BALVEER SINGH & ANR. versus STATE OF RAJASTHAN & ANR.
[2016] 2 S.C.R. 504, Supreme Court of India, 2016
Outcome: Dismissed (Dismissed)
Segment: Issues
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[2016] 2 S.C.R. 504 
BALVEER SINGH & ANR. 
v. 
STATE OF RAJASTHAN & ANR. 
(Criminal Appeal No. 253of2016) 
MAYI0,2016 
[A. K. SIKRI AND R. K. AGRAWAL, JJ.) 
Code of Criminal Procedure, 197 3: ss.190 and 193 - Commita/ 
of case to the Court of Session after cognizance of offence by the 
Magistrate - Whether Court of Session is empowered to take 
cognizance of offence when similar application to the effect was 
rejected by Magistrate while committing the case to Sessions Court 
- Held: When the case is committed to the Court of Session by the 
Magistrate, per s.193 Court of Session shall take cognizance 'as a 
Court of original jurisdiction' and, thus, it is the first time the 
cognizance is taken and any order passed by the Magistrate while 
committing the case to the Court of Session would not amount to 
taking cognizance of the offence which are triable by the Court of 
Session - Since the Court of Session is acting as the Court of original 
iurisdiction u!s.193, after the commital of proceedings to it by the 
Magistrate, it is empowered to take cognizance and issue summons 
and it cannot be treated as taking second cognizance of the same 
offence. 
Dismissing the appeal, the Court 
HELD: 1. Section 190 empowers any Magistrate of the 
First Class, and any Magistrate of the Second Class which are 
specially empowered to take cognizance "of any offence" under 
three circumstances mentioned therein. These three 
circumstances include taking of
cognizance upon a Police report 
of such facts which may constitute an offence. It is trite law that 
even when Police report is filed stating that no offence is made 
out, the Magistrate can ignore the conclusion arrived at by the 
Investigating Officer and is competent to apply its independent 
mind to the facts emerging from the investigation and take 
cognizance of the case if it thinks that the facts emerging from 
the investigation do lead to prima facie view that commission of 
an offence is made out. In such a situation, the Magistrate is not 
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BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 
bound to follow the procedure laid down in Sectious 200 and 202 
of the Code for taking coguizance of the case under Section 
190(l)(a) though it is open for him to act under Section 200 or 
Section 202 as well. 
Thus, when a complaint is received by the 
Magistrate under Section 190(1)(a) of the Act, the Magistrate is 
empowered to resort to procedure laid down in Section 200 or 
202 of the Code and then take cognizance. If Police report is 
filed, he would take cognizance upon such a report, as provided 
under Section 190(l)(b) of the Code. Likewise, Section 193 of 
the Code empowers Court of Session to take cognizance of 
offences and states that the Court of Session shall not take 
cognizance of any offence as the Court of original jurisdiction 
unless the case has been committed to it by the Magistrate under 
this Code. As per this Sectiou, the Court of Session. can take 
cognizance only after the case has been committed to it by the 
Magistrate. However, once the case is committed to it by the 
Magistrate, the Court of Session is empowered to take cognizance 
acting 'as a Court of original jurisdiction'. In view of the said 
provisions, question that arises is as to whether Magistrate can 
take cognizance of an offence which is triable by the Court of 
Session or he is to simply commit the case to the Court of Session, 
after completion of committal proceedings as it is the Court of 
Session which is competent to try such
cases. On the one hand, 
Section 190. of the Code empowers the Magistrate to "take 
cognizance of any. offence" which gives an impression that such 
Magistrate can take cognizance even of an offence which is triable 
by the Court of Session. On the other hand, when the case is 
committed to the Court of SessiOn by the Magistrate, _Section 
193 of the Code stipulates that Court of Session shall take 
cognizance 'as a Court of original jurisdiction' which shows that 
the cognizance is taken by the Court of Session as a Court of 
original jurisdiction and, thus, it is the first time the cognizance 
is taken aud any order passed by the Magistrate while committing 
the case to the Court of Session did not amount to taking 
cognizance of the offence which are triable by the Court of Session. 
A bare reading of Section 190 of the Code which uses the 
expression "any offence" amply shows that no restriction is 
imposed ·on the Magistrate that Magistrate can take cognizance 
only for the offence triable by Magistrate Court and not in respect 
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A of offence triable by a Court of Session. Thus, he has the power 
to take cognizance of an offence which is triable by the Court of 
Session. If it is so, the question is as to what meaning is to be 
assigned to'the words "as a Court of original jurisdiction" 
occurring in Section 193 of the Code when Court of Session takes 
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cognizance of any offence. To put it otherwise, when the 
Magistrate has taken cognizance and thereafter only committed 
the case to the Court of Session, whether .the Court of Session is 
not empowered to take cognizance of an offence again under 
Section 193 of the Code or it still has power to take cognizance 
acting as Court of original jurisdiction. (Paras 8 to 11) (511-D-H; 
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512-A-HJ 
2. Here is a case where the Police report which was 
submitted to the Magistrate, the IO had not included the 
appellants as accused persons. The complainant had filed 
application before the Magistrate with prayer to take cognizance 
D against the appellants as well. This application was duly 
considered and rejected by the Magistrate. The situation in this 
case is, thus, not where the investigation report/chargesheet filed 
under Section 173(8) of the Code implicated the appellants and 
appellants contended that they are wrongly implicated. On the 
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contrary, the Police itself had mentioned in its final report that 
case against the appellants had not been made out. This was 
objected to by the complainant
who wanted the Magistrate to 
summon these appellants as well and for this purpose the 
application was filed by the complainant under Section 190 of the 
Code. The appellants had replied to the said application and 
after hearing the arguments, the application was rejected by the 
Magistrate. This shows that order of the Magistrate was passed 
with due application of mind whereby he refused to take 
cognizance of the alleged offence against the appellants and 
confined it only to the son of the appellants. This onler was not 
challenged. Normally, in such a case, it cannot be said that the 
G Magistrate bad played 'passive role' while committing the case 
to the Court of Sessions •. He bad, thus, taken cognizance after 
due application of mind and playing an "active role" in the process. 
The position would have been different if the Magistrate bad 
simply forwarded the application of the complainant to the Court 
H of Sessions while committing the case. In this scenario, it would
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 
be a case where Magistrate had taken the cognizance of the 
offence. Notwithstanding the same, the Sessions Court on the 
similar application made by the complain_ant before it, took 
cognizance thereupon. Normally, such a course of action would 
not be permissible. [Para 21) [523-A-F] 
3. The next question is as to whether this Court exercise 
its powers under Article 136 of the Constitution to interdict such 
an order. In the instant case, a proper opportunity was given to 
the appellants who had flied reply to the application of the 
complainant and the Sessions Court had also heard their 
arguments. There is no reason to interfere with the impugned 
order. 
[Para 22) [523-G; 524-A-B] 
Dharam Pal & Ors. v. State of Haryana and Anr. (2014) 
3 SCC 306 - Followed. 
Nisar and Another v. State of U.P. 1994 (5) Suppl. SCR 
368 : (1995) 2 SCC 23; Minu Kumari & Anr. v. State of 
Bihar & Ors. 2006 (3) SCR1086 : (2006) 4 SCC 359; 
Kishun Singh v. State of Bihar 1993 (1) SCR 31: (1993) 
2 SCC 16; Hardeep Singh v. State of Punjab & Ors. 
2014 (2) SCR.1 : (2014) 3 SCC 92; Ajay Kumar Parmar 
v. State of Rajasthan 2012 (8) SCR 970 : (2012) 12 
sec 406 - relied on. 
. 
Case Law Reference 
(2014) 3 sec 306 
Followed. 
Para2 
1994 (5) Suppl. SCR 368 
relied on. 
Para6 
2006 (3) SCR1086 
relied on. 
Paras 
1993 (1) SCR 31 
relied on. 
Para 13 
2014 (2) SCR 1 
relied on. 
Para 19 
2012 (8) SCR 970 
relied on. 
Para 20 
CRIMINAL APPELLATE
JURISDICTION : Criminal Appeal 
No. 253 of2016 
From the Judgment and Order dated 18.12.2015 of the High Court 
ofRajasthan, Jaipur Bench at Jaipur in S. B. Criminal Revision Petition 
No. 1591 of20l5 
Raju Ramachandran, Sr. Adv., Neeraj Kumar, Vijay KumarThallan, 
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Vikram Aditya Narayan, Advs., with him for the Appellants. 
Dr. Sushi! Balwada, Jai Nadhna, K. Singh Mane, Anish 
Maheshwari, Advs., for the Respondents. 
The Judgment of the Court was delivered by 
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A. K. SIKRI, J. I. The appellants in this appeal are the parents 
of oneAbhimanyu Singh who was married to Renu on 24.02.2014. Renu 
was found dead on 27.11.2014 i.e. within ten months of the wedding. 
Cause of death was Asphyxia due to hanging. An FIR was lodged by 
respondent No. 2 herein (Father of deceased) alleging that Renu was 
done to death by her husband Abhimanyu Singh as well as his parents 
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(appellants herein) for not satiating the dowry demands of the accused 
persons. FIR has been registered under Sections 304-B and 498-A of 
the Indian Penal Code. The appellants claimed that it was a case of 
suicide by hanging committed by Renu. Matter was investigated which 
resulted into the filing of chargesheet against Abhimanyu only, that too 
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for committing the offence under Section 306 IPC, namely, abetting the 
suicide committed by Renu. As per the Police investigation there was 
no dowry demands and no offence under Sections 498-A and 304-B of 
!PC was made out. Instead it was a case of suicide and at the most 
Abhimanyu could be charged of abetting the suicide committed by Renu. 
For that reason, no challan was filed against the appellants herein. On 
E · the filing of the aforesaid chargesheet by the Police on
24.02.2015, 
respondent No. 2 filed an application before the learned Judicial 
Magistrate, First Class, (JMFC) for taking cognizance against the 
appellants and Abhimanyu under Sections 304-B and 498-A !PC. This 
application was dismissed by the learned Magistrate vide order dated 
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I 1.03.2015. Thereupon, the learned Magistrate committed the case 
before the Sessions Court as the offence under Section 306 lPC is triable 
by the Sessions Court. Before the Sessions Court, respondent No. 2 
preferred similar application once again. Here, respondent No. 2 
succeeded in his attempt inasmuch as vide order dated 08.10.2015, the 
learned Sessions Court took cognizance for offences punishable under 
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Sections 304-B and 498-A !PC and, in the alternative, Section 306 IPC, 
against the appellants and their son. He, thus, directed issuance of 
bailable warrant against the appellants. 
2. Aggrieved by the said order, appellants along with their son 
Abhimanyu approached the High Court. High Court vide its order dated 
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04.11.2015 remanded the matter back to the Sessions Court with a
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 
fA. K. SIKRI, J.l 
direction to hear the parties and pass further orders in the light of judgment 
of this Court in Dlwram Pal & Ors. v. State of Haryana and Anr. '. 
The Sessions Court accorded fresh hearing and thereafter passed order 
dated 08.12.2015 thereby allowing the application once again to the extent 
of taking cognizance under Sections 304-B and 498-A !PC and, in the 
alternative, Section 306 !PC against the appellants as well as their son. 
The appellants challenged this order by filing revision petition before the 
High Court which has been dismissed by the High Court on 18.12.2015. 
This order is impugned in the present proceedings. 
3. We may record at the outset that the sole ground on which the 
order was challenged beforethe High Court, as well as before us, is that 
when the Magistrate had dismissed the application of the complainant 
'<ide order dated 11.03.2015 and refused to take cognizance under 
Sections 304-B and 498-A !PC and this order had attained finality as no 
revision petition/criminal miscellaneous appeal was preferred either by 
the complainant or by the Public Prosecutor, second application with the 
same relief was not maintainable before the Sessions Court. It was 
emphatically argued that it amounted to second time cognizance.by the 
Court of Sessions which was impermissible in law. It was argued that 
under Section 190 of the Code of Criminal Procedure, 1973 (for short, 
the 'Code'),
cognizance of the offence can be taken only once. 
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4. Thus, the question that falls for consideration before us is as to 
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whether the Court of Sessions was empowered to take cognizance of 
offence under Sections 304-B and 498-A oflPC, when similar application 
to this effect was rejected by the JMFC while committing the case to 
Sessions Court, taking cognizance of offence only under Section 306 
IPC and specifically refusing to take cognizance of offence under 
Sections 304-B and 498-A IPC. 
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5. Mr. Raju Ramachandran, learned senior counsel appearing for 
the appellants, submitted that when the case is triable by the Sessions 
Court, Judicial Magistrate after completing the committal proceedings 
can commit the case for trial before the Court of Sessions: He can do 
so by simply committing the case on finding from the Police report that 
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· the case was triable by the Court of Sessions. In the alternative, he can 
take cognizance of offence on the basis of Police report and then commit 
the case for trial to the Court bf Sessions. When the Judicial Magistrate 
adopts the former approach by not taking the cognizance of offence 
1 (2014) 3 sec 306 
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under Section 190 of the Code and commits the case for trial before the 
Sessions Court, Sessions Cou.rt is competent to exercise its power under 
Section 193 of the Code and to take cognizance of offence in the light of 
judgment of this Court in Dftaram Pal's case. However, ifthe Magistrate 
adopts alternate course of action, namely, takes cognizance of the offence 
and then commits the case to the Court of Sessions, Sessions Court has 
no power to take fresh cognizance of the offence inasmuch as cognizance 
ofoffence can be taken only once. Again, in support of this proposition, 
aid of the judgment in Dlwram Pal's case is taken. 
6. Per contra, Dr. Sushi I Balwada, learned counsel who appeared 
for respondent No. 2 and Mr. Anish Maheshwari, learned counsel who 
appeared for the State argued that since the case is triable by the Court 
of Sessions, it is the Court of Sessions only which is competent to take 
cognizance and, therefore, order passed by the Sessions Court on 
08.12.2015 should be treating as taking cognizance of offence for the 
first time in terms of Section 193 of the Code. Interestingly, in support 
of their submissions, the respondenls also rely upon the judgment in 
Dlwram Pal's case. In addition, they also took support from the 
judgment of this Court in Nisar and Another v. State of U.P.' 
7. The aforesaid narration unequivocally demonstrates that both 
the sides are trying to find
support from the judgment in Dltarmpal's 
case. It would, thus, be apposite to take note of the ratio in the said 
judgment. However, before we do so, we would like to refer to the 
provisions of Sections 190 and 193 of the Code which have come into 
play in the instant case as proper understanding thereof, in our opinion, 
shall provide categorical answer to the issue at hand and will help us in 
tracing the underlying legal principle laid down in that case. These 
provisions make the following reading: 
"190. Cognizance of offences by Magistrates. -
( 1) Subject to the provisions of this Chapter, any Magistrate of 
the first class, and any Magistrate of the second class specially 
empowered in this behalf under sub-section (2), may take 
cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such 
offence; 
.(b) upon a police report of such facts; 
' (1995) 2 sec 23
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 
511 
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(c) upon information received from any person other than a police 
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officer, or upon his own knowledge, that such offence has been 
committed. 
(2) The Chief Judicial Magistrate may empower any Magistrate 
of the second class to take cognizance under sub-section (I) of 
such offences as are within his competence to inquire into or try. 
B 
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xx 
xx 
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." 
8. Sections 190 and 193 of the Code are in Chapter XIV. This 
Chapter contains the title "Conditions requisite for initiation of 
proceedings". Section 190 deals with cognizance of offence by 
Magistrates. It empowers any Magistrate of the First Class, and any 
Magistrate of the Second Class which are specially empowered to take 
cogni:lance "of any offence" under three circumstances mentioned 
therein. These three circumstances include taking of cognizance upon a 
Police report of such facts which may constitute an offence. It is trite 
law that even when Police report is filed stating that no offence is made 
out, the Magistrate can ignore the conclusion arrived at by the Investigating 
Officer and is competent to apply its independent
mind to the facts 
emerging from the investigation and take cognizance of the case if it 
thinks that the facts emerging from the investigation do lead to prima 
facie view that commission of an offence is made out. In such a situation, 
the Magistrate is not bound to follow the procedure laid down in Sections 
200 ani:l 202 of the Code for taking cognizance of the case under Section 
190(1 )(a) though it is open for him to act under Section 200 or Section 
20~ as well fSee Minu Kumari & Anr. v. State of Biliar & Ors.'). 
Thus, when a complaint is received by the Magistrate under Section 
l 90(l)(a) of the Act, the Magistrate is empowered to resort to procedure 
laid down in Section 200 or 202 of the Code and then take cognizance. 
If Police report is filed, he woukj take cognizance upon such a report, as 
provided under Section l 90(l)(b) of the Code in the manner mentioned 
above as highlighted in the case of Minu Kumari. 
' (2006) 4 sec 359 
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9. Likewise, Section 193 of the Code empowers Court of Session 
to take cognizance ofoffences and states that the Court of Session shall 
not take cognizance of any offence as the Court of original jurisdiction 
unless the case has been committed to it by the Magistrate under this 
Code. As per this Section, the Court of Session can take cognizance 
only after the case has been committed to it by the Magistrate. However, 
once the case is committed to it by the Magistrate, the Court of Session 
is empowered to take cognizance acting 'as a Court of original 
jurisdiction'. 
l 0. In view of the aforesaid provisions, question that arises is as 
to whether Magistrate can take cognizance ofan offence which is triable 
by the Court of Session or he is to simply commit the case to the Court 
of Session, after completion of committal proceedings as it is the Court 
of Session which is competent to try such cases. On the one hand, 
Section 190 of the Code empowers the Magistrate to "take cognizance 
of any offence" which gives an impression that such Magistrate can 
take cognizance even of an offence which is triable by the Court of 
Session. On the other hand, when the case is committed to the Court of 
Session by the Magistrate, Section 193 of the Code stipulates that Court 
of Session shall take cognizance 'as a Court of original jurisdiction' which 
shows that the cognizance is taken by the Court of Session as a
Court of 
original jurisdiction and, thus, it is the first time the cognizance is taken 
and any order passed by the Magistrate while committing the case to 
the Court of Session did not amount to taking cognizance of the offence 
which are triable by the Court of Session. 
11. A bare reading of Section 190 of the Code which uses the 
expression "any offence" amply shows that no restriction is imposed on 
the Magistrate that Magistrate can take cognizance only for the offence 
triable by Magistrate Court and not in respect of offence triable by a 
Court of Session. Thus, he has the power to take cognizance of an 
offence which is triable by the Court of Session. If it is so, the question 
is as to what meaning is to be assigned to the words "as a Court of 
original jurisdiction" occurring in Section 193 of the Code when Court of 
Session takes cognizance of any offence. To put it otherwise, when the 
Magistrate has taken cognizance and thereafter only committed the case 
to the Court of Session, whether the Court of Session is not empowered 
to take cognizance of an offence again under Section 193 of the Code or 
it still has power to take cognizance acting as Court of original jurisdiction.
BALVEER'SINGH & ANR. v. STATE OF RAJASTHAN 
r A. K. SIKRI, J.l 
In order to find the ans~er, we now advert to the appraisal of 
Dharampal's case. 
12. In Dharam Pal's case, an FIR was registered against one N 
and the appellants for commission of offence under Section 307 and 323 
read with Section 34 !PC. The police after investigation submitted its 
report under Section 173(2) of the Code before the Magistrate sending 
only N for trial while including the names of the appellants in Column 2 
of the report. On receipt of such police report, the Magistrate did not, 
straightaway, commit the case to the Sessions Court but, on an objection 
being raised by the complainant, issued summons to the appellants therein 
to face trial with the other accused N as the Magistrate was convinced 
that a prima facie case to go for trial had been made out against the 
appellants as well. Further, while doing so, the Magistrate did not hold 
any further inquiry, as contemplated under Sections 190, 200 or even 
202 of the Code, but proceeded to issue summons on the basis of the 
police report only. In this background, the following questions arose for 
the consideration by the Constitution Bench: 
"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, t~ 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 oforiginaljurisdiction? 
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? 
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7.6 Was Ranjit Singh v. State of Punjab', which set aside the 
decision in Kishun Singh v. State of Bihm-' , rightly decided or 
not?" 
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Answering the reference, the Constitution Bench held that: 
(a) 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. Thereafter, 
if on being primafacie 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, ifthe 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 ifthe same is
found to be triable by the 
Sessions Court. 
(b) 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 
I 93 that the Court of Session may take cognizance of the offences under 
the said section. 
' (1998) 1sec149 
' (1993) 2 sec 16
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 
[A. K. SIKRI, J.l 
( c) 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. 
13. In the process of coming to the aforesaid conclusions, this 
Court accepted the view expressed in Kisltun Singh 's6 case that the 
Sessions Court has jurisdiction on committal of a case to it, to take 
cognizance of the offences of the person not named as offenders 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 sho\vn in 
Column 2 of the police report to stand trial along with those already 
named therein. 
14. lnterestingly, 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 ii 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 ti II 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: 
"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 
' Footnote 6 above 
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commit the case for trial to the Court of Session, which could only 
resort to Section 3 19 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 l 90(l)(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." 
However, when we see the discussion in totality, it would be 
clear that the aforesaid observations were made in respect of the first 
question posed by the Constitution Bench in para 7 .1, already reproduced 
above, as per which the powers of the Magistrate while committing the 
case to the Sessions Court were to be answered. This is so made clear 
in the very next para, i.e. para 34 of the judgment, wherein, while 
approving the dicta laid down in Kisftun Singh 's case, the Constitution 
Bench held that '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, which power the Sessions Court 
does not have till the Section 319 stage is reached'. This was put 
beyond the pale of any controversy in para 35 of the judgment, which 
reads as under: 
"35. Jn 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
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 
fA. K. SIKRI, J.l 
which was triable by the Court of Session, he may commit the 
case to the Court of Session to proceed further in the matter." 
15. Discussion up to this stage answers the powers of the 
Magistrate by laying down the principle that even if' the case is triable by 
the Court of Session, the function of the Magistrate is not to act merely 
as a post office and commit the case to the Court of Session, but he is 
also empowered to take cognizance, issue process and summon the 
accused and thereafter commit the case to the Court of Session. The 
position with regard to that would become. clearer once we find the 
answer that was given by the Constitution Bench to questions at paras 
7.4 to 7.6 extracted above. We would like to reproduce paras 37 to 41 
of the said judgment in this behalf, which are as follows: 
. "37. Questions 4, 5 and 6 are more or less interlinked. The answer 
to Question 4 must be in the affirmative, namely, that the Sessions 
Judge was entitled to issue summons under Section 193 CrPC 
upon the case being committed to him by the learned Magistrate. 
38. Section 193 of the Code speaks of cognizance of offences by 
the Court of Session and provides as follows: 
"193.Cognizance of offences by Courts ofSession.-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." 
The key word~ in the section are that "no Court of Session shall 
take cognizance of any offence as a court of original jurisdiction 
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unless the case has been committed to it by a Magistrate under 
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this Code". The above provision 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 heen committed 
to it, could the Court of Session take cognizance of the offence 
exercising original jurisdiction. Although, an attempt has been made 
by Mr Dave to suggest that the cognizance indicated in Section 
G 
193 deals not with cognizance ofan offence, but of the commitment 
order passed by the learned Magistrate, we are not inclined to 
accept such a submission in the clear wordings of Section 193 
that the Court of Session may take cognizance of the offences 
under the said section. 
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39. This takes us to the next question as to whether under Section 
209, the Magistrate was required to take cognizance of the offence 
before committing the case to the Court of Session. It is well 
settled that cognizance of an offence can only be taken once. In 
the event, a Magistrate takes cognizance of the offence and then 
commits the case to the Court of Session, the question of taking 
fresh cognizance of the offence and, thereafter, proceed to issue 
summons, is not in accordance with law. If cognizance is to be 
taken of the offence, it could be taken either by the Magistrate or 
by the Court of Session. The language of Section 193 of the Code 
very clearly indicates that once the case is committed to the Court 
of Session by the learned Magistrate, the Court of Session assumes 
original jurisdiction and all that goes with the assumption of such 
jurisdiction. The provisions of Section 209 will, therefore, have to 
be understood as the learned Magistrate playing a passive role in 
committing the case to the Court of Session on finding from the 
police report that the case was triable by the Court of Session. 
Nor can there be any question of part cognizance being taken by 
the Magistrate and part cognizance being taken by the learned 
Sessions Judge. 
40. In that view of the matter, we have no hesitation in agreeing 
with the views expressed in Kishun Singh case that the Sessions 
Court 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. 
41. We are also unable to accept Mr Dave's submission that the 
Sessions Court would have no alternative, but to wait till the stage 
under Section 319 Cr PC was reached, before proceeding against 
the persons against whom a prima facie case was made out from 
the materials contained in the case papers sent by the learned 
Magistrate while committing the case to the Court of Session." 
16. It is manifest from the above that the question at para 7.4 was 
specifically answered in the affirmative holding that the Sessions Judge 
is entitled to issue summons under Section 193 of the Code 'as a Court
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 
rA. K. SIKRJ, J.l 
of original jurisdiction'. This was notwithstanding the fact that the 
Magistrate had taken cognizance and only thereafter committed the case 
to the Court of Session, as is clear from the facts of the said case already 
noted above. This seems to be in conflict with the other well-settled 
position in law, viz., cognizance of an offence can only be taken once 
and in the event a Magistrate takes cognizance of the offence and then 
commits the case to the Court of Session, the question of taking first 
cognizance of the offence thereafter would not be in accordance with 
law. In order to resolve this seeming contradiction, the Court provided 
the answer by clarifying that the provisions of Section 209 of the Code 
will have to be understood to mean that the Magistrate plays 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. 
17. As pointed out above, the Constitution Bench in this judgment 
agreed with the view taken in Kisliun Sing/i's case. In that judgment, 
the Court had explained and clarified the legal position in the following 
manner: 
"16. We have already indicated earlier from the ratio of this Court's 
decisions in the cases of Raghubans Dubey, (1967) 2 SCR 423, 
and Hareram, ( 1978) 4 SCC 58, that once the, court takes 
cognizance of the offence (not 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 a part of the process of 
taking cognizance. We have also pointed out the difference in the 
language of Section 193 of the two Codes; under the old Code the 
Court of Session was precluded from taking cognizance of any 
offence as a court oforiginaljurisdiction unless the accused was 
committed to it whereas under the present Code the embargo is 
diluted by the replacement of the words the accused by the words 
the ca~e. 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 
oforiginaljurisdiction gets lifted. On the Magistrate committing 
the case under Section 209 to the Court of Session the bar of 
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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 .... " 
18. Yet another case, which reiterated the aforesaid legal position 
in Kishun Singh 's case, is Nisar & Anr. v. State of U.P. 7 
19. Insofar as judgment in Hardeep Singh v. State of Punjab & 
Ors.' case is concerned, that pertains to the powers of the trial court as 
contained in Section 319 of the Code, which empower the trial court to 
proceed even against persons not arraigned as accused. The Constitution 
Bench in the said case primarily considered the issue about the stage at 
which such a power under Section 319 of the Code is to be exercised 
and the related issue as to what is the meaning of the word 'evidence' 
used in Section 319( I) of the Code on the basis of which power to 
summon those who have not been arraigned as accused earlier can be 
exercised. Therefore, it is not necessary to discuss that judgment in 
detail as the answer to the question with which we are concerned is 
provided by ihe Constitution Bench in its judgment in Dfmram Pal's 
case itself, which binds us. As per this judgment, since the Court of 
Session is acting as the Court
oforiginaljurisdiction under Section 193 
of the Code, after the committal of proceedings to it by the Magistrate, 
it is empowered to take cognizance and issue summons and it cannot be 
treated as taking second cognizance of the same offence. 
20. Th is view further gets strengthened from another judgment of 
this Court in Ajay Kumar Parmar v. State of Rajastlwn9• In that 
case, the Court held that when the offence is exclusively triable by the 
Sessions Court, the Magistrate must commit the case to the Sessions 
Court and cannot refuse to take cognizance of the offence and acquit 
the accused on the basis of material produced before it. It would be 
useful to reproduce the following discussion in the said judgment: 
"14. In Sanjay Gandhi v. Union of India, (1978) 2 SCC 39, this 
Court while dealing with the competence of the Magistrate to 
discharge an accused, in a case like the instant one at hand, held: 
(SCC pp. 40-41, para 3) 
7 (1995)2SCC23 
't20l4) 3 sec n 
'r2012J 12 sec 406
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 
[A. K. SIKRI, J.] 
"3 .... it is not open to the committal court to launch on a process 
of satisfying itself that a prima facie case has been made out on 
the merits. The jurisdiction once vested in him under the earlier 
Code but has been eliminated now under the present Code. 
Therefore, to hold that he can go into the merits even for a prima 
facie satisfaction is to frustrate Parliament's purpose in remoulding 
Section 207-A (old Code) into its present non-discretionary shape. 
Expedition was intended by this change and this will be defeated 
successfully ifi.nterpretatively we hold that a dress rehearsal of a 
trial before the Magistrate is in order. In our view, the narrow 
inspection hole through which the committing Magistrate has to 
look at the case limits him merely to ascertain whether the case, 
as disclosed by the police report, appears to the Magistrate to 
show an offence triable solely by the Court of Session. Assuming 
the facts to be correct as stated in the police report, ... the 
Magistrate has simply to comm if for trial before the Court of 
Session. If, by error, a wrong section of the Penal Code is quoted, 
~e may look into that aspect. ... If made-up facts unsupported by 
any material are reported by the police and a sessions offence is 
made to appear, it is perfectly open to the Sessions Court under 
Section 227 CrPC to discharge the accused. This provision takes 
care of the alleged grievance of the
accused." 
(emphasis added) 
Thus, it is evident from the aforesaid judgment that when an 
offence is cognizable by the Sessions Court, the Magistrate cannot 
probe into the matter and discharge the accused. It is not 
permissible for him to do so, even after considering the evidence 
on record, as he has no jurisdiction to probe or look into the matter 
at all. His concern should be to see what provisions of the penal 
statute have been mentioned and in case an offence triable by the 
Sessions Court has been mentioned, he must commit the case to 
the Sessions Court and do nothing else. 
15. Thus, we are of the considered opinion that the Magistrate 
had no business to discharge the appellant. In fact, Section 207-A 
in the old CrPC, empowered the Magistrate to exercise such a 
power. However, in CrPC, 1973, there is no provision analogou~ 
to the said Section 207-A. He was bound under law, to commit 
the case to.the Sessions Court, where sucfi application for discharge 
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would be considered. The order of discharge is therefore, a nullity, 
being without jurisdiction. 
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17. The court should not pass an order of acquittal by resorting to 
a course of not taking cognizance, where prima facie case is made 
out by the investigating agency. More so, it is the duty of the court 
to safeguard the rights and interests of the victim, who does not 
participate in the discharge proceedings. At the stage of application 
of Section 227, the court has to sift the evidence in order to find 
out whether or not there is sufficient ground for proceeding against 
the accused. Thus, appreciation of evidence at this stage, is not 
permissible. (Vide P. Vijayan v. State of Kera/a, (20 I 0) 2 SCC 
398, and RS. Mishra v. State of Orissa, (2011) 2 SCC 689) 
18. The scheme of the Code, particularly, the provisions of Sections 
207 to 209 CrPC, mandate the Magistrate to commit the case to 
the Court of Session, when the charge-sheet is filed. A conjoint 
reading of these provisions makes it crystal clear that the committal 
of a case exclusively triable by the Court of Session, in a case 
instituted by the police is mandatory. The scheme of the Code 
simply provides that the Magistrate can determine, whether the 
facts stated in the report make out an offence triable exclusively, 
by the Court of Session. Once he reaches the conclusion that the 
facts alleged in the report, make out an
offence triable exclusively 
by the Court of Session, he must commit the case to the Sessions 
Court. 
19. The Magistrate, in exercise of its power under Section 190 
Cr PC, can refuse to take cognizance if the material on record 
warrants so. The Magistrate must, in such a case, be satisfied 
that the complaint, case diary, statements of the witnesses recorded 
under Sections 161 and 164 CrPC, if any, do not make out any 
offence. At this stage, the Magistrate performs a judicial function. 
However, he cannot appreciate the evidence on record and reach 
a conclusion as to which evidence is acceptable, or can be relied 
upon. Thus, at this stage appreciation of evidence is impermissible. 
The Magistrate is not competent to weigh the evidence and the 
balance of probability in the case." 
21. Keeping in view the aforesaid legal position, we may now
BALVEER SINGH & ANR. v. STATE OF RAJASTHAN 
[A. K. SIKRI, J.l 
discuss the circumstances under which the cognizance was taken by 
the Session Judge. Here is a case where the Police report which was 
submitted t.5.the Magistrate, the IO had not included the appellants as 
aecused_persons. The complainant had filed application before the 
learned Magistrate with prayer to take cognizance against the appellants 
as well. This application was duly considered and rejected by the learned 
Magistrate. The situation in this case is, thus, not where the investigation 
report/chargesheet filed under Section 173(8) of the Code implicated 
the appellants and appellants contended thatthey are wrongly implicated. 
On the contrary, the Police itself had mentioned in its final report that 
case against the appellants had not been made out. This was objected 
to by the complainant who wanted the Magistrate to summon these 
appellants as well and for this purpose the application was filed by the 
complainant under Section 190 of the Code. The appellants had replied 
to the said application and after hearing the arguments, the application 
was rejected by the Magistrate. This shows that order of the Magistrate 
was passed with due application of mind whereby he refused to take 
cognizance of the alleged offence against the appellants and confined it 
only to the son of the appellants. This order was not challenged. 
Normally, in such a case, it cannot be.said that the Magistrate had played
'passive role' while committing the case to the Court of Sessions. He 
had, thus, taken cognizance after due application of mind and playing an 
"active role" in the process. The position would have been different if 
the Magistrate had simply forwarded the application of the complainant 
to the Court of Sessions while committing the case. In this scenario, we 
are of the opinion that it would be a case where Magistrate had taken 
the cognizance of the offence. Notwithstanding the same, the Sessions 
Court on the similar application made by the complainant before it, took 
cognizance thereupon. Normally, such a course of action would not be 
pern1issible. 
22. The next question is as. to whether this Court exercise its 
powers under Article 136 of the Constitution to interdict such an order. 
We find that the order of the Magistrate refusing to take cognizance 
against the appellants is revisable. This power of revision can be 
exereised by the superior Court, which in this case, will be the Court of 
Sessions itself, either on the revision petition that can be filed by the 
aggrieved party or even suo 111010 by the revisional Court itself. The 
Court of Sessions was, thus, not powerless to pass an order in his 
revisionary jurisdiction. Things would have been different had he passed 
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the impugned order taking cognizance of the offence against the appellants, 
without affording any opportunity to them, since with the order that was 
passed by the learned Magistrate a valuable right had accrued in favour 
of these appellants. However, in the instant case, we find that a proper 
opportunity was given to the appellants herein who had tiled reply to the 
application of the complainant and the Sessions Court had·aJso heard 
their arguments. For this reason, we are not inclined to interfere with 
the impugned order and dismiss this appeal. 
Devika Gujral 
Appeal dismissed. 
.·.