Shri Kant Tripathi - (1.) HEARD, the learned counsel for the revisionist and the learned A.G.A. for the State and perused the record.
(2.) THE revisionist Sajid has preferred this revision against the order dated 18.8.2009 passed by the Additional Sessions Judge, Fast Track Court No. 2, Kannauj in S.T. No. 197 of 2005, whereby the learned Additional Sessions Judge has summoned the revisionist under Section 319, Cr. P.C. to face trial for the offence under Section 307, read with Section 34, I.P.C. alongwith other accused. The learned Additional Sessions Judge has passed the summoning order on the basis of the statements of the witnesses recorded under Section 161, Cr. P.C. as well as the statement of P.W. 1 Ram Bux. It may also be mentioned that the accused was not given any opportunity to cross-examine P.W. 1 Ram Bux and the summoning order was passed merely on the basis of his statement recorded during the examination-in-chief. It was further submitted that the summoning order could be passed under Section 319, Cr. P.C. only after cross-examination of the witnesses. In this connection the learned counsel for the revisionist placed reliance on Mohd. Shafi v. Mohd. Rafiq and another, 2007 (58) ACC 254 : 2007 (2) ACR 2268 (SC). In that case the Apex Court has held that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the witness. For the said purpose, the Court concerned may also like to consider other evidence. It is settled law that the power under Section 319, Cr. P.C. can be exercised either on an application made to the Court or by the Court suo motu. The Court has power under Section 319, Cr. P.C. to proceed against any person not shown to be an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused. The main object underlying Section 319, Cr. P.C. is that the whole case against all accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same cease and in the same manner as against the original accused. It is, therefore, a matter of discretion of the Court to summon an accused under Section 319, Cr. P.C.
(3.) IT was therefore, necessary and expedient for the learned Additional Sessions Judge to arrive at the conclusion that there was a possibility that the revisionist in all likelihood would be convicted on the basis of evidence adduced during the trial. Such satisfaction could only be recorded after cross-examination of the P.W. 1 Ram Bux and other witnesses if examined. Without cross-examination of P.W. 1 Ram Bux his statement could not be treated as a legal evidence even for the purpose of Section 319, Cr. P.C. I am, therefore, of the view that the learned Additional Sessions Judge has committed error of law in placing reliance on uncross-examined statement of P.W. 1 Ram Bux for summoning the revisionist. By doing so the learned lower court has committed miscarriage of justice in the case.;