SK. Mister and Another vs State of Bihar

Leave granted. Heard counsel for the parties.

Having regard to the fact that after taking cognizance on September 22, 1995 the learned Chief Judicial Magistrate committed the case to the Court of Sessions u/s 209 Code of Criminal Procedure in which only Sk. Illias figured as an accused, the learned Magistrate was not justified in committing the two Appellants herein to that court by its later order dated 20th, December, 1995. Equally unsustainable is the impugned order of the High Court upholding the same. In Raj Kishore Prasad Vs. State of Bihar and another, , this Court has specifically laid down that power u/s 209 of the Code of Criminal Procedure does not entitle a Magistrate to summon a new offender Since in the instant case, the two Appellants did not figure as accused in the charge sheet on which cognizance was taken and commitment order was initially passed, a fresh order of commitment in respect of them was impermissible in view of the above judgment of this Court.

We, therefore, allow this appeal and set aside the order of the High Court and the Chief Judicial Magistrate. However, we make it clear that this order of ours will not stand in the way of the Court of Sessions to exercise its powers under Sections 193 and 209 of the Code of Criminal Procedure, if need be.