N.C. SHARMA, J.—Heard Mr. N.N. Mathur learned counsel for the petitioner. Miss Sumitra Sankhla Public Prosecutor and Mr. H.S.S. Kharelia learned counsel for complainant Sewak Singh.

2. This is an interesting case. On May 25, 1982, at about 3.30 A.M. Sewak Singh lodged a first information report at Police Station, Mukalawa alleging that his brother Baljeet Singh had been murdered by the petitioner Banwarilal by a gun shot. Upon this first information report, the police registered a case under section 302, I.P.C. After investigation, the police came to the conclusion that it was not the petitioner Banwarilal but the first informant Sewak Singh who had murdered his own brother and in order to save himself he had lodged a false first information report. After investigation, the police filed a charge sheet against Sewak Singh for the murder of his brother Baljeet Singh. The criminal case was committed to the court of Sessions and was ultimately transferred to the court of Additional Sessions Judge Raisinghnagar being Sessions case No. 9 of 1983.

3. After the charge-sheet had been filed by the Police against Sewak Singh the latter filed a private criminal complaint in the court of the Additional Chief Judicial Magistrate, Raisinghnagar. In that criminal complaint, he made allegations that it was Banwarilal petitioner who had murdered his brother Baljeet Singh. Twelve witnesses were examined in support of the complaint. After examining the complainant and his witnesses, the Additional Chief Judicial Magistrate took cognizance of the offence under section 302 l.P.C. and ordered for the issue of a warrant of arrest against petitioner Banwarilal.

4. Banwarilal has filed the present petition under section 482 Cr.P.C. and has prayed that the order dated August 2, 1982 of the Additional Chief Judicial Magistrate Raisinghnagar taking cognizance of the offence under sec. 302, I.P.C. and further proceedings in the criminal complaint filed by Sewak Singh may be quashed.

5. It was urged by Mr. N.N. Mathur appearing for the petitioner Banwarilal that on the first information report lodged by Sewak Singh, the Police after thorough investigation, had submitted a charge-sheet against Sewaksingh himself for the murder of his brother Baljeet Singh and the case had been committed for trial to the court of Additional Sessions Judge Raisinghnagar and in that trial Sewaksingh was the accused. It was argued that in this background the Additional Chief Judicial Magistrate could not take cognizance again and could not proceed against the petitioner on the criminal complaint filed by Sewaksingh.

6. It may here be mentioned that Sessions case No. 9 of 1983 initiated on police report has been decided by the Additional Sessions Judge Raisinghnagar on February 17, 1986 and Sewaksingh has been acquitted of the offence under section 302 I.P.C. for the murder of his brother Baljeet Singh on the ground that the prosecution in that case had failed to establish beyond reasonable doubt that Sewak Singh had committed the offence.

7. It is true that the Judicial Magistrate Raisinghnagar had taken cognizance of the offence under section 302 I.P.C. on the police report made under section 173 Cr.P.C. However, it is equally true that the cognizance was of the offence and not the offender. After taking cognizance, Sewaksingh was tried by the Additional Sessions Judge, Raisinghnagar. In that trial, the petitioner could not be tried together with Sewaksingh under section 319 (1) Cr.P.C. for the simple reason that neither Sewaksingh could appear as a witness against the petitioner, nor the petitioner could appear as a witness against Sewaksingh because in that event both of them would have been co-accused. Section 319(1) Cr.P.C. contemplates proceedings against person other than the person who was accused if the former person can be tried together with the accused. For the reasons already stated above, Banwarilal could not be tried together with Sewaksingh under section 319(1) Cr.P.C.

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