HARIHAR PRASAD DIVEDI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Through this petition, the petitioner has challenged the order dated 11.12.97 passed by learned Chief Judicial Magistrate, Banswara in Cr. Case No. 401/93 at the stage of hearing the arguments for charge whereby cognizance has been taken against the petitioner for offences under section 466, 467, 468 120-B, 477 A and 471 I.P.C.

(2.) The learned counsel for the petitioner has argued that the learned Magistrate took the cognizance when the challan was filed against the accused persons Walia and Hardaria on 22.9.87. The case did not make any progress and the arguments for charge were heard on 11.12.97 and the impugned order was passed taking cognizance against the petitioner which suffers from illegality because after taking cognizance on 22.9.87 further cognizance cannot be taken, under the evidence is recorded and material is brought on record for taking cognizance against any other person. The counsel relied upon 1994 RCC 527, Ashok Kumar Vs. State of Rajasthan in which the judgment (Kishan Singh Vs. State of Bihar), 1993 Criminal Law Journal 1700 has been relied upon. Learned Public Prosecutor opposed this contention.

(3.) I have considered the rival contentions. The powers under section 319 cannot be invoked where the evidence has not been led at the trial to whereby it could appear that the additional accused is also involved in the commission of the offence. The cognizance could be taken against the additional accused while exercising the powers under section 190 Crimial P.C. While this power has been exercised, further cognizance under section 319 Crimial P.C. can be taken at any stage after evidence has been led by the prosecution. This is -is now a settled position of law with regard to taking cognizance against the additional accused other than the accused persons already sent up for trial by the prosecution.