Viddo vs State of Punjab

A. P. Chowdhri. J.

This revision is directed against order dated June 9, 1989, of the Judicial Magistrate, 1st Class, Ferozepur, passed under sec. 319 of the Code of Criminal Procedure summoning Smt. Viddo daughter of Teja Singh to stand trial along with the other accused being tried in case FIR No. 51 dated 31.1.1986 under sections 326/324/323/148/149 of the Indian Penal Code, Police Station Mamdot. In the first information report as also the statements of material witnesses recorded under section 161 of the Code of Criminal Procedure, it was stated that Smt. Viddo daughter of Teja Singh was armed with a dang and she had caused an injury to Vir Singh. The learned Magistrate recorded the statement of Gurcharan Singh PW2 and on the basis of his statement passed the impugned order. Smt. Viddo has filed the present revision assailing the said order.

Mr. Chhabra, learned counsel for the petitioner, contended that examination of Gurcharan Singh PW2 had not been completed, in that his cross examination was deferred on account of nonavailability of counsel for the accused. In the absence of the crossexamination, the statement of Gurcharan Singh PW2 could not be considered Evidence and therefore, it followed that the learned Magistrate was not empowered to pass the impugned order. The plain words of section 319 of the Code of Criminal Procedure make it abundantly clear that it is only on the basis of "evidence" in the course of any enquiry or trial of an offence that the power to summon a person under section 319 can be exercised. In the present case it was not that the Magistrate may have concluded the evidence of Gurcharan Singh by giving the accused an opportunity of crossexamining the witness. He deferred cross examination. It follows that the statement of Gurcharan Singh had not been completed and it could not be considered to be evidence on the basis of which powers under section 319 could be used. The case is completely covered by the decision of this Court in Roshni Devi v. State of Haryana, 1987(1) Recent Criminal Report 661 .

For the foregoing reasons, the revision petition is allowed and the impugned order summoning Smt. Viddo is set aside. It will, however, be open to the learned Magistrate to pass an appropriate fresh order under section 319 of the Code of Criminal Procedure with regard to Smt. Viddo according to law after completing the statement of Gurcharan Singh PW2 or other witness or witnesses examined by the prosecution. The parties through their counsel are directed to appear before the trial Court on February 21, 1981, for further proceedings according to law.