J.C.MISHRA, J. - (1.) These references have been made in the above cases to resolve the conflicting decisions of the Single Benches on the controversy, whether a person, who was not an accused in a case, can be summoned under Section 319 of Code of Criminal Procedure on the strength of uncross-examined evidence of a witness/witnesses and without giving opportunity of cross-examination to the accused. The question formulated in the reference made by Hon'ble S. K. Phaujdar, J. in Criminal Misc. application No. 1823 of 1995 is incorporated below :"Whether the term 'evidence' as used in section 319 Cr.P.C. could only mean an evidence complete by cross-examination or if the court can take action under this section even on the statement made in examination-in-chief of one or other witnesses."
(2.) Similar reference was made by Hon'ble C. A. Rahim, J. in Criminal Revision No. 447 of 1997.The applicants Ram Gopal and Gajadhar in Criminal Misc. Application No. 1823 of 1995 were summoned by Ist Additional Sessions Judge, Agra by order dated 27-3-95 on the basis of evidence of Shri Prasad whose cross-examination could not be completed. The accused challenged the order of summoning by filing application under section 482 Cr.P.C. The arguments were heard by Hon'ble S. K. Phaujdar, J., who in view of conflicting decisions referred the controversy to larger Bench.In Criminal Revision No. 447 of 1997 the evidence of Mehndi Hasan (P.W. 2) was recorded by V. Additional Sessions Judge, Etah. After completing examination-in-chief the State Counsel filed an application under section 319 Cr.P.C. The learned Additional Sessions Judge considered the evidence contained in the examination-in-chief of Mehndi Hasan, first information report and case diary, and observed that the revisionists had also committed the offence complained along with six other persons who were facing trial. He, therefore, summoned the revisionists and directed issuance of non-bailable warrants. Felt aggrieved these accused have preferred revision. Hon'ble C. A. Rahim, J., after hearing the parties referred the controversy to larger Bench.
(3.) As the controversy in the application under section 482 Cr.P.C. and criminal revision is same, both references were heard together and are being answered by this order.;