Mom Raj vs State of U.P.

Mukteshwar Prasad, J.—This criminal revision by one Mom Raj son of Sukkhan has been filed against the order dated 20.1.1988, passed by the then Additional Sessions Judge, Moradabad in S. T. No. 563 of 1986, State v. Khaderu and others S. T. No. 563 of 1986, whereby the learned Judge summoned the revisionist to face trial along with other accused u/s 302, I.P.C. and exercised his powers u/s 319, Cr. P.C.

I have heard Sri Akhilesh Singh, learned Counsel for the revisionist, learned A.G.A. and perused the record.

Admittedly, revisionist was also named in the F.I.R. along with four other accused, Khaderu, Buddhan, Babu and Janki for having committed murder of one Khub Chand. During trial, the prosecution examined P.W. 1 Ram Pal Singh on 20.1.1988 and on the same day, an application 14 Kha was moved by the State u/s 319, Cr. P.C. for summoning the revisionist as an accused to face trial.

After having considered the statement of Ram Pal Singh and statements of other witnesses recorded during investigation, learned Judge summoned the revisionist to face trial along with others.

Learned Counsel for the revisionist has challenged the impugned order solely on the ground that P.W. 1 Ram Pal Singh was not cross-examined by the learned Counsel for the defence and merely on the basis of the examination in chief recorded in the Court, learned Judge was not justified to summon the revisionist to face trial.

Reliance has been placed by learned Counsel for the revisionist on a decision of the Apex Court in Michael Machado and Another Vs. Central Bureau of Investigation and Another, .

On the other hand, learned A.G.A. has supported the impugned order and has placed reliance on a decision of Supreme Court in Rakesh and Another Vs. State of Haryana, .

I have considered the submissions made on behalf of the parties and perused the decisions of the Apex Court relied upon by them.

The Apex Court in Rakesh''s case (supra), decided the question whether the statement of prosecution witness, without the witness having been cross-examined, constitute ''evidence'' within the meaning of Section 319, Cr. P.C., the Court replied in affirmative and clearly held that evidence does not mean evidence tested by the cross-examination and statement of a witness recorded by the Court can be prima facie material to enable the Court to decide whether the person not arraigned before it is involved in the crime or not. Section 319, Cr. P.C. does not contemplate cross-examination of a witness prior to adding persons as an accused. It is therefore, clear that for placing reliance on the statement of a witness, for the purposes of Section 319, Cr. P.C., the cross-examination of the witness is not a condition precedent.

In view of the law laid down by the Apex Court, I find that this revision is devoid of merit and is liable to be dismissed.

The revision is hereby dismissed and stay order dated 25.3.1988 stands vacated.