Sikri, J. - (1.) This appeal by special leave is directed against the judgment of the High Court of Judicature of Patna dismissing Criminal Revision No. 896 of 1961 filed by the appellant, Raghubans Dubey. The relevant facts for appreciating the points raised before us are as follows:
(2.) The appellant was one of the 15 persons mentioned as assailants in the First Information Report, dated July 29, 1959, lodged by one Raja Ram Shah. The police investigated the case and during the investigation the appellant set up an alibi. The police accepted the alibi and did not include his name as an accused in the final report under S. 173 of the Code of Criminal Procedure. His name was, however, mentioned in column No. 2 of the Charge Sheet under the heading 'not sent up'. On April 5, 1961, the Sub-Divisional Magistrate passed the following order: 'C. S. No. 12, dated 23rd March 1961 u/s. 149/302/201, I. P. C., received against the accused noted in Cols. 3 and 4 of C. S. Cog. Taken u/s. 149/302/201, I. P. C. and case transferred to Shri L. P. Singh Magt.....class for enquiry under Chapter XVIII, Cr. P. C. Accused not sent up for trial is discharged.' On transfer, Shri L. P. Singh, Magistrate, took up the hearing of the case on May 2, 1961. In the meantime a petition had been filed on April 11, 1961 praying that the appellant be summoned by the magistrate. On May 2, 1961, Jagannath Sao, P. W. 1, was examined and in his examination-in-chief he implicated the appellant as one of the persons who were present in the mob which is alleged to have killed Rupan Singh. On the same day Mahesh Sao, P. W. 2, also implicated the appellant in his examination-in-chief. It appears that the counsel for Raja Ram Shah, the person who lodged the F. I. R., requested the Magistrate to summon the appellant- as well for trial, as prayed for in the petition, dated April 11, 1961. The Magistrate, after hearing the Assistant District Prosecutor as well as the counsel for the informant and the accused, passed the following order: "Raghubans is named in F. I. R. and as submitted by A. D. P. 5 witnesses have named him before Police and P. W. I examined before me has also named him. So in my opinion it is proper to add Raghubans Dubey also in this enquiry as accused. At this stage one petition has been filed by lawyer of accused that cross-examination of P. Ws. be allowed to be done after appearance of Raghubans. This contention is quite reasonable otherwise cross-examination will have to be done again after appearance of Raghubans and so prayer of defence is allowed Examined P. W. 2 also in chief. He has also named Raghubans to be a member of the mob of these accused at the time of occurrence. So issue non-bailable W/A against Raghubans Dubey according to address given by P. W. Mahesh Sah today as the allegation against Raghubans appears to be very serious one. Send the process by special peon returnable by 3rd June 1961. Other accused will re-attend."
(3.) The appellant challenged this order before the Sessions Judge. It was urged before him that the Magistrate had no jurisdiction to summon the appellant because the Sub-Divisional Magistrate had already dismissed a protest petition on merits. The Sessions Judge rejected the argument and held that it was open to the Magistrate to summon any person against whom he found sufficient evidence in the, case.;