The Magistrate cannot take cognizance against accused persons who are not arrayed as accused in the charge-sheet, and the Sessions Court has no power to summon additional accused under Section 193 Cr.P.C.

1. - The law is well settled that in sessions cases, while committing the case to the Sessions Court, the Magistrate cannot take cognizance against the accused-persons who might have been named in the FIR, but who have not been arrayed as an accused in the charge-sheet by the police. This view comes from the following rulings:-

(1) Kishori Singh v. State of Bihar, (2004) 13 SCC 11 ,

(2) Sanjay Gandhi v. Union of India, AIR 1978 SC 514 ,

(3) Shankar Ram v. The State of Raj., 2010(2) Cr.L.R.(Raj.) 1295,

(4) Natthi Singh v. The State of Raj., 2007(1) Cr.L.R.(Raj.) 621.

(5) Dhoori v. State of Raj., 1998 Cr.L.J. 3406(Raj.)

2. In other cases which are not exclusively triable by Sessions Court, the Magistrate can take cognizance against the persons who are named in the FIR but whose names do not appear in the charge-sheet filed by the police. Following rulings of the Hon'ble Supreme Court may be referred in this respect:-

(1) M/s SWILL Ltd. v. Delhi , 2001 R.Cr.D 568(SC) ,

(2) Raghubans Dubey v. State of Bihar, 1967(2) SCR 423.

3. The present criminal revision petition has been filed by two accused-persons(Jugal Kishore and Srikrishna ) whose names had not appeared in the charge-sheet, when the charge-sheet was filed in the court of Magistrate under Section 307 IPC etc. The learned Addl. Chief Judicial Magistrate, Bilara by his order dated 16.12.2011 in criminal regular case No. 632/2011 State v. Bankat Lal etc. had committed two accused-persons only, to the Sessions Court by the said order for trial for offence under Section 307 IPC etc.

4. Against the order dated 16.12.2011 of the said court of the Magistrate, the complainant filed a revision before the Sessions Judge, Jodhpur District and while deciding Criminal Revision No. 17/2012 filed by complainant Nand Kishore and without hearing petitioners Jugal Kishore and Srikrishna etc. (proposed accused persons), the learned Sessions Judge by his order dated 4.4.2013 has set aside the committal order dated 16.12.2011 and has ordered that before committing the case to the Sessions court, the complainant should have been heard because in FIR, five persons were named as accused-persons and as per ruling of Hon'ble the Supreme Court in Bhagwant Singh v. Commissioner of Police and another, AIR 1985 SC 1285 , it was the duty of the Magistrate to give an opportunity of hearing to the complainant because out of five accused-persons named in FIR, charge-sheet was filed only against two of them and so virtually this was a Final Report in respect of three left out accused persons. Help of ruling of the Rajasthan High Court in Kamal Kishore v. State of Rajasthan, 2012(4) Cr.L.R.(Raj.) 2171 was also taken in this context and by the impugned order dated 4.4.2013 , the learned Sessions Judge, Jodhpur District has ordered that even in Sessions Case, before committing the case to the Sessions Court, it is the duty of the Magistrate to listen the complainant about the accused-persons who were named in the FIR but who are not charge-sheeted by the police.

5. The petitioner (accused Jugal Kishore and Srikrishan) have argued in this revision petition that the Sessions Court should not have ordered anything against them without giving an opportunity of hearing to them. They have submitted the following Rulings to support their arguments:

(1) Manharibhai Muljibhai Kakadia & anr. v. Shaileshbhai Mohanbhai Patel & ors, 2013 Cr.L.R. SC 253.

(2) Jagdish Chandra v. State of Raj, 2013(1) Cr.L.R.(Raj.) 479.

6. These rulings are perfectly applicable to the facts of the present case and the petitioners should have been heard by the Sessions court before the order dated 4.4.2013 was passed by the Sessions court against them. Following other rulings have also been referred by the petitioners in support of their arguments:

(1) Kishori Singh & ors. v. State of Bihar, AIR 2000 SC 3725. In this case, it was held that in Sessions case at a stage prior to one under Section 319 Cr.P.C., the Magistrate cannot issue process a