NARAN DAS Vs. STATE OF U.P

JUDGEMENT

(1.) The revisionist is an accused in case crime No. 852 of 1993 under Sec. 302 Indian Penal Code, P.S. Kichhchha. Nainital along with his brother Data Ram. Charge sheet was submitted by the police against Data Ram in which the revisionist was shown as absconder. Data Ram was committed to the court of Session. He is standing trial in S.T. No. 106 of 1994 in the Court of Sessions Judge, Nainital. The prosecution examined P.W.1 Satish Kumar Narang. In his statement he named the revisionist as one of the assailants upon which he was summoned by the trial court under Sec. 319 (1) Criminal Procedure Code. Aggrieved by it the revisionist has come to this curt in revision. Two points have been urged in support of the revision. The first is that only the examination-in-chief of P.W.1 Satish Kumar Narang was recorded and unless he was cross examined by the accused it could not be said that his statement was evidence for the purposes of Sec. 319 (1) Criminal Procedure Code and secondly the revisionist has not been named in the F.I.R. as one of the accused. He is beyond the reach of Sec. 319 (1) of Criminal Procedure Code. The copy of the statement of P.W.1 Satish Kumar Narang filed in this court would show that his cross-examination was deferred at the request of the counsel of the parties. The counsel for the accused did not cross-examine him. He could not have been forced to cross examine him. In the circumstances it cannot be said that refusal of the counsel of the accused to cross-examine the witness at that stage would prevent the Court from action under Sec. 319(1) Criminal Procedure Code. Whether the cross examination of the witnesses has been completed or not would not make any difference in so far as the revisionist is concerned. The examination-in-chief or cross-examination of the witnesses behind his back cannot be real against him. P.W.1 Satish Kumar Narang would have to be re-examined when the revisionist appears or is brought before the Court. For exercising power under Sec. 319(1) Criminal Procedure Code it should appear from the evidence that any person not being the accused has committed any offence for which he could be tried along with the accused. For the purposes of this Sec. therefore examination-in-chief is sufficient because from the examination-in-chief alone it would appear whether any other person not being the accused has committed any offence for which he could be tried together with the accused. The argument therefore that the statement of a witness could not have been looked into unless he was cross-examined does not stand to reason. In Maqbool Hasan Vs. State, 1988 Criminal Law Journal 1469 , it was held that summoning person under Sec. 319 Criminal Procedure Code based on mere examination-in-chief of the witness is not illegal. The other contention is also equally untenable. In Kishun Singh and others Vs. State of Bihar, JT 1993 (1) SC 173 it was held by the Supreme Court that "on a plain reading of sub-section (1) of Sec. 319 there can be no doubt that it must appear from the evidence tendered in the course of any enquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this Sec. contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has been earlier discharged would fall within the sweep of power conferred by Sec. 319 of the Code. It is clear from the record that the revisionist has not been arraigned as an accused before the trial Court and there is some evidence appearing in the course of trial which prima facie shows his involvement in the crime in question. The revisionist was rightly summoned under Sec. 319(1) Criminal Procedure Code. The revision is dismissed accordingly. Revision Dismissed.