In A Case Where The Offence Is Triable Exclusively By A Court Of Session, Which Court Can Take Cognizance Of The Offence?

C O N T E N T S

In Dharam Pal v. State of Haryana (2014) 3 SCC 306 = AIR 2013 SC 3018 – 5 Judges – Altamas Kabir – CJI, S.S. Nijjar, Ranjan Gogoi, M.Y. Iqbal, Vikramanjit Sen – JJ, it is observed as follows –

It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge. (Vide para 27)

MY COMMENTS ON “DHARAM PAL”

(Supra – AIR 2013 SC 3018)

2. Except observing in para 27 that “it is well-settled that cognizance of an offence can be taken only once”, the Constitution Bench has not adverted to any Judicial verdict holding such a view. As a matter of fact, paragraph 24 of “Dharam Pal” really runs counter to the above observation in para 27. I am quoting para 24 herebelow –

“24.In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no. 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.”

The above contradiction or conflict of view was noted by Justice Sikri in paragraph 16 of Balveer Singh v. State of Rajasthan AIR 2016 SC 2266 = (2016) 6 SCC 680. The observation in paragraph 24 of Dharam Pal (Supra – AIR 2013 SC 3018) shows that the Constitution Bench was prepared to concede that committal of the case to the Court of Session is after the Magistrate takes cognizance of the offence on the Police Report submitted under Section 173 (2) Cr.P.C. (erroneously referred to as Section 173 (3) Cr.P.C.). The above observation further concedes that the Magistrate has the option to disagree with the Police Report and act on the basis of the “protest petition” or otherwise. What this means is that even in cases where the Police concludes that no offence is made out, the Magistrate has still the power to take cognizance of the offence and the offenders if the same is disclosed by the materials produced along with the Police Report. Thus, if the “Police Report” or “complaint” filed before the Magistrate discloses an offence, the Magistrate has no option except to take cognizance of an offence. It is relevant to bear in mind that where the Magistrate take cognizance of the offence, the Magistrate will be issuing process to the offender under Section 204 (1) Cr.P.C. which also is after taking cognizance of the offence and also after being satisfied that there is sufficient ground for proceeding. So, “taking cognizance of the offence” by the Magistrate is a must, whether the offence is triable by the Magistrate himself or by a Court of Session. Without taking cognizance of the offence, the Magistrate cannot issue process to the accused or commit the case to the Court of Session.

THE ISSUE FOR RESOLUTION IN “DHARAM PAL”

3. The real controversy before the Constitution Bench was –

“Whether the power under Section 193 Cr.P.C. could be exercised by the Sessions Judge to take cognizance of the offence and issue summons to persons who have not been charge-sheeted by the Police and whose names do not figure in the committal order passed by the Magistrate under Section 209 Cr.P.C. or whether the Court of Session was bound to wait until the stage for exercise of the power under Section 319 Cr.P.C. was reached in order to array those persons as additional accused in the case”.

The Constitution Bench took note of the conflict of opinion between Kishun Singh v. State of Bihar (1993) 2 SCC 16 = 1993 Cri.L.J. 1700 – A. M. Ahmadi, N. P. Singh - JJ, and Ranjit Singh v. State of Punjab AIR 1998 SC 3148 = (1998) 7 SCC 149 – M. M. Punchhi – CJI, K.T. Thomas, S.S.M. Quadri – JJ. The Bench finally concluded in para 31 that it was Kishun Singh (Supra – (1993) 2 SCC 16) and not Ranjit Singh (Supra – AIR 1998 SC 3148) which had laid down the law correctly.

4. In order to appreciate the above rival views it is necessary to examine the law laid down in Kishun Singh (Supra – (1993) 2 SCC 16) and Ranjit Singh (Supra – AIR 1998 SC 3148).

Kishun Singh's Case

5. In Kishun Singh v. State of Bihar (1993) 2 SCC 16 = 1993 Cri.L.J. 1700 = 1993 KHC 1192 (SC) – A. M. Ahmadi, N. P. Singh - JJ, the following propositions of law were laid down –

i) Cognizance both under Section 190 of the 1898 Code and under Section 190 of the 1973 Code has to be taken of the “offence” and not the “offender”. Under Section 193 of the 1898 Code a Court of Session could not take cognizance of an offence as a Court of original jurisdiction unless the “accused” was committed to it but under the 1973 Code, the expression “accused” in the old Section has been replaced by the word “case” in the recast Section 193. Under Section 193 of the 1973 Code the emphasis is thus on the committal of the “case” and not the “accused”. Section 209 of the 1973 Code also speaks of committing the “case” to the Court of Session. (Vide para 7)

ii) Once cognizance of an “offence” is taken it becomes the Court's duty to find out who the offenders really are. (Vide paras 13 and 16 (Raghubans Dubey v. State of Bihar AIR 1967 SC 1167 – M. Hidayatullah, S. M. Sikri, C. A. Vaidialingam – JJ and Hareram Satpathy v. Tikaram Agarwala AIR 1978 SC 1568 = (1978) 4 SCC 58 – Jaswant Singh, P.S. Kailasam – JJ, relied on.)

iii) At the post-committal and post-cognizance stage the complicity or involvement of a person not already before the Court of Session can surface under two situations –

• Firstly, at the pre-charge stage where the Sessions Judge examines the “record of the case” and the “documents submitted therewith” which would comprise of the “Police Report”, “statement of witnesses recorded under Section 161 Cr.P.C.”, “seizure memoranda” etc. (Vide para 14). Here the power to be exercised to bring the aforementioned persons before Court is the power to “take cognizance of the offence” and “summon them” under Section 193 Cr.P.C.

“Thus, on a plain reading of S.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 S.209 to the Court of Session the bar of S.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”.

(Vide para 16).

[The above observation was noted with approval in paragraph 8 of Nisar v. State of U.P. (1995) 2 SCC 23 = 1995 Cri.L.J. 2118 = 1995 KHC 1257 – Dr. A. S. Anand, M. K. Mukherjee – JJ; Dharam Pal v. State of Haryana (2004) 13 SCC 9 = 2004 KHC 1901 (SC) – 3 Judges – Y. K. Sabharwal, Tarun Chatterjee, P. P. Naolekar – JJ; Para 21 of Sarabjit Singh v. State of Punjab AIR 2009 SC 2792 = (2009) 16 SCC 46 – S. B. Sinha, P. Sathasivam – JJ.

The above position was later approved by the Constitution Bench in para 28 of Dharam Pal (Supra – AIR 2013 SC 3018) and paras 53 and 117.1 of Hardeep Singh v. State of Punjab (2014) 3 SCC 92 – 5 Judges – P. Sathasivam CJI, Dr. B. S. Chauhan, Ranjana. P. Desai, Ranjan Gogoi, S. A. Bobde – JJ.

NOTES BY THE AUTHOR: Para 19 of Hardeep Singh here, clarifies that the issue which was considered by the Constitution Bench in Dharam Pal was regarding the scope of exercise of the power under Section 319 Cr.P.C at the stage of committal. But strangely, after holding in paras 25 and 43 that “inquiry” starts with the filing of the charge-sheet, observes in para 44 that at the stage of Sections 207 to 209 Cr.P.C, the Magistrate is performing only administrative work rather than judicial work to hold that he cannot at that stage exercise the power under Section 319 Cr.P.C. While the non-availability of the power under Section 319 Cr.P.C during that stage of “inquiry” is understandable, the view that after the commencement of “inquiry” with the filing of the charge-sheet, when it comes to complying with Sections 207 and 208 of Cr.P.C, the judicial proceeding becomes “administrative”, is beyond my comprehension. Hence I am in respectful agreement with Justice D. A. Desai in State of U.P. v. Lakshmi Brahman AIR 1983 SC 49 that the statutory obligation of the Committing Magistrate as imposed by Section 207 read with Section 209 Cr.P.C. is a Judicial obligation.

• Secondly, after the commencement of inquiry or trial if the involvement or complicity of a person is revealed from the evidence adduced, then the power to arraign such person is to be located under Section 319 Cr.P.C. (Vide paras 11 and 12)

iv) The object of Section 190 Cr.P.C is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the police does not take action or he has reason to believe that no such action will be taken by the police. – Even though the expression “take cognizance” is not defined, it is well settled by a catena of decisions of the Supreme Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the “complaint” or “police report” or “information” and on being satisfied that allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender, he is said to have taken cognizance of the offence – cognizance is in regard to the offence and not the offender. (Vide paras 7 and 13).

NOTES BY THE AUTHOR:

Kishun Singh (Supra – (1993) 2 SCC 16) did not hold that in a case triable exclusively by the Court of Session, the Committal Magistrate does not take cognizance of the offence. On the contrary the observation in para 13 of Kishun Singh is otherwise. The said observation reads –

“Once the Magistrate takes cognizance of the offence, he may –

• proceed to try the offender (except where the case is transferred under S.191 ), or
• commit him for trial under Section 209 of the Code if the offence is triable exclusively by a Court of Session”

So, committal of the case by the Magistrate to the Court of Session is after taking cognizance of the offence.

It is relevant to note that it is only after taking cognizance of the offence that the committal Magistrate issues process to the accused under Section 204 (1) Cr.P.C. and that too on further being satisfied that there is sufficient ground for proceeding. After the appearance of the accused, the Magistrate examines whether the case is really one triable exclusively by the Court of Session and if so, complies with Section 207 and 208 Cr.P.C., as the case may be and then commits the case to the Court of Session under Section 209 Cr.P.C.

Ranjit Singh's Case

6. In Ranjit Singh v. State of Punjab AIR 1998 SC 3148 = (1998) 7 SCC 149 = 1998 KHC 1167 – 3 Judges – M. M. Punchhi – CJI, K. T. Thomas, S.S.M. Quadri – JJ, the observation made in paragraph 16 of Kishun Singh (Supra - (1993) 2 SCC 16) as extracted in (iii) of para 5 above was disapproved. The three-Judge Bench held that upon committal of the case to the Court of Session, that Court can deal only with those accused who are referred to in the order of committal under Section 209 Cr.P.C. and that there is no intermediary stage enabling the Court of Session to add any other person to the array of accused and that the only other stage in which the Court of Session is empowered to add any other person to the array of accused is after recording evidence under Section 319 Cr.P.C. Kishun Singh to the extent that it said that the Sessions Judge after committal, can take cognizance of the offence and issue summons under Section 193 Cr.P.C. to a person who was not charge-sheeted by the Police or committed to the Court of Session, was disapproved and accordingly overruled by Ranjith Singh (Supra - AIR 1998 SC 3148). Ranjith Singh was followed by Kishori Singh v. State of Bihar AIR 2000 SC 3725 = (2004) 13 SCC 11 = 2004 KHC 1902 – G. B. Pattanaik, R.P. Sethi – JJ).

RANJIT SINGH DOUBTED

7. Dharam Pal's case was initially dealt with by a three-Judge Bench consisting of Y.K. Sabharwal, Tarun Chatterjee and P.P. Naolekar. This Bench which was in agreement with Kishun Singh, was not inclined to agree with the reasoning in Ranjit Singh which overruled Kishun Singh and noticing the fact that Ranjit Singh was by three- Judges, the Bench directed the matter to be placed before a larger Bench. That is how Dharam Pal case came up for hearing before a Constitution Bench.

RESOLUTION OF THE ISSUE BY THE CONSTITUTION BENCH

8. The Constitution Bench in Dharam Pal (Supra – AIR 2013 SC 3018) concluded in para 31 of its verdict that Kishun Singh was laying down the law correctly and that Ranjit Singh did not lay down the law correctly. One aspect which I am emphasizing here is that it was unnecessary for the Constitution Bench to examine the question whether in a case where the Committal Magistrate has taken cognizance of the offence, the Sessions Judge is debarred from taking cognizance of the offence as a Court of original jurisdiction. No such proposition of law was laid down in Kishun Singh's case which was upheld by the Constitution Bench.

9. With utmost respect I am inclined to opine that the Constitution Bench in Dharam Pal was not right in making the following observations –

1. Cognizance of an offence can be taken only once. Where the Committal Magistrate has taken cognizance of the offence and then commits the case to the Court of Session the question of the Court of Session taking fresh cognizance of the offence does not arise. Cognizance of the offence could be taken either by the Committal Magistrate or by the Court of Session.
2. The Committal Magistrate plays only a passive role in committing the case to the Court of Session and there is no question of the said Magistrate taking cognizance of the offence in piecemeal.

I, therefore, propose to substantiate my opinion hereafter.

THE SCHEME UNDER THE Cr.P.C. EXAMINED

10. Let us first examine the scheme under the Cr.P.C in order to find out whether it is impermissible for both the Committal Magistrate as well as the Court of Session to take cognizance of the offence in a case instituted on a “Police Report” or on a “private complaint” involving an offence triable exclusively by a Court of Session.

ROLE OF THE COMMITTAL MAGISTRATE

11. A Magistrate committing a case to the Court of Session under Section 209 Cr.P.C. really exercises a “judicial function” and does not merely act as a post office. In Rajender Kumar Jain v. State through Spl. Police Establishment AIR 1980 SC 1510 = (1980) 3 SCC 435 – V. R. Krishna Iyer, O. Chinnappa Reddy – JJ, the question was whether in a case triable exclusively by a Court of Session, the Committal Magistrate has jurisdiction under Section 321 of the 1973 Code to give “consent” to the Public Prosecutor to withdraw from prosecution. It was observed as follows –

“In the second place it may not be accurate to say that the Committing Magistrate has no judicial function to perform under the 1973 Code of Criminal Procedure. S. 209 of the Criminal Procedure Code 1973 obliges the Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session. Therefore, the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session. If no offence is disclosed the Magistrate may refuse to take cognizance of the case or if the offence disclosed is one not triable exclusively by the Court of Session he may proceed to deal with it under the other provisions of the Code. To that extent the Court of the Committing Magistrate does discharge a judicial function. We, therefore, overrule the first submission of Shri Ram Panjawani. We do not agree with the view taken by the High Court of Andhra Pradesh in A. Venkatramana v. Sanjeeva Ragudu, 1976 Andh LT 317, that the Court of the Committing Magistrate is not competent to give consent to the Public Prosecutor to withdraw from the prosecution”. (Vide para 7).

12. Again in State of U.P. v. Lakshmi Brahman AIR 1983 SC 439 = (1983) 2 SCC 372 = 1983 KHC 392 (SC) – D. A. Desai, R. B. Misra – JJ, it is observed as follows –

“12. S.170 obligates the Investigating Officer to submit the police report if in the course of investigation sufficient evidence or reasonable ground is made out for the trial or for commitment of trial of the accused, to the Magistrate empowered to take cognizance of the offence upon a police report. On this report being submitted the Magistrate takes cognizance of the offence disclosed in investigation as envisaged by Sec. 190. It is indisputable that taking cognizance of an offence under Sec. 190 is a purely judicial function subject to judicial review by court of appeal or revision to which the Magistrate is subject. Cognizance of an offence even if exclusively triable by the Court of Session has to be taken by the Magistrate because S.193 precludes it from taking cognizance of any offence when it provides that no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the accused has been committed by the Magistrate under the Code. Thus even in case of an offence exclusively triable by the Court of Session, the police report on completion of investigation has to be submitted to the Magistrate having jurisdiction to commit the accused for trial. It is the Magistrate who takes cognizance of the offence and not the Court of Session though the case is one exclusively triable by the latter. Sec. 170 directs that if the accused in respect of whom police report is being submitted is in police custody, he has to be forwarded along with the police report to the Magistrate. When the Magistrate receives the report and the accused is produced before him it is necessary for him to pass some order for his further detention subject to provisions contained in Chapter XXXIII as to Bails and Bonds. The view taken by the High Court makes it a necessity for the Magistrate to release the accused on bail even if the accused is not otherwise entitled to the discretionary order of bail nor he applies for nor is ready to furnish bail only because the Magistrate has no jurisdiction to keep the accused in custody till an order committing the accused for trial is made. The High Court referred to S.209 which provides that the Magistrate shall commit the accused to Court of Session and subject to the provisions of the Code relating to bail, remand the accused to custody during and until the conclusion of the trial. This according to the High Court implies that the Magistrate can exercise power to release on bail or remand to the custody the accused only after making the order of commitment but the Magistrate has no such power anterior to the order of commitment and during the interregnum since the receipt of the charge sheet. This dichotomy read by the High Court in S.207 and 209 is certainly not borne out by the provisions of the Code. S.207 as it then stood made it obligatory for the Magistrate to supply free of costs, copies of the documents set out in the section. The duty cast on the Magistrate by See. 207 had to be performed in a judicial manner. To comply with Sec. 207 which is cast in a mandatory language, when the accused is produced before the Magistrate, he has to enquire from the accused by recording his statement whether the copies of the various documents set out in See. 207 have been supplied to him or not. No order committing the accused to the Court of Session can be made under Sec. 209 unless the Magistrate fully complies with the provisions of Sec. 207. And if it is shown that the copies of relevant documents or some of them are not supplied, the matter will have to be adjourned to get the copies prepared and supplied to the accused. This is implicit in Sec.207 and Sec. 209 provides that on being satisfied that the requisite copies have been supplied to the accused, the Magistrate may proceed to commit the accused to the Court of Session to stand his trial. The statutory obligation imposed by Sec. 207 read with Sec. 209 on the Magistrate to furnish free of cost copies of documents is a judicial obligation. It is not an administrative function. It is a judicial function which is to be discharged in a judicial manner. It is distinctly possible that the copies may not be ready. That makes it necessary to adjourn. the matter for some time which may be spent in preparing the copies and supplying the same to the accused, The Magistrate can proceed to commit the accused for trial to the Court of Session only after he judicially discharges the function imposed upon him by See. 207, This conclusion is fortified by the provisions contained in Chapter XVIII which prescribed the procedure for trial of a case by Court of Session. Sec. 226 Provides for opening the case for the prosecution, Sec. 227 confers power on the Court of Session to discharge the accused if upon consideration of the record of the case and the documents submitted therewith, the Judge considers that there is no sufficient ground for proceeding against the accused. No duty is cast on the Court of Session to enquire before proceeding to hear the case of the prosecution under Sec. 226 to ascertain whether the copies of the documents have been furnished to the accused because S.207 casts the obligation upon the Magistrate to perform the judicial function.”

(Vide para 12)

(Emphasis supplied by me)

13. The above passage in Lakshmi Brahman (Supra – AIR 1983 SC 439) will clearly show that it is for the Committal Magistrate to first take cognizance of the offence before committing the case to the Court of Session. In Lakshmi Brahman, the Bench further observed as follows –

“Now, if under Sec. 207, the Magistrate is performing a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an inquiry for the purpose of satisfying himself that Sec. 207 has been complied with in letter and spirit. That satisfaction has to be judicial satisfaction. It is not a trial but something other than a trial and being judicial function it would necessarily be an inquiry. The making of an order committing the accused to the Court of Session will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment. Thus, from the time the accused appears or is produced before the Magistrate with the police report under Sec. 170 and the Magistrate proceeds to enquire whether Sec. 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as' contemplated by Sec. 2(g) of the Code. We find it difficult to agree with the High Court that the function discharged by the Magistrate under Sec. 207 is something other than a judicial function and while, discharging the function the Magistrate is not holding an inquiry as contemplated by the Code. If the Magistrate is holding the inquiry obviously Sec. 309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete. Sub-sec. (2) of Sec. 309 provides that if the Court, after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement or adjourn any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. There are three provisos to sub-sec. (2) which are not material. If, therefore, the proceedings before the Magistrate since the submission of the police report under Sec. 170 and till the order of commitment is made under Sec. 209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Sec. 309 (2) would enable the Magistrate to remand the accused to the custody. "

(Vide para 13)

(Emphasis supplied by me)

14. The above passage in Lakshmi Brahman (Supra – AIR 1983 SC 439) will show that the Committal Magistrate complying with Sections 207 and 208 is performing a Judicial function and not an administrative function.

NOTES BY THE AUTHOR: In R. K. Prasad v. State of Bihar AIR 1996 SC 1931 = (1996) 4 SCC 469 – Madan Mohan Punchhi, K.T. Thomas – JJ, disapproving the view taken in Laskhmi Brahman (Supra) regarding the nature of inquiry conducted by the Committal Magistrate, this Bench of coordinate strength held that after the repeal of the 1898 Code the power of the Committing Magistrate under the 1973 Code is purely ministerial in nature and not Judicial. It was forgetting the fact that in Lakshmi Brahman also the Bench was discussing the power of the Committing Magistrate under Section 209 of the 1973 Code. Interestingly, the above view in R. K. Prasad was upheld by another Constitution Bench in Hardeep Singh v. State of Punjab AIR 2014 SC 1400 = (2014) 3 SCC 92 = 2014 (1) KHC 170 (SC) – 5 Judges – P. Sathasivam – CJI, Dr. B. S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S. A. Bobde - JJ. This is what the Bench has observed –

“Since after the filing of the charge - sheet, the Court reaches the stage of inquiry and as soon as the Court frames the charges, the trial commences, and therefore, the power under S.319(1) CrPC can be exercised at any time after the charge - sheet is filed and before the pronouncement of judgment, except during the stage of S.207/208 CrPC, committal etc., which is only a pre - trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind.

At this pre - trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance of S.207 and S.208 CrPC, and committing the matter if it is exclusively triable by Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of S.207 to 209 CrPC is forbidden, by express provision of S.319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Sessions.” (Vide paras 43 and 44)

The Constitution Bench without adverting to the detailed discussion in Lakshmi Brahman (Supra) simply said that the said verdict was treated as per incurium in R. K. Prasad (Supra).

An illustration to show that committal proceedings are judicial in nature

The fact that the committal proceedings is not merely ministerial or administrative in nature can be demonstrated by a simple illustration. Supposing the accused in a case is charge-sheeted by the Police for an offence punishable under Section 307 IPC (attempt to murder) which is triable exclusively by a Court of Session. If after perusing the prosecution records the Committal Magistrate is of the view that an offence punishable under Section 324 IPC alone is made out and since the said offence is triable by the Magistrate himself, he takes cognizance of the said offence and tries the case instead of committing the case to the Court of Session. The Magistrate will be perfectly justified in doing so. Here the Magistrate is performing a Judicial function and not merely an administrative function. This is precisely what happened in Rizwan v. Waqar Ahmed 1993 Supp. (2) SCC 121 = 1993 SCC (Cri.) 455 – K. Jayachandra Reddy, G. N. Ray – JJ – It was an identical situation which was envisaged by Justice Chinnappa Reddy and Justice Krishna Iyer in para 7 of Rajender Kumar (Supra-AIR 1980 SC 1510). I am, therefore, respectfully of the view that during the committal proceedings under Section 209 of the 1973 Code also what the Magistrate performs is a judicial function and Lakshmi Brahman Lays down the law correctly.

15. Still again in Sajjan Kumar v. CBI (2010) 9 SCC 368 = 2010 KHC 4691 (SC) – P. Sathasivam, Anil R. Dave – JJ, it is observed as follows –

“It is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross - examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. A Magistrate enquiring into a case under S.209 of the Cr.P.C is not to act as a mere Post Office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case.”

(Vide para 16).

16. In Balveer Singh v. State of Rajasthan AIR 2016 SC 2266 = (2016) 6 SCC 680 = 2016 KHC 6335 – A. K. Sikri, R. K. Agrawal – JJ, the facts were as follows –

“Within 10 months of her marriage Renu, the daughter of the first informant was found dead in her matrimonial home. The cause of death was asphyxia due to hanging. Her father lodged an FIR alleging offences punishable under Sections 304 B IPC (dowry death) and Section 498 A IPC (matrimonial cruelty) by the husband and his parents. After investigation the Police concluded that both the aforesaid offences were not made out and what could be attributed to the accused husband was only an offence under Section 306 IPC (abetment of suicide) which was also triable exclusively by a Court of Session. After the Police filed the charge-sheet to the above effect, the father of the deceased filed an application before the Committal Magistrate seeking to take cognizance of the offences under Section 304 B and 498 A IPC. The said application was dismissed by the Magistrate who committed the case to the Court of Session for the offence punishable under Section 306 IPC. The first informant father filed a similar application before the Sessions Court which, however, favorably responded to the said application and took cognizance also of offences punishable under Section 304 B and 498 A IPC. The husband of the deceased challenged the order of the Sessions Judge before the High Court. The order of the Sessions Judge was set aside by the High Court which remanded the case to the Sessions Court with a direction to dispose of the father's application in the light of the verdict of the Constitution Bench in Dharam Pal (Supra-AIR 2013 SC 3018). After the remit, the Sessions Judge again allowed the father's application. The said order was confirmed by the High Court in revision. The High Court order was under challenge before the Supreme Court. Interestingly, both sides relied on Dharam Pal (Supra-AIR 2013 SC 3018) to attack and to sustain the order of the Sessions Judge as confirmed by the High Court. The accused argued that the committal Magistrate had two options, namely, either to simply commit the case to the Court of Session who alone could take cognizance of the offence, or alternatively, to take cognizance of the offence and then commit the case to the Court of Session who could not again take cognizance of the offence. On the side of the bride's father and on the side of the State, it was argued that the Magistrate was to simply commit the case to the Court of Session which alone could take cognizance of the additional offence and the additional offence and the additional offenders and that the impugned judgments/orders were correct.”

After discussing Dharam Pal (Supra-AIR 2013 SC 3018), the Bench speaking through Justice A. K. Sikri observed in paragraph 19 as follows –

“As per this Judgment (In Dharam Pal), since the Court of Session is acting as a Court of original Jurisdiction under Section 193 of the Code, after the committal of proceedings to it by the Magistrate, it is empowered to take cognizance and issue summons and it cannot be treated as taking cognizance of the same offence.”

So holding the Bench refused to interfere with the order of the Sessions Judge taking cognizance of the additional offences (Sections 304 B and 498 A IPC) against the additional accused, as upheld by the High Court.

Intrinsic provision in the Cr.P.C itself to show that it is the Magistrate who takes cognizance of an offence at the pre-committal stage

17. A close reading of Section 306 (1) Cr.P.C (S.343 (1) BNSS) shows that if any case (whether triable exclusively by a Court of Session or not) is pending in investigation, it is only the Chief Judicial Magistrate (CJM) who can tender pardon to an accomplice. If pardon has been tendered to an accomplice by the CJM at the stage of investigation of a case triable exclusively by a Court of Session, Section 306 (4) (a) Cr.P.C (S. 343 (4) (a) BNSS) mandates that the person accepting the tender of pardon shall be examined as a witness before the Magistrate taking cognizance of the offence. Section 306 (5) (a) (i) Cr.P.C (S. 343 (5) (a) (i) BNSS) enjoins that after examining such a person under Section 306 (4) Cr.P.C (S. 343 (4) BNSS) the Magistrate taking cognizance of the offence shall commit the case for trial to the Court of Session. Thereafter, the Court of Session will take cognizance of the offence as enabled by Section 193 Cr.P.C (S. 213 BNSS). Thus, in such a case triable exclusively by a Court of Session it is the Magistrate who is taking cognizance of the offence during the stage of investigation. Even otherwise, the charge-sheet in such a case has to be filed before the CJM. If, however, the request to tender pardon to an accomplice is made before the Court of Session after committal of the case to that Court, the Sessions Judge will have to comply with the request by recourse to Section 307 Cr.P.C (S. 344 BNSS). (Vide Lt. Commander Pascal Fernandez v. State of Maharashtra AIR 1968 SC 594 – M. Hidayathullah, V. Bhargava, C. A. Vaidialingam – JJ; Anantha Narayana Bhat v. CBI 2010 Cri.L.J 926 = 2009 (4) KLT 992 – Thomas P Joseph – J; State of Tamil Nadu v. V. Arul Kumar AIR 2016 SC 2551 – Sikri – J; A. Devendran v. State of Tamil Nadu AIR 1998 SC 2821 = (1997) 11 SCC 720 – G. N. Ray, G. B. Pattanaik – JJ).

M Y C O N C L U S I O N

18(A). My considered opinion, therefore, is that in a case where the offence is triable exclusively by a Court of Session both the “Committal Magistrate” as well as the “Court of Session” have their own role in taking cognizance of the offence. Without taking cognizance of the offence, the Committal Magistrate cannot issue process to the accused and cannot thereafter commit the case under Section 209 Cr.P.C. to the Court of Session. The Court of Session also can, ordinarily, take cognizance of the offence only after such committal by the Magistrate in view of Section 193 Cr.P.C. and such cognizance also includes the power to issue summons to any person whose complicity is revealed by the materials placed before it.

(B). In the light of the statutory scheme and the judicial pronouncements adverted to above the legal position can be summarized as below –

1. The observation in para 27 of Dharam Pal that “it is well settled that cognizance of an offence can only be taken once”, is not supported by any judicial verdict including Kishun Singh (Supra – (1993) 2 SCC 16) which was upheld by the Constitution Bench in Dharam Pal.

On the contrary para 24 of Dharam Pal itself runs counter to the above observation. Para 24 of Dharam Pal states that if the Magistrate disagrees with the Police Report and is of opinion that an offence triable by him has been disclosed, the Magistrate himself can try the same and if the offence is triable exclusively by a Court of Session the Magistrate should commit the case to that Court.

The above contradiction in Dharam Pal was noted by Justice A.K. Sikri in para 16 of Balveer Singh (Supra – AIR 2016 SC 2266).

The impact of the observation in para 24 of Dharam Pal is that even where the Police submit a “Closure Report” to the effect that no offence is made out, the Magistrate who is not bound by the conclusion reached by the Police, can nevertheless take cognizance of the offence if the same is disclosed by the materials produced by the Police. Depending on the nature of the offence so disclosed, the Magistrate may either himself try the offence or commit it to the Court of Session for trial. Here the Magistrate is exercising a Judicial function and not a ministerial or administrative function.

The observation made by Justice Chinnappa Reddy in Rajender Kumar Jain (Supra – AIR 1980 SC 1510) and given in paragraph 11 above is also to the same effect that the Committal Magistrate is discharging a judicial function.

Justice P. Sathasivam was also endorsing the same view when he observed in para 16 of Sajjan Kumar (Supra – (2010) 9 SCC 368) that a Magistrate inquiring into a case under Section 209 Cr.P.C. is not to act as a mere post office.

2. From the time the accused appears or is produced before the Magistrate with the Police Report under Sec. 170 Cr.P.C. and the Magistrate proceeds to enquire whether Sec. 207 Cr.P.C. has been complied with and then proceeds to commit the case to the Court of Session, the proceeding before the Magistrate would be an “inquiry” as contemplated by Sec. 2(g) of the Code. (Vide Lakshmi Brahman (Supra – AIR 1983 SC 439).

3. Under Section 209 of the 1973 Code (corresponding to Section 232 of BNSS) the Magistrate has to be satisfied that, prima facie, an offence is disclosed. If no offence is disclosed, the Magistrate may refuse to take cognizance of the offence. (Vide para 7 of Rajender Kumar Jain v. State through Special Police Establishment AIR 1980 SC 1510 = (1980) 3 SCC 435 – V.R. Krishna Iyer, O. Chinnappa Reddy – JJ.)

4. If, however, an offence is disclosed but the disclosed offence is not one triable exclusively by the Court of Session, the Magistrate may himself proceed to deal with it under the other provisions of the code. (Vide para 7 of Rajender Kumar Jain (Supra - AIR 1980 SC 1510).

5. If the Magistrate is satisfied that the offence disclosed is one triable by a Court of Session he should commit the case under Section 209 Cr.P.C. to the Court of Session. (Vide para 7 of Rajender Kumar Jain (Supra - AIR 1980 SC 1510).

6. The statutory obligation imposed by Sections 207 and 209 Cr.P.C. on the Magistrate to furnish free copies of documents to the accused, is a Judicial obligation to be discharged in a Judicial manner. It is not an administrative function (reasons stated) – Vide paras 12 and 13 of Lakshmi Brahman (Supra – AIR 1983 SC 439).

NOTES BY THE AUTHOR: It was impermissible by a Bench of co-ordinate strength in R. K. Prasad v. State of Bihar AIR 1996 SC 1931 = (1996) 4 SCC 469 to hold that under the 1973 Code the power of the Committing Magistrate was purely ministerial and that Lakshmi Brahman (Supra – AIR 1983 SC 439) was per incurium. In fact, the view taken in Lakshmi Brahman was after discussing the provisions of the 1973 Code. The Constitution Bench in Hardeep Singh v. State of Punjab AIR 2014 SC 3400 was also, simply noting that Lakshmi Brahman was held to be per incurium in R.K. Prasad (Supra – AIR 1996 SC 1931) without going into the detailed reasoning given by Lakshmi Brahman.

7. Where the “Police Report” or a “complaint” filed before a Magistrate discloses an offence, the Magistrate is bound to take cognizance of the same and if the offence so disclosed is triable exclusively by a Court of Session, the Magistrate is bound to commit the case to the Court of Session under Section 209 Cr.P.C. (S.232 of BNSS). In either case, taking cognizance of the offence by the Magistrate is a must.

NOTES BY THE AUTHOR: The observation in para 27 of Dharam Pal (Supra – AIR 2013 SC 3018) that cognizance could either be taken by the Magistrate or the Sessions Judge, is not sound in law. The Magistrate is bound to take cognizance of the offence disclosed unless the Police Report or the complaint do not disclose any offence at all.

8. The self-contained mechanism under Section 306 Cr.P.C (S. 343 BNSS) as detailed in paragraph 17 above shows that there is intrinsic material in the Cr.P.C itself fortifying the view that in a case triable by a Court of Session, first the Magistrate takes cognizance of the offence after complying with the request made for tendering pardon to an accomplice during the stage of investigation. After complying with the formalities under sub-sections (3) and (4) of Section 306 Cr.P.C (S. 343 (3) and (4) of BNSS) the Magistrate has to commit the case to the Court of Session under Section 306 (5) (a) (i) Cr.P.C (S. 343 (5) (a) (i) BNSS). The court of Session comes to the picture only after the committal of the case and after taking cognizance of the offence under Section 193 Cr.P.C (S. 213 BNSS). (Vide Lt. Commander Pascal Fernandez v. State of Maharashtra AIR 1968 SC 594 – M. Hidayathullah, V. Bhargava, C. A. Vaidialingam – JJ; Anantha Narayana Bhat v. CBI 2010 Cri.L.J 926 = 2009 (4) KLT 992 – Thomas P Joseph – J; State of Tamil Nadu v. V. Arul Kumar AIR 2016 SC 2551 – Sikri – J; A. Devendran v. State of Tamil Nadu AIR 1998 SC 2821 = (1997) 11 SCC 720 – G. N. Ray, G. B. Pattanaik – JJ).

Author is Former Judge, High Court of Kerala. Views Are Personal.