RAJ KJSHORE PRASADversusSTATE OF BIHAR

                             RAJ KJSHORE PRASAD                                      A
                                      v.
'·                             STATE OF BIHAR

                                    MAY 1, 1996

                   [M.M. PUNCHHI AND K.T. THOMAS, JJ.]                               B

            Code of Criminal Procedure 1973, Ss. 209, 319:-:Whether magistrate
     undertaking commitment of a case triable by Sessions Court could associate
     another perso1t as accused in exercise of powers under s. 319-He/d, no;
     magistrate has no such power when committing a case for trial-Further held,     c
     addition of an accused pennissib/e only upon evidence adduced during course
     of trial and only as envisaged under s. 319.

            Code of Oiminal Procedure 1973, Ss. 2(g), 209-Committal Proceed-
     ings before the magistrate-Held, is not an 'inquiry' within the meaning of s.
     2 (g) as context requires proceedings to be Jonna/.     ·                     D
           On CMS reported to the police that the appellant's brother AK had
     attacked and killed CMS's brother S. Although two other witnesses
     claimed during investigation to have seen the appellant exhorting accused
     AK to kill the deceased, they did not come forward to own their version
     before the supervising high officers. Consequently, the police filed a report   E
     before the Chief Judicial Magistrate (CJM) Buxor against· AK alone.

           The CJM dismissed CMS's application for summoning the appellant
     to stand trial alongside the accused. However, the Sessions Court allowed
     CMS's revision petition and directed the CJM to issue warrant of arrest         F
     of the appellant. The High Court dismissed the appellant's petition under
     s. 482 Cr.P.C. challenging the order of the Sessions Court.

          Before this Court, the appellant contended that at the stage of
     committing a case to the court of sessions for trial under s. 209 Cr.P.C.,
     the magistrate has no power either under s. 319 or otherwise to add an          G
     accnsed.

          Allowing the appeal, this Court

         HELD : 1. The order of the Court of Session requmng the
     Magistrate to arrest and logically commit the appellant along with the H
                                         125
    126                  SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A   accused proposed to be committed to stand trial before it, was patently
    illegal and beyond jurisdiction. Since the Magistrate had no such power
    to add a person as accused under s. 319 Cr.P.C. while handling a matter
    under s. 209 Cr.P.C., the Court of Session in purported exercise of its
    revisional powers could not obligate it to do so. [135-A-B]

B         State of U.P. v. Lakshmi Brahman, AIR (1983) SC 439, followed.

         2. Addition of an accused by summoning or resummoning a dis·
    charged accused, and that too without bearing the accused, had only been
    permitted in the manner provided by Section 319 Cr.P.C. on evidence
C   adduced during the course of trial, and in no other way. S. 319 could not
    be invoked in a case \Yhere no evidence had been led at a trial, wherefrom
    it could be said that the accused other than the one facing trial, appeared
    to have been involved in the commission of the crime. [134-E-F; 133-B-C]

          Ki.shun Singh v. State of Bihai; [1993] 2 SCC 16 and Nisar. v. State of
D U.P., [1995] 2 sec 23, referred to.

          3. The Magistrates at the stage of Section 209 Cr.P.C. was forbidden
    to apply his mind to the merit of the matter and determine as to whether
    any accused needed to be added or subtracted to face trial before the Court
E   of Session. Such proceedings did not fall within the ambit of "inquiry" as
    defined in section 2(g) the Cr.P.C. which defined that "inquiry means every
    inquiry, other than a trial conducted under this Code by a Magistrate or
    a Court'', because of the prelude of its being "subject to the context
    otherwise requiring". The context required the proceedings before a
    Magistrate to be formal, barely committal in that sense, and that any
F   notion based upon the old state of law of its being an inquiry to which
    Section 319 could get attracted, had been done away with. [131-F-H]

          41st Report of the Law Commission, para 17.11, referred to.

G         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     No.583 of 1996.

            From the Judgment and Order dated 7.9.95 of the Patna High Court
     in Cr!. Mi.le. No. 12315 of 1995.

H         K.B. Sinha and Rakesh U. Upadhyay for the Appellant.
                  R.K PRASAD v. STATE [PUNCHHI, J.]                       127

      H.L. Aggarwal and R.C. Kohli for the Respondent No. 2.                     A
      The Judgment of the Court was delivered by

      PUNCHHI, J. Special leave granted.

      Can a Magistrate undertaking commitment under Section 209                  B
Cr.P.C. of a case triable by a Court of Session, 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.

      The first informant (the second respondent herein) Chandra Madho
                                                                                 c
Singh, resident of Buxor, Bihar learnt on 6.3.1994 at about 7.30 p.m. that
his brother Sudhir was under attack by means of an iron rod at the hands
of Avadh Kishore alias Pagalwa in front of the latter's shop. When he came
close to the place of occurrence, he found the accused abusing and saying
to the victim that he would not let him remain alive. On seeing the first        D
informant and his helpers having come, the assailant ran away from the
spot. The first informant removed his injured brother to the Hospital and
kept attending to him during night. Next morning on 7.3.1994, the injured
expired. Thereafter at about 10 a.m. the first informant reported the matter
to the police naming Avadh Kishore alias Pagalwa as the sole accused of
                                                                                 E
the crime.

       It appears that during investigation two witnesses namely Sudama
Singh and Srikant Misra claimed to have seen and heard before hand the
present appellant Raj Kishore Prasad (statedly) about 18 years of age), the
brother of Avadh Kishore alias Pagalwa, to have exhorted the accused to          F
kill the deceased, where after the actual assailant is said to have assaultled
the deceased.

      The investigation was conducted by the local police officers, which
was supervised by the Sub Division Officer, Buxor and Superintendent of G
Police, Buxor. During the course of supervision, it transpired that there
was not sufficient evidence or reasonable ground for suspicion that the
appellant was involved in the crime and he was thus found to be innocent,
more so \Vhen those two witnesses had not come forward tu own their
version before the supervising high officers. It is on that basis that the
police filed report against the actual assailant only, on the basis that the H
    128                   SUPREME COURT REPORTS {1996] SUPP. 2 S.C.R.

A   appellant was not involved in the crime.

           When the papers were laid before the Chief Judicial Magistrate,
    Buxor, the first informant made an application requiring the Magistrate to
    exercise his powers to summon the appellant so as to sent him to stand
    trial alongside the accused sent up by the police, before the Court of
B   Session. The Chief .T udicial Magistrate dismissed the application of the first
    informant which lad to a revision petition by the first informant before the
    Court of Session. The Court of Session allowed the revision petition and
    desired of the Chief Judicial Magistrate issuance of warrant of arrest of
    the appellant to face trial. It was then the appellant's turn to move the High
C   Court under section 482 Cr.P.C. praying for quashing of the orders of the
    Court of Session. Since the same was dismissed by the High Court, the
    appellant is here before us inter alia contending that al the stage set for
    employing Section 209 Cr.P.C., the Chief Judicial Magistrate has no power
    under Section 319 of the Code or otherwise, to add an accused in addition
    lo the one facing commitment. Hence this appeal by special leave.
D
          Sections 209 and 319 of the Code of Criminal Procedure which play
    their part are set out below, one a[ler the other :

             "209. COMMITMENT OF CASE TO COURT OF SESSION
             WHEN OFFENCE IS TRIABLE EXCLUSIVELY BY IT - When
E            in a case instituted on a police report or other\vise, the accused
             appears or is brought before the Magistrate and it appears to the
             Magistrale that the offence is triable exclusively by the Court of
             Session, he shall -

             (a) commit, after complying with the provisions of section 207 or
F
             section 208, as the case may be, the case to the Court of Session,
             and subject to the provisions of this Co<lc relating lo bail, remand
             the accused to custody until such commitment has been made;

             (b) subject to the provisions of this Code relating to bail, remand
G            the accused to custody during and until the conclusion of the trial;

             ( c) sent to that Court the record of the case and the documents
             and articles, if any, which are lo he produced in evidence;

             (d) notify the Public Prosecutor of the commitment of the case to
H            the Court of Session. 11
                  R.K. PRASAD v. STATE [PUNCHHI, J.]                      129

        "319. POWER TO PROCEED AGAINST OTHER PERSONS AP- A
        FEARING TO. BE GUILTY OF OFFENCE - (1) Where, in the
        course of any inquiry into, or trial of, an offence, it appears f~om
        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
                                                                             B
        offence which he appears to have committed.

        (2) Where such person is not att~nding the Court, he may be
        arrested or sun1moned, as the circumstances of the case may
        require, for the purpose aforesaid.
                                                                                 c
        (3) Any person attending the Court although not unde' arrest or
        upon a summons, may be detained by such Court for the purpose
        of the enquiry into, or trial of, the offence which he appears to
        have committed.

        ( 4) Where the Court proceeds against any person under sub-sec-          D
        lion (1), then -

            (a) the proceedings in respect of such person shall be com-
        menced afresh, and the witne~ses re-heard;

            (b) subject to the provisions of clause (a), the case may proceed
                                                                                 E
        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. 11

        Sub-section (1) of Section 319 makes it clear that it operates in an     F
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 tria1. Proceedings before a
Magistrate under Section 209 Cr.P.C. are patently not trial proceedings and      G
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 rroceedings had the
essential attributes of an inquiry and were termed as such. Now do they
continue to be so is the core question 1 to determine and. spell out the
powers of the Magistrate under Section 209 Cr.P.C. If proceedings under H
    130                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A   Section 209 Cr.P.C. continue to be an inquiry, Section 319 Cr.P.C. 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.

          While enacting the Code of Criminal Procedure, 1973, the prefatory
B note before the Parliament containing 'Objects and Reasons' gave out the
    changes proposed to be made with a view to speed up the disposal of
    criminal cases. Item (a) specifically provided "the preliminary inquiry which
    precedes the trial by a Court of Session, otherwise known as committal
    proceeding, is being abolished as it does not serve any useful purpose and
c   has been the cause of considerable delay in the trial of offences."

         The Law Commission beforehand in its 4lst Report while recom-
    mending change on the subject opined as follows :

            "17.11 - Where the case (whether instituted on a police rcpor~ or
D           on complaint) relates to an offence triable by the Court of Session,
            the Magistrate has to send up the case lo the Court of Session.
            Since an inquiry by the Magistrate is not contemplated in the
            scheme which we propose in regard to such offences, the provision
            in this respect can take a simple form and can be placed in this
            chapter as forming part of the commencement of proceedings
E           before Magistrates. It will be convenient to refer to this process as
            "commitment of the case to the Court of Section" although the
            procedure is radically different from the commitment proceedings
            at present provided in chapter 18.

F           (ii) Cl. 214 (S. 209) - "Preliminary inquiries by Magistrates in cases
            exclusively triable by the Court of Session are being dispensed 1vith
            as such an inquiry has served no useful purpose and, on the
            contrary, it involves a great deal of infructuous work causing delay
            in the trial of serious cases. The abbreviated form of inquiry
            provided for by the amendments made in 1955 and contained in
G           Section 207A has been the subject of controversy and opinion is
            almost unanimous that this procedure while solving no problems,
            created fresh problems. Preliminary inquiries are, therefore, being
            dispensed with in cases t1iab/e by a Cowt of Session. However, to
            perform certain preliminaiy functions like granting copies, prepar-
H           ing the records, notifying the Public Prosecutor, etc. provision is
                  R.K. PRASAD v. STATE [PUNCHHI, J.]                     131

        being made that the Magistrate taking cognizance of the case will      A
        pe1fonn these preliminmy functions and fonnally commit the case
        to the Court of Session. As regards private complaints in cases
        triable exclusively by a Court of Session the inquiry into the
        complaint by the Magistrate under the existing section 202 will
        serve the purpose of a preliminary scrutiny." - S.O.R. Gaz.~of Ind.
                                                                               B
        10.12.1970, Pt/II, S. 2, Extra, p.1309 (1320)."

                                                       (Emphasis supplied)


       The present Section 209 is thus the product of the aforesaid expert
deliberation followed by legislative exercise. It is thus to be seen           c
prominently that preliminary inquiries then known as "committal proceed-
ings" 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 th~ Public Prosecutor etc. are thus prelimi-
nary or ministerial in nature. It is of course true that the Magistrate at that D
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 applica-
tion of mind is required in order to determine any issue raised, or to
adjudge anyone guilty or not, or otherwise to pronounce upon the truth- E
fulness 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
straight away 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, F
which defines that "inquiry means every inquiry, other than a trial con-
ducted under this Code by a Magistrate or a the Court", because of the
prelude of its being "subject to the context otherwise requiring". As said
before, the context requires the proceedings before a Magistrale to be
formal, barely committal in that sense, and that any notion based upon the G
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 Session.                                                           H
    132                  SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A         This Court in State of U.P. v. Lakshmi Brahman and Another, AIR
    (1983) SC 139 445 took a view which p1ima facie does not seem to be in
    accord with our views afore-expressed. It was held as follows :

            "The making of an order committing the accused to the Court of
            Session will equally be a stage in the inquiry and the inquiry
B
            culminates in tnaking the order of commitment. Thus from the time
            the accused appears or is produced before the Magistrate with the
            police report under section 170 and the Magistrate proceeds to
            enquire under section 207 has been complied with and then
            proceeds to commit the case to the Court of Session, the proceed-
c           ings before the Magistrate would be an inquiry as contemplated
            by Section 2(g) of the Code. We find it difficult to agree with the
            High Court that the functions discharged by the Magistrate under
            Section 207 is something other than a judicial function and while
            discharging the function the Magistrate is not holding an inquiry
            as contemplated by the Code.
D
    From the text of the judgment it is clear that the statement of "Objects and
    Reasons" reflecting legislative policy as to the quality of 'inquiry' was not
    laid before this Court as well as the report of the 4lst Law Commission
    recommending abolishing of ninquiry11 before the magistrate, which was
E   responsible for the change. Had the Bench been apprised of the historical
    perspective, we have no doubt in our mind that the comprehension of the
    word "inquiry" as meant for Section 209 Cr.P.C. would have been the same
    as gathered by us on becoming cognizant of the legislative scheme for early
    disposal of cases triable by a court of Session.
F
           S/Shri K.B. Sinha and H.L. Aggarwal, learned counsel appearing on
    opposite sides, have heavily dwelt upon Kishun Singh and Others v. State
    of Bihm; [1993] 2 SCC 16, to contend, that on plain reading of Sub-section
    (1) Section 319, there could be no doubt, that it must appear from the
    evidence tendered in the course of any inquiry or trial, that any person not
G   being the accused, has committed any offence, for which he could be tried
    together with the accused, and that the said power could be exercised only
    if it so appears from the evidence adduced at the trial and not otherwise.
    Since that stage has not arrived in the instant case it is maintained that
    Section 319 is inapplicable. This is obviously correct. Nowhere has any
H   evidence b.eing recorded to invoke Section 319 of the Code. In the
                 R.K PRASAD v. STATE [PUNCHHI, J.]                     133

aforesaid case, this Court has ruled that sub section (1) of Section 319      A
contemplates existence of some evidence appearing in the course of trial,
wherefrom the court can prima facie conclude, that the person not ar-
raigned before it, is involved in the commission of the crime, for which he
can be tried with those already named by the police. Even a person who
had earlier been discharged was spelled out to fall within the sweep of the
                                                                              B
power conferred by Section 319 of the Code. Therefore, this Court's view
as crystallized is that in stricto sensu, Section 319 of the Code cannot be
invoked in a case where no evidence had been Jed at a trial, wherefrom it
can be said that the accused, other than the one facing trial, appears to
have been involved in the commission of the crime.
                                                                              c
       Learned counsel differ however on the other question posed in
Kishun Singh's case. It was whether a court of Session, to which a case is
committed for trial by a Magistrate, could, without itself recording
evidence, summon a person not named in the police report presented
under Section 173 of the Code of Criminal Procedure, 1973, to stand trial D
alongwith those named therein; if not in exercise of power conferred by
section 319 of the Code, then under any other provision ? The answer given
was in the affirmative, on the basis of Section 193 of the Code, as it
presently stands, providing that once the case is committed to the Court of
Session by a Magistrate, the restriction placed on the power of the Court
of Session to take cognizance of an offence as a Court of Original .Juris- E
diction gets lifted, thereby investing the court of Session unfettered juris-
diction to take cognizance of the offence which would include the
summoning of the person or persons whose complicity in the crime can
plima facie be gathered from the mate1ial available on the record. It is on
this reasoning that this Court sustained the order of the Court of Session F
(though it ostensibly was under Section 319 Cr.P.C. terming material of
investigation before it as 'evidence') summoning the un·named accused to
stand trial with the named accused. A stage has thus been discovered,
before the reaching of the stage for exercise of power under section 319
Cr.P.C., on the supposition and premise that it is pre-trial when the
question of charge was being examined. Such power of summoning the new G
accused has been culled out from the power exercisable by the Court of
Session under sections 227 and 228 of the Code, enabling it to discharge
under Section 227 or charge under Section 228 the accused persons before
it and while so to summon another accused involved in the commission of
the crime, p1ima facie appearing from the material available on record of H
    134                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A the case. Thus at a stage posterior to the stage envisaged under section
    319, the Court of Session has heen held empowered to summon an accused
    if a prima facie is made out from the material available on the record.

         We have respectfully to express, in the wake of the legislative policy,
  our reservations to such view even though that view has been met with
B approval in Nisar & Anrs. v. State of U.P., [1995] 2 S.C.C 23. The scheme
  and design of Chapter XVIII and the legislative policy reflected therein
  seems to have been underestimated. It is designed to secure speedy trial
  for those who are facing it. Sections 225 to 237 Cr.P.C. (which includes
  Sections 227 and 228) are integrated provisions of a lot which govern in
c totality the trial proceedings under Chapter XVIII titled "Trial before a
  Court of Session". There seemingly is no intermediate stage envisaged
  between commitment and trial or the trial proceeding splitting into pre-
  charge trial and after charge trial. Trial begins with Section 225 when the
  Public Prosecutor is present before the Court of Session to conduct the
D prosecution and opens its case disclosing the evidence by which he
  proposes to prove the guilt of the accused. It is for him to highlight the
  particulars of the evidence he would lead to prove the case against the
  accused facing trial. The stage of Sections 227 and 228 comes as the next
  step after observance of such procedure, as part of trial. It is thus designed
  that proceedings to discharge or charge the accused are part of trial ..
E Addition of an accused by summoning or resummoning a discharge ac-
  cused, and that too without hearing the accused, has only been permitted
  in the manner provided by Section 319 Cr.P.C. on evidence adduced during
  the course of trial, and in no other way. Having thus expressed our doubts
  we do not, as at present advised, take the matter any further because the
F fact situation of the present case does not warrant its resolution, a dire
  necessity. Besides, we propose to take care of the fact situation by giving
  appropriate relief to the appellant in the manner suggested later.

        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
G 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, \vhich may be the Court of Session itself awaiting the case on
  commitment, merely on the specious ground that the Court of Session can,
H in any event, summon the accused to stand trial, alongwith the accused
                  R.K. PRASAD v. STATE [PUNCHHI, J.]                    135

meant to be committed for trial before it. Presently it is plain that the stage A
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 alongwith 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 B
319 Cr.P.C. when 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 C
warranting, proceed against the appellant, summon him for the purpose,
to stand trial al~ith the accused committed, providing him the neces-
sary safeguards enl>i.saged under sub-section (4) of Section 319. Such
course is all the more necessary in the instant case when expressions on
merit have extensively been made in the orders of the magistrate, the Court D
of Session and that of the High Court. Any other course would cause
serious prejudice to the appellant. We order accordingly.

     For reasons aforestated, we set aside the impugned order of the
Court of Session as also that of the High Court, requiring the Magistrate
to perform his functions under Section 209 of th.e Code of Criminal           E
Procedure as explained above. The appeal thus stands allowed.

S.M.                                                       Appeal allowed.