Suresh Chand and Others vs State of U.P.

M.C. Jain, J.—List has been revised. None appears from the side of revisionists. Learned A.G.A. is present on behalf of the opposite party--State of U.P.

This revision has been filed by eight persons against the order dated 2.4.1997 passed by Sri H.S Yadav, 5th Addl. Sessions Judge, Etah, in S.T. No. 131 of 1996, by this order, he summoned the revisionists during the course of trial on an application having been made by the State u/s 319, Code of Criminal Procedure after recording of the examination-in-chief of P.W. 1 Menhdi Hasan who accused the revisionists also as the offenders of the crime in question. The ground raised in the revision petition is that the revisionists could not be summoned without cross-examination of P.W. 1 Menhdi Hasan. It has been contended in the grounds of revision that the Court below illegally exercised the extraordinary powers contained in Section 319, Code of Criminal Procedure.

Actually the question was referred to a large Bench for answer of the question as to whether the term ''evidence'' contained in Section 319, Code of Criminal Procedure means ''evidence'' complete by cross-examination. The question has been answered by Division Bench of Hon''ble Giridhar Malviya, J. and Hon''ble J.C. Mishra, J., in Criminal Misc. Application No. 1823 of 1995 and Criminal Revision No. 447 of 1997 on 12.10.1998. Reference has been answered thus:

The term ''evidence'' as used in Section 319, Code of Criminal Procedure does not mean an ''evidence'' complete by cross-examination and the Court can take action u/s 319, Code of Criminal Procedure even on the statement made in examination-in-chief of one or more witness.

It now, therefore, admits of no doubt that the terms (evidence) as used in Section 319, Code of Criminal Procedure means statement made by a witness only in examination-in-chief, without having been subjected to cross-examination. In the instant case P.W. 1 Menhdi Hasan did name the present revisionists is being the offenders in his examination-in-chief. It matters not that the police did not submit the charge-sheet against them. It goes without saying that the powers of the Court contained in Section 319, Code of Criminal Procedure override the investigation. There is no illegality, impropriety or incorrectness in the impugned order passed by the Court below summoning eight revisionists in exercise of power u/s 319, Code of Criminal Procedure on their having been named by P.W. 1 Menhdi Hasan in his examination-in-chief. This revision has no merit and is hereby dismissed. The stay order dated 15.4.1997 is vacated, meaning thereby that the impugned order dated 2.4.1997 passed by the 5th Addl. Sessions Judge, Etah, in S.T. No. 131 of 1996 shall take effect.

The office shall send a copy of this order to the 5th Addl. Session Judge, Etah. for further needful action.