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TMI Blog1998 (9) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure (for short the Code ), a two Judge Bench of this Court has, in Raj Kishore Prasad vs. State of Bihar (1996 4 SCC 495) expressed reservation about the legal position propounded in Kishun Singh s case. Now the question is directed to be considered by a larger Bench in the light of the reservation expressed in Raj Kishore s case. Hence this appeal came to be listed before a three Judge Bench. Facts, barely necessary for disposal of this appeal, are following : On 24.12.1996, an FIR was lodged at Rajkot Police Station (Punjab) alleging that eight persons (including the present a pellant) formed themselves into an unlawful assembly at about 8 P.M. and on the exhortation of the appellant one of the members of the unlawful assembly snatched away the rifle of a gunman and fired at Chamkaur Singh who succumbed to the gunshot injuries later. In the rioting some other persons also sustained injuries. After the case was committed to the Court of Sessions the de facto complainant (Darshan Singh who furnished the first information) filed a petition before the Session Judge on 5-6-1997 praying that appellant also be arraigned as an accused singh his exoneration by investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a) the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. The said provision is an improved form of its corresponding provision (Section 351) in the old Criminal Procedure Code, 1898. The subtle change brought about in the present Section has been succiently delineated by Ahmadi, J (as his Lordship then was) in Kishun Singh s case in the following lines: It is, therefore, manifest that Section 319 of the Code is an improved version of Section 351 of the old Code, the Changes having been introduce therein on the suggestion of the Law Commission to make it comprehensive so that even persons not attending the court can be arrested or summoned as the circumstances of the case may require and by deleting the words of which such court can take cognizance and by adding clause (b) it is clarified that the implement of a new person as an accused in the pending proceedings will not make any difference insofar as taking of cognizance is concerned. Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e crime can prima faice be gathered from the material available on record. (underlining supplied) It is regarding the last part of the aforesaid observations that serious arguments were addressed by the counsel urging reconsideration thereof. We have no doubt that with the committal order Session Court gets unfettered jurisdiction to take cognizance of the offences involved in the case. But the crucial question is whether such jurisdiction would envelop powers to summon any person as an accused other than those covered by the committal order. The change made by the new Code in Section 209 is that it is the case which is committed to the Court of Session and not the accused. But while committing the case to the Court of Session the committing court has a further duty which is in respect of the accused in the case. Section 209 says that the committal court has to remand the accused to custody until such commitment has been made subject to the provisions relating to bail. The accused referred to in the section is the accused against whom the Magistrate has already issued summons or warrant under Section 204 (1) (b) of the Code. The said clause reads thus: If in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. It is clear that during the said stage the Court of Session can deal only with the accused who is referred to in Section 209. The accused who can appear or can be brought before a Session Court at that stage is only that accused who is referred to in Section 209. Section 227 deals with the power of the court to decide whether that accused is to be discharged or not. If he is not discharged the Session Court is obliged to frame a charge against that accused as per Section 228 of the Code. Thereafter the plea of that accused has ton be recorded as enjoined by Section 229. The stage of evidence collection commences only next. (vide Sections 230 231 of the Code.) So from the stage of committal till the Session Court reaches the stage indicated in Section 230 of the Code that Court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Session Court to add any other person to the array of the accused. Thus o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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