JUDGMENT 1. - Heard learned counsel for the parties. 2. It appears that an incident took place on 12.10.1991 at about 8.30 p.m. on the outskirts of village Nagar at which Sheoji Ram eventually succumbed to his injuries. A report of the incident was lodged at Police Station Vijay Nagar by injured Bal Mukund on 13.10.1991 at about 12.30 a.m. whereupon a case under Section 302/323 Indian Penal Code was registered. In the F. I. R. Ram Nath and Chand Nath were named as assailants. After due investigation, police filed a challan against accused Smt. Ladi and Chand Nath for offence under Section 302 Indian Penal Code. The learned trial Magistrate committed accused Chand Nath and Smt. Ladi to stand trial for offence under Sections 302, 323 and 325 read with Section 34 of the Indian Penal Code. Accused Chand Nath and Smt. Ladi pleaded not guilty and claimed trial. This was on 28.4.1992. Thee case was adjourned for evidence of the prosecution and one witness Heera lal was examined on 29.6.1992. 3. It appears that the learned Assistant Public Prosecutor of the Court below moved an application on 1.9.1992 to the effect that Madan Nath and Ratan Nath were also concerned in the commission of the offence and the Investigating Officer in collusion with them had left them out with the result that they were neither challenged nor committed and, therefore, cognizance may be taken against Madan Nath and Ratan Nath as well. Learned trial Judge by the impugned order directed taking of cognizance against these two accused persons also. 4. Learned counsel for the petitioners submits that once the learned trial Court had proceeded with the trial of the case, it could not have taken cognizance against Madan Nath and Ratan Nath unless some evidence had been recorded by him showing involvement of Madan Nath and Ratan Nath and, therefore, the order of the learned trial Judge is bad in law and deserves to be set aside. 5. Learned Public Prosecutor supports the order of the learned trial Court and submits that since the evidence collected during the course of investigation showed complicity of Madan Nath and Ratan Nath also, the learned trial Judge was right in taking cognizance and hence this petition should be dismissed. 6. I have heard the learned counsel for the parties and have gone through the record. 7. 6. I have heard the learned counsel for the parties and have gone through the record. 7. The learned Additional Sessions judge upon commitment of the case could have taken cognizance against all the accused persons including those who had been left out by the police by virtue of Section 193 of the Criminal Procedure Code. This was not done by the learned trial Court and he proceeded to try only two accused persons who had been put for trial before him.Under Section 319 of the Criminal Procedure Code a power has been granted to a court to proceed against other persons appearing to be guilty of offence, even though they have not been put for trial. This Section reads as follows: "319. Power to proceed against other persons appearing to be guilty of offence. - (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." A bare reading of this Section, goes to show that the power under Section 319 Criminal Procedure Code is to be exercised if from the evidence it appears that any person not being the accused has committed the offence for which such person maybe tried with the accused. Once the trial had commenced, the only evidence which had come before the learned trial Judge was that of PW-- 1 Heera Lal whose statement was recorded on 1.6.1992. No other evidence had been recorded till then. The statement of Hegira Lal does not show complicity of the present petitioners in the offence. The only other material, which was available to the trial Court, was the statement recorded under Section 161 of the Criminal Procedure Code. In Kishun Singh & Ors. Vs. State of Bihar, 1993 Cr. L.R. (SC) 193 , it has been held that "Stricto sensu, section 319 of the Code cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in the commission of the crime alongwith those already sent up for trial by the prosecution." 8. In that case the Apex Court, however, upheld the taking of cognizance on the ground that under Section 193 of the Criminal Procedure Code learned trial Court was competent to take cognizance against the accused persons who had not been committed to him. That was the stage when the trial Court had taken cognizance initially. The present case is distinguishable. The learned trial Judge, as stated above, did not choose to take cognizance against the present petitioners but confined itself to the accused persons Madan Nath and Ratan Nath who (sic Smt. Ladi and Chand Nath) who had been committed to it. As stated already, he framed charges against them and proceeded for trial. Once the stage for taking cognizance under Section 193 of the Criminal Procedure Code had passed cognizance could have been taken only when some evidence had been adduced before the learned trial Court to show complicity of the present petitioners. The prosecution did not do it but adopted an easy course of moving an application for taking cognizance against the present petitioners. In my opinion, the order of the learned trial Judge dated 1.12.1992 issuing process against the present petitioners Madan Nath and Ratan Nath cannot be sustained and deserves to be set aside. The subsequent proceedings taken against them also fall on this ground. 9. However, it would be proper to clarify that in case during the course of trial evidence is adduced by the prosecution to show the complicity of the present petitioners in the offence, learned trial Judge would be competent to take cognizance against the present petitioners, provided there is proper material before it to do so. 10. This petition is accepted as indicated above and is disposed of accordingly. The petitioners are on bail and need not surrender to their bail bonds. Their bail bonds stand cancelled.Petition Accepted. *******