Full Judgment
C. Honiah, C.J.
1. The facts relevant for the purpose of this petition briefly stated are these : On April 14, 1978 an incident happened at the house of Mahadeo (deceased) at village Jajusar in which Mahadeo was murdered. Mahadeo was cremeted on that night. On April 16, 1978 a report was lodged in the Police station, Sanchore by one Goa implicating 14 persons including Veera (petitioner). After due investigation a charge sheet was filed against 13 persons but not against Veera. A perusal of the material placed before me shows that the wife and other members of the family of Mahadeo did not implicate Veera. On the other hand, they appear to have stated that he was not concerned with the crime. That is the reason why the investigating agency did not challan him. At the time of trial the Public Prosecutor made an application to the Court to take cognizance of the offence of murder against Veera also. The learned Sessions Judge accordingly took cognizance and issued warrant of arrest. It is this order that is challenged in this petition.
3. Section 193, Code of Criminal Procedure deals with taking of cognizance of offences by Court of Sessions. It reads as under:
193. Cognizance of offences by Court of Sessions-Except as otherwise expressly provided by this Code or any other law for the time being in force, no Court of Sessions shall take cognisance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
The section says that except as otherwise expressly provided no Court of Sessions can take cognizance of any offence without any commitment by a Magistrate. In the present Code committal has been made a formal affair by omitting altogether committal proceeding. When an offence is exclusively triable by a court of sessions the Magistrate shall commit the accused to the court of sessions (Section 209), 'Except as otherwise expressly provided.' From the language of this section and definition of 'offence' in Section 2(n) it seems to follow that the prohibition in Section 193 is against taking cognizance of the act or commission unless there is a commitment therefore. Therefore, the Court of Sessions is not empowered to proceed against any person for the offence which appears to have been committed unless he is committed to it by a Magistrate under the Code of Criminal Procedure. Where the committal is only under Section 307, Indian Penal Code, and the injured person dies after the committal, the Court of Sessions may take cognizance of the offence under Section 302, Indian Penal Code, in respect of the person against whom a charge under Section 307, Indian Penal Code was made, otherwise if cognizance of any offence against any person, not committed to the Court of Sessions is taken on the application of the Public Prosecutor or any other person; it would lead to disastrous consequence of the Sessions Court is not empowered under Section 193, Code of Criminal Procedure to proceed against any person for the offence which he appears to have committed unless he is committed to it by a Magistrate. I, therefore, quash the order in question. The petition is allowed.