JUDGEMENT
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(1.)This matter was initially directed to be heard by a Bench of Three- Judges in view of the conflict of opinion in the decisions of two Two-Judge Benches, in the cases of Kishori Singh and Others Vs. State of Bihar and Others, 2004 13 SCC 11; Rajender Prasad Vs. Bashir and Others, 2001 8 SCC 522 and SWIL Limited Vs. State of Delhi and Others, 2001 6 SCC 670. When the matter was taken up for consideration by the Three-Judge Bench on 1st September, 2004, it was brought to the notice of the court that two other decisions had a direct bearing on the question sought to be determined. The first is the case of Kishun Singh Vs. State of Bihar, 1993 2 SCC 16, and the other is a decision of a Three-Judge Bench in the case of Ranjit Singh Vs. State of Punjab, 1998 7 SCC 149. Ranjit Singh's case disapproved the observations made in Kishun Singh's case, which was to the effect that the Session Court has power under Section 193 of the Code of Criminal Procedure, 1973, hereinafter referred to as "the Code", to take cognizance of an offence and summon other persons whose complicity in the commission of the trial could prima facie be gathered from the materials available on record. According to the decision in Kishun Singh's case , the Session Court has such power under Section 193 of the Code. On the other hand, in Ranjit Singh's case , it was held that from the stage of committal till the Session Court reached the stage indicated in Section 230 of the Code, that Court could deal only with the accused referred to in Section 209 of the Code and there is no intermediary stage till then enabling the Session Court to add any other person to the array of the accused.
(2.)The Three-Judge Bench took note of the fact that the effect of such a conclusion is that the accused named in column 2 of the charge-sheet and not put up for trial could not be tried by exercise of power by the Session Judge under Section 193 read with Section 228 of the Code. In other words, even when the Session Court applied its mind at the time of framing of charge and came to the conclusion from the materials available on record that, in fact, an offence is made out against even those who are shown in column 2, it has no power to proceed against them and has to wait till the stage under Section 319 of the Code is reached to include such persons as accused in the trial if from the evidence adduced, their complicity was also established. The further effect as noted by the Three-Judge Bench was that in less serious offences triable by the Magistrate, he would have the power to proceed against those mentioned in column 2, in case he disagreed with the police report, but in regard to serious offences triable by the Court of Session, the Court could have to wait till the stage of Section 319 of the Code was reached. The Three-Judge Bench disagreed with the views expressed in Ranjit Singh's case, but since the contrary view expressed in Ranjit Singh's case had been taken by a Three-Judge Bench, the Three-Judge Bench hearing this matter, by its order dated 20th January, 2005, directed the matter to be placed before the Chief Justice for placing the same before a larger Bench.
(3.)In view of the above, the matter has been placed before the Constitution Bench for consideration.