B.I. Hansaria, J.
1. An occurrence gruesome by all counts took place on 9-4-1979. It had seen the death of 10 persons, and injuries on a large number. The First Information Report of the case was lodged on the date of the occurrence itself in which 51 persons were named as accused. During the course of investigation as many as 225 persons came to be arrested, though 85 of them were ultimately charge-sheeted. After the case was committed to the Court of Session, and the learned Judge 'was ready to open the trial' on 2-5-1980 under Chatper XVIII of the Criminal P. C,. the Public Prosecutor informed the court that he would file a petition for summoning some more persons under the provisions of Section 319 of the Code. Such a petition came to be filed on 30-6-1980 in which it was prayed that 3 persons including the two petitioners may be summoned to face the trial along with the 85 charge-sheeted accused. Thereafter by the impugned order warrant of arrest against the two petitioners were ordered to be issued with the direction that they be tried in the case along with other accused. The grayer as regards the third person, namely, Ratneswar Bora was turned down for reasons recorded in the order. The two newly impleaded accused have approached this Court in its revisional capacity.
2. A perusal of the impugned order makes it clear that the learned Sessions Judge decided to proceed against the petitioners being satisfied on a perusal of the statements of some witnesses as recorded by the police that there was sufficient material indicating the involvement of the petitioners in the crime. It is apparent from the materials on record that the court itself had recorded no evidence before passing the impugned order. The main point which has been urged by Sri Barua is that the power under Section 319 can be exercised only if from the evidence recorded by the Court, it appears that any person not being the accused has committed the offence. To put it differently, according to the learned Counsel, reliance on the police statements cannot be placed for invoking the power under Section 319, as was done in the present case. The other grievance made is that the learned Sessions Judge has already made up his mind that the petitioners had committed the alleged offence of conspiracy and abetment which would stand in the way of agitating the question of their discharge if and when they appear before the learned trial court. This grievance has not much merit inasmuch as even while invoking powers under Section 319, a court has to come to a prima facie satisfaction that invocation of the power under Section 319 is called for. and for this purpose it has to apply its mind to the evidence. This would be clear from the use of the word 'appears' in the section,
3. Before dealing with the main submission, it may be pointed out that the power under Section 319, cannot be confined to proceed against these persons only who had been named in the F.I.R. but not sent up by police, though such persons would also be included. This is apparent from what has been stated in para. 9 of Jogindar Singh v. State of Punjab : 1979CriLJ333 . There is also no denial that the provisions of Section 193 of the Code dealing with the cognizance of offences by courts of Session could not have stood in the way of the court in exercising its powers against the petitioners under Section 319 in view of what is stated in Jaginder Singh.
4. To appreciate the main point urged by Sri Barua, we may read Section 319:
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 amending the court, although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the court proceeds against any person under Sub-section (1) then:
(a) the proceedings in respect of such person shall be commenced afresh and the witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.
The old Code had a parallel provision in Section 351, though it has undergone a thorough re-drafting under the new Code. Under the old section, power could have been exercised only if the concerned person happened to be attending the court and not otherwise. The present section has provided that the court may proceed even against a person who is not attending the court. Then Clause (b) of Sub-section (4) of the new section has made it clear that the cognizance against the newly added accused shall be deemed to have been taken in the manner in which cognizance was first taken of the offence against the other accused. It is, however, worth pointing out that under the old code as well, the power could have been invoked when from the evidence it would have appeared that the concerned person should also be proceeded against,
5. The question is what is meant by the word 'evidence' in Section 319? Would it include the statements of witnesses recorded by police under Section 161 of the Code for short, police statements? According to the learned Sessions Judge, these statements could also be used. In coming to this conclusion it was stated that these statements are regarded as evidence for the purpose of framing charge and so these can be used while exercising power under Section 319. Reference was made in this connection to Saifar v. State of West Bengal : AIR1962Cal133 . Police statements are used while framing charge, not because they are regarded as evidence as observed by the learned Sessions Judge, a perusal of Sections 227 and 228 of the Code would make this clear. Section 227, permits discharge of the accused if 'upon consideration of the record of the case and the documents submitted therewith' the Judge considers that there is no sufficient ground for proceeding. As per Section 228, if after such consideration, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence he is to frame the charge. These two sections have avoided the use of the word 'evidence'. They rather speak of 'consideration of the record of the case and the documents submitted therewith'.
5-A. The learned Public Prosecutor contends that there is no definition 61 the word 'evidence' in the Code, which has been used rather loosely, according to him. In this connection, he has referred to Section 173 (8) and Section 226 of the Code. So far as the latter section is concerned, it cannot be held on its basis that the police statements are evidence. The requirements of this section that the Public Prosecutor shall open the case and state 'by what evidence he proposes to prove the guilt of the accused' does not show that the statements recorded earlier by the police were meant to be evidence without anything more. These statements would become evidence only after the concerned persons are examined. Of course what has been stated in Section 173(8) would support the submission of the learned Public Prosecutor. But merely from what has been stated in this Sub-section (which may be an instance of legislative inadvertence) I do not think if one could come to the conclusion that the word 'evidence' appearing anywhere in the Code would include the police statement
6. To understand the intention of the Legislature in retaining the word 'evidence' in Section 319 it would be useful to point out that Clause (a) of Section 319(4) states that the proceeding in respect of the person against whom order has been passed under Sub-section (1) shall be 'commenced afresh and the witnesses re-heard.' This clearly indicates that the legislature had no doubt in its mind that the power under Sub-section (1) would be exercised only after the witnesses have been heard, that is, evidence had been led in the Court, The submission of the learned public Prosecutor that if the power under Section 313 is to be exercised only after the witness(es) had been examined, the same would cause delay in progress of the trial and this would militate against the desire of the Law Commission on whose recommendation Section 351 of the old Code was recast for expediting the matter. No doubt, there is some force in this contention of the learned Public Prosecutor, but a court cannot go against the express wishes of the Legislature. In case of doubt, it would be permissible to a court to give that interpretation which would be in consonance with the basic idea behind the provision in question. On this score as well, Sri Barua would submit that for the provisions in Section 319 to be reasonable, just and fair to meet the demands of Article 21 of the Constitution, the Court must insist on some evidence on oath before it, as such tested evidence would provide more safeguard to the persons concerned. To fortify his , submission that power under Section 319 could be exercised only after some evidence has been recorded in the court. Sri Barua has referred to some decisions wherein this power was invoked not on the basis of the statement made before the police but what was deposed by the witnesses in Court. Reference was first made to Jogindar Singh which has explained the scope and ambit of Section 319. In that case the two appellants who were proceeded against under Section 319 had not only named in the F.I.R. but had been further implicated at the trial by some P. Ws, in their evidence before the Court. Similarly in Raghubans v. State of Bihar : 1967CriLJ1081 , the Magistrate has summoned the appellant after evidence had been recorded. This power was invoked in Fatta v. State AIR 1964 Puni 351 : 1964 (2) Cri LJ 204 on being satisfied about the implication of the non-challenged persons in the crime from the statements of the witnesses examined in the court,
7. These decisions, however, are not authorities for the proposition that this power can be exercised only after the evidence has been recorded in the court, inasmuch as this question had not arisen for decision in those cases. These Judgments merely show what had actually happened. But from what has been stated above, I am inclined to think that the contention of Sri Barua in this regard merits acceptance. A reference to the definition of the word 'evidence' in some of the dictionaries would also bear this. In Mozley's and Whitely's Law Dictionary the word 'evidence' has been defined inter alia to mean 'any matter lawfully deposed to on oath or affirmation...'. It is well known that police statements are neither on oath nor on affirmation. Webster's 20th Century Dictionary has defined the word 'evidence' to mean in law 'something legally presented before a court, as a statement of a witness, on object etc., which bears or establishes the point in question'. In the Oxford English Dictionary the legal use of the word 'evidence' has been stated inter alia to mean 'the testimony which in any particular case has been received by the court and entered on its record'.
8. Thus, I have no doubt that the word 'evidence' in Section 319 read along with other provisions of this section means the statement of the witnesses as recorded by the Court, and the same would not include a police statement. I have now to deal with Saifar : AIR1962Cal133 where a contrary view was expressed and which has been relied on by the learned Sessions Judge, What weighed with the Bench in this case was the amendment introduced in the old Code in 1955 which did not require the Magistrate to record evidence before framing charge and permitted this to be done on perusal of police statements. The Bench felt (see para 6) that if on the basis of those statements the Magistrate would decide whether there was prima facie case against the persons sent up, the Magistrate could also decide on the basis of same materials whether there was a prima facie case against the persons not sent up. With respect, it seems that the Bench did not bear in mind that the old Section 351 had permitted proceeding against non-sent up persons only on the basis of evidence. While amending the Code in 1955 and doing away with the recording of evidence prior to framing of charge in warrant cases instituted on police report, no amendment was made in the language of Section 351. I would not. therefore, think that the amendment of 1955 permitted a Magistrate to summon some other person as accused without examination of witness in Court. No doubt cognizance in such a case even against the added accused is under Clause (b) of Section 190 which is another reason given by the Bench and which aspect has been made clear by Clause (b) of new Section 319(4), but that is not conclusive. This only takes care of the bar placed by Sections 193 and 209 (See Joginder Singh 1979 Cri LJ 333. (SC) (supra)).
9. I would, therefore, hold that the learned Sessions Judge had committed an error of law in ordering to proceed against the petitioners on the basis of the police statements, though I do not think if any illegality was caused in having done so without hearing the petitioners as no such requirement can be read in the section. The order being however, founded only on police statements cannot be sustained and is quashed by allowing the petition. As a large number of accused are facing a serious trial, it is hoped that the trial court would expedite the hearing. It is left to the learned trial Judge to decide whether after some evidence is led, he would like to proceed against the petitioners on the requirement of the section being satisfied. This decision would be taken bearing in mind that the order to proceed against the petitioners will require re-examination of the witnesses.