PARAMVIR @ HAPPY Vs. STATE OF HARYANA

JUDGEMENT

(1.) CHALLENGE in this petition is to order dated 25.10.2007 (Annexure P-3) whereby the petitioner has been summoned under Section 319, Code of Criminal Procedure (for short 'the Code') to stand trial along with co-accused; namely, Abhey Ram, Raj Kumari and Yashbir.

(2.) LEARNED counsel for the petitioner has raised a limited issue that during the course of trial, it must appear from "the evidence" that any person not being the accused has committed an offence. In the case in hand, the trial court committed an illegality in relying on only the examination-in-chief, as the cross-examination was deferred for filing the application under Section 319 of the Code, as is evident from statement of Jai Bhagwan (Annexure P-1). The statement of the witness in court is mere repetition of the FIR version, not tested by cross-examination. In this regard, reference has been made to the judgments of the Hon'ble Supreme Court of India in Mohd. Shafi v. Mohd. Rafiq and another, 2007(2) RCR(Criminal) 762 : 2007(2) RAJ 534 and Kailash v. State of Rajasthan and another, 2008(2) RCR(Criminal) 200 : 2008(2) RAJ 323.

(3.) I have considered the contention of the learned counsel for the parties and the issue involved in this petition. In Mohd. Shafi's case (supra), the following has held in paras 9 and 13 :-