( 1 ) THE petitioners in Crl. P. 248 of 1975 are A. 10 and A. 13 to A. 15 in SC. 4 of 1975 in the Court of the First Addl Sessions Judge, Bangalore. The petitioners in Crl. P. 253 of 1975 are A17 to A20 in the said Sessions Case. The petitioners will be designated in the course of this order as stated above. ( 2 ) AT about 7 A. M. on 6-12-1973, Ajit Dutt CW. 2 was stabbed while he was in the Central Avenue of the colony of the Indian Telephone Industries ltd. Bangalore. The incident was reported to the police and investigation commenced. On investigation it was found that A2 and A3 to A6 had the common intention of committing the murder of CW. 2 and in pursuance of that A2 had stabbed and A1, A7 and A14 had abetted the commission of the offence. It was also disclosed during the investigation that between 20-9-1973 and 6-12-1973 the 20 accused persons arraigned in the charge-sheet, had conspired to murder CW. 2. After. investigation was completed, a charge-sheet was filed alleging that A2 to A7 were the assailants and that all the 20 accused had committed offences punishable under ss. 324, 326 and 307 all read with S. 34 IPC," and further that Al and A7 and a14 had committed offences punishable under the aforesaid sections with the aid of S. 109 IPC. The Metropoliton Magistrate, V Court, Bangalore, on finding that one of the offences was exclusively triable by the Sessions court, committed all the 20 accused under S. 209 of the Crlpc, 1973 (to be hereinafter referred to as the new Code), and stated in his order that offences that appeared to have been committed by them were tinder Sections 324, 326 and 307 all read with S. 34 IPC. ( 3 ) WHEN the prosecution opened its case before the First Addl Sessions judge Bangalore, the prosecution contended that a charge under S. 120b, ipc also ought Ho b framed while the defence contended that there were no sufficient grounds for proceeding against A10 to A20 for any of the offences and they ought to be discharged. The First Addl Sessions Judge passed his order d|. 8-8-1975. The First Addl Sessions Judge passed his order d|. 8-8-1975. By that order, he discharged All, A12 and a16 and also held that a charge under S. 120b of the IPC in regard to the remaining accused was to be framed. He adjourned the case for framing of charges. It is this order that is challenged in this petition. ( 4 ) THE learned Advocate appearing on behalf of the petitioners contended that the charge-sheet having been filed against the 20 accused for having committed offences punishable under Ss. 324, 328 and 307 all read with Ss. 34 and 109 IPC and the Magistrate having committed all the accused to the Sessions Court for having committed offences punishable under ss. 324, 326 and 307 all read with S. 34 IPC, the First Addl Sessions Judge not being a Court of original Jurisdiction, had no power, in law, to hold that a charge u/s. 120b IPC also could be framed by him Reliance was placed on the decisions in Emperor v. Stewart AIR. 1927 Sind 28. and in pandaran Mani v. State of Kerala AIR. 1966 Ker. l, FB. . In this connection they pointed out that S. 193 of the new Code deals with taking cognizance of offences by Courts of Sessions and that provision is similar to the provision in Sec. 193 (1) of the crlpc, 1898 (to be hereinafter referred to as the old Code ). Sec. 193 (1) of the old Code reads as follows : 199. Cognizance of offences by Courts of Session: - (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf," section 193 of the new Code, reads as follows : 193. Cognizance of offences by Courts of Session.-Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. Cognizance of offences by Courts of Session.-Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. " ( 5 ) A reading of the above provisions makes it manifest that in place of the words the accused has been committed' in S. 193 (1) of the old Code, the words the case has been committed' have been used in S. 193 of the new code. S. 207a of the old Code provided the procedure to be adopted by a Magistrate in every enquiry of a case triable exclusively by a Court of session or' by a High Court, and which had been instituted on a police report. All that procedure has been done away with in the new Code as is clear from S. 209 of the new Code. Sec. 209 of the new Code reads as follows :"209. Commitment of case to Court of Session when offence is triable exclusively by it-When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- (a) commit the case to the Court of session; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during and until the conclusion of, the trial (c) send to that Court the record of the case and the documents and articles if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Sessions. " ( 6 ) ANOTHER provision which has a bearing on this aspect is S. 226 of the old Code : 226. Procedure on commitment without charge or with imperfect charge.-When any person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court, or, in the case of a High Court, the Clerk of the State, may frame a charge, or add to or otherwise alter the charge as the case may be, having regard to the rules contained in this Code as to the form of charges. This section is deleted in the new Code because, as is evident, S. 209 of the new Code is not similar to S. 207a of the old Code, and a Magistrate does not hold such a detailed enquiry and frame a charge or charges while passing an order of committal. In Raghubans Dubey v. State of Bihar AIR. 1967 SC. 1167. it has been held that 'police report' mentioned in S. 207 (A) is the report mentioned in S. 190 (1) (b) and once cognizance is taken under S. 190 (1), (b), a proceeding is instituted within Section 207 (A ). It has also been held that taking cognizance of means cognizance of Offence and not of offenders. On considering the provisions of the old Code, the Supreme court held that a Magistrate who takes cognizance of an offence can proceed against offenders not sent up by police and that summoning of additional accused is part of the proceeding initiated by taking cognizance of offence. The decision in Mehrab V. The Crown AIR. 1924 Sind 71. has been approved in this case. ( 7 ) THE question now is whether the First Addl Sessions Judge has power to frame a charge under S. 120b of IPC, even though that section does not find a place in the charge-sheet and in the order of committal passed by the Magistrate. The provisions 6f both S. 193 (1) of the old Code and S. 193 of the new code, show plainly that a Court of Session is not a Court of original jurisdiction in regard to such matters and as such cannot take cognizance of an offence. S. 193 (1) of the Old Code shows that When an accused is committed to a Court of Session, the Court of Session has power to take cognizance of any offence as a Court of original jurisdiction. S. 193 of the new code lays down that a court Of Session has power to take cognizance of any offence when a case has been committed to it. Under the old code, a magistrate holding a commtital enquiry, frames a charge or charges and passes an order of commitment. The Court of Session records the plea of the concerned accused. Under the old code, a magistrate holding a commtital enquiry, frames a charge or charges and passes an order of commitment. The Court of Session records the plea of the concerned accused. Under the new Code, a Magistrate holding such an enquiry, is not required to go into the details of the material placed before him, conduct a detsiled enquiry, and frame a charge or charges while passing an order of commitment That power a Magistrate exercised under the Old Code is vested in the court of Session as per the provisions of the new Code. It is incumbent on the Court of Session, under the new code, to find out whether there are or not sufficient grounds for proceeding against the accused, and if in the opinion of the Court of Session there are sufficitnt grounds, frame Charges and if there are no sufficient grounds discharge the concerned accused. This is provided in Sec. 227 of the new Code. Section 227 of the new Code does set state anything about an offence or offences for the commission of which the Court of Session has to apply its mind. For this purpose the Court of Session has to take into consideration the case that has been committed to it while under the provisions of the old Code the Court of Session had to take into consideration the case against the accused committed to it. That is all the distinction between the two sets of provisions. S. 226 of the old Code empowered the Court of Session to frame a charge, or add to or otherwise alter the charge, as the case may be, bearing in mind the Rules contained in the old Code as to the form of charges, when a person was committed for trial without a charge or with an imperfect or erroneous charge, to it. Three Illustrations as follows are found below section 226 of the old Code : (1) A is charged with the murder of C. A charge of abetting the murder of C may be added or substituted. (2) A is charged with forging a valuable security under Section 467 of the Indian Penal Code. A charge of fabricating false evidence under Section 193 may be added. (3) A is charged with receiving stolen property knowing it to be stolen. (2) A is charged with forging a valuable security under Section 467 of the Indian Penal Code. A charge of fabricating false evidence under Section 193 may be added. (3) A is charged with receiving stolen property knowing it to be stolen. During the trial, it incidentally appears that he has in his possession instruments for the purpose of counterfeiting coin, A charge under Section 235 of the Indian Penal Code cannot be added. ( 8 ) IT is already noted that this section has been deleted in the new Code. To my mind, it is clear that under this provision the Court of Session had the power to do what the Magistrate could have done after holding the committal enquiry but within the ambits of the guidelines provided by the said three illustrations. One of the important guidelines, as is apparent is that the Court of Session could not take cognizance of an offence or offences falling outside the order of commitment passed by the Magistrate. In puttu lal v. Rex AIR. 1949 All 88 it has been laid down that a Court of Session has power to add a new charge if the evidence produced in the Court of the committing Magistrate and the circumstances of the case justify the framing of a new charge. It was held that where the accused were committed to Sessions for trial under S. 304 of the Indian Penal Code, the Sessions judge had power to add a new charge under S. 342 IPC. I respectfully agree with this view. In Emperor v. Stewart it has been laid down that the object of S. 193 of the old Code in requiring that a Court of Session shall not take cognizance of an offence unless the accused has been committed to it by a competent Magistrate is to secure to the accused who is charged with a grave offence, a preliminary enquiry which would afford him the opportunity of becoming acquainted with the circumstances of the offence, and to enable him to make his defence, and that that object would indubitably be frustrated if a fresh charge is substituted or added in the Sessions Court on which the prosecution have not led evidence even in the Sessions Court but intend to lead evidence Further on, it has been held as follows: it is doubtful if See. 227 Crpc. 227 Crpc. intended to confer jurisdiction on the Sessions Court to add or substitute a new charge on fresh evidence led or to be led in the Sessions Court for the. first time'. In this connection, it has been observed that it is always open to the Crown to have him acquitted upon the original charge and to have him charged anew before the Magistrate according to the new facts. There cannot be any quarrel with this proposition of law and it is apparent that it is in accordance with what has been held by me above. What follows from the above discussion is that when an accused came to be committed before a Court of Session, under the old code, the court of Session had no power to take cognizance of an offence or offences when that offence or those offences were wholly outside the ambit of the order of commitment and did not flow from the evidence produced in the Court of the committing Magistrate. ( 9 ) IN Pandaran Mani's case (2) the Full Bench of the Kerala High Court has, while interpreting S. 193 (1) of the Old Code, laid down as follows: the prohibition it is to be noticed, is against taking cognizance of the act or omission unless there is a commitment therefor, not against taking cognizance of a different mens rea, or a subsequent consequence of the act, making it punishable under a different, provision of the law. Hence, so long as the act which is the subject-matter of the trial is also the subject-matter of the commitment, the section can be no bar to an alteration or addition to the charge on which the commitment is based so as to take notice of a subsequent consequence or a different mens rea making the act punishable under a different provision of the law any more than so as to take note of an error by which a wrong provision of the law has been cited. Further it has been observed as follows:"it is clearly the physical act or deed the actus alone, not even the actus reus , that caused the death of the victim, in the instant case the stabbing of the victim, Krishna, by the 2nd and 3rd accused; and neither the mental element accompanying these physical acts nor the consequence of Krishnan's death is part of those acts. Those physical acts were the subject matter of the preliminary enquiry and the commitment as also of the charge on which the commitment proceeded, and that being so. the trial on a charge of murder in respect of these acts, the consequence cf Krishnan's death, making the acts punishable under S. 302 and not under S. 307 of the Indian Penal Code, having ensued after the commitment is warranted by S. 193 (1) of tht criminal Procuder Code. " ( 10 ) WHAT had happened in the said case was that the victim of assault was surviving when the order of commitment was passed. The cnarge framed by the committing Magistrate was under S. 307 of IPC. By the time tht sessions trial was opened, the victim expired and the prosecution urged that a charge under S. 302 IPC. ought to be framed. To. my mind it is crystal clear that what has been held in this decision is what has been already found by me to be the position in law on the reading of S. 193 (1) of the old code. The learned counsel appearing on behalf of the petitioners relied on a particular observation made by the Full Bench of the Kerala High court in para 5 of the judgment. That observetion reads ae follows: but, if the commitment is, to take an extreme example, on a charge of murder there cannot be a trial on a charge of forgery, even it evidence of the forgery might be on record as relevant to the charge of murder for the purpose, for example, of providing motive; nor, if the commitment is on a charge of the murder of A. a trial on a charge of causing hurt to B even if it should come out in the evidence that hurt was caused to B in the course of the same transaction. On the basis of the above Illustration, the learned counsel arguad that while A and B are going together, the concerned accused attack them and by that attack murder A and cause hurt to B: and if as per the provision of the old code the committing Magistrate frames a charge under S. 302 ipc. On the basis of the above Illustration, the learned counsel arguad that while A and B are going together, the concerned accused attack them and by that attack murder A and cause hurt to B: and if as per the provision of the old code the committing Magistrate frames a charge under S. 302 ipc. , against the accused only in regard to the murder of A, the Court of session has no po,wer to frame the charge in regard to the accused having voluntarily caused hurt to B. I am of opinion that such is not what their lordships'of the Kerala High Court had in mind because the very next sentence in thp judgment immediatelv after the above excerpted observation, is as follows:"the illustrations to S. 226 of the Code (which are illustrations also to S. 227. the latter so far as Sessions trials are concerned, only laying down the point of time before which an alteration under S. 226 must be made) make this amply dear and it is hardly necessary to go to the decided cases. " ( 11 ) EVEN if their Lordships of the Kerala High Court had such reasoning also in mind while making the above excerpted observation, that aspect of the matter is no longer available as S. 226 appearing in the old code has been deleted in the new Code. It is to be particularly borne in mind that the words 'any offence' are found in 3. 193 (1) of the old Code and S. 193 of the new Code, these words, when considered in the light of the discussion contained in the preceding paragraphs, show that even under the old Code, the Court of Session had, on the accused being committed to it, power to frame a charge in regard to an offence or offences that flowed out of the evidence that was available to the committing Magistrate. The words 'the accused has been committed' in S. 193 (1) of the old Code are replaced by the words, 'the case has been committed' in S. 193 of the new Code. Recording of evidence by a Magistrate holding a committal enquiry, is no longer there under the new Code. The words 'the accused has been committed' in S. 193 (1) of the old Code are replaced by the words, 'the case has been committed' in S. 193 of the new Code. Recording of evidence by a Magistrate holding a committal enquiry, is no longer there under the new Code. Therefore, the position in law under the new Code is that when the case has been committed to a Court of Session, the Court of Session gets power to take cognizance of any offence or offences that flow out of the material produced by the prosecution in support of the case that has been committed to the Court of Session. A case for the prosecution is always based on a set of acts said to have been committed. Those acts would be the subject-matter of the trial in question. That is also how the Kerala High court has observed in Pandaran Mam's case (2) , In this view of the matter, i hold that under the facts and circumstances of this case there is power in the Court of Session to frame a charge under S. 120b of IPC. ( 12 ) IT WPS lastly argred by the learned counsel for the petitioners that the material before the First Addl Sessions Judge does not make out sufficient ground or grounds for proceeding against the petitioners and, hence, the first Addl. Sessions Judge ought to have discharged the petitioners. A reading of the order in question, shows that cnly the charge under S. 120-B of the IPC is going to be framed against the petitioners. The First Addl. Sessions Judge has discharged A. 11, A. 12 and A. 16 on the ground that there are no sufficient grounds for proceeding against them. The contention of the learned counsel for the petitioners is that the very reasoning applies to the petitioners also. The informant in this case is one Appaiah. C. W. 1. The first information given by him narrates the names of A. 8 to A. 16 and A. 17 to A. 20 in a general manner as associates of A. 1. In his statement dated 6-12-1973, he appears to have stated that A. 1. and his other colleagues already. named by him in the first information, were constantly meeting in the vicinity of the factory. In his statement dated 6-12-1973, he appears to have stated that A. 1. and his other colleagues already. named by him in the first information, were constantly meeting in the vicinity of the factory. In his statement recorded on 13-12-1973, he appears to have stated that A. 10 was present in the gathering of people when A. 1 stated on 20-9-1973 that he would murder Ajit Dutt C. W. 2 because of the service of the dismissal order in question. In that very statement, he appears to have stated that A. 1 used to confer with his friends and associates whose names he had already mentioned in the first information. Further on it appears that he has stated that on 5-11-73 when one Vatal Nagaraj addressed a meeting in front of the I. T. I. , A. 9, A. 12, A. 13, A. 18 and others took leading part. ( 13 ) C. W. 3 B. K. R. Singh appears to have stated in his statement dated 13-12-1973 that after the dismissal of A. 1, he had seen all the accused persons mentioned in the first information given by Appaiah, meeting and talking amongst themselves in front of the factory during the evening hours. Krishna alias Patti C. W. 24 appears to have stated in his statement dated 15-12-1973 that A. 10 and A. 13, had, along with A. 1, gone to his room to talk to one Munegowda. Shyama Raj C. W. 25 appears to have stated in his statement dated 1-1-1974, on seeing certain photographs shown to him, that he had seen a. 8, A. 10, A. 11, A. 12 and A. 13 on two or three occasions in one week while they were talking with Munegowda. Rama Rao C. W. 36 who is the manager of Satkar Hotel, appears to have stated in his statement recorded on 1-1-1974, on seeing the photographs shown to him to the same effect as CW. 25. Lastly Vijaya Kumar C. W. 39 appears to have stated in his statement recorded on 1-1-1974 that too on seeing photographs, to the same effect as c. Ws. 25 and 36. ( 14 ) IT cannot be forgotten that the First Addl. Sessions Judge has discharged a. 11, A. 12 and A. 16 inspite of the material said to go against them being available in the statements of the aforementioned witnesses. 25 and 36. ( 14 ) IT cannot be forgotten that the First Addl. Sessions Judge has discharged a. 11, A. 12 and A. 16 inspite of the material said to go against them being available in the statements of the aforementioned witnesses. It is evident that that material has no bearing on the case committed to the court of Session as the material is innocuous. Similarly it is evident that it is the very material that is levelled against these petitioners. That leads to a conclusion that these petitioners are also entitled to be discharged. In view of the foregoing reasons I allow the petitions, quash the order in question and discharge the petitioners, who are A. 10, A. 13 to A. 15 and a. 17 to A. 20 in Sessions Case No. 4 of 1975, on the file of the First Additional sessions Judge, Bangalore. --- *** --- .