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7. It is manifestly made clear in the case of Mrs. Nachal-petitioner. It is stated as follows.-

"Complicity of petitioner as mentioned in Statements under Section 161 and FIR cannot be taken into consideration as evidence. The "evidence" under Section 319(1) of the Cr. P.C. for the formation of opinion for proceeding against a person not being an accused is the evidence brought on trial. Therefore the "evidence" produced at the inquiry or trial will not include statements made to police under Section 161 of the Cr. P.C., and the materials collected during the investigation. It is true that the word "evidence" is used in Sections 173(8) and 226 of the Cr. P.C. But the evidence mentioned in those sections is not the evidence recorded during inquiry or trial and it refers only to materials collected during investigation. They are not described as evidence during the enquiry or trial as contemplated under Section 319(1) of the Cr. P.C., but states otherwise. The use of the word "evidence" in Sections 173(8) and 226 of the Cr. P.C. could only be the result of legislative inadvertance, and the evidence is available, or materials collected during investigation are not items of evidence coming within the scope of Section 319(1) of the Cr. P.C. Those provisions cannot have the effect of including police statements within the meaning of "Evidence" in the course of any inquiry or trial mentioned in Section 319(1) of the Cr. P.C. Therefore, the complicity of the petitioner, as mentioned in the statement under Section 161 of the Cr. P.C. and FIR cannot be taken into consideration as evidence as mentioned in Section 319(1) of the Cr. P.C.".

Further it is observed in paras 11 and 12 as follows:

"11. The "evidence" under Section 319(1) of the Cr. P.C. for the formation of opinion for proceeding against a person not being an accused is the evidence brought on trial. Therefore the "evidence" produced at the enquiry or trial will not include statements made to police under Section 161 of the Cr. P.C. and the materials collected during the investigation. It is true that the word "evidence" is used in Sections 173(8) and 226 of the Cr. P.C. But the evidence mentioned in those sections is not the evidence recorded during inquiry or trial and it refers only to materials collected during investigation. They are not described as evidence during the enquiry or trial as contemplated under Section 319(1) of the Cr. P.O., but states otherwise. The use of the word "evidence" in Sections 173(8) and 226 of the Cr. P.C. could only be the result of legislative inadvertance, and the evidence available, or materials collected during investigation are not items of evidence coming within the scope of Section 319(1) of the Cr. P.C. Those provisions cannot have the effect of including police statements within the meaning of "Evidence" in the course of any inquiry or trial mentioned in Section 319(1) of the Cr. P.C.

In case of Kishan Singh, their Lordships have held that in the absence of any evidence led before the Sessions Court Section 319(1) though not attracted, Sessions Court can summon additional accused by invoking Section 193 of the Cr. P.C. But in the case on hand the case is not committed by the Magistrate to the Court of the Sessions. Pointedly, in this case it is held as follows:

"Court has got power to issue summons to the additional accused, even though no evidence was led before the Court and trial was not commenced. Even the persons not shown in the police report as all accused, cannot be summoned under Section 319 but the Court has got power to do so under Section 193 on the basis of documents on record. It has been held that there is no necessity for the Court to issue summons to the additional accused, only after recording the evidence or during trial. In view of the said ruling, it can be said that the summons can be issued to the additional accused only on the basis of statement of the witness recorded by the police under Section 161 of the Cr. P.C.".

In the case of Nisan and Another v State of Uttar Pradesh, it is held as follows:

"(B) Criminal Procedure Code (2 of 1974), Section 319(1) --Power under--To proceed against other persons appearing to be guilty of offence -- Can be exercised only when involvement of such persons comes to light in course of evidence recorded during enquiry or trial and not prior to that stage".

It is further made clear in para 8 as follows:

"8. As regards the second contention of the appellants it must be said that in view of the plain and unambiguous language of Section 319 of the Code, the earlier quoted reason which weighed with the High Court in sustaining the order of the learned Judge is patently incorrect. The power under Section 319(1) can be exercised only in those cases where involvement of persons other than those arraigned in the charge-sheet comes to light in the course of evidence recorded during the enquiry or trial. As that stage has not yet reached the appellants could not have been summoned invoking Section 319 of the Code".