Full Judgment
G.K. Sharma, J.
1. This revision petition is directed against the order dt. 27th April, '83, by which, the Judicial Magistrate, Bhinmal took cognizance against the petitioner Under Sections 467, 468, 419/109 and 120B, I.P.C.
2. To understand the controversy, it is necessary to narrate here certain facts of the case. On 4th July '78, one Teja styling himself as Ratna, executed a sale deed for Khasra No. 167, situated in village Morsam, in favour of his son, Anda, for a sum of Rs. 5,000/- Teja was identified by Kana, as Ratna. One Achla was attesting witness of this document. Bhawani S hanker, Advocate and one Ganeshram, scribe also identified Teja as Ratna. The document was then registered later on, the real Ratna came to know this fact on 10th July, '78, and consequently, he lodged FIR at PS Bhinmal, on 13th July '78. The police registered a case Under Sections 419, 420, 467 and 468.
3. After completing usual investigation, the police submitted a challan against Teja, Kana and Anda and Achla, which are shown as absconders.
4. During the trial, the learned Magistrate after framing charge, recorded statements of the prosecution witnesses and he also recorded statements of 4 persons including that of Bhawanishanker Advocate P.W. 3. The APP on 17th Feb., '81, submitted an application Under Section 317, Cr.P.C, for talcing cognizance against Pukhraj, the present petition. Then, the APP did not press that application on 24th Mar., '81. Later on the Magistrate took cognizance against the petitioner suo motu on 27th Apr., '83 Under Sections 467, 468, 419/109 and 120B, I.P.C. That order has been challenged here.
5. Mr. Singhvi argued that Under Section 319, Cr. P.C., the Court has power and jurisdiction to take cognizance against person who has not been challaned, if during trial, it appears from the evidence that the person has committed the offence, he should be tried along with other accused persons. But, the condition for taking cognizance against the person is that there should be some evidence, recorded by the Court, during the trial. It means the Magistrate cannot use the statements of the persons recorded during the investigation , Under Section 161, Cr. P.C. and the evidence that should be considered is the evidence recorded during the trial of the case.
6. From a perusal of the order it seems that the learned Magistrate has relied on the statements of the witnesses recorded during the investigation Under Section 161, Cr. P.C. This was not the correct procedure. Section 319, Cr. P.C. does not give this permission that the Court can look into the statements recorded Under Section 161, Cr. P.C., but, it can look into the statements recorded by it only, during the trial. Therefore, the learned Magistrate has committed error in placing reliance on the statement recorded Under Section 161, Cr. P.C.
7. It was also argued by the learned Counsel that no doubt, Section 319, Cr. P.C. gives a power to the Court to take cognizance but this power should be used very sparingly and only if compelling reasons exist for taking cognizance. In support of his argument, Mr. Singhvi placed reliance on the case of Delhi Municipality v. R.K. Rohtagi : 1983 CriLJ159 , wherein their Lordships observed as under:
Section 319, Cr. P.C. gives ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the other accused. In these circumstances, therefore, if the prosecution can, at any stage, produce evidence which satisfied the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed, have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.
8. Thus, in view of the principle laid down by Hon'ble the Supreme Court, it was the duty of the learned Magistrate to have satisfied . himself from the evidence produced before him and he should (not) have looked into the statements recorded Under Section 161, Cr. P.C. From the evidence recorded by him, if he was satisfied that there were such compelling reasons for taking cognizance against the person, then only, in exceptional cases, he could have exercised his power. It is not a power which is to be used in a routine manner. If such a power is given to the Court, it must satisfy itself that the offence is such that there are compelling circumstances/reasons and there is no other way except to proceed against that person. In this light the evidence recorded by the learned Magistrate was perused. The only evidence which can be said to be against the petitioner's statement of Bhawanishanfcer, Advocate, P.W. 3. This witness very clearly and specifically stated that Pukhraj petitioner had introduced Teja to him as Ratna. He has specifically stated that Ratna was identified by Kana, and he has not stated that Ratna was identified by Pukhraj. So, from the entire statements, it cannot be inferred that petitioner Pukhraj was the person who had identified Teja as Ratna before Bhawani Shanker Advocate, before the Registrar, or any other person, while getting the registry done. Therefore, there is no evidence against the petitioner which compelled the learned Magistrate to take cognizance against the petitioner suo motu. The order of the Magistrate is, therefore, bad in law and cannot be maintained.
9. Consequently, the revision petition is accepted. The order of learned Magistrate dt. 27th April, '83, taking cognizance against the petitioner, is set aside, and the, proceedings against him are herely quashed.