Kallu Nat Alias Mayank Kumar Nagar vs State of U.P. and Anr.

Held: The Court of Session has power u/s.193 to summon a person as accused to stand trial, even if he has not been chargesheeted by the police and whose complicity in the crime appears in the evidence available on record – Both u/ss.209 and 193, CrPC respectively, commitment is of, the “case” and not of the “accused” as distinguished from s.193(3) and s.207A respectively of the old Code where commitment was of the “accused” and not the “case” – For committing a case there must be an offence and involvement of a person who committed the same – Even though the case is committed yet cognizance taken is of the offence and not the offender – Once the case in respect of the offence qua the accused, who are before the Court, is committed and cognizance is taken, the embargo u/s.193 regarding taking cognizance only by committal goes – Summoning additional persons will then be regarded as incidental to the cognizance already taken on committal and as, a part, of, the normal process that follows – A fresh committal of such person is not necessary – Further, s.319(4)(b) enacts a deeming provision in that behalf dispensing with the formal committal order by providing that the person added will be deemed to have been an accused even when cognizance was taken first – Proceedings could be instituted and cognizance taken also against persons not known at that time – Once the Court takes cognizance of the offence (not of the offender), it becomes the Court’s duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the Court’s duty to summon them to stand trial along with those already named, since summoning them would only be part of the process of taking cognizance – Constitution Bench judgment in Dharam Pal case, explained. [Paras 90, 103]

Code of Criminal Procedure, 1973 – s.193 – Cognizance of offences by Courts of Session – Rape and murder of Respondent No.2-complainant’s wife – Crime Branch gave clean chit to the petitioner herein and the charge-sheet was filed only against the co-accused – Case came to be committed u/s.209, CrPC being exclusively triable by the Court of Session – Respondent No.2 filed application u/s.193 seeking to summon the petitioner as an accused – Application allowed by trial court – Order affirmed by High Court – Correctness: Held: No error in the impugned order – Upon the committal by the Magistrate, the Court of Sessions is empowered to take cognizance of the whole of the incident constituting the offence – The Court of Sessions is thus invested with the complete jurisdiction to summon any individual accused of the crime – The Court of Session takes cognizance of the case or the offence as a whole and, therefore, is entitled to summon anyone who, on the material before it, appears to be guilty of such offence to stand trial before it – The whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima facie guilty of the crime as well – Plea of the petitioner that he could have been summoned as an accused only during the course of trial under the provisions of s.319 is incorrect. [Paras 80, 82, 84, 101, 104] Code of Criminal Procedure, 1973 – Chapter XIV, XVI, XVIII – s.190; ss.207-209, 225-228 – Committal of Case by a Magistrate to the Court of Sessions – Role of the Court of Session after the case is committed to it by the Magistrate u/s.209 – Offences triable exclusively by the Court of Sessions – Whether cognizance is taken by the Magistrate or Court of Sessions:

Held: s.190 empowers the Magistrate with the discretion to decide whether cognizance of an offence should be taken or not, by application of his mind, there is no provision of the same similitude as s.190, which empowers the Court of Session to do so, in respect of cases committed to it by the Magistrate – The only limited power that the Court of Session has over the order of committal passed by the Magistrate, is to ascertain and re-decide if the offence is one exclusively triable by it or not – Unlike a Magistrate, who is empowered in terms of s.190 of the Code, to drop proceedings where after application of his mind, he comes to the finding that there is no offence for taking cognizance to initiate proceedings in respect of, the Court of Session is not empowered to drop the proceedings in the case committed to it, it is only empowered to either proceed to frame charges against the accused or to discharge the accused or if such offence is not exclusively triable by it, transfer the case back to the Magistrate, again for the purpose of commencement of trial by such Magistrate – This also, when seen in light of the expression “any offence” used in s.190 of the Code, clearly indicates that it is the Magistrate who is not only empowered but also indeed does take cognizance of an offence even if the same is triable exclusively by the Court of Session. [Para 71]

Words and Phrases – “Cognizance”; “Taking cognizance”; “discharge”; “any offence”; “the accused appears or is brought before the Magistrate”; “during, and until the conclusion of, the trial” – Purport and meaning – Code of Criminal Procedure, 1973 – Chapter XIV, XV, XVI, XVIII – ss.190, 209 – Discussed. [Paras 19-24, 54, 56, 65, 66, 71]

Code of Criminal Procedure, 1973 – s.193 – Cognizance of offences by Courts of Session – Object and purpose, stated – Code of Criminal Procedure, 1898 – s.193 – s.193 old Code vis-à-vis s.193, Code of 1973. [Paras 72-74, 77-80, 82, 84] Code of Criminal Procedure, 1973 – s.190 – Cognizance of offences by Magistrates – Three distinct points of origin of the criminal machinery – Position of law, stated. [Paras 25-27, 29-31, 33, 35-37, 40-43]

Code of Criminal Procedure, 1973 – s.202 – Postponement of issue of process – Inquiry under – Scope:

Held: The scope of inquiry u/s.202 is limited to the ascertainment of the truth or falsehood of the allegation made in the complaint

(i) on the materials placed by the complainant before the court; and (ii) for limited purpose of finding out whether a prima facie case for issue of process has been made out. [Para 41]