SUMER SINGH Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Phaujdar, J. This criminal revision under Section 397/401, Cr PC is directed against an order of the Additional Sessions Judge, Roorke in Sessions Trias No. 355 of 1993, dated 18-1-1995 whereby the learned Judge had summoned the present applicants in exercise of his powers under Section 319, Cr PC on an application made by the complainant present opposite party No. 2.

(2.) AN FIR was lodged by present opposite party No. 2 on 8-3-1994 relating to a murder. The police investigated the matter and submitted charge-sheet against five persons and they were committed to the court of session. Charges were framed against them and the first witness in her examination-in-chief disclosed that the present five applicants had also participated in the crime. AN application was moved for summoning these applicants, but it was subsequently not pressed be the learned Public Prosecutor. Later on another application was moved by the complainant of the case (Present O. P. No. 2) and the learned trial judged recorded the impugned order summoning the five applicants. To ensure their attendance the learned trial judge direct ed issuance of non-bailable warrants of arrest. It was submitted before me that after they had moved the present application and had informed the trial court through counsel the learned trial judge had issued processes under Section 82, Cr PC of attachment and proclamation against the present appli cants. Not only the order of summoning but also the issuance of the stringent processes was challenged before me in the present application.

(3.) THE term 'evidence' has occurred at various places but it does not stand defined in the Code of Criminal Procedure nor has it been defined in the Indian Penal Code, the definitions wherein ought to be accepted for the purpose of Cr PC also in terms of Section 2 (y) of the Cr PC. THE term 'evidence' stands defined in the Indian Evidence Act and it means and includes all statements which the court permits or requires to be made before it by witnesses in relation to matters to facts under enquiry. This part of the definition would suffice for our purpose in the present case. For sessions trials the Cr PC requires that after framing of charge the court will fix a date for prosecution evidence and on that the judge shall proceed to take such evidence as may be produced in support of the prosecution. For the purpose of Section 319, Cr PC, the term evidence must be read in conjunction with the subsequent words used in that section. THE purpose of summoning persons other than the accused facing the trial is to try those persons together with the accused already on trial. Duplicity of evidence or even completion of evidence therefore may not be necessary as that would only entail duplication of the same procedure. Once it is accepted that the witness is not only to be exa mined but also to be cross-examined before any action under Section 319, Cr PC could be taken after such summoning the evidence of that witness is to be taken afresh for the newly added accused to be tried with the existing accused persons THE decisions cited therefore, must be distinguished under this inter pretation of the term evidence and in my view, evidence could mean the state ment of a witness in court even not tested by cross-examination. THE court below was satisfied from the statement of Maya that certain more persons were to be summoned and he had exercised his powers under Section 319, Cr PC at this stage itself so that only the examination-in-chief of Maya may be repeated in the presence of the newly added accused persons and in that light he was right in not waiting for the cross-examination of the witness. THE contention of the learned counsel that the Judge had no jurisdiction to act under Section 319, cannot therefore be accepted.