Basant Kumar vs State of U.P.

Mukteshwar Prasad, J.—This criminal revision at the instance of accused Basant Kumar son of Gaya Prasad is directed against the order dated 17.10.1988, passed by Sri H. L. Kureel, the then Additional Sessions Judge, Ghazipur, whereby he summoned the revisionist u/s 319, Cr. P.C. to face trial along with others in S.T. No. 31 of 1988.

It appears that an application was moved by the informant for summoning the revisionist to face trial along with other accused u/s 319, Cr. P.C. Prior to that the prosecution had examined Smt. Chandra Prabha as P.W. 1 but she was not cross-examined till then. An objection was filed that unless the witness was cross-examined, the Court could not exercise its powers u/s 319, Cr. P.C. Moreover, Basant Kumar was on duty on the impugned date of the incident. After hearing learned Counsel for the parties, learned Judge exercising his powers u/s 319, Cr. P.C. summoned the revisionist to face trial. Hence, this revision.

I have heard learned A.G.A. and perused the impugned order dated 17.10.1988. It is noteworthy that none turned up on behalf of the revisionist although learned Counsel for the revisionist got the case passed over several times.

I have gone through Section 319, Cr. P.C. as well as impugned order carefully. According to the grounds of revision, the revisionist was named in the F.I.R. but he was not charge-sheeted by the police after investigation. After framing of the charges against the accused, prosecution examined Smt. Chandra Prabha as P.W. 1 but she was not cross-examined till then. An application was moved on behalf of the informant for summoning the revisionist. Sub-section (1) of Section 319, Cr. P.C. provides in clear words where in the course of any 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 appears to have been committed. The revisionist was named as an accused in the examination-in-chief of Smt. Chandra Prabha. What is meaning of word ''evidence'' used in Section 319 (1), Cr. P.C. came into consideration before the Apex Court in Rakesh and Another Vs. State of Haryana, The question involved was that whether the statement of a prosecution witness without the said witness having been cross-examined constitutes ''evidence'' within the meaning of Section 319, Cr. P.C.? It was clearly held that term "evidence" as used in Section 319, Cr. P.C. does not mean that evidence which is tested by the cross-examination. Once the deposition is recorded, undoubtedly there being no cross-examination, it would be a prima facie, material which would enable the Court to decide whether power u/s 319, Cr. P.C. should be exercised or not. Therefore, in view of law laid down by the Apex Court of the country, learned Judge committed no illegality in passing the impugned order for summoning the revisionist u/s 319, Cr. P.C. Consequently, this revision is devoid of merit and is liable to be dismissed.

The revision is hereby dismissed and the stay order dated 25.11.1988, stands vacated.

The office is directed to inform the Court concerned immediately.