JUDGMENT

AHMADI, J.—Special leave granted.

2. Whether a Court of Session to which a case is committed for trial by a Magistrate can, without itself recording evidence, summon a person not named in the police report presented under Section 173 of the Code of Criminal Procedure, 1973 (the Code for short) to stand trial along with those already named therein, in exercise of power conferred by Section 319 of the Code? This neat question of law arises in the backdrop of the following allegations.

3. On the evening of February 27, 1990 Umakant Thakur, younger brother of the informant, was attacked by twenty persons including the present two appellants with sticks, etc. A First Information Report was lodged at about 9.30 p.m. on the same day in which all the twenty persons were named as the assailants. The injured Umakant Thakur died in the Patna Hospital on the next day. In the course of investigation statements of the informant as well as others came to be recorded and a charge-sheet dated June 10, 1990 was forwarded to the Court of the learned Magistrate on June 17, 1990 wherein eighteen persons other than the two appellants were shown as the offenders. The names of the present two appellants were not included in the said report as in the opinion of the investigating officer their involvement in the commission of the crime was not established. A final report to that effect was submitted on September 4, 1990 to the Chief Judicial Magistrate on which no orders were passed. The concerned Magistrate committed the eighteen persons named in the report to the Court of Session, Darbhanga, under Section 209 of the Code to stand trial. When the matter came up before the learned Sessions Judge, Darbhanga, an application was presented under Section 319 of the Code praying that the material on record annexed to the report under Section 173 of the Code revealed the involvement of the two appellants also and hence they should be summoned and arraigned before the Court as accused persons along with the eighteen already named in the charge-sheet. Thereupon a show-cause notice was issued to the present two appellants in response whereto they contended that though they were not present at the place of occurrence, they were falsely named in the First Information Report and the investigating officer had rightly omitted their names from the charge-sheet filed in Court. The learned Sessions Judge rejected the plea put forth by the appellants and exercised the discretion vested in him under Section 319 of the Code by impleading the appellants as co-accused along with the eighteen others. Indisputably this was done before any evidence was recorded i.e. before the commencement of the actual trial. The appellants thereupon filed a criminal revision application before the High Court of Patna assailing the order passed by the learned Sessions Judge taking cognizance against them. The High Court after hearing counsel for the parties dismissed the revision application relying on the ratio of the Full Bench decision of that Court in Sk. Lutfur Rahman v. State{1985 PLJR 640}. It is against this order passed by the learned Single Judge of the High Court that the appellants have moved this Court by special leave under Article 136 of the Constitution of India.

4. The learned counsel for the appellants contended that unless evidence was recorded during the course of trial, the Sessions Judge had no jurisdiction under Section 319 of the Code to take cognizance and implead the appellants as co-accused solely on the basis of the material collected in the course of investigation and appended to the report forwarded under Section 173 of the Code in view of the clear mandate of Section 193 of the Code. The question which arises for consideration in the backdrop of the aforestated facts is whether the learned Sessions Judge was justified in law in invoking Section 319 of the Code at the stage at which the proceedings were pending before him solely on the basis of the documents