K. L. SHRIVASTAVA, J.

( 1 ) THIS petition under the Criminal P. C. 1973 (for short 'the Code') is directed against the order dt. 14-10-1985 passed by the Additional Sessions Judge, Jhabua in Sessions Trial No. 321 of 1985 whereby in exercise of powers under S. 319 of the Code he has ordered that the applicant and another be also proceeded against for the offences in question.

( 2 ) THE facts giving rise to the application are these. On a prosecution launched by the police against them, the Judicial Magistrate first class, Thandla found that the accused Sammun and Joyala had committed offences one of which is exclusively triable by the Court of Session. The case was accordingly ' committed under S. 209 of the Code and the sessions trial referred to above came to be registered.

( 3 ) IN the Sessions Court an application was filed on behalf of the State that the applicant Mahendra Kumar Tiwari and one Moise had also committed the offences under Ss. 366 and 493, IPC.

( 4 ) ON a perusal of the statement of the prosecutrix recorded by the police, the learned Additional Sessions Judge in exercise of powers under S. 319 of the Code holding that Mahendra and Moise were equally liable as the other two accused, ordered that they too be proceeded against as accused persons.

( 5 ) THE applicant Mahendra Kumar has come up in revision against that order.

( 6 ) THE point for consideration is whether the impugned order deserves to be set aside.

( 7 ) THE relevant provisions embodied in sub-secs. (1) and (4) of S. 319 of the Code are in these words : - section 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 ). . . . . . . . . . . . . (3 ). . . . . . . . . . . . . (4) Where the court proceeds against any person under sub-sec. (1) then - (a) the proceedings in respect of such person shall be commenced afresh, and the Witnesses re-heard : (b) subject to the provisions of cl. (a) the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

( 8 ) THE learned trial court relying on the decision in Dwarika Prasad v. State of Bihar, 1979 Cri LJ 618 held that the fact that the case was not committed to the Court of Session in relation to the applicant and Moise is no bar to the exercise of power under Section 319 of the Code. In the aforesaid decision the head note reads as under : - section 319 (1) empowers a Court which is inquiring or trying an offence to summon for trial along with other accused persons if it appears from the evidence that a person who is not an accused has committed an offence. Therefore, the provisions of S. 193 do not stand in the way of Sessions Judge exercising powers under S. 319 (1 ). The word 'court' in earlier part of S. 319 indicates a trial Court whereas in sub-sec. (4) (b) the word 'court' has been qualified with the words 'took cognizance'. Undoubtedly, the use of word 'court' in S. 319 apart from sub-sec. (4) (b) means a Court trying an offence irrespective of the fact that it is a Sessions Court or the Court of a Magistrate and the word 'court' in sub-section (4) (b) means a Magistrate's Court that took cognizance. The only interpretation is this that once a person is summoned to face a trial under S. 319 he will be treated to be an accused from the very inception i. e. the stage of cognizance. The word 'court' in sub-sec. (4) (b) of S. 319 cannot possibly have the same meaning as in the rest of the sections because a Court taking cognizance is not always a trial court even if a case is being tried by a Magistrate.-In the Supreme Court decision in Sri Mahant Amar Nath's

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