Judgment :- 1. The simple but interesting and useful question posed for judicial scrutiny in this petition filed under S.482 of the Code of Criminal Procedure is concerning the scope and ambit of the powers of criminal courts under S.319 of the Code to proceed against any person, not being an accused, who appears to have committed the offence. The Section may with advantage be extracted here: "(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 commuted any offence for which such person could be 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 when he appears to have committed. (4) Where the Court proceeds against any person under sub-s. (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provision of clause (a), the case may proceed as if such person bad been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 2. CC 69 of 1985 pending before the Judicial First Class Magistrate, Cannanore was charge-sheeted by the police only against three accused (respondents 3 to 5). Second respondent is the de facto complainant, who implicated the petitioner also in the first information statement, but the police omitted him. During trial the Magistrate examined second respondent as pw.1 (there is a dispute whether he was examined in chief alone or fully examined). Thereafter on the application of the 2nd respondent the Magistrate ordered process against the petitioner as fourth accused on the satisfaction from the evidence that he also appears to have involvement in the crime. Crl. RP 107/86 filed by the petitioner was dismissed by the Sessions judge and hence he requests this Court to quash the order in exercise of the inherent powers. 3. Crl. RP 107/86 filed by the petitioner was dismissed by the Sessions judge and hence he requests this Court to quash the order in exercise of the inherent powers. 3. Many interesting aspects of the matter were discussed at the Bar and I am considering them only by way of academic importance. Even without considering those aspects this petition has only to be dismissed because no situation has arisen justifying interference under the inherent powers. The Magistrate was only acting within his powers under the Code on his judicial satisfaction that there are grounds for proceeding against the petitioner. Against the order the revisional jurisdiction was resorted to and failed. The satisfaction of the Magistrate or the opinion formed by him, if based on materials mentioned in S.319(1), is normally not liable to be disturbed even by the revisional court on the sufficiency of the material. Proceeding under S.319(1) does not mean that there is a finding that he committed the offence. The order only means that the evidence disclosed materials for taking cognizance of the offence as against him also and there ace sufficient grounds to issue process against him. As provided in S.319(4) (a) the effect of such an action is to have a fresh trial as against him in which event the witnesses examined will have to be re-heard. No question of prejudice is involved except the ordeal of a trial in which he could show his innocence if that is the position. The order passed with jurisdiction and confirmed by the revisional court does not involve any question of illegality and there is no abuse of the process of court to be prevented or ends of justice being otherwise secured. Powers under S.482 could be exercised only sparingly in exceptional cases and it is not intended to authorise the High Court to sit in judgment over judicial pronouncements in order to find out their correctness or sufficiency of materials on which they are based. 4. The Section appears in Chap.24 dealing with general provisions as to inquiries and trials as distinguished from Chap.14, Chap.15 and Chap.16 relating to initiation of proceedings, complaints to Magistrates and commencement of proceedings before Magistrates. Cognizance and issue of process are dealt with in those chapters. This particular provision in Chap.24 really confers an extraordinary power on criminal courts. 4. The Section appears in Chap.24 dealing with general provisions as to inquiries and trials as distinguished from Chap.14, Chap.15 and Chap.16 relating to initiation of proceedings, complaints to Magistrates and commencement of proceedings before Magistrates. Cognizance and issue of process are dealt with in those chapters. This particular provision in Chap.24 really confers an extraordinary power on criminal courts. Therefore it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person against whom action has not been taken. (See S. S. Khanna v. Chief Secretary, Patna (AIR 1983 SC 595) in which the observation in Joginder Singh v. State of Punjab (AIR 1979 SC 339) was quoted with approval). 5. The Section (S.319) clearly applies to all criminal courts including a Sessions Court. Sessions Court also is having the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused. Both under S.209 and 193 commitment is of the 'case' and not of the 'accused' as distinguished from S.193(3) and S.207A of the old Code where commitment was of the 'accused' and not the 'case'. For committing a case there must be an offence and involvement of a person who committed the same. Even though the case is committed, cognizance taken is of the offence and not the offender. Once the case in respect of the offence qua the accused, who are before the Court, is committed and cognizance is taken the embargo under S.193 regarding taking cognizance only by committal goes. Summoning additional persons will then be regarded as incidental to the cognizance already taken on committal and as a part of the normal process that follows. A fresh committal of such person is not necessary. Further, S.319(4)(b) enacts a deeming provision in that behalf dispensing with the formal committal order by providing that the person added will be deemed to have been an accused even when cognizance was taken first. Cognizance is of the offence and not the offender and it is the duty of the court to find out who the offenders are Proceedings could be instituted and cognizance taken also against persons not known at that time. Cognizance is of the offence and not the offender and it is the duty of the court to find out who the offenders are Proceedings could be instituted and cognizance taken also against persons not known at that time. This is clear if the provisions of S.190 of the Code are read along with the definition of complaint in S.2(d) which include allegations against unknown person also. Making the unknown persons known is therefore within the powers of the court. When such persons become known by the evidence during inquiry or trial it is not only the right but also the duty of court to bring them on record and proceed against them in an attempt to bring them to justice. (See Joginder Singh's case AIR 1979 SC 339). There cannot therefore be any dispute regarding the powers of court to bring the person under S.319(1). 6. Then the question was whether a person who was also complained of but exonerated by the police as a result of his innocence disclosed by investigation could be brought is under S.319(1). In this case the first information statement given by the second respondent implicated the petitioner also but in the police report he was not made an accused. But that cannot be a bar to the powers of court under S.319(1). What the Section says is 'any person not being the accused'. Investigation alone is the province of police. It is true that it is within the powers of the investigating agency to assess the materials collected during investigation to decide whether the accused has to be placed for trial or a refer report has to be filed. But once when a final report is filed it is within the powers of court to decide as to how to proceed with it. Court is not bound by the opinion formed by the investigating agency. The only conditions required far the applicability of S.319(1) are (1) it must appear from the evidence during inquiry or trial that, such person appears to have committed the offence and (2) the offence is one for which he could be tried along with the other accused. 'Any personnel being an accused' cannot exclude from its operation a person who has been released by the police under S.169. 'Any personnel being an accused' cannot exclude from its operation a person who has been released by the police under S.169. Even persons dropped by the police during investigation could be roped in under S.319(1) if evidence showing their involvement comes before court (See Joginder Singh's case AIR 1979 SC 339). 7. Then the argument turned on the question of 'evidence' mentioned in S.319(1). The word 'evidence' has not been defined in the Code. Evidence Act S.3 defines 'evidence' as meaning and including all statements made before court by witnesses, in relation to matters of fact under enquiry and all documents produced for inspection of court. In this case we ate concerned only with the first category namely oral evidence. That category includes only statements before court by witnesses. It was argued that PW.1 was the only witness examined and he was not cross-examined (but this fact is disputed). The learned counsel for the petitioner told me that 'evidence' mentioned in S.319(1) cannot take in the deposition of a witness during inquiry or trial who was not cross-examined and re-examined because the deposition will be complete only when these processes are undergone. 8. In support of this contention he relied on two decisions, Phani Bhutan v. Sibakali Basu (AIR 1952 Calcutta 218) and John Manjooran v. Stephen (1973 KLT 376). The first decision was followed in the second and both decisions held that if a witness is not examined in full in chief and also allowed to be cross-examined, and re-examined that evidence cannot be considered except in the circumstances mentioned in S.33 of the Evidence Act which do not exist in this case. I do not think those decisions will be applicable for our purpose. In the first case pws. 3 and 4 were not tendered for cross-examination and hence their evidence expunged even though they were in favour of the defence. In the second case the evidence of dw. 3, who was examined in chief but not tendered for cross-examination, was expunged though it was favourable to the prosecution. The first case was a revision against conviction and the second an appeal against acquittal. With due respect to the learned judges who decided those cases, I disagree with their views for reasons stated hereunder. But on that count the case need not be referred to a larger Bench since these decisions could be distinguished on facts. The first case was a revision against conviction and the second an appeal against acquittal. With due respect to the learned judges who decided those cases, I disagree with their views for reasons stated hereunder. But on that count the case need not be referred to a larger Bench since these decisions could be distinguished on facts. Cross-examination is a weapon given to the opposite party to challenge the veracity of the evidence given by a witness in chief-examination. A party entitled to cross-examine a witness, but did not get an opportunity for that purpose can say that the evidence cannot be acted upon and the court is bound to accept that contention. Question of re-examination will arise only when the witness is cross-examined. The opposite party can refuse to cross-examine a witness whose evidence is favourable to him. So also there may be cases where the opposite party wanted to cross-examine a witness but he did not get an opportunity for that purpose. In the first case the opposite party is bound by the evidence. In the second case he has the right to say that the evidence cannot be considered. In both these cases the party who examined the witness has no option to say that the evidence has to be expunged. In the first case the evidence has to be accepted as a whole and in the second it has to be accepted subject to the option of the opposite party. Only thing is that if the opposite party opts to accept the evidence it will have to be considered as a whole. There is no question of accepting the evidence on the option of the party who brought the witness. 9. In those two cases the question was acceptance of the evidence as between parties on record entitled to cross-examine the witnesses. Here that question does not arise. When pw.1 was examined and when the impugned order was passed the petitioner was not an accused and he was not entitled to cross-examine the witness. Even if the other accused who were then on the array of parties, did not cross-examine the witness it is none of his concern. Here that question does not arise. When pw.1 was examined and when the impugned order was passed the petitioner was not an accused and he was not entitled to cross-examine the witness. Even if the other accused who were then on the array of parties, did not cross-examine the witness it is none of his concern. So far as the petitioner is concerned the examination of the witness for the purpose of treating it as evidence under S.319(1) had only the effect of examination under S.200 or 202 for the formation of opinion whether or not there are sufficient grounds for proceeding against him He was nowhere in the picture at that time and be was not entitled to Cross-examine the witness also. Refusal of cross-examination by others or denial of opportunity to them for that purpose is not a matter of which he is concerned. So far as ground to proceed against him is concerned the question was only between the complainant and the Magistrate. The satisfaction required to proceed against him under S 319(1) is just like the one under S.204,228 or 240. Petitioner became an accused only when process was issued to him. Thereafter there will be retrial under S.319(4) (a)and the petitioner will be getting an opportunity to cross-examine the witness also. At the stage of S.319(1) the question is only taking cognizance of the offence against him and proceeding against him. Therefore those decisions are not of any avail to the petitioner even though what is stated in S.319(1) is evidence during inquiry or trial. The question whether the court was correct in accepting the evidence for the purpose of forming an opinion under S.319(1) in such a situation falls within the domain of appreciates of evidence to be done finally at the end of the trial before pronouncing upon the guilt or otherwise of the petitioner after he is proceeded against. (See Sri Mahant Amar Nath v. State of Haryana (AIR 1983 SC 288) 10. Petitioner had another contention that before forming an opinion under S.319(1) the Magistrate had to examine not only the de facto complainant but some more witnesses also. (See Sri Mahant Amar Nath v. State of Haryana (AIR 1983 SC 288) 10. Petitioner had another contention that before forming an opinion under S.319(1) the Magistrate had to examine not only the de facto complainant but some more witnesses also. I do cot think that there is any basis for this contention also because what is required under S.319(1) is only the satisfaction of the Magistrate for which specific guidelines are not given except saying that it must be on the basis of evidence in the course of inquiry or trial Sri. Mahant Amar Nath's case (AIR 1983 SC 288) is a case in which the police omitted four persons whose involvement in the crime was spoken to by all the witnesses examined during investigation. On the application of one of the injured, the Sessions Judge, after committal, issued process to all the omitted four persons under S.319(1) after examining only one of the injured persons among the witnesses examined during investigation. Even the evidence of that solitary witness given before court during trial, on which the Sessions Judge acted, contained many details which were not given in his S.161 statement. The Supreme Court said that it is only a matter of appreciation of evidence which could be challenged only at the final state after trial. 11. One other aspect on which the parties joined issue before me was whether the 'evidence' mentioned in S.319(1) includes statements of witnesses examined before court or documentary evidence proved before court only or whether they also include materials collected during investigation and produced before court. This question as such does not arise for a decision of this case. But I shall consider that aspect also since it was argued. I have already adverted to the definition of 'evidence' in the Evidence Act and also said that what is mentioned in S.319(1) is "in the course of any inquiry into or trial of" and "it appears from the evidence". Evidence must be such as is tendered during inquiry or trial. Oral evidence cannot include police statements. Such statements under S.161 could be used only for the limited purpose mentioned in S.162 and such statements cannot be termed'evidence'. Documents will become evidence only when they are proved in an inquiry or trial. 12. Evidence must be such as is tendered during inquiry or trial. Oral evidence cannot include police statements. Such statements under S.161 could be used only for the limited purpose mentioned in S.162 and such statements cannot be termed'evidence'. Documents will become evidence only when they are proved in an inquiry or trial. 12. It is true that the Court can consider the records of the case and the documents submitted therewith by the police under S.173(2) to form an opinion under S.228 that there is sufficient ground for presuming that the accused has committed the offence in order to frame charge or to discharge the accused under S.227 on the opinion that there is no sufficient ground for proceeding. What is said therein is "upon consideration of the record of the case and the documents submitted therewith". At that stage what is available to the court is only the police records because enquiry or trial did not begin. These two Sections have avoided the word 'evidence' used in S.319(1). In answer to this it was pointed out that the word 'evidence' is used in S.319(1) only rather loosely as is evident from S.173(8) and 226 of the Code. It is true that the word 'evidence' is used in those sections. But the 'evidence' mentioned in those sections is not evidence recorded during inquiry or trial and it refers only to materials collected during investigation. They are not described as evidence during inquiry or trial. S.319(1) states otherwise. The use of that word in S.173(8) and 226 could only be the result of legislative inadvertence as pointed cut in the decision in Gunaram Tanti v. State of Assam (1883 Crl. Q 289). At those stages the evidence available are materials collected by investigation which are not items of evidence coming within the scope of S.319(1). Those provisions cannot have the effect of including police statements within the meaning of "evidence" 'in the course of any inquiry into, or trial of mentioned in S.319(1). The words "commenced afresh, and the witnesses re-heard" appearing in S.319(4)(a) gives sufficient indication of the legislative intention that the right under S.319(1) has to be exercised only after the witnesses are heard, that is, their evidence had been laid in the court. The words "commenced afresh, and the witnesses re-heard" appearing in S.319(4)(a) gives sufficient indication of the legislative intention that the right under S.319(1) has to be exercised only after the witnesses are heard, that is, their evidence had been laid in the court. What S.319(1) mentions is not satisfaction at the time of taking cognizance under S.190 or proceeding under S.204 but at a later stage during inquiry or trial on the basis of evidence brought to court at those stages. Otherwise the position will be that after cognizance and issue of process, at every stage during inquiry or trial, the court can go on looking into the police records and add accused without any further evidence brought before it during inquiry or trial. That cannot be what the legislature intended. 13. Though not directly Delhi Municipality v. Ram Kishun (AIR 1983 SC 67) said in this respect "Prosecution can at any stage produce evidence which satisfies the court". What is stated in Joginder Singh's case (AIR 1979 SC 339) quoted with approval in S. S. Khanna's case (AIR 1983 SC 595) is "if the prosecution can at any stage produce evidence which satisfied the court". On the basis of the above discussions, I am in agreement with the views expressed in Gunaram Tant's case (1983 Crl. Q 289) that the evidence referred to in S.319(1) is evidence produced at the inquiry or trial and not the evidence collected during investigation. Evidence produced at the stage of inquiry or trial may include in given cases such of the materials collected during investigation and proved as evidence during inquiry or trial. It is not their collection during investigation that counts, but their proof as evidence during inquiry or trial. In any view of the matter the petitioner cannot successfully challenge the orders in a proceeding under S.482. He will have to stand trial. The petition is without any merit and it is hereby dismissed.