- (1.) AJAYAB Singh and Ram Pratap have invoked revisional jurisdiction of this Court by way of an application under secs. 397 read with sec. 401, Cr. P. C. against an order passed by the Additional Sessions Judge, Sri, Ganganagar, in Sessoins Case No. 76 of 1976, State vs. Succha Singh and others. By this order the Additional Sessions Judge allowed the application presented by Arjunsingh complainant for summoning the petitioners to his court lor trial together with the other accused for the offences punishable under secs. 336 I. P. C. and sec. 27 of the Arms Act, which they appeared to have committed.
(2.) THE short facts giving rise to this rivision petition may be stated as follows: - Arjun Singh son of Dutta Singh Jat Sikh resident of 58 G. B. lodged a verbal report with the police at police station, Anupgarh, District Sri, Ganganagar on 24th May, 1975, at about 3 30 p. m. It was alleged in the report that his son Gajjan Singh had gone to his fields on the back of a mare in the morning on 24th May, 1975 Ajayab Singh accompanied by his associates, namely, Succha Singh, Hardayal Singh Nirmal Singh, Avtar Singh and Ram Pratap followed his son for the purpose of giving him a beating. Gajjan Singh, however, succeeded in making good his escape. He came to his house by another route and went inside after closing the doors. At about 12 in the noon, Arjun Singh's son Kulwant Singh and his grand-son Narendra Singh and his co-sharer Jagjit Singh took their tractor to the canal for the purpose of washing it. At about 1 30 p. m they were returning to the informant's house. THE aforesaid six accused persons pursued them having guns in their hands. As soon the tractor was brought to the house, Kulwant Singh shut the door and raised a hue and cry that Ajayab Singh and his companions were coming having armed with weapons. Immediately after the cries were raised by Kulwant Singh, Ajayab Singh, and his associates reached the hou?e of Arjun Singh and began to fire shots from their guns which hit the doors and windows of the house. On seeing the miscreants firing shots, Gajjansingh opened fire from his gun while sitting in the upper storey. THE shots fired from his gun hit Nirmal Singh, and Hardayal Singh causing their deaths. Avtar Singh somehow or the other escaped from there and ran away. Succha Singh and Ajayab Singh took away the guns of Nirmal Singh and Hardayal Singh deceased. If Gajjan Singh had not opened fire, Ajayab Singh and his companions would have killed the informant and his family. The oral report was reduced to writing by the A. S. I, who registered a criminal case on its basis against Ajayab Singh and others under secs. 147, 148, 336 and 307 read with Sec. 149, I. P. C. and Sec. 27 of the Arms Act and took up usual investigation into the matter. He collected necessary evidence in the case and eventually submitted a charge-sheet against Avtar Singh and Succha Singh accused only under secs, 336, I. P. C. and 27 Arms Act in the court of the Munsiff-cum-Judicial Magistrate, Raisinghnagar. The learned Magistrate committed the case to the court of Sessions for trail although the offenses alleged to have been committed by the two accused were not exclusively triable by the Sessions Judge. The commitment was made for the simple reason that the cross-case filed by the State against Succha Singh and others under sec. 302, I. P. C. had already been committed to the court of Sessions for trial. It appeared that the Sessions Judge after the case was committed to his court had transferred it to the court of the Additional Sessions Judge Sri, Ganganagar, for trial in accordance with law Arjun Singh informant presented an application before the Session Judge, Sri, Ganganagar, on 20th October, 1976 that Ajayab Singh and Ram Pratap also should be proceeded against along with Succha Singh and Avtar Singh for the offences under secs. 147, 148, 336/149, I. P. C. and Sec. 27 of the Arms Act, which they appeared to have committed In his application Arjun Singh stated that he had filed a protest-peition also before the Munsiff cum-Judicial Magistrate, Raisinghnagar and requested him to proceed against the petitioners also as the latter had been wrongly left out by the police in the course of investigation but the Munsiff cum Judicial Magistrate did not pass any order relating to the petitioners at the lime of committing the case to the court of Sessions. The learned Additional Session Judge perused the statements of the witnesses produced by the police along with the challan and came to a conclusion that the two petitioners, not being the accused; had committed offences under sec. 336, I. P. C. and 27, Arms Act for which they could be tried together with Succha Singh and Avtar Singh accused So he proceeded against the two petitioners for the aforesaid offences which they appeared to have committed. As the petitioners were not attending the court, the Additional Sessions Judge issued bailable warrants against them for procuring their attendance in the court. The petitioners appeared in the court in compliance with the warrants and requested for grant of an opportunity to file revision petition against the order by which they were proceed against. The Additional Sessions Judge allowed time to the petitioners to file a revision petition and to obtain orders for stay of further proceedings, hence this revision-petition. I have carefully gone through the record and heard Mr. S. R Bajwa, learned counsel for the petitioners, Mr. KG. Bhandari, Public Prosecutor, for the State and Mr. Bhim Raj, learned counsel for the non-petitioner complainant Arjun Singh. It has been contended by Mr. S. R. Bajwa, learned counsel for the petitioners, that the Additional Sessions Judge, Sri, Ganganagar, had no jurisdiction to take cognizance against the petitioners as a court of original jurisdiction and add them to the array of the accused persons, because neither they were charge-sheeted by the police, nor were they committed to the Court of Session by the Judicial Magistrate, Raisinghnagar. In support of his above contention, Mr. S. R. Bajwa relied upon the bar imposed by sec. 193, Cr. P. C. which reads as follows: - "except as otherwise expressly provided by this code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this code. " Mr. Bajwa further urged that a similar question arose for determination before Andhra Pradesh High Court in P. C. Lingaiah vs. State (1) and Hon'ble Justice Jayachandra Reddy took the view that the bar imposed by sec. 193, old Cr. P. C. in taking cognizance as a court of origional jurisdiction by the Sessions Court is not taken away by the new Code of Criminal Procedure and the Sessions Court is not empowered under sec. 319, Cr. P. C. to proceed against any person for the offence which he appears to have committed unless he his committed to it by a Magistrate under the Code of Criminal Procedure. Mr. K. C. Bhandari, Public Prosecutor, and Mr. Bhim Raj Purohit, on the other hand, argued that material changes have been made in sec. 193 of the Code of 1898 by the new Code of Criminal Procedure, 1973 and now if the Sessions Court finds that some other person also should have been added as one of the accused, proceedings may be taken against him in the same sessions trial although he has not been committed by the Magistrate under the Code and bis name has not been included in the charge sheet filed by the police. In support of their above proposition, the learned counsel relied upon the two changes made in sec 193, old Cr. P. C. and on the new provisions contained in section 319 (1) and (2), Cr. P. C. 1973. I have given my anxious consideration to the rival contentions. Section 193, new Cr. P. G. differs materially from section 193 of the Code of 1898. Two changes have been made in the old section 193. The first change is that the words "the case has been committed" have been substituted for the words "the accused has been committed. " The second change is the substitution of the words "under this Code; for the words "duly empowered in that behalf" Under sec. 193 of the Code of 1898 cognizance by the Court of Session could not be taken against a person in respect of whom the order of commitment had not been made because the words "accused has been committed" were there but now after the coming into force of the new Code, the Court of Session takes cognizance under sec. 193 only of an offence provided the case is committed to it by a Magistrate under the Code meaning thereby that once the Sessions Judge takes cognizance of an offence, he may proceed against any person who appears to him to be involved in the offence although such person has not been committed by the Magistrate or his name has not been mentioned by the police in the charge-sheet The substitution of the words "the case has been committed" for the words the accused has been committed" clearly indicates the intention of the Legislature that the cognizance by the Court of Session is only with reference to the offence and the reference to the accused has been dropped. Looked from another angle, the result is the same- sec 193, new Cr. P. C. is subject to the exception contained in the words "except as otherwise expressly provided by this Code". Subsections (1) and (2) of S 319, new Cr. P. C. contain new provisions which were not therein the code of 1898. Sub-section (1) of section 319, Cr. P. C. empowers the Court to issue processes against any person for the offence which he appears to have committed if it appears from the evidence that such person not being the accused has committed any offence for which he could be tried together with the accused in the case. This is an express provision contained in the Code of Criminal Procedure 1973 and, therefore, sec. 193 of the Code is subject to it Hence, after reading sec. 319 (i) along with sec. 193, Cr. P. C. I have no doubt in my mind that a Sessions Judge has power to add a person as a co-accused in the case before him even though he has not been committed to the Court of Session by a Magistrate under the Code and his name has not been mentioned in the charge sheet filed by the police, provided it appears to the Judge in the course of an inquiry into or trial of the case from the evidence that proceedings should be initiated against such a person. In view of this legal position, sec. 193, new Cr. P. C. does not impose any bar to the taking of cognizance by the Sessions Judge as a Court of original jurisdiction against any person not being the accused, if it appears from the evidence that he has committed an offence fur which he could be tried together with the accused in the case committed to it by a Magistrate urder the Code. The next contention put forward by Mr. S. R. Bajwa is that under sec. 319, Cr. P. C. the Sessions Judge could proceed against the petitioners for the offences which they appeared to have committed only in the course of any inquiry into, or trial of, an offence, if it appeared to him from the evidence that the petitioners had committed any offence for which they could be tried as co-accused. According to his submission, in the instant case, the Sessions Judge did not record any evidence before issuing processes against the petitioners for the offences which they appeared to have committed and so his order suffered from lack of jurisdiction to proceed against the petitioners on the basis of the evidence collected by the investigating agency. The above contention has no force. The word "evidence" has been defined in sec. 3 of the Evidence Act, as follows: - "evidence" means and includes - (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statement are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence. " From the above definition, it is evident that the depositions of witnesses and documents only are included in the term "evidence". These are the two principal means by which the materials, upon which the Judge has to base his decision are placed before him. Under the New Code of Criminal Procedure Chapter XVIII deals with the trial before a Court of Session. In this Chapter there is sec. 227 in which provision has been made for the summary discharge of the accused if the Sessions Judge, upon perusal of the record of the case which means and includes the statements of the witnesses recorded by the police in the course of an investigation, or by the Magistrate under the proviso to sec 202 (2) and all other relevant documents submitted by the police along with the same and after hearing the submissions of the accused and the prosecution in this behalf, considers that no sufficient ground exists for proceeding against the accused. Section 227 does not provide that the Sessions Judge shall discharge the accused upon consideration of the statements of the witnesses recorded by him at the trial and perusal of the documents produced and proved before him. Then follows section 228 which provides for cases in which the Sessions Judge does not discharge the accused under section 227 and considers that there is sufficient ground for proceeding against the accused. Under section 228 also the Sessions Judge is required to consider the statements of the witnesses recorded by the police under section 161, Cr. P. C. or by the Magistrate under the proviso to sub section (2) of S. 202, Cr. P. C. and the documents filed along with the challan for forming an opinion that there is sufficient ground for proceeding against the accused which is or is not exclusively triable by him Hence, the argument of Mr. S. R. Bajwa, learned counsel for the petitioners, that under S. 319, Cr. P. C. the Sessions Judge could proceed against a person not being an accused only on the basis of the evidence recorded by him in the course of an inquiry into, or trial of, an offence, is fallacious. The term "evidence" used in section 319 (1), Cr. P. C. includes statements of witnesses recorded by Police under Section 161, Cr. P. C. and the documents submitted to the court along with the challan. Hence, if it appears to the Sessions Judge in the course of an inquiry into, or trial of, an offence that any person not being the accused has committed an offence for which he could be tried together with the accused in the case, he may proceed against such person for he offence which he appears to have committed, Mr. S. R. Bajwa further contended that in the present case the Additional Sessions Judge, Shri Ganganagar, committed an error in proceeding against the petitioner on the basis of statements of Arjun Singh, Singhara Singh, Harendra Singh and Darbara Singh which were recorded by the police in the course of investigation as, according to him, no ground for presuming that the petitioners have committed an offence, is disclosed from the evidence of these witnesses The above contention has no force. 1 have perused the statements of these witnesses recorded by the Police in the course of investigation. At this stage, it is not desirable for me to express any definite opinion about the credibility of these witnesses, because it will be the function of the trial Judge to scrutinise their evidence with care and caution and to place or not to place reliance on their testimonies after careful scrutiny thereof. Suffice it to say that the statements of the aforesaid witnesses furnish sufficient ground for presuming that the petitioners have committed offence under sections 336, I. P. C. and 27 of the Arms Act. Consequently, (do not find any substantial ground for interference with the impugned order of the Sessions Judge in exercise of my revisional powers. The revision-petition has no force and is hereby dismissed. . ;