JUDGMENT
P.K. Misra, J.
1. The petitioners challenge the legality of the order dated 8.5.1996 passed by the Sessions Judge, Phulbani, in Sessions Trial No. 2/95 wherein the four petitioners have been directed to stand trial along with the original accused by invoking the power Under Section 319 of the Code of Criminal Procedure (hereinafter referred to as the “Cr.P.C”).
2. FIR was lodged by the Officer-in-Charge of Manamunda police station on 2.12.1994 on his own information against Golakha Thati (hereinafter referred to as the ‘original accused’) on the allegation that he had unauthorisedly cultivated cannabis plant in the courtyard of his own house. The courtyard was raided and Cannabis plants were seized in presence of witnesses. After completion of investigation, charge sheet was submitted against the original accused alleging commission of offence Under Section 20(a) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the “N.D.P.S. Act’). Subsequently, after hearing the Public Prosecutor and the original accused, charge was framed against the original accused Under Section 20(a) of the N.D.P.S. Act and the case was posted to 4.6.1996 and 5.6.1996 for trial. Thereafter, on 1.5.1996 the Public Prosecutor filed a petition praying for taking cognizance of offence Under Section 20(a) of the N.D.P.S. Act against the present petitioners on the ground that the disputed property was originally recorded in the name of Malia Thati and after his death the same had been inherited by his five sons. that is to say, the original accused and the present petitioners. The said petition was taken up on 8.5.1996 and the Sessions Judge in purported exercise of power Under Section 319, Cr.P.C. observed that N.B. Ws. should be issued against the present petitioners to stand trial Under Section 25 of the N.D.P.S. Act, as according to the Sessions Judge “Section 25 of the N.D.P.S. Act contemplates that owners are also equally liable for criminal prosecution if they have allowed the premises to be used for commission of any offence punishable under N.D.P.S. Act.” The aforesaid order is being challenged by the four petitioners, who are sought to be arrayed as accused persons alongwith the original accused. In the present case charge had already been framed against the originalaccused and it must be deemed that the trial had commenced. However, before recording of evidence of any of the prosecution witness, the Sessions Judge in purported exercise of power Under Section 319, Cr.P.C. has issued N.B.W. against the four accused persons on the footing that the present petitioners being the brothers of the original accused “are also equally liable for criminal prosecution if they have allowed the premises to be used for commission of any offence punishable under N.D.P.S. Act”. Since evidence had not been adduced in the trial, there was no scope for the Sessions Judge to invoke the power Under Section 319, Cr.P.C. A bare reading of Section 319, Cr.P.C. makes it clear that trial Court has jurisdiction to summon any person to stand trial if from the evidence adduced in the trial it appears that such person has committed an offence. For invoking the power Under Section 319, Cr.P.C, it is required that the Court must come to a conclusion from the evidence that any person not being the accused has committed the offence. There is no doubt that the expression ‘evidence’ occurring in Section 319, Cr.P.C, means the statements of witnesses as recorded by the Court and the same would not include any statement by any witness in course of investigation before the police Under Section 162, Cr.P.C. The above position of law is now clear in view of the s’everal decisions of the Supreme Court and this Court which have been noticed in the decision reported in (1999) 16 OCR 30 (Mitu alias Prasidha Maharathi and Ors. v. State of Orissa and Anr.). In the present case since evidence is yet to be recorded, there was no occasion to invoke the purported jurisdiction Under Section 319, Cr.P.C.
3. For the aforesaid reasons, the impugned order cannot be sustained. The Criminal Misc. Case is accordingly allowed.