JUDGMENT 1. - In this petition, under Section 482, Cr.P.C., the petitioners challenge the order dated August 7, 1993, passed by the learned Special Judge, (Sati Nivaran), Jaipur City, Jaipur, in Sessions Case No. 100/93, whereby charges under section 302, IPC, and Section 3Oof the Indian Arms Act were framed against the petitioner No. 1 Radheyshyam and a charge under section 302/ 34, IPC, was framed against the petitioner No. 2- Keshav Singh Saini. By the same order, the learned Special Judge also took cognizance of the offence under section 302/34, IPC, against the Petitioner No. 3-Smt. Prem Devi, in exercise of the power under section 193, Cr. P.C. 2. In order to appreciate the controversy involved in this petition, necessary facts may be stated. Dr. Omprakash Kalia, the father of Kamal Kalia (since deceased) made a report, at Police Station, Sodala, at about 9 p.m. on December 28, 1992. The report related to the murder of his son Kamal Kalia, by a gun fire made by the petitioner No. 1-Radhey Shyam. It may be stated that the informant Dr. Om Prakash was not an eye-witness of the incident. On this report, police registered Crime No. 818/92,under section 302/34, IPC. After registration of the case, the police investigated the matter. Site was inspected by the police. The post-mortem of the dead body was conducted by the Doctor and a post-mortem report was prepared by him, which showed entry and exit wounds on his person caused by a gun fire. After recording the statements of the witnesses and completing all other formalities, the police submitted a charge-sheet against the petitioners-Radhey Shyam and Keshav Singh, in the Court of the concerned Magistrate. The learned Magistrate committed the case to the Court of the learned Sessions Judge, Jaipur City, Jaipur. However, the learned Sessions Judge, vide hid order dated August 4,1993, transferred the said case to the Court of learned Special Judge (Sati Nivaran) cum Additional Sessions Judge, Jaipur City, Jaipur. Thereafter, the impugned order was passed by him, which is under-challenge in the revision petition. 3. It was contended by the learned Counsel that the learned Special Judge committed serious error of law in taking cognizance against petitioner No. 3 Smt. Prem Devi. Learned Counsel also contended that there was no material on the record for taking cognizance against her. According to him, the power under section 193, Cr. 3. It was contended by the learned Counsel that the learned Special Judge committed serious error of law in taking cognizance against petitioner No. 3 Smt. Prem Devi. Learned Counsel also contended that there was no material on the record for taking cognizance against her. According to him, the power under section 193, Cr. P.C. should be exercised by the Court of Session or Additional Sessions Judge sparingly with caution and where the police did not submit a charge-sheet against any accused, the power u / Section 193, Cr. P.C., should not be exercised lightly for taking cognizance against the left out accused. Another limb of argument of the learned Counsel is that the learned Special Judge, to whom the case was made over under section 194, Cr. P.C., had no jurisdiction to exercise the power u /Sec. 193, Cr. P.C., for taking cognizance against the petitioner No. 3-Smt. Prem Devi. For other two accused, it was contended that the deceased himself was aggressor and the gun went off accidentally in the scuffle. It was also contended that there was no common intention of the accused-persons to commit the murder of Kamal Kalia. According to the learned Counsel, the prosecution did not come with true version about the origin of the fight and the manner in which the incident took place. Learned Counsel submitted that, in fact, the deceased-Kama) Kalia, accompanied by 4-5 miscreants, came to the house of petitioner No. 1-Radhey Shyam and assaulted him. Thereafter, Rad hey Shyam some-how, got himself released and went inside his house and brought a licenced gun., In the mean- time, he was assaulted by Kamal Kalia and his associates and there was a scuffle and the gun went off accidentally. 4. On the other hand, the learned Public Prosecutor, assisted by the learned Counsel for the complainant , supported the order of the learned trial Judge. I have given my careful consideration to the above submissions. Section 193, Cr. P.C., empowers the Court of Session to take cognizance of any offence as a Court of original jurisdiction, after the commitment of the case. This provision came for recent consideration of their Lordships of the Supreme Court in Kishun Singh v. State of Bihar (1993 Cr. I have given my careful consideration to the above submissions. Section 193, Cr. P.C., empowers the Court of Session to take cognizance of any offence as a Court of original jurisdiction, after the commitment of the case. This provision came for recent consideration of their Lordships of the Supreme Court in Kishun Singh v. State of Bihar (1993 Cr. L.J. 1700)= I (1993) 54 (SC) Their Lordships, after taking into consideration all the relevant provisions of the Code of Criminal Procedure, held that the powerunder section 319(1), Cr. P.C. for taking cognizance against the left out accused, can be exercised only after the evidence is tendered in the course of an inquiry or trial and from that evidence, it appears that any person not being the accused has committed any offence, for which he could be tried together with the accused. So, their Lordships held categorically that the power u/ Section 319 could be exercised only, if it so appeared from the evidence at the trial and not otherwise. Their Lordships also considered other provisions for taking cognizance. Paras Nos. 13 and 16 of the judgment are relevant and they are reproduced as under: "13. The question then is whether dehors Section 319 of the Code, can similar power be traced to any other provision in the Code or can such power be implied from the scheme of the Code? We have already pointed out earlier the two alternative modem in which the Criminal Law can be sent in motion by the filing of information with the police under Section 154 of the Code or upon receipt of a complaint or information by a Magistrate. The former would lead to investigation by the police and may culminate in a police report under Section 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under Section 190(1)(b) of the Code. In the latter case, the Magistrate may either order investigation by the police under Section 156(3) of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence under Section 190(1)(a) or (c), as the case may be, read with Section 204 of the Code. In the latter case, the Magistrate may either order investigation by the police under Section 156(3) of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence under Section 190(1)(a) or (c), as the case may be, read with Section 204 of the Code. Once the Magistrate takes cognizance of the offence he may proceed to try the offender (except where the case is transferred under Section 191 for commit him for trial under Section 209 of the Code if the offence is triable exclusively by a Court of Session. As pointed out earlier cognizance is taken of the offence and not the offender. This Court in Raghubans Dubey v. State of Bihar, (1967) 2 SCR 423 : AIR 1967 SC 1167 , stated that once cognizance of an offence is taken it becomes the Court's duty to find out who the offenders really are' and if the Court finds 'that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons' by summoning them because' the summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence'. Even after the present Code came into force, the legal position has not undergone a change; on the contrary the ratio of Dubey's cast, was affirmed in Hareram Satpathy v. Tikaram Agarwala, (1979) 1 SCR 349 : AIR 1978 SC 1568 . Thus far there is no difficulty. "16. We have already indicated earlier from the ratio of this Court's decisions in the cases of Raghubans Dubey, ( AIR 1967 SC 1167 ) and Hareram, ( AIR 1978 SC 1568 ), that once the Court takes cognizance of the offence (not the offencer) it becomes the Court's duty to find out the real offenders and if it comes to the conclusion that be- sides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the Court's duty to summon them to stand trial along with those already names, since summoning them would only be a part of the process of taking cognizance. We have also pointed out the difference in the language of Section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a Court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a Lal n reading of Section 193 as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record. The Full Bench of the High Court of Patna rightly appreciated the shift in Section 193 of the Code from that under the old Code in the case of Sk. Jutfur Rahman, (1985 Cr. L.J. 1238 at P 1244) (supra) as under: "Therefore, what the law under Section 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima facie guilty of the crime as well. xxx xxx xxx xxx Once the case has been committed, the bar of Section 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon any individual accused of the crime." We are in respectful agreement with the distinction brought out between the old Section 193 and the provision as it now stands." 5. From the above judgment, it is clear authoritatively that the Court of Session has the power u /Sec. 193 of the Code to summon any left out accused, if his/her involvement in the commission of the crime prima facie appeared from the record of the case. 6. The argument of Mr. Bajwa that the power under section 193 of the Code could not be exercised by the Court of Additional Sessions Judge, to whom the case has been made over, does not appear to he sound. Once it is held that the power of taking cognizance under section 193, Cr.P.C., can be exercised up to the stage of framing the charge, then it is difficult to accept that this power cannot be exercised by the transferee Court, which is required to frame the charge, after the transfer of the case. For the purpose of Section 193, Cr.P.C., an Additional Sessions Judge or Assistant Sessions judge should be given the same power of taking cognizance under section 193, Cr. P.C. Section 6, Cr.P.C., classifies the classes oi Criminal Courts as under: "Sec. 6. Classes of Criminal Courts.- Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:- (i) Courts of Session; (ii) Judicial Magistrates of the First Class and, in any metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrate of the second class; and (iv) Executive Magistrates." Sec. 9 defines Court of Sessions as under:- "Sec. 9. Courts of Session. (1) The State Government shall establish a Court of Session for every Sessions division. (2) Every Court of Session shall he presided over by a Judge, to be appointed by the High Court. (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. (4) The Sessions judge of one Sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in other division as the High Court may direct. (4) The Sessions judge of one Sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in other division as the High Court may direct. (5) Whether the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application. (6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at the place for the disposal of the case or the examination of any witness or witnesses therein." A joint reading of Sections 6 & 9, therefore, makes it clear that an Additional Sessions judge and Assistant Sessions Judge are appointed to exercise jurisdiction in a Court of Session. 7. However, the matter does not end here. The further question is whether there was a material on the record to take cognizance against Smt. Prem Devi in exercise of the power u /Sec. 193, Cr. P.C., when she has not been challenged by the police, after investigation. At the out-set, it may be stated that the power under section 193, Cr. P.C., is really an extra-ordinary power, which is conferred on the Courts of Session and should be used very sparingly and only if compelling reasons exist for taking cognizance against the person against whom action has not been taken. I have perused the entire material on record and, in my view, the learned trial Judge erroneously took cognizance against the petitioner No. 3- Smt. Prem Devi. The un-controverted evidence of the witnesses does not prima facie make out a case under section 302/34, IPC, against her. I have perused the entire material on record and, in my view, the learned trial Judge erroneously took cognizance against the petitioner No. 3- Smt. Prem Devi. The un-controverted evidence of the witnesses does not prima facie make out a case under section 302/34, IPC, against her. It may be stated that the incident took place at the house of the accused-petitioners and, as such, the presence of Smt. Prem Devi, at her house, is only a normal circumstance and by her mere presence in the house, it cannot be inferred that she shared the common intention with the petitioner No.1- Radhey Shyam in committing the murder of Kamal Kalia. The prosecution witness Sakid Hasad Dilawar, in his statement under section 161, Cr. P.C., recorded on December 28,1992, has only stated that the wife of Rad hey Shyam was hurling abuses to Kamal. Similarly, Jitendra Kumar, in his statement, has stated" RADEYSHYAM KI AURAAT KAMAL KALYA KO GALYA DETI HUAI KHE RAHI THI KI HAMARA GHAR MAI PATHER KYOU FANKA." Another witness Navratan Sharma has stated" "RADHEYSHYAM KI AURATT ANDER SA 1-11 KAMAL KALYA KO GALYA NIKAL RAHI THI." Another prosecution witness Jitendra Kumar S/o Mool Chand has stated" RAD- HESHYAM KI AURAT APNA MAKAN KA ANDER SA HI CHILLA RAHI THI KI YEH LOOG PATTHAR MAAR RAHA HA1." 8. Admittedly, there is no allegation against the petitioner No.3 Smt. Prem Devi that she was armed with any weapon or that she either instigated other wise intentionally aided by her act in the commission of the murder of Kamal Kalia. Hurling of abuses from inside the house and that too, to check the pelting of stones on her house, by no stretch of imagination, can lead to an inference that she shared the common intention with Radhey anyani to commit the murder of Kamal Kalia. Consequently, I am of the con firmed view that the learned Trial Judge did not exercise his discretion judiciously in taking cognizance against Smt. Prem Devi and this part of his order deserves to be set aside. 9. The arguments raised on behalf of other petitioners cannot be appreciated, at this stage. Whether the deceased was aggressor or not and whether the gun went off accidentally are such questions of fact, which cannot be decided at this stage. 9. The arguments raised on behalf of other petitioners cannot be appreciated, at this stage. Whether the deceased was aggressor or not and whether the gun went off accidentally are such questions of fact, which cannot be decided at this stage. In fact, it is the defence version which can be examined by the Trial Court, after recording the evidence of the parties. So far as the petitioner No. 1- Radhey Shyam is concerned, there is consistent evidence that he caused the death of Kamal Kalia by making a gun fire. For petitioner No. 2- Keshav Singh, the evidence is that he was by the side of his father with a sword in his hand. The police has also submitted a charge-sheet against him. Even if there is a strong suspicion, which leads the Court to think that there is a ground for presuming that the accused has committed an offence, then it is not open to say that there is no sufficient ground for proceeding against the accused. In State of Bihar v. Ramesh Chand ( AIR 1977 SC 2018 ) , it has been laid down that whereas strong suspicion may not take the place of the proof at the stage of trial yet it may be sufficient for the satisfaction of the Judge to frame a charge against the accused. Therefore, no interference in the order is called for so far it relates to the petitioners No. 1 and 2 Radhey Shyam and Keshav Singh. 10. Consequently, the petition is allowed, in part. The impugned order of the learned trial Judge, taking cognizance against Smt. Prem Devi, is set aside and the rest of the order is maintained. The file of the case be sent back to the Trial Court immediately to proceed with the case.Petition partly allowed. *******