H.N.Kapoor - (1.) THIS revision is directed against the order dated 10-10- 1977, summoning the applicant under Sec. 411 IPC in case which was already pending, by invoking the powers under Section 319 CrPC (new). One Kapil Deo Singh was being tried on the charge that he had retained the stolen bullock belonging to the complainant, Arjun Ahir. In the defence he had stated that he purchased it from the present applicant, Rajendra Singh, brother of the accused and that he possessed a receipt for the same. In this case charge-sheet by the police was submitted against Kapil Deo Singh on 4-9-1972 and the charge had been read over to him on 12-7-1973. The trial had thus, started much before the commencement of the new Code. Evidence in this case was over on 23-9-1977 and the judgment was to be delivered on 7-10- 1977. The learned Magistrate instead of delivering the judgment, passed the impugned order on 10-10-1977.
(2.) THE learned counsel for the applicant has argued that the case was to be continued in accordance with the provisions of the Code of Criminal Procedure, 1898. Under the old CrPC the corresponding provision was Section 351. Under this provision a Court can detain a person, who was already in attendance and take cognizance against him and proceed. THE provisions of Section 351 (i) and (ii) corresponded to the provisions under Section 319 (iii) and (iv) (new). THE provisions under Section 319(1) and (2) are quite new. THEy are as follows :- "319(1). Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid." Admittedly, Rajendra Singh was not present in Court and the summonses were ordered to be issued against him under Section 319(2) CrPC (new). In my opinion, it was not open to the learned Magistrate to invoke the powers under Section 319 (1) and (2) CrPC (new) in a case which was already pending. THE order passed by the trial Court is thus clearly illegal and cannot be sustained. In the result the revision is allowed. The order of the learned Magistrate dated 10-10-1977 summoning the applicant is set aside. It will be possible for the learned Magistrate now to proceed with the case against the original accused, Kapil Deo Singh expeditiously. Revision allowed.;