(1.) THIS revision under Sections 397/401 of the Code of Criminal Procedure is directed against the order dated 10.10.2000, passed by the Chief Judicial Magistrate, Chhatarpur, in Criminal Case No. 453/2000. By the impugned order the applicant, who was working as Tahsildar, Rajnagar, was made an accused when the charge-sheet was filed against Sukhnandan Chaturvedi, the respondent No. 2, who was the Patwari, at the time the applicant was posted at Rajnagar.
(2.) THE facts of this case disclose that the respondent No. 2 Sukhnandan Chaturvedi filed an application under Section 319 of the Code of Criminal Procedure before the Chief Judicial Magistrate, Chhatarpur alleging that the applicant be arrayed as accused in Criminal Case No. 453/2000, in which the respondent No. 2 was already an accused.
(3.) IN this revision, it has been urged by the learned counsel for the applicant that the Trial Magistrate could not have exercised his powers under Section 319 of the Code of Criminal Procedure. It was emphasized that for exercising the powers under Section 319 of the Code of Criminal Procedure evidence has to be recorded during the course of any enquiry or trial of an offence and if it is clear from the evidence that the person who has not been made an accused, appears to have committed an offence, then only he can be added as a co-accused for the offence which he appears to have committed. In view of the fact that the learned Chief Judicial Magistrate has not recorded any evidence in the case, he had no power to take cognizance against the applicant. In this connection, the attention of this Court was drawn to a decision of the Supreme Court in the case of Tek Narayan Prasad v. State of Bihar and another, reported in 1999 SCC (Crl.) 356, wherein their Lordships of the Supreme Court held that a person who had not been chargesheeted can be added as co-accused under Section 319 of the Code of Criminal Procedure only when some evidence is recorded after the trial had begun. In that case, their Lordships of the Supreme Court referred to an earlier decision in the case of Kishun Singh and others v. State of Bihar, reported in (1993) 2 SCC 16 in which it has been stated by the Supreme Court that Section 319 of the Code of Criminal Procedure is not exhaustive of all post-cognizance situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial along with other arraigned before the Court. It was stated that the powers under Section 193 of the Code or Criminal Procedure authorise, a Court of Session to summon the co-accused persons who have not been made accused by the prosecution along with others, already facing trial. It has also been held by the Supreme Court that under Section 190 of the Code of Criminal Procedure the object is to take cognizance of an offence and not the offender. Once the Court takes cognizance of the offence, it becomes the duty of the Court to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is further the duty of the Court to summon them to stand trial along with those already named, and summoning of such persons would only be a part of the process of taking cognizance. Therefore, it is well established that the learned Trial Magistrate could not have exercised powers under Section 319 of the Code of Criminal Procedure.