- (1.) THIS revision petition has been filed against the order dated 11. 10. 2006 passed by the learned Additional Sessions Judge whereby the ASJ, after summoning one Shammi Kumar a witness cited by prosecution as accused under Section 319 Cr. P. C. vide his order dated 20. 9. 2006 not only discharged him, but after recording the statement of Shammi Kumar under Section 313a Cr. P. C. he also discharged chander Shekhar an accused who was sent for trial along with other accused persons to face a charge under Section 29 of Arms Act.
(2.) IT is submitted by the learned APP that both the orders dated 20. 9. 2006 and 11. 10. 2006 are not sustainable in law for the reason that for summoning any additional accused the procedure has been prescribed under Section 319 Cr. P. C. which reads as under:-Section 319 Power to proceed against other persons appearing to be guilty of offence- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trail of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a0, the case may proceed as if such person had been an accused person when the Court took congnizance of the offence upon which the inquiry or trial was commenced.
(3.) AS no evidence had come on record, the orders summoning shammi Kumar was illegal and therefore his statement under Section 313a Cr. P. C. also could not have been recorded.;