ORDER
Palok Basu, J.
1. This is an application under Section 482, Cr. P.C. by Ram Niwas praying that order dt. 17-6-1988 passed by IX Addl. Sessions Judge, Aligarh, in Sessions Trial No. 926 of 1987 (under Sections 302/34, IPC) summoning the applicant as an accused in exercise of powers conferred through Section 319, Cr. P.C., be quashed.
2. It appears that on 22-5-1987, one Smt. Ram Devi lodged an F.I.R. at P. S. Mursan, District Aligarh to the effect that Tofaram, her husband was assaulted by lathi at the behest of the applicant Ram Niwas and three other accused namely Nanak Chand, Ram Babu and Smt. Prema. Though this F.I.R. was initially taken down under Section 323, IPC, on the death of Tofaram, it was converted into Section 304, IPC. After investigations, the police submitted a charge-sheet only against Nanak Chand, Ram Babu and Smt. Prema. The applicant was excluded and a Final Report was filed against him. After due committal proceedings, the said thres accused were being tried by the IX Addl. Sessions Judge, (now IVth) and during the trial P. W. 1 Nanhuwa and P.W. 2 Smt. Ram Devi were examined. True copies of their statements have been filed as Annexure 3 and Annexure 4 to the supporting affidavit.
3. After the said two statements were recorded, an application appears to have been moved on behalf of the prosecution that since from the said evidence complicity of the applicant Ram Niwas was more than apparent, he be summoned as an accused in exercise of the powers under Section 319, Cr. P.C. The trial Judge proceeded to pass the following order which has been impugned in this application seeking exercise of inherent powers of this Court:–
“Perused the statements of P.Ws. Examined F.I.R. as well as Case Dairy, A prima facie case to proceed against accused Ram Niwas appears to be made out. Summon accused Ram Niwas to face the trial as prayed. Issue summons against the accused Ram Niwas. Fix 8-7-88 for appearance of accused Ram Niwas.”
It further appears that on 8-7-1988 the applicant Ram Niwas was absent and on the application of the public prosecutor non-bailable-warrant was issued, against the applicant.
4. On these facts, Shri Devendra Swaroop, learned counsel for the applicant has argued that the impugned order is illegal and liable to be quashed since it does not conform to the requirements laid down in Section 319, Cr.P.C. He has raised two points.
5. The first point raised by Mr. Swaroop is that since the applicant was mentioned as an accused in the F.I.R. and after investigation the police did not include the applicant as an accused in the charge-sheet, the Court cannot summon him as an accused in the trial going on against the charge-sheeted accused. Reliance has been placed on the decision of Hon’ble Mr. Justice B. N. Katju reported in 1986 All WC 838 : (1986 All LJ 1341) (Radhey Shyam Mishra v. State). It is argued that the Investigating Officer having forwarded a Final Report against the applicant and thus deleting him from the array of accused, the applicant stands discharged and hence cannot be again summoned as ‘an accused’.
6. On the face of it the argument appears attractive but it suffers from inherent fallacy. The opinion of the Investigating Officer is not the last word concerning prosecution of an accused in the Court of law. By filing a charge-sheet of Final Report, as the case may be, the I.O. only indicates his opinion as to who should and who should not be put on trial. To treat the said opinion as final in all subsequent proceedings in the Court may lead to serious consequences. At times it has been found that the evidence produced in the Court during trial is much more definitive than or different from the materials allegedly collected by the officer during investigation. It was thus felt that Courts trying the cases must have the power to Judge the said opinion of the Investigating Officer. Therefore, the legislature in its wisdom enacted Section 319, Cr. P.C. of 1973 which is quite different from and much more pervading in its application than Section 351 of Cr. P.C. of 1898. It now stands provided that as soon as 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.
7. This being the scope of Section 319, Cr. P.C. we may go back to the decision of Hon’ble Mr. Justice Katju, cited above. In that case Radhey Shyam was an accused in the charge-sheet. The public prosecutor’s application under Section 321, Cr. P.C. withdrawing prosecution against Radhey Shyam stood allowed by the Court. After some evidence the trial Court summoned Radhey Shyam in exercise of powers under Section 319, Cr. P.C. This order was the subject-matter of challenge. Hon’ble Katju, J. interpreting the words ‘not being an accused’ drew distinction between a person who is not an accused at all in the case, and, a person who was an accused but ceases to be an accused because of the case having been withdrawn as against him under Section 321, Cr. P.C. It was held that the person falling in the latter category cannot be summoned under Section 319, Cr. P.C.
8. While I am in respectful agreement with the view of Hon’ble Katju, J. it may only, be added that the provisions of Section 319, Cr. P.C. do not appear to have any overriding effect on other provisions of the Cr. P.C., it is only a supplemental provision empowering trial of only those persons as accused who are not protected against such a trial by any other section of the Cr. P.C.
9. In the instant case Ram Niwas applicant was never an accused in the Court. The mere fact that the applicant was not shown as accused in the charge-sheet though he was shown as an accused in, the F.I.R. does not extend to him any protection against being tried in the Court. There is no provision in the Cr.P.C. on which the applicant can fall back upon to blockade the trial. In fact, holding otherwise would defeat the very purpose for which Section 319, Cr. P.C. was enacted.
10. Consequently, the view of Hon’ble Katju, J., does not support the argument of the learned counsel for the applicant and is clearly distinguishable.
11. The second point argued by Mr. Devendra Swaroop is that cross-examination of the said two witnesses stood deferred by the order of the trial Judge (which has not yet taken place, according to Mr. Swaroop) and thus these two statements cannot be termed as the evidence within the meaning of Section 319(1); there being no other evidence, the order of the trial Judge is vitiated.
12. Before dealing with this point, it may be useful to refer to Sub-section (4) of Section 319, Cr. P.C.:–
(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 reheard;
(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 enquiry or trial was commenced.
13. From a reading of the aforesaid subsection it is apparent that the legislature has taken full precaution to safeguard the interest of the person who may be summoned as an accused since ‘evidence’ has to be recorded again. In other words, right of cross-examination will be available to the newly summoned accused after he has appeared in Court. It may be useful at this stage to refer to the definition of the word ‘evidence’ as found in the Evidence Act. Section 3 of the said Act says:
“Evidence means and includes:
(1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry;
Such statements are called oral evidence;
(2) all documents produced for the inspection of the Court;
Such documents are called documentary evidence.”
It may be beneficially be noted that Section 137 of the said Act defines ‘cross-examination’ as under:
“Cross-examination: The examination of a witness by the adverse party shall be called his cross-examination.”
14. A combined reading and close scrutiny of the two definitions aforesaid and the provisions contained in Section 319, Cr.P.C. reveal that the applicant became an ‘adverse party’ only after he was summoned. Thus, his right of cross-examination would flow only after the witnesses are ‘reheard’ since the proceedings have to commence ‘afresh’ as against him. It, therefore, is of no consequence whether the statements of the two witnesses relied upon by the trial Judge for summoning the applicant were recorded after examination-in-chief or after cross-examination or re-examination. In any case the said statement is ‘evidence’ all right, which could have been used by the trial Judge. Accordingly, the second point raised by Mr. Swaroop is also devoid of any merit, hence rejected.
15. It was next argued that the applicant was not served with the summons sent by the trial Court as a result of which the applicant could not appear on the first date. Noting the absence, non-bailable warrant has been issued. The further fact brought to my notice is that all other accused have been granted bail and are enjoying liberty. In view of these special features, Mr. Swaroop argues that this Court may direct release of the applicant on bail. I am afraid, bail cannot be granted in exercise of inherent powers of this Court because there is specific provision for the same in the Criminal Procedure Code. However looking at the facts and circumstances of this case it is hereby directed that if the applicant is arrested and produced before the trial Judge or surrenders before it, and, makes an application for bail, the same may be disposed of in accordance with law on the day it is moved.
16. In view of the discussions made above, this application under Section 482, Cr.P.C. is dismissed with the observations aforesaid, at the admission stage. A certified copy be delivered within three days of applying on payment of charges.