Murlidhar, J. - (1.) REVISIONIST Rajiv Yadav has assailed an order of the Sessions court by which the court issued process against him,as an accused person in the case while dealing with the case of some co-accused which had been committed for trial to the court of Session. The ground given by the Sessions Judge is that the REVISIONIST was nominated in the FIR and the witnesses named in FIR fully corroborated the story with regard to him as with regard to the other accused. The argument is that this order could be only under section 319 CrPC and so could only be passed on evidence recorded during the trial and not on the basis of the police papers.
(2.) AT the initial stage the Sessions Judge in a police challan case committed by a magistrate acts under section 227. Almost the whole material before the Sessions Judge at that stage consists of the documents referred to under section 172 CrPC. This matterial can be regarded as evidence in the larger sense for this is the basis on which the court acts at that stage for a limited purpose. However, section 319 empowers the court to proceed against a person not named as an accused. "............Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person......----" not being an accused has committed any offence. In the section the word evidence seems to have been used in the narrow sense canvassed on behalf of the Revisionist. Jogendra Singh v. State of Punjab, AIR 1979 SC 339 may be referred in this connection. While referring to the power of the Sessions Court under section 319 the Supreme Court observed : "-..... Once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under section 319 (1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him (to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial........." (emphasis mine). The phrase "evidence recorded at the trail" can not include the material before the court at the stage of 227 CrPC. Therefore, the Sessions Judge could not have taken cognizance of the complicity of Revisionist until this was shown by some evidence adduced before him. This not being the case the order must be quashed. It will now be open to the Sessions Judge to either await commitment of the case against the Revisionist by the police or decide the course of action u/Sec. 319 after recording some evidence in the trial. The Revision is allowed, the order of the Sessions Judge dated 23rd October, 1980 is set aside. Revision allowed.;