Judgment:
Narendra Mohan Kasliwal, J.
1. Both the above petitions are directed against the order of the learned Munsif and Judicial Magistrate Sangod dated 18th December, 1985 and identical questions of fact and law are involved in both these petitions as such they are disposed of by one single order. A charge-sheet was filed by the police under Sections 147, 149, 302, 307 and 427 against 22 accused persons. Out of the above 22 accused persons 8 had been arrested while challan against the remaining 14 persons was filed under Section 299 Cr. P.C. The petitioners before this Court namely, Hari Mohan, Rameshwar and Venkateshwar Prasad were not named in the charge-sheet. The learned Magistrate took the view that the present petitioners were wrongly left by the police even though their names were mentioned by the witnesses in their statements recorded under Section 161 Cr. P.C. In view of these circumstances learned Magistrate took cognizance against the present petitioners also and committed the case for trial to the Sessions Court and the present petitioners were also committed for trial along with other 22 accused persons.
2. Aggrieved against the order of the learned Magistrate the present petition under Section 482, Cr. P.C. have been filed. Mr. Mehrish, learned Counsel for the petitioners contended that the learned Magistrate had no power to take any cognizance and to commit for trial the present petitioners against whom no challan was filed by the police. It was submitted that under Section 209 Cr. P.C. learned Magistrate had no power to make any inquiry and he was only competent to commit such accused for trial to the Sessions Court against whom challan is filed by the police. It was also submitted that none of the petitioners had appeared nor produced before the learned Magistrate as such the learned Magistrate had no jurisdiction to commit the present petitioners for trial to the court of Sessions.
3. So far as the facts of the case are concerned they remain undisputed. Admittedly, no challan was filed against petitioners. Under Section 209 of the Code of Criminal Procedure, 1973 procedure has been laid down for commitment of case to court of Sessions when offence is triable exclusively by the court of Sessions. It is provided in Section 209 that 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, the case to the Court of Sessions;
(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.
4. In the scheme of the procedure for commitment to the Court of Sessions as provided under the Code of Criminal Procedure, 1973, there is no power to the Magistrate to make any inquiry in a case instituted on police report where the offence is triable exclusively by the Court of Sessions. In a case instituted on a complaint, of course, the Magistrate is competent to make an inquiry during the committal proceedings.
5. Now, in a situation where some more accused persons are found involved in a Sessions case then the power to proceed against such accused persons lies under Section 319 Cr. P.C. to the Court of Sessions. Under Section 319 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. The Magistrate has taken cognizance in the present case merely on the basis of the statements recorded by the police under Section 319 Cr. P.C. I find force in the contention of Mr. Mehrish that in a case which is instituted on a police report, the Magistrate under Section 209 Cr. P.C. had no jurisdiction to take cognizance and commit such accused persons also whose name did not appear in the charge-sheet.
6. For the above view I also find support from the following observations made by their Lordships of the Supreme Court in Sanjay Gandhi v. Union of India and Ors. : 1978CriLJ642 :
Secondly, it is not open to the committal court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in remoulding Section 207-A (old Code) into its present non-discretionary shape. Exploitation was intended by this change and this will be defeated successfully, if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection held through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Sessions.
7. In view of these circumstances both these petitions are allowed, the order of the learned Munsif and Judicial Magistrate, Sangod dated 18th December, 1985 taking cognizance against the accused petitioners Hari Mohan Rameshwar and Venkateshwar Prasad is set aside.
8. It is however, made clear that this order will not come in the way of the learned Sessions Judge to take any proceeding under Section 319, Cr. P.C. according to law. The record may be returned back immediately to the lower court.