JUDGMENT 1. - The learned Judicial Magistrate No. 1, Ajmer under his order dated April 27, 198) refused to take congnizance of an offence under section i81, IN- against the accused petitioner, and dismissed the application moved before him under section 319, Cr PC by accused Shrawan. In that application, the accused prayed that cognizance of an offence be also taken against the accused-petitioner. 2. Shri Sharma challenged the aforesaid order of the Magistrate in a Criminal Revision No. 22 of 1986 before the learned Sessions Judge, Ajmer. The learned Sessions Judge under his judgment dated July 4, 1986, allowed the revision petition and set aside the order of the learned Judicial Magistrate and ordered to take cognizance under section 380. IPC and proceed with against him as per the provisions of law. The aforesaid order of the learned Sessions Judge has been challenged by the learned counsel for the petitioner on the ground that the same could not have been made because the accused-petitioner, Om Prakash, cannot again be examined as a wetness against himself and therefore, it was not permissible under section 319, Cr PC and the order is against the provisions of law. 3. Shri Rameshwar Lal Sharma Saraf, the father of the petitioner lodged a first information report No. 9310 dated 22th June, 1980, in Police Station, Kotwali, Ajmer. In the said report, it was stated that the petitioner, his son, was studying in Class VIIIth and when on 19th June, 198 , he opened a box containing gold ornaments he found a few ornaments were missing. He enquired from his son Om Prakash, petitioner, who first avoided and when he was rebuked he revealed that Sharavan, non-petitioner No 2 accused had been harassing him and threatening him of assaulting and beating for a long time, so he, out of fear of assault and beating from Sharavan, took out the ornaments one by one whenever be was asked by Sharavan to do so. He delivered all those ornament., to Sharavan 4. It appears that after the above interrogation h. the father of the accused-petitioner the police registered a case after inviting won and filed two charge-shetts against Sharavan, one under Section 380 and 411, IPC and the other under Section 363, IPC. In Case NJ. He delivered all those ornament., to Sharavan 4. It appears that after the above interrogation h. the father of the accused-petitioner the police registered a case after inviting won and filed two charge-shetts against Sharavan, one under Section 380 and 411, IPC and the other under Section 363, IPC. In Case NJ. 34/81 under Sections 380 and 411, IPC, the learned Judicial Magistrate, Ajmer against the accused-petitioner framed a charge-under Section 411, IPC and as many as three witnesses, including Om Prakash, the petitioner, were examined. At this stage, on behalf of the accused non-petitioner No. 2 an application under See. 319, Cr.P.C. praying for taking cognizance against the petitioner under Section 380, IPC, was filed. The learned Judicial Magistrate, under his order dated 27th April, 980, rejected the application of the petitioner under Sec 319, Cr.P.C. But on a revision petition the learned Sessions Judge, allowed it and ordered to take cognizance against the petitioner under Section 380 IPC and to proceed with against him as per the provisions of law. From the narration of facts, it can be said that Om Prakash is a prosecution witness, rather he was a very important witness He was examined and in his examination he stated that it was at the instance of accused Sharavan under threat given by him, he used to take the ornaments from his house and used to deliver the same to Sharavan. The learned Magistrate refused to take cognizance and, as stated earlier, on revision having been filed, the order was reversed. 5. So far as this Court is concerned, the point is no longer res integra. Under Section 319(1), Cr.P.C. so far as the evidence is concerned, 'evidence' means the statement of the witnesses as recorded by the Court, and the same would not include a police statement. Thus, before Section 319, Cr. PC can be attracted, the necessary preconditions are that there must be evidence that any person not being the accused has committed any offence; secondly such an offence should be one for which such person could be tried together with the accused. Sub-section (4) of Section 319, Cr. PC further provides, where the Court proceeds against any person under sub,section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (b) subject to the provisions of Cl. Sub-section (4) of Section 319, Cr. PC further provides, where the Court proceeds against any person under sub,section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (b) subject to the provisions of Cl. (a) the case may proceed as if such persons had been accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. Admittedly, the petitioner cannot be compelled to appear as a witness against him. In other words, so far as the petitioner is concerned, the proceedings in respect of him cannot commence afresh because one of the most important witnesses in this case cannot be examined. Not only this, from the first information report at the time of the alleged offence the age of the petitioner was 15 years. The petitioner is thus covered under Section 2 (d) of the Children Act, 1970. A child within the meaning of Sec 2 (d) of that Act has to be tried by a Children Court and, therefore, the petitioner even if Sec 319 of the Code would have been applicable, could not be tried jointly with Sharavan. In Easatulla Mian alias Praminik, (AIR 1925 Cal 104) , it was held that the conviction of a discharged co-accused on his own evidence as a prosecution witness is improper. Thus, before sec 319, can be invoked, to me, it appears that there must be some other evidence other than of the person who is said to have committed an offence, alongwith one. Thus, as already stated earlier, admittedly, it was on the statement of Om Prakash the petitioner, that the learned Addl. Sessions Judge, has ordered that he should be tried under Section 380, IPC. Viewed from any angle the order of the Addl. Sessions Judge cannot be upheld 6. Consequently, the revision petition is partly allowed and the order of the learned Sessions Judge is set aside and the order of the learned Judicial Magistrate is restored.Revision party allowed. *******