ORDER 1. This application has been filed for quashing of the order dated 9.2.2009 passed by Sub-divisional Judicial Magistrate-cum-Special Judicial Magistrate, C.B.I. Dhanbad in R.C. No. 1(S)/07/CBI/SCB/LKN whereby and whereunder cognizance of the offences punishable under Sections 120(B)/323/304/343 of the Indian Penal Code has been taken against the petitioner. 2. It does appear that opposite party no. 2 filed a complaint alleging therein that his son Manraj Tirkey, who had been apprehended in connection with a case was subjected to third degree torture in course of investigation at the police station, as a result of which, he sustained injuries which eventually proved to be fatal. The matter was taken up for investigation by the C.I.D. However, under order passed by this Court in a Public Interest Litigation, C.B.I. was directed to take over the investigation. Accordingly, C.B.I. registered the case as R.C. No. 1(S)/07/CBI/SCB/LKN. 3. In course of investigation, C.B.I. did not find any culpability on the part of this petitioner and hence, submitted final form exonerating the petitioner from accusation whereas charge sheet was submitted against other accused persons. 4. However, the court differing with the opinion of the police took cognizances of the offence punishable under Sections 323, 343, 304 and 120(B) of the Indian Penal Code not only against the persons who were charge sheeted but also against this petitioner. That order has been challenged before this Court. 5. Mr. B.M. Tripathy, learned Senior Counsel appearing for the petitioner submits that once final form exonerating the petitioner from accusation was submitted, the Magistrate does not have power to take cognizance of the offence which is triable by the court of sessions in view of the decision rendered in a case of Dharam Pal vs. State of Haryana 2013 (3) East Cr. C 307 (SC). 6. As against this, Mr. Binod Singh, learned counsel appearing for the opposite party no.2 submits that by virtue of the provision as contained in Sections 209 as well as 190 of the Code of Criminal Procedure, the Magistrate does have power to take cognizance of the offence against the person against whom sufficient material has been collected by the police, if the material prima facie, shows the culpability on the part of that person. 7. 7. Learned counsel in this regard has referred to a decision rendered in a case of Rajendra Prasad vs. Bashir and others, (2001) 8 SCC 522 and also in a case of Uma Shankar Singh vs. State of Bihar and another, (2010) 9 SCC 479 . 8. Thus, it was submitted that the court has not committed any illegality in taking cognizance of the offence against the petitioner who had not been sent up for trial. 9. It be stated that when the Hon’ble Supreme Court found that conflicting views are there; one holding that the Magistrate does have power to take cognizance of the offence even against the person not charge sheeted; other taking view that in such situation the Magistrate does not have power to take cognizance of the offence. The case of Dharam Pal vs. State of Haryana (supra) was referred before the Constitutional Bench. The Constitutional Bench have been pleased to hold that in a case where the accused is not charge sheeted, rather final form is submitted against him exonerating him from accusation, the Magistrate does not have power in a case which is triable by the court of sessions to take cognizance of the offence, rather that power of taking cognizance lies with the sessions court in terms of the provision as contained in Section 193 of the Code of Criminal Procedure when the matter comes up before the court of sessions. 10. Their Lordships after taking into account the relevant provisions such as Sections 193, 204, 209, 319 and also decisions rendered in number of cases, have been pleased to reject the submissions of one of the parties that in a case triable by court of session if the accused is not sent up for trial the Magistrate had no other function but to commit the case to court of session which could only resort to Section 319 of the code to array the accused not sent up for trial to face trial. Their Lordships while rejecting such submission did hold hereunder: "24. In our view, the Magistrate has a role to play while committing the case to the Court of Sessions upon taking cognizance on the police report submitted before him under Section 173(3) of the Code of Criminal Procedure. In the event the Magistrate disagrees with the police report, he has two choices. In our view, the Magistrate has a role to play while committing the case to the Court of Sessions upon taking cognizance on the police report submitted before him under Section 173(3) of the Code of Criminal Procedure. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no. 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Sessions, he may commit the case to the Court of Sessions to proceed further in the matter. 25. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court. 27. This take 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 Sessions, 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 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. 28. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh’s case (supra) that the Sessions 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 Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein." 11. Thus, it does appear that the Hon’ble Court has been pleased to lay down law that if any accused is not sent up for trial along with other accused, the Magistrate can take cognizance of the offence only against the person charge sheeted and not against the person not sent up for trial whose name gets included in column 2 of the report. But at the same time, Hon’ble Court has said that in spite of that, it is not that the Magistrate does not have power to do anything, rather the course which would be left with him is to commit the case to the court of sessions and it be left with the sessions court to take cognizance against them. 12. Thus, the position which has emerged out is that if a case is registered for the offence/ offences triable by the court of session against two or more accused persons and the charge sheet is submitted against some of them and rest are not sent up for trial, then the Magistrate does have power to take cognizance of the offence only against the person charge sheeted. However, the court is further required to find out whether materials are there or not against the persons not sent up for trial to be taken by the sessions court. If the court does find prima facie material to proceed with the trial, he needs to commit the case to the court of sessions. 13. Here in the instant case as has been noted above, the Magistrate by differing with the opinion of the police has taken cognizance of the offence against the petitioner who had not been sent up for trial and thereby he seems to have committed wrong in view of the decisions referred to above. 14. Accordingly, the order taking cognizance is hereby quashed. However, the matter is again remanded back before the Magistrate to proceed in the matter in accordance with law as indicated above as early as possible preferably within a period of six weeks from the date of receipt of a copy of this order. 15. Let a copy of this order be communicated to the court concerned through FAX at the cost of the opposite party no. 2.