-Mayank Khichar
Further, the tension between Kishun Singh and Ranjit Singh found partial resolution in Dharam Pal v. State of Haryana, at para 27 and 28, where the Court introduced a nuanced distinction between the “active” and “passive” roles of the Magistrate in the committal process to justify its own reasoning. According to this framework, if a Magistrate assumes a “passive role”, i.e. committing the case without explicitly excluding any accused, the CoS may take a fresh cognizance and act as the court of original jurisdiction. However, if the Magistrate “actively” excludes certain individuals from prosecution, the CoS must respect this determination by the Magistrate and can only summon additional accused after evidence is collected, under Section 319.
While this distinction adds flexibility, it raises questions about the consistency of applying an “active-passive” role because this concept risks diluting the gatekeeping function of the Magistrate, introducing unnecessary ambiguity and making it challenging to determine the precise power(s) the CoS may exercise after the case is committed to it.
Now it is important to note that if the CoS could proceed without waiting for a committal, the immediate consequence would be the eclipse of the magistrate’s gatekeeping role, a role that is not merely ceremonial but central to safeguarding liberty (of persons interacting with the criminal justice system) at the earliest stage. It is the magistrate who records statements and confessions, supervises production within twenty-four hours of arrest, decides between police and judicial custody, and entertains bail at a time when the accused is most vulnerable. Therefore, skipping this stage by moving straight to the CoS is not only a procedural shortcut but arguably a substantive deprivation because it removes the nearest, most accessible judicial officer from making timely liberty-affecting decisions in favour of a court that may not be available when the immediacy of arrest demands intervention. This is why the procedure of committal matters, not because of ‘formalism’ but because it is ‘structurally designed’ to insert a liberty-protecting checkpoint before the heavier machinery of the CoS takes over.
Hence, this piece argues in favour of an alternative straightforward approach that preserves both the preliminary authority of the Magistrate and removes the reliance that the CoS need to place on the High Court, according to Ranjit Singh (recall above).Under this approach, the CoS can use its revisional powers under Section 399 of CrPC and add additional persons as accused, if any prima facie evidence emerges suggesting the complicity of additional persons as accused in the crime. The CoS can invoke its revisional jurisdiction to amend the list of accused without creating a fictionalized “first” cognizance. This route allows the initial cognizance by the Magistrate to stand, while still permitting the CoS to adapt to evolving evidence without assuming an unnecessary expansion of original jurisdiction.
This method finds support in Balveer Singh v. State of Rajasthan [see last para of judgement], where the Court reaffirmed that revisional powers allow the CoS to address omissions, enabling it to include additional accused persons without breaching procedural integrity. By using revisional powers, the CoS may ensure that the trial continues without any unnecessary delay while upholding the structured role of the Magistrate as outlined by Section 193 CrPC and now first proviso Section 232 BNSS.
Lastly, some clarifications are in order here to repel potential counter-arguments. This piece in this part has primarily relied on Section 399 because it is a superior power vested in the higher courts (CoS and above), which is not available to the subordinate courts, namely, Magistrate courts. In this bargain, Section 311 is not a viable option since it is confined to the summoning of ‘witnesses’ and does not extend to the addition of a person as an ‘accused’. That said, this piece acknowledges that Section 319, being a residual power vested in the CoS, may be invoked to summon an additional person as an accused. Yet, Section 399 remains the more viable alternative, for it is specifically conferred on the Sessions Judge and provides that, in “any proceeding the record of which has been called for, the Sessions Judge may exercise all or any of the powers that may be exercised by the High Court”. This confers an arguably wider authority and insulates the exercise of power from appellate maintainability challenges based on ‘lack of power’, whereas the residuary character of Section 319 leaves its invocation more open to contestation.
To buttress the above-argued matter, one may note that the first proviso ofSection 232 BNSS (reproduced below), through its purposive interpretation, provides a structured approach to resolving the ambiguity surrounding cognizance and committal.
S. 232 Commitment of case to CoS when offence is triable exclusively by it.
When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the CoS, he shall—
(a) commit, after complying with the provisions of section 230 or section 231 the case to the Court of Session, and subject to the provisions of this Sanhita relating to bail, remand the accused to custody until such commitment has been made; …
Provided that the proceedings under this section shall be completed within a period of ninety days from the date of taking cognizance, and such period may be extended by the Magistrate for a period not exceeding one hundred and eighty days for the reasons to be recorded in writing.
(emphasis supplied)
This provision, through the phrase “the date of taking cognizance” implies that the Magistrate must take cognizance before committing a case to the CoS and clears the ambiguity when read with Kishun Singh & Ranjit Singh, aligning with Dharam Pal’s “passive cognizance” concept (recall above). Here, the cognizance taken by the Magistrate does not interfere with the jurisdiction of the CoS once the case is committed. This new framework largely accords with the broader approach taken in Kishun Singh, allowing the CoS to assume jurisdiction once the case is committed by the Magistrate under S. 232(a) and summon additional accused where warranted.
The BNSS thus clarifies the sequence of actions, i.e. the Magistrate first takes cognizance, then commits the case, and only later does the CoS gain jurisdiction. This stepwise approach respects procedural clarity, enabling the CoS to respond to additional evidence without compromising judicial efficiency.
Moreover, the structured approach (as already discussed above) adopted in Ranjit Singh has significantly influenced subsequent interpretations of Section 193. Notably, in Pradeep S. Wodeyar v. State of Karnataka [at para 34, 47-49], the Hon’ble Supreme Court has reinforced the view that the powers of the CoS post-committal are confined to those individuals explicitly named in the committal order of the Magistrate. Consequently, revisional jurisdiction (jurisdiction which permits CoS to oversee and correct errors or omissions in the decisions made by lower courts, without fully re-assuming the role of first-instance adjudicator) or Section 319, activated only during evidence collection, remains the preferred mechanism for adding new accused.
Relatedly, a structural concern vis-à-vis the nature of ‘appellate stage’, as was in Ridge v Baldwin applies with equal, if not greater, force to the criminal-trial under Section 193 CrPC (now Section 213 BNSS). Specifically, when a CoS, which is otherwise an appellate court meant to provide second chance of lis at the post-committal appellate stage, assumes the power to marshall an accused for the very first time. Then it effectively bypasses the Magistrate’s role as the primary filtering authority, at the first non-appellate stage. The CoS erringly become the court of first instance, bypassing a valid preliminary check i.e. Magistrate’s Court. This, arguably, is not merely a question of forum, but of procedural deprivation qua rights of the accused inasmuch the Magistrate provides the most proximate and contextually attuned examination of the factual-matrix and investigative-record, which CoS by its very conceptualisation as an appellate stage is not meant to do i.e. being a court of first instance.
Notably, the Magistrate’s stage provides the accused with an initial opportunity to appear and contest their implication in a functionally closer context viz facts. Then, CoS, by eliminating this stage, and introducing the accused for the first time at the Sessions level is not sound. This is given the fact that CoS inherently a forum envisaged for ‘trial’ rather than ‘preliminary scrutiny’. Resultantly, the right of the person-implicated to appear for the second time (perhaps in front of the appellate body) is effectively diluted. Therefore, the individual is denied a meaningful, sequential opportunity to challenge their inclusion on record, materially.
The divergence between Ranjit Singh and Kishun Singh is not perhaps at a level of ‘interpretation’. Instructively, it reflects a rather substantive question about where discretion should reside within the criminal process, and why. While in Ranjit Singh, the court leans in favour of a safeguard-heavy reading of the concerned provisions. The court in Kishun Singh seems to expand the role of CoS in the name of substantive justice, which risks ‘procedural overreach’, without any concrete justification forthcoming.
The legislative posture under the BNSS, after updation from CrPC, appears to endorse the former vision, and rightly so. It supports-cum-clarifies, to an extent, a structured, sequence-bound framework that preserves the intended ‘roles’ of both Magistrate Courts and Court of Sessions. The availability of ‘revisional jurisdiction’ under Section 399 ensures that newly surfaced incriminating material can still be judicially scrutinized without collapsing the procedurally fair order of courts taking cognizance.
Ultimately, the question is not whether courts should pursue justice or procedure simpliciter, but how to reconcile the two without diluting either. A guided adherence to ‘procedural-sequencing’, alleviated by carefully circumscribed judicial remedies offers a more sustainable model to decide such cases, or for that matter any. It ensures that the criminal process remains both predictable ‘in form’ and responsive ‘in substance’. This would justifiably prevent ad-hoc (unjustified and unanchored) expansions of power [see chapter starting page 109 onwards], while still enabling the system to self-correct.
In this light, the true strength of the proposed framework lies not in choosing between ‘rigidity’ and ‘flexibility’, but in embedding flexibility within principled limits. This, one hopes, would continue to define-cum-preserve the legitimacy of criminal adjudication and earn the faith of ‘litigants’.
The author is a third-year B.A., LL.B. (Hons.) at NALSAR University of Law, Hyderabad.
