Rajendra Saxena, J.
1. These miscellaneous petitions filed under section 482 Cr.PC have been preferred against the order dated 18.1.95 passed by the learned Special Judge, NDPS Act Cases, Sri Ganganagar, whereby he allowed the application dt. 29.10.94 submitted by the Public Prosecutor Under Section 193/190 Cr.PC in Special Criminal Case No. 4/94 and took cognizance for the offence punishable Under Section 29 of the NDPS Act (Jn short, 'the Act') against the petitioners.
2. Since both these petitions arise out of the same order, those are being disposed off by this common order.
3. Now a brief resume of the case. It appears that on 12.11.93 at 12.30 PM. Shri Jagdish Singh, S.I. Incharge, P.S., Sadul Shahar, received a source Information that one Maruti car No. CHB 6112, on which Balwantram Bajigar was the driver and wherein five gunny bags of Illicit poppy husk were stored, was lying in a depression behind the Govt. Secondary School and that near the said car, there was no person. Jagdish, Singh recorded the said source information under Section of the Act and alongwith motbirs Swaroop singh and Bahadur and police party proceeded to the said place and found abandoned Maruti Car bearing No. CHB 6112. Five gunny bags, stored in the said car, were taken out and weighed. Those gunny bags contained poppy husk, which weighed 192.500 kgms. From the said car, a driving license of co-accused Balwant Ram and Registration Certificate of the car in the name of petitioner Mahavir Prasad, which was valid upto the year 1994, were also found. Samples of poppy hisk from the gunny bags were taken and sealed. On the report of Jagdish Singh, the SHO PS, Sadul Shahar, registered a case against Balwant Ram, Car driver and conducted the investigation. Petitioner Mahavir Prasad in his police statement dt. 16.11.93 admitted that the registration of the said car was in his name but stated that he had sold the said car on 10.6.93 to petitioner Madanlal for consideration and for that, he had also got his affidavit dated 10.6.93 attested on a non-Judicial stamp of Rs. 50/-. He also submitted the photostat copy of the said affidavit, which he had filed before the District Transport Officer for transferring the said vehicle in favour of Madan lal. Thereupon, the IO sent a letter on 16.1.93 Under Section 67 of the Act to petitioner Madan lal to inform as to whether he was the owner of the said car and that on 12.11.93, who was the driver of the said car and as to where the driver had taken to said vehicle. On 16.11.93, petitioner Madanlal informed the IO in writing that he had purchased the car No. CHB 6112 from Mahavir Prasad on 10.6.93; that the documents thereof have still not been transferred in his favour; that he appointed Balwant Ram as his driver about six months back and that on 12.11.93, Balwant Ram was the driver of the said car, who had taken away the said car on 10.11.93 and did not return. He also mentioned that later on he had come to know that Balwant Ram was arrested alongwith the said car. The IO also recorded the statement of Madanlal Under Section 161 on 16.11.93, wherein he specifically/ admitted the aforementioned facts. After competition of the investigation on 5.1.94, the police submitted the challan for the offence Under Section 8/15 of the Act against Balwant Ram, car driver, in the Court of learned Special Judge, NDPS Act Cases Sri Ganganagar, who took cognizance for the said offence. The learned trial Judge upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of accused Balwant Ram and the prosecution, framed charge for the offence under section 8/15 of the Act against him, who denied the indictment. Thereafter, the case was fixed for recording the prosecution evidence on may occasions. On 29.10.94, Motbir Bahadur Ram, P.W. 1, was examined, who was declared hostile as he did not support the prosecution case. On the same day, the Public Prosecutor submitted an application Under Section 193/190 Cr.PC alleging that the Registration Certificate of the said case was in the name of petitioner Mahavir Prasad, who had already taken the said car on Supardgi Nama and that from the evidence on record, prima facie offence under Sections 25, 29 r/w 8/15 of the Act are made out against petitioners Mahavir Prasad and Madanlal and, as such, cognizance against them be also taken. The learned special Judge by his impugned order, allowed the said application and took cognizance Under Section 29 of the Act against petitioners and also directed to issue warrants for their arrest. Hence these petitions.
4. I have heard S/Shri D.S. Shishodia and H.S.S. Kharlia, learned Counsel for the petitioners and H.R. Panwar, learned Public Prosecutor at length and carefully perused the record of the learned lower court in extenso.
5. It has been vigorously canvassed on behalf of the petitioners that in this case, the learned Special Judge had framed the charge Under Section 8/15 of the Act against co-accused Balawant Ram and trial had commenced and, therefore, after the commencement of the trial the only provisions applicable was Section 319 Cr.PC for taking cognizance against other persons, if it appeared from the evidence during trial that they had also committed an offence and that it was necessary to take cognizance for that offence against them. They claim that there was no material on record, which can be termed as evidence within the meaning of Section 319 Cr.PC to show any complicity of the petitioners for abetting or entering into a criminal conspiracy with Balwant Ram. They have contended that petitioners were examined Under Section 161 Cr.PC and their names was included in the calendar of witnesses in the challan submitted by the police and that on the basis of those statements, the learned Special Judge has committed an illegality for drawing a presumption and taking cognizance against them. According to them, P.W. 1 Bahadur Ram has not supported the prosecution story and has also not deposed even a single word against the petitioners. Thus, there was no material before the learned trial Judge to take cognizance against the petitioner. They have, therefore, prayed that the impugned order be quashed.
6. Mr. Panwar, learned Public Prosecutor has submitted that the petitioner Mahavir Prasad had filed an application in the lower court alleging that he was the registered owner of the car in question and that the same be entrusted to him on supardgi Nama, which was dismissed by the trial court by its order dt. 26.11.93. Thereafter, Mahavir Prasad submitted S.B.Cr. Misc. Petition No. 736/93 in this court, which was allowed vide its order dt. 6.1.94 and that the said car was ordered to be released on Supardgi Nama to petitioner Mahavir Prasad. According to him, neither in the application dt. 19.11.93 submitted before the trial court nor in this court, petitioner Mahavir Prasad mentioned that he had already sold the said car on 10.6.93 to petitioner Madan Lal, therefore, the learned trial court has not committed any illegality in taking cognizance against the petitions. As regards the stage of taking cognizance against the petitioner, he concedes that in view of the law laid down by the Apex Court in Kishun Singh v. State of Bihar, : 1993CriLJ1700 after taking cognizance of the offence, the court can only take cognizance against other persons Under Section 319 Cr.PC when the complicity of persons other than those named as offenders in the challan, comes to light from the evidence recorded in the course of trial.
7. I have given my most anxious and thoughful consideration to the rival submissions. As early as on 16.11.93, Mahavir Prasad in his police statement had disclosed that he has sold the car in question on 10.6.93 to petitioner Madan lal and had also handed- over the certified copy of the Attested affidavit dt. 10,6.93 and another affidavit of even date submitted by him to the District Transport Officer for transfer of the said vehicle in favour of Madanlal. On that information, the IO gave a notice to Madanlal Under Section 67 of the Act, who gave it in writing that he had purchased the said car on 10.6.93 from Mahavir Prasad, who had also executed his affidavit and that for last three months prior to 12.11.93, he had engaged Balwant Ram as his driver, who had taken the said vehicle on 10.11,93 and did not return. Relying-on the statements of petitioners and other evidence, the IO did not submit the challan against petitioners. The learned Special Judge after consideration of the record of the case and the documents submitted with the chargesheet and after hearing the submissions of the accused and the prosecution in this behalf was of the opinion that there was ground for presuming that accused Balwant Ram had committed the offence Under Section 8/15 of the Act and, therefore, by his order dt. 5.3.94 framed the charge for the said offence and fixed the case for recording the prosecution evidence. Infact after giving many opportunities to the prosecution on 29.10.94, he recorded the statement of P.W. 1 Bahadur Ram, Motbir of the alleged recovery, Bahadur Ram denied the factum of alleged recovery of contraband poppy husk as also the driving license and the Registration Certificate. He resiled from his police statement Ex.P.3 and denied the contents of recovery memo Exp. P.1 and Ex.P.2. Thus, he did not support the prosecution case and accordingly, he was declared hostile. A perusal of his statement reveals that he did not utter even a single word against the petitioners. At that stage, the Public Prosecutor submitted the application Under Section 193/190 Cr.PC for taking cognizance against the petitioners.
8. In Kishun Singh's case (supra), it has been held that the Sessions Court had the jurisdiction, on committal of a case to it, to take cognizance of offence of persons not named as offenders, whose complicity in the crime comes to light from the material available on record because on committal, the restriction on the court of Secession to take cognizance of an offence as a court of original jurisdiction gets lifted. The Apex Court has also held that the scope and operation of Section 319 Cr.PC is limited only to post-cognizance stage when complicity of persons, other than those named as offenders, comes to light from the evidence recorded in the course of inquiry or trial and, therefore, the scope of Section 319 Cr.PC is not exhaustive of the power to arraign more persons. Their lordships of the Supreme Court interpreting the provisions of Section 319. Cr.PC have observed as under:
11. On a plain reading of sub-section (1) of section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub- section contemplates existence of some evidence appearing in the course of trial where from the court can prime facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by section 319 of the Code. Therefore, stricto sensu, Section 319 of the code cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in the commission of the crime alongwith those already sent up for trial by the prosecution.
12. But then it must be conceded that Section 319 covers the post cognizance stags where in the course of an inquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. Section 319 can be invoked both by the court having original jurisdiction as well as the Court to which the case has been committed or transferred for trial. The sweep of Section 319 is, therefore, limited, in that, it is an enabling provision which can be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it. If this is the true scope and ambit of Section 319 of the Code, the question is whether there is any other provision in the Code which would entitled the Court to pass a similar order in similar circumstances. The search for such a provision would be justified only on the premise that Section 319 is not exhaustive of all post-cognizance situations. Now as pointed out earlier Section 319 deals with only one situation namely, the complicity coming to light from the evidence taken and recorded in the course of an inquiry or trial. This may happen not merely in cases where despite he name of a person figuring in the course investigation the investigating agency does not send him up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the inquiry or trial. Once the purport of section 319 is. a/so understood it is obvious that the scope of its operation or the area of its play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the inquiry or trial. Thus the section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial alongwith others arraigned before the Court.
9. In the instant case, the learned Special Judge after the case was committed to him and thereafter after hearing the parties and considering the evidence collected by the IO, did not take cognizance of any offence against petitioners and simply framed charge, against accused Balwant Ram and Commenced the Trial. Thus, the stage of taking cognizance Under Section 193/190 Cr.PC has passed and come to an end on 5.3.94 when the learned trial Judge framed charge against accused Balwant Ram. He simiplies that at that time, the learned trial Judge did not find any material to prima facie constitute any offence against petitioners upto 5.3.94. The moment of time the trial in the case commenced, the provisions of Section 319 Cr.PC came into play. Section 319(1) Cr.PC specifically lays down that where in the course of inquiry or trial of an offence, it appeals from the evidence that any person not being the accused, has committed any offence for which such person can be tried together with the accused, the court may proceed against such person for the offence, which he appears to have committed. Therefore, the involvement in the complicity of a person not named by the Investigating Agency should appear from the evidence rendered in the course of the trial then and then only the exercise of the discretionary powers conferred by Section 319 Cr.PC can be pressed into service by the Court to which the case has been committed. It is true that as per the law laid down by the Full Bench of this Court in Dalip Singh v. State of Rajasthan, 1989 Cri.LJ 600, the word 'evidence' in Section 319 has to be given general and not narrow meaning. The term cannot be limited to evidence recorded by court during the course of Inquiry into or trial of the case and not the statements recorded by police or the documents filed alongwlth the chargesheet, But even after considering the documents appended with the charge sheet, prima facie no offence Under Section 29 of the Act for abetting or instigating accused Balwant Ram for committing the offence Under Section 8/15 of the Act appears to have been made out. The learned trial judge has wrongly held that a presumption can be taken against the petitioners Under Section 54 of the Act from the recovery of the Registration Certificate of the Car because such presumption can only be taken in trial under the Act against in accused and not against any other person. Admittedly, the challen was filed against Balwant Ram only. The case was committed and charge was framed against Balwant Ram only and admittedly petitioners were not the accused before the learned trial Judge in the trail on the other hand, from the investigation, it was evident that petitioner Mahavir Prasad had sold the car in question to Madanlal as early as on 10,6.93 and also submitted the affidavit dated 10.6.93. There was no reason to disbelieve those documents since generally a vehicle to give on Sumardginama to a registered owner, petitioner Mahavir Prasad submitted the application alleging that he was the registered owner. In that application, he had also specifically mentioned that Balwant Ham was the driver on assignment basis. Therefor, only on the basis of the fact that petitioner Mahavir Prasad had submitted the application for release of the said car on Superdginama by no stretch of imagination, it can be said that he had any complicity with Balwant Ram in the crime. Besides this, all those documents were available to the learned Special Judge, who did not prefer to take cognizance against the petitioners even on 5.3.94 while framing the charge against accused Balwant Ram. Apart from it, petitioners' statements were recorded Under Section 161 Cr.PC and they have been cited as prosecution witnesses in the calendar of witnesses. If cognizance is taken against the petitioners their statements cannot be read against accused Balwant Ram and that will be detrimental to the prosecution case.
10. In such circumstances, in my considered opinion, after the commencement of the trial, the learned Special Judge had no authority to take cognizance under Section 193/190 Cr.PC against the petitioners for the offence Under Section 29 of the Act. After the post cognizance stage, power to proceed against other persons, appear to be guilty of an offence is contained only in Section 319 Cr.PC. In the case on hand, no such contingency has arisen as yet and, therefore, the learned trial judge has committed an error of law in taking cognizance against the petitioners, which tantamounts to abuse of the process of the court and, therefore, the impugned order cannot be sustained.
11. The upshot of the above discussion is that these petitions are allowed and the impugned order dated 18 1.1995 is set aside. The record of the learned lower court be sent back immediately. The learned trial judge is directed to expeditlously dispose off the trial of this case because accused Balwant Ram is under detention since 17th Nov., 1993.