JUDGMENT - J.N. PATEL, J.:---Rule. By consent, heard forthwith. 2. The applicants have impugned the order dated 22-3-1999 passed by the Additional Sessions Judge, Akola, in Criminal Revision No. 177 of 1998. The challenge is limited to the operative part of the order which records that after recording the evidence of the complainant and her witnesses, the lower Court is directed to give hearing to the parties on Exh. 20 again and further direction to keep the application Exh. 20 pending till the completion of recording of the evidence of the complainant and her witnesses. 3. On the report of Sau Sujata Nitinrao Tidke, the Police Station, Civil Lines, Akola, registered Crime No. 605 of 1996 against seven persons which included the applicants, for having committed an offence under section 498-A r/w 34 of I.P.C. On completion of the investigation, charge-sheet came to be filed in the Court of Judicial Magistrate, First Class, Court No. 4, Akola, which came to be registered as Criminal Case No. 323 of 1997. It so happened that the applicants were not prosecuted as their names did not appear in the column of accused in the chargesheet filed by the police and, therefore, the prosecutor filed an application before the learned Magistrate for addition of applicants as accused and the same came to be marked as Exh. 20. After hearing the learned A.P.P., the learned Magistrate rejected the application on 27-2-1998, observing that no prima facie case is made out against the said persons viz. Dr. Fokmare, Sau. Ujwala Hingankar, Vinod Hingankar and Sau Vaishali Fokmare, i.e. the applicants as far as offence under section 498-A I.P.C. is concerned. Hence the application was rejected. This order of the learned Magistrate came to be challenged before the Court of session at Akola, by the complainant Sau Sujata Nitinrao Tidke in Criminal Revision No. 177 of 1998. The learned Additional Sessions Judge, Akola, after examining the provisions of section 319 of Criminal Procedure Code, came to the finding that prima facie from the complaint, the case against the applicant is made out. But, the P.S.O. Civil Lines, Akola, did not implead the applicants as accused in the chargesheet and, therefore, request of the Prosecutor to add their names as accused was genuine and the finding of the trial Court that prima facie there is no evidence, was not proper. But, the P.S.O. Civil Lines, Akola, did not implead the applicants as accused in the chargesheet and, therefore, request of the Prosecutor to add their names as accused was genuine and the finding of the trial Court that prima facie there is no evidence, was not proper. The learned Additional Sessions Judge, Akola, therefore, stated that in her view, prima facie, there is involvement of the persons whose names are mentioned in the complaint. However, stage to add the accused is yet to reach and, therefore, quashed and set aside the order below Exh. 20 passed by the learned Magistrate, and directed the lower Court to rehear Exh. 20 by keeping it pending till the stage of recording of the evidence of the complainant and her witnesses is over. 4. Mr. Ghare, the learned Counsel for the applicants, submitted that the application Exh. 20 for addition of the accused made by the learned A.P.P. could not have been made by the prosecution as there is no procedure prescribed under the Criminal Procedure Code. Therefore, the learned Magistrate was justified in rejecting the application. It is further submitted that even if the applicants are required to be impleaded as accused, it is only after the trial Court records the evidence in the case and come to a finding that the persons other than the accused chargesheeted before it, have also committed the offence and then it would fall within the purview of section 319 Cr.P.C. therefore, the direction of the learned Additional Sessions Judge to keep the application for addition of accused filed by the Prosecutor alive and to consider it subsequently, is nothing but an error committed by the learned Additional Sessions Judge who ought to have rejected the application. 5. Mr. Ghare submitted that he has no grievance in respect of other part of the order directing the trial Court to exercise his powers under section 319 Cr.P.C. at the appropriate stage and for that it is not necessary that the Court should be directed to rehear the application Exh. 20, which deserves to be rejected. 6. 5. Mr. Ghare submitted that he has no grievance in respect of other part of the order directing the trial Court to exercise his powers under section 319 Cr.P.C. at the appropriate stage and for that it is not necessary that the Court should be directed to rehear the application Exh. 20, which deserves to be rejected. 6. The learned A.P.P. submitted that the learned Additional Sessions Judge was justified in setting aside the order passed by the learned Magistrate as the learned Magistrate while rejecting the application, observed that no prima facie case is made out against the applicants, but it is fairly conceded that the appropriate stage for moving the Court to join the applicants as accused as contemplated under section 319 Cr.P.C. would be after the Court proceeds to record the evidence and to that extent, it was immature and ought to have been rejected. 7. It is not disputed before this Court that in the report lodged by Sau. Sujata Nitinrao Tidke, the names of the applicants have been specifically mentioned by attributing to them certain acts, but it appears that the Investigating Officer did not find it necessary to implead the applicants as the accused in this case when he filed his report under section 173 Cr.P.C. After filing of the chargesheet, the learned Prosecutor moved an application for addition of the applicants as the accused by stating that the names of the applicants are given in the First Information Report and they are not made accused in the chargesheet and, therefore, they should be added as accused in the chargesheet, which came to be rejected by the learned Magistrate by holding that there is no prima facie case against the applicants. 8. Section 169 of Cr.P.C. clearly provides that if the officer in charge of the Police Station, upon investigation, finds no sufficient evidence or reasonable ground to send the accused for trial before the competent Magistrate, he may file report under section 169 Cr.P.C. to that effect. This is to be distinguished from the chargesheet which the officer submits under section 173 Cr.P.C., when he finds that there is sufficient evidence to put the accused on trial. This is to be distinguished from the chargesheet which the officer submits under section 173 Cr.P.C., when he finds that there is sufficient evidence to put the accused on trial. The opinion of the police as to whether the final report under section 169 Criminal Procedure Code or chargesheet under section 173 of Criminal Procedure Code is to be submitted against suspects, is to be formed on the material collected by the investigation. It is the function of the police and not the Magistrate. If the Magistrate disagrees with the opinion so formed by the police, he may take suitable action, but he cannot impinge upon the jurisdiction of the police by compelling them to change the opinion. It is not placed before this Court as to whether the Investigating Officer in the report has made out any case for not impleading the applicants as the accused, but if the learned A.P.P. was not satisfied by the fact that all the persons having are not being prosecuted, then he could have applied to the Magistrate for directions to the police under section 156(3) Cr.P.C. to make further investigation and on such direction, the police, after such further investigation, may submit the chargesheet against such persons or again submit the same report depending upon further investigation made in the matter. The learned Prosecutor in this case has not sought for any such directions and merely sought for addition of the applicants as the accused, which was not proper and, therefore, in a way the learned Magistrate was right in rejecting the application. 9. It appears that the complainant was aggrieved by such rejection of the application by the Magistrate because the Magistrate went on to observe that there is no prima facie case against the applicants. The learned Additional Sessions Judge, therefore, was justified in observing that the learned Magistrate ought not to have expressed on the merits of the case. The error only appears to be in the procedure adopted by the learned Prosecutor and, therefore, the learned Additional Sessions Judge took recourse to section 319 of the Cr.P.C. as under section 319(1) of Cr.P.C. the Court can proceed even against the persons who have been dropped by the police during the investigation. The learned Additional Sessions Judge could have given directions to the police under section 156(3) of Cr.P.C. to make further investigation. The learned Additional Sessions Judge could have given directions to the police under section 156(3) of Cr.P.C. to make further investigation. But, on the other hand, the Additional Sessions Judge fell in error in directing that Exh. 20 (which is not filed under section 319 of the Criminal Procedure Code) be kept pending and to be considered after evidence is recorded. The proper course should have been to grant liberty to the prosecution to move the Court at the appropriate stage to exercise its powers under section 319 Cr.P.C. In order to apply section 319 Cr.P.C., it is essential that the need to proceed against the person other than the accused appearing to be guilty of the offence, arises only after evidence is recorded in the course of any enquiry or trial, as section 319 Cr.P.C. confers power on the Court to proceed against any person not being the accused appearing to be guilty of the offence on the basis of such evidence. 10. In the circumstances, the impugned order is modified to the extent that the direction of the Appellate Court to the lower Court to give hearing to the parties on Exh. 20 and keep the application Exh. 20 pending till recording of evidence of the complainant and her witnesses is over, and insofar as the order passed below Exh. 20 by the lower Court and there are observations that no prima facie case is made out against the applicants, is quashed and set aside. The application Exh. 20 would stand rejected as no such application is tenable in the manner and at the stage it was filed before the trial Court. It will be open for the learned A.P.P. to seek direction of the Magistrate for further investigation under section 156(3) of the Criminal Procedure Code or wait for the prosecution to examine witnesses and then make out a case under section 319 of Criminal Procedure Code and seek appropriate orders against the applicants. Rule is made absolute in the aforesaid terms with no order as to costs. Rule made absolute. -----