& Anr Vs. State of U.P  INSC 570 (9 November 1994)
M.K. (J) Mukherjee M.K. (J) Anand, A.S. (J)
1995 SCC (2) 23 JT 1995 (1) 135 1994 SCALE (4)890
Judgment of the Court was delivered by M.K. MUKHERJEE, J.- Special leave
1 is the brother-in-law of Shakyin who met with an unnatural death in her
matrimonial home on 22-6-1991.
2 is his wife. On the following day i.e. on 23-6- 1991 Noor Mohammad, father of
the deceased, lodged a first information report alleging that her husband,
grandmother-in-law and the two appellants were responsible for her death. On
that information a case was registered under Sections 304-B and 306 of the
Indian Penal Code ('IPC' for short) against all of them and on completion of
investigation the police submitted charge-sheet under Section 306 IPC only
against the deceased's husband and grandmother-in-law. In due course the case
was committed to the Court of Session by the Chief Judicial Magistrate, Orai
('Magistrate' for short) in accordance with Section 209 of the Criminal
Procedure Code ('Code' for short).
the matter came up for hearing before an Additional Sessions Judge of Orai, an
application was moved on behalf of Noor Mohammad alleging that though during
investigation sufficient materials were furnished to prove that the two
appellants had also demanded a scooter as dowry and physically tortured and
ill-treated the deceased the investigating agency did not submit charge-sheet
against them and praying for invoking the provisions of Section 193 of the Code
to summon them. The application was opposed on behalf of the appellants on the
ground that in absence of any order of their committal in accordance with
Section 209 of the Code the Court of Session could not summon them in exercise
of power under Section 193 of the Code.
hearing the parties and going through the statements recorded under Section 161
of the Code the learned Judge summoned the two appellants as, according to the
learned Judge, a prima facie case was made out against them and Section 193 of
the Code empowered him to summon them.
by the above order the appellants moved the High Court in revision which was
rejected with the following order:
counsel for the applicants has submitted that the learned Judge has exercised
his power under Section 193 CrPC and not under Section 319 CrPC which could not
be exercised as no evidence has yet led in the case.
opinion, the submission is not correct.
Section 319 CrPC even on the basis of existing material person appearing to be
guilty may be summoned. The learned Sessions Judge has perused the material and
has found that there are allegations against the applicants. Merely because
Section 193 has been mentioned by the court below, it will not invalidate the
order." 6. Hence this appeal.
was submitted on behalf of the appellants that neither the provisions of
Section 193 nor those of 319 of the Code empowered the Court of Session 25 to
pass the impugned order. According to the learned counsel for the appellants in
absence of any order committing the appellants to the Court of Session, the
learned Judge could not have issued process against the appellants to stand
trial by invoking Section 193 of the Code. The learned counsel next submitted
that having regard to the fact that Section 319 of the Code could be invoked
only at a stage when evidence was led, the High Court was not justified in
upholding the order of the learned Judge relying upon the said section, as
admittedly that stage was yet to be reached.
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
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.
regards the other contention of the appellants we may mention that this Court
has in Kishun Singh v. State of Bihar1 categorically rejected a similar
contention with the following observations: (SCC p. 30, para 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 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." 10.Since we are in respectful agreement
with the principle so laid down, the contention of the appellants in this
regard must be rejected. The appeal is, therefore, dismissed.