K.C. Bhargava, J. - (1.) By means of this revision the revisionists have challenged an order dated 26-8-1993 passed by 5th Additional Sessions Judge, Unnao summoning the revisionists under Section 319 of the Code of Criminal Procedure. The facts which are relevant for deciding the present controversy are that one Suryanarain, the father of deceased Rani, lodged a written report on 5-7-1992 with the allegations that his daughter, Rani, was married to Kashi Din about six years back. After some days of the marriage his daughter' complained to him that she is being assaulted and tortured. She is also given mental torture by saying that she has not brought anything from her parents during the marriage. The complainant talked to the in-laws of his daughter but the matter could not be settled. About two months back the mother-in-law and sister-in-law (Nanand) of his daughter came and took away his daughter after getting the Bida done. On 5-7-1992 at about 8 a.m. Prem Narain, brother-in-law (Devar) and Ram Pasi informed the complainant that his daughter had died. On receiving this information he went to the place of his Samdhi and found that his daughter had died. From the body symptoms it appeared that she had been given some poison. The case was investigated. After investigation a charge-sheet was submitted in which the names of the revisionists, namely Srimati Shivrani and Kumari Santosh, were not mentioned meaning thereby that they were not made accused in the case. The case was committed to the Court of Session and the Additional Sessions Judge started recording the statements of witnesses. He recorded the examination-in-chief of one Suryanarain (complainant-P.W. 1) and Suraj Prasad (P.W. 2). On the basis of these statements the learned Additional Sessions Judge passed an order dated 26-8-1993 summoning both the revisionists under Section 319 of the Code of Criminal Procedure mentioning therein that in the First Information Report both the revisionists have been mentioned as accused persons. He also considered the part of the statements i.e. the examination-in-chief recorded by him and on the basis of the evidence existed at that time he summoned the revisionists. Aggrieved against this summoning order the present revision has been filed.
(2.) Heard learned Counsel for the revisionists and the learned Counsel for the State. Learned Counsel for the revisionists has argued that in the present case the learned Sessions Judge has only recorded the examination-in-chief of two witnesses and without waiting for completion of the statements meaning thereby completion of cross-examination the Additional Sessions Judge could not have summoned the revisionists. According to the learned Counsel for the revisionists merely recording of examination-in-chief cannot be said to be evidence within the meaning of Section 319 of the Code of Criminal Procedure. Section 319(1) of the Code of Criminal Procedure 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 should be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed." It is not necessary to reproduce the entire Section 319 of the Code of Criminal Procedure because the import of the word "evidence" used in sub-clause (1) is to be interpreted.
(3.) In the latest decision of the apex Court in the case of Kishun Singh v. State of Bihar, (1993) 1 Crimes 494 : (1993 Cri LJ 1700), the Supreme Court had an occasion to interpret the provisions of Section 319 of the Code of Criminal Procedure in relation to the powers of the Court to summon the persons not named in the charge-sheet though their involvements in the crime is disclosed in the First Information Report and the statement recorded under Section 161 of the Code of Criminal Procedure. The Hon'ble Supreme Court has considered the provisions of Section 193 of the Code of Criminal Procedure also and has held that the provisions of Section 193 of the Code of Criminal Procedure will apply to pre-cognizance stage and once cognizance is taken the provisions of Section 319 of the Code of Criminal Procedure will apply. In that case the Magistrate had summoned the accused persons at pre-cognizance stage without having recorded any evidence. Therefore that case was covered by the provisions of Section 193 of the Code of Criminal Procedure but the matter has also been dealt with by the apex Court in relation to Section 319 of the Code of Criminal Procedure. The principles which apply for summoning a person under Section 193 of the Code of Criminal Procedure also apply to the provisions of Section 319. In that case it was held that a Court of Session after commitment of a case to it by a Magistrate without recording any evidence by himself can summon a person who has not been named in the charge-sheet, under Section 193 of the Code of Criminal Procedure. The Hon'ble Supreme Court, in para 12 (of Crimes): (Para 11 of Cri LJ), laid down the following proposition : "On a plain reading of sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered ,in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police." In para 17 (of Crimes) : (Para 16 of Cri LJ), the Court also summarised its conclusions which are to the following effect: "We have already indicated earlier from the ratio of this Court's decision in the cases of Raghubans Dubey and Hariram that once the court takes cognizance of the offence (not the offender) it becomes the court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the court's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance." The Hon'ble Supreme Court has held that it is the duty of the court to summon the accused persons who appear to have been involved in the crime under the relevant law including Section 319 of the Code of Criminal Procedure. The court has to find as to who is the real offender and once the court prima facie comes to the conclusion that a particular person is also involved in the crime then that person has to be summoned by the court. The satisfaction of the court summoning a person as accused should be there and if prima facie evidence exists then he has to be summoned.;