BABULAL Vs. STATE OF M P

JUDGEMENT

(1.) Short question involved in the revision is whether before commencement of the trial, trial court is competent to add additional accused.

(2.) Brief facts of the case are that after the challan was filed and at the stage of framing of charges against other co-accused, an application was filed on behalf of the complainant that there is material on record to frame charges against the petitioners. Trial Court considered the material on record and found that in the statements before police under Section 161 Cr.P.C. prima facie an offence under Sections 498-A, 306 and 201 IPC is made out against the petitioners and there is sufficient material on record to take cognizance against the petitioners for the aforesaid offences. It ordered to summon the petitioners. Petitioners instead of appearing before the trial Court have filed this revision challenging the order passed by the trial Court.

(3.) Counsel for the petitioners submitted that petitioners can be summoned only after prosecution evidence is over. If police have not filed challan then the trial Court has no jurisdiction to take cognizance against the petitioners and issue summons to them. In support of his contention, counsel for the petitioners has relied upon the judgment in the case of Kishun Singh v. State of Bihar. In this case, it is held that a court of session to which a case is committed for trial by the Magistrate cannot under Section 319 of Cr.P.C. summon a person as accused whose name is not mentioned in the police report, if no evidence is recorded by that Court. 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 additional accused appear to have been involved in the commission of the crime alongwith those already sent up for trial by the prosecution. 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. It is further held that however, the Court of Session has power under Section 193 Cr.P.C. to summon the person if his involvement in the commission of crime prima facie appears from the record of the case. There is 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, 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 thereby investing the Court of Session complete and unfettered 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 be gathered from the material available on record.