ORDER
S.K. Agarwal, J.
1. This revision petition under Sections 397/401 read with Section 482 Code of Criminal Procedure, 1973 (for short Cr. Pc) is directed against the order summoning dated 22nd November, 1994 passed by Sh.D. S. Sidhu, Additional Sessions Judges holding that sufficient material available on record to summon the petitioner in case FIR No. 129/93 u/s 308/34 IPC PS Vasant Vihar.
2. Admit. I have heard the learned counsel for the parties and have been taken through the record.
3. Brief facts are : On the basis of report lodged by Ranbir Viranjia above noted case was registered. after investigations challan was filed. In the Challan petitioner was not arrayed as an accused; Magistrate took cognizance and committed the matter to the court of Sessions Court for trial and the Sessions Court vide impugned orders dated 22-11-1994 without recording of any evidence summoned the petitioner holding that there is sufficient evidence and material against them, which has been challenged.
4. Learned counsel for the petitioner argued that without an order of committal, The sessions Court could not summon the petitioner at that stage. Reliance in this regard is placed on the Supreme Court decision in Ranjit Singh vs. State of Punjab 1998 VII AD (SC) 217 wherein it was held :-
“20. Thus, once the Session 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 Session Court to permit addition of new person or persons to the array of the accused. Of course, it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.”
(emphasis supplied)
5. Admittedly, no evidence was recorded by the Sessions Court before summoning the petitioner therefore, the impugned order dated 22.11.94 summoning them is not sustainable in view of law laid down by the Apex Court and same is liable to be quashed.
6. After hearing arguments on charge, learned Sessions Court on 30.4.1996 held that accused persons are liable to be charged and tried only for offence under Section 147/148/148/323 IPC and no offence is exclusively friable by the Court of Sessions is made out and remanded the case back to the court of Chief Metropolitan Magistrate under Section 228 Cr.PC for trial in accordance with law. The Magistrate’s Court after the case was remanded back framed the charges the accused persons including petitioners and the matter is pending trial. It is argued that since the original order summoning has been quashed the subsequent charge framed is also liable to be quashed.
7. Learned counsel for the State on the other hand argued that the Magistrate could validly take cognizance against the petitioner under sections 190 Cr.P.c. Therefore, charge against the petitioner is sustainable. I am unable to agree. The Magistrate did not take cognizance under clause (b) or (c), sub-section (1) of section 190 Cr.P.C. against the petitioner. The Charge was framed against the petitioners, consequent upon the remand order dated 30.4.1996. As held above the order of summoning by the Sessions Court itself is not sustainable. Therefore the order of framing charge against petitioners based on such an order must also go.
8. For the foregoing reasons revisions petition is accepted. The order of framing charge against the petitioner is also quashed. Needless to point out that if during the course of trial evidence comes on record against the petitioner so as to warrant their summoning of the petitioners under Section 319 Cr.PC, trial court would be well within its jurisdiction to summon them.
9. With these observations, petition stands disposed of.