ORDER : The petition is filed seeking quashing of the order dated 24.07.2014 passed by the learned Sessions Judge, Yadgiri, in Spl. Case (SC/ST Act) No.46/2013, issuing NBW against the present petitioner arraigning him as Accused No.5. 2. The records disclose that Hunasagi Police have registered a case against 23 accused persons, but at the time of filing of the charge sheet, the Police have implicated only 15 accused persons, wherein the name of Accused No.5 in the charge sheet is shown as Abdul son of Rajsab, aged about 32 years doing centering work, Muslim by caste, residing at Dyamanal village. Subsequently, it appears, the Deputy Superintendent of Police, Yadgiri, on 24.07.2014, made an application through the Public Prosecutor to permit him to substitute the name of the petitioner in the place of Accused No.5 in the charge sheet and for issue of warrant against the petitioner. On that application, the learned Sessions Judge has passed an order on the same day in the following manner “In the charge sheet the name of Accused No.5 is shown as Abdul, son of Rajsab (Centering), but now the application is filed to correct the name of the accused No.5 as Abdul Kharim, son of Dastagirsab Talikoti, resident of Dyamanal. Since the accused No.5 is not yet appeared before the Court, I feel that it is just and proper to permit the Dy.S.P., Yadgiri, to rectify the name of accused No.5 as prayed for in the said application. Accordingly, the Dy.S.P., Yadgiri, is permitted to correct the name of accused No.5 in the charge sheet”. 3. It appears, before passing such an order, the learned Sessions Judge has not bestowed his attention to ascertain as to whether the person by name Abdul Kharim, son of Dastagirsab Talikoti was in any way involved in the offences alleged in the charge sheet. It is not merely by means of substituting the name of one person to that of the other accused already arraigned in the charge sheet is sufficient to take cognizance and issue summons or warrant against such person. It will have its own impact and farreaching consequences on the right of liberty of a person. If a person who is nowhere involved in commission of any offence or connected to that particular case, is called upon before the Court to appear, it would definitely cause violation of his constitutional right of liberty. It will have its own impact and farreaching consequences on the right of liberty of a person. If a person who is nowhere involved in commission of any offence or connected to that particular case, is called upon before the Court to appear, it would definitely cause violation of his constitutional right of liberty. Therefore, the Court should be very careful before issuing any summons or warrants against any person and before doing so, it should clarify itself and be sure that such person’s appearance is imperative before the Court to answer any of the charges against him. In this background, the order passed by the learned Sessions Judge does not depict that he has applied his judicious mind to the charge sheet papers in order to ascertain whether the name of Abdul Kareem, son of Dastagirsab Talikoti, the present petitioner, can be incorporated in the charge sheet or he can be called upon to the Court to answer any of the charges. If the name of that person is substituted as Accused No.5, it virtually amounts to taking of cognizance against him. Therefore, at the time of taking cognizance pertaining to any offence against the accused, the Court should apply its mind to ascertain whether the allegations made in the charge sheet papers are sufficient to constitute any of the offences alleged against such person or not, before calling upon such person to appear before the Court. Such an exercise has not been done in this particular case. Therefore, the order dated 24.07.2014 passed by the learned Sessions Judge in the said case is very cryptic one as it is not based on any reasons. 4. In order to substitute or add any accused to a criminal case after taking of the cognizance by the concerned Court under Section 190 of Cr.PC., there is no other provision except Section 319 of Cr.P.C. to pass appropriate orders in this regard. In this particular case, the Deputy Superintendent of Police has sought for substitution of the name of the petitioner instead of the name of the accused No.5 whose name already finds a place in the charge sheet. Therefore, it amounts to bringing a new person into the crime altogether. As I have already narrated that the name of the accused mentioned in the charge sheet is altogether different from the name sought to be added in the criminal case. Therefore, it amounts to bringing a new person into the crime altogether. As I have already narrated that the name of the accused mentioned in the charge sheet is altogether different from the name sought to be added in the criminal case. Therefore, for the purpose of substitution or for adding any new accused, the criminal courts have no inherent jurisdiction to pass orders without proper application or without invoking a specific provision under the Cr.PC. 5. Further, the learned Sessions Judge should bear in mind that there is neither discretionary nor inherent powers vested with the criminal Courts, except this Court u/s.482 of Cr.P.C., there is no provision under the Cr.P.C. on par with Section 151 of CPC. Therefore, the learned Sessions Judge has to apply his mind as to which provision is applicable to pass appropriate orders so far as the relief sought for by the Deputy Superintendent of Police for incorporation of the name of the petitioner. 6. In my opinion, Section 319 of Cr.P.C. can be pressed into service only if any application is filed. The said provision empowers the Court to proceed against any person not being the accused in the said case, if it appears to the Court that he has also committed such offence, for which such person can be tried together with other accused person. In order to understand the provision meaningfully, it is just and necessary to re iterate the provision which is 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 subsection (1), then – (a) the proceedings in respect of such person shall be commenced afresh, and witnesses reheard; (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.” This provision is not only applicable at the time of trial but also for inquiry. Sub clause (1) of Section 319 of Cr.P.C. makes it abundantly clear that in the course of any inquiry into or trial of an offence, if 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 question arises, whether the word used in the section ‘evidence’ only mean that the provision is applicable only after framing of charges & evidence is led or whether even it is applicable to the precharge proceedings and whether the word evidence is only applicable to the evidence recorded by the Court or even applicable to the materials collected during the course of investigation. The above said points are in fact at length and in detail meticulously considered by the Hon'ble Apex Court in a case between Hardeep Singh Vs. State of Rajasthan and another reported in (2014) 3 SCC 92 , the full bench of the Hon'ble Apex Court has formulated the following points for consideration in the said case: (1) What is the stage at which power u/s.319 of Cr.P.C. can be exercised? (2) Whether the word “evidence” used in Section 319(1) of Cr.P.C. could only mean evidence tested by crossexamination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination in chief of the witness concerned? (3) Whether the word “evidence” used in Section 319(1) of Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial? (3) Whether the word “evidence” used in Section 319(1) of Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial? (4) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood be convicted? (5) Does the power u/s.319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged? The Hon'ble Apex Court has in detail gone through the above said points of reference and ultimately answered the points in the following manner: ? In Dharam Pal Vs. State of Haryana [ (2004) 13 SCC 9 ], the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused, against whom materials are available from the papers filed by the Police after completion of the investigation. Such cognizance can be taken u/s.190 of Cr.P.C. and the Sessions Judge need not wait till “evidence” u/s.319 of Cr.P.C. becomes available for summoning an additional accused. ? Section 319 of Cr.P.C. significantly, uses two expressions that have to be taken note of i.e., (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a precharge stage. Inquiries under Sections 200, 201, 202 of Cr.P.C. and under Section 398 of Cr.P.C. are species of the inquiry contemplated by Section 319 of Cr.P.C. Materials coming before the Court in course of such inquiries can be used for corroboration of the evidence recorded in the Court after the trial commences, for the exercise of power u/s.319 of Cr.P.C., and also to add an accused whose name has been shown in column 2 of the charge sheet. ? In view of the above position the word “evidence” in Section 319 of Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. ? ? In view of the above position the word “evidence” in Section 319 of Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. ? Considering the fact that u/s.319 of Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event u/s.319(4) of Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by crossexamination. ? Though u/s.319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 of Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. ? A person not named in the FIR or a person though named in the FIR but has not been charge sheeted or a person who has been discharged can be summoned u/s.319 of Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. however, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. 7. On perusal of the above said findings of the Hon'ble Apex Court meticulously, it is crystal clear that Section 319 of Cr.P.C. can also be invoked at the pretrial or precharge stage which can be safely construed as ‘inquiry’ before the Sessions Court after the committal proceedings by the learned Magistrate before the charges are framed. 7. On perusal of the above said findings of the Hon'ble Apex Court meticulously, it is crystal clear that Section 319 of Cr.P.C. can also be invoked at the pretrial or precharge stage which can be safely construed as ‘inquiry’ before the Sessions Court after the committal proceedings by the learned Magistrate before the charges are framed. The evidence as contemplated u/s.319 of Cr.P.C. not only include the evidence recorded by the Court but also the materials collected during the course of investigation available to the Court to ascertain whether any other person has also committed an offence and that, he shall also be summoned before the Court to answer the charges. Therefore, by looking to the above said materials on record, the learned Sessions Judge has to follow the procedure laid down u/s.319 of Cr.P.C. on proper application being filed by the competent authority particularly, the Deputy Superintendent of Police through Public Prosecutor in this particular case explaining the specific reasons for arraigning the petitioner as one of the accused into the said case. Further added to that the learned Sessions Judge has to comply the other ingredients of section 319 of Cr.P.C. As noted earlier, the Court has to record its findings with reference to the materials on record and after coming to the conclusion, the petitioner not being arraigned as accused has also committed such offence for which such person could be tried together with the other accused persons, then only the Court can call upon the said person before the Court to answer the charges. None of the above said exercise has been taken up by the learned Sessions Judge before passing the impugned order. Therefore, the order passed by the learned Sessions Judge deserves to be set aside. Hence, the following: ORDER (1) The petition is allowed. (2) Consequently, the order dated 24.07.2014 passed by the learned Sessions Judge and all further proceedings in Spl. Case (SC/ST) No.46/2013 (Crime No.101/2013) so far as this petitioner is concerned, are hereby set aside. (3) The learned Sessions Judge is directed to consider the Memo or application filed by the Deputy Superintendent of Police, Yadgiri, afresh as if filed u/s.319 of Cr.P.C. if necessary by permitting the Public Prosecutor to file a fresh application or any additional information in support of the said application and after going through the entire charge sheet papers and materials available on record. (4) In the light of the observations made herein above, the learned Sessions Judge is directed to pass appropriate order in accordance with law.