M.Y. Eqbal, J.
1. In this application filed under Section 482 of the Code of Criminal Procedure (hereinafter to be referred to as `the Code') the petitioner has prayed for quashing the entire proceeding and the order dated 10th September, 1996, passed by the learned Chief Judicial Magistrate, Samastipur, in Warishnagar P.S. Case No. 71 of 1996 under Sections 302, 307/34 of the Indian Penal Code and 27 of the Arms Act. By the said order, the learned Chief Judicial Magistrate took cognizance of the offence under the aforesaid sections against these petitioners, besides other accused persons.
2. The prosecution story, as alleged by the informant, is that the informant along with his brother came to purchase some clothes in Kishanpur Bazar. On reaching Bazar, the informant found that Debu Rai, Bhola Rai. RajeshwarThakur, Harishchandra Rai, Indrashan Rai, Shande Rai and 3-4 others having pistol in their hands were standing. As soon as they saw the informant and his brother, they fired the pistol upon Devendra Rai hitting on the head who fell down. Thereafter all the aforesaid persons fired upon the informant but it could not hit the informant who escaped. The informant further alleged that the aforesaid persons are accused in murder case of his brother which is pending in Sessions Court and these accused persons are pressurising the informant for withdrawing the case. On the basis of the statement of the informant, the police instituted a case being Warishnagar P.S. Case No. 71 of 1996 and started investigation. The police after full investigation, submitted charge sheet under Sections 302/34 IPC and 27 of the Arms Act against two persons, namely, Harishchandra Rai and Chande Rai. The petitioners' case is that the Superintendent of Police, Samastipur, and the D.I.G. himself investigated into the offence and they, after going over the spot, personally examined the witnesses as mentioned in the case diary and supervision notes that these petitioners were falsely implicated in the case by the informant. A charge-sheet was submitted against the two accused persons, namely, Harischandra Rai and Chande Rai. However, the names of other accused persons, including the petitioners do not figure in any column of the charge sheet. The learned Chief Judicial Magistrate, however, on the basis of the case diary and other materials on the record, including the statements of the informant and other witnesses, took cognizance against all six accused persons, including the petitioners by the impugned order.
3. Mr. R.B.S. Pahepuri, learned counsel appearing for the petitioners, has assailed the order as being illegal and wholly without jurisdiction. The main submission of the learned counsel is that the learned Chief Judicial Magistrate has no jurisdiction to take cognizance against the accused persons who were not charge-sheeted at the stage of commitment. The learned Counsel submitted that the learned Chief Judicial Magistrate in a case triable by the Court of Sessions, has to do a routine work and after compliance of Sections 207 and 208 of the Code, has to commit the case to the Court of Sessions against those persons who have been charge-sheeted. In support of his contention, learned counsel relied upon a decision in Raj Kishore Prasad v. State of Bihar, 1996 Cr LJ 2523 : AIR 1996 SC 1931.
4. On the other hand, Mr. Shiv Shankar Prasad Sinha, learned counsel appearing for the State submitted that it is not a case where at the stage of commitment, the learned Magistrate has added or impleaded the petitioners as accused rather by the impugned order, the learned Court below simply took cognizance against the petitioners. The learned counsel further submitted that the impugned order was not passed by the learned Magistrate under Section 319 of the Code and still that stage has not come. In support of that learned counsel relied upon a decision of the Apex Court in State of Maharashtra v. Sharadchandra Vinayak Dongre, 1996 Pat LR SC 230: AIR 1995 SC 231.
5. For better appreciation of the rival contentions of the learned counsels, it is worth to look into the provisions of Sections 207 to 209 of the Code which read as under :
Section 207 : Supply to the accused a copy of report and other documents.- In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following :
(i) the police report,
(ii) the first information report recorded Under Section 154;
(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under Sub-section (6) of Section 173;
(iv) the confessions and statements, if any, recorded under Section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173;
Provided that the Magistrate may, after persuing any such part of a statement as is referrred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused;
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of finishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
Section 208 : Supply of copies of statements, and documents to accused in other cases triable by Court of Sessions.- Where, in a case instituted otherwise that on a police report, it appears to the Magistrate issuing process under Section 204 that the offence is triable exclusively by the Court of Sessions, the Magistrate shall without delay furnish to the accused, free of cost' a copy of each of the following :-
(i) the statements recorded under Section 200 or Section 202, of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under Section 161 or Section 164;
(iii) any document produced before the Magistrate on which the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
Section 209: 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 is 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 Sessions, and subject to the provisions of this Code relating to bail remand the accused to custody until such commitment has 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 Sessions.
6. From bare reading of the aforesaid provisions, it is manifest that the duty of the Magistrate is limited one. Under Section 207 of the Code, the Magistrate is required to furnish to the accused free of cost copies of certain documents in a case where the proceeding has been instituted on a police report. In cases instituted otherwise than on a police report if it appears that the offence is triable exclusively by the Court of sessions then the Magistrate shall furnish to the accused all necessary documents mentioned Under Section 208 of the Code. The function of the Magistrate Under Section 209 of the Code is also limited to the extent that if it appears to the Magistrate that the offence is triable exclusively by the Court of session then the Magistrate, after complying with the provisions of Sections 207 and 208 of the Code, commit the case to the Court of session. In other words, the Magistrate is not empowered at the stage of Section 209 CrPC to apply his mind on merit of the matter as to who are the persons liable to face trial before the Court of session. Since an enquiry by the Committing Magistrate is not contemplated by the scheme of the present Code the procedure provided in Section 209 radically different from the commitment proceeding provided in Chapter 18 of the repealed Code. The Apex Court, while considering the scope of Sections 209 and 319 CrPC after taking notice of the 41st. Report of the Law Commission in the case of Raj Kishore Prasad v. State of Bihar, 1996 Cri LR 2523 : (AIR 1996 SC 1931) held as under at page 2526; of Cri LJ:-
11. The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently 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 Session, 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 Session is in order, so that it can proceed straightway with the trial and that nothing is lacking in content, as per requirement of Sections 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 'inquiry' means every inquiry, other than a trial conducted under this Code by a Magistrate or a Court', because of preclude of its being 'subject to the context otherwise requiring'. As said before, the context requires the proceeding 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, CrPC is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or substracted to face trial before the Court of Session.
7. From perusal of the impugned order passed by the learned Magistrate, it appears that the case was registered by the police Under Sections. 302, 307/34 IPC and 27 of the Arms Act against six accused persons. However, after final investigation chargesheet was submitted against two persons and the name of four other accused persons do not figure in any column of the chargesheet. The learned Magistrate on the basis of the material came in the case diary took cognizance against the remaining four accused persons and fixed a date for commitment to the Court of session. The learned Magistrate appears to have misconstrued the provisions of Sections 207 to 209 and also Section 319 CrPC Section 319 reads as under:-
319. Power to proceed against other persons 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) then
(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.
8. From bare perusal of the aforesaid provision, it is clear that it operates in an on going inquiry into, or trial of, an offence. In the case of Raj Kishore Prasad (supra) the Apex Court held as follows (at page 2525; of Cri LJ):
8. Sub-section (1) of Section 319 makes it clear that it operates in an on going inquiry into, or trial of, an offence. In order to apply Section 319, it is thus essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the course of any inquiry or trial. Proceedings before a Magistrate under Section 209 CrPC are patently not trial proceedings and were never considered so at any point of time historically. There has never been any doubt on that account. Before the amendment of the Code of Criminal Procedure in the present form, commitment proceedings had the essential attributes of an inquiry and were termed as such. Now do they continue to be so is the core question, to determine and spell out the powers of the Magistrate under Section 209 CrPC If proceedings under Section 209 CrPC continue to be an inquiry, Section 319 CrPC would be obviously attracted subject of course to deciding whether the material put-forth by the investigation could be termed as `evidence', as otherwise no evidence is recordable by a Magistrate in such proceedings.
9. It appears to me that the learned Magistrate has failed to appreciate the changes brought about under the new Code of Criminal Procedure, 1973, inasmuch as cognizance is taken of an offence and not against the accused persons. Similarly, the accused persons are not committed to the Court of session for trial rather the case is committed to the Court of sesssion for trial. In that view of the matter, I have no doubt in my mind that the learned Magistrate has not correctly construed the law. The position might have been otherwise if after submission of chargesheet against only two accused persons, a protest petition would have been filed from the side of the informant or prosecution for non-chargesheeting the other accused persons named in the first information report. As noticed above, the Magistrate has no option but to commit the case to the Court of session in respect of two persons who have been chargesheeted. The power is vested with the Court of sesssion to issue process and put the remaining four accused persons on trial in case any material comes during the inquiry or trial against those persons. In other words, when some more accused persons are found involved in a session case then the power to proceed against such accused persons lies under Section 319 of the Code and the Magistrate under Section 209 has no jurisdiction to take cognizance and commit such accused persons whose name did not appear in the chargesheet. The decision relied upon by the learned counsel appearing for the State in the case of State of Maharashtra v. SharadchandraVinayak Dongre, 1996 PLR (SC) 230: (AIR 1995 SC 231) does not apply in the facts and circumstances of the case.
10. Having regard to the decision referred to above, I am, therefore, of the view that the impugned order passed by the learned trial Court is not in accordance with law and is liable to be set aside. In the result, this application is allowed and the impugned order dated 10-9-96 passed by the Chief Judicial Magistrate, Samastipur, in T.R.No. 761/96 is quashed. The learned Magistrate is directed to proceed in accordance with law. No order as to costs.