Criminal Miscellaneous No.24143 of 1997 ------- In the matter of an application under section 482 of the Code of Criminal Procedure -------- 1. Buchchi Devi wife of Sri Siya Ram Kamat 2. Parwati Devi, wife of Shivu Kamat 3. Anil Kamat, son of Sri Jagdish Kamat 4. Jagdish Kamat son of Sri Bhola Kamat 5. Kameshwar Kamat son of Sri Bhola Kamat All resident of village- Nunupatti, P.S. and District Supaul .....Petitioners Versus The State Of Bihar ....... Opposite Party ----------- For the petitioners: Mr. Ranjan Kumar Jha, Advocate For the State: Lala Kailash Bihari Prasad, Sr. Advocate ------------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH Shiva Kirti Singh, J. Heard learned counsel for the petitioners and Lala Kailash Bihari Prasad, learned Senior counsel for the State. 2. By the impugned order passed later on 19-11- 97, learned Sessions Judge Saharsa has allowed a petition dated 3-10-1997 filed on behalf of prosecution for summoning the petitioners as accused to face trial on the basis of materials in the case diary. Hence, now the petitioners have been made accused in Sessions Trial No. 73/97 (s) pending before 2nd Additional Sessions Judge, - 2 - Saharsa camp at Supaul. The case arises out of Supaul PS case no. 318/94. 3. Learned Sessions Judge has mentioned that the petition is under section 193 of the Code of Criminal Procedure (hereinafter referred to as Cr. P. C.) and on the basis of case diary he has allowed the same. 4. According to learned counsel for the petitioners section 193 of Cr. P. C. provides a bar that except as otherwise expressly provided by the Cr. P. C. or by any other law in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed by a Magistrate. That provision of law does not entitle the Sessions Court to summon a person not sent up for trial for the purpose of facing trial. He has pointed out that such power is vested in the trial court under section 319 of Cr. P. C. but that power to proceed against other persons appearing to be guilty of an offence can be exercised only when the evidence recorded in any enquiry or trial discloses that any person not being the accused has committed an offence for which he should be tried together with the accused. - 3 - 5. The parties are in agreement that at a particular stage when the impugned order has been passed no evidence had been recorded by the Sessions Court and, therefore, power under section 319 of Cr. P. C. could not have been exercised. Even the impugned order discloses that learned Sessions Court has not exercised power under section 319 of Cr. P. C. but has only looked into materials in the case diary which cannot be treated to be evidence available on record during the trial. 6. In view of aforesaid submissions and discussions, the prayer made in this application is allowed and the impugned order dated 19-11-97 is hereby quashed. 7. It is made clear that this order shall not stand in the way of trial court in exercising power under section 319 of Cr. P. C., if such power is required to be exercised. Patna High Court The 6th May, 2010 AFR/BKS (Shiva Kirti Singh, J.)