Atma Ram Rajpur vs State of U.P. and Another

P.K. Jain, J.—Heard Sri A.K. Saxena, learned Counsel for the revisionist and the learned A.G.A.

The revisionist being finally disposed of at the admission stage with the consent of the parties.

A criminal case is pending before the learned Magistrate against one Manoj. In that case and examination-in-chief of P.W. 1 Raghunath was recorded and thereafter an application was moved by the revisionist to summon the revisionist Atma Ram as an accused u/s 319, Code of Criminal Procedure. The learned Judge by the impugned order dated 17.5.1997 summoned the revisionist u/s 319, Code of Criminal Procedure observing that examination-in-chief of P.W. 1 had been recorded and that in his statement u/s 161, Code of Criminal Procedure the first complainant had made allegations prima facie making out a case against the accused.

The impugned order is challenged on the ground that order u/s 319, Code of Criminal Procedure can be passed only after, cross-examination of the witness was completed and that while passing the impugned order u/s 319, Code of Criminal Procedure, the court could not have looked into the statements recorded by the I.O. u/s 161, Code of Criminal Procedure Learned A.G.A. contends that now there is settled view of this Court that order u/s 319, Code of Criminal Procedure can be passed only after complete evidence of the witness is recorded, that is, the statement in examination-in-chief tested by the cross-examination. In the instant case, the learned Judge has committed an error and passed the impugned order at premature stage. Section 319(1) of the Code of Criminal Procedure says that where. ...it appears from the evidence...Statement u/s 161, Code of Criminal Procedure cannot be treated as evidence. It is only the evidence recorded during inquiry or trial which can be considered for purpose of exercising powers u/s 319, Code of Criminal Procedure. The learned Judge has committed an error in considering the statement u/s 161, Code of Criminal Procedure Consequently, the Impugned order cannot be sustained.

The revision is allowed at the admission stage and the impugned order is set aside.