<NAME>, J.

1. This is an appeal from (1) a judgment of the full bench of <ORG>, dated November 4, 1938, in Criminal Miscellaneous Petition No. 1,003 of 1938, which, on a reference by a division bench of the same <ORG>, held that the orders of <NAME>, a single Judge of the <ORG>, on an application for writ of habeas corpus and relative applications, and dated October 21, 24, and 26, 1938, made in Criminal Miscellaneous Petitions Nos. 986, 990 and 985 of 1938 respectively, were null and void, (2) a judgment and order of the said division bench, dated November 7, 1938, made in petition No. 1,003 in implement of the above judgment, and ( 3 ) a judgment and order of the said division bench, dated November 7, 1938, made in petition No. 985, dismissing the application for a writ of habeas corpus.

2. The appellants challenge the validity of certain warrants issued by the Resident for the Madras States under Section 7 of the Indian Extradition Act (XV of 1903 ) to the Chief Presidency Magistrate of Madras, under which they were arrested, and they ask to be discharged. The course of procedure which has been followed has raised important questions as to the jurisdiction of <ORG> to issue a writ of habeas corpus in the present case, and as to the competency of a single Judge of <ORG> to issue such a writ or the analogous writ under Section 491 of the Code of Criminal Procedure (Act V of 1898).

3. The warrant against the first appellant was in the following terms, To the Chief Presidency Magistrate, Madras.

Whereas Mr. <NAME>, Director of <ORG> (which is now under liquidation), who is now reported to be residing at Marble Hall, Sterling Road, Nungumbakam, Madras, stands charged with offences punishable under sections 410 , 419 , 421 , 480 and also sections 99 and 104 of the Travancore Penal Code corresponding to sections 409 , 418 , 420 , 477A , 109 and 114 of the Indian Penal Code committed in the Travancore State, you are hereby directed to apprehend the said Mr. <NAME> and surrender him to the frontier police station of the Travancore State for production before the District Magistrate, Trivandrurn.

Herein fail not.

( Sgd.) <NAME>, Resident for the Madras States.

The warrants against the other three appellants were in the same terms. The fourth appellant denies that he is a director of the bank, but that is not material at this stage. It will be noted that the warrants were not dated. The appellants were all arrested in Madras on the instructions of the Chief Presidency Magistrate, who is the second respondent in this appeal, on October 20, 1938. <ORG> was formed by the amalgamation of two banks and was incorporated in Travancore in September, 1937, though the head office was in Madras and the larger part of its business would appear to be carried on in the Madras Presidency. The appellants, who are Travancore subjects, had taken up residence in Madras in 1937, in order to conduct the business there. The District Magistrate, <NAME>, referred to in the warrants, is the first respondent in this appeal.

4. Learning that the appellants were to be taken to Travancore by a train leaving at 11 a.m. on October 21, 1938, and having in view that <ORG> did not sit until 10-45 a.m., the sons of the first and second appellants presented a petition (No. 985 of 1938) under Section 491 of the Code of Criminal Procedure for a writ of habeas corpus in respect of all the appellants early on the morning of that day to <NAME>, a Judge of <ORG>, at his residence. This petition was supported by an affidavit by the son of the first appellant, and along with it a further petition (No. 986 of 1938) was presented to the Judge asking for a stay of execution of the warrants. On the latter petition (No. 986 of 1938), <NAME> made the following order, viz.:

As the matter is extremely urgent the Chief Presidency Magistrate, <NAME>, should detain these prisoners in his custody and not send them away from Madras pending further orders of <ORG>.

5. The appellants had meanwhile been produced before the Chief Presidency Magistrate, and made an application for a reference to <ORG> under Section 8(a) of the Indian Extradition Act. While this application was in course of being heard, the order passed by <NAME> was produced and the Magistrate thereupon remanded the appellants to custody.

6. Subsequently on the same day, the Crown Prosecutor presented al petition ( No. 990 of 1938 ), praying that the order of <NAME> on petition No. 986 be vacated, mainly on the ground that it was passed without jurisdiction, as, under Rule 2(a) of the Appellate Side Rules of <ORG>, jurisdiction under Section 491 of the Criminal Procedure Code could only be exercised by a bench of <ORG>, and not by a single Judge. This petition, No. 990, was heard by <NAME> on October 22, 1938, and on October 24, the learned Judge made an order in petition No. 990 refusing to vacate the order for stay in. petition No. 986, and dismissing petition No. 990. The learned Judge held himself to be bound by the decision of a full bench of <ORG> of Madras in In re Govindan Nair (1922) I.L.R. 45 Mad. 922, F.B., to the effect that <ORG> had jurisdiction at common law to issue a writ of habeas corpus, and he held that such jurisdiction was vested in each of the Judges of <ORG>, and could not be taken away by Rules.

7. On the same day, October 24, 1038, the first of these petitions, No. 985, came before a bench of <ORG> (<NAME> and <NAME>.), who refused to proceed with the matter, as <ORG> was seized of it. In answer to the <ORG>, counsel for the applicants stated categorically that the application was for a common law writ of habeas corpus and not a petition to <ORG> to exercise its powers under Section 491 of the Criminal Procedure Code. On October 26, 1938, <ORG> heard petition No. 985, and made an order that a writ of habeas corpus should issue to the Chief Presidency Magistrate, returnable before himself on October 28, 1938, and a writ nisi was accordingly issued.

8. On the same day, October 26, 1938, the District Magistrate, Trivandrum, the first respondent in this appeal, presented a petition (No. 1,003 of 1938 ) to <ORG>, under Section 561A of the Code of Criminal Procedure and Section 223 of the Government of India Act, 1935, praying that the orders of <NAME>, dated October 21, 22, and 26, 1938, should be quashed as having been made without jurisdiction, and calling the present appellants as respondents. This petition was supported by an affidavit by <NAME> C.I.D., Travancore.

9. This petition, No. 1,003, came on for hearing on October 27 before <NAME> and <NAME>, who, as the hearing could not be completed on that day, made an order suspending the operation of the writ nisi, issued under the order of <NAME> dated October 26 and staying further proceedings on petition No. 985 until the further orders of the <ORG> should be known, with a direction to the second respondent to keep the prisoners in his custody till further orders.

10. After the further hearing on petition No. 1,003, <ORG>, on November 2, 1938, referred the following questions of law to a full bench:-

(1) Can <ORG> or any Judge of it issue the common law writ of habeas corpus in any of the cases covered by Section 491 of the Criminal Procedure Code?

(2) Can an application for a common law writ of habeas corpus or for directions under Section 491 of the Criminal Procedure Code be heard and disposed of by a single Judge of this Court? In other words : Are Rules 2 and 2a of the Appellate Side Rules intra or ultra vires?

(3) If a single Judge has power to issue the common law writ of habeas corpus, is the writ issued by our learned brother <NAME>, on October 26 liable to be quashed by this Court for the reason that it has been issued in contravention of the rules in force in <ORG> in England?

11. In stating their reasons for the order of reference the learned Judges dealt with the contentions submitted to them as follows:-The petitioner, the first respondent in this appeal, submitted three contentions : in the first place, that <ORG> has no jurisdiction to issue the common law writ of habeas corpus in cases, which admittedly include the present case, covered by Section 491 of the Criminal Procedure Code; the learned Judges held themselves bound to reject this contention by reason of the decision of the full bench in <NAME> case, already referred to, but gave reasons why they thought that it should be reconsidered. In the second place, the petitioner maintained that even if <ORG> had still power to issue the common law writ of habeas corpus, nevertheless Rule 2 was intra vires and binding on all Judges of the <ORG>, and that, accordingly, a single Judge had no power to deal with such proceedings; the learned Judges held this to be well founded. In the third place, the petitioner maintained that even if a single Judge has jurisdiction to issue the common law writ of habeas corpus, the procedure in this case had not been proper in that <NAME> had made the writ returnable to himself and not to the <ORG>, during term time, which was in contravention of the rules in force in <ORG> in England, which would apply in the case of a common law writ in <ORG> of Madras ; the learned Judges agreed with this contention. The respondents-the present appellants-maintained two arguments : first, that in a criminal matter, such as this one, there was no right of appeal; but the learned Judges held that the <ORG> was entitled to entertain the petition by virtue of Section 561A of the Criminal Procedure Code. In the second place, the respondents objected to the locus stand of the petitioner, who had not been a party to the application for a writ; the learned Judges rejected this objection. Having regard to the importance of three of the questions argued before them, the learned Judges made the reference already mentioned.

12. On November 4, 1938, the full bench (Sir <NAME>, <NAME>, <NAME>, <NAME> and <NAME>.) having heard arguments, made an order in which the questions were answered as follows:-

(1) The common law writ of habeas corpus does not run in British India in a case like this. Assuming that the <ORG> formerly had the power to issue a writ of habeas corpus in a case like this, that power has been taken away and the powers conferred by Section 491 of the Code of Criminal Procedure substituted.

(2) Rules 2 and 2a of the Appellate Side of this <ORG> are intra vires the <ORG>'s powers.

(3) Mr. Justice <NAME>'s order issuing a rule nisi was passed without jurisdiction and is consequently null and void.

(4) The position therefore is that the application filed by the respondents under Section 491 of the Code of Criminal Procedure must be dealt with in accordance with the rules of the <ORG> which means that it must be dealt with by the Criminal Bench.

13. In the same order the learned Chief Justice directed that the application under Section 491 (No. 985) should be placed before the criminal bench on the following Monday, November 7. The reasons of the full bench for their judgment were subsequently given on November 8 in a judgment delivered by the Chief Justice.

14. The proceedings in petition No. 1,003 were resumed by <ORG> on November 7, 1938, when they made an order in accordance with the answer of the full bench, setting aside the order of <ORG> in petition No. 985, dated October 26, 1938, which directed the issue of the writ nisi already referred to.

15. On the same day, November 7, 1938, <NAME> and <NAME> dealt with petition No. 985, which came before them under the direction of the Chief Justice. After hearing arguments and considering the affidavits, the learned Judges delivered judgment and made an order dismissing the petition.

16. This appeal is taken against (1) the judgment of the full bench, dated November 4, 1938, on the questions referred to them in petition No. 1,003, (2) the judgment of the division bench, dated November 7, 1938, in petition No. 1,003, and (3) the judgment of the division bench, dated November 7, 1938, dismissing petition No. 985.

17. Counsel for the appellants submitted four contentions, viz. :

1. That the first respondent had no locus standi in the matter raised in the appellants' petition No. 985, and that, for the same reason, his petition No. 1,003 was incompetent and should not have been entertained.

2. That Rules 2 and 2 A of the Appellate Side Rules were ultra vines, or, in any event, were not applicable to the present case.

3. That the warrants were illegal and invalid for the following reasons, (a) that there is definite jurisdiction in <ORG> to examine, on evidence, whether the conditions laid down by the Extradition Act and the rules made thereunder for issue of the warrants have been complied with, (b) that, when thus examined, it would be found that such conditions had not been complied with, (c) that, in any event, the warrants were ex facie invalid, in respect that

(i) they did not show that the conditions had been complied with,

(ii) that they did not show sufficiently with what offences the appellants were charged, or when they were committed,

(iii) that they did not sufficiently show where and to whom the appellants were to be delivered up, and

(iv) that they were undated.

4. That jurisdiction to issue the common law writ of habeas corpus in a case such as the present still subsisted, and that Pandrang Row J. had jurisdiction to order the issue of the writ nisi.

18. On the first contention, their Lordships are clearly of opinion that the first, respondent was entitled to intervene in the appellants' petition No. 985, and that the petition No. 1,003 was competently presented by him. Counsel for the appellants referred to the rules made by the Governor-General in <ORG>, under Section 22 of the Indian Extradition Act, 1903, as to the Procedure of Political Agents for Surrender of Accused Persons to Native States (No. 1862 I.A., dated May 13, 1904), and in particular Rule 2, which provides as follows : 2. The Political Agent shall not issue a warrant under Section 7 of the said Act except on a request preferred to him in writing either by or by the authority of the person for the time being administering <ORG> of the State for which he is a Political Agent, or by any Court within such State which has been specified in this behalf by the Governor General in <ORG>, or by the Governor of Madras or Bombay in <ORG>, as the case may be, by notification in the official <ORG>.

19. He maintained that the only parties who were entitled to take part in the proceedings relative to the warrants in the present case were (a) the appellants, (b) the second respondent, the Chief Presidency Magistrate, (c) the British Resident for the Madras States, and (d) the Government of Travan-core. But their Lordships are of opinion that the terms of the warrants show that the authority to whom, in terms of Section 7 of the Act, the appellants are to be delivered, is truly the first respondent, who will control their custody, though the police of Travancore at the frontier station will receive the delivery on his behalf. Rule 7 of the rules above referred to makes this sufficiently clear ; it provides as follows:-

'7. In the case of an accused person made over for trial to <ORG>, the Political Agent shall satisfy himself that the accused receives a fair trial, and that the punishment inflicted on conviction is not excessive or barbarous; and if he is not so satisfied he shall demand the restoration of the prisoner to his custody, pending the orders of the Governor General in Council.

20. It is dear that, if occasion arose for such an application in the present case, it would fall to be made to the Court of the first respondent. Their Lordships are of opinion that the first respondent is entitled to vindicate his right to obtain the custody of the appellants, and that this contention of the appellants fails.

21. It will be convenient to dispose next of the fourth contention of the appellants. On this point their Lordships agree with the conclusions of the full bench in the present case which are stated in the judgment delivered by the learned Chief Justice as follows :

The High <ORG>s Act of 1861 authorised the <ORG> if it thought fit to take away the powers which this <ORG> obtained as the successor of the Supreme <ORG>, and Acts of the <ORG> lawfully passed in 1875 and subsequent years leave no doubt in my mind that the <ORG> has taken away the power to issue the prerogative writ of habeas corpus in matters contemplated by Section 491 of the Code of Criminal Procedure of 1898.

22. Indeed counsel for the appellants stated that he found difficulty in pressing this contention, and the reasoning of the learned Chief Justice, on which he based the above conclusion, is so clear and convincing, including his narration of the legislative Acts referred to in his conclusion, that their Lordships are content to adopt it, as also to state that, like the learned Chief Justice, they are in entire agreement with the judgment of <NAME> in <CITATION> (1927) I.L.R. 54 Cal 227. Accordingly the appellants' fourth contention also fails. It follows that the appellants' petition No. 985 must be treated as an application under Section 491 of the Code of Criminal Procedure. The second contention of the appellants related to the Appellate Side Rules of <ORG>. Section 491 of the Code of Criminal Procedure, so far as material, provides:

491. (1) Any High. Court may, whenever it thinks fit, direct

(b) that a person illegally or improperly detained in public or private custody within such limits" (i.e. the limits of its appellate criminal jurisdiction) "be set at liberty ;

(2) <ORG> may, from time to time, frame rules to regulate the procedure in cases under this Section.

23. The material rules of the Appellate Side Rules are as follows :

2. The following matters may be heard and determined by a Bench of two Judges provided that if both Judges agree that the determination involves a question of law they may order that the matter, or question of law, be referred to a Full Bench :

(4)(c) for issue of a writ of habeas corpus, 2a. All applications for writ of habeas corpus shall go before <ORG> dealing with criminal work.

24. In view of their Lordships' opinion, already expressed, as to the incompetence of the issue of a common law writ in the present case, the appellants' contention, that these rules are ultra vires so far as they affect the issue of such a writ, does not arise, but the appellants maintain that, on proper construction, these rules do not apply to an application for directions under Section 491 , which they maintain is not covered by the words " all applications for writ of habeas corpus". Their Lordships are unable to accept this contention, and their view is confirmed by the terms of the statutory notifications in <ORG> as to Rule 2A, which first appeared in a somewhat different form in the <ORG>, 1925, Part II, p. 307, under date January 3, 1925, in which it is expressly described as an amendment to the rules regulating proceedings under Section 491(1) of the Code of Criminal Procedure, and it was as follows, " All applications for writ of habeas corpus shall go before a Bench of three Judges, of which the Chief Justice, unless otherwise ordered, shall be one." The alteration of the rule to its present form appeared in the <ORG>, 1929, Part II, p. 1309, under date August 17, 1929, and the description of the amendment is identical with that in the earlier notification. Accordingly, <NAME>, as a single Judge, had no jurisdiction to deal with petition No. 985.

25. It only remains to deal with the appellants' contentions as to the warrants :In the first place, they maintained that the <ORG> is entitled to examine, on evidence, whether the conditions laid down by the Extradition Act and the rules made under Section 22 of the Act have been complied with, and that the appellants were entitled to an opportunity to satisfy the <ORG> (a) that the offences must have been committed in Madras, and (b) that, in reality, the Travancore authorities desired to get the appellants into their jurisdiction in order to charge them with political offences, which would not be extraditable offences. It must be remembered that the warrants are issued by the agent of <ORG>, and not by an agent of the Travan-core State, and this executive act is safeguarded in various ways by the Act and by the rules. For instance, Rule 4 provides that the Political Agent shall, in all cases before issuing a warrant under Section 7 of the Act, satisfy himself, by preliminary inquiry or otherwise, that there is, prima facie, a case against the accused person. The appellants do not suggest that the Resident did not so satisfy himself in the present case. But, if such a suggestion were to be made, their Lordships are of opinion that it would not be properly the subject of inquiry by the <ORG>, but should be stated to the Magistrate on an application to him to report to <ORG> under Section 8A of the Extradition Act. Their Lordships see no reason why the offences charged cannot have been committed in Travancore, and what they have stated above directly applies to the suggestion that the true object of the extradition is to enable the appellants to be charged with political offences. It may be added that a bogus trial of the offences, in respect of which the extradition is made, would appear to fall within Rule 7, and to make it the duty of the Political Agent, in such an event, to demand the restoration of the prisoners to his custody.

26. Lastly, the appellants contend that the warrants are illegal ex facie in respect (a) that they do not sufficiently show with what offences the appellants were charged or when they were committed, (b) that they do not sufficiently identify the place where, and the person to whom, the appellants were to be delivered up, and (c) that they are undated.

27. As regards (a), no form of warrant is prescribed by the Extradition Act or the rules, and the warrants clearly describe the offences with which the appellants are charged, which is all that is required by the ordinary form of warrant of arrest prescribed by Section 75 and form II of Schedule V of the Code of Criminal Procedure. Their Lordships may also refer to the explanation to Section 477A of the Indian Penal Code. This objection fails. As regards (b), Section 7(1) of the Extradition Act uses the words, "for his arrest and delivery at a place and to a person or authority indicated in the warrant," and their Lordships are of opinion that all that is required is that the place and person shall be sufficiently indicated to enable the Chief Presidency Magistrate, to whom the warrants are addressed, to act in pursuance of such warrants and to give directions accordingly. It is clear that the second respondent has no difficulty in this regard, and, if there were any doubt on the warrants taken by themselves, which their Lordships are not prepared to assume, the matter is placed beyond doubt by <ORG> (Home Department) Order No. 1,293, March 10, 1938, under which the Government direct that in future all persons extradited should be handed over at " the nearest frontier police station in the Travancore State". That order was addressed, among others, to the second respondent. There can be no difficulty in identifying the nearest frontier police station of the Travancore State for production before the District Magistrate, Trivandrum, and, in their Lordships' opinion, a police station is a perfectly lucid description of the authority to whom the surrender is to be made. Contention (c) as to the absence of date also fails, in their Lordships' opinion. While it undoubtedly would be the usual and better practice to date the warrants, no provision in the Act or the rules appears to require directly or implicitly that the warrants must be dated ; no period is expressed as running from the date of the warrants. This disposes of all the appellants' objections to the validity of the warrants.

28. Their Lordships have now stated the reasons which led them on April 3, 1939, humbly to advise His Majesty that the appeal should be dismissed.


JUDGMENT <NAME>, J.

(1) The following question, which is common to both the assessment years under reference, namely, 1960-61 and 1961 -62, has been referred to this Court by <ORG> (Delhi Bench 'A') (hereinafter referred to as the <ORG> under section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as the New Act) :- "WHETHERon the facts and in the circumstances of the case the <ORG> was legally justified in holding that it was a case of mere change of opinion on the same facts and the assessment could not be reopened under section 147(b) of the Income-tax Act, 1961?"

(2) The relevant facts may be briefly stated : The assessed in the case is Her Highness Smt. <NAME>, the Maharani of Alwar, (hereinafter referred to as the assessed). Her assessment for the year 1960-61 was completed on 26th October, 1962 on a total income of Rs. 48,394.00 under section 23(3) of the Income-tax Act, 1922 (hereinafter referred to as the Old Act). Similarly, the original assessment on the assessec for the assessment year 1961-62 was completed on 3rd January, 1963 on a total income of Rs. 55,930.00 under Section 143(3) of the New Act. For these two assessments, the income derived by the assessed by way of interest from bank deposits was treated as 'earned income' and the Income-tax Officer has also accepted the assessed's claim of expenditure on the salary paid to her danghter-in-law. Subseauently. the Revenue Audit staff working under the Comptroller and Auditor General of India, while scrutinising these assessments, brought to the notice of the <ORG> that the Income-tax Officer had wrongly treated the 'interest income' as 'business income' and also that the Income-tax Officer had wrongly allowed the assessed's claim with regard to the salary paid to her da lighter-in-law.

(3) Acting upon this scrutiny note of the Revenue Audit, the Inspecting Assistant Commissioner wrote to the Income-Tax Officer asking him to rectify these defects by reopening the assessments under section 147(b) of the New Act. The Income-tax Officer thereupon reopened the original assessments under section 147(b) of the New Act, and issued notice to the assessed. The assessed objected to the reopening of the original assessments by the Income-tax Officer and contended that all the relevant information was available to the Income-tax Officer at the time of the original assessments and that the Income-tax Officer, after a consideration of the said material, had come to a definite conclusion that the 'interest income' constituted 'earned income' and also that the salary paid by the assessed to her daughter-in-law was an allowable item of expenditure. The Income- tax Officer overruled the assessed's objections on both these points and treated the 'interest income' as 'unearned income' and he also disallowed a major portion of the assessed's claim regarding the salary paid to her daughter-in-law.

(4) The assessed preferred appeals to the Appellate Assistant Commissioner and again contended before him that the reopening of the original assessments under section 147(b) of the New Act was illegal, The Appellate Assistant Commissioner accepted this contention and held that inasmuch as all the material facts were before the Income-tax Officer at the time of the original assessments and he had, after a consideration of these facts, arrived at a definite conclusion, he could not by mere change of opinion reopen the original assessments. He, therefore, set aside the re-assessments under setion 147(b) of the New Act, (5) Against these orders of the Appellate Assistant Commissioner, the <ORG> preferred appeals before the <ORG>. It was pointed out to the <ORG> that the scrutiny note of the <ORG> Audit staff and the letter written by the Inspecting Assisant Commissioner to the Income-tax Officer were not brought to the notice of the Appellate Assistant Commissioner and it was contended that these documents constituted 'information' within the meaning of section 147(b) of the New Act. The <ORG>, however, did not accept this contetnion and agreed with the view of the Appellate Assistant Commissioner that the Income-tax Officer had no information in his possession which would justify the re-opening of the original assessments under section 147(b) of the New Act. The <ORG>, therefore, dismissed the appeals filed by the <ORG>. But at the latter's instance, the <ORG> has referred the question, as already stated, to this Court.

(6) Before answering the question, it would be necessary to state the scope of the question referred to us- From the order of the Appellate Assistant Commissioner it would appear that the only contention which was urged before him on behalf of the assessed and which was in the nature of a preliminary objection was that the reopening of the original assessments under section 147(b) of the New Act was illegal in view of the fact that the entire material relevant to the two assessments was before the Income-tax Officer making the original assess- ments, that the latter had applied his mind to the material and duly considered that material and had come to certain conclusions which were incorporated in the assessment orders and that there was no new information which had come to his notice subsequently on the basis of which action under section 147(b) of the New Act could be. taken. The learned Appellate Assistant Commissioner considered only this preliminary objection and decided it in favor of the assesses and cancelled the re-assesments under section 147(b) of the New Act. He did not go into the merits of the assessed's appeals and did not record any findings on the two questions, namely,- (I)whether the 'interest income' constituted 'earned income' or income under 'other sources' ? and (ii) whether the assessed's claim for allowance of. the salary paid to her daughter-in-law was allowable; if so, to what extent ?

Although in the appeals before the <ORG>, the assessed appears to have challenged the Income-tax Officer's finding in the re-assesments on both these questions and although the <ORG> has also made some stray remarks while narrating the assessed's contentions regarding the assessed's claim, the <ORG> has not decided the appeals on merit. The <ORG> has not in 'so many words held that 'interest income' was in the nature of 'earned income' or that the assessed's claim regarding the salary was allowable in its entirety or to some extent. The "<ORG> has decided the appeals entirely on the basis of the legal contention urged on behalf 'of the assessed, namely, that the scrutiny note of the <ORG> staff and the letter of the Inspecting Assistant Commissioner did not constitute 'information' within the meaning of section 147(b) of the New Act. It is, therefore, only this legal question which is 'to be decided by us in this reference. Although the question framed by the <ORG> is in somewhat general terms, the real question that arises for decision in this case is whether the 'scrutiny note of the <ORG> and the letter of the Inspecting Assistant Commissioner constitute 'information' within the meaning of section 147(b) of the New Act? .

(7) What constitutes 'information' within the meaning of sections 34(1)(b) of the Old Act and 147 (b) .of the New Act has been a vaxed question and to borrow the words of <NAME> in <CITATION> ., (1969) 74 I.T.R. 107 "still remains a rich germinating ground for forensic arguments". We have had occasion to notice the views expressed by <ORG> and the different <ORG> on this point in our judgment in <CITATION> ., (1971) 51 I.T.R. 95. Some more decisions have been brought to our notice by <NAME>, learned counsel for the <ORG>, which indicate that the divergence has not yet been reconciled. But it is really not necessary for the purpose of this case to traverse the entire ground of what constitutes information within the meaning of section 147(b) of the New Act. because the question before us lies with a narrow compass. It is admitted that all the relevant facts regarding the two questions, namely. interest income and salary paid to the assessed's daughter-in-law, were available before the Income-tax Officer at the time of the original assessment and that it was only on a consideration of these facts that the Income-tax Officer had come to the conclusion that the interest income was in the nature of earned income and also that the salary paid by the assessed to her daughter-in-law was in the nature of allow- able expenditure. The Income-tax Officer, however, on a considera- tion of the same facts subsequently, came to a different conclusion. In a way, this may amount to a change of opinion on the part of the Income-tax Officer. Does such a change of opinion under the circum- stances of this case entitle the Income-tax Officer to reopen the original assessments under section 147(b) of the New Act? There can be no doubt that even a change of opinion under certain circumstances would entitle the Income-tax Officer to reopen the assessments, under section 147(b) of the New Act. Change of opinion based on instruc- tion or knowledge obtained by the Income-tax Officer subsequent to the completion of the original assessments regarding the correct posi- tion of law would entitle the Income-tax Officer to reopen the assess- ment under section 147(b) of the New Act. Such instruction or knowledge may also be regarding the correct position of facts or particulars. This is what <ORG> held in <NAME> v. Commissioner of Income-fax, (1959) 35 I.T.R. l, The position was reiterated by <ORG> in a later case, namely, <CITATION> , (1969) 72 I.T.R. 376, in which it was held that the opinion of the Central Board of <ORG> regarding the correct valuation of securities for the purposes of estate duty was 'information' within the meaning of section 59 of the Estate Duty Act, 1953 which is analogous to section 147(b) of the New Act. It is no doubt true that such information regarding the correct facts or particulars has to come from an external source as held by <ORG> in <CITATION> ., (1968) 67 I.T.R. ll(^). But then the question arises what is the nature of the "external source" from which the Income-tax Officer has derived instructions or knowledge concerning facts or particulars. The <ORG> has taken the view that the external source should be the judgment of courts like <ORG>, <ORG> or the <ORG> or of appellate bodies under the Income-tax Act like <ORG> or the <ORG> and that the external source cannot be of the nature of the scrutiny note by the <ORG> Audit or a letter of the Inspecting Assistant Commissioner. We have to exa- mine the correctness of this view.

(8) There appears to be no decision directly on this point and, there- fore, this question is in the nature of res-integra. But in deciding this question, we have naturally to seek guidance from the decisions of <ORG> and the various <ORG>, which have a beanng on this point. <ORG> has not in any manner qualified the words "external source" in <NAME> Co./s case. It has not held that the external source must either be a fudgment of a Court or the judgment of an appellate authority under the Income-tax Act . Although in the case of Nawab Sir <NAME> the external source which was held to be information was the opinion expressed by <ORG> in an aopeal under the Estate Duty Act . <ORG> has not held that the view ex- pressed by <ORG> was information only because the view was expressed in an appeal under the Estate Duty Act . The opinion of <ORG> was held to be information from an external source because the Income-tax Officer had not acted on his own initiative or on a change of his own opinion but because the correct position was brought to his notice by the decision of <ORG>. <CITATION> , (1968) 70 I.T.R. 74 <ORG> has held that the income-tax Officer had not acted on his own initiative or on the change of his own opinion when he took proceedings under section 34(l)(b) of the Old Act and that the correct position had been brought to his notice by the decision of the <ORG> and <ORG> and that must be held to be information as a consequence of which he came to believe that the provisions of section 34(l)(b) of the Old Act were attracted. In our view, the emphasis laid by <ORG> in these two cases does not appear to be on the character of the external source as a court or a tribunal. but the emphasis appears to be on the fact tliat the Income-tax Officer bad not acted on his own initiative or on the change of his own opinion but acted on the basis of the correct poistion brought to his notice by some other authority. The correct significance of the words "external source" has been explained by <ORG> in <CITATION> , (1970) 77 I. T.R. 995, in the following words :- "THEinformation which is relied upon by the Income-tax Officer for issuing the notice under section 148 must be information which he has obtained aliunde and not merely by looking at his own order made in the proceeding for a subsequent year."

It is no doubt true that no case has come to our notice in which proceedings under section 147(b) of the New Act were initiated on the basis of the information or finding of a body or authority other than <ORG>, <ORG>, the <ORG> or the appellate authorities under the Income-tax Act . But, at the same time. none of these decisions has in so many words restricted .the scope of "external source" to courts or the tribunals under the Act. The <ORG> has referred to the decision of <ORG> in <CITATION> (1963) 48 I.T.R. 837 in support of its view that only judicial decisions of the Appellate Assistant Commisisoner or the Income-tax Appellate <ORG> are information within the meaning of expression "external source" used in section 34(l)(b) of the Old Act. We have carefully read the report of the judgment of <ORG>, but we find that while <ORG> has held that decisions of <ORG> or the <ORG> constituted information within the meaning of section 34(1) (b) of the Old Act, it has no where held that only such decisions constituted such information. Therefore, in our view, the expression "external source" used by <ORG> in <NAME> and Co; s case cannot be restricted to opinions expressed or findings given by Courts of law or the <ORG> or other authorities under the Income-tax Act .

(9) It is not necessary for us for the purpose of this case to define the exact scope of the words "external source". We arc concerned in this case only with the question whether the scrutiny note of the <ORG> and the letter of the Inspecting Assistant Commissioner would come within the scope of "external source" ? The Comptroller and Auditor General of India has the statutory right to scrutinise the proceedings of all departments of the Government including <ORG> and to point out any defects or mistakes in such proceedings which adversely affect the revenues of the State- It is in the exercise of this statutory power that the Comptroller and Auditor General of India, acting through his <ORG> staff, pointed Out what he considered to be- the errors committed by the Income-tax Officer in the original assessments. On the basis of this scrutiny note by the <ORG>, the Inspecting Assistant Commissioner, who had the authority under the Income-tax Act , to supervise the work of the Income-tax Officer, including the assessments made by them, brought these errors pointed out by the Revenue Staff to the notice of the Income-tax Officer. It was only on the basis of the scrutiny note and the letter of the Inspecting Assistant Commissioner that the Income-tax Officer came to the conclusion that the interest income had been wrongly treated as earned income and that the full claim of the assessed regarding the salary paid to her daughter- in-law had been wrongly allowed. Although this might amount to a change of opinion by the Income-tax Officer, it was not a change of opinion on his own initiative and on his own re-consideration of the available material; but it was a change of opinion brought about as a result of information from an "external source" which came into his possession subsequent to the original assessments. This information, in our view, satisfies the tests laid down by <ORG> in <ORG>'s case as well as the case of Nawab Sir <NAME>.

(10) Before concluding, we may refer to another finding of the <ORG> which has apparently weighed with the <ORG> in rejecting the <ORG>'s appeals. The <ORG> has held that the change of opinion was indirectly forced upon the I. T.O. by the <ORG> and that the I.T.O. was asked to do within a period of four years what the Commissioner of Income-tax could do under section 263(b) of the New Act within the time-limit of only two years. These, in our view, are not relevant considerations. Whether the re-assessment proceedings under setion 147 (b) of the New Act were initiated voluntarily by the Income-tax Officer or whether the Income-tax Officer was persuaded by his superior officers to do so, will have no bearing upon the question. Again, the fact that the error committed by the Income- tax Officer in the original assessments could have been corrected by the Commissioner of Income-tax under section 263(b) of the New Act but the Commissioner had failed to do so, is also not relevant. In <NAME> case, <ORG> has observed as follows:-

"IT is then contended that sections 33B and 35 confer ample powers on the specified authorities to revise the Income-tax Officer's orders and to rectify mistakes respectively and so it would be legitimate to construe the word 'information' in section 34(1) (b) strictly and to confine it to information in regard to facts or particulars. This argument also is not valid. If the word 'information' in its plain grammatical meaning includes information as to facts as well as information as to the state of the law, it would be unreasonable to limit it to information as to the facts on the extraneous consideration that some cases of assessment which need to be revised or rectified on the ground of mistake of law may conceivably be covered by sections 33B and 35 . Besides, the application of these two sections is subject to the limitations prescribed by them; and so the fact that the said sections confer powers for revision or rectification would not be relevant and material in construing section 34(1) (b)."

(11) As a result of our discussion, we answer the question referred to us in the negative, i.e., for the <ORG> and against the assessed. The <ORG> will now have to decide the departmental appeals on merits. The <ORG> will also get the costs of this reference. Pleader's fee is fixed Rs. 250.00


PETITIONER: <NAME> & <NAME>. Vs. RESPONDENT: STATE OF PUNJAB & <NAME>. DATE OF JUDGMENT16/11/1978 BENCH: <NAME>, V.D. BENCH: <NAME>, V.D. KRISHNAIYER, V.R. PATHAK, R.S. CITATION: 1979 AIR 339 1979 SCR (2) 306 1979 SCC (3) 345 CITATOR INFO : R 1983 SC 67 (18) RF 1983 SC 595 (3) E&R 1992 SC2068 (5) ACT: Code of Criminal Procedure 1973 (Act 2 of 1974), s. 319-Scope of <ORG> whether has power to add any person as an accused in the absence of any committal order- Sections 193 and 209 whether bar to <ORG> taking cognizance of offence as a court of original jurisdiction. HEADNOTE: A criminal complaint was registered against five persons, amongst whom the two appellants were included. The police having found that the two appellants were innocent, charge-sheeted the remaining three persons. They were committed to trial. At the trial after evidence showing the appellants' involvement in the crime was recorded the prosecution moved an application that they be tried, along with the three accused. The Sessions Judge directed the appellants to stand trial, together with the other accused. Their revision application to <ORG> was dismissed. In their appeal to this <ORG> it was contended that, (1) sections 193 and 209 . were a bar to <ORG> taking cognizance of any offence as a court of original jurisdiction and (2) s. 319 was inapplicable to the facts of this case because that section in so far as it is applicable to a <ORG> would be subject to or subordinate to s. 193 and the phrase "any person not being the accused" occurring in the section excludes from its operation an accused who had been released. by the police. Dismissing the appeal, ^ HELD: (1) A plain reading of s. 319(1) clearly shows that it applies to all the courts including a <ORG> and as such a <ORG> will have the power to add any person, not being the accused before it but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused. [311 E-F] (2) (a) Both under s. 193 and s. 209 the commitment is of 'the case' and not of 'the accused' whereas under the equivalent provision of the old Code viz., s. 193(1) and s 207A it was 'the accused' who Was committed and not 'the case'. [312D] (b) Although there cannot be a committal of the case without there being an accused person before the court, this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the <ORG> but once the case in respect of the offence qua those accused who were before the <ORG> is committed then the cognizance of the offence can be said to have been taken properly by the <ORG> and the bar of s. 193 would be out of the way. [312E] 307 (c) The summoning of additional persons who appear to be involved in the A crime from the evidence led during the trial and directing them to stand their trial alongwith those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it; otherwise the conferal of the power under s. 319(1) upon the <ORG> would be rendered nugatory. [312F] (d) Section 319(4) (b) which enacts a deeming provision provides that , where the <ORG> proceeds against any person under sub-section ( 1 ), the case may proceed as if such person had been an accused person when the <ORG> took cognizance of the offence upon which the inquiry or trial was commenced; in other words, such person must be deemed to be an accused at the time of commitment because it is at that point of time the <ORG> in law takes cognizance of the offence. [312G] (3) Under s. 193 read with s. 209 of the Code when a case is committed 1 to <ORG> in respect of an offence <ORG> takes cognizance of the offence and not of the accused and once the Session <ORG> is properly seized of the case as a result of the committal order against some accused the power under s. 319(1) can come into play and such <ORG> can add any person, not an accused before it, as an accused and direct him to be tried alongwith 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 s. 319(1) subject or subordinate to s. 193 . [313H-314B] (4) The expression "any person not being the accused" clearly covers any person who is not being tried already by the <ORG>. The very purpose of enacting such a provision like s. 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. [314C- <CITATION> AIR 1967 SC 1167 referred to. <CITATION> . 1977 Crl.L.J. 415 overruled. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 501 of 1977.

Appeal. by special leave from the Judgment and order dated 24th November, 1977 of <ORG> in Criminal Revision No. 909 of 1977.

<NAME> for the Appellants.

<NAME> for the Respondent.

The Judgment of the Court was delivered by TULZAPURKAR, J.-This appeal by special leave is directed against the order of <ORG> in Criminal Revision No. 909 of 1977, whereby <ORG> confirmed the order passed by the Additional Sessions Judge, Ludhiana on October 19, 1977 directing that the attendance of the two appellants (<NAME> and <NAME> be procured and they be ordered to stand trial together with three accused who had been committed to his Court to stand their trial for offences under ss. 452 , 308 and 323 each read with 34 I.P.C .

The facts giving rise to the appeal may be stated thus: At the instance of one <NAME> a criminal case was registered at Police Station Dakha against <NAME>, <NAME> (the two appellants), <NAME>, <NAME> and <NAME> on the allegation that each one armed with a "Toki" had entered his house on April 30, 1977 at 10.00 a.m. and had caused a number of injuries to <NAME> and <NAME> who were present in the house, with the respective weapons. It was further alleged by <NAME> that <NAME> opened the attack with "Toki" blow from reverse side on <NAME>'s head whereas <NAME> had dealt him blows with the butt of his gun and when <NAME> tried to rescue <NAME>, <NAME> and <NAME> gave blows on his head and that on medical examination <NAME> was found to have four injuries by blunt weapons and <NAME> was found to have suffered one injury with a blunt weapon. During the investigation the police found <NAME> and <NAME> (the appellants) to be innocent and, therefore a charge-sheet was submitted by the police only against the remaining three accused <NAME>, <NAME> and <NAME>. The learned Magistrate who held a preliminary inquiry committed the three accused <NAME>, <NAME> and <NAME> to <ORG> and the learned Additional Sessions Judge, Ludhiana, framed charges against the three accused for offence:, under ss. 452 / 308 / 323 read with s. 34 I.P.C. but at the trial evidence of <NAME> and <NAME> was recorded during the course of which both of them implicated <NAME> and <NAME> in the incident. Thereupon at the instance of <NAME>, the Public Prosecutor moved an application before the learned Additional Sessions Judge for summoning and trying <NAME> and <NAME> along with the three accused, who were already facing their trial. The application was opposed by the counsel for the accused principally on the ground that the Sessions Judge had no jurisdiction or power to summon the two appellants and direct them to be made accused to stand their trial along with three accused because they had neither been charge- sheeted nor committed and <ORG> had no jurisdiction or power directly to take cognizance against them in respect of any offences said to have been committed by them. The learned Additional Sessions Judge negatived the said contention and presumably exercising his powers under s. 319 of the Code of Criminal Procedure, 1973 passed an order on October 19, 1977 directing that the attendance of the two appellants be procured and further directing that they should stand their trial together with the three accused. Feeling aggrieved by this order the appellants filed a Criminal Revision Application No. 909/1977 to <ORG> but the High court dismissed the Revisional Application on November 24,1977. The appellants have come up in appeal to this <ORG> by special leave.

Counsel for the appellant raised two contentions in support of the appeal. In the first place relying upon sections 193 and 209 of the Code of Criminal Procedure counsel contended that there was a bar to <ORG> taking congnizance of any offence as a <ORG> of original jurisdiction unless the appellants were committed to it by a Magistrate under the Code and it was pointed out that admittedly in the instant case though the F.I.R. had involved the two appellants in the alleged incident, on investigation the police had found no material against them with the result the police had submitted a charge-sheet only against the three accused and not the appellants and even the Committal Order passed by the Magistrate was only in respect of the three accused and, therefore, it was not open to the learned Additional Sessions Judge, Ludhiana, to take the impugned action against the appellants. Secondly, counsel contended that the only provision in the Criminal Procedure Code which empowered the <ORG> to try anybody not prosecuted by the police, was to be found in s.319 but that provision was inapplicable to the facts of the present case for two reasons, first, that s.319 in so far as it is applicable to Sessions <ORG> would be subject to or subordinate to s.193 and second, the phrase " any person not being the accused " occurring in the section excludes from its operation an accused who had been released by the police under s.169 of the Code . and had been shown in column No. 2 of the charge-sheet. Reliance was placed by the counsel upon a decision of the Andhra Another(1) On the other hand, counsel for the respondents contended that there has been a change in the phraseology in ss.193 and 209 of the Code of Criminal Procedure, 1973 as compared to the equivalent provisions contained in the old Code with the result it was not the accused but the case which got committed to <ORG> and once <ORG> had upon such commitment seisin of the case it was open to it to exercise the power under s.319. It was further urged that there was no warrant to read s.319 subject or subordinate to s.193 and that it covered case of suspects like the two appellants and, therefore, the High <ORG> was right in upholding the order of the learned Additional Sessions Judge, Ludhiana.

(1) 1977 Crl. L. J. 415.

The real question centres around the scope and ambit of s. 319 of the Code of Criminal Procedure 1973, under which a power has been conferred upon a criminal <ORG> to add a person, not being the accused before it and against whom during the trial evidence comes forth showing his involvement in the offence, as an accused and try him along with those that are being tried and the question is whether a Sessions <ORG> can add such a person as an accused in the absence of any committal order having been passed against him ? Sub-ss. (1) and (4) of s. 319 are material in this behalf and the said provisions run thus:

"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.

(4) Where the Court proceeds against any person under sub-section ( I ), then-

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; s

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the <ORG> took cognizance of the offence upon which the inquiry or trial was commenced."

Under the 1898 Code the equivalent provision was to be found s. 351(I) under which it was provided that any person attending a criminal <ORG>, although not under arrest or upon a summons, may be detailed by such <ORG> for the purpose of inquiry into or trial of any offence of which such <ORG> can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned; sub-s. (2) provided that in such a situation the evidence shall be re-heard in the presence of the newly added accused. With regard to this old provision, <ORG> in its 41st Report (vide para 24.80) observed that the power conferred upon a criminal <ORG> thereunder could be exercised only if such person happened to be attending the <ORG> and he could then be detained and proceeded against, but there was no express provision in section 351 for summoning such a person if he was not present in <ORG>, and, therefore, a fairly comprehensive pro vision was recommended which now forms the subject-matter of the present section 319(1) . <ORG> further observed in its said Report (vide para 24.81) that the old section 351 assumed that the Magistrate proceeding under it had the power of taking cognizance of the new case but did not say in what manner cognizance was taken by the Magistrate and the question was whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate's own information under section 190(1) (c) or only in the manner in which cognizance was first taken of the offence against the other accused and the question was important because the methods of inquiry and trial in the two cases differed; <ORG> felt that the main purpose of this particular provision was that the whole case against all known suspects should be proceeded with expeditiously and convenience required; that cognizance against the newly added accused should be taken in the same manner as against the other accused and <ORG>, therefore, proposed that a new provision should be incorporated providing that there will be no difference in the mode of taking cognizance if a new person was added as an accused during the proceedings and that is how clause (b) of sub-s. (4) of s. 319 came to be enacted as set out above which incorporates a deeming provision. The above recommendation of <ORG> in its 41st Report clearly brings out the true scope and ambit of the power that was intended to be conferred upon a criminal <ORG> under the present section 319(1) .

A plain reading of section 319(1) , which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including <ORG> and as such <ORG> will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused, but the question is whether it has power to do so without there being a committal order against such person ? In this context the provisions of ss. 193 and 209 of the present Code vis-a-vis the equivalent provisions under the old Code will have to be considered. Section 193 and s. 209 of the present Code run as follows:

"193. Cognizance of offence 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." "209. Commitment of case to Court of Session when offence is triable exclusively by it.-When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by <ORG>, he shall-

(a) commit the case to <ORG>:

(b) subject to the provisions of this Cod relating to hail, remand the accused to custody during? and until the conclusion of. the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to <ORG>."

It will be noticed that both under s. 193 and s. 209 the commitment is of 'the case' and not of 'the accused' whereas under the equivalent provision of the old Code viz. s. 193(1) and s. 307A it was the accused who was committed and not 'the case'. It is true that there cannot be a committal of the case without there being an accused per son before the <ORG>, but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the <ORG> but once the case in respect of the offence qua those accused who are before the <ORG> is committed then the cognizance of the offence can be said to have been taken properly by the Sessions <ORG> and the bar of s. 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it; otherwise the conferal of the power under s. 319(1) upon the Sessions <ORG> would be rendered nugatory. Further section 319(4) (b) enacts a deeming provision in that behalf dispensing with the formal committal order against the newly added accused. Under that provision it is provided that where the <ORG> proceeds against any person under sub-s.(1) then the case may proceed as if such person had been an accused person when the <ORG> took cognizance of the offence upon which the inquiry or trial was commenced; in other words, such person must be deemed to be an accused at the time of commitment because it is at that point of time the Sessions <ORG> in law takes cognizance of the offence.

In the above context it will be useful to refer to a decision of this Court in <CITATION> (1) where this Court has (1) AIR 1967 SC 1167.

explained what is meant by taking cognizance of an offence. The appellant was one of the 15 persons mentioned as the assailants in the First Information Report. During the investigation the police accepted the appellant's plea of alibi and filed a charge-sheet against the others for offences under ss. 302, 201 and 149 I.P.C ., before the Sub- Divisional Magistrate. The Sub-Divisional Magistrate recorded that the appellant was discharged and transferred the case for inquiry to another Magistrate, who, after examining two witnesses, ordered the issue of a non bailable warrant against the appellant, for proceeding against him along with the other accused under s. 207A of the old Code. The order was confirmed by <ORG> and <ORG> and in further appeal to this Court it was held first, that there could be no discharge of the appellant as he was not included in the charge-sheet submitted before the Magistrate by the police and, second, that the appellant could be proceeded against along with other accused under s. 207A Cr. P.C. and this Court confirmed the order of the Magistrate. One of the contentions urged before this Court was that the Magistrate had taken cognizance of the offence so far as the other accused were concerned but not as regards the appellant and with regard to this contention (<NAME> as he then was) observed as follows:

"In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in <CITATION> (1) the term "complaint" would include allegations made against persons unknown. If a Magistrate takes cognizance under s. l 90(1) (a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though . persons who had committed the offence were not known at that time. The same position prevails, in our view, under s. 190(1)(b) ."

It will thus appear clear that under section 193 read with s. 209 of the Code when a case is committed to <ORG> in respect of an offence <ORG> takes cognizance of the offence and (1)  1 S. C. R. 269.

2-978SCI/78 not of the accused and once <ORG> is properly seized of the case as a result of the committal order against some accused the power under s. 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 s. 319(1) subject or subordinate to s. 193 .

As regards the contention that the phrase "any person not being the accused" occuring in s. 319 excludes from its operation an accused who has been released by the police under s. 169 of the Code and has been shown in column No. 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 <ORG> and the very purpose of enacting such a provision like s. 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 come before the Criminal <ORG> are included in the said expression.

The decision of <ORG> in <CITATION> (supra) relied upon by the appellants has erroneously regarded the change in phraseology made in ss. 193 and 209 of the current Code as inconsequential and has further failed to note the impact of the deeming provision introduced for the first time in cl. (b) of s. 319(4) . That decision must be held to be erroneous.

In our view, <ORG> was right in confirming the order passed by the learned Additional Sessions Judge against the two appellants and the appeal is, therefore, dismissed.

N. V. K. Appeal dismissed.