Balvinder Singh vs State of Haryana

P.K. Jain, J.

This revision directed against the order dated 8.1.1996 passed by the Additional Sessions Judge, Karnal whereby the petitioner and one Jaswinder Singh have been summoned under Section 319 of the Code of Criminal Procedure (for short the Code) to face trial for the offences punishable under Sections 307, 325, 324 read with Sections 149, 148 and 506, Indian Penal Code.

Admittedly, on the statement of Amritpal Singh F.I.R. No. 686 was registered on 9.8.1992 at Police Station City, Karnal for the aforesaid offences against seven persons including the present petitioner. However, on investigation no material could be collected to prosecute the petitioner and Jaswinder Singh for the said offences and as such both of them were placed in Column No. 2 of the chargesheet. Ramaining five persons namely Harcharan Singh and others were sent up for trial. Case was committed to the Court of Sessions. A charge for the said offences was framed against the said five persons by the Additional Sessions Judge, Karnal. Amritpal Singh (PW1), the complainant, came into the witness box and his examinationinchief was recorded, wherein he named the petitioner and Jaswinder Singh also among the assailants.

At this stage on an application filed by the prosecution under Section 319 of the Code, the Additional Sessions Judge by the impugned order summoned the petitioner as well as Jaswinder Singh to face trial for the said offences.

Feeling aggrieved Balwinder Singh has assailed the legality of the impugned order solely on the ground that Amritpal Singh was examined inchief only and without crossexamination his statement cannot be said to be legally admissible in ''evidence'' and therefore, the impugned order is contrary to law and liable to be set aside.

The petition is being opposed by the learned State counsel on the ground that once the names of the petitioner and Jaswinder Singh were mentioned in the First Information Report and both of them have been named by the complainant in his statement made on oath before the trial Court, the said material was enough to invoke the powers under Section 319 of the Code and to summon the petitioner as well as Jaswinder Singh to face trial alongwith the other accused persons.

I have heard the learned counsel for the parties and have gone through the record.

This very question directly arose for consideration before this Court in Jagvinder Singh v. State of Punjab and another, 1996(2) RCR 81 . Para 7 of the judgment reads as under:

"After giving my careful thought to the respective arguments advanced at the Bar I find that the Sub Divisional Judicial Magistrate has totally gone contrary to the law and has exercised his power under section 319 of the Code in an arbitrary manner. It is well settled that the power under section 319 to proceed against a person other than accused can be exercised by the court only if from the evidence recorded by the court, it appears that any person has committed an offence for which he could be tried together with other accused. The word "evidence" used in section 319 of the Code means admissible evidence. The statement of a witness, when he is yet to be cross examined, cannot be treated as evidence in the eyes of law. An incomplete statement of a witness, whether being only his statement in examinationin chief or at any other stage before it is completed, cannot be treated as evidence upon which the court can act while dealing with an application under Section 319 of the Code. This view finds affirmation in several decisions by this Court, namely Amarjit Singh v. State of Punjab, 1983 Crl . L.J. NOC 98, Roshni Devi v. State of Haryana, 1987(1) Recent Criminal Reports 661 . Smt. Viddo v. State of Punjab and another, 1991(2) Recent Criminal Report 84 and Lila Devi v. State of Haryana, 1994(1) Recent Criminal Reports 659 . It is not understandable as to how the Sub Divisional Judicial Magistrate has lost sight of such a number of decisions of this Court on this point."

Thus, it is necessary to admissibility of oral testimony that an opportunity to crossexamine the deponent should have been given. Where no opportunity to crossexamine the deponent has been given his testimony would be inadmissible and the same cannot be acted upon for any purpose much less for the purpose of invoking the powers under section 319 of the Code.

In the present case it is not disputed that the impugned order has been passed merely on the basis of the examinationinchief of the complainant and his crossexamination has been deferred. Without giving an opportunity for crossexamination to the accused person, the examinationinchief of Amritpal Singh in itself is not admissible in evidence. It would have been a different matter if an opportunity to crossexamine had been given but was not availed of. That is not the case here. Therefore, the impugned order is not sustainable in law.

As a result of the above discussion, this petition is allowed, the impugned order dated 8.1.1996 is hereby quashed. It will, however, be open to the Additional Sessions Judge to pass appropriate fresh order under Section 319 of the Code after completing the statement of Amritpal Singh or other witnesses examined or to be examined by the prosecution.