YADAV, J. - (1.) THE present revision petition has been filed by four petitioners viz. Hukam Singh ,prithvi Singh, Man Mohan and Jai Kishan against the order dated 5. 5. 1994 passed by the learned Additional Sessions Judge, No. 2, Jodhpur regarding framing of charges under ss. 307,149,147 and 341, IPC. THE police has submitted a charge-sheet against petitioners No. 1,2 and 3 and investigation was kept pending under sec. 173 (8), Cr. P. C. against petitioner No. 4. .
(2.) THE aforesaid revision came up before me for admission and disposal of ad interim order dated 3. 6. 94. After hearing, Mr. P. N. Mohanani, learned counsel for the petitioners, the revision filed by petitioners No. 1 to 3 was dismissed on the aforesaid date. As regard petitioner No. 4 Jai Kishan, he was directed to move an application before the learned Sessions Judge, Jodhpur and operation of the impugned order dated 5. 5. 1994 about framing of charges against petitioner no. 4 was ordered to be kept in abeyance for a period of two months. In pursuance of my aforesaid order, an application was moved on behalf of petitioner No. 4 Jai Kishan on 4. 7. 1994 reiterating therein that since the investigation is pending under sub-section (8) of. Sec. 173, Cr. P. C, therefore, learned Additional Sessions Judge has no authority to frame charges against him. After hearing learned counsel for petitioner No. 4, learned Sessions Judge, Jodhpur has passed a detailed order indicating therein that under Sec. 193 read with Sec. 319, Cr. P. C. if the learned Sessions Judge is satisfied 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. In support of the aforesaid propositions, learned Sessions Judge has placed reliance on a case rendered by the Apex Court in Kishan Singh V. State of Bihar (1 ). In my considered opinion, the reasons given by the learned Additional Sessions Judge vide order dated 9. 8. 1994 are just and proper and does not require any interference of this Court in its revisional jurisdiction. A conjoint reading of Sec. 228,193 and 319 Cr. P. C. lead towards an irresistable conclusion that it is not a whim and fancy of a investigating officer to send a charge-sheet against few accused-persons involved in the same offence and deliberately avoid to submit charge-sheet against few of them although all the witnesses examined by him under Sec. 161, Cr. P. C. have stated about the involvement of all the accused-persons with the same role. Under Criminal Procedure Code, the investigating officer has not been given arbitrary powers. to pick and choose to send charge-sheet against few of them and withhold the charge-sheet against few of them on some pretext or other. If it is done so by the investigating officer, the courts of law are not helpless to allow to perpetuate the travesty of justice based on whim and fancy of such investigating officer. The instant revision is filed against framing of charges by the learned Additional Sessions Judge against petitioner No. 4 Jai Kishan, on the ground that the investigation is pending under sub-sec. (8) of ss. 173, Cr. P. C. and case has not been committed to the court of Sessions, therefore, the learned Additional Sessions Judge has no jurisdiction to frame the charges against him.
(3.) THE main thrust of argument of the learned counsel for the petitioner No. 4 Shri P. N. Mohanani is that Sec. 319, Cr. P. C. being a self-contained provision, the power thereunder can be exercised strictly in the terms of the Section, which permits the exercise of power only if it appears from the evidence in the course of inquiry or trial of an offence that any person besides the accused already put up for trial, has committed any offence arising from the incident in question. Mr. Mohanani, learned counsel for the petitioners further submitted before me that the power can not be exercised before evidence is led as the involvement of accused-petitioner No. 4 Jai Kishan must appear from the evidence tendered at the trial because it is at that stage, that the court must apply its mind about the complicity of the accused- petitioner No. 4 against whom the investigating officer had not submitted charge-sheet and thought it proper to withhold the submission of charge-sheet. THErefore, according to the learned counsel for petitioner No. 4 since the trial had not commenced and the prosecution had not led any evidence, the stage for exercise of power had not reached to frame charges against accused-petitioner No. 4 by the learned Additional Sessions Judge, No. 2, Jodhpur. The aforesaid argument of the learned counsel appearing on behalf of accused-petitioner No. 4 is not acceptable to me; firstly, on a plain reading of Sec. 193, Cr. P. C. as it presently stands once the case is committed to the court of Sessions by a Magistrate under the Code, the restriction placed on the power of the Court of Sessions to take cognizance of an offence as a court of Original jurisdiction gets lefted. Once the Magistrate committed the case under sec. 209,cr. P. C. to the Court of Sessions, then the bar of Sec. 193, Cr. P. C. is lifted thereby investing the court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence, which would include the summoning of the persons whose complicity in the commission of crime can prima facie be gathered from the material available on record. Secondly the issue involved in the present case regarding framing of charges against accused-petitioner No. 4 is a procedural and a matter of procedure is not likely to cause prejudice to accused-petitioner No. 4 against whom learned Additional Sessions Judge No. 2, Jodhpur has proposed to frame charges. In fact, the courts of law should accept the view which would advance the case of justice i. e. to bring the real offender to book. If such an approach is not adopted, the matter will slip into the hands of the investigating officer who may or may not send up for trial an offender even if prima facie evidence exists, which may in a given situation cause difficulties to the trial court as contemplated under Sec. 319, Cr. P. C. According to which, where in the course of an inquiry 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. In a given situation, it is highly necessary to try petitioner No. 4 alongwith petitioners No. 1,2 arid 3, who also appears to have committed the offence in a same transaction and also based on same evidence recorded by the investigating officer under Sec. 161, Cr. P. C. and other materials collected by him during the course of investigation. It would resulf in wastage of public time of the courts if trial of petitioner No. 4 is not done together with the trial of petitioners No. 1,2 and 3. It is well to remember that courts of law are not respected because they have jurisdiction to regalize injustice but people respect the courts of law that it promotes justice between the parties. ;