JUDGMENT V. Kumar, J. - Revisionist Mst. Dharma has filed this revision petition against the order dated 10th November, 1981 passed by Sri K.C. Agarwal, II Additional Sessions Judge, Bahraich, summoning the revisionist Smt. Dharma under Section 319 Cr. P.C. for being tried for the offence under sections 323, 328 and 380 I.P.C. 2. The police submitted a charge sheet under Section 328 I.P.C. against the accused Bharose. The case was submitted to the Court of Sessions by the Magistrate. There was only one accused namely, Bharose. Against accused Bharose the II Additional Sessions Judge framed charges under Sections 328 and 380 I.P.C. on 6th October 1981. 3. Thereafter, an application was. moved to this effect that accused Bharose had died. On 10th November 1981, Ganpat who was the informant in the case, gave statement to this effect that Bharose had died on 5th November 1981. Obviously there was question of abatement of the case which was pending before the II Additional Sessions Judge only against Bharose. The Additional Sessions Judge called for the report of the police in connection with the death of accused Bharose. Before receipt of any report from the police an application was improved from the side of the state on 10th November 1981 before the Second Additional Sessions Judge to summon Smt. Dharma under the provisions of Section 319 Cr. P.C. to stand trial. The trial Court thereupon passed the impugned order for summoning Smt. Dharma as an accused, under Section 319 Cr. P.C. for trial for the offence and thus, allowed the application of the State. 4. Section 319 Cr.P.C. which is relevant for the purpose is reproduced below:- "319 (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 summon- ed, 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. (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 be commenced afresh, and the witness re-heard: (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." 5. The contention of the learned counsel for the applicant is that it is only on the basis of the evidence available before the trial Court to the effect that Smt. Dharma has committed the offence in question that she could legally be summoned by the trial Court to stand trial and not otherwise. His contention is that in the instant case, there was no evidence available before the trial Court to form the opinion that accused Smt. Dharma had committed the offence. In this connection the learned counsel for the applicant has also relied on the case of Vishwa Nath v. State, 1980 Luck L.J. 24 decided by a Single Judge of this Court and reported in 1980 Lucknow Law Journal, 247. In that case reference was also made to the case Jogendra Singh v. State of Punjab, AIR 1979 SC 339 In the case of Vishwa Nath it has been Id that simply on the basis of the first information report or statements recorded by the Investigation Officer during the course of investigation, a person cannot be summoned as accused under Section 319 Cr. P.C. for the reason that they themselves do not constitute evidence. In the impugned order the learned Sessions Judge has mentioned that there was evidence available on the record against Smt. Dharma for having committed the offence by her jointly with Bharose, but he has not at all referred to any such evidence, nor the learned counsel for the State has been able to lay his hand on any material on the record to make out that there existed any legal or admissible evidence on the record to make out that Smt. Dharma has committed the offence. Mentioning the name of Smt. Dharma in the first information report or in the statement of witnesses recorded under Section 161 Cr.P.C. would not by themselves constitute lawful evidence to be taken into account by the trial Court. 6. It is thus obvious that there existed no lawful evidence before the trial Court to form the opinion that the accused Smt. Dharma had committed the offence alongwith accused Bharose. Accordingly, the revision is allowed. The impugned order passed by the learned trial Court is set aside. However, it is open to the Additional Sessions Judge to proceed against the accused Smt. Dharma under Section 319 Cr. P.C. if at any stage of the trial it appears to him that the accused Smt. Dharma had committed the offence for which she could legally be tried.