& Anr Vs. State of U.P  INSC 567 (9 November 1994)
M.K. (J) Mukherjee M.K. (J) Anand, A.S. (J) M.K. Mukherjee, J.:
1995 SCC (2) 23 JT 1995 (1) 135 1994 SCALE (4)890
Special leave granted.
appellant No. 1 is the brotherin-law of Shakvin who met with an unnatural death
in her matrimonial home on June 22, 1991.
The appellant No. 2 is his wife. On the following day i.e. on June 23, 1991 Noor
Mohammad, father of the deceased, lodged a First Information Report alleging
that her husband, grand mother-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 grand mother-in-law. In due course the case
was committed to the Court of Session by the Chief Judicial Magistrate, Oral
('Magistrate' for short) in accordance with section 209 of the Criminal
Procedure Code ('Code' for short).
When the matter came up for hearing before an Additional Session Judge of Oral,
an application was moved on behalf of Noor Mohammad alleging that though during
investigation sufficient material: 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 agains
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 no summon them in exercise
of power under section 193 of the Code.
After 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 137 case was made out against
them and section 193 of the Code empowered him to summon them.
Aggrieved 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 Cr.P.C. and not 319 Cr.P.C. which could not be
exercised as no evidence has yet let in the case.
opinion, the submission is not correct.
Section 3 19 Cr.P.C. 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." 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 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 appellants we may mention that this Court has
in Kishan Singh v. State of Bihar 1993 (2) SCC 16 categorically rejected a
similar contention with the following observations:
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
Since we are in respectful agree- 138 ment with the principle so laid down the
contention of the appellants in this regard must be rejected. The appeal is,