- (1.) M. C. Jain, J. The applicants Chandra Bhan Singh, Kailash Singh, and Budhai Singh by an order dated 15-5-1994 passed by Sri Kertar Singh XII Addl. Ses sions Judge, Moradabad in ST No. 903 of 1991 (State v. Mukesh alias Kaluwa) have been summoned in exercise of powers under Section 319 Crpc to face trial under Section 307/304 IPC in ST 903-Aof 1991.
(2.) THE facts are few. THE applicants were named in an FIR lodged on 25-12-1989 at 2. 30 p. m. at P. S. Navgava Sadat, District Moradabad with regard to an oc currence which took place on that day at 12. 30 p. m. the life of one Bhanu was cut short in the said incident. THE FIR was made by Veer Bhan. Fires had also been allegedly shot by them on complainant Veer Bhan and Dinesh who had escaped unhurt. However, one Mukesh alias Kaluwa figured during the course of inves tigation and he was put at trial in ST No. 903 of 1991. He was acquitted by the judg ment dated 15-12-1994 in question but the Court took cognizance against the present applicants in exercise of powers under Section 319 Crpc on the ground that they had been named in the FIR and evidence had come to be there against them before the Court in the testimony of complainant, PW 1 Veer Bhan and PW 2 Dinesh. THE evidence was to the effect that the shot opened by the applicant Chandra Bhan had killed Bhanu whereas the remaining two applicants had opened fire on the complainant Veer Bhan and Dinesh who had, however escaped unhurt. I have heard learned Counsel for the applicants and learned AGA from the side of the State. It is argued by the learned Counsel for the applicants that the police had sub mitted final report against them after the investigation of the case and as such there could be no justification of summoning them under Section 319 Crpc. This argu ment has no merit. Admittedly, the three applicants were named in the FIR made by an eye-witness Veer Bhan and the final report submitted by the police after inves tigation could not be the last word. It could not over-shadow the evidence that had come to be there before the Court in the testimony of eye-witnesses that they were the real culprits. The police, during inves tigation, could not assume the role of the Court by recording a verdict that they had wrongly been named in the FIR. The con dition requisite for proceeding against someone in exercise of powers under Sec tion 319 Crpc is that during the course of enquiry into or trial of an offence, it must appear to the Court from the evidence that any person not being the accused has com mitted the offence for which such person could be tried. In such eventuality, the Court may proceed against such person for the offence, which he appears to have com mitted. As the applicants came to be named as the culprits in the testimony of eye-witnesses, namely, PW 1 Veer Bhan and PW 2 Dinesh in No. 903 of 1991 (State v. Mukesh alias Kaluwa), the Court could proceed against them by making an order under Section 319 Crpc.
(3.) IT is settled law that the term evidence does not mean evidence com plete by cross-examination. The Court can take action on uncross-examined evidence while exercising power under Section 319 Crpc. Indeed, the final report submitted by the police against the applicants could not be placed on a higher pedestal adverse ly affecting the powers of the Court under Section 319 Crpc which it can exercise on the basis of evidence coming before it. The second argument of learned Counsel for the applicants is that an order under Section 319 Crpc could he passed by the Court only during the pendency of the trial. According to learned Counsel the Court could not pass an order under Sec tion 319 Crpc against the applicants while deciding Sessions Trial itself against the charged accused Mukesh alias Kaluwa by the impugned judgment and order. Again, this argument has no valid basis. Learned Counsel for the applicants could not sup port this argument by any authority. The logical interpretation of Section 319 Crpc suggests that order can be passed there under when evidence appears against the person concerned during the course of an enquiry or trial of an offence. The course of trial continues till its lasts, meaning there by that an order can be passed under Sec tion 319 Crpc during the trial or at the time of the termination of the trial. In other words, action under Section 319 Crpc cannot be taken subsequent to the conclusion of the trial. Since evidence ap peared to be there against the applicant at the trial of Mukesh alias Kaluwa in the testimony of eye-witnesses namely, PW 1 Veer Bhan and PW 2 Dinesh, the Court below was perfectly within its powers to pass an order against the applicants to proceed against them under Section 319 Crpc by the impugned judgment and order while acquitting the charged accused Mukesh alias Kaluwa.;