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2002 DIGILAW 739 (JHR)

BIRU TELI v. STATE OF JHARKHAND

2002-07-10

D.N.PRASAD

body2002
Judgment : D. N. PRASAD, J. ( 1 ) THIS application has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as the Code against the order dated 31-1-2001 passed by Sri S. N. Singh, Judicial Magistrate at Dhanbad in Sessions Trial Case No. 55 of 2001 arising out of Topchanchi (Hariharpur) P. S. Case No. 102 of 2000 corresponding to G. R. Case No. 2169 of 2000 whereby and whereunder the learned Magistrate rejected the application filed by the petitioner for adding Rameshwar Sao as an accused in the aforesaid case which was registered under Sections 302, 201 and 34 of the Indian Penal Code. ( 2 ) THE first information report was lodged alleging therein that the son of the informant aged about fifteen years had gone out of the house and till late night he did not return. Thereafter the inquiry was made from his wife regarding the whereabout of his son Vijay and then he came to know that the deceased used to speak of going away Bombay and as such having companionship of someone had gone away to Bombay. As such the informant went to sleep. He could not report the matter to the police because he was searching his son. On 28-7-2001 one Dudhia Devi came shouting that the dead body of Vijay was lying behind her house. Thereafter the informant and other family members rushed to the spot and saw the dead body of the deceased lying there. Accordingly, first information report was lodged against unknown. The police investigating into the case and after investigation submitted charge-sheet. ( 3 ) ACCORDINGLY, the Chief Judicial Magistrate after perusing the case diary took cognizance of the offences under Sections 302/201 of the Indian Penal Code against the accused persons. Thereafter the case was transferred to the Court of this Magistrate for commitment where a petition was filed on behalf of the informant for adding Rameshwar Sao as an accused and after hearing both the parties, the learned Court below passed the order impugned. Thereafter the case was transferred to the Court of this Magistrate for commitment where a petition was filed on behalf of the informant for adding Rameshwar Sao as an accused and after hearing both the parties, the learned Court below passed the order impugned. ( 4 ) THE learned Counsel appearing on behalf of the petitioner submitted that the learned Court below committed error in rejecting the prayer of the petitioner as the learned Court below ought to have taken cognizance of the offence as against the petitioner as well in view of the fact that there is sufficient evidence against Rameshwar Sao (opposite party No. 2 ). It is further argued that the learned Magistrate passed the order in mechanical manner without applying his judicial mind. ( 5 ) ON the other hand, counsel appearing on behalf of opposite party No. 2 contended before me that the learned Magistrate has rightly passed the order impugned rejecting the prayer of the petitioner as there is no such provision under Section 209 of the Code for addition or subtraction of any person as admittedly cognizance in the case was already taken as back as on 10-11-2000 for the offence under Sections 302 and 201 of the Indian Penal Code by the Chief Judicial Magistrate who made over the case to the learned Magistrate for the limited purpose for committing the case to the Court of Session as required under Section 209 of the Code. The counsel appearing on behalf of opposite party No. 2 also relied upon a case of the Supreme Court in Raj Kishore Prasad v. The State of Bihar (1996 (1) PLJR (SC) 123. ( 6 ) FROM going through the order impugned, it is apparent that the Chief Judicial Magistrate took cognizance of the offence under Sections 302 and 201 of the Indian Penal Code as back as on 10-11-2000 and thereafter the case was transferred to the Court of the learned Magistrate for committing it to the Court of Session. ( 7 ) FOR proper appreciation of the case. Section 209 of the Code of Criminal Procedure is reproduced hereinbelow :- "209. ( 7 ) FOR proper appreciation of the case. Section 209 of the Code of Criminal Procedure is reproduced hereinbelow :- "209. Commitment of case to Court of Session 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 that the offence is triable exclusively by the Court of Session, 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 Session, 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 Session. ". ( 8 ) THUS from going through the provision, it is apparent that the learned Court below has nothing to do except committing the case to the Court of Session when the accused appears or is brought before him if the offence is triable exclusively by the Court of Session. Thus the Magistrate at the stage of Section 209 of the Code is forbidden to apply his mind to the merit of the matter and to determine as to whether any accused need be added or subtracted to face trial before the Court of Session. ( 9 ) IT has clearly been held in Raj Kishore Prasad that the role of Magistrate at the stage of Section 209 of the Code 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. The Magistrate could not have added those persons who have not been named in the charge-sheet and not the Magistrate at this stage can take cognizance against those persons because that stage has already been over and the case is pending before the learned Magistrate for commitment only. The Magistrate could not have added those persons who have not been named in the charge-sheet and not the Magistrate at this stage can take cognizance against those persons because that stage has already been over and the case is pending before the learned Magistrate for commitment only. However, there is no doubt that such person can be arraigned as an accused in exercise of power under Section 319 of the Code when some evidence or materials are brought on the record in course of trial or such person can be arraigned by the Sessions Judge in accordance with Section 193 of the Code. ( 10 ) FROM going through the impugned order it is manifest that the learned Magistrate passed the order after considering the whole facts in detail and he has rightly rejected the prayer of the petitioner. ( 11 ) IN the result, I do not find any merit in this application which is dismissed. Application dismissed. --- *** --- .