K. S. LODHA, J. - (1.) THE point involved in these two criminal revisions is common and, therefore, they are being disposed of by a common order.
(2.) IN Revision No. 308/84, the police had put up a challan against three persons Chhail Singh, Mehar Singh & Roop Singh for offences u/ss 307, 325, 323, 341, 147, 148 and 149 T. P. C. The case was committed to the Court of Sessions and the trial started. The prosecution evidence was over. The accused were examined u/s 315 and thereafter the defence witnesses were also examined and the case was fixed for final arguments. During the course of arguments, on 8. 8. 84, the learned P. P. moved an application u/s 319 Cr. P. C. for taking cognizance against Ram Singh and Padam Singh. The learned Sessions Judge heard arguments on this application also and fixed the case for pronouncement of judgment as also the order on this application on 10. 8. 84. The learned Judge by his judgment dated 22. 8 84 acquitted the accused persons of the charge u/s 307 I. P. C. but convicted the three accused who had already been tried for offences u/ss 326/34, 325/34 324/34 and 323 I. P. C. and sentenced them to various terms of imprisonment and fine. By another order of the same date, the learned Sessions Judge directed that cognizance is also taken against Abhey Singh, Padam Singh and Ran Singh for offences u/ss 326/34, 325/34, 324/34 and s. 323 I. P. C. He further observed that since all these offences are triable by the Court of Magistrate, the matter may be sent to the Chief Judl. Magistrate, Barmer to summon the three aforesaid persons and deal with them in accordance with law. It is against this order that the present petitioners have come up in revision. In Revision No. 331/84, the police had put up a challan for offences u/ss 307, 147, 148, 326, 325, 324 and 323 I. P. C. read with 149 I. P. C. against seven accused persons. They were committed to the Court of Sessions and charges regarding the aforesaid offences were framed against them. They pleaded not guilty and the trial started. On 16. 6 83, one witness Sattar was examined. When his examination-in-chief was over, the P. P. submitted an application u/s 319 Cr. P. C. before the learned Sessions Judge praying that cognizance may also be taken against the twenty persons, who are the present petitioners. The learned Sessions Judge deferred the cross-examination of the witness Sattar and by his order dated 16 6. 83, allowed the aforesaid application and took cognizance against the petitioners and issued bailable warrants against them. The petitioners came up in revision before this Court and this Court by its order dated 2. 9. 83, set aside the order of the learned Sessions Judge on two counts, namely, that the cognizance u/s 319 could have been taken only after the statements of the witnesses had been completed and the mere examination-in-chief of the witness does not amount to his evidence as such and that the order taking cognizance against the petitioners was not a speaking order as required by s. 319 (1) Cr. P. C. The matter was sent back to the learned Sessions Judge, Balotra, observing "in case, he feels, he should take cognizance against the petitioners and to summon them for trial, he will pass a fresh speaking order in the light of the observations made above. " When the matter went back to the learned Sessions Judge, he started taking evidence. The case was fixed for evidence on 8th and 9th February, 1984. However on 8. 2 84, the learned P. P. withdrew his application u/s 319 Cr. P. C. and the case proceeded for further evidence. Five witnesses were examined by 8. 5. 84 and then again the learned P. P. moved an application u/s 319 Cr. P. C, a copy of which was given to the learned counsel for the accused, who wanted time to argue the same. This application, however, was not argued till the whole prosecution evidence was over as also till the accused were examined and their defence evidence was also taken. It appears that on 18. 7. 84, 19. 7. 84 and 31. 7. 84, the learned Sessions Judge heard arguments in the sessions case and fixed the case for judgment on 2 8. 84. He by his judgment dated 2. 8. 84, convicted the accused persons who had been put up for trial before him for various offences, namely, 147, 325, 326, 324 & 323 and some of the offences with the aid of s. 149 and sentenced all the persons to various terms of imprisonment and fines. Thereafter the learned Sessions Judge proceeded to hear arguments on the application u/s 319 and by a separate order took cognizance for offences u/ss 147, 326/149, 325/149, 324/149 and s. 323 I. P. C. against the present petitioners and directed that as these offences were triable by Magistrate, the matter may be sent to the Chief Judl. Magistrate. It is against this order that Revision No. 331/84 has been filed. I have heard the learned counsel for the petitioners in both the cases as also the learned P. P. and have gone through the record of both the cases. The question which arises for consideration in these two revisions is whether after having disposed of the sessions case pending before him,could the learned Sessions Judge take cognizance against the present petitioners, who according to him, could have been tried together with the accused who had already been committed and stood tried before him. Section 319 Cr. P. C. reads as under:- " 319. Power to proceed against other persons appearing to be guilty of offence: (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. (3) Any person attending the court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re heard; (b) subject to the provisions of Cl. (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. " Now the very opening words of this section make it clear that the Court can proceed against persons who had not been accused before it only in the course of any enquiry into or trial of an offence. That means that some accused must have been put up for enquiry or trial before the court and during the course of that enquiry or trial, the court receives evidence which shows that any person who was not so put up before the court as an accused has also committed any offence for which such persons could be tried together with the accused, who had already been committed to the court, the court may proceed against such persons for the offences which he appears to have committed. Thus, when the enquiry or a trial of the accused who had been brought before the court comes to an end, the power to proceed against any other person who may appear to have committed any offence and who could have been tried together with the accused already before the court also comes to an end and the court cannot take cognizance against him at that stage because this power can be exercised by the court only in the course of any enquiry into or trial of the accused who were already before it. The trial in these cases started with the framing of the charges against the accused persons who had been committed to the Court of Sessions and ended with the judgment of the court by which they were found guilty and sentenced. Since the judgment in those cases were announced and the accused persons had been convicted and sentenced the course of the trials came to an end and with it, the powers of the court u/s 319 also came to an end.
(3.) FROM the facts stated above, in both these cases, there is absolutely no reason to think that the order u/s 319 Cr. P. C had been passed before the judgment against the accused already before the court had been announced. It may, however, be stated that in the case of Toga & others, the trial court has observed :- *********** It leaves no room for doubt that that observation could made by the learned Sessions Judge only after pronouncement of the judgment against those accused persons. Again in the order sheet of 2. 8. 84 first brief note of the judgment has been recorded and thereafter it states that arguments on the application of the P. P. (u/s 319 Cr. P. C.) were heard and by a separate order, cognizance was taken against the present petitioners. In the case of Abhey Singh & others also, the order sheet shows that first the judgment against the accused was announced thereafter the application u/s 319 Cr. P. C. was considered and by a separate order cognizance was taken against the petitioners in that case. There does not appear to be any controversy about the term "course of any enquiry or trial" and its normal meaning, must be deemed to be, as stated above but it will be profitable here to refer to Palghat Municipality vs. S. R. & O. Mills (1), a Full Bench decision of the Kerala High Court where a similar term u/s 20a of the Prevention of Food Adulteration Act came up for consideration and their Lordships observed the powers given u/s 20a can be invoked only during the trial of any person. . . . . . Then in Govindarajan vs. Food Inspector, Palni (2) a learned Single Judge of that court observed "the condition precedent for the application of s. 319 (1) is that the proceedings should be taken against a person for an offence which he appears to have committed" in the course of any inquiry into, or trial of an offence. . . . . . . . The trial of a case legally does not cease till the proceedings come to an end by the conviction or acquittal as the case may be, of the accused, and till then the proceedings are in the course of the trial", It may, of course, be pointed out that this case is reverse to the case in our hand inasmuch as in that case cogni-zance was taken before the judgment in the trial of the accused already put up before the court was announced and, therefore, it was held that the powers u/s 319 could have been exercised. In our cases, the judgments have already been announced in the trial of the accused who had been put up before the court for trial and, therefore, on the analogy of this case it has to be concluded that the trial had come to an end by the pronouncement of the judgment against those accused persons and, therefore, the court ceased trying the case and this powers u/s 319 Cr. P. C. came to an end. In other words, after the judgment against the persons put up for trial had been announced, the court lost its jurisdiction u/s 319 Cr. P. C. The conclusion that the court can proceed u/s 319 (!) only during the course of an enquiry or trial of some other accused persons already before the court is further supported by the provisions of sub-s. (4) of s. 319, which envisages that if the court decided to proceed against some other person, who is not accused before it, then the proceedings in respect of such person shall be commenced afresh and the witnesses re-heard and the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. If the court was free to proceed against those other persons after the completion of the enquiry or trial of the accused already before it, then there was no question of the proceeding being commenced against such persons afresh and the witness being re-heard and the assumption that such persons of the accused persons when the court took cognizance of the offence upon which the enquiry or trial was commenced. ;