JUDGMENT D. P. Sood, J,—In this criminal miscellaneous petition, under section 482 of the Code of Criminal Procedure (the Code for short), the only question involved for the determination of this court is : "Whether a Magistrate without itself recording evidence after the framing of the charge, can summon a person not named in the police report presented under section 173 of the Code to stand trial alongwith those already named therein, in exercise of powers conferred by section 319 of the Code.?" This moot question of law arises in the context of the following allegations : 2. A dispute arose in between the parties pursuant to which Smt. Sarupi Devi lodged a report in the police on the same day involving Smt. Sharda Devi (named in the police report) and also her husband, Ram Sarup, not named therein, having participated in the commission of the offence of assaulting her and thereby voluntarily causing hurt father. The police investigated the matter and filed challan under section 173 of the Code before the Magistrate against Smt. Sharda Devi accused alone, for the commission of the offence under sections 325 and 506, I. P. C. The Magistrate took cognizance and in his opinion there existed sufficient grounds for proceeding against Smt, Sharda Devi. He, therefore, issued process against said Smt. Sharda Devi. She put in appearance before the court, charge was framed against her and the case was then adjourned for recording the prosecution evidence, it being a warrant case. 3. The prosecution thereafter moved an application under section 319 of the Code with a prayer that Shri Ram Sarup be also ordered to be impleaded as co-accused in the case as there is sufficient material collected by the police which is exhibited by the challan to prima facie hold the accused liable for (he alleged offence It was averred that inadvertantly his name had not been shown as accused in the challan so filed before the court. 4. The application was strongly resisted by accused Sharda Devi through her counsel. However, the learned Magistrate after going through the challan and the documents annexed thereto, concluded the existence of a prima facie case and directed the issuance of process against Ram Sarup, husband of Smt Sharda Devi. 4. The application was strongly resisted by accused Sharda Devi through her counsel. However, the learned Magistrate after going through the challan and the documents annexed thereto, concluded the existence of a prima facie case and directed the issuance of process against Ram Sarup, husband of Smt Sharda Devi. In this manner the trial Court exercised its power under section 319 of the Code without recording evidence, vide order dated 5 9-1992 which was unsuccessfully assailed in revision. The learned Sessions Judge upheld the view taken by the learned Magistrate, vide his order dated 15-6-1994. In the instant petition, the newly added accused, namely, Ram Sarup has sought the quashing of the order passed by the trial Court in the exercise of extraordinary jurisdiction of this court. 5. Shri G. D Verma, learned Counsel for the petitioner, has vehemently contended that unless evidence was recorded during the course of trial, the Magistrate has no jurisdiction under section 319 of the Code to take cognizance and implead the petitioner as co-accused solely on the basis of material collected in the course of investigation and appended to the report forwarded under section 173 of the Code in view of the clear mandate of section 193 of the Code. The sole question which arises for consideration in the back-drop of the aforesaid facts is whether the learned Magistrate was justified in law in invoking section 319 of the Code at the stage at which the proceedings were pending before him, solely on the basis of documents including the statements recorded under section 161 of the Code during investigation without commencing trial and recording evidence therein. 6. On the contrary, Shri H. L. Karwa, learned Assistant Advocate General, has contended that the order regarding impleadment of the petitioner does not in any way cause prejudice to him inasmuch as section 319 of the Code lays down a procedure for doing so It is the duty of the court to interpret the provision to further the ends of justice and not to frustrate on mere technicalities. It is contended that the function of the court is only to expound the law and not to legislate, nontheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. It is contended that the function of the court is only to expound the law and not to legislate, nontheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. Thus according to him, in such circumstances, it is the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute. The learned Assistant Advocate General has attempted to justify the impugned order on the above proposition. 7. Record of the case has been carefully examined Record shows that in the instant case charge against Smt. Sharda Devi was framed by the learned Magistrate on 17-2-1992 and application for impleading the petitioner was moved by the State on 4-4-1992. whereas the date for recording the statement of prosecution witnesses was fixed for 6-4-1992 It is well settled that the responsibility of framing the charge is that of the court and it has to judicially consider the question of doing so Thus without fully adverting to the material on record, the court cannot blindly adopt the decision of the prosecution Instant case is a warrant case Process is issued under section 204 of the Code when the Magistrate forms an opinion regarding the existence of a prima facie case against the accused, whether named or not named in the challan, from the material collected by the police and other documents after considering them, Thereafter in a warrant case instituted on a police report, like the instant one, he has to satisfy himself whether he has complied with the provisions of section 207 of the Code. Under section 238 of the Code the documents are to be given at the commencement of the trial when the accused appears or is brought before the Magistrate, Therefore, obviously, the trial under this section begins as soon as the accused appears or is brought before a Magistrate. 8. Now the scope of section 319 of the Code has been exhaustively considered in the case of Krishun Singh v. State of Bihar, 1993 Cr LJ 1700. It would be pertinent to detail paras 11 and 12 thereof at this stage: "11. 8. Now the scope of section 319 of the Code has been exhaustively considered in the case of Krishun Singh v. State of Bihar, 1993 Cr LJ 1700. It would be pertinent to detail paras 11 and 12 thereof at this stage: "11. On a plain reading of sub-section (i) of section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already name I by the police. Even a person who has earlier been discharged would fall within (he sweep of the power conferred by section 319 of the Code. Therefore, stricto sensu, section 319 of the Code cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in the commission of the crime alongwith those already sent up for trial by the prosecution. 12. But then it must be conceded that section 319 covers the post-cognizance stage where in the course of an inquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. Section 319 can be invoked both by the Court having original jurisdiction as well as the Court to which the case has been committed or transferred for trial. The sweep of section 319 is, therefore, limited, in that, it is an enabling provision which can be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it. The sweep of section 319 is, therefore, limited, in that, it is an enabling provision which can be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it. If this is the true scope and ambit of section 319 of the Code, the question is whether there is any other provision in the Code which would entitle the Court to pass a similar order in similar circumstances The search for such a provision would be justified only on the premises that section 319 is not exhaustive of all post-cognizance situations Now as pointed out earlier section 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded in the course of an inquiry or trial. This may happen not merely in cases where despite the name of a person figuring in the course of investigation the investigating agency does not send him up for trial but even in cases where the complicity of such a person comes to light, for the first time in the course of evidence recorded at the inquiry or trial. Once the purport of section 319 is so understood it is obvious that the scope of its operation or the area of its play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the inquiry or trial. Thus the section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial alongwith others arraigned before the Court." 9. Applying the above said dictum laid down by the apex Court, to my mind the submissions made by the learned Counsel for the petitioner have substance. Once the court has applied its mind to the material placed before it and framed charge against the accused, he can implead the new accused only after recording the evidence and not before. I am in agreement with the view taken by Ms. Justice Kamlesh Sharma, J., a learned Single Judge of this court, in the case of Tulsi Ram v. State of H. P. Cr. M. P. (M) No. 1054 of 1992 and Cr. I am in agreement with the view taken by Ms. Justice Kamlesh Sharma, J., a learned Single Judge of this court, in the case of Tulsi Ram v. State of H. P. Cr. M. P. (M) No. 1054 of 1992 and Cr. M. P (M) No. 1113 of 1992, decided on 9-12-199 Z. None of the courts below has adverted to the fact that the charge had been framed on the material emerging from the challan put up before the court and the case had then been adjourned for recording the evidence of the prosecution witnesses. After doing so a peculiar situation had arisen to which section 319 could be attracted only in case the complicity of the petitioner comes to light from the evidence taken and recorded in the course of inquiry or trial That stage had not yet come. In fact the facts emerging in the instant case are covered by the law laid down in Kishun Singh9s case (supra). 10. In view of the above discussion, this petition attracts the exercise of extraordinary jurisdiction of this court and as such the same is allowed and the impugned order dated 15-6 1994 passed by the learned Sessions Judge affirming the order of the trial Court dated 5-9-1992 directing the impleadment of the petitioner are quashed. The petition stands disposed of in terms of the above. The record of the case be immediately sent back to the trial Court. The trial Court is further directed to expedite the proceedings and finally adjudicate the same in accordance with law. Petition allowed.