The term, `evidence' as used in S. 319, Cr. P.C., means the statements of witnesses recorded before the court during an inqurity or trial and does not include the statements recorded by the police under S. 161, Cr. P.C. or the statements recorded at the instance of the police by the magistrate under S. 164, Cr. P.C. and the statements recorded by the magistrate under S. 202(2), Cr.P.C. and the papers submitted by the police in the form of any other documents, simplicitor.

1. - Whether the `evidence' as used in Section 319, Cr.P.C, signifies and means the evidence recorded in the court, or it can also include the evidence recorded by the police both, oral and documentary; is the pivot of important legal debate in this reference? The conflicting views of the learned Judge sitting in Single Bench in this court and absence of any authoritative pronouncement of the Apex court has resulted in this reference by the learned Single Judge.

2. The present bunch of five cases are taken together and decided by one common judgment because of the joint prayer of the learned counsel for the parties and the unanimity amongst them that all the five would swim or swing together solely and only on the basis of the interpretation which this bench would put on the connotation evidence as used in Section 319, Cr.P.C.

3. It is not necessary to mention the facts because in all the five cases, the petitioners accused who have come up before this Court, were not challaned by the police. No evidence was recorded against them, either by the committing court, or by the Sessions Courts. Only on an application or prayer of the public prosecutor, they have been made accused and summoned to face their trial by the Sessions Judge or the Additional Sessions Judge, as the case may be, who have invoked the jurisdiction and the powers under Section 319, Cr.P.C., on the basis of perusal of the statements of witnesses recorded under Section 161, Cr.P.C by the police and the documents either collected or prepared by the police during investigation:

4. However, in order to precise, it would be proper to mention below the facts of the first case of Sheoram Singh as noticed by the learned Single Judge in his order of reference:

"In case No. 41/81, an F.I.R. was lodged on June 10, 1980, against the petitioner Sheoram Singh and certain other persons. The police after investigation filed a challan against 21 persons but did not include the petitioner as in the opinion of the police no case was made out against the petitioner, The case was committed to the court of session for trial. The Additional Public Prosecutor moved an application under Section 319, Cr.P.C. to make the petitioner also as an accused in the case. The learned Additional Sessions Judge, Deeg, by his order dated 13th January, 1981, after taking into consideration the documents filed under Section 173, Cr.P.C. alongwith the challan took cognizance against the petitioner also and passed an order for summoning the petitioner by a non-bailable warrant. The petitioner aggrieved against the order dated 13th January, 1981, taking cognizance, has filed this petition under Section 482, Cr.P.C. in this Court."

5. Shri K.N. Garg, and Shri N.L Tibrewal, who have appeared on behalf of the petitioners, Shri G.G. Sharma, the learned Public Prosecutor have, after a careful study of the case in all these cases, submitted that in none of the five cases, the evidence was recorded in the / court and the petitioners have been summoned to face trial solely on the basis of the Police record after they were not committed by the committing magistrate and at a stage when the cases came for consideration in ' sessions trial.

6. Before we proceed to consider the various facts of this important legal controversy it may be pertinent and useful to mention here that this question was considered by this court in Ajayab Singh v. State of Rajasthan, 1978 R.L.W.9 . the learned Judge sitting in single bench took the view that the term, "evidence" used in Section 319(1), Cr.P.C., includes the statement of witnesses recorded by the police under Section 161, Cr.P.C. and the document submitted to the court alongwith the challan.

7. This view was reconfirmed by another learned Judge of this Court again sitting in single bench in Harjiram and other v. State, 1979 Cr. L.R. (Raj.) P. 248 . While doing so, the learned Judge placed reliance upon the decision of the Supreme Court in Yogendra Singh v. State of Punjab,