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6. Section 319 corresponds to Section 351 of the repealed Code of Criminal Procedure, 1898. That Section must be read in juxtaposition with Section 319 of the Code. The Law Commission suggested that Section 351 should be recast with a view to (i) empowering the Court to summon a person not present in court to stand trial along with the named accused and (ii) enabling the court to take cognizance against the newly added accused by making it explicit that there will be no difference in the mode of taking cognizance against the added accused. Pursuant to the said recommendations made by the Law Commission section 351 of the old Code was replaced by Section 319 in the present Code. Section 351 of the old Code empowered detention of any person attending a Criminal court, although not under arrest or upon a summon, for the purpose of inquiry into or trial of any offence of which such court could take cognizance, if it appeared from the evidence so recorded that he may have committed an offence along with others. Sub-section (2) of Section 319 came to be inserted in response to the Law Commission's recommendation in paragraph 24.80 of the Report to enlarge the court's power to arrest or summon any person who appears to be involved in the commission of the crime along with others but who is not present in court. Next, it is significant to note that the words 'of which such court can take cognizance' have been omitted by the legislature. Instead the newly added Sub-section (4)(b) expressly states that the case against the added accused may proceed as if such person had been an accused person when the court took cognizance of the offence. This takes care of the Law Commissions's recommendation found in paragraph 24.81 extracted earlier. It is, therefore, manifest that Section 319 of the Code is an improved version of Section 351 of the old Code; the changes having been introduced therein on the suggestion of the Law Commission to make it comprehensive so that even persons not attending the court can be arrested or summoned as the circumstances of the case may require and by deleting the words 'of which such court can take cognizance' and by adding clause (b) it is clarified that the impleadment of a new person as an accused in the pending proceedings will not make any difference in so far as taking of cognizance is concerned. In other words, it is made clear that cognizance against the added person would be deemed to have been taken as originally against the other co-accused. It is thus, clear that the difficulty in regard to taking of cognizance, which would have been experienced by the court have been done away with. The section comes into operation at the post-cognizance stage when it appears to the court from the evidence recorded at the trial that any person other than those named as offenders appears to have committed any offence in relation to the incident for which the co-accused are on trial. Section 319 can be invoked both by the Court having original jurisdiction as well as the court to which the case has been committed or transferred for trial Kishan Singh v. State of Bihar (1993) 2 SCC 16 : 1993 SCC (Cri) 470 : 1993 Cri LJ 1700.

16. In the following cases contrary opinion has been expressed.

1. Samara Singh v. State of U.P. 1987 All WC 1036 : 1987 All LJ 910 decided by Hon. B. L. Yadav, J.

2. Margoobul Hasan v. State of U.P. 1988 Cr.L.J. 1467 decided by Hon. V. P. Mathur, J.

3. Ram Niwas v. State of U.P. 1990 Cr.L.J. 460 : 1989 All LJ 72.

4. Gulab Singh Majithia v. State of U.P. 1995 JIC 33 decided by Hon. N. B. Asthana, J.

17. Sri V. K. Chaturvedi, learned counsel for the revisionist in support of his contention that unless a witness is cross examined his statement cannot be said to be "Evidence" within the meaning of Sub-section (1) of Section 319 Cr.P.C. referred to Sections 135, 137 and 138 of the Indian Evidence Act and contended that to make a statement of witness "Evidence" the definition of the "Evidence" contained in Indian Evidence Act has to be taken into consideration meaning thereby the whole statement including the cross-examination is to be taken into account. He supported his argument by the word "re-heard" contained in Sub-section (4), which, according to him, meant that at the earliest stage the witness was heard in full. The learned counsel submitted that the purpose for which Section 319 Cr.P.C. has been enacted is that the person who appears to be guilty from the statement made by a witness or witnesses should be tried and if his guilt is proved he should be punished. Summoning a person on any statement which does not prima facie shows the guilt or on the basis on which he can be convicted is illegal and an abuse of process of Court. He contended that on the basis of only statement in examination-in-chief nobody can be summoned as it is not an "Evidence" as is desired by Section 319 Cr.P.C. nor such statement under examination-in-chief is sufficient to convict any person. In other words the contention of the learned counsel is that only that statement can be termed "Evidence" which is sufficient to convict any person if remains un-rebutted.

25. At the stage of summoning under Section 319 Cr.P.C. the case is not to be decided but its purpose is to summon some persons, who were not committed to sessions to face trial along with the persons who were already committed and are facing trial. It is not disputed that such person can be summoned on the basis of statement on oath if it prima facie indicates involvement of such person in the offence complained. The only controversy is whether for summoning such persons it is necessary that the cross-examination must have been concluded by the accused, who were facing trial. It is needless to mention that at that time such persons, who are to be summoned under Section 319 Cr.P.C. are nowhere in picture and they can not cross-examine any witness. It is also obvious that: the statements already recorded in absence of such persons cannot be relied on in subsequent proceeding and in view of Sub-section (4) of Section 319 Cr.P.C. all the witnesses will be required to be examined again. Sub-section (4) in unambiguous terms provides that where the court proceeds against any person under Sub-section (1) then the proceeding in respect of such person shall be commenced afresh and the witnesses are re-heard. This provision has been incorporated to ensure that such persons summoned under Section 319 Cr.P.C. are not prejudiced by the evidence recorded in their absence. With this background we proceed to examine what is the import of the word "Evidence". Interpretation of "Evidence" by Hon. S. K. Phaujdar, J. in the reference order is reproduced below :

35. Section 319 Cr. P.C. is meant only for determining whether the evidence recorded in the Court prima facie indicates that some person other than the accused facing trial has committed the offence and in case the evidence indicates the involvement of such person he may be summoned to face trial. This provision is similar to Section 204, Cr. P.C. in which on the strength of the statement recorded in examination-in-chief an accused can be summoned. The only difference is that at the stage of Section 204 Cr. P.C. no other accused is before the Court while at the stage when Section 319 Cr. P.C. can be invoked when some accused are already facing trial. So far as the question of summoning any person under Section 319, Cr. P.C. is concerned in all respects it is similar to Section 204, Cr. P.C. Even if the witness or witnesses are cross-examined by the accused who are already facing trial it may not be helpful to the person who are to be summoned under this provision since the accused facing trial may not be aware of the defence of such accused and the background of the case. It would be only waste of time of the Court to permit cross-examination of the witnesses examined as it may not be of any help to the persons summoned. Furthermore, in view of the introduction of Sub-section (4) on the recommendation of the Law Commission the proceeding in respect of such person is to be commenced afresh and witnesses are re-heard. Therefore, summoning of a person under Section 319, Cr. P.C. may not cause any prejudice to the person summoned. This requirement makes it abundantly clear that the "evidence" in Sub-section (1) of Section 319 has been used in a limited sense and does not necessarily include cross examination.