- (1.) J. C. Mishra, J. These revisions have been filed by the revisionists chal lenging the orders passed under Section 319, Cr. P. C. summoning them to face trial. The common point that has arisen in these cases is whether the court can summon the accused, against whom no evidence was collected during the investigation, only on the strength of the statement of prosecu tion witness, who was not cross-examined. In these cases the prosecution witness was examined by the prosecution wherein he disclosed the complicity of the applicant in the crime. The Presiding Officer without giving opportunity to the accused persons, who were already facing trial, to cross-ex amine the witness summoned the revisionists.
(2.) THE learned Counsel contended that since the witness was not cross-ex amined his statement could not be treated as evidence and, therefore, on the basis of uncross-examined testimony the accused could not be summoned. He contended that the court concerned committed il legality in summoning the applicant. I have heard the learned Counsel for the revisionists and learned Additional Government Advocate. For appreciation of the central core of the controversy Section 319, Cr. P. C. is reproduced below:- "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 offence which he appears to have committed. (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, al though not under arrest or upon a summon, may be detained by such Court for the purpose of the inquiry into, or trial 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 per son shall be commenced afresh, and the wit nesses re-heard; (b) subject to the provisions of clause (a) the case may proceed as if such person had been an accused person when the Court took cog nizance of the offence upon which the inquiry or trial was commenced. "
(3.) ON a plain reading of sub-section (1) of Section 319, Cr. P. C. there can be no doubt that if it appears 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, can be summoned. This power can be exer cised 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 where from the court can prime facie conclude that the person, not arraigned before it, is also involved in the crime, for which he can be tried with those already named by the police. Even a person, who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code. Kishun Singh v. State of Bihar, 1993 JIC 445. It appears that there is conflict of opinion on the vital question whether a person can be made accused on the strength of un-cross-examined testimony under Section 319, Cr. P. C.;