Calcutta High Court
Gulam Mondal vs Nazam Hossain And Ors. on 5 September, 1986
Equivalent citations: 1987CRILJ729
ORDER Monoranjan Mallick, J.
1. This revision petition is directed against the order dt. 17-2-81 by which Sri A. N. Bhattacharya learned Additional Sessions Judge, First Court, Burdwan, refusing to entertain the petitioner's application Under Section 319 of the Cr. P.C. for issuing summons upon the opposite parties 1 and 2 namely, Sk. Nazam Hossain and Majnu alias Sk Manirujeman, for their appearance to face trial with the other accused persons.
2. It is submitted that when on the evidence adduced by the prosecution witness No. 1 the opposite parties 1 and 2 were also implicated in the alleged offences, the learned Additional Sessions Judge illegally rejected the prayer of the public prosecutor in charge of the case, to issue summons against the opposite parties 1 and 2.
3. Being aggrieved by the impugned order rejecting the prayer of the learned Public Prosecutor Under Section 319, Cr. P.C. Golam Mondal, who is the de facto complainant, has moved this Court in revision. It is submitted that the learned Additional Sessions Judge illegally refused to entertain the jurisdiction when the evidence disclosed the complicity of the opposite parties Nos. 1 and 2 in the alleged offences.
4. The revision petition is opposed by the opposite parties.
5. Section 319 of the Cr. P.C. read as follows:
319(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 which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into or trial of the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Sub-section (1) then
a) the proceedings in respect of such person shall be commenced afresh and the witness re-heard;
b) Subject to the provisions of Clause (a) the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
6. It is clear from Sub-section (1) of Section 319, Cr. P.C. that where in the course of any inquiry into or trial of, an offence, it appears from the evidence that any person not being 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 which he appears to have committed.
7. The record of the case reveals that this is a trial which originated in the first information report submitted some time in 1974 could not commence before 1980. Ultimately on 17-2-81 the learned Additional Sessions Judge commenced taking evidence of the witnesses. On that date P. W. 1 Golam Mondal, who is the de facto complainant, was examined-in-chief. At that stage the prosecution prayed for issuing summons upon the opposite parties Nos. 1 and 2 by filing an application Under Section 319, Cr. P.C.
8. On perusing the order of the learned Additional Sessions Judge, I find that the learned Judge dismissed the application on the ground that the evidence of prosecution witness No. 1 wa snot yet completed and his evidence was recorded up to examination in chief. Another ground on which he rejected the application is that the case was a very old one and pending since 1974 and the allowing of such prayer would delay further trial of the case.
9. There can be no doubt that the case is a very old one. The Supreme Court in Delhi Municipality v. Ram Kishan, has clearly cautioned that the provisions of Section 319, Cr. P.C. should be used very sparingly. Therefore, if the learned Additional Sessions Judge in the interest of justice said that the trial should not be further delayed and refused to entertain the application, I am of the view that this Court should not interfere with the impugned order on that ground. Moreover, the expression used in Sub-section (1) of Section 319, Cr. P.C. is "evidence". There are two decisions, one of Punjab High Court and the other of Gujarat High Court which have taken the view that examination-in-chief of a witness alone without his cross-examination cannot be said to be such evidence upon which the Court can act Under Section 319, Cr. P.C. because such evidence in examination-in-chief is nothing but incomplete statement of a witness. The decisions referred to above are R. J. Lakhia v. State of Gujarat, 1982 Cri LJ 1687 (Guj) and Amarjit Singh v. State of Punjab, 1983 Cri LJ NOC 98. The reasons given in the decision are sound and I approve of the views expressed in those two decisions. Therefore when the learned Judge refused to exercise jurisdiction at the stage when the present petitioner was only examined in his examination-in-chief. I am of the view that there is nothing to interfere with the said order.
10. In the result, the revision petition be dismissed and the rule be discharged.