# Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr

- **Citation:** 2025 INSC 930
- **Court:** Supreme Court of India
- **Decided:** 2025-08-05
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kallu-nat-alias-mayank-kumar-nagar-v-state-of-u-p-and-anr-38523
- **Pages:** 71

## Headnote

Whether the Court of Session, without itself recording evidence, can
summon a person to stand trial in exercise of its powers u/s.193,
Code of Criminal Procedure, 1973 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 u/s.173, CrPC independently of
the provisions of s.319 of the said Code.
Headnotes†
Code of Criminal Procedure, 1973 - Chapter XIV - s.193 -
Cognizance of offences by Courts of Session - "cognizance";
"taking cognizance" - Whether the Court of Session, without
itself recording evidence, can summon a person to stand
trial in exercise of its powers u/s.193 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 u/s.173
independently of the provisions of s.319:
Held: The Court of Session has power u/s.193 to summon a
person as accused to stand trial, even if he has not been chargesheeted by the police and whose complicity in the crime appears
in the evidence available on record - Both u/ss.209 and 193,
CrPC respectively, commitment is of, the "case" and not of the
"accused" as distinguished from s.193(3) and s.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
* Author
612
[2025] 8 S.C.R.
Supreme Court Reports
accused, who are before the Court, is committed and cognizance
is taken, the embargo u/s.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 - Further,
s.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 - Proceedings could be instituted and cognizance
taken also against persons not known at that time - 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 - Constitution Bench judgment in
Dharam Pal case, explained. [Paras 90, 103]
Code of Criminal Procedure, 1973 - s.193 - Cognizance
of offences by Courts of Session - Rape and murder of
Respondent No.2-complainant's wife - Crime Branch gave
clean chit to the petitioner herein and the charge-sheet was
filed only against the co-accused - Case came to be committed
u/s.209, CrPC being exclusively triable by the Court of
Session - Respondent No.2 filed application u/s.193 seeking
to summon the petitioner as an accused - Application allowed
by trial court - Order affirmed by High Court - Correctness:
Held: No error in the impugned order - 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 - 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 - The whole of
the incident constitut

## Text

_Characters 0–39,957 of 158,750. This is a partial read: ask again with offset=39957 for what follows._

[2025] 8 S.C.R. 611 : 2025 INSC 930
Kallu Nat Alias Mayank Kumar Nagar
v.
State of U.P. and Anr.
(Special Leave Petition (Criminal) No. 10010 of 2025)
05 August 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
Whether the Court of Session, without itself recording evidence, can
summon a person to stand trial in exercise of its powers u/s.193,
Code of Criminal Procedure, 1973 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 u/s.173, CrPC independently of
the provisions of s.319 of the said Code.
Headnotes†
Code of Criminal Procedure, 1973 - Chapter XIV - s.193 -
Cognizance of offences by Courts of Session - "cognizance";
"taking cognizance" - Whether the Court of Session, without
itself recording evidence, can summon a person to stand
trial in exercise of its powers u/s.193 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 u/s.173
independently of the provisions of s.319:
Held: The Court of Session has power u/s.193 to summon a
person as accused to stand trial, even if he has not been chargesheeted by the police and whose complicity in the crime appears
in the evidence available on record - Both u/ss.209 and 193,
CrPC respectively, commitment is of, the "case" and not of the
"accused" as distinguished from s.193(3) and s.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
* Author
612
[2025] 8 S.C.R.
Supreme Court Reports
accused, who are before the Court, is committed and cognizance
is taken, the embargo u/s.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 - Further,
s.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 - Proceedings could be instituted and cognizance
taken also against persons not known at that time - 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 - Constitution Bench judgment in
Dharam Pal case, explained. [Paras 90, 103]
Code of Criminal Procedure, 1973 - s.193 - Cognizance
of offences by Courts of Session - Rape and murder of
Respondent No.2-complainant's wife - Crime Branch gave
clean chit to the petitioner herein and the charge-sheet was
filed only against the co-accused - Case came to be committed
u/s.209, CrPC being exclusively triable by the Court of
Session - Respondent No.2 filed application u/s.193 seeking
to summon the petitioner as an accused - Application allowed
by trial court - Order affirmed by High Court - Correctness:
Held: No error in the impugned order - 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 - 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 - The whole of
the incident constituting the offence is to be taken cognizance of by
the Court of Session on commitment and not that every individual
offender must be so committed or that in case it is not so done
then the Court of Session would be powerless to proceed against
[2025] 8 S.C.R.
613
Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.
persons regarding whom it may be fully convinced at the very
threshold of the trial that they are prima facie guilty of the crime as
well - Plea of the petitioner that he could have been summoned
as an accused only during the course of trial under the provisions
of s.319 is incorrect. [Paras 80, 82, 84, 101, 104]
Code of Criminal Procedure, 1973 - Chapter XIV, XVI,
XVIII - s.190; ss.207-209, 225-228 - Committal of Case by a
Magistrate to the Court of Sessions - Role of the Court of
Session after the case is committed to it by the Magistrate
u/s.209 - Offences triable exclusively by the Court of
Sessions - Whether cognizance is taken by the Magistrate
or Court of Sessions:
Held: s.190 empowers the Magistrate with the discretion to
decide whether cognizance of an offence should be taken or
not, by application of his mind, there is no provision of the same
similitude as s.190, which empowers the Court of Session to do
so, in respect of cases committed to it by the Magistrate - The
only limited power that the Court of Session has over the order of
committal passed by the Magistrate, is to ascertain and re-decide
if the offence is one exclusively triable by it or not - Unlike a
Magistrate, who is empowered in terms of s.190 of the Code, to
drop proceedings where after application of his mind, he comes to
the finding that there is no offence for taking cognizance to initiate
proceedings in respect of, the Court of Session is not empowered
to drop the proceedings in the case committed to it, it is only
empowered to either proceed to frame charges against the accused
or to discharge the accused or if such offence is not exclusively
triable by it, transfer the case back to the Magistrate, again for
the purpose of commencement of trial by such Magistrate - This
also, when seen in light of the expression "any offence" used in
s.190 of the Code, clearly indicates that it is the Magistrate who
is not only empowered but also indeed does take cognizance of
an offence even if the same is triable exclusively by the Court of
Session. [Para 71]
Words and Phrases - "Cognizance"; "Taking cognizance";
"discharge"; "any offence"; "the accused appears or is brought
before the Magistrate"; "during, and until the conclusion of,
the trial" - Purport and meaning - Code of Criminal Procedure,
1973 - Chapter XIV, XV, XVI, XVIII - ss.190, 209 - Discussed.
[Paras 19-24, 54, 56, 65, 66, 71]
614
[2025] 8 S.C.R.
Supreme Court Reports
Code of Criminal Procedure, 1973 - s.193 - Cognizance of
offences by Courts of Session - Object and purpose, stated -
Code of Criminal Procedure, 1898 - s.193 - s.193 old Code
vis-à-vis s.193, Code of 1973. [Paras 72-74, 77-80, 82, 84]
Code of Criminal Procedure, 1973 - s.190 - Cognizance of
offences by Magistrates - Three distinct points of origin of
the criminal machinery - Position of law, stated. [Paras 25-27,
29-31, 33, 35-37, 40-43]
Code of Criminal Procedure, 1973 - s.202 - Postponement of
issue of process - Inquiry under - Scope:
Held: The scope of inquiry u/s.202 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. [Para 41]
Case Law Cited
Dharam Pal & Ors. v. State of Haryana & Anr. [2013] 13 SCR
1052 : (2014) 3 SCC 306 - explained.
Balveer Singh & Anr. v. State of Rajasthan [2016] 2 SCR 504 :
(2016) 6 SCC 680; Chief Enforcement Officer v. Videocon
International Ltd. [2008] 2 SCR 36 : (2008) 2 SCC 492; R.R.
Chari v. State of U.P. [1951] 1 SCR 312 : AIR 1951 SC 207;
Sarah Mathew v. Institute of Cardio Vascular Diseases [2013] 12
SCR 674 : (2014) 2 SCC 62; Darshan Singh Ram Kishan v. State
of Maharashtra [1972] 1 SCR 571 : (1971) 2 SCC 654; Mohd.
Yousuf v. Afaq Jahan [2006] 1 SCR 1 : (2006) 1 SCC 627; S.R.
Sukumar v. S. Sunaad Raghuram [2015] 9 SCR 1105 : (2015) 9
SCC 609; Mona Panwar v. High Court of Judicature of Allahabad
[2011] 2 SCR 413 : (2011) 3 SCC 496; Maksud Saiyed v. State of
Gujarat [2007] 9 SCR 1113 : (2008) 5 SCC 668; Tula Ram v. Kishore
Singh [1978] 1 SCR 615 : (1977) 4 SCC 459; Kewal Krishan v.
Suraj Bhan, 1981 SCC (Cri) 438; Rameshbhai Pandurao Hedau v.
State of Gujarat [2010] 3 SCR 522 : (2010) 4 SCC 185; Ramdev
Food Products Pvt. Ltd. v. State of Gujarat [2015] 5 SCR 283 :
(2015) 6 SCC 439; Raghubans Dubey v. State of Bihar, 1967 Cri
LJ 1081 (SC); Pradeep S. Wodeyar v. State of Karnataka [2021]
11 SCR 985 : (2021) 19 SCC 62; Nahar Singh v. State of U.P.
[2022] 2 SCR 795 : (2022) 5 SCC 295; Joginder Singh v. State
[2025] 8 S.C.R.
615
Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.
of Punjab reported,1979 Cri LJ 333 (Para 6); Kishun Singh v.
State of Bihar [1993] 1 SCR 31 : (1993) 2 SCC 16; W.B. v.
Mohd. Khalid [1994] Supp. 6 SCR 1 : (1995) 1 SCC 684; Ranjit
Singh v. State of Punjab [1998] Supp. 2 SCR 8 : (1998) 7 SCC
149; Hareram Satpathy v. Tikaram Agarwala [1979] 1 SCR 349 :
(1978) 4 SCC 58 : AIR 1978 SC 1568 : (1978) Cri LJ 1687; A.R.
Antulay v. Ramdas Sriniwas Nayak [1984] 2 SCR 914 : (1984) 2
SCC 500 - referred to.
List of Acts
Code of Criminal Procedure, 1973; Penal Code, 1860.
Books and Periodicals Cited
Black's Law Dictionary - referred to.
List of Keywords
Section 193, Code of Criminal Procedure, 1973; Section 319,
Code of Criminal Procedure, 1973; Section 190, Code of Criminal
Procedure, 1973; Cognizance; Taking cognizance; Commitment
of the case; Cognizance of offences by Courts of Session;
Cognizance of offences by Magistrates; Power to proceed against
other persons appearing to be guilty of offence; Chapter XIV, XV,
XVI, XVIII, Code of Criminal Procedure, 1973; Inquiry; Offences
triable exclusively by the Court of Sessions; Summon a person
as accused; Committal of case by a Magistrate to the Court
of Sessions; Name dropped from charge-sheet; Extra judicial
confession; Transfer of investigation; Summoning additional
persons; Summoning the additional accused; Court's duty to find
out the real offenders; Complaint; Trial; Conscious application of
mind; Ascertainment of the truth or falsehood of the allegation;
Court of Sessions; Suddenly went missing; Extra-marital affair;
Last seen theory; Murder; Application under section 193 CrPC;
Pre-trial stage; Stage of inquiry; Discharge of accused.
Case Arising From
EXTRAORDINARY CRIMINAL APPELLATE JURISDICTION:
Special Leave Petition (Criminal) No. 10010 of 2025
From the Judgment and Order dated 03.04.2025 of the High Court
of Judicature at Allahabad in CRR No. 6732 of 2024
616
[2025] 8 S.C.R.
Supreme Court Reports
Appearances for Parties
Advs. for the Petitioner:
Vikas Upadhyay, Ms. Ankita Kashyap, Shiva Narang, Ranveer
Singh.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided in the
following parts: -
INDEX*
A. FACTUAL MATRIX ..........................................................................
3
B. IMPUGNED ORDER ........................................................................
10
C. SUBMISSIONS ON BEHALF OF THE PETITIONER ...................
12
D. ISSUE FOR DETERMINATION ............................................................
15
E.
ANALYSIS ........................................................................................
15
i.
What is the import and purport of 'Cognizance' under the
scheme of the Code of Criminal Procedure, 1973? ..........
15
a. Meaning of the expression 'Cognizance' and 'Taking
Cognizance' under Chapter XIV of the Code ...................
15
b. Cognizance of offences by Magistrates and the Three
Distinct Points of Origin of the Criminal Machinery under
the Code. ............................................................................
20
I.
On the basis of a Complaint .......................................
21
ii. Who takes Cognizance of Offence exclusively triable by
Court of Sessions under the Code? .....................................
36
a. Role of the Magistrate where the Offence is exclusively
triable by a Court of Session ..............................................
37
I.
Chapter XVI - Section(s) 207, 208 and 209 of the Code
and Committal of Case by a Magistrate to the Court of
Sessions .....................................................................
38
* Ed. Note: Pagination as per the original Judgment.
[2025] 8 S.C.R.
617
Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.
b. Role of the Court of Session after the case is committed to
it by the Magistrate under Section 209 of the Code ........
48
c.
Object and Purpose underlying Section 193 of the Code ...
60
d. How the decision of this Court in Dharam Pal should be
understood ........................................................................
69
F.
CONCLUSION ..................................................................................
83
1.
This petition arises from the order passed by the High Court of
judicature at Allahabad dated 03.04.2025 in Criminal Revision No.
6732 of 2024 (for short, the "Impugned Order") by which the High
Court rejected the revision application filed by the petitioner-herein
and thereby affirmed the order passed by the Additional District and
Sessions Judge-Fast Track Court (Crime against women) Kanpur
Dehat below disposal proposal paper no. 92 of 2019 arising from the
First Information Report bearing case crime no. 402 of 2018 lodged
with the police station Shivali, District Kanpur Dehat for the offence
punishable under Section(s) 302 and 376 of the Indian Penal Code,
1860 (for short, the "IPC").
A.
FACTUAL MATRIX
2.
The respondent No. 2 herein (original first informant) is the husband
of the victim (deceased). The victim all of a sudden went missing
on 21.11.2018. On 24.11.2018 the dead body of the victim was
recovered somewhere from the bushes lying on the outskirts of the
village. In such circumstances the first informant i.e. the husband
lodged a First Information Report at the concerned police station.
In the FIR the first informant named one Ajay as the suspect. The
first informant alleged that Ajay had an extra-marital affair with his
wife (victim) and was last seen with the victim and accordingly he
alleged that Ajay might have been involved in the murder of his wife.
In the course of the investigation, the name of the petitioner-herein
surfaced. Some of the witnesses in their police statements recorded
under Section 161 of the CrPC stated that the petitioner herein
had made an extra judicial confession about his involvement in the
618
[2025] 8 S.C.R.
Supreme Court Reports
alleged crime. Later the investigation came to be transferred to the
Crime Branch. The transfer of investigation took place sometime in
2019. The Crime Branch gave a clean chit to the petitioner-herein.
On 21.02.2019 chargesheet came to be filed only against Ajay. The
name of the present petitioner was dropped from the chargesheet.
3.
On 11.03.2019 the case came to be committed under Section 209 of
the Code of Criminal Procedure, 1973 (for short, the "CrPC") being
exclusively triable by the Court of Session. Ajay Kumar (accused)
against whom chargesheet was filed was brought before the trial
court on 02.04.2019 for the purpose of framing of charge. However,
on the same day i.e. 02.04.2019 the respondent No. 2 (husband of
the victim) filed an application under Section 193 of the CrPC seeking
to summon the petitioner-herein as an accused. It took almost five
years for the trial court to decide the application preferred by the
respondent No. 2 under Section 193 of the CrPC seeking to summon
the petitioner-herein as an accused.
4.
The trial court in exercise of powers under Section 193 of the CrPC
ordered that the petitioner-herein shall be summoned as an accused
in connection with the crime referred to above and be put to trial
along with Ajay.
5.
The order passed by the trial court reads thus: -
"Heard and properly examined the file.
It is clear from the perusal of the file that in the present case,
complainant Vijaylal has registered an FIR on 24.11.2018 at
Police Station- Shivli, Kanpur Dehat, regarding the murder
of his wife/deceased Shivwati between 21.11.2018 and
24.11.2018. The First Information Report was registered
against accused Ajay Kumar under Section-302 IPC.
On behalf of the complainant, Proforma Paper No. 5B
has been presented and it has been stated that till the
time of filing the report, the applicant/ complainant was
not aware of the name of the proposed opponent. But
during the investigation, the name of the accused has
come to light and sufficient evidence is also available in
the case diary, on the basis of which a request has been
made to summon the opponent Mayank Kumar Nagar
alias Kallu Nat.
[2025] 8 S.C.R.
619
Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.
The statement in the case diary number-2 states that his
wife Shivwati had illicit relations with the cousin" of this
witness. On '21,11.2018 at around 7 pm his wife went
out on the pretext of defecation and has not returned
home since then. On 21.11.2018 at around 8 pm Pushpa
Devi, Deepu and Vinod of the village told that they saw
his wife Shivwati going towards the forest with his cousin
Ajay Kumar. On 24.11.2018, at around 5 pm, when they
reached the wasteland while searching, they found the
dead body of his wife lying in the bushes. A noose of
sal was tied around her neck. His wife was killed by his
cousin Ajay Kumar by putting a noose of sal around her
neck due to Illicit relations.
In the statement of Renu, who is the sister-in-law of the
victim/deceased Shivwati, it is mentioned in the case diary
number-l0 that her sister-in-law's conduct was not good,
she had a love affair with her aunt's son Ajay and Kallu
Nat, who had come with Ajay, also had a relationship
with her sister-in-law Shivwati. On 21.11.2018, Kallu Nat
had dropped her sister-in-law home on a motorcycle in
the evening. The next day on 22.11.2018, he came home
early in the morning on the pretext of buying a buffalo.
Whereas Kallu Nat is fully aware that there is no buffalo
for sale in this house. His sister-in law stayed with him the
whole day on 21/11/2018 from here to the hospital and
from the hospital to here. The justification of coming on
the morning of 22/11/2018 is doubtful.
In the case diary slip number - 10 itself, the statement of
witness Framed Kumar is recorded that his father Sundar
was ill, who was admitted in Kiran Hospital, his sister-inlaw Mrs. Shivwati came to see his father in Kiran Hospital
Kanpur city on 21.11.2018, who was brought by a person
on a motorcycle, when she asked, he said that he was her
brother-in-law from the village. At that time, this witness's
brother-in-law and brother-in-law's son in-law were in the
hospital, who knew that person.
Neeraj's statement is mentioned in case diary paper
number 10 that his brother-in-law Pramod's father Sundar
620
[2025] 8 S.C.R.
Supreme Court Reports
was admitted in Kiran Hospital Kanpur Nagar. His younger
sister Shivwati came on a motorcycle with Kallu Nat of
Baghpur on 21/11/2018, whom he already knew, Kallu Nat
used to visit his sister Shivwati's house earlier also, that's
why he knew her. On the same day at around 4:00 pm,
Kallu Nat took his sister from the hospital to Ludhaura.
Deepak's statement is mentioned in case diary paper
number 10 that Shivwati was his wife's aunt, who was
his paternal aunt-in-law. On 21/11/2018, he went to Kiran
Hospital Kalyanpur to see the father of his paternal atmt
Framod, resident of Kapuipur. Where her aimt-in-law
Mrs. Shivwati came to the hospital sitting on Kallu Nat's
motorcycle and in the evening Kallu went back to Varshas
along the river. This witness has stated in his statements
that he recognized Kallu Nat, resident of Bagpur, at
Shivwati's house in Luchaura.
The investigating officer has recorded in paper number 11
that CDR of mobile number 7678819303 of deceased Smt.
Shivwati has been received, on examination of which it
was found that on 21/11/2018 a very long conversation
took place from the above mentioned mobile number of
the deceased to mobile number 6386602633 at different
times from 15-19-18 to 22-55-47 and on 22/11/2018 in the
night from 00-30-15 to 03-31-26 seven times at different
times, details of which are recorded in the CD and it is
also mentioned on examination of the CDR received
from 1/11/2018 to 22/11/2018 that from mobile number
7678819303 of deceased Shivwati to mobile number
17 calls were made to 6386602633 from 21/11/2018 to
22/11/2018 in which the deceased had a long conversation
and it was done at inopportune time. On checking the
software, the mobile number 6386602633 holder is shown
as Shri Mayank Kumar Nagar son of Jeetpal Nagar resident
of 194 Bagpur, Maitha Kanpur Dehat.
In case diary paper number- 11, Surjan Singh's statement
is recorded that a few days ago at around 4:00 pm, I was
sitting on the high platform in front of Bagpur Inter College
near Ramptakash Aatishbaaz of Ludhaura village. Kallu
[2025] 8 S.C.R.
621
Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.
Nat of Bagpur came. He told Ramprakash that uncle I want
to talk to you and came on the platform and told in front
of this witness that on 21/11/2018, he had taken Shivwati
on his motorcycle to Kiran Hospital Kalyanpur to see her
relative and give him food. He told that Ajay and he had
illicit relations with Shivwati and also told that both of them
were friends. He told that he had made a plan to elope on
the same day. As per the plan, Ajay had taken Shivwati
from her home to Raipur in the evening and when Kallu
Nat did not reach Raipur as promised, they would talk to
each other throughout the night. In the morning when Kallu
Nat reached Raipur, Shivwati would get upset and want to
go back home and she would insist on elope. And when
she did not agree after being explained, he would come to
Ludhaura village on the night of 22/28-11-18 to get money
and clothes to elope. He also told that he had raped Shivwati
one by one in the cover near Ludhaura in the barren land
and both of them would kill Shivwati by putting a noose
around her neck with a shawl and he was also apologizing.
In the case diary's paper number 12A, the doctor who
conducted the post mortem of the deceased, Mr. Puneet
Kumar Pandey, has stated that it has been confirmed that
the deceased was raped and strangled to death and it is
also mentioned that the entire investigation revealed that
the deceased Shivwati was in a love relationship with Ajay
Kumar and Kallu Nat alias Mayank Kumar Nagar. Due to
the love affair, the accused Ajay Kumar took Shivwati to
Raipur on the instructions of Kallu Nat with the intention
of elopement on the evening of 21/11/2018 and Kallu Nat
failed in his plan and tried to convince her the next day
and made a plan with Ajay to remove the deceased from
the way on her insistence and under this plan, Shivwati
was lured and taken to the barren land in village Ludhaura
and both of them raped her one by one in the barren
land and as per the plan, both of them together killed the
deceased by strangulating her by putting a noose around
her neck with a sal. On the basis of the above, the name
of Mayank Kumar Nagar alias Kallu Nat came to light and
Section 376 IPC was added.
622
[2025] 8 S.C.R.
Supreme Court Reports
It is mentioned in the case diary paper number-13 that I,
the in-charge inspector, along with my accompanying staff,
vehicle' and driver left from police station to village Bagpur
and raided the possible locations of the accused Mayank
Kumar Nagar alias Kallu Nat who has come into light
recently, but he was not found. He is absconding as usual.
According to the case diary paper number-17, Deep Kumar
appeared before the Additional Director General of Police,
Kanpur Zone- Kanpur on 13.01.2019 and gave a written
application and stated that his younger brother Kallu has no
involvement in the murder of Shivwati and the Investigating
officer is demanding one lakh rupees through his broker.
On the basis of which application, the investigation of the
case has been transferred from Chandrashekhar Dubey,
Incharge Inspector, Shivli, Kanpur Dehat to Inspector Shri
Naveen Kumar, Crime Branch, Kanpur Dehat.
It is clear from all the above evidence/discussion that
according to complainant Vijaylal, his wife went to the
toilet on 21.11.2018 at around 7 pm. whose dead body
was found lying in the bushes on 24.11.2018 at around
5 pm, with a noose of sal around her neck. According to
the complainant, Ajay Kumar killed the deceased. It is worth
mentioning that the complainant is not an eyewitness to
the incident. According to the other witness of the case,
Renu, the deceased also had illicit relations with Kallu Nat,
who had gone to Kanpur to see her relative on 21.11.2018
with Kallu Nat and on 22.11.2018 also Kallu Nat came
home. According to another witness Pramod Kumar, the
deceased had come to Kiran Hospital to see her relatives
on 21.11.2018 sitting on a person's motorcycle. On being
asked, the deceased had said that the person was her
brother-in-law from the village, whom the witness' brotherin-law and son-in-law knew. According to witness Neeraj,
his younger sister/deceased Shivwati had come to the
hospital on 21.11.2018 sitting on Kallu Nat's motorcycle and
on the same day at around 4 pm. Kallu Nat had taken his
sister from the hospital to Ludhaura. According to witness
Deepak, on 21.11.2018, the deceased had come to Kiran
Hospital to see her relatives sitting on a motorcycle with
[2025] 8 S.C.R.
623
Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.
Kallu Nat and had returned with Kallu Nat. According to
witness Surjan, Kallu Nat had told Ramprakash in front
of this witness that Kallu Nat and Ajay Kumar had illicit
relations with the deceased Shivwati and had raped
Shivwati In turns in the bushes near Ludhaura in the
barren land and had killed her by putting a noose around
her neck with a shawl.
The doctor who conducted the post-mortem of the
deceased. Dr. Puneet Kumar Pandey, has stated in the
summary that the deceased was raped and strangulated
to death.
The case diary of the case shows that the deceased had
a long conversation 17 times from her mobile to another
number from 21.11.2018 to 22.11.2018, which other
number 6386602633 belongs to Mayank Kumar Nagar
son of Jeetpal and the deceased had called the above
number several times in the past as well. The case diary
also shows that during investigation, it was found that the
deceased Shivwati had illicit relations with Ajay Kumar
and Kallu Nat alias Mayank Kumar and with the intention
of eliminating the deceased, Ajay Kumar and Kallu Nat
alias Mayank Kumar, as per the plan, took the deceased
Shivwati to the barren village Ludhaura and raped her one
by one and killed her by putting a noose around her neck.
On the basis of the application of Deep Kumar, brother
of the opponent Kallu Nat alias Mayank Kumar Nagar,
the investigation was given to another investigator and
a chargesheet has been sent to the court against only
accused Ajay Kumar under Section 302, 376 IPC.
All the above evidence, facts, circumstances and
investigation show that the opponent Kallu Nat alias
Mayank Kumar Nagar had illegal relations with the
deceased/victim Shivwati. Who is also a friend of the
accused Ajay Kumar in the said opponent case. With the
aim of removing the deceased from their path, accused
Ajay Kumar and opponent Kallu Nat alias Mayank KumarNagar, as per-the-plan, called-the victim deceased-Shivwati
to the-wasteland in Ludhaura village and forcibly raped the
624
[2025] 8 S.C.R.
Supreme Court Reports
victim Shivwati one by one (gang rape) and by tightening
the noose of shawl around the neck of the victim Shivwati,
killed the victim deceased Shivwati.
Therefore, on the basis of the above facts and circumstances
and evidence available on the file, it is justified to summon
the opposite accused Kallu Nat alias Mayank Kumar Nagar
for trial under Section 376, 302 IPC.
Order
The application presented by complainant case / applicant
Vijay Lai under paper number - SB under Section 193
CrPC dated 26.04.2019 is allowed. Accused Kallu Nat alias
Mayank Kumar Nagar son of Jeetpal Nagar, resident of 194
Baghpur (Maitha), Police Station- Shivli- District - Kanpur
Dehat is taken cognizance under Section 376, 302 IPG.
Accordingly, summons should be issued to accused Kallu
Nat alias Mayank Kumar Nagar. The case be presented
on 07/06/2024 for further action / charge on accused Kallu
Nat alias Mayank Kumar Nagar."
6.
Thus, it appears from the aforesaid that the application filed by the
complainant under Section 193 of the CrPC to summon the petitionerherein as an accused came to be allowed. Having regard to the
materials on record the trial court reached the conclusion that there
was prima facie material indicating involvement of the petitionerherein in the alleged crime and he should be asked to face the trial
along with the co-accused against whom chargesheet was filed by
the Investigating Agency for the offence of rape and murder.
B.
IMPUGNED ORDER
7.
The order referred to above came to be challenged before the High
Court by way of criminal revision application. The High Court rejected
the criminal revision application holding as under: -
"5. At the very outset, the learned A.G.A. for State-opposite
party-1 has raised a preliminary objection regarding
maintainability of present Criminal revision. Learned A-G.A.
submits that since applicant has already approached this
Court by means of aforementioned application under
Section 482 Cr.P.C., therefore, present criminal revision
[2025] 8 S.C.R.
625
Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.
for the same relief is not maintainable. According to the
learned A.G.A., no liberty was granted by this Court to the
applicant to file a criminal revision nor the aforementioned
application was dismissed on the ground of alternative
remedy. He therefore submits that in view of law laid down
by Apex Court in the case of Sarguja Transport Service
Vs. State Transport Appellate tribunal, M.P. Gwalior and
others (1987) 1 SCC 5, the present criminal revision shall
not be maintainable. Learned A.G.A. has then referred to
the judgement of Supreme Court in Prabhu Chawla Vs.
State of Rajasthan and another, (2016) 16 SCC 30 wherein
the Apex Court has held that an application under Section
482 Cr.P.C. is not liable to be dismissed on the ground of
alternative remedy, of filing a revision.
6. On the edifice of aforesaid submissions, the learned
A.G.A. submits that the true import of the order dated
07.08.2024 is that the revisionist has been granted liberty
to approach the competent court and not to file criminal
revision before this Court. As such, present criminal revision
is not maintainable and therefore liable to be dismissed.
7. Learned A.G.A. has then submitted that the Court of
Sessions in exercise of jurisdiction under Section 193
Cr.P.C. has summoned the present applicant/revisionist.
Referring to the five Judges Bench Judgement of Supreme
Court in Dharmpal and others Vs. State of Haryana and
another, (2014) 3 SCC 306, the learned A.G.A. submits
that the order impugned in present criminal revision cannot
be said to be illegal for want of jurisdiction. As such, the
order impugned cannot be challenged on the ground of
jurisdictional error. On the cumulative strength of above
submission, the learned A.G.A. submits that present
criminal revision is not maintainable and therefore liable
to be dismissed.
8. When confronted with above, the learned counsel for
revisionist could not overcome the same.
9. Having heard the learned counsel for revisionist,
the learned AG.A. for State-opposite party-1 and upon
perusal of record that court finds that the preliminary
626
[2025] 8 S.C.R.
Supreme Court Reports
objection raised by the learned A.G.A in opposition to
this criminal revision is clearly borne out from the record
and furthermore, the same could not be dislodged by
the learned counsel for revisionist with reference to the
record at this stage. As such, no good ground now exits
to entertain the present criminal revision.
10. In view of above, this criminal revision fails and is
liable to be dismissed.
11. It is accordingly dismissed."
8.
Thus, the High Court rejected the revision application filed by the
petitioner herein and thereby affirmed the order passed by the trial
court summoning the petitioner as an accused to face the trial along
with the accused named in the charge sheet. The High Court rejected
the revision application relying on the Constitution Bench decision
of this Court in Dharam Pal & Ors. vs. State of Haryana & Anr.
reported in (2014) 3 SCC 306.
9.
In such circumstances referred to above the petitioner is here before
this Court with the present petition.
C.
SUBMISSIONS ON BEHALF OF THE PETITIONER
10. Mr. Vikas Upadhyay, the learned counsel appearing for the petitioner
vehemently submitted that the trial court as well as the High Court
committed a serious error in summoning the petitioner as an accused
to face the trial along with the charge sheeted accused, namely,
Ajay Kumar. He would submit that the petitioner could have been
summoned as an accused to face the trial only after the trial court
would have started recording oral evidence of the witnesses. In other
words, according to the learned counsel it is only if the involvement
of the petitioner would have surfaced from the oral evidence of any
of the witnesses, then the trial court would have been justified to
summon the petitioner to face the trial in exercise of the powers
under Section 319 of the CrPC.
11. The learned counsel vehemently submitted that there was no scope
for the trial court to summon the petitioner in exercise of the powers
under Section 193 of the CrPC as the Magistrate while committing
the case to the Court of Session had already taken cognizance of
the offence and in such circumstances the trial court by invoking
[2025] 8 S.C.R.
627
Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.
Section 193 of the CrPC could not have taken cognizance for the
second time. He would submit that the power under Section 193
CrPC is a stage specific power and in the exact words of the learned
counsel; once that stage has crossed it gets exhausted unlike the
power under Section 319 of the CrPC which could be exercised
multiple times during a particular period when the trial is on and is
not bound by any specific stage of trial.
12. Relying on the decision of this Court in Balveer Singh & Anr. vs.
State of Rajasthan reported in (2016) 6 SCC 680 he would submit
that there is nothing like second cognizance. According to him if a
Magistrate has taken cognizance in a case before committing the case,
then despite there being power under Section 193 of the CrPC the
Sessions court cannot again take cognizance. The learned counsel
relying on the Constitution Bench decision in the case of Dharam Pal
(supra) would submit that cognizance of offence can be taken only
once i.e. either by the Magistrate or by the Sessions court. According
to the learned counsel there is nothing like 'part-cognizance'.
13. In other words, the argument of the learned counsel appearing for
the petitioner is that the Constitution Bench decision of this Court
in Dharam Pal (supra) says in so many words that cognizance of a
sessions triable offence cannot be taken by a Magistrate but the same
has to be taken by a Sessions Judge after committal. According to the
learned counsel, cognizance of a police report/chargesheet filed by
the police is always taken by the Magistrate irrespective of whether
the offences alleged therein are triable by a Court of Sessions or
not. He would submit that the ratio of Dharam Pal (supra) should
be understood as conveying that Section 193 does not permit the
Sessions Judge to take cognizance of the same offences of which
cognizance stood taken by the Magistrate under section 190 of
the Code which the Magistrate takes in order to reach the stage of
committal under Section 209 of the Code. And if once cognizance is
taken by the Magistrate, the same cannot be done by the Sessions
Judge. According to the learned counsel Dharam Pal (supra) says
that cognizance of sessions trial offences can only be taken by the
Sessions Judge.
14. In such circumstances referred to above, the learned counsel prayed
that there being merit in his petition, the same may be considered
accordingly.
628
[2025] 8 S.C.R.
Supreme Court Reports
D.
ISSUE FOR DETERMINATION
15. The seminal issue that falls for our consideration is 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 (for short, the 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 of the
Code of Criminal Procedure, 1973 independently of the provisions
of Section 319 of the said Code?
E.
ANALYSIS
i.
What is the import and purport of 'Cognizance' under the
scheme of the Code of Criminal Procedure, 1973?
a.
Meaning of the expression 'Cognizance' and 'Taking
Cognizance' under Chapter XIV of the Code.
16. Mr. Vikas Upadhyay, the learned counsel appearing for the petitioner
herein has vehemently canvassed that cognizance of an offence, in
law, can be taken only once. He submitted that in cases involving
offences triable exclusively by the Court of Sessions, cognizance of
such offence may be taken either by a Magistrate prior to the committal
of the case, or, in the absence of such cognizance at the instance
of the Magistrate, by the Court of Session alone, to which the case
is committed. However, he would submit that, once cognizance of
the offence has been taken by either the Magistrate or the Court of
Sessions, as the case may be, a second cognizance by the other
is impermissible in law. He urged that there cannot be a second
cognizance nor can there be any part cognizance or bifurcation
of such cognizance by a Magistrate and a Court of Sessions. In
support of his contention, reliance was placed on the decisions of
Dharam Pal (supra) and Balveer Singh (supra).
17. In Dharam Pal (supra) this Court held that "cognizance of an
offence can only be taken once. In the event, the Magistrate takes
cognizance of the offence and then commits the case to the Court of
Sessions, the question of taking fresh cognizance of the offence, and
thereafter, proceed to issue summons, is not in accordance with law.
If cognizance is to be taken of the offence, it could be taken either by
[2025] 8 S.C.R.
629
Kallu Nat Alias Mayank Kumar Nagar v. State of U.P. and Anr.
the Magistrate or by the Court of Session." and that there can be no
"question of part cognizance being taken by the Magistrate and part
cognizance being taken by the learned Session Judge." Similarly,
in Balveer Singh (supra) it was reiterated that "cognizance of an
offence can only be taken once. In the event, a Magistrate takes
cognizance of the offence and then commits the case to the Court
of Session, the question of taking fresh cognizance of the offence
and, thereafter, proceeding to issue summons, is not in accordance
with law.