GUPTA, J. - (1.) THROUGH this revision petition, the petitioners call in question the order dt. 13. 5. 98 passed by the learned Judicial Magistrate, Padampur whereby he took cognizance against the petitioners on protest petition filed by the complainant u/ss. 302, 307, 323, 379, 325, 341, 147, 148 and 149 IPC and summoned them through warrants of arrest.
(2.) THE relevant facts are these. On 22. 12. 97 the police recorded a statement of Chuni Ram in he Government Dispensary, Dhumarwali in which he stated that Hanumnram, Bhoopram, Inderkumar, Sravan, Kashi Ram and one more person having guns and lathis in their hands caused injuries to him and his son Hetram. On this statement, a case u/ss. 147, 148, 307, 336 and 149 IPC and 27 Arms Act was registered. During the course of investigation Hetram expired therefore, Sec. 302 IPC was added. THE police after the completion of the investigation submitted a challan against Inder Kumar and Bhoopram observing that the three other persons had not taken part in the occurrence. Chuniram, complainant filed a protest petition on 28. 3. 98. THE learned Magistrate vide order dt. 13. 5. 1998 took cognizance against Sravan, Hanuman and Kashiram u/ss. 147, 148, 149, 302, 307, 323, 379, 325, 341 IPC and u/ss. 147, 148 and 149 IPC against Inder Kumar and Bhoopram and issued warrants of arrest against the petitioners. Mr. Bishnoi, learned counsel for the petitioners contended that the Magistrate was not empowered to implead the petitioners as accused in the case. His contention was that the stage of Sec. 319 Cr. P. C. had not reached and on the basis of the challan papers only the petitioner could not be associated as accused. In support of his contention Mr. Bishnoi cited the cases of Raj Kishore Prasad vs. State of Bihar (1), Satveer vs. State (2) and Sona Ram & Anr. vs. State Mr. Garg, learned counsel for the respondent, on the other hand, conten-ded that u/sec. 190 Cr. P. C. a Magistrate is empowered to take cognizance of the offence against an accused, and therefore, the impugned order cannot be said to be said to be illegal. He cited the case of Meha Ram vs. State I have given thoughtful consideration to the submissions made by the learned counsel for the parties. The short but important question to be considered is whether in a case triable exclusively by the Court of Sessions, the committing Magistrate can associate a person as accused though he was not challenged by the police. The question, in my opinion, is no longer res-integra. The Hon'ble Supreme Court in the case of Raj Kishore Prasad (supra) considered this very question which was set out at para no. 2 of the judgment the same is reproduced hereunder:- " Can a Magistrate undertaking commitment under Section 209 Cr. P. C. of a case triable by a Court of Sessions, associate another person as accused, in exercise of power under Section 319 of the Code of Criminal Procedure, or under any other provision is the significant question which crops up for consideration in this appeal. " After surveying the entire case law on the point their lordships held at para no. 16 of the report as follows: " 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 so vested, his refusal to exercise it cannot be corrected by a Court of Revision, which may be the Court of Sessions itself awaiting the case on commitment, merely on the specious ground that the Court of Sessions can, in any event, summon 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 Sessions 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 handling a matter under Section 209 Cr. P. C. , the Court of Session, in purported exercise of revisional powers can-not obligate it to do so. The question posed at the outset is answered accordingly in this light. " Following the dictum of the case of Raj Kishore Prasad (supra), this court in the case of Satveer (supra) held that in view of the limited scope of inquiry before the committing Magistrate the order of Magistrate taking cognizance against a per-son not challenged by the police was patently illegal and beyond the jurisdiction of the Magistrate. So also in the case of Rajendra Singh vs. State (supra) this Court has taken the same view. I myself had an occasion to consider this question in the case of Bholu Khan vs. State wherein it was held that the committing Magistrate on the basis of eviden-ce recorded during investigation cannot implead a person, not challaned by the police.
(3.) IN the instant case, the impugned order has been passed on the basis of the evidence recorded during investigation. IN view of the authoritative pronouncement of the Apex Court in the case of Raj Kishore Prasad (supra) the impugned or-der is not sustainable. Coming to the case of Meha Ram (supra) relied on by Mr. Garg it is noticed that the learned Single Judge has distinguished the case of Raj Kishore Prasad (supra) on the basis of the judgment of the Apex Court in the case of Raghuvansh Dubey vs. State of Bihar A reading of the judgment in the case of Raghuvansh Dubey makes it clear that that case was decided under Code of Criminal Procedure of 1898 wherein under Sec. 207a Cr. P. C. the Magistrate was empowered to hold enquiry and decide as to who should be sent up for trial. Needless to say, after coming into force of the new Code of Criminal Procedure, 1973, the scope of enquiry by the Committing Magistrate is very limited. Under the new Code, the fun-ctions left to be performed by the Committing Magistrate are granting of copies, preparing the records, notifying the public prosecutor etc. which are preliminary or ministerial in nature: Vide Raj Kishore Prasad (supra ). Their lordships have observed that the role of the committing Magistrate is only to see that the package sent to the Court of Sessions is in order, so that it can straightway proceed with the trial and nothing is lacking in content, as per requirements of Sections 207 and 208 of the Code of Criminal Procedure. It is apt to reproduce para 11 of the report hereunder:- " The present Section 209 is thus the product of the aforesaid expert deliberation followed by Legislative exercise. It is thus to be seen pro-minently that preliminary inquiries then known as "committal proceedings" have been abolished in cases triable by a Court of Session. The functions 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. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Sessions, rather than being an adjudicator. It is thus manifest that in the sphere of the limited functioning of the Magistrate, no application of mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Sessions is in order, so that it can proceed straightway with the trial and that nothing is lacking in content, as per requirements of Section 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of "`inquiry" as defined in Section 2 (g) of the Code of Criminal Procedure, which defines that by a Magistrate or Court", because of the prelude of its being "subject to the context otherwise requiring". As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. 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 subtracted to face trial before the Court of Sessions. " In view of the observations of their lordships it is to be held that the comm-itting Magistrate u/sec. 190 Cr. P. C. is not empowered to implead a person, not challaned by the police as accused, in a case which is exclusively triable by the Court of Sessions. Since the case of Raghuvansh Dubey (supra) was under the old Code of Criminal Procedure the decision of the learned Single Judge in the case of Meha Ram (supra) which is based on Raghuvansh Dubey (supra) cannot be said to lay down correct law. ;