AJAI LAMBA, J. - (1.) CHALLENGE in this petition is to order dated 25.10.2007 (Annexure P-3) whereby the petitioner has been summoned under Section 319, Code of Criminal Procedure (for short 'the Code') to stand trial along with co-accused; namely, Abhey Ram, Raj Kumari and Yashbir.
(2.) LEARNED counsel for the petitioner has raised a limited issue that during the course of trial, it must appear from "the evidence" that any person not being the accused has committed an offence. In the case in hand, the trial court committed an illegality in relying on only the examination-in-chief, as the cross-examination was deferred for filing the application under Section 319 of the Code, as is evident from statement of Jai Bhagwan (Annexure P-1). The statement of the witness in court is mere repetition of the FIR version, not tested by cross-examination. In this regard, reference has been made to the judgments of the Hon'ble Supreme Court of India in Mohd. Shafi v. Mohd. Rafiq and another, 2007(2) RCR(Criminal) 762 : 2007(2) RAJ 534 and Kailash v. State of Rajasthan and another, 2008(2) RCR(Criminal) 200 : 2008(2) RAJ 323. Learned counsel for the respondent-State has opposed the contention on the ground that the examination-in-chief of the witness was sufficient material before the court to summon the petitioner.
(3.) I have considered the contention of the learned counsel for the parties and the issue involved in this petition. In Mohd. Shafi's case (supra), the following has held in paras 9 and 13 :- "9. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983(1) RCR(Crl.) 73 (SC) : 1983(1) SCC 1, a Division Bench of this Court while holding that even if a person had not been sent for trial by the police, the trial court would be entitled to invoke its jurisdiction after taking evidence, stating : "19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law." (Emphasis supplied) "13. From the decisions of this Court, as noticed above, it is evident 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 in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence." (Emphasis supplied);