JUDGMENT : 1. Being aggrieved by the order dated 14.5.2007 passed by the Judicial Magistrate First Class, Court No.7, Dhule below Exh.16 in RCC No. 250/2005 the person arraigned/ added as an accused at the instance of original accused nos. 1 and 2 preferred this criminal writ petition. 2. Brief facts, giving rise to the present writ petition are as follows :- On the basis of the complaint lodged by respondent no.4 herein crime no.5/2005 came to be registered against respondents no.2 and 3 herein for the offence punishable under Section 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966. After due investigation, concerned police station submitted charge sheet against present respondents no.2 and 3 before Judicial Magistrate First Class, Court No.7, Dhule. The present respondent Nos. 2 and 3 in the pending RCC No.250/2005 filed an application at Exh.16 contending therein that respondent no.4 complainant has lodged the complaint not only against them, but also against one Shri Sanjay Narvekar and present petitioner, who are the officers of the Bharat Petroleum Corporation Limited. It is further contended that, without any explanation they are not made as an accused in the charge sheet. Accordingly, it is prayed in the said application Exh.16 that present petitioner and Sanjay Narvekar be arraigned as co-accused. The learned Magistrate by impugned order dated 14.5.2007 allowed the application Exh.16 and accordingly the present petitioner is arraigned as an accused no.3. Hence, this criminal writ petition. 3. The learned counsel for the petitioner submits that, though name of the present petitioner is mentioned in the complaint lodged with the police station, after due investigation a charge sheet came to be submitted against present respondents no.2 and 3 only. Learned counsel submits that, impugned order suffers from incorrect approach adopted by the learned Magistrate. Learned Magistrate has not given any opportunity of being heard to the present petitioner before passing the order impugned in this writ petition. Even no show cause notice was issued to the petitioner prior to adding him as an accused in the case. 4. The learned counsel for the petitioner submits that, word “Evidence” in Section 319 of Cr.P.C. means only such evidence as is made before the Court, in relation to the statements, and as produced before the Court, in relation to documents. 4. The learned counsel for the petitioner submits that, word “Evidence” in Section 319 of Cr.P.C. means only such evidence as is made before the Court, in relation to the statements, and as produced before the Court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or court to decide whether power under section 319 of Cr.P.C. is to be exercised and not on the basis of the material collected during investigation. Learned counsel submits that the Supreme Court in a case Hardeep Singh Vs. State of Punjab and Others reported in (2014) 3 SCC 92 considered firstly the stage at which powers under section 319 of the Cr.P.C. can be invoked; secondly the material on the basis whereof the invoking of powers u/s 319 of Cr.P.C. can be justified, and thirdly the manner in which powers under section 319 of Cr.P.C. have to be exercised. Learned counsel submits that, in the aforesaid case the Supreme Court has considered question no.3 i.e. “Whether the word 'evidence' used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word 'evidence' is limited to the evidence recorded during trial ?” and recorded answered that apart from the evidence recorded during the trial, any material that has been received by the Court after cognizance is taken and before the trial commences can be utilized only for corroboration and to support the evidence recorded by the Court to invoke powers under section 319 of Cr.P.C. The “Evidence” is thus limited to the evidence recorded during the trial. 5. Learned counsel submits that in view of the ratio laid down by the Supreme Court, the impugned order passed by the learned Magistrate does not survive and same is thus liable to be quashed and set aside. 6. Learned counsel for respondent no.4-original complainant submits that, admittedly, petitioner was working as Sales Officer of Bharat Petroleum Corporation Limited, Dhule at the time of alleged incident and sanction of plant dated 11.8.2004 was also approved in the name of Bharat Petroleum Corporation Limited. Respondent no.4 has filed the complaint against the present respondents no.2 and 3 and also the petitioner herein. Respondent no.4 has filed the complaint against the present respondents no.2 and 3 and also the petitioner herein. It has alleged in the complaint that respondents no.2 and 3 and petitioner herein have unauthorizedly constructed petrol and diesel tanks otherwise than in conformity with the development plan in contravention with the permission and thereby committed an offence punishable under section 52 and 53 of the MRTP Act. Learned counsel submits that even respondents no.2 and 3 have produced certain documents alongwith their application Exh.16 in support of their contention and brought to the notice of the Court that investigating officer has deliberately not added/arrayed the petitioner as an accused in the charge sheet filed before the Court. Learned counsel submits that, the learned Magistrate has therefore rightly allowed the application Exh.16. No interference is required. Writ Petition is devoid of any merit and thus liable to be dismissed. 7. I have also heard the learned APP for the State. 8. None appears for respondents No.2 and 3. 9. Section 319 of the Code of Criminal Procedure reads as under :- Section 319 :- “319. Power to proceed against other persons appearing to be guilty of offence. (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 committed 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 which he appears to have committed. (4) Where the Court proceeds against any person under subsection (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 10. It is the duty of the court to do justice by punishing the real culprit. It is the duty of the court to do justice by punishing the real culprit. Especially when the Investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question arises under what circumstances and at what stage should the Court exercise its power as contemplated in section 319 of the Code ? 11. In a case Hardeep Singh Vs. State of Punjab and Others (supra) relied upon by the learned counsel for the respondent No.4, the Supreme Court in the reference had formulated certain question and so far as question no.3 which is relevant for the present discussion is reproduced herein below :question no. 3 :- “Whether the word 'evidence' used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word 'evidence' is limited to the evidence recorded during trial ?” 12. The Hon’ble Supreme Court while answering the aforesaid question in paragraph no.81 to 85 made following observations :- 81. An inquiry can be conducted by the Magistrate or court at any stage during the proceedings before the court. This power is preserved with the court and has to be read and understood accordingly. The outcome of any such exercise should not be an impediment in the speedy trial of the case. Though the facts so received by the magistrate or the court may not be evidence, yet it is some material that makes things clear and unfolds concealed or deliberately suppressed material that may facilitate the trial. In the context of Section 319 Cr.P.C. it is an information of complicity. Such material therefore, can be used even though not an evidence in strict sense, but an information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers as presently involved. 82. This pre-trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material alongwith the charge-sheet has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. 82. This pre-trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material alongwith the charge-sheet has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. After the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the charge-sheet. In such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges. 83. It is, therefore, not any material that can be utilized, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilize or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilized to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonize such material with the word ‘evidence’ as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court. 84. The word “evidence” therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 85. In view of the discussion made and the conclusion drawn herein above, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilized only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The word ‘evidence’ is thus, limited to the evidence recorded during trial. 13. In the instant case, admittedly, the learned Magistrate has not recorded any evidence. However, learned Magistrate has passed the impugned order on the basis of certain material that has been received by the court through respondents no.2 and 3 (original accused) after cognizance is taken and before trial commences. The Supreme Court in the aforesaid paragraphs made observations that such material collected by the Court can be utilized to corroborate the evidence already recorded for the purpose of summoning any other person other than accused and accordingly answered the said question. 14. In view of the authoritative pronouncement of the Hon’ble Supreme Court, the order impugned in this criminal writ petition does not survive, however, respondents no. 2 and 3/original accused or respondent no.4 original complainant are at liberty to file an application u/s 319 of Cr.P.C. after recording of the evidence, if occasion, so arises, and the learned Magistrate may consider such application and decide it in accordance with law. Hence, following order is passed. ORDER I. Criminal Writ Petition is hereby allowed in terms of prayer clause “B”. II. Respondents No.2 and 3 original accused and respondent No.4 Municipal Corporation, Dhule – original complainant are at liberty to file an application under section 319 of the Code of Criminal Procedure after recording of the evidence, if occasion so arises, and the learned Magistrate may consider such application and decide it in accordance with law. 3. Rule is made absolute in above terms. 4. Criminal writ petition accordingly disposed off.