In the High Court of Jharkhand at Ranchi Cr.M.P.No.1539 of 2011 with Cr.M.P.No.98 of 2012 with Cr.M.P.No.1176 of 2011 with Cr.M.P.No.1396 of 2012 with Cr.M.P.No.1642 of 2012 with Cr.M.P.No.1725 of 2012 with Cr.M.P.No.1744 of 2012 with Cr.M.P.No.1796 of 2012 1. Keshav Kumar Singh 2.Sudha Singh……. Petitioners(Cr.M.P.No.1539 of 2011) Kaushal Ray @ Kaushal Kumar Ray..Petitioner (Cr.M.P.No.98 of 2012) 1.Om Prakash Tiwari 2. Bharat Kumar Ojha 3. Premlata Devi @ Premlata Ojha 4. SudhaTiwari.....................Petitioners (Cr.M.P.No.1176/11) 1.Taiyab Ansari 2.Khairun Bibi.............. Petitioners (Cr.M.P.No.1396/12) 1.Punam Devi 2. Harish Kumar 3.Gunga Devi....................Petitioners (Cr.M.P.No.1642/12) Babulal Yadav @ Churaman Yadav................Petitioner(Cr.M.P.1725/12) 1.Sunil Sonel Hembrom 2. Sunita Hembrom 3. Ful Hansda..................... Petitioners (Cr.M.P.No.1744/12) 1.Dobha Singh 2.Chatur Rai 3. Alup Singh @ Alok Singh...Petitioners(Cr.M.P.1796/12) V E R S U S State of Jharkhand and another…………….Opposite Parties CORAM: HON’BLE MR. JUSTICE R.R.PRASAD For the Petitioners :M/s.Anil Kumar,Gautam Kumar, K.P.Deo, Rajesh Kumar, Ashutosh Kumar Singh,A.K.Chaturvedi, Jitendra S.Singh, K.P.Choudhary, Advocate For the State :A.P.P For the O.P.no.2 :M/s. S.P.Jha, Sr. Advocate and K.P.Deo, Advocate Cr.M.P.No.1539 of 2011 12/ 15.01.14. This application is directed against the order dated 12.8.2011 passed by Chief Judicial Magistrate, Deoghar in Mohanpur P.S. case no.228 of 2010 (G.R.No.939 of 2010) whereby and whereunder cognizance of the offence punishable under Sections 498(A)/306/34 of the Indian Penal Code and also under Section 3/ 4 of the Dowry Prohibition Act has been taken against the petitioners. Learned counsel appearing for the petitioners submits that a case was lodged as Mohanpur P.S.Case no.228 of 2010 (G.R.No.939 of 2010) under Section 498A/306/34 of the Indian Penal Code and also under Section 3/ 4 of the Dowry Prohibition Act alleging therein that husband and also father-in-law and mother-in-law, who are the petitioners here subjected their daughter-in- law to torture and forced her to commit suicide. That matter was taken up for investigation. After investigation, charge sheet was submitted against the husband only and the investigation was kept open so far these petitioners are concerned. Subsequently, final form was submitted whereby these petitioners were exonerated. In spite of that the court took cognizance of the offences against these petitioners. Being aggrieved with that order, this application has been filed wherein order taking cognizance has been challenged on the ground that the Magistrate does not have power to take cognizance in a case where accused persons are not charge sheeted, rather power lies with the Sessions Judge, if the case is committed to the court of sessions of other accused. Learned counsel in support of his submission has referred to a decision rendered in a case of Dharam Pal Vs. State of Haryana [2013 (3) East.Cr.C.3 (S.C)] . As against this, Mr.K.P.Deo, learned counsel appearing for the opposite party no.2 submits that even if the person is not charge sheeted, the Magistrate in terms of the provision as contained in Section 190 of the Code of Criminal Procedure does have power to take cognizance of the offence if sufficient materials are found against him and thereby the order taking cognizance cannot be said to be bad. Cr.M.P.No.98 of 2012 This application is directed against the order dated 14.11.2011 passed by the Chief Judicial Magistrate, Deoghar in Kunda P.S. Case no.1 of 2011 (G.R.No.70 of 2011) whereby whereunder cognizance of the offence punishable under Sections 341/342/323/504/34 of the Indian Penal Code and also under Section 3(x) of the SC/ST (Prevention of Atrocities) Act has been taken against the petitioner and others. Learned counsel appearing for the petitioner submits that an FIR was lodged as Kunda P.S. Case no.1 of 2011 against four persons for commission of offences under Sections 341/342/323/504/34 of the Indian Penal Code and also under Section 3(x) of the SC/ST (Prevention of Atrocities ) Act. The police during investigation did not find culpability on the part of this petitioner whereas allegations were found to be true against other three accused persons and hence, when charge sheet was submitted against three other persons, this petitioner was shown as nto sent up for trial. In spite of that the court took cognizance of the offence, vide order dated 14.11.2011 against this petitioner which is quite illegal, in view of the decision rendered in a case of Dharam Pal and others vs. State of Haryana and another [2013(3) East Cr.C. 307(SC)]=(AIR 2013 SC 3018). Cr.M.P.No.1176 of 2011 This application is directed against the order dated 25.11.2010 passed by the Chief Judicial Magistrate, Sahibganj in Sahibganj(T) P.S. Case no.129 of 2010 (G.R.No.363 of 2010) whereby and whereunder cognizance of the offence punishable under Section 302/34 of the Indian Penal Code has been taken against the petitioners. That order was affirmed by order dated 27.6.2011 by the revisional court in Cr.Rev.No.91 of 2010. Learned counsel appearing for the petitioners submits that a case was lodged by the informant as Sahibganj (T) P.S. Case no.129 of 2010 against these petitioners as well as other accused persons for commission of offence under Section 302 of the Indian Penal Code. The matter was taken up for investigation. During investigation, the police did not find culpability on the part of these petitioners and hence, final form was submitted exonerating the petitioners from accusation through charge sheet was submitted against other accused persons. When the Magistrate refused to take cognizance of the offence against whom final form was submitted, the informant filed a revision application before he revisional court and the revisional court remanded the matter back before the court below for enquiry. Thereupon the court after taking into account the material collected against the petitioners during investigation, took cognizance of the offence punishable under Section 302 of the Indian Penal Code, vide it is order dated 25.11.2010 which order has been sought to be quashed on the ground that the court has taken cognizance of the offence against the petitioners who had been exonerated though he had no jurisdiction to take cognizance of the offence against the petitioners in view of the decision rendered in a case of Dharam Pal and others vs. State of Haryana and another [2013(3) East Cr. C 307 (SC)]= (AIR 2013 SC 3018). As against this, Mr.Jha learned Sr. counsel appearing for the opposite party no.2 submits with vehimance that it is not that the Magistrate on his own has passed an order whereby cognizance of the offence has been taken, rather the court has passed an order by virtue of the order passed by the revisional court which order has never been challenged by the petitioners before this Court and thereby the impugned order cannot be said to be bad. Cr .M.P.No.1396 of 2012 This application is directed against the order dated 17.11.2008 passed by the Chief Judicial Magistrate, Garhwa in Nagar Utari P.S. Case no.182 of 2008 (G.R.No.925 of 2008) whereby and whereunder cognizance of the offence punishable under Sections 302/120(B) of the Indian Penal Code and also under Section 3 of the Dowry Prohibition Act has been taken against the petitioners and others. Learned counsel appearing for the petitioners submits that a case was lodged as Nagar Utari P.S case no.182 of 2008 (G.R.No.925 of 2008) against these two petitioners as well as other two persons including husband of the deceased. The matter was investigated upon. During investigation, the police did not find allegation to be true against these two petitioners rather did find allegation to be true only against the husband and thereby the police while submitting charge sheet against the said accused included the name of the petitioners in column 2 of the charge sheet and thereby the petitioners were never sent up for trial, still the court took cognizance of the offence not only against the accused charge sheeted but also against these petitioners, vide its order dated 17.11.2008 an thereby the court committed illegality while taking cognizance of the offence in view of the decision rendered in a case of Dharam Pal and others vs. State of Haryana and another [2013(3) East Cr. C 307 (SC)]= (AIR 2013 SC 3018). Cr.M.P.No.1642 of 2012 This application is directed against the order dated 26.6.2012 passed by Judicial Magistrate, 1st class, Hazaribagh in Sadar Mufassil P.S. Case no167of 2012 (G.R.No.691 of 2012) whereby and whereunder cognizance of the offence punishable under Section 302/34 of the Indian Penal Code has been taken against the petitioners and others. Learned counsel appearing for the petitioners submits that a case was lodged as Sadar Mufassil P.S. Case no.167 of 2012 (G.R.No.691 if 2012) against these three petitioners along with other accused persons under Sections 302/34 of the Indian Penal Code. The matter was investigated upon. During investigation, the police did not find any culpability on the part of these petitioned and hence, submitted final form whereas charge sheet was submitted against other accused persons, in spite of that, the court took cognizance of the offence punishable under Sections 302/34 of the Indian Penal Code not against the persons charge sheeted but also against these petitioners and thereby the court committed illegality in taking cognizance of the offence, in view of the decision rendered in a case of Dharam Pal and others vs. State of Haryana and another [2013(3) East Cr. C 307 (SC)]= (AIR 2013 SC 3018). Cr.M.P.No.1725 of 2012 This application is directed against the order dated 1.8.2012 passed by Judicial Magistrate, 1st class, Chatra in Itkhori P.S. Case no.39 of 2012 (G.R.No.373 of 2012) whereby and whereunder cognizance of the offence punishable under Sections 304B/34 of the Indian Penal Code has been taken against the petitioner and others. Learned counsel appearing for the petitioner submits that a case was lodged as Itkhori P.S. Case no.39 of 2012 (G.R. No.373 of 2012) against three persons including this petitioner. The matter was taken up for investigation. During investigation, the police did find allegation to be true against the husband and father-in-law and not against this petitioner, who happened to be the Bhaisur of the deceased and thereby the police while submitting charge sheet against the husband and father-in-law included the name of this petitioner in column 2 of the charge sheet whereby the petitioner was exonerated from accusation, still the court, vide its order dated 1.8.2012 took cognizance of the offence punishable under Section 304B/34 of the Indian Penal Code not only against the persons who had been charge sheeted but also against this petitioner and thereby the court committed illegality while taking cognizance of the offence, in view of the decision rendered in a case of Dharam Pal and others vs. State of Haryana and another [2013(3) East Cr. C 307 (SC)]= (AIR 2013 SC 3018). Cr.M.P.No.1744 of 2012 This application is directed against the order dated 31.7.2012 passed by the Judicial Magistrate, 1st class, Godda in Sundar Pahari P.S. Case no.29 of 2012 (G.R.No.898 of 2012) whereby and whereunder cognizance of the offence punishable under Sections 302/201/120B/34 of the Indian Penal Code against the petitioners and others. Learned counsel appearing for the petitioners submits that a case was filed as Sundar Pahari P.S. Case no.29 of 2012 (G.R.No.898 of 2012) against seven accused persons under Sections 302/201/120B/34 of the Indian Penal Code. The matter was taken up for investigation. During investigation, the police did not find any culpability on the part of these three petitioners though allegation levelled against other accused persons were found to be true and therefore, the police while submitting charge sheet against the other accused persons did not send up these petitioners for trial. In spite of that the court took cognizance of the offence, vide its order dated 31.7.2012 under Sections 302/201/120B/34 of the Indian Penal Code not only against the persons charge sheeted but also against these petitioners who had not been sent up for trial and thereby the court committed illegality while taking cognizance of the offence, in view of the decision rendered in a case of Dharam Pal and others vs. State of Haryana and another [2013(3) East Cr. C 307 (SC)]= (AIR 2013 SC 3018). Cr.M.P.No.1796 of 2012 This application is directed against the order dated 9.12.2010 passed by the Additional Chief Judicial Magistrate, Rajmahal in Rajmahal P.S. Case no.11 of 2010 (G.R.No.21 of 2010) whereby and whereunder cognizance of the offence punishable under Sections 302/34 of the Indian Penal Code has been taken against the petitioners and others. Learned counsel appearing for the petitioners submits that a case was lodged as Rajmahal P.S. Case no.11 of 2010 (G.R.No.21 of 2010) against seven accused persons under Sections 364/302/34 of the Indian Penal Code. The matter was taken up for investigation. During investigation, the police did not find any culpability on the part of these three petitioners though allegation levelled against other accused persons were found to be true and therefore, the police while submitting charge sheet against other accused persons did not send up these petitioners for trial. In spite of that the court took cognizance of the offence, vide its order dated 9.12.2010 under Sections 302/364/34 of the Indian Penal Code not only against the perpsons charge sheeted but also against these petitioners who had not been sent up for trial and and thereby the court committed illegality while taking cognizance of the offence, in view of the decision rendered in a case of Dharam Pal and others vs. State of Haryana and another [2013(3) East Cr. C 307 (SC)]= (AIR 2013 SC 3018). In the context of submission, notice needs to be taken of the case of Dharam Pal vs. State of Haryana (supra) facts of which are that the appellants Dharam Pal and others were made accused in a case along with Nafe Singh in a case triable by the court of sessions. The police after investigation submitted charge sheet against one of the accused, Nafe Singh whereas Dharam Pal and others were not sent up for trial whose names were included in column 2 of the police report, despite the fact that they too had been named as accused in the First Information Report. After going through the police report, the learned Judicial Magistrate, 1st class, Hansi summoned the appellant and three others, who had not been included in the charge sheet for the purpose of facing trial along with Nafe Singh. Thereupon the Magistrate in exercise of his power as contained in Section 190 of the Code took cognizance of the offence against them. That order was challenged before the revisional court. The revisional court dismissed the application. When the matter came up before the High Court, the High Court also dismissed the application. Thereafter Special Leave to Appeal was preferred before the Hon’ble Supreme Court. When the matter was initially taken up by the Hon’ble Supreme Court, it was placed before the Court that number of conflicting decisions are there on the point . On one hand in the case of Raj Kishore Prasad vs. State of Bihar and another [(1996) 4 SCC 495] and also in a case of Kishore Singh and others vs. State of Bihar and others [(2004) 13 SCC 11], it has been held that the Magistrate has no power to add any accused with the accused charge sheeted rather that power lies with the Sessions Judge exercising power under Section 319 of the Code of Criminal Procedure when the case comes to it upon its committed whereas in a case of SWIL Limited vs. State of Delhi and others [(2001) 6 SCC 670] and also in a case of Rajinder Prasad vs. Bashir and others [(2001) 8 SCC 522] it has been held that the Magistrate does have power to take cognizance in terms of the provision as contained in Section 193 of the Code of Criminal Procedure. In such situation, the matter was referred before the Constitutional Bench whereby following issues were framed for consideration. 1.does the Committing Magistrate have any other role to play after committing the case to the Court of Sessions on finding from the police report that the case was triable by the Court of Sessions ? 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 ? 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 Sessions to stand trial or whether he was justified in issuing summons against them without following such procedure ? 4.Can the Sessions judge issue summons under Section 193 of the Code of Criminal Procedure as a Court of original jurisdiction ? 5.Upon the case being committed to the Court of Sessions, 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 ? 6.Was Ranjit Singh’s case (supra), which set aside the decision in Kishun Singh’s Case (supra), rightly decided or not ? Their Lordships after taking into account the relevant provisions such as Sections 193, 204,209, 319 and also decisions rendered in cases, referred to above, have been pleased to reject the submissions of one of the parties that in a case triable by court of session if the accused is not sent up for trial the Magistrate had no other function but to commit the case to court of session which could only resort to Section 319 of the code to array the accused not sent up for trial to face trial. Their Lordships while rejecting such submission did hold hereunder: 24. “ In our view, the Magistrate has a role to play while committing the case to the Court of Sessions upon taking cognizance on the police report submitted before him under Section 173(3) of the Code of Criminal Procedure. 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 no.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 Sessions, he may commit the case to the Court of Sessions to proceed further in the matter. 25. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court. 27.This take us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of 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 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 by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge. 28. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh’s case (supra) that the Sessions Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.” Thus, it does appear that the Hon’ble Court has been pleased to lay down law that if any accused is not sent up for trial along with other accused, the Magistrate can take cognizance of the offence only against the person charge sheeted and not against the person not sent up for trial whose name gets included in column 2 of the report. But at the same time, Hon’ble Court has said that in spite of that, it is not that the Magistrate does not have power to do anything, rather the course which would be left with him is to commit the case to the court of sessions and it be left with the sessions court to take cognizance against them. Their Lordships while holding so have been pleased to affirm the view which has been taken in a case of Kishun Singh and others vs. State of Bihar [(1993) 2 SCC 16] .The facts of that case were that a case was lodged against 20 persons, who had been named as assailants. After completion of investigation when the charge sheet was submitted, it did not include name of two persons, Kishun Singh and another against whom the police did not find any culpability and thereby final form was submitted. Since the charge sheet has been submitted against 18 named persons, concerned Magistrate committed the case of 18 persons to the court of sessions under Section 209 of the Code. When the matter came up before the Sessions Judge, Darbhanga, application was filed under Section 319 of the Code praying therein to summon those two appellants not charge sheeted as the materials collected during investigation revealed involvement of those two persons. The Sessions Judge after issuing notice arrayed those accused as accused to face trial by virtue of the provision as contained in Section 319. That order was challenged before the High Court. The High Court rejected the application and thereupon when the matter came up before the Hon’ble Supreme Court, the Hon’ble Supreme Court after dealing with the relevant provision was pleased to observe as under: 13. “ The question then is whether de hors Section 319 of the Code, can similar power be traced to any other provision in the Code or can such power be implied from the scheme of the Code? We have already pointed out earlier the two alternative modes in which the Criminal Law can be set in motion; by the filing of information with the police under Section 154 of the Code or upon receipt of a complaint or information by a Magistrate, The former would lead to investigation by the police and may culminate in a police report under Section 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under Section 190(1)(b) of the Code. In the later case, the Magistrate, may either order investigation by the police