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Judgment
A.K. Shrivastava, J.—This revision has been directed against the order dated 27-2-97 passed by the Judicial Magistrate, First Class, Bijawar, District Chhatarpur, whereby the application filed u/s 319 of the Code of Criminal Procedure, 1973 (for short ''the Code'') has been allowed.
No exhaustive statement of facts are necessary for the disposal of this revision petition. Suffice it to say, that the charge-sheet u/s 3/5 of the Explosive Substances Act, was filed in the Committal Court wherein an application u/s 319 of the Code was moved by the prosecution on 3-2-97 to array the applicant Subhash Chandra Jain as an accused. This application was allowed by the impugned order. Hence, this revision.
In this revision petition, Shri Harpreet Ruprah, learned Counsel for the applicant has vehemently argued and submitted that the case u/s 3/5 of the Explosive Substances Act is triable by the Court of Sessions and hence the Committal Court was not enjoying any jurisdiction to allow the application filed u/s 319 of the Code. To bolster his contention he has placed heavy reliance on the decision of the Apex Court in the case of Raj Kishore Prasad Vs. State of Bihar and another, , and the decision of this Court in the case of P.P. Chandra v. State of M.P. 1996 JLJ 76.
Per contra, Smt. Chanchal Sharma, Counsel for the State argued in support of the impugned order.
Having heard the learned Counsel for the parties, I am of the view that this revision petition deserves to be allowed. In the case of Raj Kishore (supra), it has been held by the Apex Court that the Magistrate undertaking commitment u/s 209 of a case triable by a Court of Sessions can not associate another person as accused, in exercise of power u/s 319 of the Code or any other provision. The essential criteria to Section 319 of the Code is only on the evidence being recorded in the course of any inquiry or trial. The proceedings before the Magistrate u/s 209 of the Code are not the trial proceedings.
By taking the shelter of the case of Rajkishore (supra), it can safely be said that the learned Magistrate acted in violation of law in allowing the application u/s 319 of the Code. In the case of P.P. Chandra (supra), this Court in Para 12 has also held that the cognizance of offence against any person u/s 319 of the Code could be taken only after recording some evidence.
By placing reliance on the decisions of Raj Kishore (supra) and P.P. Chandra (supra), the impugned order passed by the learned Magistrate can not be sustained in the eyes of law. The same is hereby set aside.
Resultantly, the revision succeeds and is hereby allowed. The order impugned is hereby set aside. The application u/s 319 of the Code is hereby rejected.