T.P.S.MANN,J - (1.) THE petitioner, along with Baldev Singh and Joginder Singh, was initially named as an accused in FIR No. 41 dated 28.8.2005 registered at Police Station Ghanaur under Sections 307/34 IPC and Section 25 of Arms Act. The said FIR was registered on the basis of a statement made by Ram Singh, wherein he stated that on an exhortation made by the petitioner asking his co-accused Joginder Singh to fire a shot from his gun and he would manage everything, said Joginder Singh fired at Sham Lal, who received injuries and fell down. Thereafter, all the three accused ran away from the spot.
(2.) AFTER the completion of the investigation, challan was presented by the police against Baldev Singh and Joginder Singh accused, while the petitioner was placed in column No. 2 as he was found innocent. An application was also filed by the investigating agency for the discharge of the petitioner from the case. However, learned Judicial Magistrate Ist Class committed the case to the Court of Sessions. The petitioner, whose name kept in column No. 2, was also directed to appear, along with his co-accused, before the Court of Session on 24.5.2006. Vide order dated 13.6.2006, learned Additional Sessions Judge, Patiala after perusing the report under Section 173 Cr.P.C., held that prima facie a case under Sections 307/34 IPC and 25 of Arms Act was made out against all the accused, including the petitioner, who pleaded not guilty and claimed trial. The petitioner has filed the present petition under Section 482 Cr.P.C. seeking quashing of the aforementioned order passed by Judicial Magistrate Ist Class, Rajpura on 24.4.2006, while directing the appearance of the petitioner in the Court of Sessions along with his two accused in pursuance of the commitment of the case. Order passed by Additional Sessions Judge, Patiala on 13.6.2006, while framing charges against the petitioner, is also sought to be quashed.
(3.) LEARNED counsel for the petitioner has submitted that the petitioner was found innocent during the investigation of the case and his name was kept in column No. 2 of the challan. In fact, an application was also filed by the police for discharge of the petitioner from the case. Instead of accepting the said request of the police, the learned Judicial Magistrate Ist Class erred in directing the further appearance of the petitioner before the Court of Session, while committing the case to the said Court. Moreover, the charges have been framed by learned Additional Sessions Judge against the petitioner, although there was no evidence available against him. Learned counsel for the petitioner also referred to Raj Kishore Prasad v. State of Bihar and another, 1996(2) RCR(Criminal) 804 : AIR 1996 Supreme Court 1931 in contending that a person, who was not an accused before the Court, could neither be committed under Section 209 Cr.P.C. nor charged thereafter by the Court of Session. It was held as under :- "Thus, we come to hold that the power under Section 209 Cr.P.C. to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an 'inquiry' and material before him not being 'evidence'. When such power was not vested, his refusal to exercise it cannot be corrected by a Court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, (sic) the accused to stand trial, along with the accused meant to be committed for trial before it. Presently, it is plain that the stage for employment of Section 319 Cr.P.C. has not arrived. The order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319 Cr.P.C. when handing (handling ?) a matter under Section 209 Cr.P.C., the Court of Session, in purported exercise of revisional powers cannot obligate it to do so. The question posed at the outset is answered accordingly in this light. When the case comes after commitment to the Court of Session and evidence is recorded, it may then in exercise of its powers under Section 319 Cr.P.C. on the basis of the evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the necessary safeguard envisaged under sub-section (4) of Section 319. Such course is all the more necessary in the instant case when expressions on merit have extensibly been made in the orders of the Magistrate, the Court of Session and that of the High Court. Any other course would cause serious prejudice to the appellant. We order accordingly." ;