K.N. Ojha, J. - (1.) Heard Sri Mukhtar Alam, learned Counsel for the revisionist, learned A.G.A. and have gone through record.
(2.) Instant revision has been preferred by Man Mohan Bhasin alias Lakkhi against order dated 7.5.2004 passed by learned Additional District and Sessions Judge, Chandausi, District Moradabad in Sessions Trial No. 1045 of 2003, State v. Yogendra Sahani and others, whereby the learned Additional District and Sessions Judge, Chandausi, District Moradabad has summoned the revisionist-accused to face trial under Sections 60(2) and 62 of Excise Act and under Sections 420, 467, 468, 471, 472, 272, 273, Indian Penal Code The learned Counsel for the revisionist has placed reliance on 1993(3) ACC 167, Kishun Singh v. State of Bihar , wherein it has been laid down by the Hon'ble Apex Court that when evidence was not led and the Sessions Judge has not examined any witness, the accused cannot be directed to appear under Section 319, Criminal Procedure Code solely on the basis of documents prepared during the investigation and the learned Sessions Judge was not justified in summoning the accused under Section 319, Criminal Procedure Code. Section 319 (1) contemplates as below : "(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."
(3.) In the instant case record shows that revisionist was named in the F.I.R. The witnesses made statement under Section 161, Criminal Procedure Code he was not arrested at the spot. After investigation charge-sheet was submitted against two accused persons but final report was submitted in the case of the revisionist. On the date the charge was framed, learned Additional Sessions Judge arrived at conclusion that since revisionist was named in the F.I.R. and statement was made by the witnesses under Section 161, Criminal Procedure Code against him, hence he was being summoned as accused under Section 319, Criminal Procedure Code to face trial.;