BYAS, J.—This application has been filed by Mahendra Kumar under sec. 482 read with secs. 397 and 401, Cr.P.C. for quashing the order of the learned Chief Judicial Magistrate, Chittorgarh dated October 7, 1982 passed under Sec. 319, Cr.P.C. summoning the petitioner to face trial for offences punishable under secs. 420, 467 and 471/120, I.P.C. The police submitted a challan against Bhanwar Lal and Basant Kumar for offences punishable under secs. 420, 467 and 471, I.P.C.

2. Briefly stated the case set up by the prosecution is that they prepared a forged registration certificate of a Primer Safari Saloon purporting to have been issued by the District Transport Officer, Chittorgarh. The vehicle was allotted Registration No. RJH 1224 under the forged certificate of registration. The learned Chief Judicial Magistrate, after hearing the prosecution and the accused-persons, passed an order on June 16, 1977 by which accused Bhanwar Lal was discharged. The case thereafter lingered on against accused Basant Kumar. On June 15,1982, the Additional Public Prosecutor submitted an application in the court-below to add and implead Mahendra Kumar as an accused because it was he, who had sold the vehicle to the fictitious person and managed to procure false registration certificate. The learned Chief Judicial Magistrate by this impugned order dated October 7, 1982 allowed the aforesaid application and summoned the petitioner Mahendra Kumar to face trial for offences as mentioned at the very out set.

3. The point involved is a very short one, viz. whether the Cheif Judicial Magistrate could pass such an order under section 319, Cr.P.C, without taking evidence. Obviously, he had taken cognizance of the offence on April 18, 1977. The co-accused Bhanwar Lal was discharged on 16-6-77. The order of the discharge could not be passed unless the cognizance was taken and the parties were heard. The order of the discharge shows that the Magistrate had taken cognizance and applied his mind to the facts of the case Thereafter, the case lingered on for framing the charge against the co-accused Basant Kumar. No order for framing the charge could be passed against him for one and other reason.

4. The Additional Public Prosecutor had submitted an application under sec. 319,Cr.P.C. only in the course of trial of the offence. The power under sec.319 Cr.P.C. to proceed against any other person not being the accused can be exercised only when evidence has been recorded. If no evidence has been recorded, the court has no power to proceed under sec. 319, Cr.P.C. against the person, who is already not an accused. The scope and ambit of Sec. 319, Cr.P.C. and the powers of a court thereunder have been elaborately and exhaustively dealt with by their Lordships of the Supreme Court and this Court. The pronouncements of the Supreme Court were referred to by this Court in Sheoram Singh vs. State of Rajasthan(1). It is thus now a well settled position in law that under sec. 319(1) Cr.P.C. a court (which includes all courts whether of a Magistrate or a Sessions Judge) is competent and has power to add any person and to summon him to stand trial, if the evidence recorded during enquiry or trial disclose his involvement in the commission of crime. The recording of evidence is a condition precedent to proceed under sec. 319, Cr.P.C. The evidence on a single witness may be sufficient to enable the court to issue process against a person under sec. 319 (1).Cr.P.C. But the Court cannot proceed under sec. 319(1), Cr. P.C. unless and until some evidence has been recorded including the involvement of the person, who is to be added and summoned for trial.

5. In the instant case, no evidence was at all recorded. The Chief Judicial Magistrate had, therefore no power under sec. 319, Cr.P.C. and to pass the impugned order against the petitioner Mahendra Kumar. The petition must, therefore, succeed.

6. In the result, the application of Mahendrakumar is allowed and the impugned order dated October

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