A.P.CHOWDHRI,J - (1.) FACTS necessary for the disposal of this revision petition are as follows.
(2.) CASE FIR No. 78 dated 11.7.1988 under Sections 302/307/148/149, Indian Penal Code, Police Station Ropar, was investigated by the police. The police in its final report submitted under Section 173, Code of Criminal Procedure, sent up five persons for trial and mentioned the names of Gian Singh and Mewa Singh in column No. 2. In due course, the case was committed for trial by learned Judicial Magistrate and it came up for consideration before learned Additional Sessions Judge, Ropar. An application was moved by the complainant praying that Gian Singh and Mewa Singh not challenged by the police may be summoned to stand their trial along with the remaining accused in the case. The application was opposed. After hearing learned Counsel for the parties and by order dated 10.4.1989, the learned Additional Sessions Judge summoned the said Gian Singh and Mewa Singh through non-bailable warrants purporting to act under Section 319, Cr.P.C. Gian Singh and Mewa Singh have challenged this order by way of this revision. It may be stated at once that the expression 'evidence' referred to in Section 319 of the Cr.P.C. has been consistently interpreted to mean evidence of a witness or witnesses recorded by the court, as distinguished from evidence in the form of statements recorded under Section 161, Cr.P.C., during investigation of the case. Admittedly, no statement of any witness was recorded by the learned Additional Sessions Judge before summoning the present petitioners. The order under revision cannot be justified as having been passed under Section 319 of the Cr.P.C. What remains to be seen is whether the order can be sustained without the aid of Section 319, Cr.P.C. In fact, learned Counsel appearing for the State did not dispute that for invoking the powers of the court under Section 319, Cr.P.C., it was necessary for the learned Sessions Judge to have recorded some evidence. This course not having been adopted, power under Section 319 could not be invoked for summoning the petitioners. Learned Counsel, however, justified the impugned order on the ground that when a challan is presented before the Magistrate and he takes cognizance under Section 190, Cr.P.C., it is open to the Magistrate to summon any person who appears from the material collected during investigation to have committed any offence. This, according to the learned Counsel, is the settled law and the powers of the Sessions Judge are in no way less than that of a Magistrate and when the case is eventually committed to the Court of Session for trial and the learned Sessions Judge takes cognizance of the case, it is open to him to summon any person on the basis of the material submitted by the police along with the final report. He relied on Randhir Singh v. Kala Singh, 1970 PLR 286. This was a reference from the Additional Sessions Judge Karnal under Section 395(2) of the Cr.P.C. One of the questions posed was whether a person accused of an offence, who was not challenged by the police, and consequently not committed for trial to the court of Session, can be summoned by the Sessions Judge and joined as an accused with the other co-accused at the trial. Dealing with the question, K.S. Tiwana, J., observed that the question could arise at two stages. The first stage was when the case after commitment came up for consideration of charge before the Court of Session. In this connection it was observed as under :- "Under the old Code, the Magistrate taking cognizance of the offence under Section 190, could summon such persons, as accused against whom charge-sheet was not submitted by the police. After the new Code came into force, that duty is now to be performed by the Sessions Judge under Sections 227 and 228."
(3.) IT is at that stage, it was further observed, that the Court, i.e., the Magistrate prior to commitment, and the Sessions Judge after the commitment, for the first time applies his mind to the documents and material collected during investigation. If as a result of the application of mind, the Sessions Judge comes to the conclusion that there are other persons named in the record of the investigating agency who have not been sent up for trial and finds that there is material on record to indicate that the accusation against such persons is well founded, it is open to him to summon such persons to join the accused who have not been challenged by the police, for trial. The learned Judge referred to his earlier decision in Cr. Misc. No. 4220-M/1977 (Amar Singh v. State of Punjab), decided on 18th November, 1977 where this question was gone into detail. The second stage for summoning by the Sessions Judge, however, arises after framing a charge under Section 319 of the Cr.P.C., i.e., after recording evidence appealing for the prosecution. Learned Counsel also referred to a Division Bench judgment of this Court in Surat Singh v. State of Punjab, 1981 CLR 547. In this case after investigation in a murder case, one of the accused was shown in column No. 2. The accused who was, thus, shown in column No. 2 moved an application to the committing Magistrate for being discharged. By a detailed order, the learned Magistrate rejected his application and committed him for trial by a separate order as against the remaining accused. The accused thus separately committed preferred a revision which was laced before the learned Judges of the Division Bench. The question for consideration was whether the order of the learned Magistrate committing the petitioner to stand his trial before Court of Sessions was without jurisdiction even though his name was mentioned by the police in Column No. 2 of the final report. The learned Judges of the Division Bench held that the aforesaid question was covered by a decision of the Supreme Court in Hareram Satpathi v. Tikkaram Aggarwal, AIR 1978 SC 1568. The question which arose in that case was whether it was open to the Magistrate to add in the array of accused any person against whom the police in its final report had stated that there was no sufficient evidence to justify forwarding his name. It was observed by the Supreme Court that the learned Magistrate after taking cognizance of the offence and on a perusal of the record was satisfied that there was a prima facie ground for issuing process against the respondents. The order of the Magistrate was held to be valid and within his powers. The learned Judges of the Division Bench also referred to an earlier Division Bench judgment of this Court reported as Fateh and others v. The State, AIR 1964 Punjab 351, holding that the Magistrate was not confined to issuing the process only to the persons challaned by the police.;