Document Fragment View

Matching Fragments

23. The counsel for the appellant contended that the Special Court (which is a Sessions Court) is not empowered to take cognizance of offences without the case being committed to it, in view of Section 193 CrPC. Since the Magistrate did not commit the case to the Special Court before it took cognizance of the offences in the instant case, it has been contended that the order taking cognizance is vitiated. As stated in the earlier section of the judgment, Section 193 is subject to two exceptions- (a) provisions to the contrary under the CrPC; (b) provisions to the contrary under any other law.

33. The judgements on the interpretation of Section 193 CrPC may for the purpose of analysis be divided into two categories based on the time frame of challenge: (i) cases involving a challenge to the cognizance order before and after the commencement of trial, that is, before the completion of the trial; and (ii) cases involving a challenge to the cognizance order after the completion of the trial. Gangula Ashok (supra) and Shantaben (supra) fall within the first category, while Rattiram (supra), Moly (supra), Bhooraji (supra) and Vidhyadharan (supra) fall within the second category. In both Bhooraji (supra) and Rattiram (supra), though it was observed that the cognizance order is irregular, it was held not to vitiate the proceedings since there was no ‗failure of justice‘ that could be proved in view of PART C Section 465 CrPC. However, in Gangula Ashok (supra), the challenge to the cognizance order was made before the commencement of the trial.

34. Section 193 CrPC states that the Sessions Court shall not take cognizance of an offence as a Court of original jurisdiction unless the Magistrate commits the case to it. The only exception is if it is expressly provided otherwise by the Code or the statute. Neither the Code nor the MMDR Act provide that the Special Court could directly take cognizance of the offences. Therefore, the Sessions Court did not have the authority to take cognizance. Section 209 CrPC provides the Magistrate the power to commit the case. In Dharam Pal v. State of Haryana, a Constitution Bench 24 , while discussing whether the committing court was required under Section 209 to take cognizance of the offence before committing the case to the Court of Sessions, held that the Magistrate could either commit the case before or after taking cognizance. In this case, the Special Court has directly taken cognizance. It now needs to be determined if this irregularity in the cognizance order vitiates the entire proceedings for the order to be quashed and set aside.

49. In Dharam Pal (supra), a Constitution Bench was deciding on whether the Court of Sessions has the power under Section 193 CrPC to take cognizance of the offence and then summon other persons not mentioned as accused in the police report. The issue was referred to a five-judge Bench in view of the conflicting decisions in Kishun Singh (supra) and Ranjit Singh v. State of Punjab39. As discussed above, while in Kishun Singh (supra), it was held that the Sessions Court held such a power under Section 193 CrPC, it was held in Ranjit Singh (supra) that from the stage of committal till the Sessions Court reaches the stage (1995) 1 SCC 684 (1998) 7 SCC 149 PART C indicated in Section 230 CrPC, the Court could not arraign any other person as the accused. Chief Justice Altamas Kabir, speaking for the Constitution Bench affirmed the view in Kishun Singh (supra) on the ground that the Magistrate before whom the final report is submitted has ample powers to disagree with the report filed by the police under Section 173(2) and to proceed against the accused persons de hors the police report. However, if the interpretation in Ranjit Singh (supra) were to be followed, it would lead to an anomaly where the Sessions Court would not have this power till the Section 319 stage is reached, which the Magistrate would otherwise have. In that context, the Constitution Bench observed: