- (1.)THIS is a revision petition filed by the petitioners 1 to 5 to set aside the order, of conviction and sentence passed by the trial court, which has been confirmed by the learned Prl. Sessions Judge, Kolar, in Cri. A. No. 5/2003, mainly on the ground that the charges framed against the revision petitioners have not been in conformity with the mandatory requirement of law as contemplated under Sections 239 and 240 of I. P. C. and allowed the application filed to summon the revision petitioner No. 5 as the additional accused. The trial Court ought to have been examined P. Ws. 1 and 2 afresh and instead of that, allowed the accused to examine the other witnesses and after recording the 313 statement, convicted the revision petitioners for an offence punishable under Sections 143, 148, 448, 427, 324 r/w. Sec. 149 of I. P. C. , which has been challenged by the revision petitioner in the criminal appeal but the learned Sessions Judge dismissed the appeal and confirmed the order of conviction and sentence. Therefore, the petitioners have come up with this revision petition.
(2.)HEARD the arguments of the learned counsel for the revision petitioners and the learned S. P. P. appearing for the respondent/ state.
(3.)DURING the course of the arguments, learned Senior counsel appearing for the revision petitioner submitted that the trial Court as well as the learned Sessions Judge had failed to understand the provisions of Section 319 (4) (1) (b) of Cr. P. C. When the petitioner no. 5 has been summoned as the additional, accused on the basis of the application filed by the Addl. P. P. after recording the evidence of P. W. 1 and P. W. 2 in part i. e. in examination-in-chief and when the charge against the revision petitioner has been framed but the trial has not been conducted afresh, it is mandatory on the part of the Court to strictly comply with the provisions of Section 319 (4) (1) (b)of Cr. P. C. It is further submitted that the provisions of Section 273, Cr. P. C. has not been complied with. The evidence of the prosecution witnesses can be recorded in presence of the accused. So, in the instant case, the evidence of p. Ws. 1 and 2 were recorded before the petitioner No. 5 was arrayed as accused and therefore, any amount of evidence recorded in the chief examination of P. Ws. 1 and 2 will not be treated as the evidence. Therefore, the order of conviction and sentence recorded by the Courts below is illegal and erroneous and misreading of the mandatory provisions of ss. 319 and 273 of Cr. P. C. It is further argued that the evidence of the witnesses should be examined in chief examination and cross-examination and therefore, any amount of evidence recorded before summoning of one of the accused shall not be treated as the evidence and it has to be recorded afresh and their enquiry or trial has to be commenced afresh. Therefore, it is prayed that the revision petition be allowed and the conviction and sentence passed by the trial court be set aside.