code  of  Criminal  Procedure.  

Although no cognizance was taken as against the appellants pursuant to or in  

furtherance  of  the  charge  sheet  submitted  by  the  Investigating  Officer,  

relying on or on the basis of the order dated 28.4.1993, committing the case  

to  the  Sessions  Judge,  charges  were  framed  against  all  the  five  accused  

named in the First Information Report including the appellants.  

Appellants filed an application on or about 30.7.2002 that no charge  

be framed against them, inter alia, contending that as the court of sessions  

had  no  original  jurisdiction  to  take  cognizance  of  any  offence  for  trial  

without commitment of the case by a Magistrate in terms of Section 193 of  

the  Code  of  Criminal  Procedure,  the  purported  order  taking  cognizance  

against them was illegal.   

2

4. However,  by an order  dated 12.8.2002, the learned Sessions Judge  

rejected  the  said  application  despite  opining  stating  that  although  the  

Sessions  Court  had  no  original  jurisdiction  for  taking  cognizance  of  an  

accused  and  proceed  to  put  them  to  trial  on  the  ground  that  purported  

circumstances demand the same.  The said alleged circumstances are :

“1. On  12.2.1993,  the  police  has  filed  charge  sheet  against  the  accused persons  showing  them absconding.

2. When the court of Magistrate had committed  this case to the Sessions Court at that time  the  applicants/accused  persons  had  been  released on anticipatory bail.

3. On  22.5.1993,  the  applicants/accused  persons had been present before the court of  Additional  District  and  Sessions  Judge,  Kishangarhbas and prayed for marking their  attendance.

4. The court had not paid attention erroneously  that  supplementary  charge  sheet  was  not  produced against the accused persons.  The  accused  persons  are  also  liable  to  certain  extent for this lapse.  Because, firstly, they  had been present before the court themselves  for  marking  their  attendance.   Secondly,  they had not drawn the attention of the court  till completion of trial of the case regarding  not producing supplementary charge sheet.

5. There had been no deficiency in the case of  trial  of  the  applicants/accused  persons.  Charge had been framed against the accused  persons and evidence is recorded as per the  rules.   The  learned  advocate  has  cross-

3

examined  the  witnesses  during  evidence.  Thus, the defence of the accused persons is  not prejudiced.

6. This is correct that the court of Magistrate  has to comply with the provisions of Section  207  Criminal  Procedure  Code  before  committing the case to the Sessions Court.  Under  these  provisions,  the  copy  of  the  charge sheet is given to the defense and the  remaining provisions are procedural.  In the  present case, the copy of the charge sheet is  not given to the applicants/accused persons.  But it  is evident from the pleadings of the  defence that the copy of prosecution case is  present with them.”

It was held :

“In  the  present  case,  murder  of  two  persons  is  committed.  In such case, it shall not be justified to  close the proceedings against the accused persons  merely on the ground of a technical defect.  The  accused  persons  have  undergone  their  complete  trial.

In view of the above special circumstances, in my  opinion,  it  shall  not  be  justified  to  close  the  proceedings  against  the  applicants/accused  persons.   Whereas it  shall  be appropriate to give  directions to the prosecution for producing charge- sheet  immediately  before  the  competent  court.  The competent court is directed for committing the  supplementary charge sheet as per the rules.  It is  clarified  that  after  receipt  of  the  supplementary  charge sheet, there is no necessity of re-trial of the  applicants/accused  persons.   The  case  shall  be  decided, accepting the fact that on 22.5.1993, the  applicants/accused  persons  had  been  present  

4

before  the  court  of  Additional  District  and  Sessions Judge, Kishangarhbas after production of  the supplementary charge sheet.”

5. The revision application filed thereagainst has been dismissed by the  

High Court by reason of the impugned judgment.

6. Mr. Sushil  Kumar Jain, learned counsel appearing on behalf of the  

appellant,  would  submit  that  the  Sessions  Court  having  no  original  

jurisdiction to take cognizance of an offence having regard to the provisions  

contained in Section 193 of the Code of Criminal Procedure, the impugned  

order is wholly unsustainable.  Even the learned Chief Judicial Magistrate  

could not have taken cognizance against the appellant as in the charge sheet  

investigation had been shown to be pending against them and the appellants  

were shown to be absconding.   

The learned Sessions Judge,  in the  fact  situation obtaining therein,  

could have merely taken recourse to Section 319 of the Code of Criminal  

procedure and in that view of the matter the order dated 12.02.2008 must be  

held to be wholly illegal and without jurisdiction.

7. Mr. Prashant  Bhagwati,  learned counsel appearing on behalf of the  

respondent, on the other hand, would contend that in view of the fact that the  

cognizance is taken in respect of an offence and an order of committal is  

5

passed in relation to a case and not as against the offenders, the impugned  

judgment does not warrant any interference.

8. Before adverting to the aforementioned question, we may notice the  

relevant  provisions  of  the Code of  Criminal  Procedure,  namely,  Sections  

190, 193 and 209 thereof which read 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;

(c) upon information received from any person  other than a police officer, or upon hi s 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 hi s competence to inquire into or try.

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.

6

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.”

9. Indisputably, in the charge sheet, name of five persons, namely, (1)  

Ram Narayan; (2) Jaswant Singh; (3) Chand Singh; (4) Nahar Singh; and (5)  

Smt. Mishri Devi have been specified whereas the names of Jaswant Singh  

and Chand  Singh (appellants  herein)  were  shown as  absconders.   By  an  

order  dated  17.4.1993,  cognizance  of  the  offence  had  been  taken  only  

against Shri Ram Narayan, Mishri Devi and Nahar Singh.

7

10. Neither any order taking cognizance was passed against the appellants  

nor their names figured in the order committing the case to the Court of  

Sessions.

11. We  have  noticed  hereinbefore  the  purported  special  circumstances  

which have been enumerated by the learned Sessions Judge to arrive at the  

conclusion that the defect, if any, is merely technical one.   

The sole question, therefore, which arises for consideration is as to  

whether in the peculiar facts and circumstances of the case, the trial of the  

appellant is wholly illegal or merely irregular.

12. There cannot be any doubt or dispute whatsoever that a cognizance is  

taken of an offence and not against the offender.  

In  Raghubans  Dubey v.  State  of  Bihar [AIR  1967  SC  1167],  

whereupon reliance has been placed by Mr. Bhagwati, this Court has held as  

under :

“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  

8

proceeding initiated by his taking cognizance of an  offence.”

13. The  aforementioned  observations  evidently  had  been  made  in  the  

matter of exercise of the Court’s power under Section 251A of the Old Code  

of Criminal Procedure equivalent to Section 319 of the new Code.  The said  

observations  were  made  in  the  context  of  taking  cognizance  against  an  

additional accused who was held to be a part of the proceedings initiated by  

the  Magistrate  upon  taking  cognizance  of  an  offence  on  the  basis  of  a  

complaint petition.

14. Section 193 of the Code of Criminal Procedure, however, bars a Court  

of Sessions to take cognizance as a court of original jurisdiction although a  

Court of Magistrate has that power.   

In Raghubans Dubey (supra) cognizance was taken in terms of clause  

(a) and (c) of Section 190 of the Code whereas in this case clause (b) thereof  

is  attracted.   When  a  police  report  is  filed,  it  is  only  the  Magistrate  

concerned who is empowered to take cognizance of an offence.  A Police  

report  cannot  be said  to  have been filed before a  competent  court  when  

investigation in respect of some of the accused although named in the First  

Information Report remain pending.  Sub-section (2) of Section 173 of the  

Code subject to the provisions of sub-section (8) thereof envisages that a  

9

final report can be filed only when an investigation is completed and not  

prior thereto.

15. In  absence  of  any  power  to  take  cognizance  of  an  offence,  the  

Sessions Judge, therefore, could have taken recourse only to the provisions  

contained  in  Section  319  of  the  Code  of  Criminal  Procedure.   For  the  

purpose of attracting the said provision, keeping in view the extraordinary  

power  conferred  thereunder  upon  a  Sessions  Court,  orders  summoning  

additional  accused  could  have  been  passed  only  on  the  basis  of  some  

evidences brought before the court   during the trial.  [See  Ranjit  Singh v.  

State of Punjab [(1998) 7 SCC 149] and Guriya @ Tabassum Taquir & Ors.  

v. State of Bihar [(2007) 8 SCC 227]

16. Such a power, therefore, can be exercised only when such a case is  

made out.  Proper application of mind on the part of learned Sessions Judge  

in that behalf is imperative in character.

In  Gangula Ashok v.  State of A.P. [(2000) 2 SCC 504], this court  

held:

“10. Section 193 of the Code has to be understood  in the aforesaid backdrop.  The section imposes an  interdict  on  all  Courts  of  Session  against  taking  cognizance of any offence as  a court  of  original  jurisdiction.  It  can  take  cognizance  only  if  “the  

10

case has been committed to it by a Magistrate”, as  provided  in  the  Code.  Two segments  have  been  indicated  in  Section  193  as  exceptions  to  the  aforesaid  interdict.  One is,  when the  Code itself  has  provided  differently  in  express  language  regarding taking of cognizance, and the second is  when  any  other  law  has  provided  differently  in  express  language  regarding  taking cognizance  of  offences  under  such  law.  The  word  “expressly”  which is employed in Section 193 denoting those  exceptions is indicative of the legislative mandate  that  a  Court  of  Session  can  depart  from  the  interdict  contained  in  the  section  only  if  it  is  provided  differently  in  clear  and  unambiguous  terms. In other words, unless it  is positively and  specifically  provided  differently  no  Court  of  Session  can  take  cognizance  of  any  offence  directly, without the case being committed to it by  a Magistrate.

11. Neither in the Code nor in the Act is there any  provision whatsoever, not even by implication, that  the specified Court of Session (Special Court) can  take cognizance of the offence under the Act as a  court of original jurisdiction without the case being  committed to it by a Magistrate. If that be so, there  is  no  reason  to  think  that  the  charge-sheet  or  a  complaint can straight away be filed before such  Special Court for offences under the Act. It can be  discerned from the hierarchical settings of criminal  courts that the Court of Session is given a superior  and  special  status.  Hence  we  think  that  the  legislature  would  have  thoughtfully  relieved  the  Court of Session from the work of performing all  the preliminary formalities which Magistrates have  to do until the case is committed to the Court of  Session.”

11

17. The learned Sessions Judge appears to have issued a direction that the  

charge  sheet  be  filed  before  a  competent  court.   Even  such  a  direction,  

indisputably, is illegal.  A court of sessions, apart from the legal hurdle that  

it  cannot  take  cognizance  of  an  offence  in  exercise  of  its  original  

jurisdiction, even otherwise was not empowered to direct the investigating  

officer to submit a charge sheet.

18. The  power  to  take  cognizance  of  an  offence  vested  in  a  court  is  

circumscribed by the provisions contained in Section 190 of the Code of  

Criminal  Procedure.   It  could  have  exercised  its  power  only  upon  its  

satisfaction that one or the other clause contained therein is attracted.  In a  

case of this nature, admittedly, the power to take cognizance emanates from  

clause (b) of sub-section (1) of Section 190.

19. We have noticed hereinbefore that investigation against the appellants  

was pending.  It was not completed.  If it was not completed, the statutory  

requirements  contained in  sub-section (2)  of  Section 173 of  the  Code of  

Criminal Procedure were not satisfied.  It is not a case where the court could  

have taken cognizance of the offence in exercise of its power under clauses  

(a) and (c) of Section 190 of the Code.  We, therefore, have to proceed on  

the basis that no charge-sheet was filed against the appellants.  Even if a  

final form was filed, the court had three options as has been noticed by this  

12

Court in  Abhinandan Jha & Ors. v.  Dinesh Mishra [(1967) 3 SCR 668] as  

under :

“We  have  to  approach  the  question,  arising  for  consideration  in  this  case,  in  the  light  of  the  circumstances pointed out above. We have already  referred to the scheme of Chapter XIV, as well as  the  observations  of  this  Court  in  Rishbud  and  Inder Singh case that the formation of the opinion  as to whether or not there is  a case to place the  accused on trial before a Magistrate, is left to the  officer in-charge of the police station. There is no  express power, so far as we can see, which gives  jurisdiction  to  pass  an order  of  the  nature  under  attack nor can any such powers be implied. There  is  certainly  no  obligation,  on  the  Magistrate,  to  accept  the  report,  if  he  does  not  agree  with  the  opinion  formed  by  the  police.  Under  those  circumstances, if he still suspects that an offence  has been committed, he is entitled, notwithstanding  the opinion of the police, to take cognizance, under  Section 190(1)(c) of the Code. That provision, in  our opinion,  is  obviously intended to secure that  offences may not go unpunished and justice may  be  invoked  even  where  persons  individually  aggrieved are unwilling or unable to prosecute, or  the  police,  either  wantonly  or  through bona fide  error, fail to submit a report, setting out the facts  constituting  the  offence.  Therefore,  a  very  wide  power  is  conferred  on  the  Magistrate  to  take  cognizance  of  an  offence,  not  only  when  he  receives information about the commission of an  offence from a third person, but also where he has  knowledge or even suspicion that the offence has  been  committed.  It  is  open  to  the  Magistrate  to  take  cognizance  of  the  offence,  under  Section  190(1)(c),  on  the  ground  that,  after  having  due  regard  to  the  final  report  and the  police  records  placed before him, he has reason to suspect that an  

13

offence  has  been  committed.  Therefore,  these  circumstances will also clearly negative the power  of a Magistrate to call for a charge-sheet from the  police,  when they  have  submitted  a  final  report.  The  entire  scheme  of  Chapter  XIV  clearly  indicates that the formation of the opinion, as to  whether or not there is a case to place the accused  for  trial,  is  that  of  the  officer  in-charge  of  the  police station and that opinion determines whether  the  report  is  to  be  under  Section  170,  being  a  ‘charge-  sheet’,  or  under  Section  169,  ‘a  final  report’. It is no doubt open to the Magistrate, as we  have  already  pointed  out,  to  accept  or  disagree  with the opinion of the police and, if he disagrees,  he  is  entitled  to  adopt  any  one  of  the  courses  indicated by us. But he cannot direct the police to  submit a charge-sheet, because, the submission of  the report depends upon the opinion formed by the  police, and not on the opinion of the Magistrate.  The Magistrate cannot compel the police to form a  particular  opinion,  on  the  investigation,  and  to  submit  a report,  according to such opinion.  That  will  be  really  encroaching  on  the  sphere  of  the  police  and  compelling  the  police  to  form  an  opinion so as to accord with the decision of  the  Magistrate and send a report either under Section  169,  or  under  Section  170,  depending  upon  the  nature of the decision.  Such a function has been  left to the police under the Code.”

20. The power of an investigating officer to complete the investigation is  

a  statutory  power.   The  learned  Magistrate  may  have  a  duty  that  a  fair  

investigation is conducted as has been observed (correctness whereof may  

be open to question) in Sakiri Vasu v. State of Uttar Pradesh & Ors. [(2008  

(2) SCC 409].

14

But even then, the learned Magistrate would not have any jurisdiction  

to direct the investigating Officer to file a charge-sheet.  This legal position  

is categorically stated in Emperor v. Nazir Ahmad [AIR 1945 PC 18].   

Yet again in R.N. Chatterjee v. Havildar Kner Singh [(1970) (1) SCC  

496, this Court held :

“11. It  has been emphasised in several  decisions  that it is of the utmost importance that the judiciary  should  not  interfere  with  the  police  in  matters  which are within their province and into which the  law  imposes  on  them the  duty  of  enquiry.  (See  Emperor v. Nazi Ahmed).”

In M.C. Abraham v. State of Maharashtra [(2003) 2 SCC 649], it was  

held :

“17. The principle, therefore, is well settled that it  is for the investigating agency to submit a report to  the  Magistrate  after  full  and  complete  investigation.  The  investigating  agency  may  submit  a  report  finding  the  allegations  substantiated.  It  is  also open to  the  investigating  agency to submit  a report  finding no material  to  support  the  allegations  made  in  the  first  information  report.  It  is  open  to  the  Magistrate  concerned to accept the report or to order further  enquiry.  But  what  is  clear  is  that  the  Magistrate  cannot direct the investigating agency to submit a  report that is in accord with his views. Even in a  case  where  a  report  is  submitted  by  the  investigating agency finding that no case is made  out for prosecution, it is open to the Magistrate to  

15

disagree  with  the  report  and to  take  cognizance,  but what he cannot do is to direct the investigating  agency  to  submit  a  report  to  the  effect  that  the  allegations  have  been  supported  by  the  material  collected during the course of investigation.”

In  Kishun  Singh v.  State  of  Bihar [(1993)  2  SCC 16],  this  Court  

observed :

“Thus,  on  a  plain  reading  of  Section  193,  as  it  presently stands once the case is committed to the  Court of Session by a Magistrate under the Code,  the restriction placed on the power of the Court of  Session to take cognizance of an offence as a court  of  original  jurisdiction  gets  lifted.  On  the  Magistrate committing the case under Section 209  to the Court of Session the bar of Section 193 is  lifted  thereby  investing  the  Court  of  Session  complete and unfettered jurisdiction of the court of  original  jurisdiction  to  take  cognizance  of  the  offence  which  would  include  the  summoning  of  the  person  or  persons  whose  complicity  in  the  commission  of  the  crime  can  prima  facie  be  gathered from the material available on record.””

The above decision was followed by this Court in  Nisar & Anr. v.  

State of U.P. [(1995) 2 SCC 23] on which strong reliance has been placed by  

Mr. Bhagwati.  In that case itself, it was held :

“8.  As  regards  the  second  contention  of  the  appellants it must be said that in view of the plain  and unambiguous language of Section 319 of the  Code,  the  earlier  quoted  reason  which  weighed  with the High Court in sustaining the order of the  

16

learned  Judge  is  patently  incorrect.  The  power  under  Section  319(1)  can  be  exercised  only  in  those  cases  where  involvement  of  persons  other  than those arraigned in the charge-sheet comes to  light in the course of evidence recorded during the  enquiry or trial. As that stage has not yet reached  the  appellants  could  not  have  been  summoned  invoking Section 319 of the Code.”

Nisar (supra) also is not applicable in the instant case in view of the  

fact that the learned Sessions Judge even did not exercise the said power.  As  

indicated hereinbefore, it directed the investigating officer to file a charge-

sheet which is against law.

21. We may furthermore notice that the question as to whether  Kishun  

Singh has been correctly decided or not, having regard to the decision in  

Dharam Pal & Ors. State of Haryana & Anr. [(2004) 13 SCC 9] is pending  

consideration before a Constitution Bench of this Court.

22. Despite  the  same,  we  have  proceeded  to  dispose  of  the  matter,  

assuming  that  the  decision  rendered  by  this  Court  in  Kishun  Singh as  

correct.  So long as the investigation is not completed or evidences are not  

brought on record, the learned Sessions Judge could not have exercised his  

jurisdiction  either  under  Section  193  of  the  Code  of  Civil  Procedure  or  

Section  319  of  the  Code  of  Criminal  Procedure.   The  impugned  order  

framing  charges  against  the  appellants  for  the  reasons  mentioned  

17

hereinbefore, therefore, is liable to be set aside.  We direct accordingly.  We,  

however, keeping in view the fact that the appellants have already appeared  

and are no longer absconding, direct  the investigating officer to submit  a  

final form on the basis of the materials collected during investigation.

23. We may, having regard to the peculiar facts and circumstances of this  

case, would also observe that learned Sessions Judge, if it may so desire,  

may exercise  his jurisdiction under Section 319 of  the Code of  Criminal  

Procedure  so  far  as  the  appellants  are  concerned  in  which  event,  the  

procedure laid down therein must be resorted to.

24. The  appeal  is  allowed  with  the  aforementioned  observations  and  

direction. No costs.

...………………………J. [S.B. Sinha]

...………………………J. [Cyriac Joseph]

New Delhi; May 13, 2009

18