G.K. SHARMA, J.—This revision petition is directed against the order dated 27th April, 83, by which, the Judicial Magistrate, Bhinmal took cognizance against the petitioner u/ss. 467, 468, 419/109 & 120B, IPC.

2. To understand the controversy, it is necessary to narrate here certain facts of the case. On 4th July 78, one Teja styling himself as Ratna, executed a sale deed for Khasra No. 167, situated in village Morsim, in favour of his son Anda, for a sum of Rs. 5,000/- Teja was identified by Kana, as Ratna. One Achla was attesting witness of this document. Bhawani Shanker, Advocate and one Ganeshram, Scribe also identified Teja as Ratna. The document was then registered later on, the real Ratna came to know this fact on 10th July, 78 and consequently, he lodged an FIR at PS Bhinmal, on 13th July 78. The police registered a case u/ss. 419, 420, 467, & 468 IPC. ,

3. After completing usual investigation, the police submitted a challan against Teja, Kana & Anda and Achla, who shown as absconders.

4. During the trial, the learned Magistrate after framing charge, recorded statements of the prosecution witnesses and he also recorded statements of 4 persons including that Bhawanishanker Advocate as PW 3. The APP on 17th Feb.,81, submitted an application u/s 317, Cr.P.C., for taking cognizance against Pukhraj, the present petitioner. Then, the APP did not press that application on 24th Mar.,81. Later on the Magistrate took cognizance against the suo-moto on 27th Apr., 83 u/ss. 467, 468, 419/109 & 120-B, IPC. The order has been challenged here.

5. Mr. Singhvi argued that u/s. 319 Cr.P.C., the court has power and jurisdiction to take cognizance against person who has not been challaned, if during trial, it appears from the evidence that the person has submitted the offence, he should be tried along with other accused persons. But, the condition for taking cognizance against the person is that there should be some evidence, recorded by the Court, during the trial. It means, the Magistrate cannot use the statements of the persons recorded during the investigation u/s 161, Cr.P.C. and the evidence that should be considered is the evidence recorded during the trial of the case.

6. From a perusal of the order it seems that the learned Magistrate has relied on the statements of the witnesses recorded during the investigation u/s 161. Cr.P.C. This was not the correct procedure. S. 318 Cr.P.C. does not give this permission that the court can look into the statements recorded u/s 161, Cr.P.C., but, it can look into the statements recorded by it only, during the trial. Therefore, the learned Magistrate has committed error in placing reliance on the statement recorded u/s. 161 Cr.P.C.

7. It was also argued by the learned counsel that no doubt, s. 318 Cr. P.C. gives a power to the court to take cognizance but this power should be used very sparingly and only if compelling reasons exist for taking cognizance. In support of his argument, Mr. Singhvi placed reliance on the case of Delhi Municipality vs. R.K. Rohatgi (1) wherein, their Lordships observed as under :

"S. 319, Cr.P.C. gives ample powers to any court to take cognizance and add any person not being an accused before it and try him along with the other accused. In these circumstances, therefore, if the prosecution can, at any stage, produce evidence which satisfied the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed, have also committed the offence the court can take cognizance against them and try them along with the other accused. But, this is really an extraordinary power which is conferred on the Court and should be used every sparingly and only if compelling reasons exist for taking cognizance against the other persons against whom action has not been taken."

8. Thus, in view of the principle laid down by Honble the Supreme Court, it was the duty of the learned Magistrate to satisfied himself from the evidence produced before

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