SHARMA, J. - (1.) INSTANT revision filed by petitioner is directed against the order dated 7. 8. 2000 passed by Additional Sessions Judge No. 2, Kishangarhbas, whereby cognizance was taken against the accused petitioner for offence under Sections 307, 326, 324, 323, 336, 341/34 IPC , on an application filed by complainant Satyavir under Section 193 Cr. P. C.
(2.) NOTICES were issued. On behalf of complainant Mr. Amit Sharma, Advocate has appeared. Arguments were heard. Brief facts, giving rise to this revision are that one Vikram Singh lodged an F. I. R. at the Police Station Mundawar, on 15. 1. 2000, wherein it was alleged that he, Satyaveer and Shyochand were sitting at their houses. At that time Beer Singh and Sukhram came and started abusing them. Beer Singh caught hold Satyaveer and Sukhram inflicted a farsi blow on his head. On this report, Police Registered a case and after usual investigation, challan was filed against Beer Singh only for the offence under Sections 307, 326, 324, 323, 336, 341/34 IPC. But did not file challan against the petitioner Sukhram in the concerned Court. Matter was committed to Sessions Court and ultimately was heard by Additional Sessions Judge No. 2, Kishangarhbas. Before that Court, Satyaveer filed an application under Section 193 Cr. P. C. praying that Sukhram may also be impleaded as accused. That application was accepted. Learned trial Judge took cognizance against Sukhram for the offence mentioned above. Against that order, this revision is filed. Contention of learned counsel for the petitioner is that learned Additional Sessions Judge could not take cognizance under Section 193 Cr. P. C. in the present matter. Learned Sessions Judge could only proceed under Section 319 Cr. P. C. in this case. Law is settled on this point that when an F. I. R. is lodged at Police Station in which some persons are alleged to have committed offence and after investigation Police files challan only against some of them and does not file challan against the rest of the persons, then if Sessions Judge wants to proceed against those persons, who have not been charge-sheeted by the Police, then Sessions Judge can only proceed only under Section 319 Cr. P. C. and Sessions Judge is not empowered to proceed under Section 193 Cr. P. C. It is contended that the only way out for Sessions Judge was first to frame the charge against that accused, who has been charge sheeted and then after recording some prosecution evidence, he should proceed under Section 319 Cr. P. C. against those persons who have not been charge sheeted. In support of his arguments, learned counsel for the petitioner has placed reliance on Ranjit Singh vs. State of Punjab (1), wherein Hon. Supreme Court has held as under:- "once the Sessions Court take cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. There is no other power for the Sessions Court to permit addition of new person or persons to the array of the accused. However, it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers. " It is urged that Hon. Supreme Court has held the same thing in Kishori Singh and others vs. State of Bihar and another Under these circumstances, Sessions Judge can proceed only under Section 319 Cr. P. C. and not under Section 193 Cr. P. C. Therefore, the impugned order deserves to be quashed and set-aside. On the other hand, learned counsel for the complainant and learned Public Prosecutor contended that in the present matter, learned Additional Sessions Judge has passed order under Section 193 Cr. P. C. before recording any evidence. But it is contended that the order of learned Additional Sessions Judge is quite legal and revision should be dismissed.
(3.) I have heard the rival contentions of both the parties and examined the impugned order. It is clear from this order that this order is passed under Section 193 Cr. P. C. Police did not file challan against the petitioner Sukhram. Case was committed to Sessions Court. In the committal order, Sukhram was not the accused. Sukhram Petitioner was made accused by learned Additional Sessions Judge by this impugned order under Section 193 Cr. P. C. It is also clear that by that time learned Additional Sessions Judge did not record any evidence at all and has taken cognizance against this accused on the ground of the statement recorded under Section 161 Cr. P. C. by Police. In view of the judgment of Hon. Supreme Court in Kishori Singh's case (supra), it is clear that Sessions Judge could not proceed under Section 193 Cr. P. C. as it is done by him. In this case Hon. Supreme Court has held. as under:- 10. So far as those persons against whom charge-sheet has not been filed, they can be arrayed as "accused persons" in exercise of powers under Section 319 of Cr. P. C. when some evidence or materials are brought on record in course of trial or they could also be arrayed as " accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge sheet, as has been explained in the latter three Judges Bench decision. Neither of the contingencies has arisen in the case in hand. " In view of the above discussion, it is clear that when a case is committed to Sessions Court and in that committal order a person is not shown as an accused, then such person can be added as an accused only under Section 319 Cr. P. C. and it can be done only after recording some evidence. In the present matter, accused petitioner Sukhram has been added as an accused by Sessions Court on an application under Section 193 Cr. P. C. and therefore, that order is illegal and liable to be quashed and set-aside. ;