G. M. LODHA, J. - (1.) IN this application, u/s482, Cr. P. C. against the order dated the 7th June, 1979 of Sessions Judge, Bikaner in Sessions case No. 59/76, Hukamaram Umaram and Ramuram, the applicants, content that the impugned order by which they have been called upon to face the trial and cognizance has been taken against them under Section 319, Cr. P. C, should be quashed, as it was done on the basis of police statements and no evidence has been recorded by the Sessions Judge.
(2.) DR. Bhandawat, the learned Public Prosecutor could not dispute the facts as alleged by the petitioners but he submitted that a Sessions Judge was competent to take cognizance on the basis of the police statements recorded under Section 319, Cr. P. C. as per the decision of this court in Ajayab Singh vs. State of Rajasthan (1 ). It is not in dispute that application dated the 14th May, 1979 was moved by the Asstt. Public Prosecutor before the Sessions Court for taking cognizance against these applicants before any evidence was recorded in sessions trial and on the basis of the police record. It is also not in dispute that the Sessions Judge has taken cognizance and called upon these three applicants accused to face trial solely on the basis of the statements by police recorded under Section 161, Cr. P. C. That raise controversy, whether a Sessions Judge during trial of criminal case, can take cognizance against persons who are not accused and against whom the police after investigation has taken proceedings for dropping their names by not putting challan, without recording any evidence in the Court of Sessions. This finally raises question of interpretation of s. 319, Cr. P. C. Earlier, there was a controversy on this point because in Ajayab Singh's case (supra), this Court took the view that a Sessions Judge can take cognizance against any such persons who were not accused on the basis of the statements recorded by the police under Section 161, Cr. P. C. If it appears to him that an offence has been committed by any persons who is not an accused and, for which he should be tried alongwith other accused. This view taken in Ajayab Singh's case was reiterated by this Court again in Harjiram vs. State of Rajasthan (2 ). However, recently on 1st May, 1982 while deciding a bunch of five criminal revisions in which reference was made to a Division Bench, a Division Bench of this Court has taken the view that the view taken by this Court in Ajayab Singh & Harjiram's cases (supra) cannot be treated as good law. Sitting in division Bench alongwith Hon'ble Mr. Justice N M. Kasliwal, I have held in those references that- for the purposes of s. 319. Cr. P. C, "evidence" means, 'evidence recorded' by the Sessions Judge in trial and neither statements under S. 161, Cr. P. C. of witnesses recorded by the police, nor statements recorded u/s 164, Cr. P. C , nor statements recorded under S. 202, Cr. P. C, can be treated as 'evidence' for the purposes of S 319, Cr. P. C. In the above case of Sheoram Singh and others vs. State of Rajasthan (D. B. Criminal Misc. Appl. No. 41/81 and four other connected cases, decided on 1st May, 1982 at Jaipur Bench), I have dealt with the divergence of views on this point and after considering relevant provisions of the Evidence Act and the Code of Criminal Procedure, it was held that the police statements recorded under S. 161, Cr. P. C. cannot be treated as 'evidence' for the limited purpose of S. 319, Cr. P. C.
(3.) THE above judgement of Division Bench of this Court now holds the field and all earlier judgments contrary to it, cannot provide any guidance for the purpose of adjudication and decision of meaning & implications, ambit and scope of the phrase "evidence", as used in S. 319, Cr. P. C. The issue involved in the present case, therefore, stands clinched and the petition deserves to succeed on this limited point. The result is, that this misc. petition is accepted, the impugned order is quashed. However, it is made clear that the Sessions Judge would be free to take cognizance against these persons, if after recording the evidence, he comes to the conclusion that these applicants who have not been challaned by the police, deserve to be tried because some offence prima facie, is made out against them. . ;