IMPORTANT POINT
Magistrate is not empowered at the stage of Section 209 Cr.P.C. to apply his mind on merits of the matter as to who are the persons liable to face trial before Court of Sessions.

JUDGMENT

M. Y. Eqbal, J. - In this application filed under Section 482 of the Code of Criminal Procedure (hereinafter to be referred to as 'the Code') the petitioner has prayed for quashing the entire proceeding and the order dated 10th September, 1996, passed by the learned Chief Judicial Magistrate, Samastipur, in Warishnagar P.S. Case No. 71 of 1996 under Sections 302, 307/34 of the Indian Penal Code and 27 of the Arms Act.

By the said order, the learned Chief Judicial Magistrate took cognizance of the offence under the aforesaid sections against these petitioners, besides other accused persons.

2. The prosecution story, as alleged by the informant, are that the informant alongwith his brother came to purchase some clothes in Kishanpur Bazar On reaching Bazar, the informant found that Debu Rai Bhola Rai, Rajeshwar Thakur, Barish Chandra Rai, Indrashan Rai, Chande Rai and 34 others having pistol in their hands were standing. As soon as they saw the informant and his brother, they fired the pistol upon Devendra Rai hitting on the head who fell down. Thereafter all the aforesaid persons fired upon the informant but it could .not hit the informant who escaped. The informant further alleged that the aforesaid persons are accused in murder case of his brother which is pending in Sessions Court and these accused persons are pressurising the informant for withdrawing the case. On the basis of the statement of the informant, the police instituted a case being Warishnagar P .S. Case No. 71 of 1996 and started investigation. The police after full investigation submitted charge sheet under Sections 302/34 I.P.C. and 27 of the Arms Act against two persons, namely, Harish chandra Rai and Chande Rat. The petitioners case is that the Superintendent of Police, Samastipur and the D.I.G. himself investigated into the offence and they, after going over the spot, personally examined the witnesses as mentioned in the case diary and supervision notes that these petitioners were falsely implicated in the case by the informant. A charge sheet was submitted against the two accused persons, namely, Harish Chandra Rai. However, the names of other accused persons, including the petitioners do not figure in any column of the charge sheet. The learned Chief Judicial Magistrate, however, on the basis of the case diary and other materials on the record, including the statements of the informant and other witnesses, took cognizance against all six accused persons, including the petitioners by the impugned order.

3. Mr. R.B.S. Pahepuri, learned counsel appearing for the petitioners, has assailed the order as being illegal and wholly without jurisdiction. The main submission of the learned counsel is that the learned Chief Judicial Magistrate has no jurisdiction to take cognizance against the accused persons who were not charge sheeted at the stage of commitment. The learned counsel submitted that the learned Chief Judicial Magistrate in a case triable by the Court of Sessions has to do a routine work and after compliance of Sections 207 and 208 of the Code, has to commit the case to the Court of Sessions against those persons who have been charge sheeted. In support of his contention, learned counsel relied upon a decision in Raj Kishore Prasad v. State of Bihar1.

4. On the other hand, Mr. Shiv Shankar Prasad Sinha, learned counsel appearing for the State submitted that it is not a case where at the stage of commitment, the learned Magistrate has added or impleaded the petitioners as accused rather by the impugned order, the learned court below simply took cognizance against the petitioners. The learned counsel further submitted that the impugned order was not passed by the learned Magistrate under Section 319 of the Code and still that stage has not come. In support of that learned counsel relied upon a decision of the Apex Court in State of Maharashtra v. Sharad Chandra Vinayak Dongre and others2.

5. For better appreciation of the rival contentions of the