ORDER : 1. By the instant revision petition under Section 397/401, Code of Criminal Procedure, 1973 (for short, Cr.P.C.), petitioner is beseeching annulment of order dated 8th of February 2017, passed by Addl. Sessions Judge, Phalodi, District Jodhpur (for short, learned trial Court). Learned trial Court, by the order impugned, allowed the application of second respondent injured (victim), under Section 319 Cr.P.C. to proceed against petitioner and summoned him as an additional accused in Sessions Case No. 23/2013. 2. Succinctly stated, facts of the case are that complainant, Ms. Somari W/o Puna Ram Bishnoi, on 25th of August 2008 lodged an FIR with Police Station Bhojasar, inter-alia, mentioning therein that on previous day, i.e. 24th of August 2008, at about 5 AM, when she was asleep at her residence with other family members, accused persons namely Bhanwarlal, Budharam, Rajuram and Bhagwana Ram sons of Bhakar Ram, Bhakar Ram S/o Bhinyaram, daughter-in-law of Bhakarram, Bhanwarlal and Punaram sons of Bhagchand, Manohar S/o Nimbaram, Sahiram S/o Manohar, Jagdish S/o Magnaram, Tejaram, Balwantaram, W/o Manohar, Bhojaram and 2-3 others, all residents of Chhitar Bera, Bhojasar, in furtherance of common object, well armed with lathis, Dhariya, Farsha and axe, entered into house and made her and her husband to wake up. The FIR further reveals that all of them threatened complainant and her husband to transfer their agricultural field in their names by executing a registered instrument and when her husband declined to act as per their dictates, Bhanwarlal S/o Bharkar Ram hit Dhariya on his head. 3. The FIR also unfurls that all the accused persons became furious on denial of complainant’s husband to tow their line, took complainant and her husband to agricultural field and started beating them. It is also alleged in the report that due to grave and serious injuries suffered by complainant’s husband, he became unconscious and presuming him to have died, they gave beatings to her also. When the scuffle was going on, complainant’s daughters-in-law intervened and came to her rescue and thereupon all the accused persons fled away from the scene of occurrence. On the basis of complaint, FIR bearing No. 106 of 2008 against accused persons was registered for offence under Sections 143, 342, 323, 458 and 307 IPC. After investigation, police submitted charge-sheet against some of the accused persons named in the FIR but the present petitioner and few others were given clean-chit. 4. On the basis of complaint, FIR bearing No. 106 of 2008 against accused persons was registered for offence under Sections 143, 342, 323, 458 and 307 IPC. After investigation, police submitted charge-sheet against some of the accused persons named in the FIR but the present petitioner and few others were given clean-chit. 4. The learned trial Magistrate, thereafter, upon consideration of a petition under Section 190 Cr.P.C. laid by injured (victim), proceeded to take cognizance against petitioner and others, let off by the police, for offence under Sections 147, 148, 149, 342, 323, 326, 458, 307 IPC and Section 4/25 of the Arms Act. This judicial order of the learned Magistrate, prompted the petitioner to challenge it before learned Addl. Sessions Judge, Phalodi by way of filing revision petition and the learned Addl. Sessions Judge, by its order dated 8th of February 2017, set at naught the order of cognizance. In due course of time, learned trial Magistrate committed the case to learned trial Court vis-a-vis accused persons against whom charge-sheet is filed. The learned trial Court then heard arguments on charge and framed aforesaid charges against the accused persons and on denial of charges they were put on trial. 5. The prosecution, in order to prove the charges against accused persons, examined 7 prosecution witnesses including the complainant and injured (victim) Puna Ram, respondent No. 2. After recording of statement of PW7 Bathu Devi, second respondent - victim submitted an application before learned trial Court under Section 319 Cr.P.C. In the application, it is inter-alia averred that some prosecution witnesses; viz., PW4 Somari, PW5 Suwa, PW6 Puna Ram and PW7 Badhu Devi in their statements have named petitioner as one of the assailants and stated about his active participation in commission of aforesaid offences, therefore, during trial cogent and convincing evidence has come to the fore for proceeding against him as an accused and to put him on trial with other accused persons. 6. The application aforesaid was contested by other accused persons who were facing trial. 6. The application aforesaid was contested by other accused persons who were facing trial. In the reply, it was precisely submitted by other accused persons that although police has not filed charge-sheet against petitioner but on a protest petition of the complainant, trial Magistrate has taken cognizance against him and the said order of cognizance has been set at naught by the revisional Court and the said order having attained finality, petitioner cannot be treated as “any person not being the accused”, as envisaged under Section 319 Cr.P.C. so as to proceed against him for the offences he has allegedly committed with other accused persons. 7. Learned trial Court, after considering the rival submissions, by the order impugned accepted the application of second respondent and proceeded against petitioner to put him on trial along with other accused persons by issuing non-bailable warrants. 8. Mr. Rajendra Choudhary, learned counsel for the petitioner, has vehemently argued that merely because the police after investigation has not submitted charge-sheet against petitioner, it is rather difficult to comprehend that he falls within the purview of “any person not being the accused” within the four corners of Section 319 Cr.P.C. in clear negation of judicial order passed by the trial Magistrate taking cognizance against him on the protest petition of injured (victim) second respondent. Mr. Choudhary would contend that setting aside of the cognizance order by revisional Court is a significant fact which has been completely eschewed by learned trial Court while passing the impugned order. Learned counsel submits that giving over expansive meaning to words “any person not being the accused” envisaged under sub-section (1) of Section 319 Cr.P.C. in the peculiar facts and circumstances of the instant case, is against the mandate of law, therefore, impugned order is per se vulnerable. Lastly, learned counsel has urged that the learned trial Court has committed grave and serious error of law and fact in construing the prosecution evidence so as to draw an inference that petitioner appears to have committed offence for being tried with other accused persons by issuing non-bailable warrants to secure his attendance. In support of his argument, learned counsel for the petitioner has placed reliance on two judgments; Sohan Lal & Others vs. State of Rajasthan, 1990 Cri.L.J. 2302 and Uma Shankar Sahay vs. State of Bihar & Another, 1998 Cri.L.J. 2807. 9. Per contra, learned Public Prosecutor, Mr. In support of his argument, learned counsel for the petitioner has placed reliance on two judgments; Sohan Lal & Others vs. State of Rajasthan, 1990 Cri.L.J. 2302 and Uma Shankar Sahay vs. State of Bihar & Another, 1998 Cri.L.J. 2807. 9. Per contra, learned Public Prosecutor, Mr. R.K. Bohra, submits that cognizance order passed by the trial Magistrate on protest petition of the complainant was wholly without jurisdiction inasmuch as learned trial Magistrate was not competent to take cognizance against petitioner for offence under Section 307 IPC. Learned Public Prosecutor would contend that the learned trial Court has rightly construed the words “any person not being the accused” find mention in sub-section (1) of Section 319 Cr.P.C. to proceed against the petitioner as an accused in the case for being tried with other accused persons. He, therefore, urged that no interference with the impugned order is called for. Lastly, learned Public Prosecutor submits that a bare reading of the statements of four prosecution witnesses PW4 to PW7 makes it abundantly clear that petitioner has committed an offence for which he should be tried together with other accused persons, therefore, the impugned order satisfies the test of cardinal principle of criminal jurisprudence that the real offender may not be spared in the interest of society at large. 10. I have bestowed my consideration to the arguments advanced at Bar, perused the impugned order and thoroughly scanned the entire record of the case. 11. Imploration of the impugned order at the threshold requires judicial scrutiny on the touchstone of legislative intent and true purport of words “any person not being the accused” incorporated in sub-section (1) of Section 319 Cr.P.C. 12. The main thrust of the plea of petitioner to exclude him from the words “any person not being the accused” employed under sub-sec.(1) of Section 319 Cr.P.C. is the fact that though named in the FIR as an accused but was left out by the investigating agency for being charge-sheeted and cognizance was taken against him by trial Magistrate on the protest petition, which has been nullified by the revisional Court. While the contention appears to be quite alluring but then its threadbare examination in the backdrop of facts of instant case is very much desirable. 13. While the contention appears to be quite alluring but then its threadbare examination in the backdrop of facts of instant case is very much desirable. 13. It is not in dispute that in the FIR petitioner was named as an accused by the complainant but after investigation police did not file charge-sheet against him and he was left out. The submission of charge-sheet by the police giving clean-chit to petitioner and other accused persons named in the FIR, generated a sense of indignation to the injured (victim), and that being so, at his behest petition under Section 190 Cr.P.C. is moved before trial Magistrate. The trial Magistrate, thereupon, took cognizance against the petitioner and some other accused persons for offence punishable under Sections 147, 148, 149, 342, 323, 326, 458, 307 IPC and Section 4/25 of the Arms Act. There cannot be two opinions that offence under Section 307 IPC is triable by Court of Sessions and therefore the order of cognizance was set aside by the revisional Court precisely by relying on Section 209 and 319 Cr.P.C. The learned revisional Court, while examining the cognizance order has questioned the power and jurisdiction of the trial Magistrate and thereupon by treating it to be without jurisdiction set aside the same. Needless to emphasize here that learned revisional Court has not dilated on merits of the order of cognizance nor the revisional order can be construed as an order of discharge under Section 300 or 398 Cr.P.C. 14. Section 209 of Cr.P.C. mandates that if any case is instituted on a police report or otherwise and it appears to the Magistrate that offence is triable exclusively by Court of Sessions, he shall commit the case to the Court of Sessions after making compliance of Section 207 Cr.P.C. I may hasten to add here that once the Magistrate commits the case under Section 209 Cr.P.C. to Court of Sessions, the bar of Section 193 Cr.P.C. lifts, thereby, investing the Court of Sessions with complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence including summoning of the person or persons whose complicity in the commission of crime can be prima facie gathered from the material available on record. A bare perusal of the revisional order dated 20th of August 2009, which is part of the record, it is amply clear that cognizance order of the trial Magistrate has been set aside for it being dehors the law. Thus, I am afraid, the contention of the petitioner so as to exclude him from purview of the words “any person not being the accused” enshrined in sub-section (1) of Section 319 Cr.P.C. is per se an ambitious plea, which is not tenable. 15. The Law Commission, in its 41st Report, recommended a comprehensive provision to summon or add a person not appearing in Court despite there being evidence indicating prima facie case against him for commission of offence. The Law Commission made endeavour to introduce Section 319(1) Cr.P.C. with laudable object precisely for the reason that Section 351 of the Code of Criminal Procedure, 1898 is silent on this vital issue. Therefore, the aforesaid words, “any person not being the accused”, engrafted under Section 319 Cr.P.C. cannot be construed narrowly. Its expansive meaning and constructive & proposive interpretation is necessary to advance cause of justice. 16. There is yet another aspect of the matter that learned trial Magistrate, after submission of charge-sheet against some accused persons while dropping the petitioner and others, has proceeded to take cognizance against petitioner and others by resorting to clause (c) of sub-section (1) of Section 190 Cr.P.C. upon receipt of information from an individual who was injured (victim) or an aggrieved person. Therefore, undeniably, learned trial Magistrate has passed the order of cognizance by resorting to Section 190(1)(c) Cr.P.C. for an offence he was not empowered by law. If this order of cognizance is tested on the touchstone of bar envisaged under Section 461(k) Cr.P.C. then it becomes ipso facto clear that the order of cognizance is void ab initio. Section 461(k) Cr.P.C. envisages with clarity and precision that if any Magistrate not being empowered in this behalf takes cognizance of an offence under clause (c) of sub-sec.(1) of Section 190 Cr.P.C. the proceedings shall be void and vitiated in law. 17. This being the position, the contention of the petitioner about taking cognizance on protest petition by the trial Magistrate and setting aside of the said order by the revisional Court is simply an over zealous/ambitious plea devoid of any force, which merits outright rejection and same is hereby rejected. 18. 17. This being the position, the contention of the petitioner about taking cognizance on protest petition by the trial Magistrate and setting aside of the said order by the revisional Court is simply an over zealous/ambitious plea devoid of any force, which merits outright rejection and same is hereby rejected. 18. Now adverting to the judgments on which the learned counsel for the petitioner has placed reliance, suffice it to observe that in Sohan Lal (supra), the Supreme Court examined Sections 319 and 398 Cr.P.C. and observed that if a person is found to have been an accused in the case, he cannot be proceeded against under Section 319 Cr.P.C. The Supreme Court construed the word “discharge” and held that it should not be given a restricted meaning in the sense of absolute discharge where the accused is set at liberty after examination of the whole case. The verdict as such cannot render any assistance to the petitioner in the backdrop of peculiar facts and circumstances of the instant case as noticed supra. Aforesaid judgment otherwise is also clearly distinguishable for the reason that all the offences against accused persons therein were triable by Magistrate which ipso facto ruled out applicability of embargo enshrined under Section 209 and 461 (k) Cr.P.C. Moreover, in a subsequent Constitution Bench judgment, Supreme Court has clarified the position that even a person discharged can also be summoned as an additional accused under Section 319 Cr.P.C. The other judgment, in Uma Shankar Sahay (supra), is also of no consequence as it was a case wherein embargo under Section 209 Cr.P.C. as well as Section 461(k) Cr.P.C. has not surfaced. Therefore, the judgment as such cannot render any assistance to the cause of the petitioner. 19. The Constitution Bench of the Supreme Court, in Hardeep Singh vs. State of Punjab, 2014 Cr.L.J. 1118, has thoroughly examined power of a criminal court to arraign new accused under Section 319 Cr.P.C. The case was referred to the Constitution Bench because of conflicting views by two coordinate Benches of Supreme Court. Following five questions were formulated by the Bench for answer: (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised? Following five questions were formulated by the Bench for answer: (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised? (ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination 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? (iii) Whether the word "evidence" used in Section 319(1) 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? (iv) 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 convicted? (v) Does the power under Section 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? As in the instant case, the Court is essentially concerned with Question No. (v), which is sought to be raised by the petitioner. Supreme Court, after discussing the entire law on the issue, answered the question with observations as infra: “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 under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far 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.” 20. Lastly, I have also made endeavour to examine the afflictions of the petitioner on merits. In this behalf, learned trial Court has referred to the statements of PW4 Somari, PW5 Suwa, PW6 Puna Ram and PW7 Badhu Devi respectively. to arraign the petitioner as a new accused in exercise of power under Section 319 Cr.P.C. A bare reading of the statements of these persons clearly shows involvement of the petitioner in commission of the offence, i.e., the petitioner too has committed the offence. to arraign the petitioner as a new accused in exercise of power under Section 319 Cr.P.C. A bare reading of the statements of these persons clearly shows involvement of the petitioner in commission of the offence, i.e., the petitioner too has committed the offence. Therefore, the learned trial Court, in my considered opinion, has not committed any manifest error in construing the evidence of these witnesses. It is also noteworthy that testimony of these witnesses has not been impeached by the counsel for accused-petitioner, inasmuch as all these witnesses have not been cross-examined. Thus, the learned trial Court, while considering the application of the injured/victim (second respondent) under Section 319 Cr.P.C. in the light of un-impeached incriminating evidence of these four prosecution witnesses showing involvement of the petitioner in commission of offence, has obviously not committed any illegality or impropriety in passing the impugned order, which warrants interference in exercise of revisional jurisdiction. 21. In Hardeep Singh (supra), Supreme Court has observed that Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur. The Court held: “Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.? The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of Cr.P.C. and the judgments that have been relied on for the said purpose. The controversy centers around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised.” 22. The upshot of forgoing discussion is that I find no merit in this revision petition and consequently the same is hereby dismissed.