The Supreme Court, in a significant ruling on criminal procedure, has held that a Court of Session has the power under Section 193 of the Code of Criminal Procedure (CrPC) to summon a person to face trial, even if they are not named as an accused in the police chargesheet, based on materials available in the police report at the pre-trial stage. The Court clarified that this power is distinct from the power to summon an additional accused under Section 319 CrPC, which is exercised after the trial has commenced and evidence has been recorded.
A Division Bench of Justice J.B. Pardiwala and Justice R. Mahadevan dismissed a Special Leave Petition filed by one Kallu Nat alias Mayank Kumar Nagar, who challenged the orders of the Allahabad High Court and a trial court in Kanpur Dehat summoning him to face trial for offences of murder and rape. The Supreme Court affirmed that upon committal of a case, the Sessions Court takes cognizance of the “offence” as a whole and is empowered to summon any person whose involvement is prima facie evident from the case records, without waiting for the trial to begin.
Background of the Case
The matter originated from a First Information Report (FIR) lodged on November 24, 2018, following the discovery of a woman’s body in the village of Shivali, Kanpur Dehat. The victim’s husband, the first informant, initially named one Ajay as a suspect, alleging he had an extra-marital affair with the deceased.
During the initial investigation, the name of the petitioner, Kallu Nat, surfaced. Witness statements recorded under Section 161 of the CrPC and an alleged extra-judicial confession pointed towards his involvement. However, the investigation was later transferred to the Crime Branch, which filed a chargesheet on February 21, 2019, only against Ajay, giving a clean chit to the petitioner.
The case was committed to the Court of Session on March 11, 2019, as the offences were exclusively triable by it. On April 2, 2019, before the framing of charges against Ajay, the victim’s husband filed an application under Section 193 of the CrPC, seeking to summon Kallu Nat as an accused.
After nearly five years, the trial court allowed the application. It meticulously examined the case diary, noting witness statements that the petitioner was last seen with the victim, had a relationship with her, and had made an extra-judicial confession. Call Detail Records (CDR) also showed extensive communication between the petitioner and the victim around the time of the incident. The trial court concluded that there was sufficient prima facie material to summon the petitioner to face trial for offences under Sections 302 (murder) and 376 (rape) of the Indian Penal Code, 1860.
The petitioner challenged this order before the Allahabad High Court, which dismissed his revision application, relying on the Constitution Bench judgment in Dharam Pal & Ors. vs. State of Haryana & Anr. (2014). This led to the present appeal before the Supreme Court.
Arguments of the Parties
The counsel for the petitioner, Mr. Vikas Upadhyay, argued that the trial court had committed a serious error. His primary contentions were:
- The petitioner could only be summoned as an accused after the commencement of the trial and recording of evidence, by invoking powers under Section 319 of the CrPC.
- The power under Section 193 CrPC could not be used to summon him, as cognizance of the offence can only be taken once. Since the Magistrate had already taken cognizance before committing the case, the Sessions Court could not take a “second cognizance” or “part-cognizance.”
- He submitted that the decision in Dharam Pal (supra) should be interpreted to mean that once a Magistrate takes cognizance, the Sessions Court cannot do so again for the same offence.
The Supreme Court’s Analysis
The Supreme Court framed the central issue as: “whether the Court of Session, without itself recording evidence, can summon a person to stand trial in exercise of its powers under Section 193 of the Code… on the basis of materials in the form of statements and other documents as contained in the final report of the investigating officer… independently of the provisions of Section 319 of the said Code?”
Answering in the affirmative, the Bench undertook a detailed analysis of the concept of “cognizance” and the procedural framework of the CrPC.
On ‘Cognizance’ and Committal: The Court explained that “cognizance” is the application of judicial mind to the commission of an offence to initiate proceedings. It clarified that when a Magistrate receives a police report for an offence exclusively triable by the Court of Session, the Magistrate takes cognizance of the offence for the limited purpose of committing the case under Section 209 CrPC. The Court observed, “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.”
The Power of the Sessions Court under Section 193 CrPC: The judgment highlighted a crucial legislative change from the old CrPC to the 1973 Code. Under the old Code, the “accused” was committed, whereas under the current Code, the “case” is committed. This change signifies that the entire incident, or the offence as a whole, is transferred to the Sessions Court for trial.
The Court held that once the case is committed, the bar on the Sessions Court under Section 193 to take cognizance is lifted, and it assumes original jurisdiction. This jurisdiction includes the power to summon any person who, based on the material on record (including the police report and accompanying documents), appears to be involved in the crime.
The Bench stated, “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.”
Clarifying Dharam Pal (supra): The Court addressed the petitioner’s reliance on the principle that “cognizance can be taken only once.” It clarified that the summoning of an additional accused by the Sessions Court under Section 193 is not a “fresh cognizance” but an incidental power that flows from the committal of the case. It is a part of the process of finding out who the real offenders are. The Court quoted its earlier judgment in Raghubans Dubey vs. State of Bihar (1967), stating: “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…”
The Court firmly distinguished this power from Section 319 CrPC, noting that the latter operates at a post-cognizance, post-evidence stage, while the power under Section 193 can be exercised at the very threshold of the trial based on the committal records.
The Decision
The Supreme Court concluded that the trial court and the High Court were correct in their decisions. The Court summarized its findings as follows:
- The commitment under Section 209 CrPC is of the “case,” not the “accused.”
- Once a case is committed, the embargo under Section 193 on the Sessions Court is lifted, and summoning additional persons is an incidental part of the process. A fresh committal for such a person is not necessary.
- It is the Court’s duty to find the real offenders, and if it finds that persons other than those sent for trial are involved, it must summon them.
Dismissing the petition, the Court held, “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.”
The trial court has been directed to proceed with framing the charge and to complete the trial within six months. The Registry was directed to circulate the judgment to all High Courts.
