- (1.) THIS criminal revision, preferred un der Section 397/401 of Code of Crimi nal Procedure, 197. 3 (hereinafter to be referred as Cr. P. C.), is directed against the order dated 18-11-1995 passed by J. M. 1st Class, Tehri Garhwal and order dated 15-1-1988 passed by Chief Judi cial Magistrate, Tehri, Tehri Garhwal.
(2.) IN brief, the prosecution case is that one Dharam Singh got his date of birth changed from the record and the same was written as 12-1-1955 in place of 12-1-1950. After the investigation, the I. O. of P. S. Narendranagar filed a charge sheet against Dharam Singh u/s 468/471 IPC. IN the charge sheet, the present revisionist Jai Bhagwan Kaushik was cited as a prosecution witness. Later on, one of the witnesses Sri Chandra Shastri moved an application before the CJM, Tehri Garhwal. The CJM Tehri Garhwal on 15-1-1988 passed an order u/s 319 of Cr. P. C. summoning the revi sionist u/s 420/468 IPC. The learned Magistrate has summoned the applicant u/s M9 of Cr. PC. on the basis of pho tocopies of the investigation report. To set aside the order, the revisionist moved an application before the Magistrate, then the Judicial Magistrate I Class. Tehri Garhwal by his order dated 18-11-1995 rejected the application and fixed the date for framing the charge. Against the said orders dated 18-11 -1995 and 15-01-1988, the revisionist has come up in revision before this Court. I have heard Sri M. C. Pande, learned counsel for the revisionist and Sri Harish Pujan, learned Addl. GA for the State. Sri M. C. Pandey, learned coun sel for the revisionist has submitted that the revisionist may be summoned u/s 319 Cr. R C. on the basis of the evidence adduced in the trial court and not on the basis of the evidence taken otherwise in the investigation or in some other pro ceedings. In support of his argument, he has cited a judgment of Hon'ble Apex Court in the case of Y. Saraba Reddy Vs. Puthur Rami Reddy and others reported in 2007 (3) Supreme Today 1032. He re lied on paras 11,12 and 13 which are reproduced as under : 11. In Muncipal Corporation of Delhi v. Ram Kishan Rohati and ors. (1983 (1) SCC (2) after referring to the decision in Joginder Singh's case (Supra), it was observed : "19. In these circumstances, there fore, if the prosecution can any stage produce-evidence which satis fies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also com mitted the offence the Court can take cognizance against them and try them along with the other accused. But we would hasten to add that this is really unextraordinary power which is conferred on the Court and should be used very sparingly and c*her person against whom action has not been taken. More that this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. We would, however-, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence before it. " 12. On a careful reading of Sec. 319 of the Code as well as the aforesaid two decisions it becomes clear that the trial court has undoubted juris diction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence ad duced that the persons who have not been arrayed as accused should face the trial. It is further evidence that such person even though had initially been named in the FIR as an ac cused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence. Of course, as evidence from the decision reported in Sohan Lal and others vs. State of Rajasthan, (AIR 1990 SC 2158) the position of an has been discharged different footing. 13. Power under Section 319 of the Code can be exercised by the Court suo motu or on application by some one including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is con ferred on the Court and should be used very sparingly and only if com pelling reasons exist for taking action against a person against whom ac tion had not been taken earlier. The word "evidence" in Section 319 con templates that evidence of witnesses given in Court. Under sub-section (4) (l) (b)of the aforesaid provision, it is specifically made clear that it will be presumed that newly added per son had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub-section (4) (l) (b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.
(3.) IN the above said case of Y. Sarabba Reddy (Supra), the Hon'ble Apex Court has held that the trial court can take such a step to add such per sons as accused only on the basis of evi dence adduced before it and not on the basis of materials available in the charge-sheet or the case diary because such materials contained in the charge sheet or the case diary do not constitute evi dence. Learned counsel for the revision ist has also submitted that the accused Dharam Singh against which the charge sheet was filed, he was acquitted by the court of J. M.-I Class, Tehri Garhwal by order dated 10-7-1998. Learned Addl. GA for the State has also conceded to this argument;