Shiv Kumar Sharma, J. - (1.) Can a Magistrate, in a case triable by Court of Sessions, 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 September 17, 1994. Police Station Khetri submitted chargesheet 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 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 trial alongwith Raju and 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: 1209 Commitment of case to Court of Sessions when offence is triable, exclusively by it. - When in a case instituted on a police report or otherwise the accused appears or to brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, 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, the Public Prosecutor of the commitment of the case to Court of Sessions. 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 tinder 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 re-heard: (b) subject to the provisions of Clause (a) the case may proceed, as if such person had been an accuse? person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. ;