1986 JTR(Cal) 372
1987 2 Crimes(HC) 307 ; 1987 CrLJ 729
High Court Of Calcutta
MONORANJAN MALLICK
GULAM MONDAL - Appellant
Versus
NAZAM HOSSAIN - Respondent
CRIMINAL REVISION 441 Of 1981
Decided On : 09/05/1986
Examination-in-chief of a witness alone, without cross-examination, does not constitute sufficient evidence for issuing summons to non-accused persons under Section 319 of the CrPC.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.319
EVIDENCE ACT : S.137, S.138
(A) The central legal question pertains to the invocation of Section 319 of the Criminal Procedure Code, which empowers a court to proceed against any person not originally accused if evidence during an inquiry or trial suggests their complicity in the offence. The court analyzed whether the 'evidence' required to trigger this power includes a witness's examination-in-chief alone, or if it necessitates a completed testimony including cross-examination as contemplated under the Evidence Act. The case examines the balance between the judicial discretion to add accused persons and the need to prevent undue delays in long-pending trials.
(B) The court established that the power under Section 319 Cr.P.C. should be exercised sparingly. Crucially, it held that an examination-in-chief, without the completion of cross-examination, constitutes an incomplete statement and does not qualify as 'evidence' sufficient to justify summoning additional persons as accused.
Facts of the case:
A de facto complainant filed a revision petition challenging an order by the Additional Sessions Judge who refused to summon two additional persons as accused under Section 319 of the Cr.P.C. The request was made after the first prosecution witness had been examined-in-chief, but before cross-examination had occurred. The lower court rejected the application on the grounds that the evidence was incomplete and that the case, pending since 1974, would be further delayed if new parties were added.
Findings of Court:
The court found that the lower court's refusal to exercise jurisdiction was justified. It observed that the testimony of a witness is not complete until cross-examination is conducted. Furthermore, it agreed that in very old cases, the court must be cautious not to allow the provisions of Section 319 Cr.P.C. to be used in a manner that causes further trial delays.
Issues:
Whether the examination-in-chief of a witness alone constitutes sufficient 'evidence' under Section 319 of the Cr.P.C. to summon additional accused persons, and whether the age of the case is a valid consideration for refusing such an application.
Ratio Decidendi:
Examination-in-chief without cross-examination is an incomplete statement and does not amount to 'evidence' for the purpose of invoking Section 319 of the Cr.P.C. Additionally, the power to add accused persons should be used sparingly to avoid delaying the trial of long-pending cases.
Result:
The revision petition was dismissed and the rule was discharged.
(A) The central legal question pertains to the invocation of Section 319 of the Criminal Procedure Code, which empowers a court to proceed against any person not originally accused if evidence during an inquiry or trial suggests their complicity in the offence. The court analyzed whether the 'evidence' required to trigger this power includes a witness's examination-in-chief alone, or if it necessitates a completed testimony including cross-examination as contemplated under the Evidence Act. The case examines the balance between the judicial discretion to add accused persons and the need to prevent undue delays in long-pending trials.
(B) The court established that the power under Section 319 Cr.P.C. should be exercised sparingly. Crucially, it held that an examination-in-chief, without the completion of cross-examination, constitutes an incomplete statement and does not qualify as 'evidence' sufficient to justify summoning additional persons as accused.
Facts of the case:
A de facto complainant filed a revision petition challenging an order by the Additional Sessions Judge who refused to summon two additional persons as accused under Section 319 of the Cr.P.C. The request was made after the first prosecution witness had been examined-in-chief, but before cross-examination had occurred. The lower court rejected the application on the grounds that the evidence was incomplete and that the case, pending since 1974, would be further delayed if new parties were added.
Findings of Court:
The court found that the lower court's refusal to exercise jurisdiction was justified. It observed that the testimony of a witness is not complete until cross-examination is conducted. Furthermore, it agreed that in very old cases, the court must be cautious not to allow the provisions of Section 319 Cr.P.C. to be used in a manner that causes further trial delays.
Issues:
Whether the examination-in-chief of a witness alone constitutes sufficient 'evidence' under Section 319 of the Cr.P.C. to summon additional accused persons, and whether the age of the case is a valid consideration for refusing such an application.
Ratio Decidendi:
Examination-in-chief without cross-examination is an incomplete statement and does not amount to 'evidence' for the purpose of invoking Section 319 of the Cr.P.C. Additionally, the power to add accused persons should be used sparingly to avoid delaying the trial of long-pending cases.
Result:
The revision petition was dismissed and the rule was discharged.
DHRUBA JYOTI GHOSH, N.N.ADHIKARI, SAMIR CHATTERJEE
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 S. 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 S. 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 ) S. 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-s. (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 Cl. (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-s. (1) of S. 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 S. 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 was not 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, reported in AIR 1983 SC 67 : (1983 Cri LJ 159) has clearly cautioned that the provisions of S. 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-s. (1) of S. 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 S. 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. Petition dismissed.