D. C. SRIVASTAVA, J.

( 1 ) THIS revision is directed against the order dated 29-4-1998 of Special Judge, rejecting the application of the revisionist claiming discharge from prosecution in a case lodged under Sec. 3 read with Sec. 7 of the Essential Commodities Act against him and co-accused No. 1.

( 2 ) SHRI R. J. Goswami, learned Counsel for the revisionist and Shri K. C. Shah, learned A. P. P. , have been heard.

( 3 ) AN application was moved by the revisionist before the Special Judge seeking discharge on the ground that there is absolutely no material to proceed against him for the alleged offences under Sec. 3 read with Sec. 7 of the Essential commodities Act. The said application was rejected by the Court below on the ground that there is a statement of the co-accused No. 1 against the revisionist and that was sufficient material for proceeding against the revisionist. In support of this view, reliance has been placed upon a pronouncement of this Court in A. D. Soni v. Director of Revenue Intelligence, 1997 (3) GLR 2019. This view and the reasoning of the learned lower Court has been assailed by the learned Counsel for the revisionist that the statement of the co-accused during the investigation is hit by Sec. 25 of the Evidence Act and as such, there is no evidence or material to proceed against the revisionist.

( 4 ) RECORD of the lower Court has been examined, and it is found that except the statement of the co-accused No. 1, there is no other material against the revisionist. That statement was made by accused No. 1 during investigation to the police. For all purposes, it can be said that to be mere statement under sec. 161 of Cr. P. C. , statement under Sec. 161 of Cr. P. C. , cannot be used as substantive evidence during the trial against co accused. It cannot be said to be a confession of a co-accused which can be used against another co-accused. For that also, formalities are required to be observed, namely, the investigating officer should have recorded the confession by taking requisite precautions that the same is recorded as confession of the co-accused. The statements of the witnesses recorded during the course of the investigation did not in any way implicate the revisionist in the proceedings pending before the Court below. It was also found that the revisionist was holding a valid licence for dealing in solvent. The confession in the Court below was that in view of the valid licence no offence was committed by the revisionist. However, in response to this stand of the revisionist in the Court below, it was argued from the side of the prosecution that the revisionist had violated condition No. 11 of the licence issued to him by acting in a manner contrary to the terms and conditions of the licence and also in a manner contrary to the Circular and directions issued by the State in this regard through an order dated 16-12-1997. This plea of the prosecution has no legs to stand because violation of the Circular letter dated 16-12-1997 was pressed against the revisionist whereas the offence was allegedly committed by him on 5-10-1997. This Circular letter cannot be given retrospective effect. As such, on this ground it can hardly be said that there was any material against the revisionist for framing charges against him.

( 5 ) SO far as the view of this Court in A. D. Soni v. Director of Revenue intelligence (supra) is concerned, I feel that it was not correctly appreciated by the Court below. It was in a different context, namely, whether powers under Sec. 319 of the Cr. P. C. , can be exercised by the Sessions Court even without recording the evidence and in that context it was held that the Sessions court can exercise the power under Sec. 319 before framing of charge and no evidence is required to be recorded by the Sessions Court. While taking this view, this Court has referred to the decision of the Apex Court in the case of Kishun Singh v. State of Bihar, 1993 (2) SCC 16. But, it may be mentioned that th

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