- (1.) S. K. Phaujdar, J. In this applica tion under Section 482, Cr. P. C. the ap plicant has challenged an order dated 22-12-1993 passed by the IVth Judicial Magistrate, Aligarh, in Case No. 1984 of 1991, State v. Dharam Pal, under Sections 323, 324, IPC, P. S. Madrak, District Aligarh. The aforesaid order was chal lenged in a criminal revision No. 69 of 1994 before the Sessions Court and the IIIrd Addl. Sessions Judge at Aligarh had dismissed the revision application by his order dated 23-9-1996.
(2.) IT appears from the order im pugned that initially the case was taken up against Dharam Pal and others and certain witnesses were examined at the trial stage. In their statements, the complicity of the present applicants in the alleged offence had transpired and the prosecution made a prayer for an action under Section 319, Cr. P. C. against the present applicants. The learned trial court considered the prayer and directed issuance of summons on the present applicants by his order dated 22-12-1993. It was contended on behalf of the present applicants that a mere statement in examination-in-chief of the witnesses examined at the trial could not have been relied upon to record an order under Sec tion 319, Cr. P. C. as the statements could not be covered under the word 'evidence' unless the same was tested by cross- ex amination. In addition to meeting this point with an argument that even a state ment in examination in chief is 'evidence' so far Section 319, Cr. P. C. is concerned, the learned AGA took up a further plea that when a revision application has been dismissed, a second revision application did not lie even under the garb of invoking the inherent powers under Section 482, Cr. P. C. Section 319 (1), Cr. P. C. is reproduced in toto so that the argument of the parties, the reasoning that may be advanced by this Court and the case-laws that have been cited could be best ap preciated : "319. Power to proceed against other per sons 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 com mitted any offence for which such person could be tried together with the accused, the Court may proceed against such person for the of fence which he appears to have committed. "
(3.) THE learned Counsel for the State relied on the decision of the Supreme Court as reported in 1993 Crl. L. J. at 1077, Kisun Singh and others v. State of Bihar. It was a case where the Session Court had directed issuance of summonses to such accused persons who were not charge-sheeted and were not committed to it. It was a case where no evidence was led before the court and really the trial had not commenced. It was observed that as no evidence was led the power of summoning under Section 319, Cr. P. C. was not at tracted. But the Supreme Court was of the view that the Sessions Court had every jurisdiction to summon an additional ac cused by invoking its powers under Sec tion 193, Cr. P. C. as under the provisions of the Cr. P. C. of 1973 a case is committed to the Court of Sessions and not a particular accused and under Section 193 the Ses sions Court is empowered to take cog nizance upon commitment. THE order im pugned here has been recorded by a Magistrate for whose Section 193 is not at all applicable and some statement was made before him during trial and the ques tion for determination is whether the statements amounted to evidence in the sense the term has been used in Section 319, Cr. P. C. Another decision of the Supreme Court was referred to in this respect which stands reported in AIR 1983 SC 288, Sri Mahant Amarnath v. State of Haryana and another. Hence was a case where eye- wit nesses, examined during a sessions trial, gave sufficient details about participation of four persons in the alleged crime. The Sessions Judge implicated the persons so named as accused and the order was chal lenged which reached the Supreme Court. The order was held legal. It was urged before the Supreme Court that although details were given by the witnesses regard ing participation of the persons who were summoned as additional accused, such al legations had not figured in the state ments of the witnesses under Sections 161, Cr. P. C and the Session Judge should not have been given the impugned directions under Section 319, Cr. P. C. The Supreme Court ruled out this argument indicating that this aspect clearly fell within the domain of appreciation of evidence to be done finally at the end of the trial before pronouncement upon the guilt or other wise of the concerned accused. The Supreme Court held that there were suffi cient materials before the learned Ses sions Judge warranting the impugned directions. Although the judgment did not indicate if the witnesses at the trial had been cross-examined or not, the observa tion of the Supreme Court clearly sug gested that at the stage of exercising the power under Section 319, Cr. P. C. the court was not called upon to appreciate the evidence which was to be done only at the final stage. This observation is certain ly a pointer for the dispute now raised in this application.;