1. This is an application by the petitioner who was cited as a witness in Criminal Case No. 606/75 pending before the Judicial Magistrate, First Class, Radhanagari, District Kolhapur, and who has been directed to be made an accused by adding his name to the charge-sheet. Being aggrieved by that order of the learned Magistrate, he filed a revision application before the learned Sessions Judge, Kolhapur. The learned Sessions Judge took the view that this was an interlocutory order and he had no right to interfere at that stage. Being aggrieved he filed this application.
2. Having gone through the order of the learned Magistrate and the provisions of Section 319 of the Code of Criminal Procedure, 1973, we are satisfied that the entire procedure adopted by the learned Magistrate is misconceived. The undisputed facts are that the present petitioner was cited as a witness in Criminal Case No. 606 of 1975 in which there were three accused persons. A charge has been framed against those three persons and the case was fixed for leading evidence to February 2, 1975. On that day the Assistant Public Prosecutor filed an application exh. 18 before the trial Magistrate and requested him to include the name of the present petitioner as an accused person, as he had purchased some of the stolen property. Though that application was opposed, by short order the learned Magistrate directed his name to be included in the charge-sheet. The operative part of his order says that he saw the panchnama and the police statement of witness Vasant Phondiram Jadhav. From those documents he was satisfied that there was evidence against Krishna Parshuram Karekar for receiving stolen articles under Section 411, Indian Penal Code. Hence he was directed to be impleaded as an accused person.
3. The Magistrate undoubtedly has a right to' proceed against any person by adding his name to the list of the accused persons while he is conducting either any inquiry or trial. That right has been given to him by Section 319 of the Code of Criminal Procedure, 1973. Sub-section (1) of Section 319 says that 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. On a plain reading of this provision it would appear that the Court can proceed against any person while it is in the midst of an inquiry or trial. The second condition requisite is that in such an inquiry or trial it must appear to the Court from the 'evidence' before it that the person concerned needs to be tried as an accused person. The main question is what is 'evidence' so far as the Court holding an inquiry or trial is concerned. If the police collect evidence against a person, they have a right to file a charge-sheet. When they do so and begin to lead evidence before the Court, the evidence led in the Court might disclose that some others have been omitted by the police from being made accused persons though there is evidence available. It is, therefore, clear that it is not the police papers which are available to the Court that constitute 'evidence' for the purpose of this section, but it is the actual evidence led in the Court which should induce the Court to believe that it is necessary to take action under that section. This intention of the Legislature is obvious from the provisions of Clause (a) of Sub-section (4) of Section 319. That provision says that, where the Court proceeds against any person under Sub-section (1) then the proceedings in respect of such person shall be 'commenced afresh, and the witnesses re-heard'. This would clearly show that when the witnesses are heard by the Magistrate that constitutes evidence and it is this evidence which has to be heard by him again in the presence of the added accused after taking action under Sub-section (1) of Section 319.
5. Thus it is clear that the material collected by the police which is reflected in the police papers cannot be the basis for the Court to exercise its powers under Sub-section (1) of Section 319. The order passed by the trial Magistrate is obviously without jurisdiction and against the provisions of Sub-section (1) of Section 319.
6. The learned Public Prosecutor Shri Kamat appearing for the State concedes that the order is premature and should not have been passed at the stage at which the learned Magistrate has done it. If after the evidence is led in Court, the learned Magistrate still comes to the same conclusion he may act under Section 319(1). However, the order as passed is premature and must be set aside.
7. We therefore quash the order dated February 2, 1976 and direct that the name of the present petitioner be deleted from the charge-sheet. We also set aside the order of the trial Magistrate of adding the name of the present petitioner to the charge-sheet. We further direct that the learned Magistrate may proceed to record the evidence and thereafter hear and dispose of the case according to law and in the light of our observations made in this order.
8. The petition thus succeeds and is allowed. Rule made absolute.