Jaswant & ANR. Vs.
State of Rajasthan  INSC 1048 (13 May 2009)
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
S.B. Sinha, J.
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.
however, adverting to the said question, we may notice the undisputed fact of
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
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.
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 :
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
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- 4 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.
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
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 5 before the court of Additional District and Sessions Judge,
Kishangarhbas after production of the supplementary charge sheet."
revision application filed thereagainst has been dismissed by the High Court by
reason of the impugned judgment.
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
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
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 6 passed in
relation to a case and not as against the offenders, the impugned judgment does
not warrant any interference.
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 :
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.
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.
7 209.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
(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."
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
any order taking cognizance was passed against the appellants nor their names
figured in the order committing the case to the Court of Sessions.
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.
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 9 proceeding initiated by his taking
cognizance of an offence."
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.
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 final report can be filed only when an investigation is
completed and not prior thereto.
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]
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 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."
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
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
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 13 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 14 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."
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].
15 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 :
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 16
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
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
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 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
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.
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 18 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.
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.
appeal is allowed with the aforementioned observations and direction. No costs.
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