Sureshwar Thakur, J. - (1.) The instant petition is directed, against, the orders pronounced by the learned Judicial Magistrate 1st Class, Court No.1, Solan, on 16.11.2017, whereunder, the learned Judicial Magistrate 1st Class, Solan, hence, ordered for issuance of summons, upon, accused Sahil, vis-a-vis, commission of offence, an, punishable under Section 307 of the IPC.
(2.) There is no wrangle inter se the petitioner and the respondents, that, the offence punishable under Section 307 of the IPC, is, exclusively triable by the Court of Session. The learned Magistrate concerned, is, enjoined under the law to commit the afore case, exclusively triable by the court of Sessions, vis-a-vis, the Sessions Judge concerned, given the occurrence, of, a specific, and, explicit mandate, in, Section 193 of the Cr.P.C., provisions whereof stand extracted hereinafter: "193 Cognizance of offences by Courts of Sessions.- 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." (i) whereunder the Court of Session, is, barred to, vis-avis, any offence, exclusively triable by it, and, as a court of original jurisdiction, hence assume cognizance thereon, unless, the same is committed to it for trial, by the judicial Magistrate concerned. Consequently, the learned Judicial Magistrate concerned, was enjoined to commit the offence, constituted under Section 307 of the IPC, to the learned Sessions Judge concerned, (ii) and, the latter was alone statutorily empowered to assume jurisdiction, besides was, solitarily empowered to take cognizance thereon. Contrarily, the order impugned before this Court, whereunder, summons were ordered to be issued, upon, the accused by the learned Judicial Magistrate concerned, (iii) is, a clear display of the Magistrate concerned, vis-a-vis, an offence triable exclusively by the Court of Sessions, hence untenably assuming jurisdiction, besides taking cognizance, vis-avis, an offence exclusively triable by the court of Session, (iv) whereas, both assumption of jurisdiction, and, taking of cognizance thereon, was solitarily bestowed, upon, the learned Sessions Judge concerned, after, the learned Judicial Magistrate concerned committing, the, case for trial, vis-a-vis, the Sessions Judge concerned. The fallacy ingraining the impugned orders, is, encapsulated in paragraphs No.39 and 40, of, a decision of the Hon'ble Apex Court, rendered in a case titled as Dharam Pal vs. State of Haryana reported in, 2014 3 SCC 306, paragraphs whereof stand extracted hereinafter:- "39. This takes us to the next question as to whether under Section 209, the 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. 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, proceed 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 learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned 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 by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge. 40. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singhs case, 1993 2 SCC 16 that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein" (p.319-320) (i) wherein the Hon'ble Apex Court, had, settled a clear legal principle, that, assumption of cognizance qua an offence, being permissible only once, vis-a-vis, an offence exclusively triable by the court of Sessions, (ii) and, there being, a, complete statutory interdiction, upon, the committal Magistrate, to, take part cognizance, upon, the afore offence, rather the Magistrate concerned while acting as a committal court, is, enjoined to don only, a, passive role of committal, for, trial, of the afore offence, to the Court of Sessions,(iii) than, hers as untenably done in the instant case, hence order, for, issuance of, summons upon him, for his committing, an, offence punishable under Section 307 of the IPC, otherwise, an offence exclusively triable by the Court of Session, (iv) and, thereupon, the committal Court has hence inaptly taken part cognizance thereon, and, also has inaptly partly assumed jurisdiction thereon. Consequently, the impugned order suffers from a gross perversity, and, absurdity.
(3.) For the foregoing reasons, the instant petition, is, allowed, and, the impugned order is quashed and set aside. Consequently, the learned Judicial Magistrate concerned, is, directed to in accordance with law, commit the case to the learned Sessions Judge concerned. The parties are directed to appear before the learned Judicial Magistrate 1st Class, Court No.1, Solan, on 20th November, 2018. All pending applications also stand disposed of. Records, if any, received, be sent back forthwith.;