K. BHATNAGAR, J.—The petitioners, who have been charge sheeted for the offences under sections 447, 364, 302, and 302 read with 34 I.P.C. by the Sessions Judge, Sri Ganganagar, in an application under Section 319 of the Code of Criminal Procedure (hereinafter to be referred as the Code) in that Court prayed for taking cognizance against six other persons alleged to have been named in the dying declaration of Kalwant Singh. The learned Sessions Judge following the principle enunciated in the Division Bench decision of this Court in the case of Sheo Ram Singh Vs. The State of Rajasthan (1) rejected the prayer on the ground that the word evidence occurring in Sec. 319 of the Code means the evidence recorded by the Court during the course of inquiry into or trial of the case and not the statements recorded by the Police or the documents filed along with the charge sheet. The petitioners feeling aggrieved by the aforesaid order of the learned Sessions Judge filed petition under Section 482 of the Code with the prayer that the impugned order be set aside and proceedings and charge-sheet against the petitioners be quashed. The correctness of the view taken in Sheoram Singhs case (supra) has been seriously assailed and it has been prayed that the petition be referred to a Larger Bench of this Court for reconsideration of the view taken by the Division Bench in that case. The prayer for referring the petition to a Larger Bench having been allowed, the matter comes up before this Bench.

2. In Sheoram Singhs case (supra) the point under reference was as to whether the word evidence used in S. 319 of the Code signifies and means the evidence recorded in the Court, or it can also include the evidence recorded by the Police both, oral and documentary. The learned Judges discussing the decisions of this Court and other High Courts and Honble the Supreme Court regarding the power of the Court to take cognizance against persons not arrayed as accused in the charge sheet or the committal order, and construing the meaning of the evidence and the implications of the term "inquiry into and trial or" held as under :

"The term evidence as used in S. 319 Cr. P. C. means the statements of witnesses recorded before the Court during an inquiry or trial and dees 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".

3. In view of that finding, the five revision petitions under reference before their Lordships, in which the cognizance against the various petitioners in the revision petitions was taken without recording of the statement of any witness by the Court were allowed and the impugned orders passed by the trial Court for taking cognizance under Section 319 of the Code were quashed.

4. The enactment of Sec. 319 of the Code is an expression of the desire of the Legislature to vest power in the Courts to place in dock the persons against whom there appears to be evidence but who, either due to inadvertence of the Investigation agency or for any other reason, had not been arrayed as offenders and put up for trial before the Court. Just as it is a cardinal principal or criminal law that innocent persons should not be punished, it is also in the interest of society that the real offender may not be spared. The vesting of the power in the Court for taking cognizance against persons not already there in the array of offenders in on account of the anxiety of the Legislature that the offenders may be put in dock at whatever stage it may appear to the Court that in order to proceed against such persons it is necessary to add them in the array of the offenders already facing inquiry or trial.

5. Sec. 319 of the Code is not an altogether new provision in the New Code of Criminal Procedure. I