JUDGMENT : P.K. Misra, J. - On the basis of F.I.R. of one Dhirendra Kumar Samantaray, G.R. Case No. 520/92 was registered, inter alia, u/s 302/34, Indian Penal Code, and Section 9-B of the Indian Explosives Act. In the said F.I.R., the present Petitioners were alleged to be the culprits along with many other accused persons. However, after completion of investigation though charge-sheet was filed against other accused persons, the present Petitioners were not charge-sheeted. In course of trial against other accused persons, during examination-in-chief of P.W.1, an application was filed by the Public Prosecutor u/s 319, Code of Criminal Procedure (in short, the "Code of Criminal Procedure"), to proceed against the present Petitioners as well as one Ganesh Sahu on the ground that the witness in his deposition had implicated these persons along with other accused persons. The trial Court referred to the F.I.R. as well as the statement of the witness in examination-in-chief and found prima facie evidence implicating the present Petitioners and passed an order u/s 319, Code of Criminal Procedure against the present four Petitioners directing them to stand their trial and issued N.B.W. accordingly. The said order is being impugned in the present application u/s 482, Code of Criminal Procedure 2. The learned Counsel appearing on behalf of the Petitioners first contended that the Petitioners 1, 3 and 4 were found to be implicated in criminal case numbered as 2(a) CC 22 of 1992 in the file of the J.M.F.C., Ranpur, for carrying foreign liquor at Ranpur on 18.4.1992 at about 7.30 p.m. and on such allegation they had been arrested at Ranpur by the Excise Sub-Inspector and were detained till 19.4.1992 and as such, they could not have committed the offence Court is empowered to add any other persons to the array of the accused is after reaching evidence collection when powers u/s 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. of course it is not necessary for the Court to wait until the entire evidence is collected for exercise in the "said Dowers. ". (Underlining is mine) 9. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. of course it is not necessary for the Court to wait until the entire evidence is collected for exercise in the "said Dowers. ". (Underlining is mine) 9. A reference to the principles decided in the aforesaid cases, leaves no room for doubt that the power u/s 319 can be exercised only on the basis of evidence collected during inquiry or the trial, as the case many be. The controversy raised by the counsel for the Petitioners, however, revolves round the meaning of the expression "evidence". It is contended by the counsel for the Petitioners that unless and until a witness is subjected to cross-examination, his statement given in examination-in-chief cannot be considered as "evidence" for the purpose of summoning an accused person in exercise of power u/s 319, Code of Criminal Procedure. 10. The learned Counsel for the Petitioners has relied upon the decision of the Gujarat High Court reported in 1982 Cri.L.J. 1987 (Guj.) (R.J. Lakhia v. State of Gujarat); the decision of the Punjab High Court reported in 1983 Cri.L.J. (NOC) 98 (Panda) (Amarjit Singh v. State of Punjab); and the decision of the Calcutta High Court reported in Gulam Mondal Vs. Nazam Hossain and Others. In the decision of the Gujarat High Court R.J. Lakhia Vs. State of Gujarat it has been nowhere laid down that the statement of a witness in examination-in-chief is not "evidence" unless the said witness has been cross-examined, though it has been stated that the person who is sought to be added as an accused on the basis of such statement has a right to cross-examine the witness. As a matter of fact, in view of the provisions contained in Section 319(4)(a) of the Code, there cannot be any doubt that once new persons are added as accused persons in exercise of power under Sec 319, the evidence of the witnesses has to be taken afresh. Though the decisions of the Punjab High Court and Calcutta High Court (supra) squarely support the contention raised by the counsel for the Petitioners, a perusal of those two decisions indicates that there is no discussions about the underlying principle. Though the decisions of the Punjab High Court and Calcutta High Court (supra) squarely support the contention raised by the counsel for the Petitioners, a perusal of those two decisions indicates that there is no discussions about the underlying principle. As matter of fact, the Calcutta High Court has merely followed the decisions of Gujurat High Court and Punjab High Court. 11. As against the aforesaid decisions, the learned Counsel for the informant has placed reliance upon several decisions of the Allahabad High Court. It is unnecessary to refer to all such decisions, as all such cases have been followed in the decision of the Delhi High Court reported in H.K.L Bhagat Vs. State where the point has been discussed threadbare. Similarly, the decisions of the Allahabad High Court reported in Ram Niwas Vs. State of U.P., and Margoobul Hasan v. State of U.P. ) also indicate the point with utmost clarity. 12. As per the interpretation clause in Section 3 of the Evidence Act, "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) Section 137, Evidence Act, provides as follows: Examination-in-chief.- The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.- The examination of a witness by the adverse party shall be called his cross-examination. Re-examination.- The examination of a witness, subsequent to the cross-examination by the party who caned him, shall be called his re-examination. Section 138, Evidence Act, prescribes the order of examination of witnesses. It lays down that the witnesses shall be examined in-chief at first and then cross-examined if the adverse party so desires and then reexamined if the party calling him so desires. There is nothing either in Section 137 or Section 138 to indicate that until the witness is cross-examined, his statement is not considered as evidence, though it is apparent that the evidence of a witness is not complete until his cross-examination and reexamination are over. It may be then in a given case, a person after being examined in-chief may not be crossexamined at all by the adversary, but it does not mean that merely because such witness was not cross-examined, the statement of the witness in examination-in-chief is not evidence. It may be then in a given case, a person after being examined in-chief may not be crossexamined at all by the adversary, but it does not mean that merely because such witness was not cross-examined, the statement of the witness in examination-in-chief is not evidence. Consistent with the principles of natural justice, it is apparent that the statement of a witness can be utilised against a person only after opportunity of cross-examination is made, the statement of the witness is not evidence in a case. It is common knowledge that in many trials the accused persons do not cross-examine witnesses before framing of charge, but it cannot be said that in such cases the statements of witnesses in examination-in-chief cannot be considered as "evidence". The question may be viewed from another angle. Section 33 of the Evidence Act provides as follows: 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated: Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it state, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. Provided that the proceeding was between the same parties or their representatives-in-interest that the adverse party in the first proceeding had the right and opportunity to cross-examine that the questions in issue were substantially the same in the first as in the second proceeding. Explanation A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of the Section. 7. If evidence would be taken to be co-terminus with examination-inchief, cross-examination and reexamination, there would not have been any necessity to incorporate the Proviso relating to right and opportunity to cross-examine, as envisaged in the second Proviso. 7. If evidence would be taken to be co-terminus with examination-inchief, cross-examination and reexamination, there would not have been any necessity to incorporate the Proviso relating to right and opportunity to cross-examine, as envisaged in the second Proviso. The very fact that Legislature thought it fit to incorporate a Proviso relating to admissibility of evidence only where the adverse party had the right and opportunity to cross-examine only goes to indicate that the statement of a person made in Court in examination-inchief is otherwise considered to be "evidence". It may be said that the evidence is not complete until the opportunity to cross-examine is given, but it cannot be said that until a person is cross-examined or until opportunity of cross-examination is given, the statement made by the person is not evidence, as envisaged in Section 3(1) of the evidence Act. 8. It is to be noticed that power to proceed against other accused persons can be invoked in 'coarse of an inquiry into, or trial of, an offence. In Section 202(2), Code of Criminal Procedure, it is specifically provided that in an inquiry under Sub-section (1), the Magistrate if he thinks fit, may take evidence of witnesses on oath. It is well-known that at the stage of inquiry u/s 202, the question of cross-examining a witness examined by the complainant does not arise. If statement of the witness is not to be considered as "evidence" before opportunity of crossexamination is given, or the witness is not cross-examined, such statement made by the witness on oath during stage of inquiry under Sec:202 cannot be considered as "evidence". The expression "evidence" for the purpose of Section 319, Code of Criminal Procedure has to be given a liberal meaning to include any statement permitted to be made by a witness before the Court as indicated in Section 3, the interpretation clause, of the evidence Act. Since such evidence is to be utilised for the limited purpose, that is to say, for the purpose of finding out a prima facie case, there is no logic, nor necessity in insisting that such evidence or statement in examination-in-chief cannot be considered as evidence until the witness is cross-examined. 9. Since such evidence is to be utilised for the limited purpose, that is to say, for the purpose of finding out a prima facie case, there is no logic, nor necessity in insisting that such evidence or statement in examination-in-chief cannot be considered as evidence until the witness is cross-examined. 9. As a matter of fact, at the stage when power u/s 319, Code of Criminal Procedure is exercised, the person sought to be proceeded against as accused person may be attending the Court or may not be attending the Court. If he is not attending the Court, there is no question of his cross-examining the witness at that stage. Therefore, cross-examination referred to by the counsel for the Petitioners can only be the cross-examination by the other accused persons who are facing trial or inquiry at that stage. Sub-section (4) of Section 319, Code of Criminal Procedure envisages that where the Court proceeds against any person under Sub-section (1), the proceeding in respect of such person shall commence afresh and the witnesses reheard. In other words, the evidence is to be taken afresh. Therefore, if the Court reels at a particular stage that on the basis of evidence already recorded, that is to say, on the basis of examination-in-chief, any other accused person is to be summoned, there may not be any cross-examination at that stage, as at 5.30 p.m. on 18.4.1992. For the aforesaid purpose, the Petitioners have relied upon the order dated 26.5.1992 in Criminal Misc. Case No. 358/92 whereunder the said Petitioners, namely present Petitioners 1, 3 and 4 were released by the Second Additional Sessions Judge, Puri, in exercise of power u/s 438, Code of Criminal Procedure by relying upon the aforesaid circumstance of being involved in another offence at the very same time at another place. The learned Counsel for the Petitioners has further submitted that Petitioner No. 2 was under treatment of doctor at Jajpur in the Govt. Sub-Divisional Hospital at the relevant time and was discharged on 19.4.1992 and as such he could not have committed the alleged crime. 10. There is no difficulty in rejecting the aforesaid contention as this is not the stage to consider as to whether the present Petitioners were actually present at some other place at the relevant time. Sub-Divisional Hospital at the relevant time and was discharged on 19.4.1992 and as such he could not have committed the alleged crime. 10. There is no difficulty in rejecting the aforesaid contention as this is not the stage to consider as to whether the present Petitioners were actually present at some other place at the relevant time. The plea raised is essentially a pled of alibi which can be best considered during the trial on the basis of evidence on record. It is, of course, true that the police had not filed charge-sheet against the four Petitioners accepting such material relating to the plea of alibi. The question of accepting such plea of alibi can arise only at the time of trial and not at this stage, particularly when the accused persons have been implicated by P.W.1 in his examination-in-chief. The question as to whether such evidence can be accepted or not is a matter which will depend upon various materials on record and it would not be proper to discard the said evidence at this stage. The opinion of the Second Additional Sessions Judge, Puri, while granting anticipatory bail to Petitioners 1, 3 and 4 can at best be characterized as prima facie opinion while considering application u/s 438, Code of Criminal Procedure and can by no stretch of imagination be taken to be conclusive in the matter. 11. The second contention of the learned Counsel for the Petitioners relates to scope and ambit of Section 319, Code of Criminal Procedure It has been submitted that the power u/s 319, Code of Criminal Procedure should be used sparingly and the trial Court should not have exercised such power only on the basis of statement of P.W.1 in examination-in-chief before the cross-examination had taken place. 12. Section 319, Code of Criminal Procedure reads as under: 319. Power to proceed against other persons appearing to be guilty of offence: (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 witnesses 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 inquiry or trial was commenced. 13. The scope and ambit of Section 319, Code of Criminal Procedure have been elucidated in several decisions of the Supreme Court. In the decision reported in Joginder Singh and Another Vs. State of Punjab and Another it was observed: 6. A plain reading of Section 319(1), which occurs in Chap.XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused; It was further observed in paragraph-9: 9. As regards the contention that the phrase any person not being the accused' occurred in Section 319 excludes from its operation an accused who has been released by the police u/s 169 of the Code and has been shown in column to 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression. 14.. In the decision reported in Municipal Corporation of Delhi Vs. 14.. In the decision reported in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, after referring to the aforesaid decision reported in Joginder Singh and Another Vs. State of Punjab and Another it was observed: 19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this, we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against Respondents Nos. 2 to 5 will not prevent the Court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it. 15. On a careful reading of Section 319, Code of Criminal Procedure as well as the aforesaid two decisions, it becomes clear that the trial Court has undoubted jurisdiction to add any person not being the accused before it to the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge-sheeted, can also be added as accused to face the trial. It is further clear that the trial Court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence. It is further clear that the trial Court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence. Similar view has been expressed by the Orissa High Court in the decisions reported in 79(1995) C.L.T. 131 (M.J. Akbar and Anr. v. Orissa Industries Ltd.); 80 (1995) C.L.T. 612 (Hrushikesh Pradhan and Ors. v. State of Orissa and Ors. and Md. Muzaffar Hussain Khan and Another Vs. State of Orissa and Others. of course, as evident from the decision reported in Sohan Lal and others Vs. State of Rajasthan the position of an accused who has been discharged stands on a different footing. 16. The learned Counsel for the State has submitted that even though charge sheet has not been submitted against a particular accused person and such person has not been committed to the Court of Session for facing trial, the Court of Session can take cognisance against such person without taking resort to Section 319, Code of Criminal Procedure. Reliance has been placed on the decisions of the Supreme Court reported in Kishun Singh and Others Vs. State of Bihar, and Nisar and Another Vs. State of U.P., in support of the contention that even before taking any evidence in the trial, the Court of Session can act upon the materials contained in the charge-sheet and the case diary and take cognisance against a person not committed by taking recourse to Section 193, Code of Criminal Procedure However, in view of the subsequent larger Bench decision of the Supreme Court reported in (1998) 15 OCR 476 (SC) (Ranjit Singh v. State of Punjab) specifically dissenting from the opinion expressed in the earlier decision reported in Kishun Singh and Others Vs. State of Bihar such a contention cannot be countenanced. In the larger Bench decision, it is observed: 6. Now it is well nigh settled that 'evidence' envisaged in Section 319 of the Code is the evidence tendered during trial of the case if the offence is triable by a Court of Session. The material placed before the committal Court cannot be treated as evidence collected during enquiry or trial (vide Raj Kishore Prasad Vs. Now it is well nigh settled that 'evidence' envisaged in Section 319 of the Code is the evidence tendered during trial of the case if the offence is triable by a Court of Session. The material placed before the committal Court cannot be treated as evidence collected during enquiry or trial (vide Raj Kishore Prasad Vs. State of Bihar and another, ). 17. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any stage when the otherwise, such a course may well turn out to be an exercise in futility, inasmuch as the witness is bound to be re-examined after summoning the new accused person. The cross-examination, if any, by other accused persons at that stage would be evidently in relation to their defence and possibly would be of no avail to the person who is sought to be summoned to face trial and as such, cross-examination may not be of any assistance to the person or persons not before the Court. If the intention of the Legislature is to reexamine the witness, if the proceeding is to be commenced afresh and the witness is to be reexamined, no useful purpose may be served by prolonging the case at that stage by proceeding with cross-examination or proceeding with examination of other witnesses. 18. The learned Counsel for the Petitioners also relied upon a Division Bench decision of this Court reported in Sk. Mangul and Others Vs. State and Others, to bolster his submission that without cross-examination of the witness, the statement of the witness cannot be taken as "evidence" and cannot be made the basis for summoning new accused persons. Particularly, he has placed reliance upon the following observations: 4.We have been taken through the statement of P.W.1 recorded u/s 161 of the Code and he had not named all the Petitioners as the persons who had allegedly instigated for the commission of the offence. The trial Court did not test the evidence of P. W s.l and 2 by putting some questions to get at the truth before taking recourse to Section 319 of the Code against the Petitioners. The evidence of these two witnesses had not been tested in cross-examination as the trial Court had allowed their cross-examination to be deferred. The trial Court did not test the evidence of P. W s.l and 2 by putting some questions to get at the truth before taking recourse to Section 319 of the Code against the Petitioners. The evidence of these two witnesses had not been tested in cross-examination as the trial Court had allowed their cross-examination to be deferred. It has been submitted on behalf of the Petitioners that a number of independent witnesses, examined in the course of investigation, have not spoken about the complicity of the Petitioners. Regard being had to these features, the learned Additional Standing Counsel has fairly submitted that the trial Court ought to have considered the question of summoning the Petitioners, as the accused persons after the examination and cross-examination of the witnesses to the occurrence. 19. I do not find any observations in the aforesaid decision in support of the contention raised by the counsel for the Petitioners to the effect that without cross-examination, the statement of a witness cannot be considered as "evidence" for the purpose of proceeding u/s 319, Code of Criminal Procedure The Division Bench has nowhere said so. It appears that the Division Bench was of the opinion that it would have been better on the part of the trial Court to consider the question of summoning other accused persons after cross-examination of the witnesses was over. In other words, the Division Bench in the peculiar facts and circumstances of the case was not satisfied about the sufficiency of the materials to summon such new accused persons. The question as to whether a particular piece of evidence would be sufficient to summon new accused person is not the same thing as to contend that in no case, the statement of a witness in examinationin-chief can be considered as "evidence" before cross-examination is over for the purpose of Section 319, Code of Criminal Procedure 20. The learned Counsel for the Petitioners also submitted that merely because one witness has implicated the present Petitioners, the power u/s 319 should not be exercised, particularly when the police had submitted final report so far as the present Petitioners were concerned. He has further cited several decisions of this Court as well as the Supreme Court in support of his contention that the power u/s 319 should be sparingly exercised. He has further cited several decisions of this Court as well as the Supreme Court in support of his contention that the power u/s 319 should be sparingly exercised. While it is true that power u/s 319, Code of Criminal Procedure is an exceptional power and is to be exercised carefully and sparingly, in the facts and circumstances the present case, particularly when the present Petitioners had been implicated in the F.I.R. as well as in the statements u/s 161, Code of Criminal Procedure, as observed by the trial Court, and in the statement made by the witness in Court. I do not think that the trial Court has in any way exceeded its discretionary power. 21. The learned Counsel for the Petitioners also submitted that the Petitioners are likely to be harassed as the trial Court has issued N.B.W. against them and instead the trial Court could have issued summons against them to appear. I do not think it would be just and proper on my part to express any opinion on this aspect. However, since Petitioners 1, 3 and 4 were released u/s 438, Code of Criminal Procedure and since final report had been submitted against all these Petitioners, I direct that the N.B.W. issued against the Petitioners shall remain stayed till 15th. December, 1998, on which date the Petitioners shall surrender before the trial Court and if any application for basis filed by them, the same shall be considered by the trial Court and disposed of on the very same day. 22. For the aforesaid reasons, I do not find any merit in tis case which is accordingly dismissed subject to the observations made. The trial should be completed by end of April, 1999. The L.C.R. be sent back immediately. Final Result : Dismissed