ORDER
Chandramauli K. Prasad, J.
1. This application has been filed for quashing the order dated 6-9-2000 passed by the 3rd Additional Sessions Judge, Munger in Sessions Case No. 685 of 1998 whereby in exercise of power under Section 319 of the Code of Criminal Procedure it had summoned the petitioners to face trial in a case under Section 302/34 of the Indian Penal Code and 27 of the Arms Act.
2. On the basis of a report given to the police, Mehus P. S. Case No. 219/97 dated 29-8-1997 was registered under Section 302/34 of the Indian Penal Code and 27 of the Arms Act in which petitioners Munna Singh and Arun Singh are named as accused in the First Information Report, besides Amir Singh and Ranjit Singh; The police, after investigation, submitted charge sheet dated 18-3-1998 against the aforesaid two persons under Section 302/34 of the Indian Penal Code and 27 of the Arms Act but kept the investigation pending in respect of these two petitioners. Lateron, police submitted final report and did not sent up the petitioners for trial. Case was ultimately committed to the Court of Session. During the trial. P.W. 1 Raja Ram Singh was examined and after his examination, prosecution filed an application for summoning these petitioners to face trial in exercise of the power under Section 319 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’). Eighth Additional Sessions Judge, Munger, by order dated 6-9-2000 passed in Sessions Case No. 685 of 1998, acceded to the prayer of the prosecution and issued summons to the petitioners to face trial under Section 319 of the Code. While doing so, he has not only referred to the evidence collected during the course of trial but also referred to the statements of the witnesses examined during the course of investigation and the statements of the witnesses recorded under Section 164 of the Code. The learned Judge observed that the participation of the petitioners in the crime is very much apparent from the materials on the record and it further observed that “chargesheet was not submitted against them for some inexplicable reasons.
3. Mr. Madhup, appearing on behalf of the petitioners submits that while exercising the power under Section 319 of the Code, the Court cannot look into the materials collected during the course of investigation for summoning a person not being the accused. According to him, Court has to confine itself to the evidence recorded during the course of trial. In support of his submission, Mr. Madhup has placed reliance on a judgment of the Supreme Court in the case of Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose AIR 1963 SC 1430 : (1963 (2) Cri LJ 397) and my attention has been drawn to the following passage from paragraph 10 of the judgment which reads as follows:–
10.– xxx In the case before us, an investigation by a police officer was not ordered by the learned Sub-Divisional Magistrate, but an enquiry by a Magistrate, First Class. He had, therefore, to consider the result of this enquiry. It was not open to him to consider in this connection the statements recorded during the investigation by the police on the basis of the first information report lodged by Panchanan Roy or on the basis of any evidence adduced before him during the enquiry arising out of the complaint made by Mahendra Singh. All these were matters extraneous to the proceedings before him.
4. Another decision on which strong reliance has been placed, is the judgment of the Supreme Court in the case of Raj Kishore Prasad v. State of Bihar (1996) 4 SCC 495 : 1996 AIR SCW 2273: (1996 Cri LJ 2523) and my attention has been drawn to para 16 of the judgment which reads as follows:–
Thus we come to hold that the power under Section 209, Cr. P.C. to summon a now offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an ‘inquiry’ and material before him not being ‘evidence’. When such power was not so vested, his refusal to exercise it cannot be corrected by a Court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, summon the accused to stand trial, along with the accused meant to be committed for trial before it. Presently it is plain that the stage for employment of Section 319, Cr. P.C. has not arrived. The order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319, Cr. P.C. when handling a matter under Section 209, Cr. P.C, the Court of Session, in purported exercise of revisional powers cannot obligate it to do so. The question posed at the outset is answered accordingly in this light. When the case comes after commitment to the Court of Session and evidence is recorded, it may then in exercise of its power under Section 319, Cr. P.C. on the basis of the evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the necessary safeguards envisaged under Sub-section (4) of Section 319. Such course is all the more necessary in the instant case when expressions on merit have extensively been made in the orders of the Magistrate, the Court of Session and that of the High Court. Any other course would cause serious prejudice to the appellant. We order accordingly.
5. Mr. Kumar Veerendra Narayan, Additional Public Prosecutor, however, appearing on behalf of the State submits that after the commitment of the case to the Court of Sessions, evidence was adduced on behalf of the prosecution and only thereafter an application to summon the petitioners to face trial under Section 319 of the Code was filed and the learned Judge did not commit any illegality in considering the materials collected during the course of investigation, while exercising its power under Section 319 of the Code. Section 319 of the Code confers power to the Court to proceed against other persons appearing to be guilty of offence. Section 319 (1) of the Code which is relevant for the purpose reads as follows:
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.
xxxxxx xxx
6. From a plain reading of Section 319 of the Code, it is evident that the power to summon to face trial of any person not being the accused can be exercised when from the evidence it appears that such person had committed the offence. In view of the decision of the Supreme Court in the case of Raj Kishore Prasad (1996 Cri LJ 2523) (supra), one thing is clear that power under Section 319 of the Code can be exercised by the trial Court only after the evidence is recorded but what would happen if the Court while exercising its power under Section 319 of the Code, not only refers to the evidence collected during the course of trial but also considers material collected during the course of investigation. In this case, I am faced with this situation. The expression ‘evidence’ has been defined under Section 3 of the Indian Evidence Act, which reads as follows:–
Evidence”:– “evidence” means and includes (1) All the statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence, (2) All documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
7. The statement recorded during the course of investigation by the Investigating Agency has not been recorded with the permission of the Court or it was required to be made by the witnesses of the direction of the Court. In view of the aforesaid, I am of the opinion that the materials collected during the course of investigation, cannot come within the expression ‘evidence’ as provided under Section 319 of the Code and hence such material is not relevant, for exercise of power under Section 319 of the Code. Thus, the learned Judge has considered undoubtedly irrelevant material but that itself in my opinion would not vitiate the impugned order, as after ignoring the materials collected during the course of investigation the evidence recorded during the course of trial, sufficiently, shows the complicity of the petitioners in the crime.
8. Mr. Madhup then contends that the evidence collected during the trial is insufficient to summon the petitioners to face the trial under Section 319 of the Code. I am not, at all impressed by this submission of the learned counsel. P.W. 1 Raja Ram Singh, in his evidence during the course of trial, has claimed himself to be an eye-witness to the occurrence and has specifically stated about the participation of the petitioners in the same. It is well settled that it is the quality of the evidence which is relevant for decision and not its quantity. This witness has claimed to be an eye-witness to the occurrence and has named these petitioner who according to the witnesses had participated in the crime. Hence it cannot be said that the evidence on the record is insufficient to summon the petitioners to face trial under Section 319 of the Code.
9. Mr. Madhup points out that after investigation of the case, the police submitted final report and these petitioners were not sent up for trial. He emphasises that the said report of the police has been accepted by the Court which in sum and substance, means that the petitioners’ had been discharged from the case. Accordingly, his submission is that once the petitioners have been discharged from case, power under Section 319 of the Code, cannot be exercised. In support of his submission the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Nisar v. State of U.P. reported in 1995 Cri LJ 2118 : (1995 AIR SCW 1493) and my attention has been drawn to the following paragraph from the said judgment:
8. As regards to the second contention of the appellants it must be said that in view of the plain and unambiguous language of Section 319 of the Code, the earlier quoted reason which, weighed with the High Court in sustaining the order of the learned Judge is patently incorrect. The power under Section 319(1) can be exercised only in these cases where involvement of persons other than those arraigned in the charge-sheet comes to light in the course of evidence recorded during the enquiry or trial. As that stage has not yet reached the appellants could not have been summoned invoking Section 319 of the Code.
10. Another decision on which strong reliance has been placed, is the judgment of the Supreme Court in the case of Sohan Lal v. State of Rajasthan AIR 1990 SC 2158 : (1990 Cri LJ 2302) (Dish). My attention has been drawn to the following passage from para 33 of the said judgment, which reads as follows:
33. The above ‘views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of Section 319 had to be read in consonance with the provisions of Section 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Section 398 of the Code may not be lost sight of.
11. Yet another decision on which reliance has been placed is the judgment of the Supreme Court in the case of Ranjit Singh v. State of Punjab AIR 1998 SC 3148 : (1998 Cri LJ 4618) and my attention has been drawn to paragraph 17 of the judgment, which reads as follows:
17. It is clear that during the said stage, the Court of Session can deal only with the accused who is referred to in Section 209. The accused who can appear or can be brought before a Sessions Court at that stage is only that accused who is referred to in Section 209. Section 227 deals with the power of the Court to decide whether that accused is to be discharged or not. If he is not discharged, the Sessions Court is obliged to frame a charge against that accused as per Section 228 of the Code. Thereafter the plea of that accused has to be recorded as enjoined by Section 229. The stage of evidence collection commences only next (vide Sections 230 and 231 of the Code).
12. Neither on principle nor precedent I am inclined to accept the submission of Mr. Madhup Section 319 of the Code contemplates that in course of any inquiry or trial, it appears from the evidence that any person not being the accused had committed any offence, the Court can proceed against such person together with the other accused. The question, therefore, is as to whether a person who has been shown as an accused of the first information report or whose name surfaces during the course of investigation, but processes are not issued against such person, whether such persons come within the expression “any person not being the accused”. In other words when in a case, in which charge-sheet has not been submitted against a person, shown as an accused during the course of investigation and cognizance and processes are not issued against such person or for that matter, for any reason, cognizance has not been taken against such person, he could be termed as accused. If answer to the aforesaid question is in the affirmative, power under Section 319 of the Code, cannot be exercised.
13. In view of the authoritative pronouncement of the Supreme Court in the case of Sohan Lal (1990 Cri LJ 2302) (supra), this question does not need any detailed examination. In the said case, it has been held as follows:
20. Chapter XV deals with complaints to Magistrates, Section 200 provides for examination of complainant. Section 202 deals with postponement of issue of process and says in Sub-section (1) that any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus we find that the expression “the accused” has been used in relation to a complaint case under this section even before issue of proc-ess. It also appears that in the Code the expression “the accused” is used after cognizance is taken by the Magistrate.
(Underlining mine)
14. From the reading of the aforesaid passage of the judgment, it is evident that in complaint case the expression “the accused” has been used even before issuance of process but in a police case, the expression “the accused” is used after cognizance is taken by the Magistrate.
15. Accordingly I am of the considered opinion that in a police case if processes are not issued against a person, such person come within the expression “any person not being the accused”. In the present case, although names of the petitioners find place in the first information report and their complicity in the crime was investigated during the course of investigation, but ultimately, the police did not submit charge sheet against them. The Magistrate had also accepted the report submitted by the police and had not directed for issuance of process against these persons. In that view of the matter, these petitioners cannot be said to be accused within the meaning of Section 319 of the Code, In other words, they being not the accused the power to proceed against them was definitely available to the learned Judge under Section 319 of the Code.
16. Now reverting to the authority of the Supreme Court in the case of Sohan Lal (supra) on which Mr. Madhup has placed strong reliance, I an of the opinion that the same is clearly distinguishable. True it is that in the said case, it has been held that once a person is found to have been the accused in the case, he goes out of the reach of Section 319 of the Code but the said judgment has clearly observed that the expression “the accused” has been used in relation to a complaint case even before issuance of process but in respect of others, after cognizance is taken by the Magistrate. This would be further evident from the fact that power to direct further enquiry is available under Section 398 of the Code, when the complaint has been dismissed. Thus, petitioners were not accused, hence there is no bar for exercise of power under Section 319 of the Code.
17. The judgments of the Supreme Court in the cases of Nisar v. State of U. P. (1995 Cri LJ 2118) (supra) and Ranjit Singh v. State of Punjab (supra), in my opinion, instead of supporting the contention of Mr. Madhup clearly go against him. In these cases the Supreme Court has held that Sessions Court has no power to summon additional accused under Section 193 of the Code but in the case of Ranjit Singh (1998 Cri LJ 4618) (supra), it has clearly held that other person can be arrayed as accused under Section 319 of the Code. Paragraph 19 of the judgment, which is relevant for the purpose reads as follows:
19. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for other Court to wait until the entire evidence is collected for exercising the said powers.
18. In the case of Nisar (1995 Cri LJ 2118), power under Section 319 of the Code was exercised before the evidence was recorded and hence the order was held to be bad but it has been clearly held that “power under Section 319(1) can be exercised only in those cases where involvement of persons other than those arraigned in the charge-sheet comes to light in the course of evidence recorded during enquiry or trial.
19. A short paragraph would have been sufficient to dismiss this application as the present case is entirely covered by the judgments of the Supreme Court in a case given on similar facts in the case of Tek Narayan Prasad Yadav v. State of Bihar 1999 SCC (Cri) 356, but for the deference to the counsel submissions. In the said case it has been held as follows:–
2. A Crime of murder and ornament-snatching was committed on a young girl. The matter was reported to the police against nine persons including the appellant. The police investigating the crime, forwarded a police report against eight persons excluding the appellant. When the matter was laid before the committal Court, an unsuccessful attempt was made by the complainant to have the appellant included in the accused being committed. When the matter was placed before the Court of Session, another attempt was made by him to have the appellant, summoned in order to face trial ‘along with the other eight accused. The Court of Session declined the request, taking the view that that was not the stage at which any new accused could be associated.
3. It transpires that the trial began and charges were framed against those eight accused persons. A witness was examined by the prosecution. At that point of time, the complainant again moved the Court of Session pointing out that evidence had now come on the record justifying invocation of power under Section 319 of the Code of Criminal Procedure. The Court agreed with the suggestion and ordered issue of process against the appellant. His effort to have the process aborted has failed before the High Court. This is how this appeal has been filed.
4. When the matter was placed before a two-member Bench of this Court, conflict in judicial opinion was pointed out to the effect whether the Court of Session can summon an accused who is not charge-sheeted under Section 193 of the Code of Criminal Procedure. The above question was understood to have been answered in the affirmative in Kishun Singh v. State of Bihar (1993 Cri LJ 1700) and Nisar v. State of U. P. (1995 Cri LJ 2118) whereas there was a discordant note in Raj Kishore Prasad v. State of Bihar (1996 Cri LJ 2523).
5. On the instant fact situation, it is plain that the Court of Session issued process against the appellant after having begun the trial and having recorded some evidence of the prosecution. Such step of the Court of Session cannot even remotely be termed as transgressing the affirmative views expressed in the abovenoted two cases. The third case (Raj Kishore Prasad) had a different fact situation, being of the pre-com-mittal stage on the basis of which it was held that Section 319, Cr. P.C. was inapplicable. Therefore, in this view of the matter, the supposed conflict of judicial opinion need not be resolved in this case.
6. A faint attempt was made by the appellant’s learned counsel to canvass that on the evidence recorded, the Court of Session was not justified in issuing process against the appellant. The contention could not be substantiated by any cogent evidence or material.
(Underlining mine)
20. Similar view has been taken by the Supreme Court in the case of Girish Yadav v. State of M. P. AIR 1996 SC 3098 : (1996 Cri LJ 2159) in which it has been held as follows:–
15. It was next submitted by learned senior counsel for the appellants that once the police had not submitted chargesheet against accused Nos. 5 to 8 the Court ought not to have roped them in. It is not possible to agree with this contention also. There is enough power with the Court in a proper case to exercise its jurisdiction under Section 319, Cr. P.C. In the present case as we have seen earlier, the High Court has remanded the matter for reconsideration in the light of the evidence that may be recorded by the Court and that is how after recording the evidence of eye-witnesses process was reissued against these appellants. As the evidence recorded by the Court showed that there was enough involvement of these accused in the commission of the offence and, -therefore, they stood on the same pedestal as accused 1 to 4 they could not be said to have been wrongly proceeded against as accused under Section 319, Cr. P.C.
21. In the result, I do not find any merit in this application and it is dismissed accordingly.