JUDGMENT : L. Mohapatra, J. - Criminal Misc. Case No. 2324 of 1993 has been filed by two of the accused persons praying for quashing the order dated 15.11.1992 passed by the learned S.D.J.M. Patnagarh in I.C.C. No. 37 of 1992 taking cognizance of offence alleged to be committed under Sections 148/302/307/323/435/149 of the Penal Code read with Section 25 of the Arms Act and issuing non-bailable warrant of arrest against the aforesaid two accused persons. Criminal Misc. Case No. 2284/93 has been filed by one of the accused persons praying for quashing the same order passed in the aforesaid complaint case as well as the proceeding in the complaint case itself. Criminal Revision No. 37 of 1994 has been filed by the informant/complainant praying for setting aside the order dated 3.1.94 passed by the learned Addl. Sessions Judge, Bolangir rejecting the prayer of the Petitioner for issuing process against the aforesaid accused persons in exercise of power u/s 319 of the Code of Criminal Procedure to face trial. All the above three cases arise out of the same incident and therefore all the cases were heard together and are-disposed of in this common judgment. 2. Before entering into the facts alleged in each case it is necessary to refer to the allegations giving rise to the aforesaid three cases. An F.I.R. was lodged by one Gopalji Panigrahi on 29.5.1992 before the O.I.C., Patnagarh police station alleging therein that he along with one Ashok Rout. Prasant Subudhi and Ors. had gone to Khaparapol for election campaign. At about 1.25. in the night near village Barthala accused Bibek Meher along with Ors. came in six vehicles and stopped the vehicle in which the aforesaid Gopalji Panigrahi and Ors. were moving. It is further alleged that accused persons abused in filthy language and suddenly fired at them as a result of which the informant and his friend Prasant Kumar Subudhi received, bullet injuries. Later on it was found that Anr. person namely Pradip Singh Deo who also received bullet injuries succumbed to the injuries. After investigation into the aforesaid case charge-sheet was submitted against ten accused persons. No charge-sheet had been submitted against the Petitioners in Crl. Misc. Case No. 2324/93 namely Bibekananda Meher ' Sibek Meher and Manoj Kumar Meher alias Manoj Meher as well as the Petitioner in Crl. Misc. Case No. 2284/93 namely Promod Kumar Mishra. After investigation into the aforesaid case charge-sheet was submitted against ten accused persons. No charge-sheet had been submitted against the Petitioners in Crl. Misc. Case No. 2324/93 namely Bibekananda Meher ' Sibek Meher and Manoj Kumar Meher alias Manoj Meher as well as the Petitioner in Crl. Misc. Case No. 2284/93 namely Promod Kumar Mishra. The said F.I.R. was registered as G.R. Case No. 101/92 in the Court of the learned S.D.J.M. Patnagarh which was committed to the Court of Session and was registered as sessions Case No. 35/10 of 1993. 3. The informant Gopalji Panigrahi filed I.C.C. Case No. 37 of 1992 in the Court of the learned S.D.J.M. Patnagarh against several accused persons including the above three Petitioners against whom charge-sheet had not been filed, alleging therein that the above named three accused persona were amongst other accused persons who committed offence and that the investigation was not done properly and the aforesaid three accused persons had not been charge-sheeted by the police. On the basis of the complaint learned Magistrate took cognizance by order dated 15.11.93 which is the subject-matter of challenge in the aforesaid two criminal misc. cases. After commitment of the G.R. Cases to the Court of Session and after examination of some witnesses during trial an application was filed on behalf of the informant to issue process against the aforesaid three above named accused persons on the ground that the evidence collected during trial clearly proves the existence of prima facie case against them. The said petition having been rejected by the learned Addl. Sessions Judge. Criminal Revision No. 37 of 1994 has been filed challenging the said order. 4. Sri Narasingh Mishra, learned Counsel appearing for the two of the above named accused persons who are Petitioners in Criminal Misc. Case No. 2324/93 challenged the Court taking cognizance in the complaint case basically on the ground that at the time of taking cognizance the learned Magistrate being aware of the pendency of application u/s 319, Code of Criminal Procedure before the Sessions Court should have awaited for order to be passed on the said petition. Such submission is made on the ground that the above named two accused persons had not been charge-sheeted and the G.R. Case had already been committed to the Court of Session. Such submission is made on the ground that the above named two accused persons had not been charge-sheeted and the G.R. Case had already been committed to the Court of Session. Before the Court of Session several witnesses had already been examined and on the basis of their deposition an application had been filed for issuing process against said accused persons on the grounds that prima facie materials are available for issuing process. According to Sri Mishra if the application u/s 319. Code of Criminal Procedure is allowed there is no purpose in taking cognizance in the complaint case against the very same purpose as in the event the application u/s 319. Code of Criminal Procedure is allowed they are to face trial for the same offence. The second ground on which Sri Mishra Challenged the order taking cognizance is that there were two complainants and informant was one of them. However, during enquiry the informant was examined and the other complainant did not chose to examine himself. According to Sri Mishra it was obligatory on the part of the other complainant to examine himself in the complaint case during enquiry and in absence of such examination the learned Magistrate should have refrained from taking cognizance Sri Mishra also, in course of argument, submitted that cognizance of offence having already been taken once in the G.R. Case, there was no question of taking cognizance for the second time in the complaint case. He also challenged the order taking cognizance on the ground that the matter being sub-judice before the Sessions Court, the subordinate Court could not have exercised the concurrent jurisdiction. So far as Criminal Revision No. 37 of 1994 is concerned, the only submission made by the learned Counsel is that the revision having been dismissed as against the opposite parties 14 and 15 no order adverse to their interest can be passed in that revision. 5. Sri Palit, learned Counsel appearing for the third accused namely Promod Mishra also challenged the order taking cognizance on the very same grounds and so far as Criminal Revision No. 37/94 is concerned. Sri Palit submitted that there is absolutely no illegality in the orders passed by the learned Addi. Sessions Judge rejecting the application u/s 319, Code of Criminal Procedure calling for interference of this Court. 6. Sri Palit submitted that there is absolutely no illegality in the orders passed by the learned Addi. Sessions Judge rejecting the application u/s 319, Code of Criminal Procedure calling for interference of this Court. 6. Sri J.M. Mohanty, learned Counsel appearing for the informant-complaint in all the three cases supported the order taking cognizance stating that so far as the complainant to concerned the learned Magistrate has to proceed with the same independent of the G.R. Case and therefore there is no illegality in the order of the learned Magistrate taking cognizance. So far as the impugned order passed by the learned Addl. Sessions Judge, rejecting the application u/s 319 Code of Criminal Procedure is concerned. Sri Mohanty submitted that a bars reading of the evidence adduced before this Court so tar clearly establishes prima facie case against all the three accused persons and the learned Addl. Sessions Judge committed illegality by not exercising his jurisdiction under the said provision for issuing process and directing the said accused persons to face trisl. 7. In the light of the submission made by the learned Counsel for both parties. I proceed to examine the facts and law involved in this case. There are Certain facts which remain undisputed. There is no dispute that Gopalji Panigrahi lodged information and in the said F.I.R. though he named accused Bibekananda Meher there is no allegation in the F.I.R. that accused Bibekananda Meher committed any overt act. There is no dispute about the fact that after completion of investigation charge-sheet was submitted against ten accused persons excluding those three persons who are Petitioners in the Criminal Misc. Cases. There is no dispute about the fact that after commitment of the case to the Court of session trial has commenced and several witnesses were examined by the time application u/s 319. Code of Criminal Procedure that by the time cognizance was taken in the complaint case application u/s 319. Code of Criminal Procedure as pending consideration. 8. Now question that is raised before this Court by Sri Mishra is that the learned Magistrate while dealing with the complaint was aware of the fact that application u/s 319. Code of Criminal Procedure was pending consideration before the learned Sessions Judge relating to the self-same offences and therefore he should have waited for the said petition to be disposed of. Code of Criminal Procedure was pending consideration before the learned Sessions Judge relating to the self-same offences and therefore he should have waited for the said petition to be disposed of. His argument is based on analogy that if the application u/s 319. Code of Criminal Procedure is allowed there is no point in taking cognizance in the complaint case and in that event these accused persons have to face trial. I am afraid that such analogy cannot be accepted. To answer this question it is necessary to refer certain provisions of the Code of Criminal Procedure dealing with complaint cases. Section 190 of Code of Criminal Procedure empowers Magistrate to take cognizance of any offence upon receipt of facts which constitute such offence. Once complaint is received by the Magistrate he has to proceed is accordance with Section 100. Code of Criminal Procedure at that stage the Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing. The Magistrate may also take recourse to Section 202. Code of Criminal Procedure if he thinks fit postpone the issue of process against the accused and either enquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding Section 210. Code of Criminal Procedure empowers the Magistrate to proceed with the complaint case if the investigation by police officer does not relate to any accused in the complaint and he has to proceed in accordance with the provisions of the, Code of Criminal Procedure The above provisions no where authorises the Magistrate to refuse to take cognizance on the ground that in relation to the same offence other, accuse persons are facing trial before the Sessions Court or that an application u/s 319. Code of Criminal Procedure is pending consideration. I am, therefore, unable to accept the contention of learned Counsel Sri Mishra that the learned Magistrate should have waited till disposal cf the application u/s 319. Code of Criminal Procedure before taking cognizance in the complaint case. Sri Mishra, referred to a decision of the Apex Court in the case of Ranjit Singh Vs. State of Punjab. I am, therefore, unable to accept the contention of learned Counsel Sri Mishra that the learned Magistrate should have waited till disposal cf the application u/s 319. Code of Criminal Procedure before taking cognizance in the complaint case. Sri Mishra, referred to a decision of the Apex Court in the case of Ranjit Singh Vs. State of Punjab. In the said the Apex Court held that powers of Sessions Court u/s 319 of the Code to take cognizance of the offence does not include the summoning of the person or persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record. Once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the array of the accused is after some evidence collected when powers u/s 319. Code of Criminal Procedure can be invoked. There is no dispute about the said preposition of law. The point involved in the present case is different than the point decided in the said decision. In the present case there is no question of taxing second cognizance in exercise of powers u/s 319 Code of Criminal Procedure by the Sessions Court. In the G.R. Case cognizance has been taken and after commitment trial is going on Cognizant. is taken in the complaint case which is independent of G.R. Case. In my opinion, the aforesaid decision has no application to the facts of the present case. 9. Shri Mishra also cited Anr. decision of the Apex Court in the came of Raj Kishore Prasad Vs. State of Bihar and another. In this case also law laid down by the Apex Court is not the question involved in the present case. The Apex Court in the said decision held that the Magistrate undertaking commitment u/s 209 of a case triable by a Court of Session Cannot associate Anr. person as accused, in exercise of power u/s 319. Code of Criminal Procedure or under any other provision. In order to apply Section 319, it is essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the course of any inquiry or trial. person as accused, in exercise of power u/s 319. Code of Criminal Procedure or under any other provision. In order to apply Section 319, it is essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the course of any inquiry or trial. Proceedings before a Magistrate u/s 209 Code of Criminal Procedure are patently not trial proceedings and were never considered so at any point of time. In the sphere of the limited functioning of the Magistrate, no application of mind is required in order to determine an issue raised, or to adjudge any one guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate is only to see that the package sent to the Court of Session is in order, so that it can proceed straightway with the trial and that nothing is lacking in content, as per requirements of Sessions 207 and 208 of the Code of Criminal Procedure. In view of the above discussion. I do not find any merit on the contention of Sri Mishra that pendency of the application u/s 319. Code of Criminal Procedure before the sessions Court can operate as a bar for consideration of the complaint case by the learned Magistrate. Reference may be made to a decision of this Court in the case of Udaya alias Uthan Singh and Ors. v. Kumajini Kayak and Anr. in Criminal Misc. Case No. 1569 of 1996 disposed of on 19.4.2002. 10. Coming to the second question raised by Sri Mishra it appears that the complaint has been file by two persons namely Gopalji Panigrahi who is the informant in the G.R. Case and one Manas Ranjan Thakur. Said complaint has been filed alleging commission of offence by 14 persons including the present Petitioners in the above two Criminal Misc. Cases who had not been charge-sheeted. The learned Magistrate as it appears from the order-sheet, after receipt of the complaint examined one of the complainants, i.e. informant himself namely Gopalji Panigrahi. Learned Magistrate has also taken up enquiry u/s 202, Code of Criminal Procedure where the informant Gopalji Panigrahi was examined, several other witnesses have also been examined who have been named in the complaint but the complainant No. 2 Manas Ranjan Thakur was not examined during such enquiry. Learned Magistrate has also taken up enquiry u/s 202, Code of Criminal Procedure where the informant Gopalji Panigrahi was examined, several other witnesses have also been examined who have been named in the complaint but the complainant No. 2 Manas Ranjan Thakur was not examined during such enquiry. No provision of the Code provides for examination of both the complainants either in exercise of powers u/s 200, Code of Criminal Procedure or during enquiry u/s 202, Code of Criminal Procedure and there is no bar for filing of a complaint by two persons, since the informant who is the complainant has been examined in the case, I am of the view that there has been sufficient compliance of Section 200 and 202, Code of Criminal Procedure I, therefore, do not find any merit in the contention of Sri Mishra and accordingly decline to interfere with the order of the Magistrate taking cognizance of offence. In view of the above discussion, the Criminal Misc. Case No. 2284/93 and 2324/93 stand dismissed. So far as the complaint case is concerned, it is directed that commitment proceedings may be taken up early and as far as practicable the Sessions Case and the complaint case may be tried one after the other. 11. So far as Criminal Revision No. 37/94 is concerned, the order passed by the learned Addl. Sessions Judge, Bolangir dated 3.1.94 rejecting the petition u/s 319. Code of Criminal Procedure is under challenge. From the impugned order, it appears that the only ground on which the petition has been rejected is that the evidence of 22 person have already been recorded and trial is about to be completed. At that, stage if the application u/s 319, Code of Criminal Procedure is allowed and Bibek Meher and Manoj Meher and Promod Mishra are arrayed as accused persons, the other accused persons facing trial shall be seriously prejudiced. This order does not appear to be sustainable in law in view of the following reasons. Section 319, Code of Criminal Procedure prescribes that, where in 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 persons for the offence which he appears to have committed. The section does not put any bar for consideration of the application at any stage of trial. Moreover such application can only be considered after the evidence is adduced during trial. Therefore, the learned the learned Magistrate should have considered the evidence already adduced in that case and should have found out as to whether prima facie case is available against said three accused persons or not. Instead of doing so he rejected the petition on solely on the ground that at that stage of trial if such an application is allowed, it would cause prejudice to other accused persons. In any view, rejection of the petition such ground is uncalled for and cannot be supported under law. I have carefully gone through the evidence already adduced on behalf of the prosecution. I am not expressing any opinion since I am remitting the matter back to the learned Additionar Sessions Judge for reconsideration of the same. The learned Sessions Judge shall reconsider the application so far it relates to accused Promod Mishra. The revision having been dismissed in respect of other accused persons namely Bibek Meher and Manoj Meher the consideration shall be confined to accused Promod Mishra. With the aforesaid observations and directions, the Criminal Revision No. 37 of 1994 is disposed of.