Court of Session's power after committal extends to summoning omitted accused on prima facie record, even before evidence

Section 319 CrPC applies only when evidence recorded in inquiry or trial shows that a non-accused person should be tried with the existing accused, so it cannot be invoked merely on the basis of the police report or case diary. However, after committal under Sections 190, 193 and 209, the Court of Session has original jurisdiction over the committed case and may, at the stage of taking cognizance, summon a person not sent up by the police if prima facie complicity appears from the record. The order was therefore sustainable on that basis, and the appeal was dismissed.

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Issues: Whether the Court of Session, after committal of a case under the Code of Criminal Procedure, 1973, could summon a person not named in the police report to face trial before any evidence was recorded, and whether such power could be exercised on the basis of the case diary and material accompanying the police report.

Analysis: Section 319 of the Code is an enabling provision that operates when, in the course of an inquiry or trial, it appears from evidence that a person not being an accused has committed an offence and should be tried with the existing accused. That provision contemplates evidence recorded at the trial and is not attracted merely on the basis of the police report or statements collected during investigation. At the same time, the scheme of Sections 190, 193 and 209 of the Code shows that cognizance is of the offence and not the offender, and that once a case is committed to the Court of Session, the earlier bar attached to the old wording of Section 193 is removed. The Court of Session then has complete original jurisdiction over the committed case, and may, at the stage of taking cognizance after committal, summon a person whose complicity prima facie appears from the record, even though that person was not sent up by the police.

Conclusion: The power under Section 319 had not yet arisen because no evidence had been recorded, but the order was nevertheless sustainable because the Court of Session could summon the appellants under Section 193 read with Section 209 on the basis of the record before it. The appeal was dismissed.

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