Judgment :-

R.M. LODHA, J.

Leave granted.

2. A certain Bharat Lal Sharma was done to death on October 26, 2008. His father (respondent No. 2 herein) informed the Police Station Kosikalan on the next day, i.e., October 27, 2008 at 8 a.m. that he received an information in the morning at about 7 a.m. that his son Bharat Lal Sharma had been murdered and his dead body was lying in the agricultural field of Ghure son of Gaisi, 'Jat' resident of Tumaura. On receipt of this information, he (respondent No. 2 herein) went to the spot and found that the body of his son was lying in blood. His son was killed with some sharp edged weapon the previous night. He requested the police to register First Information Report (FIR) against unknown accused persons and take appropriate action in the matter. On this information, an FIR was registered and investigation commenced. On conclusion of the investigation, the Investigating Officer submitted charge-sheet naming one Hari Singh as an accused having committed the murder of Bharat Lal Sharma. On the basis of the material collected by the Investigating Officer, no case was found out against the present appellant-Jile Singh and the Investigating Officer concluded that the appellant has been falsely named in the course of investigation.

3. On May 2, 2009, the Chief Judicial Magistrate, Mathura, committed the accused-Hari Singh to the Court of Sessions Judge, Mathura for trial. It was then that the complainant-respondent No. 2 herein filed a private complaint under Section 200 of the Code of Criminal Procedure, 1973 (for short, 'the Code') in the court of Judicial Magistrate, Mathura, against the present appellant and one Jayveer Singh for the murder of his son Bharat Lal Sharma.

4. The Chief Judicial Magistrate, Mathura, after recording the statements under Section 202 of the Code, issued summons to the appellant on January 3, 2011. Aggrieved by that order, the appellant filed Criminal Revision before the Allahabad High Court which came to be dismissed on March 10, 2011. It is from this order that the present Appeal, by special leave, has arisen.

5. Mr. Manoj Saxena, learned counsel for the appellant, submitted that the issuance of summons by the Chief Judicial Magistrate, Mathura, on a private complaint made by the respondent No. 2 after committal of accused- Hari Singh for the murder of Bharat Lal Sharma to the Sessions Court, was without jurisdiction. He would submit that addition of a new person to the array of the accused in a case pending before the sessions court can only be done by that court in exercise of the power under Section 319 of the Code and in no other way. In this regard, he relied upon decisions of this Court in the cases of Ranjit Singh Vs. State of Punjab ((1998) 7 SCC 149) and Kishori Singh and Ors. Vs. State of Bihar and Anr. ((2004) 13 SCC 11).

6. Mr. Ratnakar Dash, learned senior counsel for the respondent No. 1-State of Uttar Pradesh, and Mr. Vikram Patralekh, learned counsel for respondent No. 2-complainant, stoutly defended the impugned order. They submitted that the complaint filed by the complainant before the Magistrate was maintainable under Section 200 of the Code since the Investigating Officer on conclusion of the investigation did not name the appellant as accused although there was material to that effect in the course of investigation. The learned senior counsel and the learned counsel for the respondents submitted that if on receipt of a report, the police takes up the investigation of a case and on completion thereof submits a charge-sheet against few persons and leaves the other persons involved in the crime by stating in the report that no case has been made out against such person, it is open to the aggrieved complainant to file a complaint under Section 200 of the Code and the Magistrate is empowered to issue summons. In this regard, they relied upon a decision of this Court in Hareram Satpathy Vs. Tikaram Agarwala & Ors. (1978 (4) SCC 58) Mr. Ratnaka