"Whether a Magistrate can on taking cognizance, implead a person as an accused in a case in which such person has not been arrayed as an accused by the investigating agency on the basis of record of the investigation submitted under sec.173 Cr.P.C.," is the question arising for determination in this criminal revision.

2. The petitioner was Director General of Prisons J&K and in connection with purchase of medicines for the jail inmates during the years 1991-1992 a case was registered by the Vigilance Organization for commission of offence under sec.5(2) P.C.Act, read with sec. 120.B RPC. The investigating agency found the commisssion of the said offences by the accused which included the petitioner and the case was submitted to the Government for according sanction under sec.6 of the P.C.Act. The Government after examining the case declined to accord sanction in respect of the petitioner but accorded sanction for the trial of other accused named in the F.I.R. Consequently a charge sheet for trial of the accused for whom the Government had accorded sanction was filed before the learned Special Judge Anti-Corruption Jammu. In the charge sheet the petitioner Sh.T.R.Kalra was not arrayed as an accused. When the case came up for consideration for framing of charge before the learned trial court the learned trail court, after examination of the record found the involvement of the petitioner also in the commission of offences. Therefore, by its order dated 20-12-2002 it issued warrants for summoning of the petitioner as an accused in the case and thus the petitioner came to be impleaded as an accused in the said case entitled State v. J.S.Kotwal and others. In the order the learned trial court observed as follows:- "Hence keeping in view the fact and circumstances of the case Shri T.R.Kalra, the then Director General Prisons J&K is ordered to be arrayed as accused in the case. A bailable warrant for an amount of Rs.20,000/- be issued against the accused Sh.T.R.Kalra for his appearance in the court on the next date of hearing. C.P.O. is directed to furnish address of Shri T.R.Kalra, the then Director General Prisons after verifying the same and office to issue process accordingly. Bail able warrants to the tune of Rs.20,000/- each be also issued against accused No.2 and 6 who have remained absent today. Put up on 17-1-2003."

3. This order of the trial court was challenged by the petitioner in a criminal revision No.96/02 before this Court. This Court allowed the revision petition by order dated 10-2-2003. The order of the trial court was set aside and the trial court was directed as follows :-

"The trial court is directed to pass a fresh order. When this is done, it would be apt that more explicit order indicating the material which has come on record, is adverted to., The general observation that record indicates something against the petitioner be elaborated."

4. Pursuant to the direction of this Court learned trial court passed fresh order dated 26-4-2003. The trial court after perusal of the material existing on the file against the petitioner observed that the record and the documents mentioned in the order, prima facie prove the involvment of Sh.T.R.Kalra, the then Director General of Prisons in the commission of the alleged offences and, therefore, ordered that he be arrayed as an accused in the case and a bailable warrant for the amount of Rs.20,000/- be issued against for his production in the court. This order dated 26-4-2003 passed by the learned Special-Judge Anti-corruption Jammu is the subject matter of challenge in this criminal revision.

5. I have heard the learned counsel for the parties and perused the record also.

6. Mr.Bakshi learned counsel for the petitioner has questioned the validity of the order of the learned trial court on the ground that the learned trial court was not justified in relying upon material of the investigation only for arriving at the conclusion that the petitioner was involved in the commission of

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