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(i) the CrPC has made an express provision to the contrary; and
(ii) an express provision to the contrary is contained in ―any other law for the time being in force‖.

The bar in Section 193 is to the Sessions Court taking cognizance of an offence, as a court of original jurisdiction unless the case has been committed to it by the Magistrate under the Code.

22. Section 209 states that when a case is instituted either on a police report or otherwise, and it appears to the Magistrate that the offence is exclusively triable by the Sessions Court, he shall commit the case to the Court of Session. Section 209 reads as follows:

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.

44. It needs to be determined if condoning the irregularity of the cognizance order under Section 465 would lead to a ‗failure of justice‘. In our considered opinion, it would not lead to a failure of justice for the following reasons:

(i) The diminished role of the committing Court under Section 209 of the new Code while committing the case to the Court of Session. Both the decision in Bhooraji (supra) as well as the subsequent decision in Ratiram (supra) notice that under the Code of 1898, the Magistrate had a broad power at the stage of committal which included the power to examine witnesses and to allow cross-examination. Such a power is noticeably absent in the provisions of Section 209 of the CrPC. On the contrary, Section 209 makes it abundantly clear that when a case is instituted on the basis of a police report or otherwise and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, the Magistrate shall commit the case to the Court of Sessions after complying with the provisions of Section 207 or Section 208, as the case may be. The circumstance to which the Magistrate Anna Reddy Sambvisa Reddy v. State of A.P, AIR 2009 SC 2661 PART C has to apply their mind is solely whether the offence is triable exclusively by the Court of Sessions. Since the committing Magistrate does not have wide discretionary powers to exercise at this stage not exercising it would not cause any injustice to the parties;

[…] It may immediately be noticed that under the old provision a Court of Session could not take cognizance of an offence as a court of original jurisdiction unless the accused was committed to it whereas under the recast section as it presently stands the expression the accused has been replaced by the words the case. As has been pointed out earlier, under Section 190 cognizance has to be taken for the offence and not the offender; so also under Section 193 the emphasis now is to the committal of the case and no more on the offender. So also Section 209 speaks of committing the case to the Court of Session. On a conjoint reading of these provisions it becomes clear that while under the old Code in view of the language of Section 193 unless an accused was committed to the Court of Session the said court could not take cognizance of an offence as a court of original jurisdiction; now under Section 193 as it presently stands once the case is committed the restriction disappears.‖ ―16…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 of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of 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.‖ PART C