NISAR AND ANR versus STATE OF U.P

Citation: [1994] SUPP. 5 S.C.R. 368 · Decided: 09-11-1994 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Dismissed

Judgment (excerpt)

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NISAR AND ANR 
v. 
STATE OF U.P 
NOVEMBER 9, 1994 
[DR. A.S ANAND'AND M.K. MUKHERJEE, JJ.] 
Criminal Procedure Code, 1973 : Section 193- Summoning of 
persons- Absence of order of committal against them- Whether Court of 
Session could summon them in exercise of power u!s 193- Held, yes. 
Section 319 (1)-Applicability of-Power u!s 319 (1) can be exercised 
at a stage when evidence was led 
Deceased met with an unnatural death in her matrimonial home. A 
First Information Report was lodged that her husband, grand mother-
in-law and the two appellants being the brother-in-law and sister-in-
law were responsible for her death. A case was registered u/ss 304-B 
and 306 of Indian Penal _Code against all of them. On completion of 
investigation the police submitted charge sheet u/s 306 IPC only against 
the deceased's husband and grand mother.:.in -law. 
The case was 
committed to the Court of Session under Section 209 Cr.P.C. 
When the matter came up for hearing, an application was moved 
that though during investigation sufficient materials were furnished to 
prove that the two appellants had also demanded a scooter as dowry 
and physically tortured and ill treated the deceased, no chargesheet 
was submitted against them and praying for invoking the provisions of 
Section 193 of the Code to summon them. 
The two appellants were summoned holding that a prlma facie case 
was made out against them and Section 193 of the Code empowered the 
Court to summon them. Revision filed against the impugned order was 
rejected by High Court. It was held that under Section 319 ·er. P.C 
even on the basis of existing material person appearing to be guilty 
might be summoned. 
This appeal had been filed against the Judgment of the High Court. 
It was submitted by the appellants that neither the provisions of Section 
193 nor those of Section 319 of the Code empowered the Court of 
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Session to pass the impugned order and in absence of any order 
368 
NISAR v. STATE OF U.P 
369 
·committing the appellants to the Court of Session, the Judge could not A 
have issued process against the appellants to stand trial by invoking 
Section 193 of the Code; and that having regard to the fact that Section 
319 of the Code could be invoked only at a stage when evidence was led, 
the High Court was not justified in upholding the order relying upon 
the provision, as that stage was yet to be reached. 
Dismissing the appe2I, this Court 
HELD 1.1 In view of the plain and unambiguous language of 
Section 319 of the Code of Criminal Procedure, the power u/s 319 (1) 
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can be exercised only in those cases where involvement of persons other 
than those arraigned in the charge sheet comes to light in the course of C 
evidence recorded during the inquiry of trial. In the instant case as that 
stage has not yet reached the appellants could not have been summoned 
invoking Section 319 of the Code. (371-F) 
2. On the plain reading of Section 193 of the Code of Criminal 
Procedure, once the case is committed to the Court of Session by a D 
Magistrate under the Code, the restriction placed on the power of the 
Court of Session to take cognizance of an offence as a Court of original 
· jurisdiction gets lifted. On the Magistrate committing the case under 
Section 209 to the Court of Session the bar of Section 193 is lifted 
thereby investing the Court of Session complete and unfettered 
jurisdiction of the Court of original jurisdiction to take cognizance of E 
the offence which would include the summoning of the person or 
persons whose complicity in the commission of the crime can prima 
facie be gathered from the material available on record. (371-G, H, 
372-A) 
Kishan Singh v. State of Bihar, [1993) 2 SCC 16, relied on. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 769 
of 1994. 
From the Judgment and Order dated 28.7.94 of the Allahabad High 
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Court in R. No.1088of1994. 
G 
Anis Ahmed Khan for Appellants. 
A.S. Pundir for the Respondent. 
The Judgment of the Court was delivered by 
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370 
SUPREME COURT REPORTS 
[1994) SUPP. S S.C.R. 
M.K. MUKHERJEE. J. Special Leave Granted. 
The appellant No. I is the brother-in-law of Shakvin who met with an 
unnatural death in her matrimonial home on June 22, 1991. The appellant 
no.2 is his wife. On the following day Le.on June 23, 1991 Noor 
Mohammad, father of the deceased 
lodged a First Information Report 
alleging that her husband, grand mother-in-law and the tw

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