G.S.CHAHAL,J - (1.) LAJPAT Rai-petitioner, by means of this petition under Section 482 Cr.P.C. seeks quashing of the order Annexure P1 passed by Additional Sessions Judge, Kaithal dated October 9. 1992 in case FIR No. 149 dated May 21, 1991 registered at PS City Kaithal for offence under Section 304-B IPC. Lajpat Rai's wife Usha Rani committed suicide on May 24, 1991 by burning herself. She died of burns on June 8, 199 1. Before her death, she made a declaration in which she claimed that her mother-in-law and father-in-law used to harass her for bringing less dowry. That she had set herself-on fire on account of this harassment. This dying declaration was recorded before the Magistrate. Kishan Chand, father of the deceased, made a statement during the inquest proceedings wherein also he named the mother in-law and father-in-law of Usha Rani for harassing her which ultimately forced her to commit suicide. During the course of trial, Kishan Chand in his statement implicated Lajpat Rai, his brother Darshan and his sister named Usha for the offence. Application under Section 319 Cr.P.C. was then filed with a prayer that these three named persons be also summoned to stand the trial. Vide the impugned order the learned Additional Sessions Judge allowed the application with respect Lajpat Rai petitioner and ordered too summoning by means of non-bailable warrants.
(2.) MR . Ghai who appears for the petitioner has urged that after the charge had been framed, to exercise powers under Section 319 Cr.P.C., there has to be evidence before the Court and since the statement of Kishan Chand had not been concluded, he having not yet been cross-examined, there was no legal evidence before the trial Court to order. summoning of the petitioner. Section 319 Cr.P.C. so far as relevant, reads as follows :- "319. Power to proceed against other persons appearing to be guilty of offence :- 1) Where, in the course of any, inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together, with the accused, the Court may proceed against such person for the offence he appears to have committed 2) When such person is not attending the Court, he maybe arrested or summoned, is the circumstances of the note way require, for the purpose aforesaid. 3) Any person, attending the Court, although under arrest or upon a summons may be detained by such Court for the purpose of inquiry into, or trial of, the offence which he appears to have committed." There can be two stages for considering whether there is some other offender who should be tried for the cognizance of an offence after the case is committed and it is settled law that after coming into force of the Code of Criminal Procedure, 1973 it is the case and not the accused who are committed to the Court of Sessions. the Court of Sessions can, on the basis of the documents referred to in report under Section 173 Cr. P.C form an opinion if any person other then the accused mentioned in report under Section 173 Cr. P.C involved in the commission of the offence. The documents referred to in that report can be considered for forming that opinion and also for framing of charge but once that stage is over, the court of Sessions can exercise the powers under Section 319 Cr. P C only if the evidence brought before it justifies such conclusion. For my above referred view, I draw support from, Kishan Singh and ors. v. State of Bihar, 1993(1) Chandigarh Criminal Cases 97 (SC). Once charge had been framed the Additional Sessions Judge could exercise powers under Section 319 Cr.P.C. only if on evidence brought forth some material was found which may justify the summoning of the petitioners. The evidence contemplated by Section 319 Cr. P C. will mean legal evidence. The statement of Kishan Chand was an incomplete statement and as such could not from a piece of legal evidence.
(3.) I hereby accept the petition and quash the impugned order. The learned Additional Sessions Judge shall be at liberty to re examine the matter of summoning other accused after the evidence comes on the record to justify such a conclusion.;