S.K.PHAUJDAR,J. - (1.) THE matter was heard on 22 -7 -1998.
(2.) IN Sessions Trial No. 25 of 1995 the First Addl. Sessions Judge, Farrukahabad, had recorded an order on 16 -6 -1998 and had taken an action under Section 319, Cr. C.P. to summon the present applicants as accused in the trial. It appears that the names of the .applicants were there in the FIR and the complainant made an allega ­tion that their names were deliberately dropped by the Investigating Officer in the charge -sheet. One witness was examined in the Sessions trial and in his statement involvement of these two applicants in the alleged offence was alleged. At this stage the complainant made a prayer for an ac ­tion under Section 319, Cr. P.C. and the impugned order was passed. It was argued that during investiga ­tion the complainant did not assign any role in the incident to the present two applicants and, accordingly, no charge -sheet was submitted and when the report was accepted by the Magistrate, it was not open for the Sessions Court to summon these applicants even under Section 319, Cr. C.P. It was stated that the examination -in -chief of the witness before the Sessions Court was not evidence as it was not tested by cross -examination. This view may not be a correct one as the insistence for cross -examination of a witness before taking action under Section 319, Cr. P.C. would frustrate the very purpose of this section as the section requires joint trial of the exist ­ing accused persons and the persons sum ­moned under Section 319, Cr.P.C. To insist upon cross -examination would, thus, be an unnecessary exercise.
(3.) . In accepting a charge -sheet or a report of the police the court, taking the best view of the matter for the applicants, had discharged them. This discharge could not amount to an acquittal as per explana ­tion to Section 307, Cr. P.C. and even if the order of the Magistrate amounted to a discharge, a further trial may not be barred and, as such, the power under Section 319, Cr. P.C. could be exercised even for a per ­son against whom charge -sheet was not submitted.;