- (1.) A. P. Sahi, J. The petitioner-Smt. Bhuri lodged a complaint under Section 156 (3), Cr. P. C. to the effect that the accused persons cheated her by obtaining documents in the name of getting a lease executed in her favour and instead obtained some loan in her name the recovery whereof was sought to be made from her. Having discovered this fraud practiced on her, she lodged the complaint on 21. 6:1997.
(2.) THE trial proceeded and during the trial, an Application was moved by the complainant after her examination-in-chief to summon one Sri Ashok Kumar, the village Pradhan, and the Branch Manager Sri N. N. Kapoor of the Punjab National Bank, on the allegation that they had also conspired in getting the fraudulent documents prepared. THE said application has been rejected on 1. 9. 2007 by the learned Magistrate on the ground that the petitioner has only gone through her examination-in-chief and additional evidence is yet to come, therefore, the said application was not liable to be entertained and was, accordingly, rejected. A revision was preferred by the petitioner which was disposed of with the observation that keeping in view the law laid down by the Apex Court in the case of Mohd. Shafi v. Mohd. Rafique, 2007 (58) ACC 254, the application can be entertained after the cross-examination of the witness is completed. Accordingly, the order of the trial Court was modified to the extent that such an application could be moved after the cross-examination is completed. The present writ petition has been filed assailing the said orders on the ground that the law referred to by the revisional Court ignores the other decisions of the Supreme Court and the decisions of this Court and, therefore, the matter should be remitted back for a decision afresh. The basic issue is as to whether the Magistrate can proceed to summon a person even before the cross-examination of a witness is undertaken. For a better appreciation, it would be appropriate to quote Section 319, Cr. P. C. herein below: "319. Power to proceed against other persons 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 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. (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, although not under arrest or upon a summons, 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 person shall be commenced a fresh, and the witnesses reheard; (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 cognizance of the offence upon which the inquiry or trial was commenced. "
(3.) A perusal of the a foresaid provisions leaves no room for doubt that the Court has wide discretion in the matter and in case the Court is satisfied that the person, sought to be summoned, has committed any offence on the basis of the evidence already led, then the Court may proceed against him as if he was an accused when the Court took cognizance of the offence initially. However, the Section protects the rights of such a person by clearly stating that the proceeding in respect of such a person shall be commenced afresh and the witnesses shall be reheard. This clearly means that there would be a de novo trial for such a person and all the witnesses will have again to be proceeded with afresh and the entire procedure will have to be adopted. This would ensure the absence of any prejudice to such a person which stands assured by a de novo trial altogether. The Supreme Court in the case of Michael Machado v. C. B. I. , 2000 (40) ACC 1021, after considering the earlier decisions on this issue, came to the conclusion that it is not enough that the Court upon entertaining some doubt from the evidence, may proceed to summon a person. The Court must have reasonable satisfaction on the evidence already collected that an offence has been committed by such person and that he deserves to be tried as an accused.;