ORDER

Petitioners were accused Nos.1 to 3 in C.C.No.10/2012 pending before the Civil Judge Senior Division and CJM, Chamarajanagar, for the offences punishable under Section 143, 302, 201 R/w 149 of IPC. Petitioners have challenged the proceedings initiated against them, as well as the order taking cognizance.

2. On the basis of the report lodged by respondent No.2 on 12.02.2011 that Mohammed Azgar was murdered, respondent Police registered Crime No.20/2011 for the offence punishable under Sections 143, 302, 201 r/w Section 149 of IPC. After completing the investigation, the respondent Police filed a charge sheet for the offence punishable under Sections 143, 120-B, 302, 201 r/w Section 149 of IPC. The respondent No.2 being the wife of Mohammed Azgar was cited as a witness (C.W.13) and her statement under Section 161 of Cr.P.C. was recorded. The trial Court took cognizance of the offence in Spl.Case.No.26/2012 for the offences punishable under Sections 143, 120-B, 302, 201, r/w Section 149 IPC and secured the accused who were later released on bail. The accused were charged for the offences punishable under Sections 143, 120-B, 302, 201, r/w Section 149 IPC. The accused pleaded not guilty and claimed to be tried. In the meanwhile, C.W.13 lodged a private complaint acquitting accused Nos.1 to 3 of committing the murder of her husband Mohammed Azgar. In the meanwhile the evidence of C.W.13 was recorded on 08.06.2013. Later her sworn statement in the private complaint was recorded on 20.02.2014. The trial Court took cognizance of the offence punishable under Sections 302, 201 r/w 34 of IPC and issued process against the accused in C.C.No.10/2012. Being aggrieved by the same, the present petition is filed.

3. Learned counsel for accused Nos.1 to 3 submits that when once a charge sheet is filed and the cognizance is taken by the trial Court and committed for trial before the Sessions Court, trial Court could not have entertained the private complaint at the behest of C.W.13 who was already examined. He submits that, since respondent No.2 is cited as witness in Spl.Case No.26/2012, the powers of the Sessions Court under Section 319 of Cr.P.C. is always open, and the Sessions Court could proceed against the person who is found to be an accused, notwithstanding the fact that he/she is cited as a witness in the case. He therefore submits that the prosecution of the petitioners in C.C.No.10/2012 is wholly unwarranted.

4. Respondent No.2 though served with the notice of the petition, has not appeared.

5. Learned HCGP submits that, respondent No.2 as well as accused/petitioner Nos.2 and 3 herein are cited as witness in Spl.Case No.26/2012, but the accused No.1/petitioner No.1 in the present case was neither cited as witness nor was accused in Spl.Case No.26/2012. He therefore prays that both cases C.C.No.10/2012 and Spl.Case No.26/2012 be taken up together.

6. It is not in dispute that respondent No.2 who was cited as witness in Spl.Case No.26/2012, had appeared before the Court and recorded her evidence on 08.06.2013. Long thereafter, she recorded her sworn statement in PCR No.1/2012 on 20.02.2014, which ended up in trial Court taking cognizance for the offence punishable under Sections 302, 201 r/w 34 of IPC in C.C.No.10/2012. When the case is already committed and the trial is under progress, trial Court could not have entertained a private complaint at the behest of respondent No.2, in view of the Section 319 of Cr.P.C. which reads as follows:

"319. Power to proceed against other persons appearing to be guilty of offence. -(1) Where, in the course of any inquire 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."

7. The Hon'ble Apex Court in the case of "Dharam Pal and Others Vs. State of Haryana and Another" rep