1996 (5) TMI 441 - SC - Indian Laws

Issues Involved:
1. Whether a Magistrate can associate another person as accused under Section 319 of the Code of Criminal Procedure during commitment under Section 209 Cr.P.C.
2. The nature and scope of proceedings under Section 209 Cr.P.C.
3. The applicability of Section 319 Cr.P.C. in the context of commitment proceedings.
4. The role and powers of the Court of Session in summoning additional accused based on material available before trial.

Detailed Analysis:

1. Whether a Magistrate can associate another person as accused under Section 319 of the Code of Criminal Procedure during commitment under Section 209 Cr.P.C.:
The primary question addressed was whether a Magistrate, during the commitment of a case to the Court of Session under Section 209 Cr.P.C., can summon another person as an accused under Section 319 Cr.P.C. or any other provision. The Court concluded that the Magistrate does not possess this power. The proceedings before the Magistrate under Section 209 Cr.P.C. are not considered an "inquiry" as defined under Section 2(g) of the Code of Criminal Procedure, and the material before the Magistrate cannot be termed as "evidence." Therefore, the Magistrate is forbidden from applying his mind to the merits of the case to determine whether any additional accused should be summoned.

2. The nature and scope of proceedings under Section 209 Cr.P.C.:
The Court examined the nature of proceedings under Section 209 Cr.P.C. and clarified that these proceedings are preliminary or ministerial in nature. The Magistrate's role is limited to ensuring that the case package sent to the Court of Session is in order, without determining the guilt or innocence of any party. The legislative intent behind the Code of Criminal Procedure, 1973, was to abolish preliminary inquiries by Magistrates in cases triable by the Court of Session to expedite the trial process. The functions of the Magistrate under Section 209 are thus limited to facilitating the placement of the case before the Court of Session.

3. The applicability of Section 319 Cr.P.C. in the context of commitment proceedings:
Section 319 Cr.P.C. allows the court to proceed against other persons appearing to be guilty of an offense based on evidence recorded during an inquiry or trial. However, the Court clarified that Section 319 is applicable only when evidence has been recorded during the course of an inquiry or trial. Since proceedings under Section 209 Cr.P.C. do not involve recording evidence, Section 319 Cr.P.C. cannot be invoked at this stage. The Court emphasized that the power to add an accused under Section 319 Cr.P.C. arises only during the trial based on evidence adduced.

4. The role and powers of the Court of Session in summoning additional accused based on material available before trial:
The Court addressed whether the Court of Session could summon an additional accused based on material available before the trial, even if not under Section 319 Cr.P.C. The Court referred to the case of Kishun Singh and Ors. v. State of Bihar, which allowed the Court of Session to summon a person not named in the police report based on the material available on record. However, the Court expressed reservations about this view, emphasizing that the legislative policy aims for speedy trials and that the trial begins with the Public Prosecutor presenting the case under Section 225 Cr.P.C. The Court suggested that the power to summon additional accused should be exercised only under Section 319 Cr.P.C. based on evidence recorded during the trial.

Conclusion:
The Court concluded that the Magistrate does not have the power to summon an additional accused under Section 319 Cr.P.C. during commitment proceedings under Section 209 Cr.P.C. The Court of Session's order requiring the Magistrate to summon the appellant was deemed illegal and beyond jurisdiction. The appeal was allowed, and the orders of the Court of Session and the High Court were set aside. The Magistrate was directed to perform his functions under Section 209 Cr.P.C. as explained, and any action against the appellant could be taken by the Court of Session under Section 319 Cr.P.C. based on evidence recorded during the trial.

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