NARENDRA KUMAR DUBEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS revision-petition is directed against the order dated 2-2-1989, passed in Sessions Case No. 53 of 1988 pending in the Court of 2nd Additional Sessions Judge, Hoshangabad.

(2.) AN offence Under Section 302 of the Indian Penal Code was registered vide Crime No. 270 of 1988 against Arun Kumar and Atul Kumar who were arrested in connection with the offence for causing the death of Laxmi Prasad Brahman. The police filed a charge-sheet in the Court of Magistrate First Class and the aforesaid two accused persons were committed to the Court of Session. An application was moved on behalf of the prosecution and it was pointed out that in the statement of Satish Kumar recorded Under Section 161 of the Criminal Procedure Code and also in the affidavit of Mahesh Kumar there are allegations against them hence a case Under Section 302 of the Indian Penal Code is made out against the applicants (herein) also. The trial Court directed to arrest the applicants for their appearance in the Court on 24-2-1989 Under Section 319 of the Criminal Procedure Code.

(3.) SHRI V. K. Tankha with Shri Mukesh Agrawal, learned counsel for the applicants, argued that the Sessions Judge had no power Under Section 319, Criminal Procedure Code to make the applicants as co-accused unless there is some evidence against them. Since no evidence has been recorded by the trial Court, such an order could not have been passed. He relied on the case of Hukamaram v. State of Rajasthan, 1982 (2) Cri. LJ. 2341 and submitted that evidence for purpose of Section 319, of Criminal Procedure Code does not include statements recorded Under Sections 161, 164 and 202 of the Code of Criminal Procedure. The evidence must be recorded by the Court on the basis of which that Court gets jurisdiction Under Section 319 of the Code of Criminal Procedure. He also relied on the cases of Joginder Singh v. State of Punjab, AIR 1979 SC 339, Delhi Municipality v. Ram Kishan, AIR 1983 SC 67 and Sri Mahant Amur Nath v. State of Haryana, AIR 1983 SC 288.