KANTA BHATNAGAR, J.—The petitioners, who have been charge-sheeted for the offences under sections 447,364,302, and read with 34 IPC by the Sessions Judge, Sri Ganganagar, in an application under section 319 of the Code of Criminal Procedure (here in after 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 decisions of the court in the case of Sheo Ram Singh vs. State of Rajasthan (1) rejected the prayer on the ground that the word evidence occurring in section 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 petitioner be quashed. The correctness of the view taken in Sheo Ram Singhs case (supra) had been seriously assailed and it had been prayed that the petition be referred to a larger Bench of this court for re consideration of the view taken by the Division Bench in that case. In prayer for referring the petition to a Larger Bench having been allowed, the matter comes up before this Bench.

2. In Sheo Ram Singhs case (supra) the point under reference was as to whether the word evidence used in section 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 decision 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 of 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 sec. 319 Cr. P.C. means the statements of witnesses recorded before the Court during an inquiry or trial and does not include the statements recorded by the police under section 161 Cr. PC or the statements recorded at the instance of the police by the Magistrate under section 164 Cr. P.C. and the statements recorded by the Magistrate under section 202 (2), Cr. P.C. and the papers submitted by the police in the form of any other documents, simpliciter".

3. In view of the 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 section 319 of the Code is an expression of the desire of Legislature of vest power in the Courts to place in dock the persons against whom there appears to be evidence but who, either due to inadvertance 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 of 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 on account of the anxiety of the legislature that the offenders may be put in dock at what ever 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. Section 319 of the Code is not an altogether new provision in the New Code of Criminal Pr

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