JUDGMENT : Mr. Pankaj Bhandari, J. 1. Petitioners have preferred this revision petition aggrieved by order dated 14.01.2016 passed by Session Judge, Jhunjhunu, whereby, he has taken cognizance against the petitioners for offence under Sections 366, 368, 376(2) read with Section 120-B IPC. 2. Factual matrix of the case are that after investigation in a F.I.R. police submitted a negative final report against the petitioners. The complainant moved an application under Section 190(1)(a) CrP.C. before the Magisterial Court which was withdrawn by him and was dismissed by the Court. The Court took cognizance only against Naresh Kumar. 3. The matter was committed before Court of Sessions. The complainant moved an application under Section-193 CrP.C. which come to be allowed by the impugned order and petitioners have been summoned by arrest warrant. 4. It is contended by the counsel for the petitioners that no case is made out against the petitioners. The Sessions Judge was not empowered to take cognizance against the petitioners as the Magistrate had already taken cognizance of the offence. 5. It is contended that there is no provisions for second cognizance under Code of Criminal Procedure. Reliance has been placed on “Dharam Pal and Ors. v. State of Haryana and Anr” (2014) 3 SCC 306 , “Balveer Singh v. State of Rajasthan” (2016) 6 SCC 680 and “Shodan Singh v. State of Rajasthan”, S.B. Criminal Misc. Petition No.2281/2016 decided on 03.11.2016. 6. It is contended by the counsel for the petitioner that when no case was found to have been made out against the petitioners by the Investigating Officer, the Sessions court committed grave illegality in issuing arrest warrants against the petitioners. Reliance in this regard has been placed on “Vikas v. State of Rajasthan” (2014) 3 SCC 321 . 7. Counsel appearing for the state as well as counsel for the complainant-respondent No.2 has vehemently opposed the revision petition. Their contention is that under Section-193 Cr.P.C. after committal the Sessions Judge is empowered to take cognizance against persons who are not arrayed as accused in the case. Counsel for the respondent has also placed reliance on “Dharam Pal and Ors. v. State of Haryana and Anr”. (supra). 8. Their contention is that under Section-193 Cr.P.C. after committal the Sessions Judge is empowered to take cognizance against persons who are not arrayed as accused in the case. Counsel for the respondent has also placed reliance on “Dharam Pal and Ors. v. State of Haryana and Anr”. (supra). 8. It is contended that there is no bar under Code of Criminal Procedure and as Sessions Judge assumes the role of original jurisdiction, he is entitled to take cognizance against the accused who have not been impleaded by the prosecuting agency. It is further contended that prosecutrix in her statement under Section-164 Cr.P.C. has specifically alleged that the petitioners committed the offence and at this stage the order vide which cognizance has been taken cannot be set aside. 9. I have considered the rival contentions and have perused the judgments on which the parties have placed reliance. 10. As far as the merit of the case is concerned, prosecutrix in her statement has specifically alleged that petitioner No.2 Naresh Kumar committed rape with her and involvement of petitioner No.1 is also made out from her statement recorded by the Magistrate under Section-164 Cr.P.C. The Sessions Judge after perusing the statement of the prosecutrix has taken cognizance against the petitioners. 11. In “Dharam Pal and Ors. v. State of Haryana and Anr”, Constitution Bench was dealing with six questions which were referred to it. 12. Question No.4, 5 and 6 being relevant for deciding the present controversy in question is reproduced hereunder :- “(iv) Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction? (v) Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto? (vi) Was Ranjit Singh’s case (supra), which set aside the decision in Kishun Singh’s case(supra), rightly decided or not?” 13. The court answered the questions as under :- “37. Questions 4, 5 and 6 are more or less interlinked. The answer to Question 4 must be in the affirmative, namely, that the Sessions Judge was entitled to issue summons under Section 193 Cr.P.C. upon the case being committed to him by the learned Magistrate. 38. The court answered the questions as under :- “37. Questions 4, 5 and 6 are more or less interlinked. The answer to Question 4 must be in the affirmative, namely, that the Sessions Judge was entitled to issue summons under Section 193 Cr.P.C. upon the case being committed to him by the learned Magistrate. 38. Section 193 of the Code speaks of cognizance of offences by the Court of Session and provides as follows: “193. Cognizance of offences by Courts of Session-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.” The key words in the section are that “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”. The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr.Dave to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said section. 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. 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 be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Sessions Judge. 40. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh case that the Sessions Court 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. 41. We are also unable to accept Mr. Dave’s submission that the Sessions Court would have no alternative, but to wait till the stage under Section 319 CrPC was reached, before proceeding against the persons against whom a prima facie case was made out from the materials contained in the case papers sent by the learned Magistrate while committing the case to the Court of Sessions. 42. The reference to the effect as to whether the decision in Ranjit singh case was correct or not in Kishun Singh case, is answered by holding that the decision in Kishun Singh case was the correct decision and the learned Sessions Judge, acting as a court of original jurisdiction, could issue summons under Section 193 on the basis of the records transmitted to him as a result of the committal order passed by the learned Magistrate.” 14. The apex Court revisited the Constitutional Bench judgment in “Balveer Singh and Anr v. State of Rajasthan and Anr” (2016) 6 SCC 680 , para 24 and 25 of which are relevant for the purpose of present case:- “24. Keeping in view the aforesaid legal position, we may now discuss the circumstances under which the cognizance was taken by the Sessions Judge. Here is a case where the police report which was submitted to the Magistrate, the investigating officer had not included the appellants as accused persons. The complainant had filed application before the learned Magistrate with prayer to take cognizance against the appellants as well. This application was duly considered and rejected by the learned Magistrate. The situation in this case is, thus, not where the investigation report/charge-sheet filed under Section 173 (8) of the Code implicated the appellants and the appellants contended that they are wrongly implicated. On the contrary, the police itself had mentioned in its final report that case against the appellants had not been made out. This was objected to by the complainant who wanted the Magistrate to summon these appellants as well and for this purpose the application was filed by the complainant under Section 190 of the Code. The appellants had replied to the said application and after hearing the arguments, the application was rejected by the Magistrate. This shows that the order of the Magistrate was passed with due application of mind whereby he refused to take cognizance of the alleged offence against the appellants and confined it only to the son of the appellants. This order was not challenged. Normally, in such a case, it cannot be said that the Magistrate had played “passive role” while committing the case to the Court of Session. He had, thus, taken cognizance after due application of mind and played an “active role” in the process. The position would have been different if the Magistrate had simply forwarded the application of the complainant to the Court of Session while committing the case. In this scenario, we are of the opinion that it would be a case where the Magistrate had taken the cognizance of the offence. Notwithstanding the same, the Sessions court on the similar application made by the complainant before it, took cognizance thereupon. Normally, such a course of action would not be permissible. 25. In this scenario, we are of the opinion that it would be a case where the Magistrate had taken the cognizance of the offence. Notwithstanding the same, the Sessions court on the similar application made by the complainant before it, took cognizance thereupon. Normally, such a course of action would not be permissible. 25. The next question is as to whether this Court should exercise its powers under Article 136 of the Constitution to interdict such an order. We find that the order of the Magistrate refusing to take cognizance against the appellants is revisable. This power of revision can be exercised by the superior court, which in this case, will be the Court of Session itself, either on the revision petitioner that can be filed by the aggrieved party r even suo motu by the Revisional Court itself. The Court of Session was, thus, not powerless to pass an order in his revisionary jurisdiction. Things would have been different had he passed the impugned order taking cognizance of the offence against the appellants, without affording any opportunity to them, since with the order that was passed by the learned Magistrate a valuable right had accrued in favour of these appellants. However, in the instant case, we find that a proper opportunity was given to the appellants herein who had filed reply to the application of the complainant and the Session Court had also heard their arguments. For this reason, we are not inclined to interfere with the impugned order 2 and dismiss this appeal.” 15. Judgment of the Constitutional Bench was considered by the Rajasthan High Court in “Shodan Singh v. State of Rajasthan” in S.B. Criminal Misc. Petition No.2281/2016 decided on 03.11.2016. That was a case where part cognizance was taken by the Magistrate and part cognizance was taken by the Additional Sessions Judge. The Court observed that:- “In these circumstances, had the court of Additional Sessions Judge in the present case taken cognizance of the offence against the two sets of accused at one go, he would have been acting within his jurisdiction by legitimately exercising the power of the Court of Sessions in his area as court of original jurisdiction by invoking Section 190 as well as 193 of the Cr.P.C.” 16. From the judgments referred to herein above and from reading of Section 193 CrP.C, it is amply clear that on committal of a case, the Court of Session is conferred with original jurisdiction and is competent to take cognizance against persons not arrayed as an accused. 17. In the case in hand the Magistrate while dismissing the application filed under Section 190(1) (a) Cr.P.C. did not apply his mind and in a passive manner took cognizance against Naresh Kumar and committed the case. The learned Sessions Judge while allowing the application under Section 193 Cr.P.C. took cognizance against the petitioners as well as Naresh Kumar, the case therefore, squarely falls under the exception carved out in Shodan Singh v. State of Rajasthan (supra). The Constitutional Bench in Dharampal’s case (supra) has held that where prima facie case is made out from the materials contained in the case papers, Sessions Judge acting as a Court of original jurisdiction could issue summons under Section 193 Cr P.C. without waiting for the stage carved out under Section 319 CrP.C. 18. In view of the above, the Court below have not committed any illegality in taking cognizance, however, summoning the petitioner by arrest warrant was not proper in view of Vikas v. State of Rajasthan (supra). 19. Consequently, the revision petition is partly allowed, the order pertaining to taking of cognizance is upheld but the order directing summoning by arrest warrant is quashed. Learned Court below is directed to summon petitioners by bailable warrants if they have not put in appearance till date.