ORDER
G.L. Gupta, J.
1. This revision petition is directed against the order dt. 28-7-98 passed by learned Spl. Addl. Sessions Judge, Sriganganagar whereby he took cognizance against Sohanlal and Jamna Devi under Sections 304B and 498A, IPC.
2. The short facts of the case are that Surendra Kumar complainant had lodged a report that on 24-6-97 he received the information that his sister married to Krishanlal had been murdered. It was stated that Krishanlal, Jamna, Sohanlal and Balram used to subject the deceased to cruelty for dowry. The police, after the completion of the investigation, submitted challan against Krishanlal and Balram only. The case was committed to the Court of Session which was transferred to the Special Addl. Sessions Judge, Sriganganagar. During the course of trial an application was filed by the prosecution that cognizance be taken against Sohanlal and Jamna Devi. The learned Addl. Sessions Judge allowed the application. Hence, this revision.
3. The contention of Mr. Garg is that after the trial had commenced the learned Addl. Sessions Judge had no jurisdiction to take cognizance under Section 193, Cr. P.C. His submission is that after the evidence was recorded cognizance could be taken Under Section 319, Cr. P.C. but as the order was passed under Section 193, Cr. P.C. it is liable to be quashed.
4. Learned Public Prosecutor has not been able to justify the impugned order.
5. A perusal of the order-sheets filed along with the revision petition shows that after the case was committed, the learned Addl. Sessions Judge heard the arguments on 21-3-1998 and directed the charges to be framed against the two accused challaned by the police and the case was posted for prosecution evidence. It is obvious that stage of Section 193 Cr. P.C. had come to an end.
6. Section 193, Cr. P.C. is reproduced here under:-
193. Cognizance of offences by Courts of Session – 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.
7. It is manifest that a Court of Session cannot take cognizance of any offence as Court of original jurisdiction unless a case has been committed to it by a Magistrate. In the instant case, the case was committed to the Court of Session, but it is evident that no order taking cognizance was passed at the time me learned Addl. Sessions Judge perused record to frame charges against the accused. Not only the charges were framed against the two accused persons, the case was fixed for recording the prosecution evidence. Thus, the case had proceeded beyond the stage of Section 193, Cr. P.C.
8. Section 319, Cr. P.C. gives ample powers to a criminal Court to proceed against other persons appearing to be guilty of offence. The Section 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.
(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 inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Sub-section (1) then –
(a) the proceedings in respect of such person shall be commenced afresh and the witnesses reheard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been art accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
9. A reading of Section 319, Cr. P.C. makes it clear that if in the course of trial it appears from the evidence that any person not being the accused has committed any offence the Court may proceed against such person. Thus, if the Court of Session wants to proceed against any person who is not accused before it after the trial has commenced it can act only under Section 319, Cr. P.C. Since the evidence has not been recorded in the case, the impugned order cannot be treated under Section 319, Cr. P.C. In my opinion, the order taking cognizance against the petitioners in exercise of the powers under Section 193, Cr. P.C. is not sustainable in law and is liable to be quashed.
10. Consequently, the revision petition succeeds. The impugned order is set aside, This order shall not prevent the learned Addl. Sessions Judge to exercise powers under Section 319, Cr.P.C. if situation arises.
