Raghvendra and others vs State of M.P.

A.K. Gohil, J.

Petitioners have filed this revision petition under sections 397, 401 of Code of Criminal Procedure challenging the order dated 1-10-2002 by which IInd Additional Sessions Judge, Bhind in Sessions Trial No. 165/02 at the stage of framing of charge has added the names of petitioners as accused.

Facts of the case are that police station Ater District Bhind filed a charge-sheet against one Rajendra under sections 364(A), 302, 201 and 120-B of Indian Penal Code. It was mentioned in the charge-sheet that the charge-sheet is being filed against accused Rajendra but other accused persons are required to be arrested and the names of other accused persons were not added in the charge-sheet, nor they were treated as absconding. Charge-sheet was filed only against one accused Rajendra before the Magistrate and case was also committed only against Rajendra.

Contention of the Learned Counsel for the petitioners is that at the time of framing of charge, on the basis of material collected in the charge-sheet and after perusal of the statements of witnesses, trial Court has added the names of petitioners as accused. This exercise by the trial Court is illegal. u/s 190 of the Code of Criminal Procedure Sessions Judge is not having any power to add the names of accused persons at the time of framing of charge. It is not in dispute that u/s 319 of Criminal Procedure Code, during trial or at the time of investigation names of other persons can be added as accused but that can only be done at the stage of recording evidence. Thus, the sole contention of Learned Counsel for the petitioner is that at the stage of framing of charge the Sessions Judge cannot invoke the powers provided u/s 319, Criminal Procedure Code and cannot issue any directions for joining the petitioners as accused in the case.

It is specifically mentioned u/s 319(1) of Criminal Procedure Code that 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. In order to apply section 319 it is essential that Court should record evidence of witnesses and after recording the evidence of witnesses, during the course of inquiry or trial, if the Court comes to the conclusion that other persons should also be added as accused it can proceed against other persons by adding them as accused in the case.

In the case of Ranjit Singh vs. State of Punjab, 1998 (3) Crimes 258 the Hon''ble Apex Court has held that Sessions Judge has no jurisdiction to add a new person in a case pending before it at a stage prior to recording evidence. The ratio of decision in the case of Ranjit Singh is being followed by the High Court. Again in the case of Tek Narayan Prasad Yadav vs. State of Bihar and another, 1999 SCC (Cri) 356 Hon''ble Apex Court has held that Sessions Court is competent to issue process against a person, who is not charge-sheeted u/s 193 after having begun the trial and having recorded some evidence of the prosecution. In the case of Raj Kishore Prasad vs. State of Bihar, 1996 (2) Crimes 142 (SC) it was held by the Hon''ble Apex Court that addition of an accused by summoning or resummoning has only been permitted by manner provided u/s 319 of Criminal Procedure Code on evidence adduced during trial and in no other way.

Therefore, on a plain reading of provisions of section 319 of Criminal Procedure Code and in the light of aforesaid law laid down by the Apex Court in the cases cited (supra), it is clear that provisions of section 319, Criminal Procedure Code cannot be exercised at the stage of framing of charge. The Court can add the accused persons and summon them only after recording evidence of the prosecution witnesses and also after evaluation of their evidence. Considering this position under law this revision is allowed. Impugned order is set aside. It is directed that the trial Court shall first record the evidence of witnesses and thereafter during the course of inquiry if it finds that some material is available against them, the Court may at that stage exercise the necessary powers provided u/s 319, Criminal Procedure Code.

With the aforesaid observations this revision petition stands allowed and disposed of.