Jayachandra Reddy, J.
1. The point that falls for consideration in this revision case is whether the Sessions Court can have power under Section 309 Criminal P.C. of 1978 to add any person as an accused to be tried along with the accused committed by the Magistrate.
2. The facts that have given rise to this question may briefly be stated. The Inspector of Police Nandigama, filed a charge-sheet in the Court of the Judicial First Class Magistrate, Nandigama under Sections 147, 323, 324 and 302 read with Section 149, I.P.C. against 14 accused persons and the same was taken on file as P.R.C. No. 4 of 1975 and was committed to the Court of Session, Krishna under Section 209(a), Cr.P.C on 24-6-1975. The same was numbered as Sessions Case No. 39 of 1975. Thereafter the petitioner-complaint filed Criminal Miscellaneous Petition No. 1115 of 1976 on 7-8-1975 to include the 2nd respondent as an accused on the ground that there was sufficient evidence and material against the said person who dealt the fatal blow on the deceased, the complaint 's younger brother. The learned Sessions Judge, after hearing the Additional Public Prosecutor, passed an order on 16-8-1975 adding the 2nd respondent as 15th accused holding that there was sufficient evidence and material against him. In pursuance of the warrant issued, the 2nd respondent was brought before the learned Additional Sessions Judge and on his behalf Criminal M.P. No. 1304 of 1975 was filed on 17-8-1975 for discharging him on the ground that the Sessions Court has no jurisdiction directly to take cognizance against the 2nd respondent and add him as one of the accused, who was neither charge-sheeted nor committed. A counter to that petition was filed contending that the 2nd respondent cannot be discharged under Section 227 Criminal P. C as there is sufficient evidence against him. The learned Additional Sessions Judge held that there is sufficient evidence and he cannot be discharged under Section 227 Cr, P. C He however held that the Sessions Court cannot directly take cognizance of an offence against the 2nd respondent and add him as an accused when he has not been committed by the Magistrate and when his name has not been shown in the charge-sheet by the prosecution, The learned Additional Sessions Judge also held that in exercising the inherent power the name of the 2nd respondent can be deleted and accordingly deleted the name of the 2nd respondent from the array of the accused and released him. The present revision is directed against the said order by the complaint , the brother of the deceased.
3. Sri D. Siva Rama Krishna, the learned Counsel for the petitioner contended that Section 319(1) Cr.P.C. of 1973 occurs in the general provisions governing enquiries and trials and that it applies to all the Courts including the Sessions Court and as such the Sessions Court has power to add any accused against whom there appears to be sufficient evidence. Section 319(1) Criminal P.C. reads thus:
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.
This is a new provision which was not there in the old Code. A plain reading no doubt may show that the Sessions Court also can add a person as an accused against whom there is evidence directly during the trial. But so far as taking cognizance of the case is concerned Section 193 has to be looked into, which reads thus:
193. Cognizance of offences by Courts of Session Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
This section categorically lays down that no Court of Session should take cognizance of an offence as a Court of original jurisdiction, Here the 2nd respondent was not shown as an accused in the charge-sheet and he was not before the Magistrate and so he was not committed under Section 209 Cr.P.C. That being so, the Sessions Court cannot take cognizance of an offence as a Court of original jurisdiction against him as laid down under Section 193, Criminal P. C But Sri Siva Rama Krishna, the learned Counsel contends that the present Section 193 Criminal P. C is suitably amended so as to bring it in conformity with Section 193, Criminal P. C According to him under the present Section 193, no Court of Session shall take cognizance of an offence as a Court of original jurisdiction 'unless the case has been committed to it.' It is noticeable that the words 'unless the accused' in the old Section have been substituted by the words 'unless the case' in the new Code. The contention of the learned Counsel is that previously as provided under Section 193 the Sessions Court could not take cognizance of an offence and so could not add any person as an accused when he was not committed and it could only take cognizance against the accused committed by a Magistrate, whereas under the new Section, according to the learned Counsel, it is the case that is being committed and not the accused and so under Section 193(1) which is a new provision, the Sessions Court has ample power during trial to take cognizance of an offence against such accused against whom there appears to be sufficient evidence though they were not committed under Section 209 Cr.P.C. I am unable to agree with the learned Counsel. There cannot be committal of the case without the accused being there. The Magistrate takes cognizance of an offence on the basis of the information placed before him by one of those modes contemplated under Section 190 Criminal P.C. In a case of a police report, which is otherwise called 'charge-sheet' the names of the accused are mentioned and the accused are produced. Then the case against the accused in the charge-sheet is committed to the Court of Session and the accused are remanded to custody as provided under Section 209, Criminal P. C, So, it is the case against the accused that is committed under Section 209, Criminal P.C. when the accused are produced or when they appear before the Magistrate.
4. Under the present committal proceedings as provided under Section 209 Criminal P. C, the Magistrate simply forwards the record. He is not empowered to discharge any of the accused shown in the charge-sheet. So, the amendment of Section 193, Criminal P. G appears to be more in conformity with Section 209 Criminal P. C Previously the committing Magistrate could discharge some accused and commit the rest to the Court of Session and under Section 193 of the old Criminal P.C. the Sessions Court could take cognizance of an offence only against the committed accused, Now under Section 209, Criminal P.C. the Magistrate is committing the entire case, viz. all the accused shown in the charge-sheet. The Sessions Judge under Section 193 of the new Code can take cognizance against those accused in the case committed. So, Section 193 of the new Code is still a bar for the Sessions Judge taking cognizance as an original court of jurisdiction against other than those named in the case committed. So, in this view it must be held that under Section 319 Criminal P.C. the Sessions Court has no power to add any person as an accused other than those shown in the case committed even though there appears to be some evidence against such a person.
5. So the 2nd respondent cannot be added as an accused in the Sessions case.
6. The learned Counsel then contended that even assuming that the Sessions Court has no such power under Section 319 Criminal P.C. still the lower Court in the instant case having added the 2nd respondent as an accused cannot delete him again as it has no such power and that the learned Additional Judge erred in holding that he has inherent power to delete the 2nd respondent from the array of the accused. Even if this argument is to be accepted to be correct no difficulty arises for this Court sitting in revision to rectify the mistake and delete the 2nd respondent from the array of the accused, in view of the conclusions reached above.
7. For these reasons the 2nd respondent has to be deleted from the array of the accused. Accordingly the revision is dismissed.