IMPORTANT POINT
(i) Magistrate at the stage of Section 209 Cr.P.C. is forbidden to apply his mind to the merits of the matter and determine as to whether any accused need be added or subtracted to face trial before Court of Session.
(ii) Addition of an accused by summoning or re-summoning a discharged accused has only been permitted in the manner provided by Section 319 Cr.P.C. on evidence adduced during trial and in no other way.

JUDGMENT

Punchhi, J.-Special leave granted.

2. Can a Magistrate undertaking commitment under Section 209 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.

3. The first informant (the second respondent herein) Chandra Madho 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 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 the crime.

4. 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 kill the deceased, where after the actual assailant is said to have assaulted the deceased.

5. The investigation was conducted by the local police officers, which was supervised by the Sub Divisional Officer, Buxor and Superintendent of 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 when those two witnesses had not come forward to 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 appellant was not involved in the crime.

6. 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 send him to stand trial alongside the accused sent up by the police, before the Court of Session. The Chief Judicial Magistrate dismissed the application of the first informant which led 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 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 at 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 on accused in addition to the one facing commitment. Hence this appeal by special leave.

7. Sections 209 and 319 of the Code of Criminal Procedure which play their part are set out below, one after the other :

"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 and it appears to 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;