Evidence required under S.319 CrPC must surface during trial, not merely from statements made outside court.

1. This revision is preferred by Mrs. Nachal the petitioner herein, against the order dated 9-1-1995 passed in CC No. 230 of 1992 on the file of Judicial Magistrate, Karaikudi, allowing the petition filed by Assistant Public Prosecutor under S.319 Criminal Procedure Code to implead the petitioner as one of the accused.

2. The case in brief is as follows : -
One Seethai Aachi, the complainant has given her daughter in marriage at Amaravathi Pudur. She has friendly acquaintance with one Mrs. Nachal the petitioner who is a resident of the same village. On her request, the complainant Seethai Aachi gave a loan amount of Rs. 20,000/- to the petitioner. On 18-8-1990, at about 6.30 p.m., the complainant Seethai Aachi as requested by the petitioner, went to the petitioner's house and received back the loan amount of Rs. 20,000/-. Then the petitioner, accompanied the said Seethai Aachi till her residence and came back to her house. At that point of time, some persons suddenly appeared and threw chilly powder on her face and snatched the cash of Rs. 20,000/- from Seethai Aachi and ran away. Hence on her complaint, a case was registered, and some days later one Gopal, the accused in this case was arrested.

3. In May 1992, charge sheet was filed against him for the offence under S.392, IPC On 4-1-1995, PW 1, the complainant was examined before the trial Court. During the course of deposition, she mentioned that at the time of snatching of the cash by the accused, she called the name of Nachal. Immediately thereafter, Learned Assistant Public Prosecutor filed a petition under S.319 Criminal Procedure Code requesting the Court to implead the petitioner as one of the accused, for the reason that her name was not only mentioned in the deposition of PW 1 but also in the FIR and statements under S.161 Criminal Procedure Code . On this basis, on the very same day, the learned Magistrate passed an order allowing the petition stating that PW 1 deposed in the Court that the petitioner was present at the place of occurrence that the petitioner's name is also mentioned in the FIR., as well as in statements under S.161 CrPC. The order of learned Magistrate is as follows :
(Editors Note: - Vernacular Matter is Omitted.)
On the basis of this order, summons was issued to the petitioner. On receipt of the summons, the petitioner has resorted to file this revision before this Court.

4. Mr. Ramesh, learned counsel for the petitioner took me through the memo filed by the Assistant Public Prosecutor and the order passed by the learned Magistrate and contended that the order is not sustainable, in law, since the Magistrate cannot invoke S.319 CrPC to implead any other person as accused, on the basis of FIR and statements under S.161, CrPC. He also contended that even in the deposition of PW 1, there is no incriminating material found available against the petitioner to enable the Court to implead the petitioner as an accused. In support of his submissions, he cited several authorities, to show that the order passed by the Magistrate is not valid in law and is liable to be set aside.

5. Mr. Babu Muthu Meeran, learned Government Advocate has countered the submissions made by the petitioner's counsel.

6. I am of the view that the order passed by the Magistrate on 4-1-1995 is liable to be set aside on the simple and substantial ground which would be given as follows : -
Admittedly in the charge sheet filed by the police with reference to the complaint made by PW 1, the petitioner was not cited as an accused. Originally the charge - sheet was filed against the single accused by name Go