Jai Pal Singh and Another vs State of Uttar Pradesh

V.P. Mathur, J.—Taken up for final disposal.

Heard the learned Counsel for the State.

There is on one present on behalf of the revisionists.

The revision is directed against an order passed on 8-1-1988 by the Assistant Sessions Judge, Banda in S.T. No. 170 of 1987, State v. Basanta and purporting to have been passed u/s 319 of the Code of Criminal Procedure, through which Jaipal Singh and Sukhpal Singh have been summoned to face trial. It appears that the case was u/s 307 of the IPC and was proceeding against Basanta only, against whom charge sheet had been submitted by the police. It also appears from ground No. 2 of the Grounds of Revision that against Jaipal Singh and Sukhpal Singh, no charge sheet had been submitted and only a final report had been given.

The scope of Section 319 of the Code of Criminal Procedure is now very clearly defined by catena of rulings of different High Courts including Allahabad High Court, and the cases of Harish Chandra v. State of U.P. 1982 ACR 57; Doodh Nath Lal Vs. State of U.P., and the case of Narayanan Nambiar v. State of Kerala 1988 SCC 41 may be looked into with advantage. Proceedings u/s 319 of the Code of Criminal Procedure can be initiated when there is material on the record justifying taking the cognizance of offence against the persons who have neither been charge sheeted nor made accused up to that stage. It may also be mentioned that the Section applies to a sessions Court also and the commitment is of the case and not of the accused. In other words it is the cognizance of the offence and not of the offender and summoning of additional persons is always incidental.

The provision of Section 319 of the Code of Criminal Procedure clearly mentions the presence of evidence and evidence is that which is tendered during enquiry or trial. It will not include the police statements recorded u/s 161 Code of Criminal Procedure. It will also not include the documents obtained by the police and sent alongwith the final report or the charge sheet, unless those documents have been proved at the enquiry or the trial. Then only it will become evidence.

The learned Assistant Sessions Judge has passed a very short order on 8-1-1988 which may be extracted as follows:

Heard and perused the papers of charge sheet. I find it justified to summon u/s 319 of the Code of Criminal Procedure. Hence summon them fixing 18-1-1988.

The order shows that what the learned Judge perused, was papers of the charge sheet. It means the papers sent by the police along with the charge sheet against Basanta, which also appears to be the final report against the present Petitioners. On the basis of these documents, the order u/s 319 Code of Criminal Procedure was not justified because these documents unless they were proved during course of trial, could not be equated with what is known as ''evidence''. The learned Assistant Sessions Judge''s order is therefore uncalled for and illegal and cannot be allowed to stand.

The revision is therefore allowed and the impugned order passed by the Assistant Sessions Judge, Banda, in S.T. No. 170 of 1987, State v. Basanta on 8-1-88 whereby he has directed the summoning of Jaipal Singh and Sukhpal Singh is quashed. It may however be made clear that as and when there is any evidence before the learned Assistant Sessions Judge against the applicants, his hands will not be tied down and he may proceed according to law.