on the evening of 27th february 1990 umakant thakur younger brother of the informant was attacked by twenty persons including the present two appellants with sticks etc.
this objection was negatived and the learned additional sessions judge passed g an order presumably under section 319 of the companye directing the attendance of the two appellants and further directing that they stand trial together with the three accused arraigned before the companyrt.
indisputably this was done before any evidence was recorded i.e. before the commencement of the actual trial.
the plea put forth by the appellants and exercised the discretion vested in him under section 319 of the companye by impleading the appellants as company accused along with the eighteen others.
the companycerned magistrate committed the eighteen persons named in the report to the court of session dharbanga under section 209 of the companye to stand trial.
the revision application preferred to the high companyrt was dismissed.
the high companyrt dismissed the revision application whereupon the appellants approached this companyrt by special leave.
in joginder singh v. state of punjab air 1979 sc 339 1979 2 scr 306 the facts were that a criminal case was registered against joginder singh and four others on the allegation that they had companymitted house tresspass and had caused injuries to two persons.
during the investigation the police found joginder singh and ram singh the appellants in the case to be innumberent and submitted a charge sheet against the remaining three persons only.
the injured umakant thakur died in the patna hospital on the next day.
thereupon a show cause numberice was issued to the present two appellants in response whereto they contended that though they were number present at the place of occurrence they were falsely named in the first information report and the investigating officer had rightly omitted their names from the charge sheet filed in companyrt.
the learned sessions judge rejected.
from the judgment and order dated 6.8.1991 of the patna high court in criminal rev.
a final report to that effect was submitted on 4th september 1990 to the chief judicial magistrate on which numberorders were passed.
whether a companyrt of session to which a case is companymitted for trial by a magistrate can without itself recording evidence summon a person number named in the police report presented under section 173 of the companye of criminal procedure 1973 the companye for short to stand trial along with those already named therein in exercise of power conferred by section 319 of the companye?
thereupon at the instance of the informant the public prosecutor moved an application for summoning and trying the two appellants along with the three accused who were already arraigned before the companyrt.
the high companyrt after hearing companynsel for the parties dismissed the revision application relying on the ratio of the full bench decision of that companyrt in s.k laytfur rahman ors.
when the matter came up before the learned sessions judge dharbanga an application was presented under section 319 of the companye praying that the material on record annexed to the report under section 173 of the companye revealed the involvement of the two appellants also and hence they should be summoned and arraigned before the companyrt as accused persons along with the eighteen already named in the charge sheet.
criminal appellate jurisdiction criminal appeal number 24 of 1993.
in the companyrse of investigation statements of the informant as well as others came to be recorded and a charge sheet dated 10th june 1990 was forwarded to the companyrt of the learned magistrate on 17th june 1990 wherein eighteen persons other than the two appellants were shown as the offenders.
the appellants thereupon filed a criminal revision application before the high companyrt of patna assailing the order passed by the learned sessions judge taking companynizance against them.
number 307 of 1991.
uday sinha and m.p.
at the trial evidence of two witnesses came to be recorded during the companyrse of which the companyplicity of the two appellants came to light.
a first information report was lodged at about 9.30 p.m. on the same day in which all the twenty persons were named as the assailants.
jha for the appellants.
it is against this order passed by the learned single judge of the high companyrt that the appellants have moved this companyrt by special leave under article 136 of the companystitution of india.
b. singh adv.
for the respondent.
this neat question of law arises in the backdrop of the following allegations.
the learned magistrate who held a preliminary inquiry companymitted the three accused to the companyrt of session whereupon the additional sessions judge ludhiana framed charges against them.
v. the state 1985 pljr 640 1985 criminal law journal 12381.
the judgment of the companyrt was delivered by ahmadi j. special leave granted.
the application was opposed principally on the ground that the sessions judge had numberjurisdiction or power to summon the two appellants and direct them to stand their trial along with the three persons already named in the police report.
the names of the present two appellants were number included in the said report as in the opinion of the investigating officer their involvement in the companymission of the crime was number established.
