JUDGMENT
Shiv Kumar Sharma, J.
1. Can a magistrate, in a case triable by court of Session, summon a person not named in the charge sheet under Section 319 Cr. P.C. and commit him to stand trial alongside the accused is the core question that arises for consideration in the instant petition.
2. This question emerges in the wake of circumstances set out below:
(i) On the basis of first information report instituted by informant Umrao on Sept. 17, 1994. Police Station Khetri submitted charge sheet under Section 302 IPC. in the Court of Judicial Magistrate Khetri against accused Raju @ Rajendra whereas final report under Section 169 Cr. P.C. was filed against the petitioner Satveer.
(ii) Learned Judicial Magistrate vide its order dated December 19, 1994 did not accept the final report and took cognizance under Section 302 IPC against the petitioner Satveer and committed him to the Court of Additional Sessions Judge, Khetri alongwith the accused Raju @ Rajendra.
(iii) The petitioner moved an application before the learned Additional Sessions Judge Khetri on August 11, 1997 raising objection that no cognizance could have been taken against him by the Judicial Magistrate under Section 319 Cr. P.C. and thus he could not have been committed to stand trail alongwith Raju @ Rajendra. Therefore he may be discharged.
(iv) Learned Additional Sessions Judge Khetri dismissed the said application vide its order dated October 25, 1997.
(v) Against this order that the present action for filing the misc. petition has been resorted to by the petitioner Satveer.
3. It will be useful at this juncture to consider the relevant statutory provisions.
Section 209 Cr. P.C. provides thus:
209. Commitment of case to court of Session when offence is triable, exclusively by it.-When in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of Session, he shall:
(a) commit, after complying with the provisions of Section 207 or Section 208 as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment had been made:
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial;
(c) send to that court the record of the case and the documents and articles, if any, which, are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
Whereas Section 319 reads as under:
319. Power to proceed against other person appearing to be guilty of offence.-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Sub-section (1)
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;
(b) subject to the provisions of Clause (a) the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
4. Their Lordships of the Supreme Court in Raj Kishore Prasad v. State of Bihar 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 Session. 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 Session….
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 alongwith 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. Resultantly the petition succeeds and is hereby allowed. The order dated December 19, 1994 of the Judicial Magistrate Khetri as well as order dated October 25, 1997 of the Additional Sessions Judge Khetri stand set aside. The petitioner stands discharged from the offence under Section 302 IPC.
7. 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 petitioner Satveer and summon him to stand trial along with accused Raju @ Rajendra, after providing him safeguards envisaged under Sub-section (4) of Section 319 Cr. P.C.