Paragraph numbers below are the court’s original numbering, recovered from the source text.
9. Indisputably, 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 G (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 Singh.
10. Neither any order taking cognizance was passed against the appellants nor their names figured in the order H committing the case to the Court of Sessions. –..
11. We 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.
12. There cannot be any doubt or dispute whatsoever that a cognizance is taken of an offence and not against the c 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 proceeding initiated by his taking cognizance of an offence."
13. The 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.
14. Section 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 A 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 8 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- C 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.
15. In absence of any power to take cognizance of an D offence, the Sessions Judge, therefore, could have taken recourse only to the provisions contained in Section 319 of the Code of C1iminal Procedure. For the purpose of attracting the said provision, keeping in view the extraordinary power conferred thereunder upon a Sessions Court, orders E 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 [(2001) 8 sec 2211
16. Such 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 c 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, withoyt the ~ase 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." ""-+ 17.
The 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, [2009) 8 S.C.R. A even otherwise was not empowered to direct the investigating officer to submit a charge sheet.
18. The 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 8 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 Section 190. c 19. We 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 0 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 Court in E 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 lnder 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 I- -· • – I committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, u~~er 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 wherep@,rsons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, f~il to submit a report, j t 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 c person, but also where he has knowledge or even suspicion that the offence has been committe<j IUs·open to the Magistrate to take cognizance of the off~nce, 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 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·rep9rt 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 ttie decision. Such a function has been left to the police under the Code."
20. The 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 c 409]. 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 If: D 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 F 649], it was held : "17. The 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 ·1 t ' that is in accord with his views. Even In a case where a A ….. report is submitted by the investigating agency finding that hO case is made out for prosecution, it is open to the Magistrate to 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 f .. collected during the course of investigation." In Kishun Singh v. State of 8ihar[(1993) 2 SCC 16], this Court observed: c ''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 t 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 pf 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." The above decision was followed by this Court in Nisar & Anr. v. State of U.P. [(1995) 2 sec 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 f. – 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 law. 21 . We may furthermore notice tbat the question as to t whether Kishun Singh has been correctly decided or not, c 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.
22. Despite the same, we have proceeded to dispose of the matter, assuming that the decision rendered by this Court D 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 Criminal Procedure or Section 319 of the Code of Criminal Procedure. The impugned E order framing charges against the appellants for the reasons mentioned 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.
23. We 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 G Procedure so far as the appellants are concerned in which event, the procedure laid down therein must be resorted to.
24. The appeal is allowed with the aforementioned observations and direction. No costs. H N.J. Appeal allowed.