Smt. Radha Devi vs State of U.P. and Smt. Meena Devi

S.N.H. Zaidi, J.—This revision has been directed against the order dated 19.8.2004 passed by Addl. Sessions Judge, F.T.C. I, Jaunpur in S.T. No. 253 of 2003 State v. Shiv Shanker and Ors. whereby the revisionist has been summoned u/s 319 Cr.P.C.

The facts which gave rise to this revision; in brief, are that opposite party No. 2 Smt. Meena Devi had lodged a report at Police Station Sujangani, district Jaunpur that her minor daughter Km. Kanchan was kidnapped on 2.12.97 from the house. On the basis of the report a case u/s 363 I.P.C. was registered against the revisionist and one Shiv Shanker Tiwari. The police investigated the case, recovered the kidnapped girl, arrested the accused persons and filed the charge sheet u/s 363, 366A I.P.C. against Shiv Shanker and 4 others. After the case was committed to the court of Sessions for trial, charges of the aforesaid sections were framed against the accused persons. During the trial P.W. 1. Smt. Meena Devi and her daughter P.W. 2 Km, Kanchan were examined. After their examination, two applications 29-B and 32-B were moved by the prosecution. Application 29-B was moved u/s 216 Cr.P.C. for addition of the charge of Section 376 I.P.C. against accused persons and application 32-B was moved u/s 319 Cr.P.C. for proceeding against Smt. Radha Devi, the revisionist, together with present accused persons.

The trial court, by the impugned order, allowed both the applications. Feeling aggrieved with the said order, only Smt. Radha Devi has preferred this revision in respect of the order passed on application 32-B.

I have heard the learned A.G.A. for the State and learned Counsel for opposite party No. 2 as none appeared for the revisionist when the case was taken up in the revised list. I have also perused the impugned order as well as the materials on record.

According to the memo of revision, the prosecutrix Km. Kanchan had not named the revisionist in her statement recorded u/s 164 Cr.P.C. and the witnesses examined before the trial court were not cross examined. Thus, no opportunity was given to the accused persons to cross examine the witnesses and the learned trial Judge has overlooked the above circumstances in passing the impugned order.

It is undisputed that the revisionist Smt. Radha Devi was named in the F.I.R. along with Shiv Shanker but the Investigating Officer did not file the charge sheet against her.

On a plain reading of Section 319 Cr.P.C. it would appear that if a person is not before the Court as an accused of the offence, which from the evidence, he appears to have committed, the Court may summon such person to face the trial together with the accused persons before it. The main purpose of this provision is that the whole case against all known suspects should be proceeded with and the court at this stage is not called upon to evaluate or appraise the evidence with a view to assess whether the evidence is sufficient for his ultimate conviction or not.

The Hon''ble Supreme Court in the case of Rakesh and Another Vs. State of Haryana, has observed that once the sessions court records a statement of the witnesses it would be a part of the evidence. It is true that finally at the time of trial the accused is to be given an opportunity to cross examine the witnesses to adduce its truthfulness but that stage would not arise while exercising the court''s power u/s 319 Cr.P.C. Once the deposition is recorded, no doubt there being no cross examination , it would be a prima facie material which would enable the sessions court to decide whether the powers u/s 319 Cr.P.C. should be exercised or not. In view of this, the court can exercise jurisdiction u/s 319 Cr.P.C. before the witness is allowed to be cross examined. Therefore, the summoning before the cross examination of P.W. 2 Km. Kanchan, does not not make the impugned order illegal. This Court in Rajbhar v. State of U.P. and Ors. 205 CriLJ 3679 has observed that the evidence envisaged in Section 319 Cr.P.C. is the evidence rendered during the trial of the case and the material collected during the investigation and placed before the committal court, cannot be treated as evidence. In other words, for the purpose of Section 319 Cr.P.C. the evidence collected by the Investigating Officer during the investigation does not fall within the parameter of the evidence recorded by the trial court in the trial. It appears that since the name of the revisionist did not figure in the statement of the prosecutrix recorded u/s 164 Cr.P.C, therefore, the Investigating Officer did not file the charge sheet against her but since in her statement given before the trial court, P.W.2 Km. Kanchan has named the revisionist as one who had enticed her away, therefore, the learned lower court was justified in summoning the revisionist in exercise of jurisdiction u/s 319 Cr.P.C.

In view of the above, there appears no illegality or material irregularity in the impugned order in summoning the revisionist for trial along with the present accused persons. This revision has, therefore, no force and is accordingly dismissed.