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Case Number

Cr. Misc. No. 2252 of 1978

Advocates

U.P.Chainpuri
Surendra Kumar Singh
Prabha Shankar Mishra
I.T.Gaur

Judges

Brishketu Saran Sinha, J.

Acts

Section 207-A of the old Code of Criminal Procedure
Section 482 of the Code of Criminal Procedure, 1973,
Sub-section (3) of Section 210 of the Code
Sections 39S and 412; Indian Penal Code.3.
Section 200 or Section 202 of the Code
Section 161 or Section 164 of the Code.
therein.11. Section 210 of the Code
session.7. Section 209 of the Code
SECTION 412 PENAL CODE
Section 395, Indian Penal Code
Section 319(1) of the Code
Section 210(3) of the Code.
Section 209 of the Code
Section 2(g) of the Code.

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Smart Summary

Structured Summary of the Opinion (Brishketu Saran Sinha, J.)

Factual and Procedural Background

This matter arises from an order dated 30th June 1978 passed in Criminal Suit No. 594 of 1977 by the Chief Judicial Magistrate, Gaya, directing that three petitioners be summoned for commitment proceedings to be taken against them. The commitment proceedings were to be taken up along with G.R. Case No. 1639 of 1977. The petitioners challenged that order by filing an application under Section 482 of the Code of Criminal Procedure, 1973.

Relevant facts leading to the order: on 15th August 1977 a fardbeyan was lodged at Imamganj police station and Imamganj P.S. Case No. 4(8)77 was instituted. The Fardbeyan named several persons, including the petitioners, as identified by torchlight during a dacoity. The police investigation resulted in a chargesheet submitted on 31st December 1977 against eight persons; the petitioners were not included in that chargesheet. By an order dated 1st March 1978 cognizance was taken against the other accused under Sections 395 and 412 of the Indian Penal Code. A protest petition alleging slip-shod investigation and exclusion of the petitioners was filed on 23rd August 1977. On 10th March 1978 the Magistrate examined the complainant on solemn affirmation, started Case No. 594 of 1977 and conducted an enquiry under Section 202 of the Code; thereafter the impugned commitment order was passed.

Legal Issues Presented

Whether a Magistrate has jurisdiction to institute or hold commitment proceedings against persons (the petitioners) in a matter that is, on the police report, triable exclusively by the Court of Session — specifically whether the Magistrate could summon the petitioners for commitment alongside the police-initiated case.
Whether Sub-section (3) of Section 210 of the Code (Section 210(3)) applies so as to permit a Magistrate to proceed with commitment proceedings under Section 209 in respect of persons not the subject of a police chargesheet.
Whether Section 319(1) of the Code can be applied by a Magistrate during an enquiry under Section 209 to proceed against persons not originally accused (i.e., whether the Magistrate can proceed against such persons on the basis of the material before it in a Section 209 enquiry).
Whether cognizance for the same offence can be taken more than once (i.e., whether the Magistrate may treat police and complaint proceedings as two distinct proceedings for the purpose of taking cognizance and commitment).

Arguments of the Parties

Petitioners' Arguments

In a case exclusively triable by the Court of Session and instituted on a police report, a Magistrate has no jurisdiction to hold any enquiry except the one contemplated under Section 209 of the Code.
The implication is that the Magistrate cannot proceed to examine or commit persons beyond the limited enquiry required by Section 209 where the case arises from a police report and is triable by the session court.

State's Arguments

The impugned order is not part of the police case but is a separate proceeding permissible under Section 210(3) of the Code.
If cognizance is taken in a complaint case, there is no bar to instituting commitment proceedings on the basis of such cognizance; the police case and complaint case can be treated as distinct for procedural purposes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sanjay Gandhi v. Union of India, A.I.R. 1978 Supreme Court 514	That Magistrates should not go into merits even for a prima facie satisfaction; Parliament intended to eliminate the Magistrate's old discretion (as in Section 207-A of the old Code) and make Section 209 non-discretionary and expeditionary.	The court relied on this authority to emphasise that Section 209 must be given a limited, non-discretionary meaning and that a Magistrate should not conduct a trial-like enquiry or traverse merits when the offence is triable exclusively by the Court of Session.
Tuneshwar Prasad Singh v. The State of Bihar, 1978 P.L.J.R. 403 (= 1978 B.B.C. 111)	Held that a proceeding under Section 209 is an 'enquiry' within the meaning of Section 2(g) of the Code and that such enquiry must be conducted expeditiously and in a limited manner.	The court cited this Full Bench authority to support the view that Section 209 proceedings are enquiries which, consistent with Sanjay Gandhi, must be limited and speedy.
Jamuna Singh v. Bhadal Shah, A.I.R. 1964 Supreme Court 1541	That cognizance cannot be taken twice for the same offence.	The court invoked this principle to reject the State's contention that two distinct cognizances (police and complaint) could validly be taken for the same offence in the same matter.
Aditya Narain Rai v. Ramasis Rai, A.I.R. 1964 Patna 538	That cognizance can be taken only once and that where cognizance had been taken on a complaint, even if the case was started by a police chargesheet, it may be deemed a complaint case.	The court used this authority to reinforce the proposition that cognizance cannot be taken twice and to show that treating the police and complaint proceedings as separate for the purpose of double cognizance is not correct.

Court's Reasoning and Analysis

The court's reasoning proceeds by statutory construction of the relevant provisions of the Code and by applying the cited authorities to the facts before it.

1. Statutory framework and elimination of Magistrate's discretion: The court observed that Parliament, by remoulding the old provisions (specifically referring to the change from Section 207-A of the old Code), intended to remove the Magistrate's earlier discretion to test whether a prima facie case existed. Reliance was placed on Sanjay Gandhi to underline that Section 209 is deliberately cast in a non-discretionary, expeditionary form and is not meant to be a 'dress rehearsal of a trial.'

2. Nature and effect of Section 209: The court emphasised that under Section 209 the Magistrate must determine whether the offence is exclusively triable by the Court of Session and that what is committed is the 'case' (not the accused) to the session court. The enquiry under Section 209 is an 'enquiry' in the sense of Section 2(g), but must be limited and expeditious (Tuneshwar Prasad Singh).

3. Interaction of Sections 209 and 210(3): Although on a literal reading Section 210(3) might appear to permit the Magistrate to proceed with inquiry or trial where the police report does not relate to any accused in the complaint case, the court was inclined (on first impression) to hold that Section 210(3) does not apply to proceedings under Section 209. Two reasons were given:

Under Section 209 a 'case' (not an accused) is committed to the Court of Session, unlike the old Code where the accused might be committed for trial.
Section 209's non-discretionary and expeditionary purpose (as outlined in Sanjay Gandhi) would be frustrated if Section 210(3) were held to allow Magistrates to conduct extended commitment enquiries effectively akin to trial processes.

4. Remedy and role of the session court under Section 319(1): The court noted that the complainant is not left without remedy — under Section 319(1) the Court of Session can proceed against any person not being an accused who, in the opinion of the session court and on the evidence before it, appears to have committed an offence triable with the accused. The court clarified that Section 319(1) requires some evidence before the court, and that in a Section 209 enquiry there is no 'evidence' in the formal sense (only police-recorded statements or statements under Sections 200/202/161/164), hence Section 319(1) does not have application during a Section 209 enquiry before the Magistrate.

5. Single cognizance rule and the facts of the case: The court rejected the State's submission that the police case and the complaint case were distinct proceedings for the purpose of taking cognizance. The record showed that the Magistrate took cognizance on the basis of the police chargesheet on 1st March 1978 and subsequently, treating the protest petition as a complaint, examined the informant and took cognizance again on 10th March 1978. The court held that cognizance cannot be taken twice for the same offence (citing Jamuna Singh and Aditya Narain Rai) and that, despite the Magistrate's characterization that two proceedings were being amalgamated, there were not two separate cases for the purpose of commitment.

6. Conclusion of analysis: For these reasons — the limited scope of Section 209, the non-applicability of Section 210(3) to Section 209 proceedings (on first impression), the inapplicability of Section 319(1) within a Section 209 enquiry before a Magistrate, and the rule against double cognizance — the court concluded that the impugned commitment order could not be sustained.

Holding and Implications

Holding: The impugned order directing the petitioners to be summoned for commitment proceedings is set aside and the petition under Section 482 is allowed.

Implications and consequences:

Direct effect: The commitment order dated 30th June 1978 (in C. Suit No. 594 of 1977) is quashed and the application under Section 482 is allowed; the petitioners will not be summoned for commitment pursuant to that impugned order.
Procedural guidance: The opinion construes Section 209 as a limited, non-discretionary enquiry and indicates that Section 210(3) should not be read as permitting a Magistrate to expand that enquiry into a broader commitment process in cases triable exclusively by the Court of Session.
Remedy preserved: If the Court of Session, on evidence before it at trial, is satisfied under Section 319(1) that persons not originally accused have committed offences triable with the accused, it may proceed against them; but the Magistrate in a Section 209 enquiry does not have the same procedural basis to act under Section 319(1).
No broader precedent beyond the reasoning applied: The court's ruling addresses the specific procedural interplay between Sections 209, 210(3) and 319(1) in the factual context presented; the judgment resolves the impugned order and does not purport to create a general novel substantive doctrine beyond the statutory interpretation and authorities cited.

Application allowed.

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Ram Lagan Singh v. Jagarnath Singh

Brishketu Saran Sinha, J.:— By an order dated 30th June, 1978; passed in C. Suit No. 594 of 1977. Shri D.P Sinha Chief Judicial Magistrate, Gaya, has directed the three petitioners to be summoned for commitment proceedings to be started against them. The commitment proceedings in this case were to be out up along with G.R Case No. 1639 of 1977. Aggrieved by this order the petitioners have filed this application under Section 482 of the Code of Criminal Procedure, 1973, (hereafter referred to as ‘the Code’).

2. On the basis of a fardbeyan lodged at Imamganj police station on 15th August, 1977, Imamganj police station case No. 4(8)77 was instituted. On the first information report instituted on the basis of the Fardbeyan, several persons including the petitioners were charged of offences under Section 395, Indian Penal Code in the Fardbeyan lodged the petitioners were named as persons who had been identified in the light of torch while dacoity was being committed. The police, after investigation, submitted chargesheet against eight persons but no chargesheet was submitted against the petitioners. The chargesheet was submitted on 31st December, 1977, and ultimately, by an order dated 1st March, 1978, cognizance was taken against the other accused persons under Sections 39S and 412; Indian Penal Code.

3. During investigation, a protest petition had been filed as early as on 23rd August, 1977, in which it was stated that the investigation was being conducted in a slip-shod manner and it was further stated that the names of the petitioners were being excluded by the police. On 10th March, 1978, the learned Chief Judicial Magistrate, examined the complainant on solemn affirmation and started case no. 594 of 1977. An enquiry was conducted under Section 202 of the Code. Thereafter, the impugned order has been passed.

4. In support of this application, it has been contended that in a case exclusively triable by a court of session and which had been instituted on a police report, a Magistrate had no jurisdiction to hold any enquiry except the one contemplated under Section 209 of the Code. On the other hand, on behalf of the State, it has been submitted that the impugned order is not a part of the police case, rather it is a separate proceeding which is permissible under Section 210(3) of the Code. It is further submitted that if cognizance is taken in a complaint case, there is no bar in instituting a commitment proceeding on the basis of such cognizance.

5. Under the Code, the jurisdiction once vested in Magistrate in commitment proceedings to launch on a process of finding that prima facie case has been made out, has been eliminated. It has been pointed out in the case of (1) Sanjay Gandhi v. Union of India (A.I.R 1978 Supreme Court 514) that to hold that the Magistrate can go into the merits even for a prima facie satisfaction is to frustrate the purpose of the Parliament in remoulding Section 207-A of the old Code of Criminal Procedure into its present non-discretionary shape. “Expedition was intended by this change and this will be defeated successfully, if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order.” It was further stated that if in a police report, the offence made out is one which is triable exclusively by the court of session, the Magistrate has simply to commit the case for trial before the court of session. However, if a wrong section of the Penal Code was quoted, the Magistrate may look into that aspect. Therefore, in determining the rival submissions made, it would be relevant to bear in mind the intention of the Legislature under the Code which is to eliminate the discretion given to Magistrates under the old Code to find out whether a prima facie case had been made out.

6. It is also relevant to take into account that under Chapter XVIII of the Code of Criminal Procedure, 1898 (hereaffer referred to as ‘the old Code’) a Magistrate had power to commit to the court of session not only such cases which were exclusively triable by a court of session but also cases which, in the opinion of the Magistrate, ought to be tried by such court. Under the old Code an accused was committed for trial before the court of session.

7. Section 209 of the Code which is the only provision for commitment of a case to the court of session reads thus:—

“When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of session, he shall—

(a) commit the case to the court of session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial;

(c) send to that court the record of the case and the documents and articles, if any which are to be produced in evidence;

(d) notify the public prosecutor of the commitment of the case to the court of session.”

8. The salient features of this provision for the purposes of the present case are that the Magistrate has to determine whether the offence is exclusively triable by the court of session and what is committed to the court of session is the case and not the accused. Of course this is done when the accused is produced before him.

9. in the Full Beech case of (2) Tuneshwar Prasad Singh v. The State of Bihar (1978 P.L.J.R 403 = 1978 B.B.C 111) it has been held that a proceeding under Section 209 of the Code is an enquiry within the meaning of Section 2(g) of the Code. This enquiry, however, may have to be conducted in a most expeditious and limited manner as pointed out in Sanjay Gandhi's case.

10. The question that falls for consideration in this case, however, is not free from difficulty. It is not disputed that Section 204 of the Code applies both in complaint cases as well as cases instituted on policy report. Section 207 deals exclusively with a case instituted on a police report and Section 208 deals with cases instituted otherwise than on a police report. In either of these two cases, when it appears to the Magistrate that the offence is triable exclusively by the court of session Section 209 comes into play and the Magistrate has to act in the manner as provided therein.

11. Section 210 of the Code provides the procedure when there is a complaint case and a police investigation in respect of the same offence. Sub-section (1) of this section provides that when it appears to the Magistrate in a complaint case that an investigation by the police is in progress in relation to the offence which is the subject matter of the enquiry or trial being held by him in the complaint case, he shall stay the proceeding of such enquiry and trial and call for a report from the police officer conducting the investigation. Sub-section (2) lays down that if on receipt of the report of the police investigation, cognizance is taken by the Magistrate against any person who is an accused in the complaint case the Magistrate shall enquire into or try together both the cases as if they were instituted on a police report. Sub-section (3) is as follows:—

“If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.”

12. Under this sub-section, if on the police report, cognizance has not been taken with regard to an accused as in the complaint case, the Magistrate shall proceed with the enquiry or trial which was stayed by him under Sub-section (1). In other words, if the cognizance taken on the police report does not relate to a person against whom a complaint case is pending, the Magistrate, after taking cognizance on the police report, can proceed with the enquiry or trial with regard to such an accused. On the face of it, it seems that under this provision a Magistrate can proceed even after he has taken cognizance with regard to some other accused persons of an offence which is triable by the court of session. There does not seem to be any bar under Section 210(3) which would prohibit the Magistrate from proceeding under Section 209 with regard to an accused against whom a police report has not been submitted for an offence and against whom the Magistrate has not taken cognizance on the basis of such police report.

13. On a closer consideration, I am inclined to take the view, and it is on first impression, that Sub-section (3) of Section 210 of the Code will not apply to proceedings under Section 209 of the Code. There seems to be two reasons for arriving at this conclusion; (i) as I have pointed out earlier, under Section 209 of the Code a case is committed to the court of session and not an accused, as was done under the old Code; and, (ii) as has been pointed out by the Supreme Court in Sanjay Gandhi's case (supra) by incorporating Section 209 of the Code, expedition has been intended and that is why it is in “its present non-discretionary shape.”

14. In taking this view, it is not that the complainant is left without any remedy. Under Section 319(1) of the Code if it appears to the court of session that any person, not being an accused, has committed any offence for which such person could be tried with the accused who are facing trial, the court can proceed against such person for the offence which he appears to have committed in other words, if the court of session is satisfied that the petitioners had also commuted the offence of dacoity or one under Section 412 of the Penal Code, it can always summon the petitioners.

15. A question that might also arise is whether under Section 319(1) the Magistrate, while holding an enquiry under Section 209, can proceed against the petitioners. This that a person can only be proceeded against, when, in an enquiry or trial for an offence, it appears from “the evidence” that any person not being an accused, has committed any offence then he may be proceeded against such person. It is manifest, therefore, that in order to act under this sub-section, there must be some evidence before the court. In a proceeding under Section 209, there is no evidence before the court. It is either the statements as recorded by the police and documents as produced before it or statements as recorded under Section 200 or Section 202 of the Code or under Section 161 or Section 164 of the Code. I am, therefore, inclined to the view that Section 319(1) has no application in a proceeding under Section 209 of the Code.

16. The submission on behalf of the State that the police case and the complaint case are two distinct proceedings also cannot be accepted. I have already stated above that On 1st March, 1978 the learned Magistrate took cognizance of the offences on the basis of the chargesheet submitted by the police on 31st December, 1977. Thereafter, with regard to the same case, the learned Magistrate, treating the protest petition filed by the informant as a complaint, took cognizance on 10th March, 1978, when the complainant (informant) was examined on solemn affirmation. It is obvious that cognizance cannot be taken twice over for the same offence [see the case of (3) Jamuna Singh v. Bhadal Shah A.I.R 1964 Supreme Court, 1541]. Even in the case of (4) Aditya Narain Rai v. Ramasis Rai (A.I.R 1964 Patna 538), relied upon on behalf of the State, it was held that cognizance can be taken only once an a where cognizance had been taken on a complaint having been filed even though the case was started on the submission of a chargesheet by the police, it was deemed to be a complaint case. Merely because in the impugned order the learned Magistrate has stated that two separate proceedings for the purposes of commitment were being amalgamated, it cannot be said that there were two separate cases.

17. For the reasons given above, the impugned order cannot be sustained and is, hereby, set aside. The application is allowed.

Application allowed.

Ram Lagan Singh v. Jagarnath Singh

Structured Summary of the Opinion (Brishketu Saran Sinha, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Lagan Singh v. Jagarnath Singh

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