KALLU NAT ALIAS MAYANK KUMAR NAGAR versus STATE OF U.P. AND ANR. (05/08/2025) — Supreme Court headnote

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Summary

After the police dropped the petitioner from the chargesheet in a rape-and-murder case, the Court of Session, on the first informant's application, summoned him under Section 193 CrPC to stand trial with the chargesheeted accused on the basis of the case diary, before any evidence was recorded. The Supreme Court held that on committal under Section 209 what is committed is the 'case', not the 'accused'; the embargo in Section 193 is then lifted and the Court of Session takes cognizance of the offence as a whole and may, indeed must, summon any person who on the materials appears prima facie involved, independently of Section 319. Dharam Pal was explained: the Magistrate takes cognizance of the offence for the limited purpose of committal, and this is not a prohibited 'second cognizance'.

Issues

Whether the Court of Session, without recording evidence, can under Section 193 CrPC summon a person not chargesheeted to stand trial along with the committed accused on the basis of the statements and documents in the police report under Section 173, independently of Section 319.
What 'cognizance' means under the Code, and whether a Magistrate takes cognizance of an offence exclusively triable by the Court of Session before committing the case under Section 209.
Whether summoning by the Court of Session after committal amounts to an impermissible 'second cognizance' in view of Dharam Pal and Balveer Singh.

Provisions considered

Section 190 (with Section 2(d)), Code of Criminal Procedure, 1973Section 190 empowers a Magistrate to take cognizance of 'any offence' on a complaint, a police report or information/own knowledge; the words 'any offence', unqualified by the expression 'triable exclusively by the Court of Session' used elsewhere, show that the Magistrate is empowered to and does take cognizance even of Sessions-triable offences. Cognizance is of the offence, not the offender, and a complaint under Section 2(d) may be against unknown persons. (¶¶ 25, 26, 27, 56, 71, 103)
Sections 156(3), 200, 202, 203 and 204, Code of Criminal Procedure, 1973An order under Section 156(3) is pre-cognizance, whereas inquiry or investigation under Section 202 is post-cognizance and limited to ascertaining whether there is sufficient ground to proceed; the Magistrate must examine the complainant and witnesses under Section 200 and, for Sessions-triable complaints, examine all witnesses under the proviso to Section 202(2). Cognizance is unmistakably taken where process issues under Section 204. (¶¶ 29, 30, 31, 32, 35, 36, 37, 38, 40, 41, 42, 45)
Sections 207, 208 and 209, Code of Criminal Procedure, 1973Section 209 obliges the Magistrate, when the accused appears or is brought before him and the offence appears exclusively Sessions-triable, to commit the case after complying with Section 207 or 208, remand the accused for trial, send the record and notify the Public Prosecutor. Supplying documents to the accused and remanding him for trial presuppose that cognizance has been taken and that the Magistrate has applied his mind to who the offenders are; there can be no committal unless an accused is before the Magistrate. (¶¶ 46, 47, 48, 49, 50, 51, 52, 54, 55)
Sections 225 to 228, Code of Criminal Procedure, 1973After committal the Court of Session's role is directed to commencement of trial: the prosecutor opens the case (Section 226), the Judge discharges if there is no sufficient ground (Section 227) or frames a charge or transfers the case to a Magistrate (Section 228). None of these provisions empower the Court of Session to decide whether cognizance should be taken or to sit in appeal over the committal; discharge is qua the accused whereas cognizance is qua the offence. (¶¶ 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71)
Section 193, Code of Criminal Procedure, 1973Section 193 bars a Court of Session from taking cognizance of any offence as a court of original jurisdiction unless the case has been committed to it. Unlike Section 193(1) of the 1898 Code, which spoke of committal of the 'accused', the present provision speaks of committal of the 'case'; once the case is committed the restriction is lifted and the Court of Session takes cognizance of the offence as a whole, which includes summoning persons whose complicity appears prima facie from the record (Kishun Singh, Dharam Pal). (¶¶ 72, 73, 74, 77, 78, 79, 80, 81, 82, 83, 84, 86, 87, 90, 95, 103)
Section 319, Code of Criminal Procedure, 1973Section 319 permits the court to proceed against a person who appears from the evidence during an inquiry or trial to have committed an offence, with a deeming provision in sub-section (4)(b). The Court held that it stands on an altogether different footing from the power under Section 193 at the threshold, and that it is not the only route for summoning a person not chargesheeted. (¶¶ 10, 11, 83, 88, 101, 103)
Articles 20 and 21, Constitution of IndiaThe requirement that cognizance of an offence be taken before any person is arrayed as an accused protects the dignity and reputation of the person and the right against self-incrimination; no one can be compelled to take part in criminal proceedings on mere suspicion before cognizance is taken. (¶ 53)

Held

Cognizance is an act of the court: a conscious application of the judicial mind to the information received, with satisfaction that an offence has occurred and that proceedings should be set in motion or at least steps taken to ascertain whether there is a basis for them. It involves no formal act, cannot be reduced to a formula, derives its meaning from the procedure by which proceedings are initiated, and is always of the offence and never of the offender. (¶¶ 20, 21, 22, 23, 24, 65)
A Magistrate under Section 190 is empowered to, and does, take cognizance of an offence exclusively triable by the Court of Session. Proceeding under Chapter XVI (Sections 207 to 209) presupposes that cognizance has been taken, since documents can be supplied and the accused remanded for trial only after cognizance, and no person can be compelled to join criminal proceedings before cognizance without offending Articles 20 and 21. Section 209 requires that the accused be before the Magistrate; there can be no committal otherwise. (¶¶ 45, 51, 52, 53, 54, 55, 56)
After committal, the role of the Court of Session under Sections 226 to 228 is confined to deciding whether to frame a charge, discharge the accused or transfer the case to a Magistrate; it has no power akin to Section 190 to decide whether cognizance should be taken, cannot sit in appeal over the committal and cannot drop the proceedings. Discharge concerns the accused and sufficiency of ground to proceed, whereas cognizance concerns the offence and the necessity to initiate proceedings; the two are distinct. (¶¶ 58, 59, 62, 64, 65, 66, 69, 70, 71)
Both Sections 193 and 209 speak of commitment of the 'case' and not of the 'accused', a deliberate departure from Section 193(1) and Section 207-A of the old Code. Once the case in respect of the offence qua the accused before the court is committed, the embargo under Section 193 goes; the Court of Session takes cognizance of the whole incident constituting the offence and is entitled to summon anyone who on the materials appears prima facie guilty to stand trial, without a fresh committal, such summoning being incidental to the cognizance taken (Joginder Singh; Kishun Singh; Dharam Pal). (¶¶ 77, 78, 79, 80, 81, 82, 83, 84, 87, 90, 103)
The observations in Dharam Pal that cognizance can be taken only once, 'either by the Magistrate or by the Court of Session', mean that on a chargesheet for a Sessions-triable offence the Magistrate takes cognizance of the offence (not the offender) for the limited purpose of committal, and after committal the Court of Session may take cognizance of the offence for the purpose of summoning a person not chargesheeted who appears prima facie involved. If Dharam Pal is read as saying that the Magistrate takes no cognizance and plays a merely passive role at committal, that is not the correct position of law. (¶¶ 94, 95, 96, 97)
The rule that cognizance is taken only once applies, for instance, where a Magistrate takes cognizance on a private complaint of a Sessions-triable offence, issues process under Section 204 and commits the case; there is then no question of the Court of Session taking cognizance again. (¶¶ 98, 99)
Once a competent court, Magistrate or Court of Session, takes cognizance of an offence, it is not only empowered but duty-bound to find out the real offenders and to summon anyone who on adequate materials appears prima facie guilty (Raghubans Dubey; Hareram Satpathy); to hold that the Court of Session is powerless to put in the dock a person exonerated by the investigating agency until the Section 319 stage would hamper rather than advance justice, procedure being the handmaid of justice. Section 319 stands on an altogether different footing, and the contention that the petitioner could be summoned only under it during trial was rejected. (¶¶ 90, 91, 92, 93, 101, 102, 103)

Result

Special Leave Petition dismissed; High Court order dated 03.04.2025 affirming the summoning order upheld; the trial court to frame charge if not already framed and start recording the oral evidence of witnesses, and to complete the trial within six months of receipt of the order; Registry to circulate the judgment to all High Courts.