JUDGMENT
Shiv Kumar Sharma, J.
1. It is well settled that in a case triable by Court of Sessions, a Magistrate cannot summon and commit a person, not named in the charge sheet, under Section 319, Cr.P.C. to stand trial along side the accused. Admittedly, after usual investigation the Police Station, Bissau submitted charge sheet against accused Suresh for committing offences under Sections 498A, 302 and 304B, IPC. The petitioners Dhoori, Ramavtar and Anchi were not named in the charge sheet. The ACJM, Jhunjhunu vide order dated 6th January, 1996 took cognizance against the accused Suresh as well as against the petitioners Dhoori, Ramavtar and Anchi under Sections 498A, 302, 304B and 34, IPC. The accused persons assailed the said order by preferring proceedings under Section 482, Cr.P.C. before this Court bearing S.B. Criminal Misc. Petition No. 96/1996. This Court disposed of the said petition vide order dated February 2, 1996 stating that the question as to whether prima facie case against the accused persons is made out or not will be seen by the learned Sessions Judge at the time of hearing of arguments on charges. In the meanwhile the case was committed by the learned ACJM, Jhunjhunu to the Court of Sessions Judge, Jhunjhunu. An application was moved on March 11, 1997 by the petitioners before the learned Sessions Judge, Jhunjhunu on the ground that cognizance could not have been taken by the learned Magistrate.
2. The learned Sessions Judge, vide the impugned order rejected the application. Against this order that the present action for filing the miscellaneous petition has been resorted to by the petitioners.
3. I have reflected over the rival submissions and carefully perused the impugned order.
4. In Raj Kishore Prasad v. State of Bihar, 1996 (4) SCC 495=IV (1996) CCR 158 (SC), their Lordships of the Supreme Court had occasion to interpret Section 209, Cr.P.C. In para 11 of the said judgment it was indicated that-
“… It is thus to be seen prominently that preliminary inquiries then known as “committal proceedings” have been abolished in cases triable by Court of Sessions. The function left to be performed by the Magistrate, such as granting copies, preparing the records notifying the Public Prosecutor etc. are thus preliminary or ministerial in nature…”
“… Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209, Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subjected to face trial before the Court of Sessions…”
5. In Satveer v. State of Rajasthan, S.B. Cr. Misc. Petition No. 889 of 1997, decided on January 22, 1998, this Court indicated thus –
“5. It is thus manifest that in the sphere of the limited functioning of the Magistrate no application of mind was required to adjudge the truthfulness of any version. The role of learned Judicial Magistrate was only to see that requirements under Sections 207 and 208, Cr.P.C. are complied with. Power under Section 209, Cr.P.C. to summon a new offender was not vested with the Judicial Magistrate. He could not have passed any order on the final report submitted by the police under Section 169, Cr.P.C. Neither the proceedings before the Magistrate could be termed as ‘inquiry’ nor material before him could be defined as ‘evidence’. The stage for employment of Section 319, Cr.P.C. was not arrived before the Magistrate. The order of Magistrate taking cognizance and to commit the petitioner Satveer along with the accused Raju @ Rajendra to stand Sessions trial was patently illegal and beyond jurisdiction since the Magistrate had no such power to add the petitioner Satveer as accused under Section 319, Cr P.C. when handling a matter under Section 209, Cr.P.C. Under these circumstances the application dated August 11, 1997 ought to have been allowed by the learned Additional Sessions Judge, Khetri.”
6. In view of the position of law as laid down in the aforesaid decisions, I hold that the learned ACJM, Jhunjhunu could not have taken cognizance against the petitioners under Sections 498A, 302, 304B and 34, IPC, and the order dated January 6, 1996 of the Additional Chief Judicial Magistrate, Jhunjhunu as well as the order dated May 19, 1997 of the learned Sessions Judge, Jhunjhunu are erroneous and deserve to be set aside.
7. Resultantly, the petition succeeds and is hereby allowed. The order dated January 6, 1996 of the ACJM, Jhunjhunu as well as the order dated May 19, 1997 of the learned Sessions Judge, Jhunjhunu shall stand set aside and the petitioners stand discharged from the offences under Sections 498A, 304B, 302 and 34, IPC.
8. I may however observe that the learned Court of Additional Sessions Judge on the basis of evidence recorded by it, if circumstances warranting, can proceed against the petitioners Dhoori, Ramavtar and Anchi, and summon them to stand trial along with accused Suresh after providing them safeguards envisaged under Sub-section (4) of Section 319, Cr.P.C.