U. B. Saha, J. - The petitioners, five in person, who were the accused in the FIR lodged by the respon­dent No. 2 but not named as accused in the charge sheet filed by the Investigating Agency, have challenged the order dated 24.02.2010. passed in Session Case No. 129/2009 passed by the learned Sessions Judge, Dhubri whereby and whereunder the learned Ses­sions Judge, allowed the petition filed by the Public Prosecutor under Section 319 of the Criminal Procedure Code (for short, 'Code') and has taken congnizance of the offence un­der Section 147/148/307/302/326/506/354 IPC and issued summons to the petitioner as accused. 2. Heard Mr. T. J. Mahanta, learned coun­sel for the petitioners and Mr. B. S. Sinha, learned Addl. P. P. for the State respondent. Also heard Mr. A. B. Choudhury, learned senior counsel assisted by Mr. Wise Imran, learned counsel for the respondent No. 2. 3. Background facts of the case are as under:- Respondent No. 2, Md. Hassan Ali (for short, 'informant') lodged an FIR with the officer-in -Charge, Gauripur PS alleging in­ter alia, that since last one year the accused persons had been demanding the land owned and possesed by the informant, as their own land and as the informant has filed a suit in the Court of Munsiff No. 1, Dhubri and while the said civil suit is still pending, the petitioner No. 1 i.e. the accused No. 1 in the FIR, being a police personnel, and presently working in Gauripur P.S. on 04.05.2007 at about7.00 a.m. the accused persons, namely, Abdul Aziz, Sekendar Ali, Badsa Sk, Abu Bakkar Siddique, Jahirul Sk., Sattar Ali, MonnafAli Sk, and Jal Haque restrained Osman Ali, his younger brother on the village road while he was proceeding towards the house of one of his relatives and he was brutally assaulted by the accused. The wife of the informant and the wife of Osman Ali rushed to the spot but they were also assaulted by the accused per­sons and being critically injured in the said incident he was shifted to hospital where he died. 4. Upon receipt of the FIR lodged by the informant, Gauripur police station registered Gauripur P. S. Case 132/2007 under Sec­tions 147/148/326/307/354/506 IPC. After completion of investigation the Investigating officer submitted charge sheet on 20.02.2009 against four accused persons namely, Johirul Haque, Ali Akbar, Badsa Sk and Abu Bakkar. 4. Upon receipt of the FIR lodged by the informant, Gauripur police station registered Gauripur P. S. Case 132/2007 under Sec­tions 147/148/326/307/354/506 IPC. After completion of investigation the Investigating officer submitted charge sheet on 20.02.2009 against four accused persons namely, Johirul Haque, Ali Akbar, Badsa Sk and Abu Bakkar. Being not satisfied with the charge sheet filed by the police the informant approached this Court by filing a revision petition being No. Crl. Rev. P. 170/2009 with a prayer for directing the investigating agency for further investigation of the aforesaid po­lice case. Upon hearing the parties, this Court on 20.05.2009 while disposing of the revi­sion petition held that the learned Chief Judi­cial Magistrate is empowered under Section 173(8) of the Code of Criminal Procedure (for short, "the Code") for passing such a di­rection to proceed with further investigation by examining the witnesses and also directed the informant to approach the learned Chief Judicial Magistrate with that prayer, and on filing such application, the C JM, Dhubri shall pass order thereon as may be found justified in the interest of justice taking into account the provisions of Section 173 (8) of CrPC. 5. Thereafter, the informant filed a petition before the learned C JM, Dhubri with a prayer to issue a direction to the Investigating Agency for making further investigation of the police case lodged by him. Learned CJM, Dhubri vide his order dated 14.07.2009 rejected the petition for further investigation. Against the said order dated 14.07.2009, the informant preferred another revision petition before this Court which was registered and numbered as Crl. Rev. P. No. 281/2009. This Court, vide its order dated 22.09.2009 disposed of the aforesaid revision petition holding that under Section 319 of the CrPC, the Court can array new accused persons in the trial and the informant may make such prayer to the learned Sessions Judge, at a proper stage through the learned Public Prosecutor. 6. On commitment of the case to the Court of sessions under Section 209 of the Code when the case was pending before the Court of Sessions and waiting for trial learned P.P. on 24.02.2010 filed a petition before the learned Sessions Judge, Dhubri in Sessions Case No. 129/2009 under Section 319 of the Code with a prayer to issue summons to the five accused persons, namely Abdul Aziz, Md. Sekender Ali, Md. Sekender Ali, Md. Jal Haque, Abdul Sattar and Abdul Mannaf @ Mannaf Ali Sk. i.e. the petitioners herein. After hearing the parties, on 24.02.2010 the learned Sessions Judge, allowed the prayer of the learned PP and has taken cognizance against the petition­ers and issued summons as stated supra. Be­ing aggrieved by the said order of taking cog­nizance and issuance of summons the peti­tioners preferred the instant revision petition. 7. Mr. Mahanta, learned counsel for the petitioners while urging for quashing the im­pugned order dated 24.02.2010 (Annexure-4 to the revision petition) would contend that the learned trial Court failed to understand the true scope and ambit of Section 319 of the Code and he exercised the power vested on him under the said section before com­mencement of the trial and adducing evidence by the prosecution witnesses which is sine qua non for exercising such power of Section 319 of the Code. He further contended that be­fore taking cognizance of offence and issu­ance of notice against any person whose name has not been mentioned in the police report while Charge sheet is filed, learned Sessions Judge ought to have taken evidence of the prosecution witnesses and only when he names of those non-charge sheeted persons were divulged by the witnesses, learned Ses­sions Judge can take cognizance and issue summons against that person but in the in­stant case before commencement of trial and adducing of evidence by the prosecution wit­nesses, the learned Sessions Judge has taken cognizance and issued summons against the petitioners which is wholly impremissible in law. In support of his aforsaid contention he placed reliance on a decision of the Apex Court in the case of Lok Ram Vs. Nihal Singh &Anr, (2006) 10 SC 192. 8. He further contended that factual state­ments which find place in the FIR but not dis­posed by the informant or any other pros­ecution witness at the trial cannot be treated as a evidence and for summoning an accused whose name has not found place in the charge sheet or in the evidence adduced by the pros­ecution witnesses, at the time of trial, learned trial Court has no jurisdiction to issue sum­mons to such person, hi support of his afore­said contention he placed reliance on Ramdas & Ors. Vs. State of Maharashtra, (2007) 2 SCC 170 . 9. Vs. State of Maharashtra, (2007) 2 SCC 170 . 9. He again contended that the word 'evi­dence' used in Section 319 does not include the statement of the witnesses as recorded by the police i.e. investigating authority. Only the statement recorded by the Court at the time of trial could be considered as 'evidence' and in support of his aforesaid contention he placed reliance on a decision of this Court passed in Gunaram Tanti & Anr. Vs. State of Assam, 1983 Crl. L. J. 289, more par­ticularly paragraph 8 of the said decision as well as Lok Ram (supra). 10. Mr. Choudhury, learned senior coun­sel for the informant (respondent No. 2) sub­mits that the word 'trial' has nowhere been defined in the Code. Therfore, the Court has to visit either the judicial pronouncement or the dictionary meaning of the word. Refer­ring Harish Chandra Bajpai & Anr. Vs. Triloki Singh & Anr, AIR 1957 SC 444 he contended that trial means the entire proceed­ing and it commences with the performance of the first act or step necessary or essential to proceed with the trial. In the instant case, after commitment of the case from the Mag­istrate Court to Sessions Court trial begins. He also placed reference on the decision of the Apex Court in Om Prabha Jain, Vs. Gian Chand & Anr. AIR 1959 SC 837 wherein the Apex Court discussed about the word 'trial'. To establish his aforesaid contention he also placed reliance on Black's Law Dic­tionary (VII Edition) wherein it is stated that 'Trial' means a formal judicial examination of evidence and determination of legal claims in an adversary proceeding. 11. Supporting the impugned order, he would further contend that under Section 193 of the Code, the Sessions Judge has the power to take cognizance of the offence against a person not named as accused in the police report if complicity of those persons in the crime comes to his notice from the matertial available on police record placed before him, as he is the person who has to render justice to the justice seeker. He finally contended that the impugned order which is passed by the Court below, if not fully covered by the scheme of the provisions of Section 319 of the Code then also the said order is a valid one as the same attracts Section 193 of the Code. He finally contended that the impugned order which is passed by the Court below, if not fully covered by the scheme of the provisions of Section 319 of the Code then also the said order is a valid one as the same attracts Section 193 of the Code. According to him, mere exercise of power under a wrong provision would not render an order as invalid if the authority has the power to pass such an order on the strength of other provision in the statute. In view of his aforesaid contention he placed reliance on a decision of the Apex Court in Kishun Singh & Ors. Vs. State of Bihar, (1993) 2 SCC 16 . 12. He further contended that cognizance is not taken against the offender but against the offence and after taking cognizance of the offence it becomes the Court's duty to find out who are the real offenders and, if the Court finds from the record that apart from the per­sons sent by the police for trial some other person are also involved, it is the duty of the Court to summon those persons for facing the trial. In the instant case, the Sessions Judge exercised his power under Section 193 though the impugned order was passed on an appli­cation under Section 319 of the Code. There­fore, it would not be proper for the Court to interfere with the order, as impugned, in the interest of justice. 13. Mr. Sinha, learned Addl. PP while sup­porting the impugned order would contend that Mr. Mahanta rightly submitted that the word 'evidence' is not defined in the Code and to understand the intention of the legisla­ture so far Section 319 is concerned, the Court is to examine what should be treated as 'evidence' and if the FIR and the other statements recorded by police is treated as 'evidence' then the order of the trial Court is just and valid one. 14. His further contention before this Court was that there is a difference between Section 193 and Section 319 of the Code. 14. His further contention before this Court was that there is a difference between Section 193 and Section 319 of the Code. On committal of the case under Section 209, Session Court is empowered to take cogni­zance of an offence under Section 193 of the Code as Court of original jurisdiction and Section 319 empowers the Court to proceed against other persons, who are not named in the charge sheet, but appear to be guilty of the offence from the documents available in the police report for which the case has been committed for trial. He finally contended that though the impugned order was passed by the learned Sessions Judge, exercising his power under Section 319 of the Code, the same does not appear to fulfill the requirement as prescribed under Section 319. Even then the same cannot be interfered with as he has the jurisdiction to pass such an order un­der Section 193 of the Code. He also con­tended that the case of Kishun Singh (supra) is still a good law and applicable in this case. 15. From the submissions of the learned counsel for the parties and the contentions made in the petition and the objection, ques­tion arises as to whether the trial Court has the power to summon any person as an ac­cused in a criminal trial exercising its power under Section 319 of the Code prior to reording of evidence of the prosecution wit­nesses only on the basis of documents includ­ing the FIR and the statement recorded un­der Section 161 of the Code during investi­gation or even exercising power under Sec­tion 193 of the Code? 16. Before dealing with the main submis­sion of the learned counsel it would be proper for this Court to reproduce the provision of Section 193 as well as Section 319 of the Code. Accordingly, those provisions are re­produced hereinunder:- "193. Cognizance of offences by Courts of Session.- Except as otherwise expressly pro­vided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 319. Cognizance of offences by Courts of Session.- Except as otherwise expressly pro­vided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 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. (4) Where the Courts 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 accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 17. In Joginder Singh & Am: Vs. State of Punjab & Anr., AIR 1979 SC 339 the Apex Court while dealing with the provisions of Section 193 read with Section 209 noted that when a case is committed to the Court of Session in respect of an offence the Court of Session takes cognizance of the offence and not of the offender/accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under Section 319(1) can come into play and such Court can add any person, not an accused before it, as an ac­cused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. Look­ing at the provision from this angle there would be no no question of reading Section 319 (1) subject or subordinate to Section 193. The Apex Court in its judgment also consid­ered the phrase 'any person not being the accused' occuring in Section 319 of the Code in paragraph 9 of the judgment. Therefore, it would be proper to reproduce the paragraphs 8 and 9 of the said judgment which are as under :- "8. It will thus appear clear that Section 193 read with Section 209 of the Code when a case is committed to the Court of Session in respect of an offence the Court of Session takes cogni­zance of the offence and not of the accused and once the Sesions Court is properly seized of the case as a result of the committal order against some accused the power under Section 319(1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. Looking at the provision from this angle there would be no question of reading Section 319 (1) subject or sbordinate to Section 193. 9. As regards the contention that the phrase 'any person not being the accused' occurring in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in the column 2 of the charge-sheet, the contention has merely to be stated to be re­jected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319 (1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal Court are in­cluded in the said expression." 18. In Gunaram Tanti & Anr. (supra) this Court after taking note of Joginder Singh & Anr. (supra) discussed the word 'evidence' as used under Section 319 and while discuss­ing what is meant by the word 'evidence' this Court stated inter alia: "the question is what is meant by the word "evidence" in Section 319? In Gunaram Tanti & Anr. (supra) this Court after taking note of Joginder Singh & Anr. (supra) discussed the word 'evidence' as used under Section 319 and while discuss­ing what is meant by the word 'evidence' this Court stated inter alia: "the question is what is meant by the word "evidence" in Section 319? Would it include the statements of witnesses recorded by police under Section 161 of the Code for short, police statements? According to the learned Sessions Judge, these statements could also be used. In coming to this conclusion it was stated that these statements are regarded as evidence for the purpose offraming charge and so these can be used while exercising power under Section 319. Reference was made in this connection to Saifar Vs. State of West Bengal, AIR 1962 Cal 133 : 1962 (1) Cri LJ 283. Police statements are used while framing charge, no because they are regarded as evidence as observed by the learned Sessions Judge, a perusal of Sections 227 and 228 of the code would make this clear. Section 227, permits discharge of the accused if "upon consideration of the record of the case and the documents submitted therewith" the Judge considers that there is no sufficient ground for proceeding. As per Section 228, if after such consideration, the Judge is of the opin­ion that there is ground for presuming that the accused has committed an offence he is to frame the charge. These two sections have avoided the use of the word "evidence". They rather speak of "consideration of the record of the case and the documents submitted therewith". 19. In Gunaram Tanti & Anr.(supra) the First Information Report was lodged show­ing 51 persons as accused and during the course of investigation as many as 225 per­sons were arrested though ultimately the po­lice filed charge sheet against 85 persons. When the case was ready for trial the learned PP filed an application under Section 319 of the Code for summoning three persons in­cluding two petitioners in the said case as accused, and ultimately, the learned Sessions Judge, issued warrant of arrest against the two petitioners and those two petitioners ap­proached this Court impugning the order of warrant of arrest. When the case was ready for trial the learned PP filed an application under Section 319 of the Code for summoning three persons in­cluding two petitioners in the said case as accused, and ultimately, the learned Sessions Judge, issued warrant of arrest against the two petitioners and those two petitioners ap­proached this Court impugning the order of warrant of arrest. A coordinate Bench of this Court after considering the entire aspect held that the learned Sessions Judge, had com­mitted an error of law in ordering to proceed against the petitioners of that case on the ba­sis of the police statements though the Court does not think if any illegality was caused in having done so without hearing the petition­ers as no such requirement can be read in the section and the order being however, founded only on the police statements cannot be sus­tained and is quashed by allowing the petition. 20. In Lok Ram (supra) the Apex Court while considering regarding the scope and ambit of Section 319 of the Code has also discussed about the word 'evidence' in Sec­tion 319 and while discussing regarding the meaning of 'evidence' it is stated that the word 'evidence in Section 319 contemplates the evidence of witnesses given in Court. Under sub-section (4) (1) (b) of the aforesaid pro­vision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the in­quiry or trial was commenced. That would show that by virtue of sub-section (4) (1) (b) a legal fiction is created and that cognizance would be presumed to have been taken so far as newly added accused is concerned. In the instant case, it appears from the impugned order that the learned Sessions Court only relying on the FIR and the Statement of the prosecution witnesses recorded by the po­lice under Section 161 of the Code took cog­nizance of the offence against the petitioners and issued summon to them for appearance before the Court. Therefore, admittedly the summons were issued prior to taking evidence of the prosecution witnesses, far to disclo­sure of the names of the petitioners by the prosecution witnesses. Therefore, admittedly the summons were issued prior to taking evidence of the prosecution witnesses, far to disclo­sure of the names of the petitioners by the prosecution witnesses. In Lok Ram (supra) the scope of Section 193 of the Code was not the subject for judicial debate, thus the Apex Court did not consider the same, only decided the scope of Section 319 of the Code. 21. The aforesaid case of Joginder Singh (supra) was subsequently considered by the Apex Court in the case of Municipal Cor­poration of Delhi Vs. Ram Kishan Rohtagi & Ors. : (1983) 1SCC1, wherein the Apex Court noted that if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. The Court also said that the said power of the Court is an extra ordinary power of the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against other persons against whom action has not been taken. 22. From the aforesaid observation of the Apex Court it can be said that only on pro­duction of evidences implicating the persons either who has not been charge sheeted as an accused by the police or have not been ar­rayed as accused against whom some evi­dence is available from the prosecution wit­nesses against those person only cognizance can be taken and summons can be issued. Therefore, to issue summons under Section 319 of the Code to a person charge sheeted by the police; is only permissible when evi­dence is available from the Statement of the prosecution witnesses recorded by the Court in a trial. 23. The aforesaid views of the Apex Court in Municipal Corporation of Delhi (supra) were subsequently considered by the Apex Court again in the case of Lok Ram (supra) as referred to by Mr. Mahanta. 23. The aforesaid views of the Apex Court in Municipal Corporation of Delhi (supra) were subsequently considered by the Apex Court again in the case of Lok Ram (supra) as referred to by Mr. Mahanta. In paragraph 10 of the Lok Ram (supra) the Apex Court dealt with Section 319 of the Code as well as the decision in the case of Joginder Singh (su­pra) and in the case of Municipal Corpora­tion of Delhi (supra) and noted inter alia, that on a careful reading of Section 319 of the Code as well as the aforesaid two decision, it becomes clear that the trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with the other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial. The trial Court can take such a step to add such per­sons as accused only on the basis of the evi­dence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials con­tained in the charge-sheet or the case diary do not constitute evidence. of course, as evi­dent from the decision in Sohan lal Vs. State of Rajasthan (1990) 4 SCC 580 , the posi­tion of an accused who has been discharged stands on a different footing. In paragarph 11 of the said decision the Apex Court further noted, inter alia, that power under Section 319 of the Code can be exercised by the Court suo-motu or an application by someone in­cluding the accused already before it. If it is satisfied that any person other than the ac­cused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exerised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very spar­ingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The power is discretionary and such discretion must be exerised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very spar­ingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates the evidence of witnesses given in Court. Under sub-section (4) (1) (b) of the aforesaid pro­vision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the in­quiry or trial was commenced. That would show that by virtue of sub-section (4) (1) (b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. 24. In Kishun Singh (supra) question arose before the Apex Court as to whether learned Sessions Judge was justified in law in invok­ing Section 319 of the Code at the stage at which the proceedings were pending before him solely on the basis of the documents in­cluding statements recorded under Section 161 of the Code during investigation without commencing trial and recording evidence therein, discussed not only Section 319 of the Code but also Section 190 and Section 193 of the Code and ultimately in paragraph 13 of the said decision it is observed as follows:-"13. The question then is whether de hors 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 modes in which the Criminal Law can be set 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. 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. Once the Magistrate takes cogni­zance of the offence he may proceed to try the offender (except where the case is transferred under Section 191) or 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 Vs. State of Bihar 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 its duty to proceed against those persons' by summoning them because 'the summoning of the additional ac­cused is part of the proceeding initiated by its 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 case was affirmed in Hareram Satpathy Vs. Tikaram Agarwala. Thus far there is no difficulty." 25. In the said judgment, the Apex Court also taking note of Raghubans Dubey Vs. State of Bihar, AIR 1967 SC 1167 and Hareram Satpathy, Vs. Tikaram Agarwala, AIR 1978 SC 1568 noted that once the Court has taken cognizance of the offence it becomes the Court's duty 'to find out the real offend­ers and if it comes to the conclusion that be­sides 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 named, since summoning them would only be a part of taking cognizance. The Court has 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 (new Code) the em­bargo is diluted by the replacement of the words the accused by the words the case. Thus, according to the Apex Court, a plain reading of Section 193, 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 or original jurisdiction gets lifted. Therefore, once the Magistrate committed the case to the Court of session under Section 209 of the Code, 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 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. 26. The Apex Court ultimately held that since the Court of Sessions had the power under Section 193 of the Code to summon the appellants as their involvement in the com­mission of crime prima facie appeared from the record of the case, there was no reason to interfere with the impugned order as it is well settled that once it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid and ultimately dismissed the appeal preferred by the appellant Kishun Singh. Therefore, according to the Apex Court even if the order passed on an application filed by the prosecution under Section 319 praying that the material on record annexed with the report under Section 173 of the Code re­vealed the involvement of the two appellants and they should be summoned and that order does not fulfil the requirement of Section 319, then also the jurisdiction of the Court would not be wholly ousted; the said order being protected under Section 193 of the Code. 27. In Brindaban Das & Ors. Vs. 27. In Brindaban Das & Ors. Vs. State of West Bengal : (2009) 3 SCC 329 , the Apex Court considered the primary object of Section 319 CrPC and noted that the whole case against the accused should be tried and disposed of not only exeditiously but also si­multaneously. The power under Section 319 CrPC must be regarded and considered as incidental and ancillary to the main power to take cognizance as part of the normal pro­cess in the administration of justice and that the same could be exercised either on an ap­plication made to the Court or by the Court suo motu and it was in the discretion of the Court to take action under the said section having regard to the facts and circumstances of each case. 28. The whole concept of Section 319 is to avoid multiplicity of trial relating to par­ticular offence. The discretion vested on a Court has to be exercised by it taking note of the fact involved in the case and the circum­stances. There is no doubt that the Court is not only bound to consider the evidence but also it is the duty of the Court to see whether the evidence would be sufficient to convict the person being summoned. In the case of Brindaban Das & Ors. (supra) also there was no scope for the Apex Court to discuss the object and parameters of Section 193 of the Code and in the instant case Mr. Choudhury relying on the case of Kishun Singh (supra) fairly submits that even if it is considered that the impugned order is not covered by the pre­scription of the provisons of the Section 319 of the Code then also the same is protected on the strength of Section 193 of the Code. Therefore, this case also in no way helps the petitioners. 29. As the provisions of Section 319 of Code starts with the word, 'inquiry into or trial of it would be proper to discuss the meaning of 'inquiry', as we have earlier dis­cussed the meaning of 'trial'. In Section 2 (g) of the Code it is stated inquiry means every inquiry other than a trial conducted under this Code by a Magistrate or Court. Therefore, it can be said that the term inquiry has a very wide connotation in the Code. In Tuneshwar Prasad Singh & Anr. Vs. In Section 2 (g) of the Code it is stated inquiry means every inquiry other than a trial conducted under this Code by a Magistrate or Court. Therefore, it can be said that the term inquiry has a very wide connotation in the Code. In Tuneshwar Prasad Singh & Anr. Vs. State of Bihar, 1978 Cr L.J. 1080, a Full Bench of the Patna High Court while considering the provisions of Sections 209 of the Code also considered the provisions of Section 2(g) of the Code and noted that: "the term 'inquiry' by itself does not, in my view, lead us very far. At the same time, it will be seen that the terms 'inquiry' has a very wide connotation under the Code and includes ev­ery inquiry other than a trial. One thing is well settled and that is that a trial within the mean­ing of the Code is a judicial proceeding with ends in either conviction or acquittal. The dic­tionary meaning of the term 'inquiry', however, is according to the New Standard Dictionary investigation into facts, causes, effects and re­lations generally and 'to inquire' has been de­fined to mean in the same dictionary 'to exert oneself to discover something'. "Inquiry is a road to truth", said Gladstone. The Chambers's Twentieth Century Dictionary lays down the meaning of the term 'to inquiry' as "to ask; to seek" and the term 'inquiry' as the search for knowlegde'; investigation; a question". An application of the mind to ascertain what offence is made out on the facts alleged and whether such an offence is excusively triable by a Court of session is an absolute necessity for the Magistrate before he can commit the case to a Court of session under Section 209 of the Code". 30. The Apex Court in State of Uttar Pradesh Vs. Laxmi Brahman & Anr, 1983 Cr. L. J. 839 also held that after filing of the police report the proceeding till the commit­ment is made under Section 209 of the Code would be an inquiry. There is no doubt that the word inquiry does not include a trial but only refers to a judicial inquiry into the matter by a Magistrate or other Court. L. J. 839 also held that after filing of the police report the proceeding till the commit­ment is made under Section 209 of the Code would be an inquiry. There is no doubt that the word inquiry does not include a trial but only refers to a judicial inquiry into the matter by a Magistrate or other Court. While doing an inquiry before a trial a Court is entitled to ascertain from the police report as to whether any offence has been committed or not and as to whether any one should be put up on trial. In the instant case, it appears from the record admittedly the petitioners were FIR named and at the subsequent stage the police released them from the case by way of ex­cluding their names from the charge-sheet. Therefore, they are not in true terms an ac­cused. 31. On proper scrutiny of the case laws cited by the parties, particularly the judgment in Joginder Singh & Anr. (supra) the power under Section 193 is found to be similar to that of Section 190 when the case is com­mitted to the Session Court by the Magis­trate. Thus if the Magistrate has the power to exercise his discretionary power for taking cognizance and summoning a person to face the trial as an accused though the name of that person has not been shown in the charge sheet, the Session Court can also act in simi­lar manner in exercise of its power under Sec­tion 193 as after commitment of the case the prohibition upon the Session Court to act as a Court of original jurisdiction gets lifted. 32. In the case of Lokram (supra) the ap­plicability of Section 193 was not raised which has been discussed in the case of Joginder Singh & Anr. (supra) as well as Kishun Singh (supra). Thus there was no occasion to their lordships of the Apex Court to come to any decision in Lokram (supra) on the point of applicability of Section 193 particularly, after commitment of a case as to whether while taking cognizance the Sessions Court can also summon aperson who was though initially FIR named but subsequently not charge sheeted. Then on that aspect also the case of Lokram (supra) is not applicable in the instant case and in no way helps the case of the petitioners. In Lokram (supra) though the case of Joginder Singh & Anr. Then on that aspect also the case of Lokram (supra) is not applicable in the instant case and in no way helps the case of the petitioners. In Lokram (supra) though the case of Joginder Singh & Anr. (supra) was referred and relied upon but the earlier decision in Kishun Singh (supra) was neither referred by the parties nor discussed by the Apex Court. In that view of the matter, the case of Lokram (supra) cannot be considered as a precedent on the point of applicability or non-applica­bility of Section 193 of the Code. 33. By this time it is settled that different cases have different facts and it is the totality of the evidence and the impact that it has on the mind of the Court that is important. No straightjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclu­sion on the facts in another (See Pandurang Vs. State of Hyderabad, AIR 1995 SC216). 34. In Uma Shankar Singh Vs. State of Bihar & Anr., (2010) 9 SCC 479 , the Apex Court considered the case of Kishun Singh (supra) as well some similar judgments of it including the judgment in India Carat (P) Ltd. Vs. State of Karnataka, (1989) 2 SCC 132 wherein a three Judges Bench of the Apex Court held that despite the police report that no case has been made out against the ac­cused, the Magistrate can take cognizance of the offence under Section 190 (1) (b) taking into account the statement of witnesses made under police investigation and issue process. The aforesaid judgment of India Carat (P) Ltd. (supra) was also not discussed in Lokram (supra). 35. The Apex Court in paragraph 19 of Uma Shankar Singh (supra) specifically stated that even if the investigating authority is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance thereupon in exercise of his powers under Section 190 (1) (b) CrPC. This Court has already stated supra, that after commitment of the case the restriction placed on the power of the Court of Session to act as an original Court gets lifted and the power under Section 190 (1) (b) and Section 193 are almost similar. Thus the Session Court also has the power to ap­ply its mind independently to the materials contained in police report and take cogni­zance thereupon. If the session Court can consider the police report, i.e. the FIR and the 161 statement on record though the same is not evidence before beginning of the trial, it has the power not only to take cognizance of the offence, not the offender, has also the power to summon the persons not being ac­cused in the charge sheet for facing the trial as it is the duty of the Court to do proper justice to the justice seeker. Police officer might have released a person for various rea­sons, even when that person Was earlier FIR named accused. Therefore, it would not be proper for a Court always to depend on the police report if the other materials are before it 36. In the instant case, admittedly the present petitioners are FIR named and sub­sequently released by the police from the case and excluded from the charge sheet. There is no doubt that under Section 319 of the Code a person not being an accused in the charge sheet cannot be summoned for the purpose of addition as an accused in the case unless the inquiry or trial is started and the evidence is adduced by the prosecution witnesses im­plicating such a person. But that does not mean that the Court is totally powerless for adding a person even on the basis of a police report which is placed before him for taking cogni­zance of the offence and do justice. In such a situation, the Court has to exercise its discre­tionary power vested in it under Section 193 of the Code. 37. In the instant case, admittedly the im­pugned order is passed on an application filed by the Public Prosecutor at the instance of the informant under Section 319. That order is not wholly protected by the parameters of Section 319 but the same has to be consid­ered as if the order is passed under Section 193 of the Code. 37. In the instant case, admittedly the im­pugned order is passed on an application filed by the Public Prosecutor at the instance of the informant under Section 319. That order is not wholly protected by the parameters of Section 319 but the same has to be consid­ered as if the order is passed under Section 193 of the Code. Thus the order is sustained, particularly in view of the decision of the Apex Court in Kishun Singh (supra) wherein it is stated that once it is found that the power permits the exercise of the- power even a wrong provision will not render the order il­legal or invalid. In the result, though the order is passed in the exercise of the power under the provisions of Section 319 of the Code but that has to be deemed to have been passed under Section 193 of the Code as Section 193 of the Code casts a duty upon the Court to examine the police report before taking cognizance and when there is a doubt in the mind of the Court that an FIR named accused might have been involved in that case but for various reasons the police excluded his name from the charge sheet then the Court should exercise the discretion vested on it under Sec­tion 193 of the Code. 38. Court being custodian of justice while discharging its judicial function is supposed to search from the police report as to whether so far the offence committed is concerned, any person other than the accused is needed to be put on trial at the time of taking cogni­zance under Section 193 of the Code. In the instant case, the learned Sessions Judge, only did that job in the interest and for the ends of justice. According to this Court, such exer­cise of discretion is permissible and also sup­ported by the decision of the Apex Court in Kishun Singh (supra). 39. In the result, the order impugned is sustained and the revision petition is dismissed.