The power to proceed against a person not shown or mentioned as an accused under Section 319(1) of the CrPC can only be exercised if it appears from the evidence that such person has committed an offense for which he could be tried together with the accused against whom an enquiry or trial is being held.

1. - The question involved in this Misc. Petition relates to exercise of powers under Section 319 of the Code of Criminal Procedure against any person not shown or mentioned as accused in any enquiry/trial of an offence.

2. Sub-section 319(1) of section 319 Cr.P.C. reads as under :

Section 319(1) "Where in the cause 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."

3. A bare perusal of this section makes it clear that it empowers the Court to proceed against any person not shown or mentioned as an accused if it appears from the evidence that such person has committed an offence for which he could be tried together with the accused against whom an enquiry or trial is being held. However, the powers under the aforesaid section, have to be exercised with care and for compelling reasons and should be used sparingly.

4. It is no more an issue after an authoritative judgment of the Apex Court of the Country, in the case of Kishun Singh & Ors. v. State of Bihar Cr.L.R. (S.C) 1993, 193 : 1 (1993) CCR 54 (SC) , that the power under the aforesaid section can be exercised by the Court only if it so appears from the evidence at the enquiry or trial and not otherwise. Existence of some evidence is a condition precedent to make out a prima facie case about involvement of a person in the commission of crime. In the absence of any evidence, showing involvement in the commission of crime, cognizance. under section 319(1) Cr. P.C. cannot be taken against any such person.

5. In the instant case, before taking cognizance statements of two witnesses namely; PW-1, Ram Chandra and PW 2, Ummed Singh, have been recorded by the Trial Judge. The statement of PW 1, Ramchandra, shows that he reached at the place of occurrence after the incident of 'Mar-Pit' was over. Prima facie, on his evidence no cognizance could have been taken under section 319 Criminal Procedure Code. The statement of PW 2, Ummed Singh, was recorded incomplete, as much as, his examination-in-chief was only recorded. Even before cross-examination of this witness, a notice was given to the petitioner and co-accused Brijendra and Gopal to show cause as to why cognizance be not taken against them for offences punishable under Sections 326 and 327 IPC. The learned Trial Judge, on appearance of the petitioner and other two accused referred to above, instead of taking cognizance framed charges against them for the offences under Sections 147, 307/149, 326/149 and 324/149 IPC.

6. Two-fold submissions were urged by the learned Counsel for the petitioner. The first submission is that before taking cognizance charges could not be legally framed against them. The second submission is that statement of PW-2 Ummed Singh, was incomplete and it should not have been considered either for taking cognizance or for framing charge. According to the learned Counsel, his statement without cross-examination, could not be the basis for taking cognizance or framing charge. Learned Counsel also contended that the power to take cognizance under section 319 Cr.P.C. has been exercised by the concerned Judge, in a routine manner without making critical analysis of the evidence.

7. On the other hand, learned P.P. contended that by impugned order, charges have been framed and cognizance against the petitioner and co-accused Brijendra and Gopal was already taken by the learned Judge vide order April 10,1991. It was contended that the order taking cognizance could not be challenged by the petitioner at this stage.

8. I have given my careful consideration to the above submissions. A perusal of the order dated 10th April, 1991, shows that it was passed in a confused manner without being clear whether cognizance has been taken or not. The notice given to the petitioner and ot