S. Awasthy, J. -- 1. This revision-petition is directed against the order dated 2.2.1989, passed in Sessions Case No. 53 of 1988 pending in the Court of 2nd Additional Sessions Judge, Hoshangabad.

2. An offence under section, 302 of the Indian Penal Code was registered vide Crime No. 270 of 1988 against Arun Kumar and Atul Kumar who were arrested in connection with the offence for causing the death of Laxmi Prasad Brahman. The police filed a charge-sheet in the Court of Magistrate First Class and the aforesaid two accused persons were committed to the Court of Sessions. An application was moved on behalf of the prosecution and it was pointed out that in the statement of Satish Kumar recorded under section 161 of the Criminal Procedure Code and also in the affidavit of Mahesh Kumar there are allegations against them hence a case under section 302 of the Indian Penal Code is made out against the applicants (herein) also. The trial Court directed to arrest the applicants for their appearance in the Court on 24.2.1989 under section 319 of the Criminal Procedure Code.

3. Shri V.K. Tankha with Shri Mukesh Agrawal, learned counsel for the applicants, argued that the Sessions Judge had no power under section 319 CrPC to make the applicants as co-accused unless there is some evidence against them. Since no evidence has been recorded by the trial Court, such an order could not have been passed. He relied on the case of Hukamaram v. State of Rajasthan 1982(2) CrLJ 2341 and submitted that evidence for purpose of section 319 CrPC does not include statements recorded under sections 161, 164 and 202 of the Code of Criminal Procedure. The evidence must be recorded by the Court on the basis of which that Court gets jurisdiction under section 319 of the Code of Criminal Procedure. He also relied on the cases of Joginder Singh v. State of Punjab AIR 1979 SC 339, Delhi Municipality v. Ram Kishan AIR 1983 SC 67 and Shri Mahant Amar Nath v. State of Haryana AIR 1983 SC 288.

4. Shri Singh, learned counsel for the State, assisted by Shri D. V. Pendharkar and Kumari Chanchal Sharma, argued that the Sessions Court, prior to framing of the charge, can, without recording evidence, summon a person as an additional accused on the basis of documents and the final report of the investigating officer under section 173 of the Code of Criminal Procedure independently of the provisions under section 319 CrPC. Reliance was placed on the cases of Raghubans Dubey v. State of Bihar AIR 1967 SC 1167 and Hareram v. Tikaram AIR 1978 SC 1568.

5. The following question was referred to in the case of Latfuf Rahman v. State 1985(2) CrLJ 1238 for consideration :

"Whether the Court of Sessions, without itself recording evidence, can summon a person to stand trial as an accused (along with others committed to it by a Magistrate) on the basis of documents in the final report of the Investigating Officer under section 173 of the Code of Criminal Procedure, 1973 independently of the provisions of section 319 of the said Code?"

The Full Bench replied in the affirmative holding that if a Magistrate or the Court of Sessions takes cognizance of the offence, it is not only within the Court's powers to summon anyone who, on the adequate materials, appears to it to be prima facie guilty of the said offence but indeed it is its duty to do so. Further, a Magistrate trying a warrant case, when considering the question of the framing of the charge under sections 239 and 249, can summon an offender as an additional accused without recording evidence, if he were satisfied on the basis of the report under section 173 that a prima facie case was made out against him. Once it is so, there is no rationale whatsoever for holding that under identical and, in any case, similar power under sections 227 and 228, the Court of Sessions should be denuded of the right to summon an additional accused.

6. The said Court gave the answer as under:

".... the Court of sessions prior to the framing of the