Police statements cannot be relied upon for exercising power under Section 319 of the CrPC. The power under Section 319 can be exercised only after witnesses have been heard and evidence has been led in court.

1. An occurrence gruesome by all counts took place on 9-4-1979. It had seen the death of 10 persons, and injuries on a large number. The First Information Report of the case was lodged on the date of the occurrence itself in which 51 persons were named as accused. During the course of investigation as many as 225 persons came to be arrested, though 85 of them were ultimately charge-sheeted. After the case was committed to the Court of Session, and the learned Judge "was ready to open the trial" on 2-5-1980 under Chapter XVIII of the Criminal P. C., the Public Prosecutor informed the court that he would file a petition for summoning some more persons under the provisions of S.319 of the Code. Such a petition came to be filed on 30-6-1980 in which it was prayed that 3 persons including the two petitioners may be summoned to face the trial along with the 85 charge-sheeted accused. Thereafter by the impugned order warrant of arrest against the two petitioners were ordered to be issued with the direction that they be tried in the case along with other accused. The prayer as regards the third person, namely, Ratneswar Bora was turned down for reasons recorded in the order. The two newly impleaded accused have approached this court in its revisional capacity.

2. A perusal of the impugned order makes it clear that the learned Sessions Judge decided to proceed against the petitioners being satisfied on a perusal of the statements of some witnesses as recorded by the police that there was sufficient material indicating the involvement of the petitioners in the crime. It is apparent from the materials on record that the court itself had recorded no evidence before passing the impugned order. The main point which has been urged by Sri Barua is that the power under Section 319 can be exercised only if from the evidence recorded by the Court, it appears that any person not being the accused has committed the offence. To put it differently, according to the learned counsel, reliance on the police statements cannot be placed for invoking the power under Section 319, as was done in the present case. The other grievance made is that the learned Sessions Judge has already made up his mind that the petitioners had committed the alleged offence of conspiracy and abetment which would stand in the way of agitating the question of their discharge if and when they appear before the learned trial court. This grievance has not much merit inasmuch as even while invoking powers under S.319, a court has to come to a prima facie satisfaction that invocation of the power under Section 319 is called for, and for this purpose it has to apply its mind to the evidence. This would be clear from the use of the word "appears" in the section.

3. Before dealing with the main submission, it may be pointed out that the power under Section 319, cannot be confined to proceed against these persons only who had been named in the F. I. R. but not sent up by police, though such persons would also be included. This is apparent from what has been stated in para. 9 of Jogindar Singh v. State of Punjab, AIR 1979 SC 339 : (1979 Cri. LJ 333). There is also no denial that the provisions of Section 193 of the Code dealing with the cognizance of offences by courts of Session could not have stood in the way of the court in exercising its powers against the petitioners under Section 319 in view of what is stated in Jaginder Singh.

4. To appreciate the main point urged by Sri Barua, we may read S.319 :-

''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,