This is an application for quashing the order dated 25.3.1976 of Shri S.P. Shukla, Judicial Magistrate, Ist Class, Khagaria, directing that the petitioner Satyanarayan Yadav be summoned.

2. The relevant facts are these:

On 8.6.1975, one Kamla Kant Yadav lodged a first information report at Gogri police station alleging that the petitioner Satyanarayan Yadav along with three other named accused and 10 and 11 unnamed persons variously armed with Lathis and country-made guns, came to his residence at 7 or 8 P.M. on 7.6.1975, that Sachchidanand Yadav one of the named accused ordered the others to kill the informant Kamla Kant Jha and take away all his belongings and then he along with accused named in the first information report including the petitioner started assaulting Kamla Kant Jha and they also assaulted his nephew who attempted to rescue him, that on his hulla, a number of persons collected and thereafter the accused fled away taking grains as well as clothes and Rs.200/- in cash.

On the basis of the said information report Gogri Police instituted a case for offences under sections 147, 148, 323, 307 and 380 of the Indian Penal Code, and after completing investigation, submitted chargesheet against three of the named accused excluding the petitioner who was not sent up for trial as, in the opinion of the police, the accusation against the petitioner Satyanarayan Yadav was false. This police report appears to have been put up before the Sub-divisional Judicial Magistrate, Khagaria, on 19.1.1976 on which date a petition was filed on behalf of the informant praying that Satyanarayan Yadav be also summoned as an accused in the case. On that very date, the learned Sub-divisional Judicial Magistrate, after referring to the police report and the petition filed by the informant, passed the following order which translated into English reads thus:

"Perused the charge sheet, Cognizance for offences under sections 147, 323, 307 and 380 of the Indian Penal Code is taken against the accused named in column 3 (namely, the named accused other than the petitioner) and the case is transferred for enquiry to Shri Subodh Prasad Shukla, Judicial Magistrate, 1st Class.

The copies of documents described in Sec.207 of the Code of Criminal Procedure, should be furnished to the accused by 18.2.1976. The application filed on behalf of the informant should also be put up for consideration in the aforesaid Court. On the said date, the accused persons will appear in the Court of Shri Shukla".

3. The learned Magistrate before whom the case came upon transfer heard the parties on the petition of the informant on 19-3-1976. On that date, the informant also produced before the Magistrate six affidavits affirmed by the persons supporting the prosecution case against the petitioner Satyanarayan Yadav. The learned Magistrate, on the statement of the informant and certain witnesses contained in the case diary and the affidavits filed before him allowed the petition and ordered that the petitioner Satyanarayan Yadav be also summoned as an accused in the case.

4. Shri Thakur Prasad and Shri Chandramauli Kumar Prasad who argued the case on behalf of the petitioner contended that the order of the learned Magistrate summoning the petitioner for offences triable exclusively by the court of Session was without jurisdiction, because the learned Magistrate Shri Shukla who had not taken cognizance of the case neither holding any enquiry into an offence nor had he taken any evidence before passing the impugned order, According to the learned Advocates for the petitioner, the power of a Magistrate other than a Magistrate taking cognizance of the case to proceed for an offence against a person who has not been summoned by the Magistrate taking cognizance of the case, is derived from and confined to the circumstances referred to in Section 319 of the Code of Criminal Procedure, 1973 (hereinafter to be called 'the Code'). Under Section 319 of the Code, the