Supreme Court: Court Of Session Can Summon Person To Stand Trial Even If He Isn’t Charge-Sheeted & Whose Complexity In Crime Appears In Evidence On Record

The Supreme Court held that under Section 193 of the Criminal Procedure Code, 1973 (CrPC), the Court of Session can summon a person as accused to stand trial even if he has not been charge-sheeted by the police and whose complexity in the crime appears in the evidence available on record.

The Court held thus in a Special Leave Petition (SLP) preferred against the Order of the Allahabad High Court, which affirmed the Order of the Fast Track Court in a case arising out of the offence under Sections 302 and 376 of the Indian Penal Code, 1860 (IPC).

The two-Judge Bench of Justice J.B. Pardiwala and Justice R. Mahadevan observed, “… the position of law is clear that the Court of Session has power under Section 193 CrPC to summon a person as accused to stand trial, even if he has not been charge-sheeted by the police and whose complexity in the crime appears in the evidence available on record. To hold in such a situation, that if the investigating agency blatantly exonerates an accused person and the Magistrate does not consequently commit him, the Court of Session itself would be rendered powerless to put such an offender in the dock at the very opening stage of the trial, would to our mind only hamper the cause of justice rather than advance it. It is to be borne in mind that herein we are construing procedural provisions and it is well-settled that procedure is the hand-maid of justice and is not to be employed as a roadblock thereto.”

The Bench added that there is no logic for narrowly construing the statute so as to denude the Court of Session of the power to summon a person to stand his trial at the outset even when wholly convinced of a prima facie case against him on the basis of materials in the final report which is admittedly adequate for framing a charge against the committed accused under Section 228 or discharging him under Section 227 of the CrPC.

AOR Vikas Upadhyay appeared on behalf of the Petitioner while none appeared on behalf of the Respondents.

Facts of the Case

The Respondent-husband (informant) was the husband of the victim (deceased). The victim all of a sudden went missing in the year 2018 and her dead body was recovered somewhere from the bushes lying on the outskirts of the village. In such circumstances, the informant lodged an FIR and named one Ajay as the suspect. It was alleged that Ajay had an extra-marital affair with his wife (victim) and was last seen with the victim. Accordingly, the informant alleged that Ajay might have been involved in the murder of his wife. During investigation, the name of the Petitioner surfaced. Some of the witnesses stated that he had made an extra-judicial confession about his involvement in the alleged crime. Later, the investigation was transferred to the Crime Branch, which gave a clean chit to the Petitioner.

Hence, chargesheet was only filed against Ajay. Thereafter, the case came to be committed under Section 209 CrPC being exclusively triable by the Court of Session. Ajay was brought before the Trial Court for the purpose of framing of charge, however, on the same day, the informant filed an Application under Section 193 CrPC, seeking to summon the Petitioner as an accused. It took almost 5 years for the Trial Court to decide the said Application. The Trial Court ordered that the Petitioner shall be summoned as an accused and be put to trial along with Ajay. This Order was challenged before the High Court, which rejected the Criminal Revision Application and affirmed the said Order. Being aggrieved, the Petitioner approached the Apex Court.

Issue for Determination

The issue that arose for consideration before the Court was whether the Court of Session, without itself recording evidence, can summon a person to stand trial in exercise of its powers under Section 193 CrPC as an accused (along with others committed to it by a Magistrate) on the basis of materials in the form of statements and other documents as contained in the final report of the investigating officer under Section 173 CrPC independently of the provisions of Section 319 of the said Code.

Reasoning

The Supreme Court in view of the facts and circumstances of the case, noted, “… there exists no rigid taxonomy or formulaic framework for “taking cognizance”, and the act of “taking cognizance” has to be understood from the procedure itself, more particularly, at which stage, it could be said that there has been an application of judicial mind for the purpose of initiating proceedings under the Code or in simple words, cognizance has been taken.”

The Court said that the scope of inquiry under Section 202 CrPC is limited to the ascertainment of the truth or falsehood of the allegation made in the complaint – (i) on the materials placed by the complainant before the Court; and (ii) for limited purpose of finding out whether a prima facie case for issue of process has been made out.

“Although, in practice, there may at times be an overlap or convergence in the procedures envisaged under these three routes, such as where on the basis of a complaint, police investigation is ordered under Section 156 sub-section (3), or where upon receiving a police report under Section 173 sub-section (2), a protest petition filed in lieu thereof is treated as a complaint in terms of Section 200 of the Code, yet the procedural trajectory in which a Magistrate is expected to adopt for the purpose of proceeding in respect of an offence, still retains a certain degree of distinctiveness, based on how the criminal machinery came into motion”, it remarked.

The Court elucidated that once a Court of competent jurisdiction, be it a Magistrate or the Court of Session, takes cognizance of the offence, it is not only within the Court's powers to summon anyone who, on the adequate materials, appears to it to be prima facie guilty of the said offence but indeed it is its duty to do so.

“… when the investigating officer files charge sheet for the offence exclusively triable by the Court of Session, then the Magistrate has to look into the charge sheet and prima facie ascertain from the materials on record whether the case is one exclusively triable by the Court of Session”, it further observed.

The Court held that once the case is committed to the Court of Session and the Court of Session finds from the materials on record that a particular individual, though not charge sheeted, is also prima facie involved in the alleged crime, then it has the power to take cognizance of the offence for the purpose of summoning that person not named as offender to face the trial.

“Once again at the cost of repetition, we state that the Court of Session takes cognizance of the case or the offence as a whole and, therefore, is entitled to summon anyone who on the materials before it appears to be involved in such offence to stand for trial before it. It is very important and necessary to understand that what is committed to the Court of Session by the Magistrate is the “case” or the “offence” for trial and not the “individual offender” thereof”, it also reiterated.

Conclusion

Coming back to the facts of the case, the Court said that it is absolutely incorrect on the part of the counsel to assert that the Petitioner could have been summoned as an accused only during the course of trial under the provisions of Section 319 CrPC.

“Section 319 CrPC stands absolutely on a different footing. … The matter may equally be examined from one another angle. For a moment one may leave the procedural provisions altogether apart. On larger principle, one can see no adequate reason to fetter and shackle the power of a superior court like that of the Court of Session from summoning a person as an additional accused to stand trial when, on the materials before it, it is satisfied that there exists a conclusive or, in any case, a prima facie case against him”, it added.

The Court, therefore, summarising the following points of conclusion –

(i) Both under Sections 209 and 193 respectively of CrPC commitment is of, the ‘case’ and not of the ‘accused’ as distinguished from Section193(3) and Section 207A respectively of the old Code where commitment was of the ‘accused’ and not the ‘case’.

(ii) Section 319(4)(b) enacts a deeming provision in that behalf dispensing with the formal committal order by providing that the person added will be deemed to have been an accused even when cognizance was taken first.

(iii) Once the Court takes cognizance of the offence (not of 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 part of the process of taking cognizance.

Accordingly, the Apex Court dismissed the SLP, upheld the High Court’s Order, directed the Trial Court to complete the trial within 6 months, and directed the Registry to circulate one copy each of the Judgment to all the High Courts.

Cause Title- Kallu Nat alias Mayank Kumar Nagar v. State of U.P. and Anr. (Neutral Citation: 2025 INSC 930)

Appearance:

AOR Vikas Upadhyay, Advocates Ankita Kashyap, Shiva Narang, and Ranveer Singh.

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