RAJ KJSHORE PRASAD versus STATE OF BIHAR

Citation: [1996] SUPP. 2 S.C.R. 125 · Decided: 01-05-1996 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Appeal(s) allowed

Judgment (excerpt)

'· 
RAJ KJSHORE PRASAD 
v. 
STATE OF BIHAR 
MAY 1, 1996 
[M.M. PUNCHHI AND K.T. THOMAS, JJ.] 
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, 
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/. 
· 
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 
A 
B 
c 
D 
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. 
E 
F 
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 
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 
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 und

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