- (1.) S. R. Bhargava, J. This revision under Section 397, Cr. P. C. , is directed against an order under Section 319, Cr. P. C. passed by the II Additional Sessions Judge, Banda, in Sessions Trial No. 35 of 1989, under Sections 307/325, I. P. C. State v. Sudas and others, summoning revisionists Chandra Pal Singh and one Lakhan Singh.
(2.) IT is not disputed that revisionist Chandra Pal Singh is President of Zila Parishad, Banda. In first information report lodged by complaint Shiv Raj Singh on 5th June, 1988, allegations were that at about 9. 30 a. m. on the same day when the complainant and his men went to cast votes, supporters of candidate of Matganjan on the order of Chandra Pal Singh, Sudas, Shyamlal and Ravendra Singh started quarrelling. They used their weapons, resulting into injuries to complaint and others. Witnesses rescued them. After investi gation, charge-sheet was filed against Sudas, Shyamlal and Ravindra Singh only. IT was mentioned in the charge-sheet that investigation was proceeding against Lakahan Singh. But the charge-sheet was not filed against revisionist Chandra Pal Singh, Sudas, Shyamlal and Ravindra Singh were committed to Session for facing trial under Section 207, I. P. C. etc. " After these three accused were charged with different offences, the learned Additional Sessions Judge recorded evidence of complainant Shiv Ram Singh P. W. 1 and witness Shiv Raj Singh, P. W. 2. IT emerged in their evidence that the assault took place at the spot on the exhortation of Chandra Pal Singh. Complainant Shiv Ram Singh moved application for summoning Chandra Pal Singh and Lakhan Singh under Section 319, Cr. P. C. Learned Additional Sessions Judge, referred to evidence recorded before him and also the evidence in the case diary and summoned both Chandra Pal Singh and Lakhan Singh under Section 319, Cr. P. C. Being aggrieved, Chandra Pal Singh has filed the present revision. For appreciating the arguments advanced in this revision, it would be useful to note the provisions of 319 (1), Cr. P. C. which runs as under ;- "section 319 (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", words "it appears from the evidence" are proceeded by words "in the course of any inquiry into, or trial". They are not preceeded by words "investigation". It can be safely said for the purpose of summoning a person for joint trial, the court proceeding with the inquiry or the trial should confine itself to the evi dence adduced before it. The evidence collected during investigation cannot be basis for summoning a person for joint trial under Section 319 (1 ). Then the word 'appears' occurring in this section is significant. It has been used at two places in the sub- section and has same connotation. Word 'appears' does not mean 'proves', it only signifies that there is prima facie case against the person summoned under Section 319 (1), Cr. P. C. for joint trial. The third feature of this sub-section is that the power given in the sub-section is for justice and the court can exercise this power suo moto or an application of any of the parties. Under this sub-section a court has jurisdiction to summon a person even on the application of complainant. The duly pre-requisite is, it should appear from the evidence that the person sought to be summoned, not being an accused, has committed any offence for which he should be tried together with the accused.
(3.) ONE of the grounds of revision was that the revisionist was summon ed under Section 319, Cr. P. C. on the application of the complainant. But as noted above, this ground can have no substance. A perusal of the impugned order shows that the learned Additional Sessions Judge, not only relied upon the evidence before him but also the evidence collected during investigation. This was improper and beyond the jurisdiction of Sessions Judge. Nevertheless, revisionist was named in the first information report Although the allegation against him in the first information report was unhappily worded yet it connoted exhortation. Then there were statements of two witnesses on oath recorded by the Sessions Judge, in which it was said that the revisionist exhorted his co-accused and on his exhortation and assault took place. On behalf of the revisionist reliance was placed on cross- examination of the witnesses and particularly omission in their statement under Section 161, Cr. P. C. It has already been seen that for purposes of summoning under Section 319, Cr. P. C. only prima facie case has to be seen and meticulous examination of evidence cannot be done. For sum moning under Section 319, Cr. P. C. the Court has not to determine whether the evidence is reliable on meticulous examination. Effect of omission during investigation can be seen only after the entire evidence is recorded and weigh ed. I hold that on the evidence of two prosecution witnesses, examined by the Sessions Judge, it could be said that there was prima facie case of exhortation against revisionist. Hence the Sessions Judge was justified in summoning the revisionist.;