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Counsel for the appellant raised two contentions in support of the appeal. In the first place relying upon sections 193 and 209 of the Code of Criminal Procedure counsel contended that there was a bar to the Court of Sessions taking congnizance of any offence as a Court of original jurisdiction unless the appellants were committed to it by a Magistrate under the Code and it was pointed out that admittedly in the instant case though the F.I.R. had involved the two appellants in the alleged incident, on investigation the police had found no material against them with the result the police had submitted a charge-sheet only against the three accused and not the appellants and even the Committal Order passed by the Magistrate was only in respect of the three accused and, therefore, it was not open to the learned Additional Sessions Judge, Ludhiana, to take the impugned action against the appellants. Secondly, counsel contended that the only provision in the Criminal Procedure Code which empowered the Court to try anybody not prosecuted by the police, was to be found in s.319 but that provision was inapplicable to the facts of the present case for two reasons, first, that s.319 in so far as it is applicable to Sessions Court would be subject to or subordinate to s.193 and second, the phrase " any person not being the accused " occurring in the section excludes from its operation an accused who had been released by the police under s.169 of the Code. and had been shown in column No. 2 of the charge-sheet. Reliance was placed by the counsel upon a decision of the Andhra Another(1) On the other hand, counsel for the respondents contended that there has been a change in the phraseology in ss.193 and 209 of the Code of Criminal Procedure, 1973 as compared to the equivalent provisions contained in the old Code with the result it was not the accused but the case which got committed to the Court of Sessions and once the Court of Sessions had upon such commitment seisin of the case it was open to it to exercise the power under s.319. It was further urged that there was no warrant to read s.319 subject or subordinate to s.193 and that it covered case of suspects like the two appellants and, therefore, the High Court was right in upholding the order of the learned Additional Sessions Judge, Ludhiana.

(1) 1977 Crl. L. J. 415.

The real question centres around the scope and ambit of s. 319 of the Code of Criminal Procedure 1973, under which a power has been conferred upon a criminal Court to add a person, not being the accused before it and against whom during the trial evidence comes forth showing his involvement in the offence, as an accused and try him along with those that are being tried and the question is whether a Sessions Court can add such a person as an accused in the absence of any committal order having been passed against him ? Sub-ss. (1) and (4) of s. 319 are material in this behalf and the said provisions run thus:

It will thus appear clear that under section 193 read with s. 209 of the Code when a case is committed to the Court of Sessions in respect of an offence the Court of Sessions takes cognizance of the offence and (1) [1965] 1 S. C. R. 269.

2-978SCI/78 not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under s. 319(1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. Looking at the provision from this angle there would be no question of reading s. 319(1) subject or subordinate to s. 193.

As regards the contention that the phrase "any person not being the accused" occuring in s. 319 excludes from its operation an accused who has been released by the police under s. 169 of the Code and has been shown in column No. 2 of the Charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like s. 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence come before the Criminal Court are included in the said expression.