[Cites 11, Cited by 0]
Madhya Pradesh High Court
Lokendra Singh Sengar vs The State Of Madhya Pradesh on 11 February, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJESH KUMAR GUPTA
ON THE 11th OF FEBRUARY, 2026
MISC. CRIMINAL CASE No. 21880 of 2022
LOKENDRA SINGH SENGAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. Atul Gupta - Advocate for the petitioner.
Mr. Atul Kumar Sharma - Govt. Advocate for respondent/State.
Mr. Alok Katare - Advocate for the respondent [R-2].
ORDER
The present petition under Section 482 of the Cr.P.C. has been filed
against the order dated 14.08.2018 passed by the Sessions Judge, Morena, in
S.T. No. 214 of 2018. By the impugned order, an application under Section
193 of the Cr.P.C. was allowed, and the present petitioner was summoned.
2. Brief Facts: On 16.05.1996, a report was lodged against co-accused
Veer Singh and B.M. Gupta at Crime No. 315/1996, Police Station Kotwali,
District Morena. It was alleged that they misappropriated government funds
amounting to Rs 1,02,545/-.
3. Counsel for the petitioner submits that the petitioner was not arrayed
as an accused in the aforementioned FIR. Furthermore, the charge sheet was
filed only against the two aforementioned persons. After being granted bail,
said accused persons appeared before the learned Trial Court to face trial.
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Although the accused persons approached the higher courts to quash the
charge sheet, they were unsuccessful.
4. Subsequently, to delay the proceedings, the accused filed an
application under Section 190(1) of the Cr.P.C. to array the present petitioner
and others as accused). The petitioner filed a reply to this application. After
due consideration, the learned Magistrate rejected the application under
Section 190(1) vide order dated 06.06.2018. Thereafter, with the same
ulterior motive, co-accused B.M. Gupta filed an application under Section
193 of the Cr.P.C. to array the petitioner as an accused on similar grounds,
despite the fact that the earlier application under Section 190(1) had already
been dismissed.
5. For ready reference, Section 193 of the Cr.P.C. is reproduced below:
"Cognizance of offences by Courts of Session. Except as
otherwise expressly provided by this Code or by any other law for
the time being in force, no Court of Session shall take cognizance
of any offence as a Court of original jurisdiction unless the case
has been committed to it by a Magistrate under this Code."
5. Similarly, Section 190 of the Cr.P.C. is reproduced below:
"190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the
first class, and any Magistrate of the second class specially
empowered in this behalf under sub-section (2), may take
cognizance of any offence--
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.
2. The Chief Judicial Magistrate may empower any Magistrate of
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the second class to take cognizance under sub- section (1) of such
offences as are within his competence to inquire into or try.
6. It is further submitted that the core question is whether, under
Section 209, the learned Magistrate was required to take cognizance of the
offence before committing the case to the Court of Session. It is well-settled
that cognizance of an offence can only be taken once. If a Magistrate takes
cognizance and subsequently commits the case, the act of taking fresh
cognizance and issuing fresh summons is not in accordance with the law.
7. The language of Section 193 clearly indicates that once a case is
committed, the Court of Session assumes original jurisdiction. Therefore, the
provisions of Section 209 must be understood as the Magistrate playing a
ministerial or passive role in committing the case upon finding it triable by
the Sessions Court. There can be no "part cognizance" taken by the
Magistrate and "part cognizance" taken by the Sessions Judge.
8. It is further submitted that a Magistrate, in the exercise of powers
under Section 190 of the Cr.P.C., may refuse to take cognizance if the
material on record warrants such a refusal. In such a case, the Magistrate
must be satisfied that the complaint, case diary, and statements of witnesses
recorded under Sections 161 and 164 of the Cr.P.C. do not disclose the
commission of any offence. At this stage, while the Magistrate performs a
judicial function, they cannot appreciate the evidence on record to reach a
conclusion as to its reliability or admissibility. It is well-settled that a
meticulous appreciation of evidence is impermissible at this stage; the
Magistrate is not competent to weigh the evidence or determine the balance
of probabilities.
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9. Keeping the aforesaid legal position in view, we may now examine
the circumstances under which cognizance was taken by the Sessions Judge.
In the present case, the police report submitted to the Magistrate by the
Investigating Officer (I.O.) did not array the petitioner as an accused. The
co-accused subsequently filed an application before the learned Magistrate,
praying for cognizance to be taken against the petitioner as well. This
application was duly considered and rejected by the learned Magistrate.
10. The situation here is not one where an investigation report or
supplementary charge sheet filed under Section 173(8) of the Code
implicated the petitioner. On the contrary, the Police specifically concluded
in the final report that no case was made out against the petitioner. This
conclusion was challenged by the co-accused, who sought to have the
petitioner summoned via an application under Section 190 of the Code. The
petitioner filed a reply, and after hearing arguments, the learned Magistrate
rejected the said application. This demonstrates that the Magistrate's order
was passed with due application of mind, whereby he refused to take
cognizance against the petitioner and confined the proceedings only to the
other co-accused. In support of his contention, counsel for the petitioner has
relied upon the order dated 02.08.2018 passed in Criminal Revision No.
2384 of 2018, wherein, Co-ordinate Bench of this Court in similar facts and
circumstances of the case, quash the order of Sessions Court. In such
circumstances, impugned order of Sessions Court deserves to be quashed.
11. Learned counsel for the respondent/complainant, respondent No.2
on the other hand has placed reliance on the judgment of the Hon'ble
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Supreme Court in the case of Hardeep Singh Vs. State of Punjab as reported
in (2014) 3 SCC 92 .
12. The ratio of judgment of Hon'ble Supreme Court in the case of
Hardeep Singh (supra) is that for offences exclusively triable by Sessions
Court, Sessions court alone is competent to take cognizance under Section
193 and then during course of court inquiry thereafter and the trial court and
the Magistrate is forbidden, by express provision of Section 319, to apply his
mind to the merits of the case and determine as to whether any accused
needs to be added or subtracted to face trial before the Court of Session.
13. This judgment of Hon'ble Supreme Court in the case of Hardeep
Singh (supra) has been distinguished by the Hon'ble Supreme Court in the
case of Balveer Singh and another Vs. State of Rajasthan and another
reported in (2016) 2 SCC (Cri) 622 , whereby Hon'ble Supreme Court has
held as under :-
"A bare reading of Section 190 of the Code which uses the
expression "any offence" amply shows that no restriction is
imposed on the Magistrate that Magistrate can take cognizance
only for the offence triable by Magistrate Court and not in respect
of offence triable by a Court of Session. Thus, he has the power to
take cognizance of an offence which is triable by the Court of
Session. When the Magistrate has taken cognizance or has
expressly rejected a prayer for taking cognizance (after hearing the
accused) i.e. the Magistrate has not played a merely passive role
under Section 209 Cr.P.C. and thereafter only committed. the case
to the Court of Session, the Court of Session is not empowered to
take cognizance of an offence for a second time under Section 193
Cr.P.C. Acting as court of original jurisdiction, as cognizance of
an offence can not be taken for a second time. Rather, the Sessions
Court may take recourse to its revisional jurisdiction.
Dharam Pal, (2014) 3 SCC 306, clarifies the law by laying down
the principle that even if the case is triable by the Court of Session,
the function of the Magistrate is not to act merely as a post office
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and commit the case to the Court of Session, but he is also
empowered to take cognizance, issue process and summon the
accused and thereafter commit the case to the Court of Session.
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. If cognizance is to be
taken of the offence, it could be taken either by the Magistrate or
by the Court of Session. The language of Section 193 of the Code
very clearly indicates that once the case is committed to the Court
of Session by the Magistrate, the Court of Session assumes
original jurisdiction and all that goes with the assumption of such
jurisdiction. The provisions of Section 209 of the Code will.
therefore, have to be understood as the Magistrate playing a
passive role in committing the case to the Court of Session on
finding from the police report that the case was triable by the
Court of Session. Nor can there be any question of part cognizance
being taken by the Magistrate and part cognizance being taken by
the Sessions Judge. Since the Court of Session is acting as the
Court of original jurisdiction under Section 193 of the Code, after
the committal proceedings to it by the Magistrate, it is
of empowered to take cognizance (only if the Magistrate has acted
passively under Section 209 Cr.P.C.) and issue summons and it
cannot be treated as taking second cognizance of the same
offence."
14. Heard counsel for the parties and perused the documents appended
thereto.
15. From the material available on record, it is evident that the
Investigating Officer, after conducting investigation, did not find any
material against the present petitioner and accordingly did not array him as
an accused in the charge sheet. Thereafter, an application under Section
190(1) of the Cr.P.C. was moved before the learned Magistrate seeking to
summon the petitioner as an additional accused. The said application was
considered on merits and rejected by order dated 06.06.2018. Thus, it cannot
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be said that the learned Magistrate acted merely in a ministerial capacity
while committing the case under Section 209 of the Cr.P.C.; rather, he
exercised judicial discretion and declined to take cognizance against the
petitioner.
16. In view of the law laid down by the Hon'ble Supreme Court in
Hardeep Singh (Supra) and subsequently clarified and distinguished in
Balveer Singh (Supra), as well as in Dharam Pal (Supra), the legal position is
that cognizance of an offence can be taken only once. If the Magistrate has
applied his mind and either taken cognizance or expressly refused to take
cognizance against a particular person, and thereafter committed the case to
the Court of Session, the Sessions Court cannot take cognizance afresh under
Section 193 of the Cr.P.C. in respect of the same offence, as that would
amount to taking second cognizance, which is impermissible in law.
17. The power of the Sessions Court to take cognizance under Section
193 of the Cr.P.C. arises only in a situation where the Magistrate has acted in
a purely passive manner under Section 209 of the Code and has not applied
his judicial mind to the question of cognizance. In the present case, since the
learned Magistrate had already considered and rejected the prayer to
summon the petitioner, the learned Sessions Judge was not justified in
allowing the application under Section 193 of the Cr.P.C. to array the
petitioner as an accused.
18. Consequently, the impugned order dated 14.08.2018 passed by the
learned Sessions Judge, Morena, in S.T. No. 214 of 2018, insofar as it relates
to summoning the present petitioner, is unsustainable in the eyes of law and
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is hereby set aside.
19. Accordingly, the petition under Section 482 of the Cr.P.C. stands
allowed. No order as to costs.
(RAJESH KUMAR GUPTA )
JUDGE
(LJ*)
