JUDGMENT Hari Shankar Prasad, J. 1. This criminal miscellaneous has been filed for quashing the impugned order dated 6.7.1999 passed by learned Second Addl tional Sessions Judge, Palamau in Sessions Trial No. 521-A/98, whereby the learned Second Additional Sessions Judge issued non-bailable warrant of arrest and processes under Sections 82-83 of the Code of Criminal Procedure against the petitioner. 2. The prosecution case if brief in that opposite party No. 2 filed a Complaint Case No. 28/97 in the Court of learned Judicial Magistrate, Ist Class, Palamau. The complaint case was referred under Section 156(3), Cr PC to the concerned police station for institution and investigation of the case and on receipt of the complaint petition at the Chhatarpur Police Station, Chhatarpur P.S. Case No. 47/97 under Sections 498-A/304-B, IPC and Sections 3 and 4 of the Dowry Prohibition Act was instituted against the petitioner and others. After completion of investigation, charge-sheet was submitted against others but this petitioner was not sent up for trial. The learned CJM took cognizance against the father-in-law, mother-in-law and husband of the deceased and the case was committed to the Court of sessions. After commitment of the case to the Court of sessions on 15.7/1998, the records came to the Court of learned Second Additional Sessions Judge, Palamau and while framing the charge against the accused, by order dated 6.7.1999 the learned Second Additional Sessions Judge passed an order directing the office to issue non-bailable warrant of arrest as well as processes against the petitioner and the case of the petitioner has been split up. 3. Learned counsel appearing for the petitioner submitted that though a complaint petition was filed implicating this petitioner also and after complaint petition was referred to the police station, a case was instituted under the relevant sections but the police after completing the investigation submitted charge- sheet against other and not against this petitioner and the learned CJM also did not take cognizance against this petitioner and this petitioner was also not committed to the Court of sessions by the learned CJM by his order dated 15.7.1998 and, therefore, the impugned order dated 6.7.1999 is illegal and without jurisdiction. Learned counsel further submitted that the learned Court below could have passed an order against the petitioner under Section 319. Learned counsel further submitted that the learned Court below could have passed an order against the petitioner under Section 319. Cr PC after recording the evidences of the witnesses but in the instant case no witness has so far been examined and there is no material against the petitioner, as it will appear from non-submission of charge-sheet against him, non-taking of cognizance against the petitioner and non-commitment of the petitioner to the Court of Sessions. Learned counsel further referred to Section 226, Cr PC and submitted that the petitioner has neither appeared nor has been brought before the Court in pursuance of commitment of the case under Section 209 and, therefore, order dated 6.7.1999 of the learned Sessions Judge is without jurisdiction. Section 226, Cr PC reads as under :--"226. Opening case for prosecution.--When the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused." 4. From the plain reading of Section 226, Cr PC, it will clear that the petitioner has not been committed to the Court of Sessions and, therefore, the Court has to summon such a person under Section 319, Cr PC only when some materials come against him. Section 319, Cr PC reads as under :-- "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. (2) Where such person is not attending the Court he may be arrested or summoned 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 witnesses 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. Learned counsel for the petitioner has also cited one case law reported in (1997) 3 Crimes 48 : 1997 (2) East Cr C 898 (Pat) Bhola Rai v. State of Bihar, in which it has been held that 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 courses of any inquiry or trial, and in the instant case no such evidence has till now come other than the IO collected during the Investigation and during the investigation the IO has on no material against the petitioner and did not submit charge-sheet against him nor the learned CJM took cognizance against him nor the petitioner was, committed to the court of Sessions. 6. In the result, this criminal petition is allowed and the order dated 6.7.1999 is hereby quashed.