Shivanugrah Narain, J.:— This is an application for quashing the order dated 25.3.1976 of Sri S.P Shukla, Judicial Magistrate, 1st Class, Khagaria, directing that the petitioner Satyanarayan Yadav be summoned.

2. The relevant facts are these:

3. On 8.6.1975, one Kamla Kant Yadav lodged a first information report at Gogri police station alleging that the petitioner Satyanarayan Yadav along with three other named accused and 10 and 11 unnamed persons variously armed with lathis and country-made guns, came to his residence at 7 or 8 P.M on 7.6.1975 That Sachidanand Yadav, one of the named accused ordered the others to kill the informant Kamlakant Jha and take away all his belongings and then he along with accused named in the first information report including the petitioner started assaulting Kamlakant Jha and they also assaulted his nephew who attempted to rescue him, that on his hulla, a number of persons collected and thereafter the accused fled away taking grains as well as clothes and Rs. 200/- in cash. On the basis of the said Information report, Gogri police instituted a case for offences under Sections 147, 148, 323, 307 and 380 of the Indian Penal Code, and after completing investigation, submitted charge sheet against three of the named accused excluding the petitioner who was not sent up for trial as, in the opinion of the police, the accusation against the petitioner Satyanarayan Yadav was false. This police report appears to have been put up before the Sub-divisional Judicial Magistrate, Khagaria, on 19.1.1976 on which date a petition was filed on behalf of the informant praying that Satyanarayan Yadav be also summoned as an accused in the case. On that very date, the learned Sub-divisional Judicial Magistrate, after referring to the police report and the petition filed by the informant, passed the following order which translated into English reads thus:

“Perused the charge sheet. Cognizance for offences under Sections 147, 323, 307 and 380 of the Indian Penal Code is taken against the accused named in Column. 3 (namely, the named accused other than the petitioner) and the case is transferred for enquiry to Sri Subodh Prasad Shukla, Judicial Magistrate, 1st Class.

The copies of documents described in Section 207 of the Code of Criminal Procedure, should be furnished to the accused by 18.2.1976 The application filed on behalf of the informant should also be put up for consideration in the aforesaid Court. On the said date, the accused persons will appear in the court of Sri Shukla”.

4. The learned Magistrate, before them the case came upon transfer heard the parties on the petition of the informant on 19.3.1976 On that date, the informant also produced before the Magistrate six affidavits affirmed by the persons supporting the prosecution case against the petitioner Satyanarayan Yadav. The learned Magistrate on the statement of the informant and certain witnesses contained in the case diary and the affidavits filed before him allowed the petition and ordered that the petitioner Satyanarayan Yadav be also summoned as an accused in the case.

5. Shri Thakur Prasad and Shri Chandramauli Kumar Prasad who argued the case on behalf of the petitioner contended that the order of the learned Magistrate summoning the petitioner for offences triable exclusively by the court of Session was without jurisdiction, because the learned Magistrate Shri Shukla who had not taken cognizance of the case was neither holding any enquiry into an offence nor had he taken any evidence before passing the impugned order. According to the learned advocates for the petitioner, the power of a Magistrate, other than a Magistrate taking cognizance of the case to proceed for an offence against a person who has not been summoned by the Magistrate taking cognixance of the case, is derived from and confined to the circumstances referred to in Section 319 of the Code of Criminal Procedure, 1973 (hereinafter to be called ‘the Code’) under Section 319 of the Code, the court may proceed against a person not accused before him only where the Magistrate is holding an enquiry into or trial of an offence and secondly only when it appears from the evidence that the person has committed an offence. A Magistrate, the argument proceeds, to whom the case exclusively triable by the court of Sessions has been sent for passing an order of commitment in accordance with the provisions of Section 209, not only does not hold a trial but also does not hold and enquiry into the offence. Further, the affidavits filed before the learned Magistrate, or the statements of witnesses recorded by the police did not constitute evidence within the meaning of Section 319 of the Code.

6. Section 209 runs thus:

“209 when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of session, he shall—

(a) commit the case to the court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during and until the conclusion of the trial.

(c) sent to that court the record of the case and the documents and articles, if any, which are to be produced in evidence:

(d) notify the Public Prosecutor of the commitment of the case to the court of session”.

7. Section 319 of the Code provides;

“319. (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 Sub-section (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 Cl. (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.”

8. Thus, under Section 319 of the new Code, the court may proceed against a person not an accused before it for the offences which he appears to have committed if all the following conditions are fulfilled;

i) it must appear that the person has committed an offence;

ii) the offence which the person appears to have committed must be such for which such person could be tried together with the accused before the Magistrate.

iii) it must so appear in the course of any inquiry into or trial of an offence; and

iv) it must so appear from the evidence.

9. The requirement that the offence must be such for which such person could be tried together with the accused before the Magistrate, clearly shows that the power to proceed against persons not accused, can under Section 319 only be exercised when there are some other persons accused before the Magistrate, that is to say, after some accused have appeared in pursuance of the processes issued. Section 319 of the Code does not deal with the power of the Magistrate to issue process in a case in which no process under Section 204 of the Code has at all issued.

10. The question, however, is whether in a case in which some accused have appeared before the Magistrate holding an inquiry or trial, the power of the Magistrate to proceed against other persons in respect of offences which they appear to have committed, is circumscribed by and limited to the circumstances mentioned in Section 319 of the Code. In my opinion, it is so circumscribed and so limited in a case in which process has already been issued against some’ persons the Magistrate holding an enquiry or trial into the offence has no power apart from an independent of Section 319 of the Code to proceed against persons not accused before him. Or, in other words, Section 319 of the Code is the sole repository of such power. The Legislature has taken pains to spell out to detail the circumstances in and the conditions subject to which the power to issue process against additional persons can be exercised by a Magistrate. The Legislature would have in so spelling out the circumstances and conditions subject to which the power can be exercised, laboured in vain if it has in another part of the Code given similar powers without the conditions and restrictions specified in Section 319 of the Code. Where the Legislature has dealt with a specific topic and has conferred specific powers and has put certain specific limitations on those powers, it is contrary to all canons of interpretation to assume that the Legislature has in another part of the same Statute given similar powers on a wider scale and without the limitations imposed in the specific section which dealt with that power. Per Chagla C.J in (1) P.R Nayak v. B.D Bharucha [A.I.R (38) 1951 Bombay 406 at page 409 of the report]

11. Sri Prabha Shankar Mishra, the learned Advocate appearing on behalf of the informant contended that apart from Section 319 of the Code, a Magistrate has power to proceed against persons who, in his opinion, are involved in the offence in respect of which he is holding an inquiry or trial. He relied, in support of this submission, on the observations of Sikri. J. as he then was in (2) Raghuhans Dabey v. State of Bihar (A.I.R 1967 S.C 1167, at page 1169 of the report) that it is one of the duties of the Magistrate taking cognizance to find out who the offenders really are and once he comes to the conclusion that span from the persons sent up by the police som; other persons are involved, it is his duty to proceed against those persons even though he may have earlier taken cognizance of the offence as far as other accused were concerned. These observations were, however, made under, the Code of Criminal Procedure, 1898 (herein-after to be called the ‘old Code’) and the Old Code contained no specific provision conferring upon the Magistrate holding an inquiry or trial into an offence to proceed against parsons who were not accused before him from before, except as regards persons present in the court, the power to issue process against whom was conferred by Section 351 of the Old Code. As the general power to ‘summon additional persons as accused was not conferred by any other specific provision of the Code, the power (Illegible) into the implied. Now the position has changed in that a specific power to do so has been embodied in Section 319 of the Code. I, therefore, hold that independently of and apart from Section 319 of the Code, a Magistrate holding an inquiry or trial into an offence has no power to proceed against persons who are not accused before him.

12. I have already set out the four conditions which must be fulfilled before the power under Section 319 of the Code to proceed against a person not an accused before it can be exercised by the court. It is not disputed that condition nos. 1 and 2 are fulfilled. The question is whether condition nos. 3 and 4 were fulfilled in the present case. The question whether a Magistrate to whom the case has been transferred for passing an order of commitment under Section 209 of the Code does or does not hold an inquiry Into the offence is not free from difficulty and has given rise to difference of opinion among the High Courts. A bench of the Allahabad High Court in (3) Lakshml Brahman v. The State (1976 Criminal Law Journal 118) has answered this question in negative but a Bench of the Rajasthan High Court in (4) Swaroop Singh v. The State of Rajasthan (1976 Criminal Law Journal 1665) has given a contradictory opinion and answered the question in the affirmative. In my opinion the application must be allowed, as condition no. 4 for the applicability of Section 319 of the Code, for the reasons given by me hereinafter, was not fulfilled in the instant case and therefore it is not necessary to decide the question whether a Magistrate proceeding under Section 209 of the Code does not hold an inquiry into an offence. I will assume for the purposes of this case, without deciding that the Magistrate proceeding under Section 209 of the Code holds an inquiry.

13. As I have said earlier, before a Magistrate can proceed against a person who has not appeared as an accused before him, it must appear from the evidence that such person has committed an offence. The Indian Evidence Act applied to all judicial proceedings in or before any court and, therefore, in the absence of anything to the contrary, to all inquiries and trials under the Code which are judicial proceedings. The expression” ‘evidence’ must, therefore, be evidence admissible under the Indian Evidence Act or expressly made admissible by the Code. Section 3 of the Indian Evidence Act, 1872 defines ‘evidence’ in the following terms:

““Evidence” means and includes all statements which the court permits or requires to be made before it by witness, in relation to matters of fact under Inquiry, such statements are called oral evidence;

2) all documents produced for the inspection of the court; such documents are called documentary evidence.”

14. The conclusion that “evidence” has been used in the sense of evidence admissible in the Evidence Act or expressly made admissible by the court, is reinforced by a review of other provisions of the Code in which the expression “evidence” has been used. The expression ‘evidence’ in Section 116, 126, 133, 137, 138, 145, 147, 231, 233, 236. 242, 243, 244, 245, 247, 254 and 255 of the Code obviously means “evidence” admissible under the Indian Evidence Act., or made admissible by specific provisions of the Code. In Section 133(1) of the Code, the word ‘evidence’ is used as different from ‘the report of a police officer or other information”. When the Legislature wishes to make evidence some thing which may not be evidence within the Indian Evidence Act, it expressly says so. Section 148(2) of the Code enacts that the report of the persons deputed by a Magistrate to make a local enquiry under Section 145 etc. may be read as evidence in the case. The Indian Evidence Act does not apply to affidavits presented to any court and, therefore, the Code makes express provisions regarding evidence on affidavits. Section 295 of the Code empowers an applicant to give evidence of facts alleged in the application in course of any enquiry or trial or proceeding when allegations are made respecting any public servant and the court may, if it thinks fit, pass an order to that effect. Under Section 296 of the Code, evidence of any person whose evidence is of a formal character may be given on affidavit.

15. Shri Mishra, the learned Advocate appearing for the informant, contended that the expression “evidence” includes materials contained in the records of the case which may become evidence and is not confined only to evidence admissible in a court of law in accordance with the provisions of the Evidence Act or the specific provisions of the Code. The same words used in the same enactment may be presumed to have been used in the same sense and, therefore, it may well be presumed that the word ‘evidence’ was used in Section 319 of the Code in the same sense in which it was used in the other section of the Code, referred to above. The construction contended to for involves (Sic) adding words “materials or statements which may become evidence” In Section 319 for which there is no warrant. When the Legislature intended that the court should, act on materials which are not strictly evidence it uses express words to that effect. The Magistrate, may pass an order under Section 144 of the Code if he is of opinion that “there is sufficient ground for proceeding etc. Section 227 or 228 of the Code respectively empowers the court of sessions to discharge or frame charge against accused upon “consideration of the records of the case and the documents submitted therewith etc.” Similarly, Sections 239 and 240 of the Code empower a Magistrate trying a warrant case to discharge or frame charge against the accused upon consideration of “the police report and the documents sent with in under Section 173 and making such examination, if any, of the accused” etc.…

16. That so far as the statements of witnesses are concerned, the expression “evidence” means evidence of witnesses given before a court and not a record of their statements made by other person, is indicated by Section 319 of the Code itself. Under Section 319 of the Code, where a person not an accused is proceeded against, under Sub-section (1), the proceeding shall be commenced in respect of such person afresh and the witnesses shall be re-heard. The provision that the witnesses shall be re-heard clearly indicates that so far as the statements of witnesses are concerned, Section 319 when it uses the word ‘evidence’ contemplates only the evidence of witnesses given before it and not the statements of witnesses recorded by some other person. I do not think that the construction placed by me on the expression “evidence” in Section 319 results in any inconvenience or hardship or is unreasonable. In the first instance on the perusal of the documents the result of the enquiry or the result of the police investigation or the examination of the complainant and his witnesses the Magistrate has come to a decision regarding the persons against whom processes shall be Issued. There is therefore, nothing unreasonable in requiring that if certain other persons are also to be put on trial or made accused, that should be done only when legal evidence is adduced before the court holding the enquiry or trial into the offence.

17. And if, as I have held, the expression “evidence” means evidence admissible under the Indian Evidence Act or expressly made admissible by the court, it is manifest there was no such evidence before Shri S.P Shukla, the learned Magistrate when he passed the order summoning the petitioner Satyanarayan Yadav. As I have said earlier, he proceeded on the statements of the witnesses recorded by the police as also on the affidavits of certain witnesses filed before him. The statements of witnesses recorded by the police are clearly no evidence. Similarly, the affidavits of those witnesses are not covered either by Section 295 or Section 296 of the Code, nor are they made admissible by any other provision of the Code. The affidavits, therefore, are also not evidence as explained by me. Indeed, it is not disputed, either by the learned Advocate for the State or the learned Advocate for the informant; that neither the statements before a police officer nor the affidavits are evidence admissible under the Indian Evidence Act or are made admissible by any specific provision of the Code as a necessary condition for the exercise of the power under Section 319 of the Code was wanting and the learned Magistrate, in my opinion, had no power independently of and apart from Section 319 of the Code, to proceed against persons who were not accused before him, the order of the learned Magistrate summoning the petitioner as an accused in the case is clearly illegal and must be set aside.

18. I would, accordingly, allow the application and set aside the order of the learned Magistrate summoning the petitioner as an accused in the case.

19. Uday Singh, J.:—I agree.

Application allowed.