JUDGMENT 1. - Whether the `evidence' as used in Section 319, Cr.P.C, signifies and means the evidence recorded in the court, or it can also include the evidence recorded by the police both, oral and documentary; is the pivot of important legal debate in this reference? The conflicting views of the learned Judge sitting in Single Bench in this court and absence of any authoritative pronouncement of the Apex court has resulted in this reference by the learned Single Judge. 2. The present bunch of five cases are taken together and decided by one common judgment because of the joint prayer of the learned counsel for the parties and the unanimity amongst them that all the five would swim or swing together solely and only on the basis of the interpretation which this bench would put on the connotation evidence as used in Section 319, Cr.P.C. 3. It is not necessary to mention the facts because in all the five cases, the petitioners accused who have come up before this Court, were not challaned by the police. No evidence was recorded against them, either by the committing court, or by the Sessions Courts. Only on an application or prayer of the public prosecutor, they have been made accused and summoned to face their trial by the Sessions Judge or the Additional Sessions Judge, as the case may be, who have invoked the jurisdiction and the powers under Section 319, Cr.P.C., on the basis of perusal of the statements of witnesses recorded under Section 161, Cr.P.C by the police and the documents either collected or prepared by the police during investigation: 4. However, in order to precise, it would be proper to mention below the facts of the first case of Sheoram Singh as noticed by the learned Single Judge in his order of reference: "In case No. 41/81, an F.I.R. was lodged on June 10, 1980, against the petitioner Sheoram Singh and certain other persons. The police after investigation filed a challan against 21 persons but did not include the petitioner as in the opinion of the police no case was made out against the petitioner, The case was committed to the court of session for trial. The Additional Public Prosecutor moved an application under Section 319, Cr.P.C. to make the petitioner also as an accused in the case. The Additional Public Prosecutor moved an application under Section 319, Cr.P.C. to make the petitioner also as an accused in the case. The learned Additional Sessions Judge, Deeg, by his order dated 13th January, 1981, after taking into consideration the documents filed under Section 173, Cr.P.C. alongwith the challan took cognizance against the petitioner also and passed an order for summoning the petitioner by a non-bailable warrant. The petitioner aggrieved against the order dated 13th January, 1981, taking cognizance, has filed this petition under Section 482, Cr.P.C. in this Court." 5. Shri K.N. Garg, and Shri N.L Tibrewal, who have appeared on behalf of the petitioners, Shri G.G. Sharma, the learned Public Prosecutor have, after a careful study of the case in all these cases, submitted that in none of the five cases, the evidence was recorded in the / court and the petitioners have been summoned to face trial solely on the basis of the Police record after they were not committed by the committing magistrate and at a stage when the cases came for consideration in ' sessions trial. 6. Before we proceed to consider the various facts of this important legal controversy it may be pertinent and useful to mention here that this question was considered by this court in Ajayab Singh v. State of Rajasthan, 1978 R.L.W.9 . the learned Judge sitting in single bench took the view that the term, "evidence" used in Section 319(1), Cr.P.C., includes the statement of witnesses recorded by the police under Section 161, Cr.P.C. and the document submitted to the court alongwith the challan. 7. This view was reconfirmed by another learned Judge of this Court again sitting in single bench in Harjiram and other v. State, 1979 Cr. L.R. (Raj.) P. 248 . While doing so, the learned Judge placed reliance upon the decision of the Supreme Court in Yogendra Singh v. State of Punjab, 1979 Cr. L.R. (SC) P. 21 & Raghubans Dubey v. State of Bihar, A.I.R. 1967 S.C.P. 1167 and Ajayab Singh's case (supra). In Laxmi Narain v. State of Rajasthan, 1980 R.C.C.P. 46 . another decision of the learned Single Judge of this Court who took a contrary view, although as we would discuss it a little later, neither earlier cases were considered by the learned Single Judge this time nor he examined in details the term "evidence". 8. In Laxmi Narain v. State of Rajasthan, 1980 R.C.C.P. 46 . another decision of the learned Single Judge of this Court who took a contrary view, although as we would discuss it a little later, neither earlier cases were considered by the learned Single Judge this time nor he examined in details the term "evidence". 8. Before this Court, during arguments, the learned counsel for the petitioners have submitted that the term, "evidence" is only capable of one interpretation, and/or second interpretation, inasmuch as it can only mean `evidence' recorded in the court in contradiction to statements or documents recorded or collected or prepared by the police. Strong reliance was placed upon the judgment of the Apex Court in Yogendra Singh's case (supra, which have been followed and relied upon in one way or the other by the Allahabad, Gujarat, and Patna High Courts. 9. The learned Public Prosecutor who was repeatedly asked to point out if there was any contrary view taken to the one submitted by the learned counsel for the petitioners, could not point out any another judgment except the two judgments of this court in Ajyab Singh's case (supra) and Harjiram's case (supra) which have been taken note of by the learned Single Judge while making reference. 10. The decks are now clear and the stage if now set for examining, in great details, the meaning of term, "evidence" as used in Section 319, Cr. P.C. 11. The term, `evidence'in common Parlance means any oral or documentary statement either to prove or to disprove a particular fact. In common parlance the term, `evidence' is to a fact and in other words, it is too comprehensive and it compasses are all inclusive. What police during investigation collects or what a journalist in story quotes in support of the fact which he wants to bring in lime light or what a scientist as a result of the experiment observes, is all treated as `evidence' in common parlance. When the man landed in the moon, scientists wanted to ascertain from him to find out if there were common evidence of life either human life or normal life or a plantation life. Those observations of any object in common parlance become evidence. If a marriage is solemnised then various laws provide that it must be evidenced by some persons who become witnesses. Those observations of any object in common parlance become evidence. If a marriage is solemnised then various laws provide that it must be evidenced by some persons who become witnesses. The documents are required to be evidenced for the purposes of execution by the attesting witnesses. There are numerous facts and situations where a thing is to be evidenced and the above are a few of lacks of such situations, but we have mentioned them to illustrate that the term, `evidence' in common parlance is too wide. 12. The entire law of evidence is precisely codified under the Indian Evidence Act, though it is supplemented and complimented by various laws like, the Code of Criminal Procedure, Code of Civil Procedure, the Transfer of Property. Act, so forth and soon. Undoubtedly, the Indian Evidence Act is the heart and soul of law of Evidence and it is the sole pivot around which the entire world of evidence rotates. It is the sole bedrock and fabric in which the difference both substantive, as well as the concepts of evidence, are digested and rationalised. The law of evidence in the form of the Indian Evidence Act containing clauses, and many of the sections having quite a number of sections is one of the most scientific well thought of legislation which has with stood test and trial of the multi million ex pediments of civil and criminal trial during a period of about a centaury. 13. The preamble of Indian Evidence Act (Act No. 1 of 1972) reads as under : "Whereas it is expedient to consolidate define and amend the law of Evidence, it is hereby enacted as follows:- The statement of objects and reasons of this Act have been given in the Gazette of India, 1868, p. 1574. The preamble and statement of objects read together would show that the law was enacted primarily for the purpose of modification in one statute and it was consolidatory one repelling all rules of evidence other than those saved by the last part. It was intended to be a complete Code of law of evidence as held in Hira v. State, A.I.R. 1971 S.C. 44 . after codification it does not permit importation of any English common law relating to the evidence to the contrary. It was intended to be a complete Code of law of evidence as held in Hira v. State, A.I.R. 1971 S.C. 44 . after codification it does not permit importation of any English common law relating to the evidence to the contrary. It may be noted that even though it was intended to be comprehensive still it cannot be termed as exhaustive but the Evidence Act is the special law and, therefore unless some other law specifically mentions to the contrary, all the courts are to be governed in the matter of evidence by law as enacted by the Evidence Act. 14. Section 3 of the Evidence Act reads as under : "In this Act the following words and expressions are used in the following Senses, unless a contrary intention appears from the context". "Evidence" "Evidence means and includes (1) All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry such statements are called oral evidence; (2) All documents produced for the inspection of the Court; such documents are called documentary evidence". 15. It would thus be seen that Section 3 is an interpretation clause and it would be misnomer to permit it as definition clause, although in common parlance, it is difficulty to distinguish between interpretation and definition. Even otherwise, the distinction is too nice delegate and latent and it rarely becomes patent. The term, `evidence' includes the statements and documents which we have already mentioned above. 16. Before proceeding further, we may mention here that confusion between evidence and proof is usually made. But evidence is one of the methods of proving or not proving a fact. Section 3 gives the following interpretation of the term, "proved", "disproved", and "not proved": "Proved" A fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particulars, case to act upon the supposition that it exists". "Disproved" A fact is said to be disproved when, after considering the matters before it, the Court either believe that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. "Disproved" A fact is said to be disproved when, after considering the matters before it, the Court either believe that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. "Not Proved" A fact is said not to be proved when it is neither proved nor disproved". Then the evidence are, of course, primary and secondary. Again, the evidence can be categorised as "direct evidence" "hereby evidence" "circumstantial evidence". The evidence can be of facts in issue of facts relevant. Again it cannot be of facts not in issue but connected with facts in issue and of facts which are cause occasion or effect of facts in issue. Similarly, the evidence can be of motive preparation, antecedents and subsequent conduct. We would not like to enter into arena of the vast ocean of evidence varieties as it would be a dilation from the issue involved in this reference which is avoidable and should be avoided for precision. 17. The above discussion would only provide us a background of how vast and wide is the range in which we are required to decide the meaning and fetters and limitations which could be put on the term, "evidence" as used in Section 319, Cr. P.C. 18. The most striking feature of law of evidence is that section 3 mentions that evidence means and includes the statement which the court permits or requires to be made before it by the witnesses, or document produced for the inspection of the court. Though this is neither definition of evidence nor it is sourceful. The most important pivot around which our decision and discussion should relate. One important feature of the above is that it is those statements which the court permits or requires to be made by the witnesses and not which the police proposes or designs to make before the court. This distinction is subtle but important for the purposes of considering the meaning which we can give to the term, "evidence" under Section 319, Cr. P.C. 19. The statements under Section 161, Cr.P.C. are no statements which the court permits or requires to be made before it by the witnesses. This distinction is subtle but important for the purposes of considering the meaning which we can give to the term, "evidence" under Section 319, Cr. P.C. 19. The statements under Section 161, Cr.P.C. are no statements which the court permits or requires to be made before it by the witnesses. The moment, the court intervenes and comes and the statements which are required to be made before it by the witnesses becomes the condition precedent of oral evidence. We cannot look into the statements which the police has recorded u/s 161, Cr.P.C. for the purposes of investigation and which may be used for framing charge as required or permitted by the Code of Criminal Procedure or for discharge but not for taking cognizance against the accused, who have not been produced for trial by the police at the stage of either consideration of final report or charge sheet under section 173, Cr.P.C., read with S. 190, Cr.P.C. 20. A very plain and thoughtful reading and consideration of the above interpretation of evidence given under the Indian Evidence Act, Section 3. we are inclined to think that so far is the Evidence Act is concerned, a statement of witness recoded u/s 161, or S. 164, Cr.P.C. would not be evidence per se and simplicitor in inquiry or trial of a criminal case. Neither the court permits nor it requires the said statements to be made before it by the witnesses in relation to matters of facts under inquiry. 21. However, as we have mentioned earlier, the Evidence Act is not exhaustive code and other laws-can by express enactment or intendment make something evidence which is not evidence within the meaning of section 3 of the Evidence Act. Similarly, for the purposes of considering a fact proved or disproved or not proved, the interpretation of Section 3 of Evidence Act is not exhaustive and other laws made by specific enactment or intendment provide to the contrary. 22. Here again, for the sake of precision we would like to restrict our finding on consideration of the provisions of the Code of Criminal Procedure and that too regarding the provisions about the evidence. 22. Here again, for the sake of precision we would like to restrict our finding on consideration of the provisions of the Code of Criminal Procedure and that too regarding the provisions about the evidence. Before doing so, we may mention that for the purposes of section 319, Cr.P.C, we are not required to consider, whether a fact is proved, disproved or not proved, because that stage comes only at the stage of final decision of criminal case resulting in acquittal or conviction normally. In a sessions case, a case is committed by the magistrate under Section 209, Cr.P.C. when it appears that the offence is triable exclusively by the court of session and this is precisely what has happened in all the five cases before us. According to Section 228 a charge is framed in case the judge is of the opinion that there is ground for presumption that the accused had committed an offence. It would be pertinent to note that while doing so, the court considers what the prosecutor has argued against an accused by describing charge and stating by what evidence he proposes to prove the guilt of the accused. Section 226, Cr. P.C. read as under: "Opening case for prosecution.When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209. the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused." 23. What is pertinent here is, that the term, `evidence' is qualified by `he proposes to prove which means that it is proposed evidence and not evidence. It is significant to note here that Section 319, Cr. P.C. omits the important phrase `which he proposes to prove', to qualify the evidence as done in Section 226. Again, section 227 contemplates discharge of the accused, if upon consideration of record of the case and the documents submitted there with, the Judge considers that there is no sufficient ground for proceeding against the accused. The stage of charge and discharge therefore, expressly contemplated the consideration of statements under Section 161 & 164, Cr. P.C. the documents which are either from the record of the case or from the evidence proposed to prove the guilt of accused. A comprehensive reading of sections 226 & 227, Cr. The stage of charge and discharge therefore, expressly contemplated the consideration of statements under Section 161 & 164, Cr. P.C. the documents which are either from the record of the case or from the evidence proposed to prove the guilt of accused. A comprehensive reading of sections 226 & 227, Cr. P.C., makes it clear that at the stage of framing of charge or discharging the accused, the evidence as contemplated under Section 3 of the Evidence Act is not required nor it is feasible because the stage of recording the evidence is set only thereafter and the logical and legal corollary of it is that record of the case consisting of the police papers is not evidence but only proposed evidence. 24. Thus, on a plain reading of sections 226 & 227, Cr. P.C. with Section 319, Cr. P.C. We are of the opinion that the term, `evidence' used in Section 319, Cr. P.C. no where permits the use of statements u/s 161, Cr. P.C. or Section 164, Cr. P.C., recorded by the police to be treated as evidence for the purposes of consideration under Section 319, Cr. P.C. 25. Before we proceed further, it would be proper to examine section 190, Cr. P.C. which permits taking cognization by magistrate at an earlier stage, when the police papers are filed under Section 173, Cr. P.C. Section 173, Cr. P.C. reads as under: "Report of police officer on completion of investigation: (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating. (a) the names of the parties; (b) the nature of the information. (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties. (g) whether he has been forwarded in custody under Section 170. (g) whether he has been forwarded in custody under Section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so direct, be submitted through that officer, and he may, pending the orders of the Magistrate direct the officer in charge of the police Station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate alongwith the report. (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is in expedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient to do so he may furnish to the accused copies of all or any of the document referred to in sub-section (5). (7) Where the police officer investigating the case finds it convenient to do so he may furnish to the accused copies of all or any of the document referred to in sub-section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and whereupon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." 26. Under section 173, Cr. P.C. after the investigation is completed, the police officer is required to forward to the magistrate the police record in the form prescribed by the State government. Sub-clause (d) of Section 173(2) mentions that the police officer should record his finding whether any offence appears to have been committed and, if so, by whom. This section deals with the final report of the police and it can either amount to a charge or it may contain recommendation that no offence having been made out, the case should be cancelled. If the report is that an offence is made out, the magistrate can take cognizance of it under Section 190 (1) (b). Contrary to it, if the report is that the case is false, sub-section (1) (b) of Section 190, Cr. P.C. does not apply and no cognizance of the offence can be taken by the magistrate. However, the magistrate is entitled to look into the police diaries, scrutinise the investigation and to make up his mind independent of what the police has stated, as to whether the recommendations made by them is found just and then to accept the police recommendations or not. If he refuses to accept it he can make a note that he is not agreeable with the police and does not accept the recommendations. 27. The magistrate, under Section 190, Cr. P.C. is empowered to take cognizance of a case in which the police has recommended that no offence is made out and also against the accused, for which the police has recommended that no case is made out. 27. The magistrate, under Section 190, Cr. P.C. is empowered to take cognizance of a case in which the police has recommended that no offence is made out and also against the accused, for which the police has recommended that no case is made out. These powers of the magistrate have been well recognised by the authority pronouncement in Lumba Ram v. State, 1956 RLW P. 349 . This Court observed as under : "Held that it is possible for a magistrate to take cognizance of an offence on a police report even though the police wants him to accept its negative report if that report contains facts constituting of offence. So far as the present case is concerned, it is obvious that a complaint has been filed before the Magistrate. He could not therefore take cognizance of the offence under clause (a). The Magistrate has also not indicated if he wanted to take cognizance upon information received from any person other than a police officer or on his own knowledge or suspicion and, therefore clause (c) also does not apply. He has proceeded to take cognizance of the offence on the simple ground that no evidence was recorded before him. This was obvious wrong. It was not necessary for that court to record evidence before accepting the police report. He should applied his mind to the report. If he found that any offence could be constituted on the basis of the fact mentioned therein he could take cognizance of the offence, otherwise he should have accepted it." (para 6). 28. At the bar, during the arguments, a good deal of confusion persisted in respect of taking cognizance under Section 190, Cr. P.C. at the stage of refusal or acceptance of the police report under Section 173 and summoning an accused which was termed as taking cognizance against an accused under s. 319, Cr.P.C. It would be our endeavour to stare through this confusion and clear clouds created by some decisions and submissions made on that basis. 29. We have got no hesitation in holding as preposition of law that the two stages of Section 190, Cr.P.C. and Section 319, Cr.P.C. are patently distinct different and distinguishable and they have got their separate occupied fields which no where overlaps each other. 30. 29. We have got no hesitation in holding as preposition of law that the two stages of Section 190, Cr.P.C. and Section 319, Cr.P.C. are patently distinct different and distinguishable and they have got their separate occupied fields which no where overlaps each other. 30. The stage of invoking the jurisdiction under s. 190 Cr.P.C. is well known and it is only when the police papers which are known as police reports and the statements and documents annexed to it, are placed before the magistrate by virtue of Section 173, Cr.P.C. The magistrate under s. 190, Cr.P.C. at this stage can exercise one of the options of taking cognizance by resort to section 190/(1). Once the case proceeds further either by way of recording of evidence by the magistrate or commitment to the sessions, as the case may be, the magistrate becomes functus office so far as his powers under Section 190, Cr.P.C. are concerned. The Sessions Judge who tries sessions case after commitment as a hang over of the magistrate who become functus office cannot exercise the powers under s. 190, Cr.P.C. The stage is then set for invoking Section 319, Cr.P.C. 31. The crucial controversy which then arises against for consideration is, what is the interpretation of "evidence" under s. 319, Cr.P.C. Apart from the various facts deducted from the Indian Evidence Act, we may now proceed to examine,whether there is any contradiction in the Code of Criminal Procedure by virtue of which the term, `evidence can be interpreted to mean the police record consisting of statements recorded under s. 161 of the witnesses. 32. To start with section 162, itself, enacts a prohibits to the use of the statements under s. 161, Cr.P.C. for any other purpose except, for the limited purposes of contradicting a witness when examined by the court in the manner provided by section 145, Indian Evidence Act. Yet another exception is that such statements can be used as evidence if they fall within the provisions of clause (1) of s. 32 of the Indian Evidence Act or to affect the provisions of s. 27 of that Act. It is well known that this prohibition with the above three exceptions makes the police statements under Section 161, inadmissible before the court for any other use. It is also not without significant that even for these three exceptions statements under s. 161 Cr. It is well known that this prohibition with the above three exceptions makes the police statements under Section 161, inadmissible before the court for any other use. It is also not without significant that even for these three exceptions statements under s. 161 Cr. P.C. can be used only if it is duly proved which means that evidence should first be recorded to prove that the witnesses gave such statements before the police. This creates a complete embargo on the use of witnesses statements under s. 161, Cr. P.C. as evidenced for the purposes of Section 319, Cr.P.C. 33. We have carefully gone through the entire scheme of this Code of Criminal Procedure in order to find out whether any exceptions had been carved out another way by which police statements can be used for the purpose of Section 319, Cr.P.C. We find that under s, 273, Cr.P.C. the term `evidence' finds place when the magistrate examines the witnesses, himself, and makes a memorandum of his evidence. Sections 275, 276 & 277 Cr.P.C. all contemplate the recording of the evidence. Under Section 278, Cr.P.C , whenever a witness's statement is recorded, it is required to be read over to him and that becomes evidence Section 279, Cr.P.C.' contemplates interpretation of evidence to accused or his pleader if the language is not understood by the accused. Again, u/s. 280, Cr.P.C.when the evidence is recorded of a witness, a magistrate may record such remarks as he thinks material in respect of demeanour of witness. Section 284 to s. 288 provide for recording of evidence by commission Then Sections 291. 292 & 293 provide for evidence about the medical witness, officers of the Mint and reports of the scientific experts like the chemical examiner, etc. Then thereafter, provision has been made under Section 294, Cr.P C. for dispensing with the requirement of formal proof of certain documents which becomes evidence and can be read in evidence. The evidence by affidavit is provided under s. 295, 296 & 297, Cr.P.C. Then, Section 298, Cr P.C. provides for evidence and proof of previous conviction. Section 299 Cr.P.C. provides for procedure of recording of the evidence in the absence of the accused. The court is authorised to call any witness suo moto for recording the evidence under Section 311. 34. Section 299 Cr.P.C. provides for procedure of recording of the evidence in the absence of the accused. The court is authorised to call any witness suo moto for recording the evidence under Section 311. 34. We have pointed out the above provisions which by far may not be exhaustive but yet without leaving any relevant provisions of Code of Criminal procedure having any bearing in interpreting the term, "evidence" under Section 319, Cr.P.C. We have done this exercise in order to interpret the term, "evidence" on the plain, simple meaning given to it in the context of the scheme of Code of Criminal procedure and the Indian Evidence Act. More and more, we have made our probe deep and thoughtful and, more and more, we are convinced that the term, `evidence' as used under s. 319, Cr.P.C., cannot be proposed evidence but it means the `evidence recorded' by the court. We are convinced that the police statements at the best can be proposed evidence and no evidence in the case unless they are utilised for the three exceptions carved out under s. 162, Cr.P.C. namely, for the purposes of Section 145, Evidence Act, s. 32, Evidence Act, and s. 27, Evidence Act. Obviously, situation under s. 319, Cr.P.C. is not covered by s. 145, Evidence Act or s. 32, Evidence Act, or s. 27, Evidence Act. 35. We have travelled in a very wide field of text of Evidence Act and Code of criminal Procedure, and after a complete survey of all the above provisions in particular and the scheme of both the Acts in general, we have got no hesitation in holding that the police statements under Section 161 or statements under Section 164, Cr.P.C. recorded before a court during the investigation cannot be permitted and used as evidence for the purpose of Section 319, Cr.P.C. for taking cognizance against an accused, who has not been sent for trial by committal order. 36. We have choose to examine text of the statute first before entering into arena of case law because in our opinion the interpretation put on the statute is secondary test to judge its correctness primary being text itself. 37. 36. We have choose to examine text of the statute first before entering into arena of case law because in our opinion the interpretation put on the statute is secondary test to judge its correctness primary being text itself. 37. Now coming to the various decisions referred to before us, it must be said at the very out set that the judgment of the Supreme Court in Yogendra Singh v. State of Punjab (supra) is not a decision where there was any controversy about the interpretation or meaning of the term, "evidence" as used in S. 319, Cr.PC. in order to find out whether it means the "police statement" recorded u/s. 161, Cr P.C. or it can only mean the "statements" recorded by a magistrate or a court after filing of the challan. It is true that their lordships have used the word, "evidence recorded" at more than one place but although in Allahabad decision and Guj. decision and so also in the decision by Jammu & Kashmir High Court, reliance has been placed upon the use of the words," "evidence recorded" in Yogendra Singh v. State of Punjab (supra). We are of the opinion that Yogendra Singh v. State of Punjab (supra) is not a decision which can clinch the issue as the question involved in the reference before us, was never raised, considered and decided by their Lordships of the Apex court. In this view of the matter, the decision of Jammu & Kashmir High Court in State v. Mohd. Zaman and others, 1981 Cr. L.J P. 783 and Mohanbhai Bhomraj v. State of Gujarat, 1979 Cr. LJ P. 1466 and that of Allahabad High Court in Doodh Nathlal v. State of Uttar Pradesh, 1981 All. L.J P. 522 and in Rajiv Yadav v. State of U.P., 1981 All. L.J P. 959 fail to enlighten us on this controversial issue as all of them have taken assistance from the use of word, "evidence recorded" in Yogendra Singh's case (supra). We, therefore, do not purpose to discuss the Gujarat, Jammu & Kashmir and Allahabad view though all of them have supported the view which we have taken but they fail to give any independent reasons. 38. Similarly, in Patna case, Sidheshwar Prasad and others v. State of Bihar and another, 1979 Cr. We, therefore, do not purpose to discuss the Gujarat, Jammu & Kashmir and Allahabad view though all of them have supported the view which we have taken but they fail to give any independent reasons. 38. Similarly, in Patna case, Sidheshwar Prasad and others v. State of Bihar and another, 1979 Cr. L.J P. 767 and decision of this Court in Laxmi Narain v. State of Rajasthan, 1980 (5) R. Cr. PCP 46 the important issue involved and debated before us has not been considered at all and therefore, these two decisions are of on assistance, although they also support the view which we have taken. 39. The stage is now set and decks are clear to have a closure probe and scrutiny about the reasoning of Harji Ram and others v. State (supra) and Ajyab Singh case (supra). In Ajyab Singh as pointed out above, the term, "Evidence" has been considered on the basis of the interpretation of Evidence under s. 3 of the Evidence Act. Section 227 & 228 of the Code of Criminal Procedure have also been referred. It was held by the learned Single Judge that evidence as defined u/s 3 of the Evidence Act, means, "oral and documentary evidence" and oral evidence is statement of witness. It was then considered that as the learned Sessions Judge under S. 228, Cr. PC was also required to consider the statements of witnesses recorded by the police under Section 161, Cr. PC or by a Magistrate under the proviso to sub-section 2 of S. 202, Cr. PC and the documents filed alongwith challan for forming opinion that there was sufficient ground for proceeding against the accused, therefore, the arguments of the counsel that under S. 319, Cr. PC., a Sessions Judge can proceed against the person not being an accused only on the basis of the evidence recorded by him in the course of inquiry or trial of an offence was held to be fallacious. With due respect, we have not been able to persuade ourselves to accept these reasonings. The obvious reason is that the interpretation of evidence under S. 3 of the Evidence Act has been read without giving due importance of pre-existing requirement contained in the words, "all statements which the court permits or requires to be made before it by witnesses". With due respect, we have not been able to persuade ourselves to accept these reasonings. The obvious reason is that the interpretation of evidence under S. 3 of the Evidence Act has been read without giving due importance of pre-existing requirement contained in the words, "all statements which the court permits or requires to be made before it by witnesses". These words, in our opinion, qualify the terms, "all statements" and no statement can become evidence unless the court permits or requires a witness to make the statement. The making of a statement which results in recording of the statement by the court, is therefore, sine qua non for treating it evidence. Unless the court permits or requires a witness to give his statement and the witness, then gives his statement, his earlier statement recorded by the police cannot become evidence in the case. 40. It is true that for the purpose of section 228, Cr. PC while framing a charge, the court is required to consider whatever has been put before it under Section 226 and that would be proposed evidence for proving guilt of the accused. Similarly, an accused can be discharged under Section 227, Cr. PC upon consideration of record of the case, but these are specific permissible sections in the statutes which permit the court to act upon the police record for limited purposes. There is no such wording under Section 319, Cr. PC like the one provided under Section 226, Cr. PC. As already mentioned earlier, Section 226, Cr. PC is based on `proposed evidence' and Sections 227 & 228 all empower the court to act upon" proposed evidence". We may, however, hasten to add here that there is a vast gap to be covered between two terms, `proposed evidence' and "evidence", as the `proposed evidence becomes `evidence' only when it is recorded by the court, as discussed above. 41. In our view, the various important facts on this controversy which we have enumerated above, were not before the learned Single Judge during the arguments of Ajyab Singh's case and, therefore, it escaped notice. 42. It may further be mentioned that in Ajyab Singh's decision (supra), first of all, the question raised was that by virtue of S. 193, Cr. P.C. (Old), there was a bar against the Sessions Court taking cognizance as a Court of original jurisdiction. 42. It may further be mentioned that in Ajyab Singh's decision (supra), first of all, the question raised was that by virtue of S. 193, Cr. P.C. (Old), there was a bar against the Sessions Court taking cognizance as a Court of original jurisdiction. Inspite of amendment of the Code of Criminal Procedure, that bar continues. This proposition raised by the learned counsel, Shri S.R. Bajwa, was sought to be repelled by Shri Bhim Raj Advocate on the ground of two charges made in Section 193, Old Cr. P.C., and on the new procedure contained in S. 319(1) & (2), Cr. P.C. 43. It was in this context that in para 6 the learned Single Judge sitting in Single Bench pointed out as under "Looked from another angle, the result is the same Section 193, new Cr. PC is subject to the exception contained in the words "Except as otherwise expressly provided by this Code". Subsections (1) and (2) of s. 319, new Cr. PC contain new provisions which were not therein the code of 1898. Sub-S. (1) of S. 319, Cr. PC empowers the court to issue processes against any person for the offence which he appears to have committed if it appears from the evidence that such person not being the accused has committed any offence for which he could be tried together with the accused in the case. This is an express provision contained in the Code of Criminal Procedure 1973 and, therefore. S. 193 of the Code is, subject to it. Hence after reading S. 319(1) alongwith s. 193, Cr. PC. I have not doubt in my mind that a Sessions Judge has power to add a person as a co-accused in the case before him even though he has not been committed to the court of Session by a Magistrate under the Code and his name has not been mentioned in the charge-sheet filed by the police, provided it appears to the Judge in the course of an inquiry into or trial of the case from the evidence that proceedings should be initiated against such a person. In view of this legal position, s. 193, New Cr. In view of this legal position, s. 193, New Cr. PC does not impose any bar to the taking of cognizance by the Sessions Judge as a court of original jurisdiction against any person not being the accused, if it appears from the evidence that he has committed an offence for which he could be tried together with the accused in the case committed to it by a Magistrate under the Code." (para 6 of Ajyabsingh decision) 44. After the above conclusion and deduction the learned Judge then considered the important question which is now before us, namely, that without recording of evidence, a Sessions Judge is not competent to issue process against the petitioners for the offence which they appear to have committed, although they were not challaned and committed. This submission was repelled by the learned Single Judge in the following manner: "7. The next contention put forward by Mr. S.R. Bajwa is that under Section 319 Cr. PC the Sessions Judge could proceed against the petitioners for the offences which they appeared to have committed only in the course of any inquiry into, or trial of, an offence, if it appeared to him from the evidence that the petitioners had committed any offence for which they could be tried as co-accused. According to his submission, in the instant case, the Sessions Judge did not record any evidence before issuing processes against the petitioners for the offences which they appeared to have committed and so his order suffered from lack of jurisdiction to proceed against the petitioners on the basis of the evidence collected by the investigating agency. The above contention has no force. The word, Evidence has been defined in Section 3 of the Evidence Act, as follows "Evidence" means and includes (1) all Statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry such statements are called oral evidence (2) all documents produced for the inspection of the court such documents are called documentary evidence. From the above definition, it is evidence that the depositions of witnesses and documents only are included in the term "Evidence". 45. From the above definition, it is evidence that the depositions of witnesses and documents only are included in the term "Evidence". 45. A close study and a concentrated probe with a thorough examination of the reasons given by the learned Judge, extracted above, would show that the three important factors considered in the reasoning's and they are, interpretation of evidence under S. 3 of the Evidence Act, discharge of accused under S. 227, Cr. PC on the basis of police record, charge against an accused under Section 228, Cr. PC on the basis of the statements recorded by the police under S. 161, Cr. PC and the documents filed alongwith the challan. 46. We have already discussed above, that all the three reasons would not lead to the conclusion to which the learned Single Judge has arrived at. The evidence u/s 3 of the Evidence Act means and includes, "All statement, `which the court permits or requires to be made before it by the witnesses'. We have already held that the statements become witnesses when the court permits them to be recorded and that is, the only meaning to be made before it by the witnesses. The term, "made before it by the witnesses" again is very important and it means that the statements which become evidence under S. 3 of the Evidence Act, are those which are made before the court and not before the police. It appears that this important facts of the interpretation of S. 3 of the Evidence Act, so far as the terms, Evidence', is concerned, was not put before the learned Judge. 47. Again, it was not pointed out to the learned Single Judge that in S. 227, Cr.P.C. the term, `consideration of the record of the case and the documents submitted therewith' has been used. This was in contradiction the term, "evidence" used in Section 319, Cr.P.C. Section 228, Cr.P.C is other facts of 227. 47. Again, it was not pointed out to the learned Single Judge that in S. 227, Cr.P.C. the term, `consideration of the record of the case and the documents submitted therewith' has been used. This was in contradiction the term, "evidence" used in Section 319, Cr.P.C. Section 228, Cr.P.C is other facts of 227. In it, the words used are, "after such consideration and hearing as aforesaid", which means "consideration of record of the case and the documents submitted there with" as used in S. 227, Cr.P.C. It is thus patent in S. 227 & 228, Cr.P.C. read with section 226, the record of the case as it existed at that time, which means "proposed evidence" to prove the guilt of the accused" is to be considered, both, at the time of framing the charge, or discharge. It was open to the legislature to permit the court to frame a charge or discharge an accused on the basis of the record of the case constituting the police record and the documents submitted therewith, and plainly the powers of legislature cannot be challenged nor they have been challenged. 48. It was open to the legislature to permit the court to frame a charge or discharge an accused on the basis of the record of the case constituting the police record and the documents submitted therewith, and plainly the powers of legislature cannot be challenged nor they have been challenged. 48. Similarly, it was open to the legislature to insist on some evidence for the purpose of taking cognizance under S. 319, Cr.P.C. and not to permit the court to take cognizance against those accused which were not challaned and not committed by the magistrate solely on the basis of the record of the case or proposed evidence as contemplated by S. 226, S. 227 & S. 228, Cr.P.C. Here again, plenary powers of the legislature to make such a law has neither been challenged nor can be challenged because what should be the quantum and the quality of proof or requirement of the record in the shape of proposed evidence or evidence for the various stages in the criminal case commencing from the filing of the final report, taking cognizance of the accused on its basis under S. 190 Cr.P.C. or accepting discharge of the accused, commitment of the accused on the basis of the police record by the magistrate under S. 209, Cr.P.C. and opening of the case for making out prima facie case on the proposed evidence u/s 226, Cr.P.C. and discharging the accused under S. 227 or framing the charge against the accused under S. 228, Cr.P.C. lies within the competence of the legislature we are, therefore, convinced that a close probe and debate, study and thoughtful examination, thorough utilisation of the words used in Sections 226, 227 & 228 & S. 319, Cr.P.C. and S. 3 of the Evidence Act leave no doubt for any more debate and the deduction and conclusion which we have arrived at, that evidence under Section 319, Cr.P.C. means evidence recorded by the court and not by the police, is the only correct interpretation which we can put to S. 319, Cr.P.C. without doing any violation to the scheme and object of the Evidence Act and the Code of Criminal Procedure. 49. Harjiram's decision (supra) need not detain us further because it was in fact, follow up of Ajyab Singh's decision. 49. Harjiram's decision (supra) need not detain us further because it was in fact, follow up of Ajyab Singh's decision. Another learned Judge of this Court has discussed the provisions of S. 193, Cr.P.C. for taking cognizance by court of Sessions, S. 209, Cr.P.C. for commitment of the case to court of Session, S. 227, Cr.P.C. for discharge S. 228, Cr.P.C for framing of the charge of new Code alongwith Section 319, Cr.P.C. before proceeding against the other persons for the guilt of the offence under the New Cr.P.C. and, then compared with the old Cr.P.C. provisions contained in S. 193, Cr.P.C. alongwith S 195, Ss. 345 and 349, Cr.P.C. The learned Judge then held that S. 319, Cr.P.C. should be read with Section 193, Cr.P.C. In the above background, the learned Judge then discussed the provisions of S. 200, Cr.P.C. (New) and S. 227 (New) and S. 228, Cr.P.C. and then held that since the committal inquiry under the old Cr.P.C. has been done away under the new Cr.P.C. the entire complexion has been changed. 50. Then, thereafter the learned Judge considered the scope of S. 193 of the New Code and discussed the Andhra Pradesh and Patna High Court's decision in para 10. According to him Andhra Pradesh view was over ruled by supreme Court in Yogendra Singh's decision (supra) 51. In all fairness, we would like to extract para 10 to show that the learned Judge was first considering the question, whether in view of S. 193 of the New Code, there is any bar for the Sessions Judge in taking cognizance as a Court of original jurisdiction against the accused other than those named in the order of committal. 52. The learned Judge then relied upon the decisions in Waryam Singh v. State of Punjab, 1978 Cri. L.J. P. 762 , S.S. Choudhary v. State of U.P. & Others, 1978 Cri. L.J.P. 391 . N.N. Punnappa v. State of Karnataka and Other, 1978 Cri. L.J. P. 1551 , and Triniwong Sangtam v. State of Nagaland, (1978) Cri. L.J. NOC 174 (Gauhati) , in which according to the learned Judge, it had been held that the court is competent under Section 319, Code of Criminal Procedure to summon any person other than those who appear to it to have committed any offence and that can be done on the basis of the police record. L.J. NOC 174 (Gauhati) , in which according to the learned Judge, it had been held that the court is competent under Section 319, Code of Criminal Procedure to summon any person other than those who appear to it to have committed any offence and that can be done on the basis of the police record. A perusal of the paras, 11, 12, 13 and 14 of the above decision of Harjiram's case (supra) would show that it has not been made explicit, whether the question which is under debate before us, regarding meaning to be given to the term, `evidence' under Section 319, Code of Criminal Procedure, 1973 was at all debated, discussed and decided in those cases. That being so we are convinced that the above four cases referred by the learned Single Judge in Harjiram's decision are no authorities to support the decision and deductions made in Harjiram's decision and Ajyab Singh's decision regarding the meaning of the word, "evidence" as used in Section 319, Code of Criminal Procedure. 53. However, the learned Judge in Harji ram's decision was precisely ceased of the issue debated us in para 16 wherein he observed as under: "Shri K.C. Gaur, submitted that section 319, if at all, can be attracted only when some evidence has been recorded in the course of inquiry or trial and not prior to that. He urged that in the case before the Supreme Court (supra) statements of two witnesses were recorded and thereafter process was ordered to be issued against Joginder Singh and Ram Singh. In the present case he submitted that stage has not reached so far and the learned Sessions Judge has ordered issue of process only on the application of the public prosecutor on consideration of the police papers. In this connection, it may be stated that in Ajyab Singh's case (supra) this Court has considered this matter and has held that the statement recorded by the police constitutes evidence and can be looked into for the purpose of proceeding against those persons, who are not facing trial. In Ajyab Singh's case (supra) the matter was considered on the alternative basis. In Ajyab Singh's case (supra) the matter was considered on the alternative basis. In para 5 of the judgement the provision of Section 193 was considered and from the angle of section 319, the matter was examined in para 7 and it has been found that the term evidence used in section 319, Cr.P C. includes the statement recorded by the police under section 161, Cr.P.C. and the documents submitted in the court alongwith the challan. Even if it is held that section 319 cannot be made applicable at this stage without recording any evidence at the trial as contended by Shri Gaur Still, in my opinion, under section 193, Sessions Judge has powers to proceed against those persons who are not before him. A combined reading of section 193, 277 and 228, will leave no room for doubt that these persons who are not facing trial, can be proceeded against, if prima facie it is found that such persons have involvement, or are concerned with or are Suspected in the Commission of an offence. Where the Sessions Judge possesses powers of discharge under section 227 with regard to those accused persons who are before him on consideration of the record of the case and documents submitted therewith, then the Sessions Judge, in my opinion, is equally empowered to against those persons who are not before him as he is empowered to take cognizance of an offence under section 193, when the case stands committed to him. As Magistrate takes cognizance of an offence and not against offenders so Sessions Judge also takes cognizance of an offence and not against particular accused persons who are before him. It is true that in the Supreme Court case (supra) the accused persons were added after recording of the two statements, during the course of trial, but still from the observations made by their Lordships of the Supreme Court, it would appear that the accused can be added on consideration of the charge sheet and documents submitted therewith, as in view of the Supreme Court, the Sessions Judge is empowered to take cognizance of an offence, like that of a Magistrate, when the case is committed to him (Para 16) 54. The learned Judge was correct in mentioning that Ajyab Singh's decision is an authority for the proposition that the term, evidence' used in S. 319, Cr. The learned Judge was correct in mentioning that Ajyab Singh's decision is an authority for the proposition that the term, evidence' used in S. 319, Cr. p c. included the statements recorded by the police under Section 121 cr. p.c. and the documents submitted in the court alongwith challan. He then after making a mention of Ajyab Singh's decision, made an alternative argument that S. 193, Cr. P.C. empowers the Sessions Judge to take cognizance of offence against those accused who were not brought before him. This deduction was made on the combined reading of Ss. 193, 227 & 228 Cr. P.C. A negative argument was adopted by the learned Judge that since under S. 227, Cr. P.C. on the basis of the police record, an accused can be discharged, why should he not be held to be empowered to proceed against those persons who were not before him on the basis of that record alone as he is empowered to take cognizance under S. 193, Cr. P. C. when the case stands committed to him. While doing so, he also took support from Yogendra Singh's decision (supra) when he observed "but still from the observation made by their Lordships of the Supreme Court, it would appear that the accused can be added on the consideration of the charge sheet and documents submitted therewith, as in view of the Supreme Court decision, the Sessions Judge is empowered to take cognizance of the offence, like that magistrate, when the accused is committed to him." 55. A close consideration of the above reason given by the learned Single Judge in Harijiram case (supra) to show that he was not certain about the meaning of the term, "evidence" used in S. 319, Cr. P.C. and due to that he relied upon Ajyabsing's decision (supra) only. But he was certain that, under S. 193, Cr. P.C. a court of Session can take cognizance as a court of original jurisdiction and due to that the moment case is committed the court can take coginzance against an accused who is not before him. also, because a court is empowered to take cognizance of an offence which is not committed and not against particular accused persons who are before him. In taking above interpretation of S. 193, Cr. also, because a court is empowered to take cognizance of an offence which is not committed and not against particular accused persons who are before him. In taking above interpretation of S. 193, Cr. P.C. the learened Judge has relied heavily on Yogendra Singhs decision wherein their Lordships of the Supreme Court observed as under : "The expression `any person not being the accused' occurring in S. 319 clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like S. 319 (1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the expression." "Both under S. 193 and S 209 the commitment is of`the case' and not of the accused where as under the equivalent provision of the old Code Viz S. 193 (1) and S. 207 A it was "the accused who was committed and not `the case' Under S. 193 read with S. 209 when a case is committed to the court of Session in respect of an offence the court of Session takes cognizance of the offence and not of the accused and one the Sessions court is properly seized of the case as a result of the committal order against some accused the power under S. 319(1) can come into play and such Court can and any person, not an accused before it,as an accused and direct him to be tried alongwith the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial." 56. It would be seen from the above observations of their Lordships of the Supreme Court that they were considering the distinction between Old Code, S. 193(1) and 207A where accused was committed and not the case in contradiction to new S. 193 read with S. 209, Cr.PC where a case is committed. Their Lordships were considering the implication of the bar of S, 193, Cr.PC and while doing so, they held that S, 193 would not be bar if additional personal persons are required to be summoned on the basis of evidence led during the trial. Their Lordships were considering the implication of the bar of S, 193, Cr.PC and while doing so, they held that S, 193 would not be bar if additional personal persons are required to be summoned on the basis of evidence led during the trial. In making the above deduction, their Lordships asserted that if this interpretation is not given Section 319(1), Cr.PC would be rendered nugatory. Their Lordships also added that S. 319(4) enacts a deeming provision due to which formal commitment order is dispensed with for the newly added accused. 57. We are unable to read from the above observations of their Lordships of the Supreme Court that they have laid down that cognizance can be taken under S. 193, Cr.PC on commitment against accused which have not been challaned or committed without recourse to the powers under S. 319(1) Cr.PC. In para 4, their Lordships assumed for the purpose of S. 319, that during the trial in Sessions court, evidence comes forth showing involvement of some offenders who are not before the court. 58. In para 5, their Lordships discussing the recommendations of the law Commission observed that the Commission proposed that a new procedure would be incorporated providing that there would be no difference in the taking cognizance if a new person was added as an accused during the proceedings and that is how Cl. (b) of sub-s. (4) of S 319 came to be enacted as set out above which incorporated a deeming provision. The relevant observations made in para 6 of Yogendra Singh's decision (supra) run as under: "5. Under the 1898 Code the equivalent provision was to be found in Section 351(1) under which it was provided that any person attending a criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned, sub-s. (2) provided that is such a situation the evidence shall be reheard in the presence of the namely added accused. With regard to this old provision, the law commission in its 41st Report (vide para 24, 80) observed that the power conferred upon a criminal court thereunder could be exercised only if such person happened to be attending the Court and he could then be detained and proceeded against. But there was no express provision in S. 351 for summoning such a person if he was not present in Court, and therefore, a fairly comprehensive provision was recommended which now forms the subject matter of the present S. 319(1). The law Commission further observed in its said Report (vide para 24, 80) that the old Section 351 assumed that the Magistrate proceeding under it had the power to taking cognizance of the new case but did not say in what manner cognizance was taken by the magistrate and the question was whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate's own information Under S. 190(l)(c) or only in the manner in which cognizance was first taken of the offence against the other accused and the question was important because the methods of inquiry and trial in the two cases differed; the Law Commission felt that the main purpose of this particular provision was that the whole case against all known suspects should be proceeded with expeditiously and convenience required that the cognizance against the newly added accused should be taken in the same manner as against the other accused and the law commission, therefore, proposed that a new provision should be incorporated providing that there will be no difference in the mode of taking cognizance if a new person was added as an accused during the proceedings and that is how, Cl. (b) of sub-s. (4) of S. 319 came to be enacted as set out above which incorporates a deeming provision. The above recommendation of the Law Commission in its 41st Report clearly brings upon a criminal court under the present S. 319(1)." 59. The crucial observations of their Lordships in respect of respective scope of S 193 read with Section 209, Cr. The above recommendation of the Law Commission in its 41st Report clearly brings upon a criminal court under the present S. 319(1)." 59. The crucial observations of their Lordships in respect of respective scope of S 193 read with Section 209, Cr. PC and S. 319(1) Cr.PC and all the three read together finds place in para 8 (Yogendra Singh's decision) which reads as under : "it will thus appear clear that under S. 193 read with S, 209 of the Code when a case is committed to the court of Session in respect of an offence the court of Sessions Judge takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under S. 319 (1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. Looking at the provision from this angle there would be no question of reading S.319(1) subject or subordinate to S. 193." 60. The conclusion drawn by their Lordship was that S. 319(1), Cr. P.C. is not subjected or subordinate to S. 193, Cr.P.C. 61. Our reading of Yogendra Singh's decision (supra) results in a deduction to this extent only that bar of Section 193, Cr. P.C. is not applicable when the court invokes the powers under S. 319, Cr. P.C. in other words, prohibition contained under S. 193, Cr.P.C. for making commitment as a sine qua non for proceeding against any accused in Session trial has been made subject to the exception of S. 319, Cr. P.C. which is otherwise also patent on a bare reading of Section 319, Cr. P.C. 62. We are enable to read Yogendra Singh's decision by a complete reading of Sections 193, 31 9, 209, 226, 227 and 228, Cr. P.C. that in the manner it have been read by the learned Judge in Harjiram's decision and, therefore, we have got no hesitation in holding that in view of the above discussion and our findings, Harjiram's decision as well as Ajyab Singh's case (supra) cannot be treated as good Law, so far as interpretation of Section 319, Cr. P.C. that in the manner it have been read by the learned Judge in Harjiram's decision and, therefore, we have got no hesitation in holding that in view of the above discussion and our findings, Harjiram's decision as well as Ajyab Singh's case (supra) cannot be treated as good Law, so far as interpretation of Section 319, Cr. P.C. is concerned. 63. The result of the above discussion is that on a thorough examination of all the relevant provisions of the twin laws, the Indian Evidence Act & Code of Criminal Procedure, we hold that the term, `evidence' as used in S. 319, Cr. P.C., means the statements of witnesses recorded before the court during an inqurity or trial and does not include the statements recorded by the police under S. 161, Cr. P.C. or the statements recorded at the instance of the police by the magistrate under S. 164, Cr. P.C. and the statements recorded by the magistrate under S. 202(2), Cr.P.C. and the papers submitted by the police in the form of any other documents, simplicitor. However, it is made clear that the term, `evidence' should not be confused with the term, `proved' and the cognizance can be taken under S. 319, Cr. P.C. by a magistrate or a court of Sessions, as the case may be, even on the basis of single statement recorded before it, if the court is of the opinion that the person against whom some material has come in that statement, deserves to be called for facing trial and it would not be necessary at that stage to hold that the evidence proves the guilt against the accused as that would be the stage of final adjudication. In other words, like Section 190 or S. 228, Cr. P.C. if from the Statement of single witness recorded by the magistrate or the Sessions Judge during the inquiry or the trial, he is of the opinion that some person who has not been challaned or not committed or, both, still deserves to be called and summoned for facing trial as there is prima facie sligtest evidence against him which may finally connect him with the crime then the court would be empowered to summon him under S. 319 Cr P.C. and put him into trial. 64. 64. Since it is admitted by all the learned counsel for the rival parties that in the present cases the orders under S. 319, Cr. P.C. had been passed without recording of statement of single witness, all the impugned orders are quashed. However, it is made clear that the moment any witness is examined and the above mentioned condition is fulfilled, this judgment would not debar the lower court from passing a fresh order under S. 319, Cr. P.C. against the persons who have been summoned earlier. 65. The result is that all these revision petitions are accepted as indicated above. The record of the cases should be sent back to the trial courts with the direction that they should proceed expeditiously with the trials which have been withheld so far on account of stay order in these cases.Revision Accepted. *******