JUDGMENT
Mohd. Yamin, J.
1. This is a petition under Section 482 Cr. P.C. in which it has been prayed that the order of learned Magistrate taking cognizance as well as proceedings against the petitioners be set aside.
2. I have heard the learned Counsel for the petitioners as well as learned Public Prosecutor and the counsel for the complainant.
3. Briefly stated, Shri Ram Singh lodged an oral report at police station Rajgarh on 5.2.1998 that Bhanwar Singh was a driver on Roadways bus which stops in the night in his village. He used to live in the house of Mangtu Singh in the night. On the last Sakranti (14th January, 1998) Om Singh’s wife Santaro and Jhabar Ram had some quarrel with Bhanwar Singh and, therefore, Bhanwar Singh became inimical to Jhabar Ram. During the night falling in between 4th and 5th February, 1998 at about 9.00 p.m. when complainant Ram Singh was in his house alongwith Bajrang Lal and Pema Ram, they heard some noise of quarrel from the house of Mangtu Singh. They went running and found that Bhanwar Singh was armed with a lathi and was giving beatings to Jhabar Ram on the street. Bhanwar Singh was threatened and these persons intervened and saved Jhabar Ram Bhanwar Singh then ran away towards the house of Mangtu Singh Jhabar Ram suffered injuries on his head and shoulders and was bleeding profusely. Jhabar Ram could not speak. Then he was taken to Rajgarh Hospital where he was admitted. Jhabar Ram succumbed to his injuries at 4.00 P.M.
4. On the basis of this report, case under Section 302 IPC was registered at the police station, investigated and Bhanwar Singh was challaned. It is pertinent to say that Ram Singh filed a complaint No. 22/98 before the Magistrate against Girwar Singh, Gajendra Singh and Tara Chand and the learned Magistrate, after holding enquiry under Chapter XV of Cr. P.C. summoned the three petitioners vide order dated 2.6.1998 to face trial. They appeared and then the case was committed to the learned Sessions Judge.
5. Learned counsel for the petitioners citing Raj Kishore Prasad v. State of Bihar and another, 1996 SCC (Cr.) page 772, submitted that the Magistrate has no Jurisdiction, while committing a case under Section 209 to associate another person as accused in exercise of power under Section 319 or under any other provision. Therefore, the order of the learned Magistrate committing the accused petitioners to the learned Sessions Judge was illegal. He also cited Satveer v. State of Rajasthan, 1998(1) RCD page 321 (Raj.) in which it was held that when the police had submitted final report against a petitioner and the Magistrate did not accept the final report and took cognizance for offence under Section 302 IPC and committed him, the stage had not arrived to take cognizance under Section 319 Cr. P.C. and the order of the Magistrate was illegal. He also cited Hira Lal and Ors. v. State of Rajasthan and Ors., 1999(1) RCC page 380, wherein it has been held that after the case stands committed to the sessions, the only course open to implead additional persons as accused is under Section 319 Cr. P.C. provided on the basis of evidence recorded by him, Sessions Judge feels satisfied about the involvement of such additional persons in the offence and the Magistrate has no jurisdiction to add. Another judgment of this Court reported in 1999(1) RCC page 383, Ibrahim Khan v. State of Rajasthan and another, has been cited by the learned Counsel for the petitioners in which the same principle has been followed.
6. On the other hand, learned Counsel for the complainant cited Bittu alias Dinesh Kumar v. State of Rajasthan, 1998 Cr. L.J. page 3036, in which it was held that when the police had failed to submit charge sheet against an accused and the Magistrate had taken cognizance, it was proper. Learned counsel for the complainant also submitted that the order taking cognizance was final as the same was not set aside by any higher court and therefore, the petition should be dismissed.
7. I have given my thoughtful consideration to the facts and circumstances of this case and the law laid down by the Supreme Court in Raj Kishore Prasad’s case (supra). In this judgment all the provisions of Cr. P.C. were considered and the ratio of this case is that the Magistrate had no power whatsoever to add an accused after the police had submitted challan before him. What is laid down is that it is only the Sessions Judge to whom case has been committed who has powers under Section 319 Cr. P.C. to add a person in the list of accused persons if case is made out against him after recording evidence. So Bittu alias Dinesh Kumar’s case (supra) does not apply.
8. Consequently, in view of the latest pronouncement of the Supreme Court, the order of committal of the petitioners is set aside and the proceedings against the petitioners are quashed. However, the learned Sessions Judge is free under Section 319 Cr. P.C. to proceed against the petitioners if they appeared to be guilty of an offence during the course of trial pending before him.
9. The petition stands allowed.