NIRMAL SINGH,J - (1.) THIS order will dispose of Crl.Misc. Nos. 5631-M and 7524-M of 2001 arising out of FIR No. 45 dated 27.2.1999 registered at P.S. Malerkotla under Sections 447, 448, 149 IPC.
(2.) BRIEFLY stated the facts of the case are that aforesaid FIR was registered against the petitioner on the statement of Inder Singh, complainant. During investigation, petitioner was found innocent. At the time of trial, Complainant Inder Singh filed an application under Section 319 Cr.P.C. before the trial Court that the petitioner be summoned alongwith the co-accused to face trial. The Sub Divisional Judicial Magistrate after recording the statement partly, summoned the petitioner to face trial alongwith the co- accused vide order dated 8.12.2000. Petitioner has impugned the order dated 8.12.2000 on the following grounds :- 1) As per provisions of Section 319 only another person than the accused can be summoned on recording the evidence in course of enquiry or trial of an offence in view of 1991(1) Crimes Page 61 (P&H). So in this case the order has been passed without recording the evidence of the prosecution. 2) That merely recording the examination-in-chief of the complainant while part deferred cannot be considered admissible evidence upon which the petitioner can be summoned in view of 1987 Crl. Law Journal 729, 1991 Crl. Law Journal Page 21, 1994(2) Chandigarh Criminal Cases 223, 1998(4) Recent criminal Cases 315, 1997(1) RCC 797, 1996(1) RCR 699. 3) That the order dated 8.12.2000 is non-speaking order. No reasoning has been recorded from which the court be satisfied to summon the accused- petitioner. 4) That in the disputed land the father of the petitioner is co-sharer and case of trespassing cannot be registered against the father of the petitioner or any of his family members.
(3.) MR . K.S. Chahal, learned counsel for the petitioner submitted that the petitioner was found innocent during investigation. He contended that the learned Magistrate has summoned the petitioner on the basis of the same evidence, on which, the petitioner has been found innocent during investigation. He further contended that statement of complainant has been partly recorded which cannot be read in evidence without cross-examination. He further contended that there was no legal evidence before the learned trial Court at the time of summoning the accused. The learned trial Court has summoned the petitioner on the basis of the same evidence on the basis of which the petitioner has been found innocent. He submitted that trial court has no power to add the accused after recording part of the statement of the complainant. In support of his submissions he placed reliance on Ranjit Singh v. State of Punjab, 1998(4) Recent Criminal Reports 552.;