important point
Court can exercise power u/s 319, Cr. P.C. only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary.

judgment

DR. ARIJIT PASAYAT, J. —

1.Leave granted.

2.The appellants call in question legality of the order passed by a learned Single Judge of the Patna High Court dismissing the Criminal Revision filed by them. Challenge before the High Court was to the revisional order passed by learned Additional Sessions Judge, Fast Track Court No.1, Motihari. By order dated 10.09.2004, learned Additional Sessions Judge set aside the order of learned Judicial Magistrate, Motihari in G.R. No.996 of 99/Tr. No.693 of 2004.

3.Background facts in a nutshell are as follows :-

FIR was lodged on 29.05.1999 by Manzoor Baitha alleging that his parents, brother and sisters had a fight with his family members. Annu Siddiqui hit on the head of his son Akbar Hawari with the butt of a pistol and he also snatched away a wrist watch of his son. Cognizance was taken on 27.9.1999 and charge-sheet was filed on 09.09.1999. Charges were framed on 14.3.2000. Only three persons were arrayed as accused persons and the present appellants were not arrayed as accused. It appears that a protest petition was filed before charges were framed on 14.03.2000 but the same was rejected. Recording of prosecution evidence commenced on 16.04.2001 and continued till 29.04.2002. The prosecution evidence was thereafter closed and the statement of accused persons was recorded in terms of Section 313 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’) on 19.02.2003. Thereafter on 07.05.2003, an application in terms of Section 311 Cr.P.C. was filed and was allowed and two more witnesses i.e. PWs 4 and 5 were examined. An application under Section 319 Cr.P.C. was filed on 14.01.2004 stating that new evidence has surfaced which requires the trial of the present appellants. It is to be noted that PWs 4 and 5 were examined on 6.1.2004 pursuant to the order in the application filed under Section 311 Cr.P.C. The petition filed under Section 319 Cr.P.C. was rejected by the Trial Court holding that no case was made out for putting the appellants on trial. Learned Sessions Judge was moved for revision and the same was allowed. The High Court dismissed the revision petition filed on the ground that there are materials against the appellants.

4.Learned counsel for the appellants submitted that the application under Section 319 Cr.P.C. was nothing but an abuse of process of the court as the narration of facts above would go to show. Every possible attempt was made to introduce materials against the appellants which were not on record. Even after the examination of the accused under Section 313 Cr.P.C., an application under Section 311 Cr.P.C. was allowed. Two witnesses were examined on 6.1.2004. Even their evidence in no way connects the appellants to the alleged incident. PWs 1, 2 and 3, who were examined on 16.04.2001, 8.01.2002 and 29.04.2002 merely stated about the alleged presence of the appellants. No definite role was ascribed to them. Therefore, the application in terms of Section 319 Cr.P.C. was not maintainable and in any event was mala fide.

5.Learned counsel for the State submitted that the prosecution has not filed any application under Section 319 Cr.P.C. It was only PW-1, the informant who had filed such an application. Learned counsel for the complainant respondent No. 2 submitted that the appellants were named in the FIR. PWs 1, 2 and 3 spoke about their presence. Therefore, they should have been arrayed as accused persons.

6.The parameters for dealing with an application under Section 319 Cr.P.C. have been laid down by this Court in several cases.

7.In Michael Machado and Anr. v. Central Bureau Of Investigation and Anr.,1 (2000 (3) SCC 262) it was observed as follows :-

“The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case has committed an offence for which that person could be tried together with the accused a