Police Station Sadar, Hindon, District Karauli (Raj.) vs State Of Rajasthan, Through P.P.

Judgment

2. Versus State Of Rajasthan, Through P.P. Chatar Singh @ Chatre S/o Mangalram, Resident Of Shankar Ka Pura, Tan Gudapol, Tehsil Hindon, District Karauli (Raj.) ----Complainant/Respondent For Petitioner(s) : Mr. Pankaj Gupta, Adv. Mr. Naman Yadav, Adv. Mr. Saurabh Yadav, Adv. For Respondent(s) : Mr. Shree Ram Dhakar, Public Prosecutor. Mr. Vikram Singh Chouhan, Adv. HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order Reserved On-::-29/07/2025 Pronounced On-::- 05/08/2025 Reportable:-

1. The petitioner in the instant case has raised a concern regarding the power of Magistrate to take cognizance under Section 190 of the Code of Criminal Procedure (hereinafter to be referred as “Cr.P.C”) against him subsequent to the filing of the closure report against the other co-accused. The case was committed to the court of Sessions after an order of cognizance was passed for the other co-accused before the filing of the closure report qua the petitioner. The petitioner has by way of this [2025:RJ-JP:29854] (2 of 9) [CRLMP-6584/2019] petitioner questioned the impugned order dated 24.07.2019 passed by Additional Civil Judge & Judicial Magistrate No.1, Hindoncity, District Karauli, (hereinafter to be referred as ‘the trial court’) which allowed cognizance against them and which was

later on affirmed by the order dated 26.09.2019 passed by the Additional Sessions Judge No.2, Hindoncity, District Karauli (hereinafter to be referred as ‘the Revisional Court’) relying upon the Judgments passed in the case of Dharma Pal & Ors. v. State of Haryana & Anr., (2014) 3 SCC 306 and Balveer Singh & Anr. v. State of Rajasthan & Anr., (2016) 6 SCC 680.

2. The primary argument raised by the learned counsel for the petitioner is that the case of the petitioner revolves around the procedure and legality of the impugned order passed by the learned Magistrate. The Learned counsel for the petitioner asserts that, after issuing the cognizance order, the concerned court of Magistrate becomes ‘functus officio’ and could not thereafter examine the facts concerning the involvement of the petitioner. As per, Section 319 of the Cr.P.C, only the Sessions court has the right to consider whether the petitioner should be arraigned as an accused and tried alongside with the other co-accused. Furthermore, the Sessions court is also barred from exercising the power under Section 193 of the Cr.P.C since cognizance of the offence has already been taken once and the same could not be taken for the second time. The counsel for the petitioner further contended that, the facts of the judgment of Nahar Singh v. State of U.P., (2022) 5 SCC 295, as relied upon by the respondents is distinguishable on facts and the said judgment is sub silentio upon the issue raised in the present matter. The [2025:RJ-JP:29854] (3 of 9) [CRLMP-6584/2019] question framed in that judgment was whether a Magistrate taking cognizance of an offence on the basis of a police report in terms of Section 190(1)(b) of the Cr.P.C can issue summons to any person not arraigned as an accused in the police report and whose name also does not feature in Column (2) of such report.

3. Per Contra, the learned Public Prosecutor and the learned counsel for the Respondent No.2 argues in support of the impugned orders and places reliance upon the judgment of Apex Court in the matter of of Nahar Singh v. State of U.P. (Supra).

4. Upon perusal of the impugned orders, and after reviewing the material available on record and the authorities cited by both parties, it becomes evident that the following facts are undisputed: The investigation against the petitioner was kept pending under Section 173(8) of the CrPC while a charge sheet was submitted against the other co-accused. The trial court took cognizance of the offences under Sections 302 and 147 of the Indian Penal Code and committed the case to the learned Sessions Court. A closure report regarding the Petitioner's case was subsequently submitted to the Magistrate’s court. The Magistrate passed the impugned order following a protest petition filed by Respondent No. 2.

5. The core question before the court is whether the order passed by the learned trial court, and affirmed by the Revisional court, suffers from patent illegality as expounded in the ratio laid down in case of Dharam Pal (Supra).

6. Before entering into the facts of the present matter it would be relevant to refer to the principles laid down in case of Dharam [2025:RJ-JP:29854] (4 of 9) [CRLMP-6584/2019] Pal (Supra), wherein the court framed the following questions, which are reproduced as under:- “7.1. Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session?

7.2. If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report?

7.3. Having decided to issue summons against the appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?

7.4. Can the Sessions Judge issue summons under Section 193 CrPC as a court of original jurisdiction?

7.5. Upon the case being committed to the Court of Session, could the Sessions Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?

7.6. Was Ranjit Singh case [Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554], which set aside the decision in Kishun Singh case [Kishun Singh v. State of Bihar, (1993) [2025:RJ-JP:29854] (5 of 9) [CRLMP-6584/2019] 2 SCC 16 : 1993 SCC (Cri) 470] , rightly decided or not?”

7. The observation of the Court with regards to Questions 1 to 5 are reproduced as under:- “33. As far as the first question is concerned, we are unable to accept the submissions made by Mr Chahar and Mr Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate has no other function, but to commit the case for trial to the Court of Session, which could only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr Dave, there could be no intermediary stage between taking of cognizance under Section 190(1)(b) and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Sessions Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event the Sessions Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same.

35. 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(2) CrPC. 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, [2025:RJ-JP:29854] (6 of 9) [CRLMP-6584/2019] 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 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.

36. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Sessions Court.

39. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. 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 [2025:RJ-JP:29854] (7 of 9) [CRLMP-6584/2019] 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 be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Sessions Judge.” (Emphasis Supplied)

8. In the present case, although the facts are somewhat different from those discussed in the matter of Dharam Pal (Supra) however, the tenets outlined in paragraphs 33, 34 and 35 are relevant to the present case. The powers of the Magistrate to act upon after submission of the report under 173(2) Cr.P.C have been culled precisely in para 34 & 35 of the judgment and resultantly it confers unfettered powers to the Magistrate in the sessions triable case under section 190 of the Cr.P.C either to agree or disagree with the conclusion arrived at by the police and act accordingly.

9. Furthermore, para 39 of the judgment is with regards to the powers under Section 193 of the Cr.P.C conferred on the Sessions court and where the Magistrate does not pass an order against the accused shown in column two of the charge-sheet than in that condition the court of Sessions under section 193 of the Cr.P.C can exercise powers to summon against the accused left out, subject to their involvement in the crime. [2025:RJ-JP:29854] (8 of 9) [CRLMP-6584/2019]

10. The verbiage used in the relevant para 39, “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”, pertains to the power of cognizance by the sessions court under 193 Cr.P.C.

11. Further, the said para 39 of the judgment can not be read in isolation rather requires being read with the directives dealt with at para 31, 32, 34 and 35. The powers of the Magistrate to act upon after submission of the report under 173(2) Cr.P.C have been culled specifically in para 34 & 35 of the judgment and resultantly it confers unfettered powers to the magistrate in the sessions case under section 190 of the Cr.P.C either to agree or disagree with the conclusion arrived at by the police.

12. In the present case when the matter was committed to the court of Sessions there was no material before the Magistrate to apply his mind regarding the involvement of the petitioner in the alleged crime as the police did not arrive at any conclusion and rather matter was kept pending investigation under 173(8) of the Cr.P.C. Further, the words cognizance and summoning the accused are denotes entirely separate connotations and are distinctly deal with in different Chapters of the Cr.P.C.

13. In the matter of S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. & Ors., (2008) 2 SCC 492, the expression cognizance was explained by the Supreme Court as it merely means to become aware of and when used concerning a court or a Judge, it connotes to take notice of judicially. It indicates the point when a court or a Magistrate takes judicial [2025:RJ-JP:29854] (9 of 9) [CRLMP-6584/2019] notice of an offence to initiate proceedings in respect of such offence said to have been committed by someone. It is entirely a different thing from the initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Whereas summoning an accused is a process issued by a Court calling upon a person to appear before it. It is used to notify an individual of his legal obligation to appear before the Court as a response to a violation of the law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court.

14. Thus, the impugned order passed by the Magistrate falls in the category of summoning the accused and by no stretch of imagination can it be termed as cognizance.

15. Upshot to the above discussion, this Court does not find any illegality or perversity in the impugned orders passed by the learned Trial court and by the learned Revisional Court.

16. As a result, the instant criminal misc. petition fails and stands dismissed. Ramesh Vaishnav/86 65 (PRAVEER BHATNAGAR),J