JUDGMENT J.P. Semwal, J.
1. This revision is directed against the order dated 28.11.1988 of the Chief Judicial Magistrate, Allahabad, refusing to summon Smt. Chander Roshni Dubey, Smt. Arti Dubey and Km. Anju Dubey, respondents 1 to 3 under Section 319 Cr.P.C.
2. This revision is being disposed of at the stage of admission.
3. According to the admitted facts. Smt. Raj Kumar Mishra had lodged report against seven persons including afore-mentioned three respondents 1 to 3 under Section 498A TPC and Section 4 of the Prevention of Dowry Act. The Investigating Officer submitted final report against the aforementioned three respondents, and submitted charge sheet only against four accused persons lowing respondents 1 to 3. An application was made by the prosecution for summoning the aforementioned respondents 1 to 3 under Section 319 Cr. P.C. on the ground that three is evidence against the said respondents in the statements of Smt. Raj Kumari Mishra, P.W. 1 and Smt. Shobha Devi, P.W. 2. This application was opposed by the accused. The learned Magistrate after considering the evidence refused to summon respondents 1 to 3 under Section 319 Cr. P.C. Aggrieved by this order, the revisionist complainant has preferred this revision
4. I have heard the learned Counsel for the parties and have perused the record of the case.
5. Section 319 Cr. P.C. reads as follows : -
"(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could he tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Subsection (1), then :--
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
6. This Section is self contained and is independent of the provision of Section 190(c) Cr. P.C. Section 319 Cr. P.C. comes into play during the course of proceedings already initiated Section 319 Cr. P.C. deals with inquiry as well as trial. It is clear that when in the course of inquiry or trial of any offence it appears from the evidence that any person not being an accused has committed any offence for which such persons could be tried together with the accused the Court can proceed against such persons for the offence which he appears to have committed. Section 319(1) and (2) provide for a situation where a Court hearing a case against certain accused finds from the evidence that some other persons, other than the accused before it, is involved in that very offence, the Court is empowered to proceed against him,
7. Any person not being an accused includes a person dropped by the police during the investigation and the accused against whom the proceedings have been quashed. The Magistrate is thus competent to proceed to summon the additional accused not sent up by the police or against whom proceedings have been quashed, Even an accused against whom a final report has been submitted and accepted by the Court can also be summoned under Section 319 Cr, P.C. Even when the Magistrate declines to issue the process under Section 202 Cr. P.C. and it is confirmed by the High Court, jurisdiction under Section 319 Cr. P.C. to implead that person does not cease. (See 1983 S.C. 595 S.S. Khanna v. Chief Secretary), If the prosecution at any stage can produce evidence which satisfies the Court that a person should have been made an accused, the Court can take cognizance against the accused even if proceedings have been quashed by the High Court earlier. (See AIR 1983 S.C. 67 Municipal Corporation of Delhi v. R.K. Rohatgi. Once a person is found to be accused in the case before the Court, he goes out of the reach of Section 319 Cr. P.C. (See AIR 1990 SC 2158 Sohan Lal v. State), Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 Cr. P.C (See 1993 (3) ACC 167 Kishun Singh v. State of Bihar).
8. The power under Section 319 can be invoked only for the offence already taken cognizance against other accused and the Court is not competent to take cognizance of any fresh offence, if an additional accused is impleaded under Section 319 Cr. P.C, Section 319 Cr, P.C. can be invoked against a person only if it is established that (here is some evidence to hold that he has committed an offence. The Court must be objectively satisfied that the evidence or circumstances warrant the additional person as an accused. There should be positive evidence which should satisfy the guilt of the person to be prosecuted. The purpose of Section 349 Cr. P.C. is to summon the real accused against whom the evidence is led regarding his involvement in the offence. The scope of Section 319 Cr. P.C. has been clearly defined in a catena of rulings of the Supreme Court. Reference may be made to few of them viz.
(1) Narayan Nambier v. State of Kerala, 1988 SCC 41.
"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 prima 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 his earlier been discharged would full 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 where from it can be said that the appellants, appear to have been involved in the commission of the crime along with those already sent up for trial by the prosecution.
9. Section 319 Cr. P.C. springs out from the dictum Judex damnatur cum nocens absolvitur (Judge is condemned where guilty is acquitted). This power can be exdrcised at. any time before conviction or acquittal. Order on 319 Cr. P.C. is to be based on evidence. It is an extra ordinary provision and should be used by the Court very sparingly and only if compelling reason exists for taking cognizance against additional accused. It is the duty of the Court to find out who the Offenders really are and once it comes to the conclusion on evidence that apart from the persons who are being tried some other persons are involved, it is the duty of the Court to proceed against them.
10. It is thus quite clear that Section 319 can be invoked only when there is some evidence, In the present case, the prosecution examined Smt. Raj Kumar Mishra, P.W. 1 and Smt. Shobha Devi, P.W. 2 at length and they have also been cross-examined. A perusal of the statements of these witnesses does, not go to show any positive evidence against respondents 1 to 3 in respect of the offence under Section 498A 1PC and Section 4 of the Prevention of Dowry Act. These witnesses have made general reference to the accused persons without naming respondents 1 to 3. Admittedly, only four accused persons are before the Court Even during the cross-examination, no specific and positive statement has been made against the respondents 1 to 3. No doubt it is only the evidence regarding the prima facie involvement of additional accused under Section 319 Cr. P.C. but it must be established that there is some evidence to hold that the additional accused have committed the offence. The learned C.J.M. has discussed the evidence led before him and has come to the conclusion that at this stage there was no compelling reason to summon respondents 1 to 3. Thus, in the absence of any positive and specific evidence against the respondents 1 to 3 the said respondents can not be said to have been involved in the commission of the crime along with those already sent up for trial by the prosecution. There is no illegality or jurisdictional error in the impugned order. Section 319 Cr. P.C. is discretionary and the Magistrate is enjoined to summon any person not being an accused only on his satisfaction from the evidence before him. In the present case, the Magistrate has discussed the evidence and is not satisfied that there was any evidence from which the involvement of respondents 1 to 3 prima facie is made out. Thus, Section 319 Cr. P.C. which is an enabling provision can be invoked only if the evidence surfaces in the course of inquiry or trial disclosing the complicity of a person or persons other than person or persons already arrayed before Magistrate or Court. Since no complicity came to light from the evidence taken on record by the Magistrate concerned, hence the impugned order does not suffer from any illegality or jurisdictional error. The Magistrate has rightly not invoked Section 319 Cr. P.C. at this stage in the absence of any prima facie evidence against the respondents 1 to 3. The learned Counsel for the revisionist also could not point out any specific or cogent piece of evidence disclosing at this stage involvement of respondents 1 to 3 under Section 498-A IPC and Section 4 of Prevention of Dowry Act.
11. The revision is devoid of merits and is liable to be dismissed and accordingly it is dismissed. Let the record of the case be sent to the lower Court without delay so that the case may be disposed of expeditiously.