KISHUN SINGH & Ors. v. STATE OF BIHAR

plicity CO!Jling to ligb_t from the evidence taken and recorded in the course of an inquiry or trial. This may happen not merely in cases where despite the name of a person figuring in the course of Investigation the invebtigat· Ing agency does not .send him .up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the iuquiry or trial. D

1.07. The scope of its operation '!r the area of its. play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the inquiry or trial. Thus the Section does not apply E to all situations and cannot be interpreted to be the repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court.

1.08. Once the case is committed to the Court of Session by a magistrate undet the Code, the restriction placed on the power of the F <;:ourt of Session lo take cognizance of an ofl'ence as a court of original jurisdiction gets lifted. On the magistrate committing the · case under Section 209 to the Court of Session the bor of section 193· is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognlzance, or the oll'eoce which would G include the summoning of the person or persons whose complicity in the commission, of the crime can prima facie by gathered from the material available on record.

1.09'. he stage for. the . exercise ~f power under section· 319 of the . Code h.ad not reached, Inasmuch as, the trial had not commenced. and H "'\ ->. --· --{ - ' 'r 34 SUPREME COURT REPORTS (1993) 1 S.C.R. A evidence was not led. 'l11e Court of Session bad, hCMeVer, tile power nnder Section 193 of the Code to summon the appellants as tllelr lavol~ la the commission of the crime prima facie appeand l'rom the recard el tlle case. Once It Is fonnd that tile power exists tile exerdse of power Hder a wrong provision will not reader the order Illegal or lamld. B logi.nder Singh v. State of Punjab, AIR 1979 SC 339 • (1'79) 2 SCR 306 and Sohan Lal ct Ors. v. State of Rajasthan, (1990) 4 SCC $81, aefeued to.

2.01. The two alternative modes In which the Crflllilllll r..w cu be c set In motion are: by the filing of Information with the polite ..... Sectloa 154 of the Code or upon ncelpl of a complaint or lnfOl'MlltiO. by a Magistrate. The funner would lead to investigation by the police and may culminate In a police report under Section 173 of the Code on tile basis whereof cognizance may be taken by the Mlllllstrate nader Sectloa lllO(l)(b) of the Code. lu the latter case, the Magistrate may either order D luvestlgatlou by the police under Section 156(3) of the Code or •1mse11 hold an Inquiry under Sectloa 202 before taking coplza11tt of the offence under Section lllO(l)(a) or (c), as the case may be, read with, Sectloa ~ of the Code. Once tile Magistrate takes cognbaaa: of the ollence. he may proceed to try the ollender (except where the aise, ls transferred 1!11.r E section 191 or commit him for trial under Section. 209 of the (;ode If tile offence Is triable exclusively by a Court or Session.

2.82. Once cognizance of au offence Is taken It. ~ tile COINt'a duty to llnd out who the offenders really are and If tile Court ftada tlaat. F apart from the persons sent up by the police some other persOBS 8" Involved, It is bis duty to proceed against those persoas by s - • • them because 'the summoning of the additional 11CC11sed Is part of tile proceeding Initiated by his taklug cognizance of an offence'.

2.03. After cognizance Is taken under Section lllO(l) of the Code, lu G warrant cases the Court Is l'l!quired to frame a charge containing par· tlculars as to the time and place of the alleged offence aud the persOll (If any) agalust whom, or the thing (if any) In respect of whldl, It was committed. But before framing the charge section 227 of tile Code provides that If, upoa a COBSiderat1ou of the recard of the cue _. die H docu-ts ~bmltted therewith, the Sessions Judp considers lllat tlien "')- y -" . ,-~ ~ ~ ~~ '-- . "' • ,. ~· .,.,-- ) ... 11 ~~ - ",.---- . - - / --( "\. -· )- _, " ) , • A - KISHUN SINGH v. STATE 35 is not sufficient ground for proceeding against the accused, he shall, for A reasons to be recorded, discharge the accused.

2.04. It Is only when the Judge is of opinion that there is ground for presuming that the accused was committed an offence that he will proceed to frame a charge and record the plea of the accused (vlde, section 228). It becomes immediately clear that for the limited purpose of deciding whether or not to frame a charge against the accused, the judge would be required to examine the record of the case and the documents submitted therewith, which would comprise the police report, the statements of witnesses recorded under Section 161 of the Code, the seizure- memoran- da, etc. etc. B c

2.05. Once the court takes cognizance of the offence (not the of· fender) 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 D the court's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance.

2.06. Even though the expression 'take cognizance' is not defined, it is well settled that when the Magistrate takes notice of the accusations and E applies bis mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender be is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the F offence and not the offender. Mere application of mind does not amount to taking cognizance unless the magistrate does so for proceeding under Section 200/204 of the Code.