1. - The instant criminal revision petition under Section 307/401 of the Code of Criminal Procedure, 1973 (for short 'the Code' hereinafter) is directed against the order dated 15.3.2004 passed by the Additional Sessions Judge, Raisinghnagar, District Sri Ganganagar (for short, "the Revisional Court" hereinafter) whereby the Revisional Court allowed the revision petition filed by Non-Petitioners No. 2 to 5 against the order dated 23.6.2003 passed by the Judicial Magistrate, Raisinghnagar (for short, "the Magistrate" hereinafter) in Criminal Case No. 26/2003. By the order dated 23.6.2003, the Magistrate took the cognizance of the offences under Sections 323, 325, 447, 307, 147, 148, 149 IPC against Non-Petitioners No. 2 to 5. Aggrieved by the order of the Magistrate, the Non-Petitioners No. 2 to 4 filed a revision petition before the Revisional Court. By the impugned order dated 15.3.2004, the Revisional Court set aside the order of the Magistrate and allowed the revision petition. Aggrieved by the order of the Revisional Court, the complainant - Petitioner has filed the instant revision.

2. I have heard learned counsel for the parties. Perused the orders of the Magistrate as well as of the Revisional Court.

3. The Revisional Court allowed the revision petition on the ground that one of the offences, i.e. offence under Section 307 IPC is exclusively triable by the Court of Session and, therefore, at the time of committal of the case against the accused persons who have been challenged by the police, the Judicial Magistrate was not competent to arraign the other persons as accused who have not been challenged by the Police and while arriving at this finding, place reliance on a decision of the Hon'ble Supreme Court in Rajkishore Prasad v. State of Bihar, 1996 SCC (Cri.) 772 ; and a number of decisions of this Court.

4. In the instant case, after investigation, the police filed challan against accused Ajayab Singh for the offences under Sections 307, 447, 323, 325 IPC. At the time of committal of the case under Section 209 of the Code to the Court of Sessions, an application was filed before the Magistrate seeking arraigning of Non-Petitioners No. 2 to 4 as the accused. That application came to be allowed by the Judicial Magistrate's Court. From the facts available on record, it is clear that the Non-Petitioners No. 2 to 5 were not challenged by the police.

5. Learned counsel for the petitioner submits that even though the offence is triable exclusively by the Court of Session and if the persons who were named in the FIR have been left out by the police and they have not been challenged, the Magistrate, at the time of committing the case to the Court of Session under Section 209 of the Code, can arraign other persons as accused and take cognizance of the offence under Section 190 of the Code.

6. A similar question came up for consideration before the Hon'ble Supreme Court in Rajkishore Prasad's case (supra) as to whether a Magistrate undertaking committal under Section 209 of a case triable by a Court of Session, associate another person as accused, in exercise of powers under Section 319 of the Code, or under any other provision. The Hon'ble Supreme Court, while considering the provision of Section 209 of the Code, held as under:

"The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as 'committal proceedings' have been abolished in cases triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the public prosecutor etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being an adjud