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PETITIONER: KISHUN SINGH AND ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT11/01/1993

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SINGH N.P. (J)

CITATION:  1993 SCR  (1)  31        1993 SCC  (2)  16  JT 1993 (1)   173        1993 SCALE  (1)79

ACT: Code  of Criminal Procedure, 1973--Section  319--Application and procedure of--Power under--Invokability. Code  of Criminal Procedure, 1973--Sections 154,  156,  173, 190, 191, 193, 200, 204, 209, 227, 228--Setting Criminal Law into   motion--Modes  of--Cognizance  of  offence--Duty   of Court--’Take Cognizance’--Meaning of.

HEADNOTE: On  the evening of 27th February, 1990, informant’s  younger brother was attacked by twenty persons including the present two  appellants with sticks, etc.  First Information  Report was  lodged at about 9.30 pm. on the same day in  which  all the  twenty  persons  were named  as  the  assailants.   The injured died in the hospital on the next day. In  course of investigation statements of the informant  and others were recorded and a charge-sheet was forwarded to the Court of the Magistrate wherein eighteen persons, were shown as  the offenders.  The names of the present two  appellants were  not included In the report, as In the opinion  of  the investigating officer their involvement in the commission of the crime was not established. The  eighteen persons named in the report were committed  to the  Court  of  Session under Section 209  of  the  Code  of Criminal Procedure to stand trial. When  the  matter  came up before  the  Sessions  Judge,  an application  was  presented under Section 319  of  the  Code praying to implead the appellants also as accused persons. To  the  show cause notice issued to  the  appellants,  they submitted that though they were not present at the place  of occurrence,  they  falsely named in  the  First  Information Report  and  the investigating officer had  rightly  omitted their names from the charge-sheet filed in Court 32 The  Sessions Judge rejected the plea of the appellants  and impleaded them as co-accused along with the eighteen others. This was done before the commencement of the actual trial. The  appellants’  revision flied before the High  Court  was dismissed. The  appellants  moved  this Court by  special  leave  under Article  136 of the Constitution of India, against the  High Court’s  order contending that unless evidence was  recorded

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during  the  course  of trial, the  Sessions  Judge  had  no jurisdiction  under  Section  319 of the  Code  of  Criminal Procedure  to take cognizance and implead the appellants  as co-accused solely on the basis of the material collected  in the  course  of  investigation and appended  to  the  report forwarded under Section 173 of the Code in view of the clear mandate of Section 193 of the Code; that since the trial had not commenced and the prosecution had not led any  evidence, the stage for the exercise of the power had not reached. Dismissing the appeal, this Court HELD  :  1.01.  On a plain reading  of  sub-section  (1)  of Section  319 there can be no doubt that it must appear  from the evidence tendered in the course of any Inquiry or  trial that  any  person not being the accused  has  committed  any offence  for  which  he could be  tried  together  with  the accused. 1.02.     This power, can be exercised only if it so appears from   the  evidence  at  the  trial  and   not   otherwise. Therefore,  the sub-section contemplates existence  of  some evidence  appearing  in the course of  trial  wherefrom  the Court can prima facie conclude that the person not arraigned before  It Is also involved in the commission of  the  crime for  which he can be tried with those already named  by  the police. 1.03.     Even  a  person who has  earlier  been  discharged would  fall  within  the sweep of  the  power  conferred  by Section  319 of the Code.  Therefore, stricto sensu  Section 319  of  the  Code cannot be invoked in  a  case  where.  no evidence  has been led at a trial wherefrom It can  be  said that  the  appellants appear to have been  involved  In  the commission of the crime along with these already sent up for trial by the prosecution. 1.04.     Section  319  covers  the  post-congnizance  stage where  in the course of an inquiry or trial the  involvement or complicity of a person or 33 persons  not named by the investigating agency has  surfaced which  necessitates the exercise of the discretionary  power conferred by the said provision. 1.05.     Section  319  can  be invoked both  by  the  Court having  original jurisdiction as well as the Court to  which the  case has been committed or transferred for trial.   The sweep  of Section 319 is, therefore, limited in that, it  is an enabling provision which can be invoked only if  evidence surfaces  in the course of an inquiry or a trial  disclosing the complicity of a person or persons other than the  person or persons already arraigned before it 1.06.     Section 319 deals with only one situation, namely, the  complicity coming to light from the evidence taken  and recorded  In  the course of an Inquiry or trial.   This  may happen  not  merely  In cases where despite the  name  of  a person   figuring  in  the  course  of   investigation   the investigatIng agency does not send him up for trial but even in  cases  where the complicity of such a  person  comes  to light for the first time in the course of evidence  recorded at the inquiry or trial. 1.07.     The scope of Its operation or the area of its play would  also be limited to cases where after  cognizance  the involvement  of any person or persons in the  commission  of the crime comes to light in the course of evidence  recorded at the Inquiry or trial.  Thus the Section does not apply to all   situations  and  cannot  be  Interpreted  to  be   the repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court 1.08.     Once the case is committed to the Court of Session

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by  a magistrate under the Code, the restriction  placed  on the  power of the Court of Session to take cognizance of  an offence as a court of original jurisdiction gets lifted.  On the magistrate committing the case under Section 209 to  the Court  of Session the bar of section 193 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 person or persons whose complicity in the  commission of  the crime can prima facie by gathered from the  material available on record. 1.09.     The stage for the exercise of power under  section 319 of the Code had not reached, inasmuch as, the trial  had not commenced and 34 evidence  was not led.  The Court of Session  bad,  however, the  power  under  Section 193 of the  Code  to  summon  the appellants  as  their involvement in the commission  of  the crime  prima  facie appeared from the record  of  the  case. Once It is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid. Joginder Singh v. State of Punjab, AIR 1979 SC 339- [1979] 2 SCR 306 and Sohan Lal & Ors. v. State of Rajasthan; [1990] 4 SCC 580. referred to. 2.01.The  two alternative modes In which  the  Criminal Law  cm be set in motion are: by the filing  of  information with  the  police  under Section 154 of  the  Code  or  upon receipt of a complaint or information by a Magistrate.   The former  would  lead to investigation by the police  and  may culminate  In a police report under Section 173 of the  Code on  the  basis  whereof  cognizance  may  be  taken  by  the Magistrate  under  Section 190(1)(b) of the  Code.   In  the latter  case, the Magistrate may either order  investigation by  the police under Section 156(3) of the Code  or  himself hold  an inquiry under Section 202 before taking  cognizance of the offence under Section 190(1) (a) or (c), as the  case may  be,  mad  with  Section 204  of  the  Code.   Once  the Magistrate takes cognizance of the offence he may proceed to try  the  offender  (except where the  case  is  transferred under section 191 or commit  him for trial under Section 209 of the Code if the offence Is triable exclusively by a Court of Session. 2.02. Once cognizance of an offence is taken It becomes  the Courts  duty to find out who the offenders really am and  if the  Court finds that apart from the persons sent up by  the police  some  other persons am involved, It Is his  duty  to proceed against those persons by summoning then because ’the summoning   of  the  additional  accused  Is  part  of   the proceeding   initiated  by  his  taking  cognizance  of   an offence,. 2.03.After cognizance is taken under Section 190(1)  of the Code, in warrant cases the Court is required to frame  a charge  containing particulars as to the time and  place  of the alleged offence and the person (if any) against whom, or the  thing (if any) in respect of which, it  was  committed. But  before  framing  the charge section  227  of  the  Code provides that if, upon a consideration of the record of  the case  and  the documents submitted therewith,  the  Sessions Judge considers that them 35 is not sufficient ground for proceeding against the accused, he shall, for reasons to be recorded, discharge the accused. 2.04.     It Is only when the Judge is of opinion that there is  ground for presuming that the accused was  committed  an

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offence  that he will proceed to frame a charge  and  record the  plea  of the accused (vide, section  228).   R  becomes Immediately  clear that for the limited purpose of  deciding whether  or not to frame a charge against the  accused,  the judge  would be required to examine the record of  the  case and the documents submitted therewith, which would  comprise the  police  report, the statements  of  witnesses  recorded under Section 161 of the Code, the seizure- memoranda,  etc. etc. 2.05.  Once the court takes cognizance of the  offence  (not the  offender) it becomes the court’s duty to rind  out  the real  offenders  and  if it comes  to  the  conclusion  that besides  the  persons put up for trial by  the  police  some others are also Involved in the commission of the crime,  it is the court’s duty to summon them to stand trial along with those  already named, since summoning them would only  be  a part of the process of taking cognizance. 2.06.     Even  though the expression ’take  cognizance’  is not  defined,  it is well settled that when  the  Magistrate takes notice of the accusations and applies his mind to  the allegations  made  In  the complaint  or  police  report  or information and on being satisfied that the allegations,  if proved,  would  constitute an offence  decides  to  initiate judicial proceedings against the alleged offender he Is said to have taken cognizance of the offence.  It is essential to bear  in mind the fact that cognizance is in regard  to  the offence and not the offender.  Mere application of mind does not  amount to taking cognizance unless the magistrate  does so for proceeding under Section 200/204 of the Code. Jamuna Singh & Ors. v. Bhadai Sak [1964] 5 SCR 37 at 4041; Raghubans Dubey v. State of Bihar [1967] 2 SCR 423  AIR 1967 SC  1167 and Hariram Satpathy v. Tikaram Agarwala, [1979]  1 SCR 349  AIR 1978 SC 1S68, referred to. S.K  Latfur  Rahman  & Ors. v. The State,  (1985)  PLJR  640 (1985) Criminal Law Journal 1238, approved. 36

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 24  of 1993. From the Judgment and Order dated 6.8.1991 of the Patna High Court in Criminal Rev.  No. 307 of 1991. Uday Sinha and M.P. Jha for the Appellants. B.B. Singh Adv. for the Respondent. The Judgment of the Court was delivered by AHMADI, J. Special leave granted. Whether a Court of Session to which a case is committed  for trial   by  a  Magistrate  can,  without  itself   recording evidence,  summon  a person not named in the  Police  Report presented  under  Section  173  of  the  Code  of   Criminal Procedure, 1973 (’The Code’ for short) to stand trial  along with  those  already  named therein, in  exercise  of  power conferred by Section 319 of the Code?  This neat question of law arises in the backdrop of the following allegations. On  the  evening  of 27th  February,  1990  Umakant  Thakur, younger  brother  of the informant, was attacked  by  twenty persons  including the present two appellants  with  sticks, etc.   A First Information Report was lodged at  about  9.30 p.m.  on the same day in which all the twenty  persons  were named as the assailants.  The injured Umakant Thakur died in the  Patna  Hospital  on the next day.   In  the  course  of investigation statements of the informant as well as  others

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came to be recorded and a charge-sheet dated 10th June, 1990 was forwarded to the Court of the learned Magistrate on 17th June,  1990  wherein  eighteen persons other  than  the  two appellants  were shown as the offenders.  The names  of  the present two appellants were not included in the said  report as  in  the  opinion  of  the  investigating  officer  their involvement   in  the  commission  of  the  crime  was   not established.  A final report to that effect was submitted on 4th  September,  1990 to the Chief  Judicial  Magistrate  on which  no  orders  were passed.   The  concerned  Magistrate committed  the eighteen persons named in the report  to  the Court  of Session, Dharbanga, under Section 209 of the  Code to stand trial.  When the matter came up before the  learned Sessions  Judge,  Dharbanga, an  application  was  presented under  Section 319 of the Code praying that the material  on record annexed to the report under Section 173 of the Code 37 revealed  the  involvement of the two  appellants  also  and hence they should be summoned and arraigned before the Court as accused persons along with the eighteen already named  in the charge-sheet.  Thereupon a show cause notice was  issued to  the  present  two appellants in  response  whereto  they contended that though they were not present at the place  of occurrence, they were falsely named in the First Information Report  and  the investigating officer had  rightly  omitted their  names  from  the charge-sheet filed  in  Court.   The learned  Sessions Judge rejected. the plea put forth by  the appellants and exercised the discretion vested in him  under Section 319 of the Code by impleading the appellants as  co- accused  along with the eighteen others.  Indisputably  this was  done before any evidence was recorded i.e.  before  the commencement of the actual trial.  The appellants  thereupon filed a Criminal Revision Application before the High  Court of Patna assailing the order passed by the learned  Sessions Judge taking cognizance against them.  The High Court  after hearing  counsel  for  the parties  dismissed  the  Revision Application relying on the ratio of the Full Bench  decision of  that  Court in S.K Laytfur Rahman & Ors. v.  The  State, [(1985)  PLJR 640 = (1985)] Criminal Law Journal 12381.   It is against this order passed by the learned Single Judge  of the High Court that the appellants have moved this Court  by special  leave  under  Article 136 of  the  Constitution  of India. The learned counsel for the appellants contended that unless evidence  was  recorded  during the course  of  trial.   The Sessions Judge had no jurisdiction under Section 319 of  the Code  to take cognizance and implead the appellants  as  co- accused solely on the basis of the material collected in the course of investigation and appended to the report forwarded under  Section 173 of the Code in view of the clear  mandate of  Section 193 of the Code.  The question which arises  for consideration  in the backdrop of the aforestated  facts  is whether  the learned Sessions Judge was justified in law  in invoking  Section 319 of the Code at the stage at which  the proceedings  were pending before him solely on the basis  of the  documents including statements recorded  under  Section 161  of  the Code during  investigation  without  commencing trial and recording evidence therein? Section 319 corresponds to Section 351 of the repealed  Code of  Criminal  Procedure, 1898 (hereinafter called  ’the  old Code’).   That  Section must be read in  juxtaposition  with Section 319 of the Code.  Before we do so it is necessary to state that Section 319 of the Code as it presently stands is the  recast version of Section 351 of the old Code based  on the recommendations

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38 made by the Law Commission in its 41st Report as under:               "It happens sometimes, though not very  often,               that  a  Magistrate  hearing  a  case  against               certain  accused finds from the evidence  that               some  person,  other than the  accused  before               him,  is also concerned. in that very  offence               or in a connected offence.  It is only  proper               that the Magistrate should "have the power  to               call   and  join  him  in  the   proceedings’.               Section 351 provides for such a situation, but               only  if that person happens to  be  attending               the  Court.   He  can  then  be  detained  and               proceeded   against.   There  is  no   express               provision in section 351 for summoning such  a               person if he is not present in Court.  Such  a               provision   would  made  section  351   fairly               comprehensive,  and  we  think  it  proper  to               expressly  provide for that  situation.  (para               24.80)               About  the  true position under  the  existing               law, there has been difference of opinion, and               we think it should be made clear.  It seems to               us  that the main purpose of  this  particular               provision is, that the whole case against  all               known   suspects  should  be  proceeded   with               expeditiously,  and convenience requires  that               cognizance  against  the newly  added  accused               should be taken in the same manner as  against               the other accused.  We, therefore, propose  to               recast section 351 making it comprehensive and               providing that there will be no difference  in               the mode of taking cognizance if a new  person               is   added   as   an   accused   during    the               proceedings." (para 24.81) It  will  be  seen from the above paragraphs  that  the  Law Commission suggested that section 351 should be recast  with a  view to (i) empowering the court to summon a  person  not present in court to stand trial along with the named accused and  (ii) enabling the court to take cognizance against  the newly added accused by making it explicit that there will be no  difference in the mode of taking cognizance against  the added accused.  Pursuant to the said recommendations made by the Law Commission Section 351 of the old Code was  replaced by Section 319 in the present Code.  We may now read the two provisions in juxtaposition "Old Code               Section  351   (1)  Any  person  attending   a               Criminal Court,               39               although  not under arrest or upon a  summons,               may be detained by such Court for the  purpose               of  inquiry  into or trial of any  offence  of               which  such  Court  can  take  cognizance  and               which,  from the evidence, may appear to  have               been  committed, and may be proceeded  against               as though he had been arrested or summoned.               (2)   When  the detention takes place  in  the               course  of an inquiry under Chapter  XVIII  or               after a trial has been begun, the  proceedings               in  respect of such person shall be  commenced               afresh, and the witnesses re-heard.               New Code               Section  319  (1) Where, in the course of  any               inquiry  into  or  trial  of  an  offence,  it

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             appears from the evidence that any person  not               being  the accused has committed  any  offence               for which such person should 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 subsection (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." 40 Section  351  of  the old Code empowered  detention  of  any person attending a Criminal Court, although not under arrest or  upon a summon, for the purpose of inquiry into or  trial of any offence of which such Court could take cognizance, if it  appeared from the evidence so recorded that he may  have committed an offence along with others.  Sub-section (2)  of section  319  came  to be inserted in response  to  the  Law Commission’s recommendation in paragraph 24.80 of its report to enlarge the Court’s power to arrest or summon any  person who  appears to be involved in the commission of  the  crime along with others but who is not present in court.  Next, it is  significant to note that the words ’of which such  Court can  take cognizance’ have been omitted by the  Legislature. Instead  the newly added sub-section 4(b)  expressly  states that  the case against the added accused may proceed  as  if such  person had been an accused person when the court  took cognizance  of  the  offence.  This takes care  of  the  Law Commission’s   recommendation  found  in   paragraph   24.81 extracted earlier.  It is, therefore, manifest that  Section 319 of the Code is an improved version of Section 351 of the old Code; the changes having been introduced therein on  the suggestion of the Law Commission to make it comprehensive so that even persons not attending the Court can be arrested or summoned as the circumstances of the case may require and by deleting the words ’of which such Court can take cognizance’ and   by  adding  clause  (b)  it  is  clarified  that   the impleadment  of  a new person as an accused in  the  pending proceedings  will not make any difference insofar as  taking of cognizance is concerned.  In other words it is made clear that cognizance against the added person would be deemed  to have been taken as originally against the other  co-accused. It is thus clear that the difficulty in regard to taking  of cognizance  which would have been experienced by  the  Court has  been done away with.  The section comes into  operation at  the post-cognizance stage when it appears to  the  court from  the  evidence recorded at the trial  that  any  person other  than  those named as offenders appears to  have  com- mitted any offence in relation to the incident for which the co-accused are on trial.

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But  counsel for the appellants contended that  section  319 being  a self contained provision, the power thereunder  can be exercised strictly in terms of the section which  permits the exercise of power only if ’it appears from the evidence’ in  the course of the 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.  Counsel submitted that the 41 power  cannot be exercised before ’evidence’ is led  as  the involvement  of  the person 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 person not arraigned before it in the commission of the crime.  He, therefore,  submitted  that in the present  case  since  the trial had not commenced and the prosecution had not led  any evidence,  the stage for the exercise of the power  had  not reached. In order to appreciate the contention urged before us, it is necessary  to notice a few provisions.  Section 190  of  the Code  sets out the different ways in which a Magistrate  can take  cognizance of an offence, that is to say, take  notice of  an  allegation disclosing commission of a crime  with  a view  to setting the law in motion to bring the offender  to book.  Under this provision cognizance can be taken in three ways  enumerated  in clauses (a), (b) & (c) of  the  offence alleged to have been committed.  The object is to ensure the safety  of a citizen against the vagaries of the  police  by giving him the right to approach the Magistrate directly  if the police does not take action or he has reason to  believe that  no  such  action will be taken by  the  police.   Even though  the expression ’take cognizance’ is not defined,  it is well settled by a catena of decisions of this Court  that when  the  Magistrate takes notice of  the  accusations  and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence  decides to   initiate  judicial  proceedings  against  the   alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance  is in  regard  to  the  offence and  not  the  offender.   Mere application  of  mind does not amount to  taking  cognizance unless  the magistrate does so for proceeding under  Section 200/204 of the Code /See Jamuna Singh & Ors. v. Bhadai  Sah, [1964] 5 SCR 37 at 40-41.  It is, therefore, obvious that if on  receipt of a complaint under Section 154 of the Code  in regard to a cognizable offence, an offence is registered and the concerned Police Officer embarks on an investigation and ultimately submits a police report under Section 173 of  the Code, the Magistrate may take cognizance and if the  offence is  exclusively  triable  by a Court of  Sessions,  he  must follow  the procedure set out in Section 209.  That  section provides that when in a case instituted on a police  report, as  defined  in  section 2(r),  or  otherwise,  the  accused appears  or is brought before the Magistrate and it  appears to the Magistrate that the offence is triable 42 exclusively  by  the Court of Session, he shall  commit  the case  to  the  Court of Session and remand  the  accused  to custody.   Section 193 of the Old Code and as  it  presently stands have a bearing and may be extracted at this stage:               "Old Code               Section 193  Cognizance of offences by  Courts               of  Session  (1) Except as othewise  expressly               provided by this Code or by any other law  for

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             the  time being in force, no Court of  Session               shall  take  cognizance of any  offence  as  a               Court  of  original  jurisdiction  unless  the               accused   has  been  committed  to  it  by   a               Magistrate duly empowered in that behalf.               New Code               Section  193  Cognizance of offences by  Court               of  Sessions  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." It may immediately be noticed that under the old provision a Court of Session could not take cognizance of an offence  as a  Court  of original jurisdiction unless  the  accused  was committed  to  it  whereas under the recast  section  as  it presently  stands  the  expression  the  accused  has   been replaced  by  the words the case.  As has been  pointed  out earlier.   Under section 190 cognizance has to be taken  for the offence and not the offender: so also under section  193 the emphasis now is to the committal of the case and no more on  the offender.  So also section 209 speaks of  committing the case to the Court of Session.  On a conjoint reading  of these  provisions it becomes clear that while under the  Old Code  in  view  of the language of  section  193  unless  an accused was committed to the Court of Session the said court not  take  cognizance of an offence as a court  of  original jurisdiction;  now under section 193 as it presently  stands once the case is committed the restriction disappears.  More of it later but first the case law. Section  193 of the Old Code placed an embargo on the  Court of Session from taking cognizance of any offence as a  Court of original jurisdiction unless the accused was committed to it by a Magistrate or there 43 was  express provision in the Code or any other law  to  the contrary.   In the context of the said provision this  Court in  P.C  Gulati  v. L.R. Kapur, [1966] I SCR  560  at  p.568 observed as under;               "When  a  case is committed to  the  Court  of               Session,  the  Court of Session has  first  to               determine  whether the commitment of the  case               is  proper.   If  it be of  opinion  that  the               commitment is bad on a point of law, it has to               refer  the  case to the High  Court  which  is               competent   to  quash  the  proceeding   under               section 215 of the Code.  It is only, when the               Sessions Court considers the commitment to  be               good in law that it proceeds with the trial of               the  case.   It is in this  context  that  the               Sessions Court has to I take cognizance of the               offence  as a Court or  original  jurisdiction               and it is such a cognizance which is  referred               to in section 193 of the Code." In  Joginder  Singh v. State of Punjab, AIR 1979  SC  339  = [1979]  2  SCR 306 the facts were that a criminal  case  was registered  against  Joginder Singh and four others  on  the allegation  that they had committed house tresspass and  had caused  injuries to two persons.  During  the  investigation the   police  found  Joginder  Singh  and  Ram  Singh   (the appellants  in  the  case) to be innocent  and  submitted  a charge-sheet against the remaining three persons only.   The learned Magistrate who held a preliminary inquiry  committed

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the  three  accused to the Court of  Session  whereupon  the Additional Sessions Judge, Ludhiana, framed charges  against them.   At  the trial evidence of two witnesses came  to  be recorded  during the course of which the complicity  of  the two appellants came to light.  Thereupon, at the instance of the informant the Public Prosecutor moved an application for summoning and trying the two appellants along with the three accused  who were already arraigned before the  court.   The application  was opposed principally on the ground that  the Sessions  Judge had no jurisdiction or power to  summon  the two  appellants and direct them to stand their  trial  along with  the three persons already named in the police  report. This  objection  was negatived and  the  learned  Additional Sessions  Judge passed G an order, presumably under  section 319  of  the  Code,  directing the  attendance  of  the  two appellants  and  further  directing that  they  stand  trial together with the three accused arraigned before the  court. The High Court dismissed the Revision Application  whereupon the appellants approached this Court by special leave.   The real question centered round the 44 scope  and  ambit of section 319 of the  Code.   This  Court after considering the relevant provisions of the Old Code in juxtaposition  with  similar  provisions  in  the  New  Code observed as under :               "It will thus appear clear that under  Section               193  read with Section 209 of the Code when  a               case  is committed to the Court of Session  in               respect  of  an offence the Court  of  Session               takes cognizance of the offence and not of the               accused   and  once  the  Sessions  Court   is               properly seized of the case as a result of the               committal order against some accused the power               under  Section 319(1) can come into  play  and               such Court can add any person, not an  accused               before it, as an accused and direct him to  be               tried  along  with the other accused  for  the               offence  which such added accused  appears  to               have  committed from the evidence recorded  at               the trial.’ This view came to be reiterated in a recent decision of this Court  in Sohan Lal & Ors. v. State of Rajasthan,  [1990]  4 SCC  580.   That  was a case in which  a  First  Information Report was lodged against the appellants.  On completion  of the investigation the police forwarded a charge- sheet under section  173  of the Code.  The  Judicial  Magistrate  after taking  cognizance ordered discharge of appellants 4  and  5 and directed that the remaining 3 appellants be charged only under  section 427 IPC and not under Sections 147, 323,  325 and  336 in respect whereof the charge-sheet was  forwarded. The  Additional Public Prosecutor, therefore,  submitted  an application signed by one of the victims praying that on the basis of the entire evidence a prima facie case was made out under sections 147, 325 and 336, IPC and requested that  the charge  be  amended  and  the  accused  persons  be  charged accordingly.   After recording the plea of the  accused  the prosecution  led  evidence  and  examined  witnesses.    The learned  Magistrate  after  hearing  the  Additional  Public Prosecutor and counsel for the defence and after  discussing the  evidence took cognizance of the other offences  against the  appellants.  The Revision Application preferred to  the High Court was dismissed.  This Court after considering  the relevant provisions of the Code concluded as under :               "Section  319  empowers the court  to  proceed               against   persons   not  being   the   accused

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             appearing  to  be  guilty  of  offence.   Sub-               sections  (1) and (2) of this section  provide               for a situation when               45               a court hearing a case against certain accused               person  finds  from A the evidence  that  some               person  or  persons, other  than  the  accused               before  it, is or are also connected  in  this               very offence or any connected offence; and  it               empowers  the  court to proceed  against  such               person or persons for the offence which he  or               they  appears or appear to have committed  and               issue  process for the purpose.   It  provides               that   the  cognizance  against  newly   added               accused  is deemed to have been taken  in  the               same  manner  in which  cognizance  was  first               taken  of  the  offence  against  the  earlier               accused.   It  naturally deals with  a  matter               arising  from  the course  of  the  proceeding               already  initiated.  The scope of the  section               is wide enough to include cases instituted  on               private complaint.’ The learned counsel for the appellants submitted that once a Court  of  Session  takes cognizance in  the  limited  sense explained in Gulati’s case, the power to summon or arrest  a person not named in the police report can be exercised under Section  319  of the Code only if the  condition  precedent, namely,  the  commencement  of the trial  and  recording  of evidence, is satisfied.  This, he contends, is manifest from the  last-mentioned  two  cases  in  which  the  power   was exercised  only after the condition precedent was  satisfied and  the complicity of a person not shown as an offender  in the police report surfaced from the evidence recorded in the course of the trial.  That prima facie appears to be so  but it  must  at the same time be remembered that  in  both  the cases  the Court was not called upon to consider  whether  a Court  of  Session to which a case is  committed  for  trial under Section 209 of the Code can, while taking  cognizance, summon a person to stand trial along with others even though he  is not shown as an offender in the police report if  the court on a perusal of the case papers prima facie finds  his complicity  in the commission of the crime and the  omission of his name as an offender by the investigating officer  not proper. On  a plain reading of sub-section (1) of Section 319  there can  be  no  doubt that it must  appear  from  the  evidence tendered  in  the course of any inquiry or  trial  that  any person  not being the accused has committed any offence  for which  he  could be tried together with the  accused.   This power, it seems clear to us, can be exercised only if it  so appears  from the evidence at the trial and  not  otherwise. Therefore, this sub-section contemplates 46 existence of some evidence appearing in the course of  trial wherefrom the Court can prima facie conclude that the person not  arraigned before it is also involved in the  commission of  the crime for which he can be tried with  those  already named  by  the police.  Even a person who has  earlier  been discharged  would  fall  within  the  sweep  of  the   power conferred  by Section 319 of the Code.   Therefore,  stricto sensu,  Section 319 of the Code cannot be invoked in a  case like  the  present one where no evidence has been led  at  a trial wherefrom it can be said that the appellants appear to have been involved in the commission of the crime along with those already sent up for trial by the prosecution.

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But  then  it must be conceded that Section 319  covers  the postcognizance  stage where in the course of an  inquiry  or trial  the involvement or complicity of a person or  persons not  named  by the investigating agency has  surfaced  which necessitates   the  exercise  of  the  discretionary   power conferred by the said provision.  Section 319 can be invoked both  by the Court having original jurisdiction as  well  as the   Court  to  which  the  case  has  been  committed   or transferred  for  trial.   The  sweep  of  Section  319  is, therefore,  limited,  in that, it is an  enabling  provision which can be invoked only if evidence surfaces in the course of  an  inquiry or a trial disclosing the  complicity  of  a person  or persons other than the person or persons  already arraigned before it.  If this is the true scope and ambit of Section  319 of the Code, the question is whether  there  is any  other  provision in the Code which  would  entitle  the Court to pass a similar order in similar circumstances.  The search  for such a provision would be justified only on  the premiss  that  Section 319 is not exhaustive  of  all  post- cognizance stituations.  Now as pointed out earlier  Section 319  deals with only one situation, namely,  the  complicity coming to light from the evidence taken and recorded in  the course  of an inquiry or trial.  This may happen not  merely in cases where despite the name of a person figuring in  the course  of investigation the investigating agency  does  not send him up for trial but even in cases where the complicity of  such a person comes to light for the first time  in  the course  of evidence recorded at the inquiry or trial.   Once the  purport of Section 319 is so understood it  is  obvious that  the  scope of its operation or the area  of  its  play would  also be limited to cases where after  cognizance  the involvement  of any person or persons in the  commission  of the crime comes to light in the course of evidence  recorded at the Inquiry or trial.  Thus the Section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or 47 persons  to stand trial along with others  arraigned  before the Court. The  question then is whether dehors Section 319  the  Code, can  similar power be traced to any other provision  in  the Code  or  can such power be implied from the scheme  of  the Code?    We  have  already  pointed  out  earlier  the   two alternative  modes in which the Criminal Law can be  set  in motion:  by the filing of information with the police  under Section  154 of the Code or upon receipt of a  complaint  or information  by  a  Magistrate.  The former  would  lead  to investigation  by the police and may culminate in  a  police report  under Section 173 of the Code on the  basis  whereof cognizance  may  be taken by the  Magistrate  under  Section 190(1)(b)  of the Code.  In the latter case, the  Magistrate may  either order investigation by the police under  Section 156(3) of the Code or himself hold an inquiry under  Section 202  before taking cognizance of the offence  under  Section 190(1)(a) or (c), as the case may be, read with Section  204 of  the Code.  Once the Magistrate takes cognizance  of  the offence he may proceed to try the offender (except where the case  is  transferred under Section 191) or commit  him  for trial  under  Section  209 of the Code  if  the  offence  is triable  exclusively by a Court of Session.  As pointed  out earlier  cognizance  is  taken of the offence  and  not  the offender.  This Court in Raghubans Dubey v. State of  Bihar, [1967]  2  SCR  423  = AIR 1967 SC  1167  stated  that  once cognizance  of  an offence is taken it becomes  the  Court’s duty  ’to find out who the offenders really are’ and if  the

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Court  finds  ’that apart from the persons sent  up  by  the police  some  other person are involved, it is his  duty  to proceed  against  those persons’ by summoning  them  because ’the  summoning  of the additional accused is  part  of  the proceeding   initiated  by  his  taking  cognizance  of   an offence’.  Even after the present Code came into force,  the legal  position has not undergone a change; on the  contrary the  ratio of Dubey’s case was affirmed in Hariram  Satpathy v.  Tikaram  Agarwala [1979] 1 SCR 349 = AIR 1978  SC  1568. Thus far there is no difficulty. We have now reached the crucial point in our journey.  After cognizance  is  taken under section 190(1) of the  Code,  in warrant  cases  the  Court is required  to  frame  a  charge containing  particulars  as  to the time and  place  of  the alleged offence and the person (if any) against whom, or the thing  (if any) in respect of which, it was committed.   But before  framing the charge section 227 of the Code  provides that if, upon a consideration of the record of the case  and the documents submitted therewith, the 48 Sessions Judge considers that there is not sufficient ground for proceeding against the accused, he shalt for reasons  to be  recorded,  discharge the accused.  It is only  when  the Judge is of opinion that there is ground for presuming  that the accused has committed an offence that he will proceed to frame  a  charge and record the plea of the  accused  (vide, section  228).   It becomes immediately clear that  for  the limited purpose of deciding whether or not to frame a charge against the accused, the judge would be required to  examine the   record  of  the  case  and  the  documents   submitted therewith,  which  would  comprise the  police  report,  the statements  of witnesses recorded under section 161  of  the Code, the seizure-memoranda, etc., etc.  If, on  application of  mind  for  this limited purpose, the  Judge  finds  that besides the accused arraigned before the him the  complicity or  involvement  of others in the commission  of  the  crime prima  facie surfaces from the material placed  before  him, what course of action should he adopt? The  learned counsel for the State, therefore,  argued  that even  if  two  views are possible, this being  a  matter  of procedure  not  likely to cause prejudice to the  person  or persons proposed to be summoned, the court should accept the view  which would advance the cause of justice,  namely,  to bring the real offender to book.  If such an approach is not adopted,  the  matter  will  slip  into  the  hands  of  the investigation  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 avoidable difficulties  to  the trial  court.  Take for example a case where two  persons  A and  B attach and kill X and it is found from  the  material placed  before the Judge that the fatal blow was given by  A whereas  the blow inflicted by B had fallen on  a  non-vital part of the body of x. If A is not challenge by the  police, the  Judge may find it difficult to charge B for the  murder of  X with the aid of section 34, IPC.  If he cannot  summon A, how does he frame the charge against B? In such a case he may  have  to  wait till evidence is laid at  the  trial  to enable him to invoke section 319 of the Code.  Then he would have  to commence the proceedings afresh in respect  of  the added  accused  and recall the witnesses.   This,  submitted counsel  for the State, would result in avoidable  waste  of public  time.   He,  therefore, submitted  that  this  Court should place a construction which would advance the cause of justice rather than stiffle it. We  have  already indicated earlier from the ratio  of  this

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Court’s  decisions  in  the cases  of  Raghubans  Dubey  and Hariram that once the court 49 takes  cognizance  of  the offence  (not  the  offender)  it becomes the court’s duty to find out the real offenders  and if  it comes to the conclusion that besides the persons  put up for trial by the police some others are also involved  in the  commission  of  the crime, it is the  court’s  duty  to summon  them to stand trial along with those already  named, since summoning them would only be a part of the process  of taking cognizance.  We have also pointed out the  difference in  the language of section 193 of the two Codes; under  the old  Code  the Court of Session was  precluded  from  taking cognizance   of   any  offence  as  a  Court   of   original jurisdiction unless the accused was committed to it  whereas under  the  present  Code  the embargo  is  diluted  by  the replacement of the words the accused by the words the  case. Thus,  on  a plain reading of section 193  as  it  presently stands once the case is committed to the Court of Session by a  magistrate under the Code, the restriction placed on  the power  of  the  Court of Session to take  cognizance  of  an offence as a court of original jurisdiction gets lifted.  On the magistrate committing the case under section 209 to  the Court  of Session the bar of section 193 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 person or persons whose complicity in the  commission of  the crime can prima pacic be gathered from the  material available  on record.  The Full Bench of the High  Court  of Patna  rightly appreciated the shift in section 193  of  the Code from that under the old Code in the case of S.K  Lutfur Rahman (supra) as under :               "Therefore,  what  the law under  section  193               seeks to visualise and provide for now is that               the  whole  of the incident  constituting  the               offence  is to be taken cognizance of  by  the               Court  of Session on commitment and  not  that               every individual offender must be so committed               or  that  in case it is not so done  then  the               Court of Session would be powerless to proceed               against persons regarding whom it may be fully               convinced  at the very threshold of the  trial               that they are prima facie guilty of the  crime               as well.               ***   ***   ***   ***               Once  the case has been committed, the bar  of               section 193 is removed or, to put it in  other               words, the condition therefore               50               stands satisfied vesting the Court of  Session               with  the fullest jurisdiction to  summon  and               individual accused of the crime." We are in respectful agreement with the distinction  brought out between the old section 193 and the provision as it  now stands. For the reasons stated above while as are in agreement  with the  submission  of the learned counsel for  the  appellants that the stage for tile exercise of power under section  319 of the Code had not reached, inasmuch as, the trial had  not commenced  and  evidence  was not led, since  the  Court  of Session  had  the  power under section 193 of  the  Code  to summon the appellants as their involvement in the commission of  the  crime prima facie appeared from the record  of  the case, we see no reason to interfere with the impugned  order

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as  it is well-settled that once under it is found that  the power  exists the exercise of power under a wrong  provision will   not  render  the  order  illegal  or  invalid.    We, therefore, dismiss this appeal. V.P.R.                             Appeal dismissed. 51