S. K. Phaujdar, J.@mdashThis 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 1811995 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 831994 relating to a murder. The police investigated the matter and submitted chargesheet against five persons and they were committed to the court of session. Charges were framed against them and the first witness in her examinationinchief 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 directed issuance of nonbailable 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 applicants. Not only the order of summoning but also the issuance of the stringent processes was challenged before me in the present application.
3. It is the contention of the learned counsel that the complainant had not preferred any protest petition before the Magistrate before whom the chargesheet was submitted nor did he file any complaint and it was only a cookedup case presented at the trial stage to harass the present applicants. It was further contended that the material on which the learned Additional Sessions Judge had exercised his powers was only on unconcluded testimony of only one witness and it could not be regarded as evidence within the meaning of Section 319, Cr PC. The learned counsel relied on a decision of the Punjab and Haryana High Court note of which was published in 1983 CrLJ NOC. 98 Amarjeet Singh v. State of Punjab. It was held herein that the examinationinchief alone could not be such ''evidence'' upon which the Magistrate could act under Section 319, Cr PC as it was incomplete statement.
4. To appreciate the contention of the learned counsel I must refer to the text of Section 319 (1), Cr PC. It states that:
"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."
5. 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 examined but also to be crossexamined 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 interpretation of the term evidence and in my view, evidence could mean the statement of a witness in court even not tested by crossexamination. 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 examinationinchief 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 crossexamination of the witness. The contention of the learned counsel that the Judge had no jurisdiction to act under Section 319, cannot therefore be accepted.
6. We may now come to the second aspect of the contention. It was contended that the Judge should not have issued stringent processes against the accused persons while police had not submitted chargesheet against them. I may read subsection (2) of Section 319. It states:
"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."
The order sheet dated 1811995 indicated that the other accused persons already on trial were present in the court suggesting thereby they were on bail. Simply because the court proceeded to take action under Section 319, Cr PC against the present applicants there was no reason as to why nonbailable warrants or processes of attachment should have been issued for their appearance. A mere summons for their appearance should have been sufficient in the circumstances of the case. Had they refused to abide by the summons the Sessions Judge could have thought of issuing stringent processes against them but the learned Sessions Judge directed issuance of warrants at the first instance for no recorded reasons. The applicants before me showed their eagerness to appear before the court below if so directed.
7. While holding that the Judge was within his powers under Section 319 (1), Cr PC to summon present five applicants I reject the present revisionapplication. But at the same time I direct that on their surrender before the learned Sessions Judge within a week from the date of this order the learned Sessions Judge will treat the present applicants as having appeared on summons and the execution of the warrants and the processes are suspended till such attendance. If the applicants do not surrender or appear as directed it will be open for the Sessions Judge to issue such stringent processes as he may feel to compel their attendance.
Revision dismissed.
