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When the papers were laid before the Chief Judicial Magistrate,, Buxor, the first informant made an application requiring the Magistrate to exercise his powers to summon the appellant so as to sent him. to stand trial alongside the accused sent up by the police, before the. Court of Session. The Chief Judicial.Magistrate dismssed the application of the first informant which lad to a revision petition by the first informant before the Court of Session. The Court Of Session allowed the .revision petition, and desired of the Chief Judicial Magistrate issuance of warrant of arrest of the appellant to face trial. It was then the appellant's turn to move .the High Court under section 482 Cr.P.C. praying for quashing of the orders of the Court of Session. Since the same was dismissed by the High Court, the appellant is here before us inter alia contending that at the stage set for employing Section 209 Cr.P.C. the Chief Judicial Magistrate has no power under Section 319 of the Code or otherwise, to add an accused in addition to the one facing commitment. Hence this appeal by special leave.

(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."

Subjection (1) of Section 319 makes it clear that it operates in an on- going inquiry into, or trial of, an offence. In order to apply Section 319, it is thus essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the course of any inquiry or trial. Proceedings before a Magistrate under Section 209 Cr.P.C. are patently hot trial proceedings and Were never considered so at any point of time historically. There has never been any doubt on that account. Before the amendment of the Code of Criminal Procedure in the present form, commitment proceedings had the essential attributes of an inquiry and were termed as such. Now do they continue to be so is the core question, to determine and spell out the powers of the Magistrate under Section 209 Cr.P.C. If proceedings under Section 209 Cr .P.C. continue to be an inquiry, Section 319 Cr.P.C. would be obviously attracted, subject of course to deciding whether the material put forth by the. investigation could be termed as 'evidence', as otherwise no evidence is recordable by a Magistrate in such proceedings.

(Emphasis supplied) The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as "committal proceed- ings" have been abolished in cases triable by a Court of Session, The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the Public Prosecutor etc. are thus prelimi-nary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the ease before the Court of Session, rather than being an adjudicator. It is thus manifest that in the sphere of the limited functioning of the magistrate, no applica-tion of mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truth-fulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straight away with the trial and that nothing is lacking in content, as per requirements of Section 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of "inquiry" as defined in section 2(g) of the Code of Criminal Procedure, which defines that "inquiry means every inquiry, other than a trial con-ducted under this Code by a Magistrate or a the Court", because of the prelude of its being "subject to the context otherwise requiring", As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209 Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the Court of Session. This Court in State of U.P. v. Lakshmi Brahman and Another, AIR (1983) SC 439 445 took a view which prima facie does not seem to be. in accord with our Views afore-expressed. It was held as follows :

Thus we come to hold that the power under Section 209. Cr.P.C. to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an 'inquiry' and material before him not being 'evidence'. When such power was not so vested, his refusal to exercise it cannot be corrected by a, court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, summon the accused to stand trial. Along with the accused. meant to be committed for trial before it. Presently it is plain that the stage for employment of Section 319 Cr.P.C. has not arrived. The Order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319 Cr.P.C. when handling a matter under Section 209 Cr.P.C., the Court of Session, in purported exercise of revisional powers cannot obligate it to do so. The question posed at the outset is answered accordingly in this light. When the case comes after commitment to the Court of Session and evidence is recorded, it may then in exercise of its powers under Section 319 Cr.P.C. on the basis of the evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the neces-sary safeguards envisaged under sub-section (4) of Section 319, Such course is all the more necessary in the instant case when expressions on merit have extensively been made in the orders of the magistrate, the Court of Session and that of the High Court Any other course would cause serious prejudice to the appellant. We order accordingly.