MOHD HANIF Vs. STATE

JUDGEMENT

(1.) An interesting question involved in these revision petitions is as to whether a magistrate can issue process against a person who has not been sent up for trial by the police in a case instituted on a police report, if during the trial, the evidence led by the prosecution, implicates that person also in the commission of the offence ?

(2.) From a perusal of the record it transpires that one Chandu Lal was charged by the police of Bhadarwah for an offence under S.406, R.P.C. in two cases. The challans were filed in the court of the learned Judicial Magistrate Ist Class, Bhadarwah. During the trial, two of the prosecution witnesses, namely, Anant Ram and Tek Chand implicated the applicant-petitioners in the commission of the offence. After the statements of these witnesses were recorded, an application was moved by the accused before the learned trial magistrate praying therein that the applicants who had been implicated by the prosecution witnesses should also be arrayed as accused and tried. The prosecution officer did not object to the grant of the application and vide order dt. 27-11-1978 the learned trial magistrate observed that from the evidence on the record the two applicant-petitioners were prima facie involved in the commission of the offence and summons were issued against them. Against, the order of the learned Judicial Magistrate, a revision petition was filed before the learned Sessions Judge, Bhadarwah on 27-12-1978 who did not find any merit in the revision petition and dismissed the same vide order dt. 29-9-1979. It is this order and that of the Trial Court which are impugned in the petition of revision.

(3.) Mr. J.S. Kotwal, learned counsel for the applicant-petitioners submitted that it was not competent for the Magistrate to issue process against the accused-petitioners after the trial of the case had commenced on the basis of the evidence led before him during the trial. He also argued that the trial Magistrate could issue process against the applicant-petitioners on the basis of the documents filed along with the challan under S.173, Cr.P.C. if he found that there was reason to proceed against the applicant-petitioners, even though the investigation agency had not sent the applicant-petitioners for trial. Learned counsel went on to contend that since neither the applicant-petitioners were named in the FIR nor in the statements recorded by the police under S. 161, Cr.P. C., the learned Magistrate had no jurisdiction to issue process against the applicant-petitioners.