PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this Criminal Misc. Petition under Section 482 Cr.P.C., 1973 against the impugned Order dated 28.07.2012 passed by Additional Civil Judge (Sr.Div.) and Additional Chief Judicial Magistrate No.3, Ajmer in Criminal Case No. 404/2003 whereby the learned Magistrate dismissed the application filed by the petitioner for dropping the proceedings and recall the impugned order dated 15.10.2003 passed by ACJM No.2 in Criminal Case No. 404/2003 for taking cognizance against the petitioner under Section 120-B Indian Penal Code.
(2.) Learned Sr. Counsel for the petitioner Shri N.A. Naqvi has pointed out that under Section 319 the court has power to proceed against other persons only after the trial proceedings and commencing of the record of the evidence. For giving the strength to his argument, he has cited the precedent law of the constitutional bench of Hon'ble Apex Court in the matter of Hardeep Singh v. State of Punjab and Ors. [reported in 2014(1) WLC (SC) Cri. 326 : 2014(3) SCC 92] , the relevant portion is as follows:- "55. Accordingly, we hold that the court can exercise the power under Section 319 Cr.P.C., 1973 only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained herein above. 78. It is, therefore, clear that the word "evidence" in section 319 CrPC, 1973 means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 Cr.P.C., 1973 is to be exercised and not on the basis of material collected during the investigation."
(3.) Learned PP Mrs. Sonia Shandilya along with Mr. Shobhit Tiwari for applicant have stated that the liberty is always with the Trial Court to array any person as an accused of Section 319 Cr.P.C., 1973 as it's scope is very wide.;