Institute of Legal and Management Studies

The Supreme Court on Tuesday (August 5) held that there is nothing wrong with a Court of Sessions summoning an additional accused to stand trial at the committal stage under Section 193 of the Code of Criminal Procedure.

A bench comprising Justice JB Pardiwala and Justice R Mahadevan explained that a Court takes cognizance of the "offence" and not of the "offender" and if the Court, during its proceedings, comes to know about the involvement of the other accused, has the power to summon them.

"Even though the case is committed yet cognizance taken is of the offence and not the offender. Once the case in respect of the offence qua the accused, who are before the Court, is committed and cognizance is taken, the embargo under Section 193 regarding taking cognizance only by committal goes. Summoning additional persons will then be regarded as incidental to the cognizance already taken on committal and as, a part, of, the normal process that follows. A fresh committal of such person is not necessary," the Court stated.

The Court was deciding an appeal against a judgment of the Allahabad High Court which affirmed the order passed by the Sessions Court to summon the petitioner as an additional accused. The Sessions Court passed the summoning order in an application filed by the information under Section 193 of the CrPC.

The petitioner's main argument was that the Sessions Court cannot invoke S.193 CrPC to summon an additional accused as such power can be used as per Section 319 CrPC only after the trial has begun.

The bench framed the issue for determination as follows :

Whether the Court of Session, without itself recording evidence, can summon a person to stand trial in exercise of its powers under Section 193 of the Code of Criminal Procedure 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 of the Code of Criminal Procedure, 1973 independently of the provisions of Section 319 of the said Code?

The judgment authored by Justice Pardiwala explained 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 material before it, appears to be guilty of such offence to stand trial before it. In other words, upon the committal by the Magistrate, the Court of Sessions is empowered to take cognizance of the whole of the incident constituting the offence. The Court of Sessions is thus invested with the complete jurisdiction to summon any individual accused of the crime.

Referring to the Constitution Bench judgment in Dharam Pal & Ors. vs. State of Haryana & Anr. reported in (2014) 3 SCC 306., the Court stated that 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 otherwise would render the Sessions Court powerless and hamper the course of justice.

The Court rejected the argument that 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.

Conclusions of the judgment

The judgment summarised its conclusions as follows :

(i) Both under Sections 209 and 193 respectively of the Code 1973 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”. For committing a case there must be an offence and involvement of a person who committed the same. Even though the case is committed yet cognizance taken is of the offence and not the offender. Once the case in respect of the offence qua the accused, who are before the Court, is committed and cognizance is taken, the embargo under Section 193 regarding taking cognizance only by committal goes. Summoning additional persons will then be regarded as incidental to the cognizance already taken on committal and as, a part, of, the normal process that follows. A fresh committal of such person is not necessary.

(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. Cognizance is of the offence and not the offender and it is the duty of the court to find out who the offenders are. Proceedings could be instituted and cognizance taken also against persons not known at that time. This is clear if the provisions of Section 190 of the Code are read along with the definition of complaint in Section 2(d) which include allegations against unknown person also. Making the unknown persons known is therefore within the powers of the court. When such persons become known by the evidence during inquiry or trial it is not only the right but also the duty of court to bring them on record and proceed against them in an attempt to bring them to justice. There cannot, therefore, be any dispute regarding the powers of court to bring the person under Section 319(1).

(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.

Appearances: Adv Vikas Upadhyay for the petitioner.

Case : Kallu Nat Alias Mayank Kumar Nagar v State of UP and anr

Citation : 2025 LiveLaw (SC) 770

Click here to read the judgment