The task of taking direct cognizance (संज्ञान) of an offence is that of the Magistrate under Section 190. Where after taking cognizance, it appears to the Magistrate that the case is exclusively triable by the Court of Session, then he commits the same to the Court of Session. It is only after commitment that the Sessions Court can take cognizance under Section 193.
Section 209 CrPC should be read along with the Section 323 CrPC. Section 209 talks about the committal of the case by the Magistrate, which is discussed in detail below.
Section 209 CrPC:
This Section states that when the accused appears (on a police report or otherwise) before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, then he (‘he’ here refers to the Magistrate) shall:-
(a) Commit (transfer) the case to the Court of Session after compliance with Section 207 or 208 (as per the case is instituted).
If the case is instituted on the Police report then Section 207 shall be complied. Section 207 mentions a few documents which shall be provided to the accused including a copy of the Police report, FIR, statements made u/s 161 etc should be provided to the accused free of cost. Similarly, if the case is instituted otherwise (i.e., on complaint or suo moto) then Section 208 shall be complied. Section 208 mentions a few documents which shall be provided to the accused which say that free of cost copy shall be provided (without delay) to the accused which includes- Statements under section 200 or 202 (बयां), Statements made u/s 161 CrPC or 164 CrPC, or any other documents on which prosecution relies.
During such commitment by the Magistrate, he can send the accused to custody (Jail/ Police custody). Example: A is accused of murder. A appears before the CJM. CJM knowing that he can’t try this case can order A to the custody until committal.
(b) Remand accused to custody during and until the conclusion of the trial.
(c) Send the Court of Session- a record of the case, documents and articles which are as evidence.
(d) Notify the Public Prosecutor (which means the government appearing for the prosecution) about such committal of the case.
The word “appears” u/s 209 denotes that there is discretion of the Magistrate to find out whether the case of which is seized, is triable by the Court of Session or not. The Magistrate is not to go blindly by what the police mentioned in the charge sheet, but he has to apply his own mind to the facts of the case. Section 209 talks about the commitment of the case by the Magistrate before taking cognizance of the case. However, Section 323 talks about the commitment of the case if in any inquiry into an offence or a trial before a Magistrate, it appears at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session. In the case of Raj Kishore Prasad v. State of Bihar (AIR 1996 SC 1931), the Supreme Court held that at the stage of section 209 of Cr.P.C., 1973 the Court is neither at the stage of enquiry nor at the stage of trial. Even at the stage of ensuring compliance with sections 207 & 209 Cr.P.C., 1973, it cannot be said that the Court is at the stage of enquiry because there is no judicial application of mind and all that the Magistrate is required to do is to make the case ready to be heard by the Court of Sessions.
Section 209: Pre-Cognizance Committal of the case to the Session Court.
Section 323: Post-Cognizance Committal of the case to the Session Court.
In Sanjay Gandhi vs. Union of India, AIR 1978 SC 514, the Supreme Court held the following:
(i) Where the offence is exclusively triable by the Court of Session, the committing Magistrate has no power to discharge the accused nor does he have the power to take oral evidence.
(ii) It is not open to the committal court to check whether a prima facie case is made or not.
(iii) Committing Magistrate may look into the case where the wrong section of the Penal Code is quoted.
(iv) The court of session may discharge the accused if made-up facts unsupported by any material are reported by the police and a serious offence is made to appear.
Whether Committing Magistrate u/s 209 have the power to summon the new offender or add the accused who were named in the FIR but were not named in the Police report or add the accused who were not named in the FIR?
Before answering this we must have brief knowledge related to section 319. Section 319 says that any person not being the accused before the Court who also appears to have committed an offence from the evidence mentioned before the Court during the course of any enquiry into or trial of an offence for which cognizance has already been taken, whether that person is attending the Court or not, can be summoned and if he is added as an accused pursuant to the said decision of the Court, the mode of taking cognizance qua the newly added person is the same as in the case of the already arraigned accused. In other words, he is deemed to have been an accused when the Court has originally taken cognizance of the offence earlier. (The person will be considered an accused from the time when the Court took cognizance of the case)
In the case Raj Kishore Prasad vs. State of Bihar (1996) 4 SCC 495, the SC said that a new offender can only be summoned under Section 319 of the code and it is plain that the stage for employment of Section 319 has not yet arrived.
Therefore, committing Magistrate under Section 209 does not have the power to summon the new offender along with the accused.