KALLU NAT ALIAS MAYANK KUMAR NAGAR versus STATE OF U.P. AND ANR.

51. The stage at which the provisions of Section(s) 207 and 208 of the Code, respectively spring into action, de hors Section 209, can be gleaned from the heading of Chapter XVI wherein these provisions are contained; “Commencement of Proceedings before Magistrates”. The said Chapter, deals with the stage, where the accused person is before the Magistrate, either by way of issue of process under [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. Section 204 of the Code, or if such person appears on his own, or is brought before the Magistrate by the police, which as already discussed in the foregoing paragraphs, signifies that the Magistrate has taken cognizance of the offence, and has now proceeded further under the Code, by initiating proceedings against persons accused of committing such offences. That apart, the documents, copies of which, have to be supplied to the accused, under each of these provisions, are all documents that have become part of the record before the Magistrate, by virtue of him, having already proceeded under the provisions of Section 200 and subsequent sections of Chapter XV in case of complaint case, which again reinforces that at this stage the Magistrate has taken cognizance.

52. It could be argued, that in a case instituted upon a police report, the Magistrate not having proceeded in terms of Chapter XV, as he is no required to in such cases, may not necessarily have taken cognizance of the offence. There may be situations where although police report may have been submitted to a Magistrate under Section 173, but the stage of taking cognizance of an offence on the basis of such report in terms of Section 190 of the Code, may not have reached by the Magistrate. It is particularly in this context, that our discussion in the foregoing paragraphs assumes importance. We have already discussed, how the act of taking cognizance of an offence does not involve any formal action of any kind, and cannot be construed by any rigid formula. Whether cognizance of an offence has been taken, or not taken or yet to be taken, depends in the peculiar context of the case and the stage of proceedings therein, and lodestar for answering the same has to be discerned from the procedure adopted by the Magistrate. Nevertheless, when a Magistrate, upon receiving a police report, proceeds further, by complying with the procedural requirements laid down in Section 207 of the Code, he is deemed to have taken cognizance of the offence. For there can be no need or question of supplying the documents envisaged under Section 207 to the accused, if cognizance of the offence is not taken, and more importantly, there can be no situation where the accused is compelled to appear before the Magistrate, or made a part of the proceedings in connection with any case instituted, if cognizance of the offence, involved therein is not yet taken. This is because prior to taking cognizance of an offence, the person alleged to be the accused, has no locus in the proceedings. 652

53. It also flows from the cardinal principal of criminal jurisprudence, that unless the court is satisfied, upon application of its mind about the occurrence of an offence, in other words, unless cognizance of an offence is taken, a person even though alleged or suspected to be involved in the commission of such offence, cannot be called upon or compelled to partake in the criminal proceedings, on a mere suspicion, lest it violate the right of dignity of such person as-well as the right of such person against self-incrimination enshrined in Article(s) 20 and 21 of the Constitution and undermine the sanctity of criminal proceedings, the bedrock of which is fairness. The imperative requirement of first taking cognizance of an offence, before any person is arrayed in the proceedings as an accused, is not a mere procedural formality, it is there to ensure that no person is subjected to the rigours of criminal proceedings on a conjectural suspicions and unverified allegations. To do so, would gravely prejudice and stigmatize the dignity and reputation of such person, or put simply, the right to life of such persons, and more importantly, to ensure that a person suspected of committing an offence, is not compelled to give any information or evidence, in other words, incriminate himself, for the very purpose of then establishing and making out an offence against him or in simple words taking cognizance of an offence against such person.

54. The expression “the accused appears or is brought before the Magistrate” used in Section 209 of the Code, which, at the cost of repetition, deals with committal of cases to the Court of Session when offence is triable exclusively by it, have to be understood in the context of the aforesaid paragraphs. Section 209 of the Code, leaves no room for ambiguity. The words used in it are clear as a noon day. There can be no committal of a case by a Magistrate to the Court of Session, unless the accused is before it. It is not difficult to comprehend why; Section 209 insists upon the requirement for the person accused to be before the Magistrate before the committal of the case takes place. The reason is quite simple. There can be no compliance of the requirements envisaged under Section(s) 207 or 208 of the Code, as the case may be, if a person is not yet arrayed as an accused to the case instituted before the Magistrate. As both these provisions mandate the requirement to furnish the copies of the documents enumerated therein, to the accused, thereby indicating that when the Magistrate proceeds under the provisions of Section(s) 207 or 208 and then 209 of Chapter of XVI of the Code, cognizance [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. of the offence is already taken, and further that the Magistrate has also applied its mind to find out who the offenders really are. [See: Raghubans Dubey v. State of Bihar, 1967 Cri LJ 1081 (SC)].

55. This is further reinforced from clause(s) (b) and (d) of Section 209 of the Code, which talk about the duty of the Magistrate to remand the accused to custody and to notify the Public Prosecutor about the committal of the case to the Court of Session. Section 209(b) stipulates that for the purpose of committal of the case to the Court of Session, the Magistrate, has to remand the accused to custody, subject to the provisions of bail, “during, and until the conclusion of, the trial”. This itself indicates that, when the accused is being remanded by the Magistrate, it is being done, for the purpose of undergoing trial, which presupposes that, the Magistrate is satisfied that there is enough material for the purpose of sending such accused to trial. On the other hand, the duty to, notify the Public Prosecutor under Section 209(d), as regards the committal of the case, is for the purpose of facilitating the opening of the case by the prosecution before the Court of Session in terms of Section 226 contained in Chapter XVIII, which specifically deals with “Trial before a Court of Session”.

56. It is worthwhile to note that Section 190 of the Code, which as already stated deals with Cognizance of offences by Magistrates, specifically employs the words “any offence”. Thus, subject to conditions laid down in Chapter XIV, a Magistrate by virtue of Section 190 of the Code has been specifically and consciously empowered to take cognizance of “Any Offence”. The use of the expression “Any Offence” is particularly significant, because even-though the Code, in Chapter(s) XV and XVI has qualified the meaning of the term “offences” with the expression “triable exclusively by the Court of Session”, wherever necessary, no such expression has been juxtaposed with the term “offences” insofar as Chapter XIV is concerned. This reinforces that the language couched in Section 190 of the Code, more particularly the words “any offence” is of wide import and that a Magistrate is empowered to take cognizance of an offence even if the same is triable exclusively by the Court of Session. b. Role of the Court of Session after the case is committed to it by the Magistrate under Section 209 of the Code.

57. For a better exposition on the issue of who takes cognizance of offence under which is exclusively triable by a Court of Session, 654 under the Code, it would be apposite to under the procedure that is to be followed after a case where an offence is exclusively triable by a Court of Session, is committed by a Magistrate to the Court of Session. In this regard, the provisions of Section(s) 226, 227 and 228 of the Code are of significance.

58. Once a case has been committed by the Magistrate to a Court of Session in terms of Section 209, the procedure that follows suit, is provided in Section(s) 225 to 237 in Chapter XVIII of the Code. The heading of Chapter XVIII is also very clear. It reads, “Trial before a Court of Session”. Thus, once a case has been committed, the procedure that now has to be adopted by the Court of Sessions is in lieu of commencement of trial.

59. Although, one must be mindful that, mere committal of the case, does not mean that trial has now commenced. Trial in respect of any case instituted under the Code, commences only after the charges have been framed. All stages prior to the framing of charges, are a pre-trial stage, which may also happen to be a stage of inquiry. All that we are trying to emphasize, on the basis of the heading of Chapter XVIII of the Code is that, the procedure that the Court of Session is expected to adopt is towards commencement of trial, and not for the purpose of taking cognizance of an offence, which as discussed in the foregoing paragraphs of this judgment, already stands taken by the Magistrate, who committed the case to the Court of Session. This may be better understood by taking a closer look at few provisions of Chapter XVIII, and by discerning what the Court of Session is empowered to do, post the committal of the case to it.

60. Section 225 of the Code, although merely explanatory in nature as to how trials are to be conducted before a Court of Session, yet is of some degree of aid, inasmuch as it further indicates that the procedure laid down in Chapter XVIII is for the purpose of facilitating the trial. The provision simplictier states that in every trial before a Court of Session, the prosecution shall be done by a Public Prosecutor. The said provision reads as under: – “225. Trial to be conducted by Public Prosecutor.— In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.” [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.

61. Section 226 of the Code, is the immediate next procedural step after the case has been committed by a Magistrate to the Court of Session in terms of Section 209. The said provision stipulates that, when the accused appears or is brought before the Court of Session “in pursuance of a commitment of the case under Section 209” the prosecutor shall first open his case. In doing so, the prosecutor is required to describe the charges brought against the accused and further stating the evidence, he proposes to prove for establishing the guilt of such accused. Section 226 of the Code reads as under: – “226. Opening case for prosecution.— When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.”

62. A bare perusal of the aforesaid provision, makes it clear that, the first procedural step that is ordinarily contemplated to be undertaken by a Court of Session, under the Code, after the committal of the case by the Magistrate under Section 209, is to be apprise itself as-well as the accused about the charges that are brought against such accused. Section 226 does not contemplate, any procedural step of first satisfying the Court of Session about the occurrence of an offence, such that the Court of Session, in turn, take cognizance of the offence. The procedure contemplated in the said provision, presupposes the cognizance of the offence. This is because, as already discussed by us, in the foregoing parts of the judgment, the Magistrate before committal of the case, is already expected as-well as deemed to have taken cognizance of the offence, sought to be brought to trial before the Court of Session.

63. Section 227 of the Code deals with discharge. Where the Court of Session, upon consideration of the record of the case and documents tendered with it, and after hearing the accused and the prosecution in regards to such material on record, considers that there is no sufficient ground for proceeding against the accused, then the Court of Sessions, shall discharge the accused, by recording reasons for the same. The said provision reads as under: – 656 “227. Discharge.— If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

64. At this stage, we may address ourselves on one another aspect, with a view to obviate any confusion. It may be argued, that the cognizance of an offence can only be taken by that court who is also empowered to discharge the accused qua such offence. Since, in a case where the offence is exclusively triable by the Court of Session, as is manifest from a reading of Section(s) 209, 226 and 227 of the Code, only a Court of Sessions is empowered to discharge an accused, it must be the one who must take cognizance of the offence, and not the Magistrate, whose role is only confined to committing the case to the Court of Session. Although, such an argument may be seemingly lucrative and appealing, the same is a misunderstanding of the basics of what is meant by “taking cognizance”.

65. One another fundamental aspect pertinent to bear in mind is that, cognizance of an offence is taken when the judicial authority who has applied its mind, comes to the finding that it is necessary to initiate proceedings. The act of “taking cognizance” as already discussed, signifies judicial application of mind on the allegations purported to be levelled. Equally important to remember is that cognizance is of an offence and not the offender. Where, however, there is no offence, there can be no cognizance, as there can be no proceedings initiated. In the course of uncovering, whether there is any offence, whose cognizance is to be taken, the court or the Magistrate, as the case may be, comes to the finding that there is no offence, all proceedings initiated leading upto such conclusion are dropped. In other words, any proceedings that may have been initiated under the Code, for determining, if there an offence has taken place or not, come to an end and are dropped once it is found that no offence had occurred. This is quite distinct from ‘discharge’, for the reason that discharge does not necessarily, always lead to dropping of proceeding. Discharge is always qua the accused person, as opposed to cognizance which is always qua the offence [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. itself. Discharge of an accused does not tantamount to the negation or eradication of the necessity to initiate proceedings in the first place. Discharge only signifies that; there isn’t sufficient ground to charge the person accused of commission of a particular offence. It has no bearing on the offence itself whose cognizance was taken, as the occurrence of such offence and the correlating necessity for initiation of proceedings still remains. Discharge of an accused does not mean that no offence had occurred in the first place. Take for instance, the Magistrate had taken cognizance of an offence, pursuant to which two persons ‘A’ and ‘B’ came to be arrayed as accused. Later, the Court of Sessions, finds that there isn’t sufficient material to proceed against ‘B’. This does not mean that there is no necessity for initiation of proceedings in respect of the said offence, as the same may still continue in respect of ‘A’. Even if ‘A’ also comes to be discharge, it does not stand that no offence had taken place, and it would be the bounden duty of the Court to find out the actual offenders. Cognizance is always qua an offence and always correlates to initiation of proceedings, whereas, discharge is only qua an accused and concerned with if there is sufficient ground to proceed against such accused.

66. If at all, there was a correlation between the power to “discharge” and the act of “taking cognizance”, such that only that court empowered to discharge an accused for an offence, could be said to be empowered to also take cognizance of such offence in the first place, then there would have been no need for the Code to contain the provisions pertaining to discharge by a Court of Session and by a Magistrate, in separate distinct Chapters, more particularly Chapter XVIII; Section 227 and Chapter XIX; Section(s) 239 and 245, respectively, which specifically deal with trials before the Court of Session and Magistrates, respectively. The Code would have simpliciter empowered the Court of Session and the Magistrate to discharge an accused under Chapter XIV, which deals with cognizance of offences by Magistrates and Courts of Session. This reinforces that, the power to discharge an accused, is nothing more than a safeguard against any mechanical or capricious framing of charges; a pre-requisite for commencement of trials, and thus, correlates only to trials, and has nothing to with the act of “taking cognizance” under the Code.

67. Section 228 of the Code is particularly of significance for an insight into the role that a Court of Sessions plays after a case is 658 committed to it by the Magistrate. Section 228 which deals with framing of charges, stipulates that, where after such consideration and hearing as contemplated under Section(s) 226 and 227 of the Code, the Court of Session is of the opinion that there is ground for presuming that the accused has committed an offence, then only two options are available to it: first, where it finds that the offence is not exclusively triable by the Court of Session, then, it may either frame a charge against such accused and thereafter, transfer the case back to the Magistrate mentioned therein, or simply transfer the case back without framing any charge; or second, where it finds that the offence is indeed exclusively triable by the Court of Session, then it shall proceed to frame a charge against such accused. The said provision reads as under: – “228. Framing of charge.— (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

68. It is manifest from a careful reading of the aforesaid provision, that a Court of Session, after a case has been committed, is only required [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. to see, if the offence in the case, is one exclusively triable by it or not. Where, the offence is not exclusively triable by it, the Court of Session will mandatorily transfer the case to the Magistrate as specified in Section 228 sub-section (1) clause (a). Where, however the offence is exclusively triable by it, the Court of Session will mandatorily proceed to frame charges. The only discretion that has been conferred upon the Court of Session, is in the former, where it can decide whether to frame the charge himself or not, before mandatorily transferring the case back to the Magistrate as specified therein.

69. There is no discretion conferred upon the Court of Session, to whom a case has been committed to go into the question, whether any offence has taken place, cognizance of which may be taken. Once the Court of Session is in seisin of the case in terms of Section 209 of the Code, it cannot go into the question whether, the case is fit one for it to take cognizance or to drop the proceedings, for it is assumed that the case has been committed to it by the Magistrate after application of his mind. Section 228, more particularly the words “there is ground for presuming that the accused has committed an offence” presupposes the cognizance of offence, or put simply, it means that the Court of Session is already alive to the fact that there has been an offence, which is why it is only required to form an opinion that there is ground for presuming that the accused has committed such offence and thereafter, must decide whether, the offence is one exclusively triable by it or not. Even under Section 228(1)(a), the Court of Session is only empowered to transfer the case back to the Magistrate, with the discretion of framing the charge first, if the offence is not exclusively triable by it. It cannot go into the question, whether there is any offence or not, worth initiating proceedings under the Code. This is further fortified from the expression “and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report” in Section 228(1)(a) which indicates that where such case is transferred back to the Magistrate, the Magistrate is mandated to thereafter proceed to try such offence i.e., to commence trial in respect of the same. The Court of Session is not empowered to send back the case to the Magistrate for relooking into whether cognizance should be taken or not.

70. A combined reading of Section(s) 226, 227 and 228, clearly outline, that after the case is committed to the Court of Session, its role is 660 only limited for the purpose of deciding whether the case is a fit one for commencing trial against the accused, and whether such offence should be tried by it or by the Magistrate. After a case is committed to the Court of Session, the first immediate procedural step envisaged by the Code, is under Section 226, whereby the Court apprises itself and through it the accused about the charges. Thereafter, the next course of action available to the Court of Session, is only in terms of Section(s) 227 and 228 of the Code. The expressions “considers that there is not sufficient ground for proceeding against the accused” and “is of opinion that there is ground for presuming that the accused has committed an offence” used in Section(s) 227 and 228, respectively, to our minds, appear to empower the Court of Session to only decide whether on the basis of the material on record and the submissions of the accused and the prosecution, there is enough material to either commence a trial or discharge the accused. The framework of the provisions of Section(s) 226, 227 and 228 of the Code, to our minds, do not appear to envisage any power of the Court of Session, to decide whether cognizance of the offence should be taken or not, or the question whether the Magistrate should have taken cognizance or not. For offences which are exclusively triable by the Court of Session, the role that the Court of Session is expected to play in terms of Section(s) 226 to 228, after the case has been committed to it, is not only altogether different from the one that a Magistrate is required to play but also one concerned only with the stage “post-cognizance of offence” in respect of the case committed to it.

71. We say so, because, unlike Section 190 of the Code, which 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 Section 190, which empowers the Court of Session to do so, in respect of cases committed to it by the Magistrate. At the same time, there is also no provision, which empowers the Court of Session, to decide whether the committal of the case was correct or not, to such nature and extent, that the Court of Session be said to be empowered to sit in appeal over the committal proceedings and decide or rather re-decide if the cognizance of the offence should be taken or should have been taken in the first place or not. The only limited power that the Court of Session has been armed with over the order of committal passed [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. 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 Section 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 when seen in light of the expression “Any Offence” used in Section 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. c. Object and Purpose underlying Section 193 of the Code.

72. The proposition of law, that where a case is committed by the Magistrate in view of the offence being exclusively triable by the Court of Session, it is only the Magistrate who takes cognizance of the offence and not the Court of Session has to be understood in the context of Section 193 of the Code.

73. The marginal note appended to Section 193 of the Code, reads as “Cognizance of offences by Courts of Session”. It stipulates that no Court of Session shall be empowered to take cognizance of any offence as a Court of Original Jurisdiction, unless the case has been committed to it by the Magistrate, or where it has been expressly empowered to do so, either under the Code or any other law. Section 193 reads as under: – “193. Cognizance of offences by Courts of Session.— Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”

74. A reading of the aforesaid provision, makes it manifest, that there is a clear embargo cast upon the Court of Session from taking cognizance of any offence, as a Court of original jurisdiction i.e., no 662 cognizance of an offence can be taken by a Court of Session in its original capacity, as a point of initiation of any proceedings under the Code. The expression “as a Court of original jurisdiction” warrants a careful interpretation. The said expression cannot be construed to mean that merely because the Court of Session is precluded from taking cognizance of an offence as forum of inception of proceedings under the Code i.e., as an original forum, that it must by necessary implication, be presumed to be empowered to take cognizance of an offence as a forum of superior jurisdiction or as an intermediate procedural forum at a subsequent stage in the proceedings already initiated. To say so, would go against the well-established rule, that cognizance of an offence can only be taken once, as held in Dharam Pal (supra) and Balveer Singh (supra). The negative language employed in Section 193 of the Code, more particularly, “no Court of Session shall take cognizance of any offence” which has been used in conjunction with “unless the case has been committed to it” is not suggestive of the fact that, where a case has been committed to the Court of Session, it has to then mandatorily take cognizance of the offence. To say would, resulting in turning the very tenets of the act of “taking cognizance” over its head. It would lead to an absurd interpretation, where, although the Magistrate, by way of Section 190 of the Code has the discretion to take cognizance of an offence, no such discretion exists insofar as the Court of Session is concerned.

75. In Pradeep S. Wodeyar v. State of Karnataka, reported in (2021) 19 SCC 62, this Court has elaborately noted upon the scope of Section 193 as thus: “23. … Section 193 stipulates that unless the case has been committed by a Magistrate to the Sessions Court under the Code, no Court of Session shall take cognizance of any offence. But there are two exceptions to this formulation, namely, where: (i) the CrPC has made an express provision to the contrary; and (ii) an express provision to the contrary is contained in “any other law for the time being in force”. The bar in Section 193 is to the Sessions Court taking cognizance of an offence, as a court of original jurisdiction [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. unless the case has been committed to it by the Magistrate under the Code. Xxx 38. Section 193CrPC states that the Sessions Court shall not take cognizance of an offence as a court of original jurisdiction unless the Magistrate commits the case to it. The only exception is if it is expressly provided otherwise by the Code or the statute. Neither the Code nor the MMDR Act provide that the Special Court could directly take cognizance of the offences. Therefore, the Sessions Court did not have the authority to take cognizance. Section 209CrPC provides the Magistrate the power to commit the case. In Dharam Pal v. State of Haryana [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159], a Constitution Bench, while discussing whether the committing court was required under Section 209 to take cognizance of the offence before committing the case to the Court of Session, held that the Magistrate could either commit the case before or after taking cognizance. In this case, the Special Court has directly taken cognizance. It now needs to be determined if this irregularity in the cognizance order vitiates the entire proceedings for the order to be quashed and set aside. Xxx 50. It is a well-settled principle of law that cognizance as envisaged in Section 190CrPC is of the offence and not of the offender. The expression “cognizance of any offence” is consistently used in the provisions of Sections 190, 191, 192 and 193. [ As a matter of fact, the expression “cognizance of any offence” is also used in Sections 195, 196, 197, 198, 198-A, 198-B and 199. Chapter XV CrPC which governs complaints of Magistrates also emphasises the principle that cognizance is of an offence. The same principle, as we have seen earlier, is emphasised in Chapter XVI in which Section 204(1) adverts to a Magistrate “taking cognizance of an offence”.] Xxx 664 56. It is evident from the discussion in Kishun Singh [Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] and Dharam Pal [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159] that in view of the provisions of Section 193CrPC, cognizance is taken of the offence and not the offender. Thus, the Magistrate or the Special Judge does not have the power to take cognizance of the accused. The purpose of taking cognizance of the offence instead of the accused is because the crime is committed against the society at large. Therefore, the grievance of the State is against the commission of the offence and not the offender. The offender as an actor is targeted in the criminal procedure to provide punishments so as to prevent or reduce the crime through different methods such as reformation, retribution and deterrence. Cognizance is thus taken against the offence and not the accused since the legislative intent is to prevent crime. The accused is a means to reach the end of preventing and addressing the commission of crime.” (Emphasis supplied) 76. Likewise in Nahar Singh v. State of U.P., reported in (2022) 5 SCC 295, this Court made the following observations on Kishun Singh (supra) to comment on the nature of cognizance under Section 197 of the Code: “23. In Kishun Singh case [Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470], the scope of jurisdiction of the Court of Session under Section 193 of the Code was explained, relying on an authority dealing with similar provision under the 1898 Code (P.C. Gulati v. Lajya Ram [P.C. Gulati v. Lajya Ram, AIR 1966 SC 595 : 1966 Cri LJ 465 : (1966) 1 SCR 560] ). The phrase used to explain the implication of taking cognizance by a Court of Session in the judgment of Kishun Singh [Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] was “cognizance in the limited sense”. 24. In para 8 of the Report (in Kishun Singh case [Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] ), it has been held observed : (SCC pp. 24-25) [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. “8. Section 193 of the old Code placed an embargo on the Court of Session from taking cognizance of any offence as a court of original jurisdiction unless the accused was committed to it by a Magistrate or there was express provision in the Code or any other law to the contrary. In the context of the said provision this Court in P.C. Gulati v. Lajya Ram [P.C. Gulati v. Lajya Ram, AIR 1966 SC 595 : 1966 Cri LJ 465 : (1966) 1 SCR 560], SCR p. 568, AIR p. 599, Cri LJ p. 469 observed as under : (AIR p. 599, para 21) ‘21. When a case is committed to the Court of Session, the Court of Session has first to determine whether the commitment of the case is proper. If it be of opinion that the commitment is bad on a point of law, it has to refer the case to the High Court which is competent to quash the proceeding under Section 215 of the Code. It is only when the Sessions Court considers the commitment to be good in law that it proceeds with the trial of the case. It is in this context that the Sessions Court has to take cognizance of the offence as a court of original jurisdiction and it is such a cognizance which is referred to in Section 193 of the Code.’ ”” (Emphasis supplied) 77. It is well noted in a legion of authorities that the commitment which is talked of under Section 193 of the Code is a commitment of the “case” and not that of the “offender”. The purpose of Section 193 is to allow Court of Sessions the limited window to deemed to have taken cognizance on its own motion. 78. The question of law formulated by us calls for our examination in the light of the earlier Section 193 of the old Code and the change 666 brought therein by the Code of 1973. It is, therefore, necessary to juxtapose the two provisions: Old Code New Code “Section 193(1) : Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. Section 193 : Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 79. From the above, the meaningful and significant change brought about in the Code of 1973 seems manifest. In the earlier provision, the requirement was that the accused must have been committed to the Court of Session by a Magistrate. The legislature made a change by deleting the word ‘accused’ and provided instead that the ‘case’ should have been committed to the Court of Session. 80. 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. To highlight, what is committed to the Court of Session by the Magistrate is the case or the offence for trial and not the individual offender therefor. To hold otherwise would be again relapsing into the fallacy that cognizance is taken against individual accused persons and not of the offence as such. This was the evil which the amendment sought to remedy in express terms. 81. In the aforesaid context, we must look into the following observations made in Joginder Singh vs. State of Punjab reported in 1979 Cri LJ 333 (Para 6) :- “It will be noticed that both under Section 193 and Section 209 the commitment is of ‘the case’ and not of ‘the accused’ whereas under the equivalent provision of the old Code, viz., Section 193(1) and Section 207-A it was ‘the accused’ who was committed and not ‘the case’. It is true that there cannot be a committal of the case without [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. there being an accused person before the Court, but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court but once “the case in respect of the offence qua those accused who are before the Court is committed then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it;” (Emphasis supplied) 82. Therefore, what the law under section 193 seeks to visualise and provide for now is that 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. 83. In Kishun Singh vs. State of Bihar reported in (1993) 2 SCC 16, the question before the Court was whether the Court of Sessions to which a case has been committed to for trial by the Magistrate, can without recording evidence, summon a person not named in the police report by exercise of its power under Section 319 CrPC. The two judge Bench held that when a case is committed to the Court of Sessions by the Magistrate under Section 209 on the ground that it is exclusively triable by it, the Sessions Court would have the power to take cognizance of the offence. It was thus held that since cognizance is taken of the offence and not the accused, if any material suggests the complicity of other persons in the offence, the Court of Sessions can summon such other persons. The court, by drawing a comparison between Section 193 of the Code of 1973 and the Code of 1898, and on a reading of Section 209 CrPC held that both the committal and cognizance is of the offence and not 668 the accused/offender. The Court summarized the position in law in the following observations: – “7. […] Section 190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence, that is to say, take notice of an allegation disclosing commission of a crime with a view to setting the law in motion to bring the offender to book. Under this provision cognizance can be taken in three ways enumerated in clauses (a), (b) and (c) of the offence alleged to have been committed. The object 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 this 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 the 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. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. It may Immediately be noticed that under the old provision a Court of Session could not take cognizance of an offence as a court of original jurisdiction unless the accused was committed to it whereas under the recast section as it presently stands the expression the accused has been replaced by the words the case. As has been pointed out earlier, under Section 190 cognizance has to be taken for the offence and not the offender; so also under Section 193 the emphasis now is to the committal of the case and no more on the offender. So also Section 209 speaks of committing the case to the Court of Session. On a conjoint reading of these provisions it becomes clear that while under the old Code in view of the language of Section [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. 193 unless an accused was committed to the Court of Session the said court could not take cognizance of an offence as a court of original jurisdiction; now under Section 193 as it presently stands once the case is committed the restriction disappears.” “16…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 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 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.” (Emphasis supplied) 84. In other words, 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 above principles were reiterated in a two judge Bench decision in State of W.B. vs. Mohd. Khalid reported in (1995) 1 SCC 684. Justice S Mohan speaking for the Court observed: “43.[…] Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word ‗cognizance‘ indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the 670 initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.” (Emphasis supplied) d. How the decision of this Court in Dharam Pal (supra) should be understood. 85. In Dharam Pal (supra) a Constitution Bench was called upon to answer the following questions: “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 v. State of Punjab, which set aside the decision in Kishun Singh v. State of Bihar, rightly decided or not?” (Emphasis supplied) [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. 86. Answering the reference, the Constitution Bench held that:- (i) The Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173(2) of the Code and to proceed against the accused persons dehors the police report. 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) of the Code. 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. (ii) Thereafter, if on being prima facie satisfied that a case had been made out to proceed against the persons named in Column 2 of the report, he may proceed to try the said persons or if he is satisfied that a case had been made out which was triable by the Court of Session, he must commit the case to the Court of Session to proceed further in the matter. Further, if the Magistrate decides 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 is found to be triable by the Sessions Court. (iii) The Sessions Judge is entitled to issue summons under Section 193 of the Code upon the case being committed to him by the Magistrate. Section 193 speaks of cognizance of offences by the Court of Session. The key words in the section are that ‘no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code’. The provision of Section 193 entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. The submission that the cognizance indicated in Section 193 deals not with cognizance of an offence but of the commitment order passed by the Magistrate, was specifically rejected in view of the clear wordings of Section 193 that the 672 Court of Session may take cognizance of the offences under the said section. (iv) 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, proceeding 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 Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 of the Code will, therefore, have to be understood as the 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 Sessions Judge. 87. In the process of coming to the aforesaid conclusions, this Court accepted the view expressed in Kishun Singh (supra) that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offence which would include the summoning of the person not named as offender but whose complicity in the case would be evident from the materials available on record. It specifically held that upon committal under Section 209 of the Code, the Sessions Judge may summon those persons shown in Column 2 of the police report to stand trial along with those already named therein. (See: Balveer Singh (supra)) 88. At the same time, the Court also held that it would not be correct to hold that on receipt of a police report and seeing that the case is triable by a Court of Session, the Magistrate has no other function but to commit the case trial to the Court of Session and the Sessions Judge has to wait till the stage under Section 319 of the Code is reached before proceeding against the persons against whom a prima facie case is made out from the material contained in the case papers sent by the Magistrate while committing the case to the Court of Session. This is reflected in the following passage: [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. “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.” (Emphasis supplied) 89. In Dharam Pal (supra), a Constitution Bench was deciding on whether the Court of Sessions has the power under Section 193 CrPC to take cognizance of the offence and then summon other persons not mentioned as accused in the police report. The issue was referred to a five-judge Bench in view of the conflicting decisions in Kishun Singh (supra) and Ranjit Singh v. State of Punjab reported in (1998) 7 SCC 149. As discussed above, while in Kishun Singh (supra), it was held that the Sessions Court has such a power under Section 193 CrPC, it was held in Ranjit Singh (supra) that from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 CrPC, the Court could not arraign any other person as the accused. The Constitution Bench affirmed the view in Kishun Singh (supra) on the ground that the Magistrate before whom the final report is submitted has ample powers to disagree with the report filed by the police under Section 173(2) and to proceed against the accused persons de hors the police report. However, 674 if the interpretation in Ranjit Singh (supra) were to be followed, it would lead to an anomaly where the Sessions Court would not have this power till the Section 319 stage is reached, which the Magistrate would otherwise have. In that context, the Constitution Bench observed: “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, 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.” (Emphasis supplied) 90. In view of the aforesaid discussion, the position of law is clear that the Court of Session has power under Section 193 CrPC to summon a person as accused to stand trial, even if he has not been charge- sheeted by the police and whose complexity in the crime appears in the evidence available on record. To hold in such a situation, that if the investigating agency blatantly exonerates an accused person and the Magistrate does not consequently commit him, the Court of Session itself would be rendered powerless to put such an offender in the dock at the very opening stage of the trial, would to our mind only hamper the cause of justice rather than advance it. It is to be borne in mind that herein we are construing procedural provisions and it is well-settled that procedure is the hand-maid of justice and is not to be employed as a roadblock thereto. Therefore on the larger canon of construction there appears to be no logic for narrowly construing the statute so as to denude the Court of Session of the power to summon a person to stand his trial at the outset even when wholly convinced of a prima facie case against him on the basis of materials in the final report which is admittedly [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. adequate for framing a charge against the committed accused under section 228 or discharging him under section 227 of the Code. 91. Our judgment would remain incomplete without referring to one very erudite judgment of this Court rendered in Raghubans Dubey vs. State of Bihar reported in (1967 Cri LJ 1081) (SC). Therein a first information report had been lodged against as many as 15 persons including petitioner Raghubans Dubey. On investigation, the police submitted final form under Section 173 in which Raghubans Dubey was not sent up by the police for trial whilst the remaining accused were. The Sub-divisional Magistrate took cognizance against the fourteen accused persons and expressly discharged Raghubans Dubey and thereafter transferred the case to a Magistrate for commitment. In the course of the trial, the transferee Magistrate noticed that Raghubans Dubey had been named in the first information report and was also named by 5 more witnesses in their statements under Section 161. He, therefore, summoned Raghubans Dubey as an accused to stand his trial along with others. This was challenged on behalf of the petitioner Raghubans Dubey before the High Court. But the Division Bench of the High Court while upholding the action of the Magistrate in summoning the additional accused person rejected the revision petition. Upholding the High Court’s view in an even stronger and more categoric terms, Sikri, J., speaking for the Bench, observed (Para 9 of 1967 Cri LJ 1081): “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.” (Emphasis supplied) 92. From the above, it inflexibly follows that once a court of competent jurisdiction, be it a Magistrate or the Court of Session, takes cognizance of the offence, it is not only within the court’s powers to summon any one who, on the adequate materials, appears to it 676 to be prima facie guilty of the said offence but indeed it is its duty to do so. Raghubans Dubey’s case (supra) arose under the old Code of 1898, but it is manifest that the situation is identical under the Code of 1973 too, and the same view has then been expressly reiterated in Hareram Satpathy vs. Tikaram Agarwala, reported in (1978) 4 SCC 58 : AIR 1978 SC 1568 : (1978 Cri LJ 1687) in the context of commitment on a murder charge to the Court of Session by a Magistrate of a person not sent up as an accused by the investigating agency. 93. The larger and universal principle underlying the aforesaid rationale has been enunciated in powerful language by Desai, J., speaking for the Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak, reported in (1984) 2 SCC 500 in the following terms: “Punishment of the offender in the interest of the society being one of the objects behind penal statutes, enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception.” (Emphasis supplied) 94. We shall now proceed to specifically deal with the contention canvassed by the learned counsel appearing for the petitioner that cognizance of an offence can only be taken once and, if the Magistrate has taken cognizance of an offence and committed it to the Court of Session, then there is no question of taking fresh cognizance of the offence by the Court of Session upon the case being committed to it. There is a basic fallacy in this contention of the learned counsel. With all humility at our command we say that there is a misconception on the part of the learned counsel so far as the position of law on the subject is concerned. It appears that the learned counsel thought to develop such argument relying on some observations made by this Court in Dharam Pal (supra). The observations are:- “27. 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 [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. of an offence can only be taken once. In the event, the Magistrate takes cognizance of the offence and then commits the case to the Court of Sessions, 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 provision 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 Session Judge.” (Emphasis supplied) 95. The aforesaid observations made by the Constitution Bench of this Court in Dharam Pal (supra) should be understood to mean that when the investigating officer files charge sheet for the offence exclusively triable by the Court of Session, then the Magistrate has to look into the charge sheet and prima facie ascertain from the materials on record whether the case is one exclusively triable by the Court of Session. Once the Magistrate is prima facie convinced that the case is exclusively triable by the Court of Session, the next step in the process is to commit the case to the Court of Session under Section 209 of the CrPC. At this stage, the Magistrate takes cognizance of the offence and not the offender. Once the case is committed to the Court of Session and the Court of Session finds from the materials on record that a particular individual, though not charge sheeted, is also prima facie involved in the alleged crime, then the Court of Session has the power to take cognizance of the offence for the purpose of summoning that person not named as offender to face the trial. One should try to understand the purport of Section 193 CrPC. What does Section 193 CrPC provide for? 678 Section 193 CrPC removes the legal embargo for the Court of Session to take cognizance of any offence once the case is committed to it because upon the committal, the Court of Session assumes the character of the Court of original jurisdiction. 96. Let us try to understand the issue that was involved in Dharam Pal (supra). The primary issue in Dharam Pal (supra) was one regarding the power of the Sessions Court to issue summons against the person who is not named in the police report after commitment of case to it by the Magistrate under Section 209 of the Code. The other question that was considered in Dharam Pal (supra) was whether under Section 209 of the Code, the Magistrate was obliged to take cognizance of the offence before committing the case to the Court of Sessions. This moot question was answered by the Constitution Bench as under: “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 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 summon 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 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.” 97. A bare reading of the observations contained in para 39 of Dharam Pal (supra) referred to above, gives an impression that what the Court [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. wanted to convey was that at the time of committal, the Magistrate does not take cognizance of the offence and plays a very limited and passive role in committing the case to the Court of Sessions. With all humility at our command and with due deference if this is what was in the mind of the learned Judges then we are afraid that is not the correct position of law. The Magistrate does take cognizance of the offence but only for the limited purpose of committing the case to the Court of Sessions, having regard to the nature of the offences. 98. At this stage, we may give one simple illustration as to in what circumstances, it could be said in law that cognizance of offence can only be taken once. In other words, if cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Sessions. 99. Take a case where a private complaint is lodged in the Court of Magistrate for an offence which is exclusively triable by the Court of Sessions and the Magistrate takes cognizance upon the said complaint and issues process under Section 204 of the Code and thereafter commits the case to the Court of Sessions, then in such circumstances, it could be said that there is no question for the Court of Sessions once again to take cognizance of the offence. 100. Once again at the cost of repetition, we state that 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 materials before it appears to be involved in such offence to stand for trial before it. It is very important and necessary to understand that what is committed to the Court of Session by the Magistrate is the “case” or the “offence” for trial and not the “individual offender” thereof. 101. In view of what we have explained as aforestated, we have no hesitation in saying that there is no merit, worth the name, in the contention of the learned counsel appearing for the petitioner. It is absolutely incorrect on the part of the learned counsel to assert that the petitioner could have been summoned as an accused only during the course of trial under the provisions of Section 319 CrPC. Section 319 CrPC stands absolutely on a different footing. 102. The matter may equally be examined from one another angle. For a moment one may leave the procedural provisions altogether apart. On larger principle, one can see no adequate reason to fetter and 680 shackle the power of a superior court like that of the Court of Session from summoning a person as an additional accused to stand trial when, on the materials before it, it is satisfied that there exists a conclusive or, in any case, a prima facie case against him. It is for this reason that in Raghubans Dubey’s case (supra), this Court labelled this power as being virtually coupled with the duty of summoning such an additional accused and such a power is part and parcel of the proceeding initiated by taking cognizance of the offence. The glaring instances necessitating the exercise of such power or duty would be when the investigating agency in its report under Section 173 without any reason or basis whatsoever exonerates a person specifically named in the first information report and fully implicated in the crime. Indeed, such an example is provided pertinently in the present case itself. Herein the Court of Session has come to the categoric conclusion that the petitioner though not named at the earliest in the FIR, yet the investigation revealed his involvement along with the charge sheeted accused. CONCLUSION 103. We summarize our final conclusion as under: – (i) Both under Sections 209 and 193 respectively of the Code 1973 commitment is of, the “case” and not of the “accused” as distinguished from Section193(3) and Section 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 under Section 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. (ii) Section 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. Cognizance is of the [2025] 8 S.C.R.  Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr. offence and not the offender and it is the duty of the court to find out who the offenders are. Proceedings could be instituted and cognizance taken also against persons not known at that time. This is clear if the provisions of Section 190 of the Code are read along with the definition of complaint in Section 2(d) which include allegations against unknown person also. Making the unknown persons known is therefore within the powers of the court. When such persons become known by the evidence during inquiry or trial it is not only the right but also the duty of court to bring them on record and proceed against them in an attempt to bring them to justice. There cannot, therefore, be any dispute regarding the powers of court to bring the person under Section 319(1). (iii) 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. 104. For all the foregoing reasons we are of the view that no error not to speak of any error of law can be said to have been committed by the High Court in passing the impugned order. 105. In the result, this petition fails and is hereby dismissed. 106. The trial court shall now proceed to frame charge if not yet framed and start recording with the oral evidence of the witnesses. The trial shall be completed within a period of six months from the date of the receipt of the writ of this order. 107. The Registry shall circulate one copy each of this judgment to all the High Courts. Result of the case: Special Leave Petition dismissed. †Headnotes prepared by: Divya Pandey