JUDGMENT Poonam Srivastava, J.
1. List is revised. No one is present for the applicant. Learned A.G.A. appears for the State.
2. The applicant Rajdhar has filed this application invoking inherent powers for quashing the order dated 15.4.1999 passed by the Sessions Judge Chitrakoot in Session Trial No. 33 of 1993 under Section 302 I.P.C. The First Information Report was registered on 24.5.1991 at 7:40 a.m. against the five accused namely Rajdhar s/o Vijyanand, Premika s/o Vijyanand, Vishnu Dayal s/o Raghuman, Hemraj s/o Mahesh and Dhanpat, s/o Raghuman, According to the narration of the F.I.R., the husband of the complainant Malkhan @ Bulbul was done to death in the middle of intervening night 23-24.5.1991. After completion of investigation, charge sheet was submitted against three accused Lavelesh s/o Khuraki, Dafola @ Raja Bhai and Mohan s/o Mahesh Chaubey, all of them were not named in the F.I.R. The Session Trial commenced against the said three accused under Sections 302, 120 I.P.C. Smt. Chandrawati wife of the deceased was examined as P.W.1, Santosh Kumar son of the deceased was examined as P.W.2. The learned Sessions Judge, Chitrakoot summoned the present applicant Rajdhar along with other two accused under Section 319 Cr.P.C. While summoning the accused, the learned Sessions Judge recorded a finding that the prosecution witnesses had made clear allegations against the named accused in the First Information Report and also stated that the Investigating Officer did not investigate the matter under the influence of the accused and submitted the charge sheet against different persons, who are not named in the First Information Report. Two named Accused Vishnu Dayal and Hemraj had already died before the trial could be completed as such three accused including the present applicant were summoned. Specific allegations were leveled against the investigating officer by the two witnesses and affidavits were also given by them, which is Exhibits Ka-2 and Ka-5. Eyewitnesses have clearly exonerated the three persons namely Lavlesh, Dafola @ Raja Bhai and Mohan against whom the police submitted charge sheet. On the basis of said statement, the named accused were summoned to face the trial i by means of the impugned order. Argument advanced on behalf of the applicant is that Section 319 Cr.P.C. contemplates summoning and trial of such other persons, who have not been facing the trial and the court feels from the evidence recorded during the trial or inquiry that those person should be tried together with the other accused for the offence, it can proceed against such persons. Provision of Section 319 Cr.P.C. gives ample power to the court to take cognizance and add "any person" not being accused before it and try him along with accused persons sent up for the trial. It has emphatically been stated that since the three accused, who were facing the trial have been acquitted by means of common order: dated 15.4.1999, nothing remains to be tried and, therefore, the trial has come to an end and the impugned order stands vitiated in law. Since no trial is pending, the learned Session Judge could not exercise powers under Section 319 Cr.P.C. Counter affidavit has been filed by the Sub Inspector Bajrangi Singh to which rejoinder affidavit has also been filed. No counter affidavit has been filed by the opposite party No. 3 The order sheet dated 9.8.2000 shows that notices have been received back after due service but no counter affidavit has been filed on behalf of the complainant. In. the present case, the learned Sessions Judge had passed a composite order under Section 319 Cr.P.C. as well as by the same order he has recorded a finding of acquittal in respect of accused Lavlesh, Dafola @ Raja Bhai and Mohan. After hearing counsel for the applicant and learned A.G.A. for the State, it is necessary to examine Section 319 Cr.P.C., which is reproduced below:
319. Power to proceed against the 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.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Sub-section (1) then-
(a) the proceedings in respect of such person shall he commenced afresh, and the witnesses reheard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
3. Section 319(4)(a) prescribes that the proceedings in respect of such persons, who have been summoned during course of the trial on the basis of evidence shall be commenced afresh, and the witnesses be re-heard. Sub clause (b) of clause 4 of Section 319 Cr.P.C. entitles the court to proceed against the newly added accused as they were accused at the time when the court took cognizance of the offence. In the instant case, the present accused Rajdhar along with four other accused were named in the First Information Report and specific allegations were leveled against them. The learned Sessions Judge has Very categorically discussed the statement of the two witnesses P. W. 1 and P.W.2. on the basis of which, he had arrived at the conclusion that the named accused should also be tried. I do not think that there is any illegality "in that part of the judgment. However, the Sessions Judge has completely erred in law in acquitting the three accused, who were sent up for trial by means of common judgment and order on the basis of evidence of P.W.I and P.W.2 alone. Perusal of the charge sheet shows that there are as many as 34 witnesses mentioned, which the prosecution proposed to examine. In the circumstances, before the prosecution has completed its evidence and arguments are advanced after an opportunity for defence is afforded, the trial is still in progress and it cannot be said to be completed. Learned Sessions Judge erred in law in recording the finding of acquittal even before the trial was completed and that part of the judgment is against the procedure provided in Chapter XVIII of the Criminal Procedure Code. This chapter, provides "trial before the court of sessions which begins from the opening case of prosecution". Section 232 Cr.P.C. defines acquittal:-
If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.
It is thus evident that after the prosecution evidence is completed and the examination of the accused and hearing of the prosecution and the defence, only an order of acquittal can be recorded whereas in the present case after the evidence of two witnesses namely P.W.. 1 Chandrawati and P.W.2 Santosh Kumar, named accused were summoned. Simultaneously, an order of acquittal has been passed by the Sessions Judge, which is absolutely illegal and cannot be left to stand. "The evidence envisaged in Section 319 Cr.P.C. is the evidence rendered during trial of the case and the material placed before the committal court cannot be treated as evidence collected during inquiry or trial". In the circumstances, if the Sessions Judge was of the opinion on the basis of the evidence recorded during the trial that the named accused should also be tried, he was, absolutely within his right to summon the named accused including the present applicant but he could not have recorded a finding of acquittal in respect of those three accused, who were facing the trial. Looking to the facts and circumstances of the case, the application is finally disposed of and the case is remanded to the learned District and Sessions Judge, Chitrakoot to issue notices to the three accused, who were facing trial and have been acquitted and thereafter commence the trial afresh in respect of the present applicant along with other two accused, who have been summoned under Section 319 Cr.P.C. Learned Sessions Judge is directed to afford an appropriate opportunity to the prosecution to produce as many witnesses as it thinks proper after affording an opportunity to the defence and after completion of the arguments, the court shall pass final judgment. The order dated 15.4.1999 passed in Session Trial No. 33 of 1993 is set aside to the extent of acquittal of the three accused by means of the common order. 1 am conscious of the fact that the three accused namely Lavlesh, Dafola and Mohan have not been arrayed as a party as such I direct the learned Sessions Judge to issue notice to the three accused to face the trial but they may not be taken into custody as they were already on bail at the time when the relevant order was passed on 15.4.1999. Since the sureties were discharged, they will only be required to furnish fresh bonds.
4. Learned Sessions Judge, Chitrakoot is further directed to complete the trial expeditiously preferably within a period of six months from the date a certified copy of this order is received. Registry is directed to send a certified copy of this order to the District Judge Chitrakoot for compliance of this order so that Session Trial No. 33 of 1993 be completed within the stipulated period.
5. With the aforesaid observations, this application is finally disposed of and the case is remanded for afresh trial in accordance with the directions given hereinabove.