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Allahabad High Court · body

2008 DIGILAW 2017 (ALL)

Mahendra Yadav v. State of U. P.

2008-09-23

ARVIND K.TRIPATHI

body2008
Judgement ORDER :- The present Criminal Revision has been filed against the order dated 29-7-2008 passed by learned Additional Sessions Judge/F.T. Court No. 2 Azamgarh summoning the applicants in exercise of power under Section 319 Cr. P. C. to face trial under Sections 323, 324, 509, 504, 506 and 3 (1) (10) SC/ST Act, in ST. No. 322/06 (State v. Suresh). 2. Heard learned counsel for the applicants and learned AGA and perused the record. 3. Learned counsel for the applicants submitted that the applicants were falsely implicated by opposite party No. 2 Sushil and during investigation it was found that the applicants were falsely implicated and the charge sheet was submitted only against Suresh Yadav under Sections 504, 506, 509, 323, 324 I.P.C. Thereafter, during trial after statement of PW-1 Shushil, applicants were summoned under section 319 Cr. P. C. to face the trial. He has challenged the summoning order on the ground that no accused can be summoned under Section 319 Cr. P. C. without cross examination of the witnesses. In support of his argument he has relied the judgment of the Apex Court passed in the case of Mohd. Shafi v. Mohd. Rafiq and another reported in 2007 (52) Alld Crl. C. 254 (SC) : (2007 (4) ALJ 317) decided on 9-4-2007 and the judgment of learned Single Judge of this High Court reported in 2008 (1) U. P. Cr. Rulings 501 Miss. Aase Jorgensen and another v. State of U. P. which was passed relying the judgment of Mohd. Shafi. 4. The brief fact of the case is that the applicants were named in the First Information Report but the charge-sheet was filed only against Suresh Yadav and the applicants were not charge-sheeted. The case was committed to the Sessions Court. During trial before the court of learned Additional Sessions Judge/F.T. Court No. 2 Azamgarh after recording the examination-in-chief of the informant PW-1, Shushil, who was injured witness, an application was moved under Section 319 Cr. P. C. to summon the applicants Mahendra Yadav and Hansa alias Hansraj Yadav. In examination-in-chief, injured Sushil stated that Mahendra Yadav and Hansa alias Hansraj Yadav, who were father and son, and since they were influential and monied person, hence no charge-sheet was filed against them, though they were named in the F.I.R. and in the statement under Section 161 Cr. In examination-in-chief, injured Sushil stated that Mahendra Yadav and Hansa alias Hansraj Yadav, who were father and son, and since they were influential and monied person, hence no charge-sheet was filed against them, though they were named in the F.I.R. and in the statement under Section 161 Cr. P. C. also their involvement was disclosed to the investigating officer. In the statement on oath PW-1 Shushil stated that both Hansa and Mahendra armed with lathi, danda and belcha assaulted him (the informant, PW-1) and one Santosh, who received injuries. The aforesaid statement was supported with the injury report. 5. In view of the aforesaid fact after hearing the learned counsel for the parties and after considering the statement, since there was allegation against Hansa alias Hansraj Yadav and Mahendra with regard to assault to the informant and Santosh, who received injuries, hence the trial Judge was satisfied that, prima facie commission of offence was disclosed and found that it was a fit case in the interest of justice to summon the applicants/revisionists Hansa alias Hansraj and Mahendra under Section 319 Cr. P. C. to face trial along with the accused Suresh Yadav who had already been arraigned as accused. 6. Learned counsel for the applicants further contended that the order of the learned trial court was mechanical and without application of mind. He further submitted that in view of Mohd. Safis case the matter had already been referred by learned Single Judge of this High Court in case of Bhuri v. State and Others on 31-1-2008, hence the present matter be also referred to the larger bench to consider whether the trial court was entitled to summon the applicant before cross-examination of the witness and further submitted that during pendency of the present revision summoning order might be stayed. The learned AGA contended that the decision in Mohd. Shafts case is not contrary to earlier decisions and further the observation has to be read and understood in the background of the case. Since the trial court passed order on the basis of the evidence under section 319 Cr. P.C. after satisfaction and there was no illegality in the summoning order, hence matter was not required to be referred to larger Bench. 7. For considering the aforesaid argument the provision of section 319 Cr. P. C. is re -produced herein below :- "Section 319. P.C. after satisfaction and there was no illegality in the summoning order, hence matter was not required to be referred to larger Bench. 7. For considering the aforesaid argument the provision of section 319 Cr. P. C. is re -produced herein below :- "Section 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 of the 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". 8. From a perusal of the aforesaid section it is clear that during trial, at any stage, if 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 already arraigned, then after the satisfaction, the trial court can proceed against such person to face trial. It has also been provided in Section 319 (4) (a) Cr. P. C. that the proceeding in respect of such person shall be commenced afresh and the witnesses will be reheard. Hence in view of the provision it is clear that when such person appears before the court, who have been summoned under section 319 Cr. P. C. to face trial then he will have right to cross-examine the witnesses and before that there is no such provision to allow such person for cross-examination of the witnesses. 9. Earlier the controversy was raised whether the word evidence mentioned in Section 319 Cr. P. C. to face trial then he will have right to cross-examine the witnesses and before that there is no such provision to allow such person for cross-examination of the witnesses. 9. Earlier the controversy was raised whether the word evidence mentioned in Section 319 Cr. P. C. could only mean an evidence complete by cross-examination : Since there was conflicting decisions of the number of Single Judge Benches, hence the matter was referred to Division Bench which is reported in 1999 (38) Alld. Crl. Cases page 123 : (1999 All LJ 539). Ram Gopal and another v. State of U. P., the question formulated in the reference and relevant paragraphs of the aforesaid Division Bench are reproduced herein-below : "Whether the term evidence as used in Section 319 Cr. P. C. could only mean an evidence complete by cross-examination or if the Court can take action under this Section even on the statement made in examination-in-chief of one or other witnesses." (7) 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 in 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 319 of the 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 Commissions recommendation in paragraph 24.80 of in Report to enlarge the courts 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. Sub-section (2) of Section 319 came to be inserted in response to the Law Commissions recommendation in paragraph 24.80 of in Report to enlarge the courts 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 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 proceeding 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 (Kishun Singh v. State of Bihar) 1993(30) ACC 167 (SC) : (1993 AIR SCW 771). 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 (Kishun Singh v. State of Bihar) 1993(30) ACC 167 (SC) : (1993 AIR SCW 771). (8) It was further observed that the scope of Section 319 is limited, in that, it is an enabling provision which covers the post cognizance state where in the course of an inquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision this may happen not merely in cases where despite the name of a person figuring in the course of investigation the investigating agency does not send him for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the inquiry or trial. Thus, section 319 is not exhaustive of all post cognizance situations and can, not be interpreted to repository of all power for summoning such person or persons to stand trial along with other arraigned before the court. (10) Section 319 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. 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. The mere fact that the proceedings have been quashed under Section 482 against some of the accused persons (respondents 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 (Municipal Corpn of Delhi v. Ram Kishan Rohtagi) 1983 ACC 50 (SC) : ( AIR 1983 SC 67 ). (11) In view of the above discussion we find that the power under Section 319 (1) can be exercised only in those cases where involvement of persons other than those arraigned in the charge-sheet comes to light in the course of evidence recorded during the inquiry or trial. If evidence of eye-witnesses recorded by the court shows that there was enough involvement of same persons in the commission of offence they can be proceeded as an accused despite the fact that police had not filed charge-sheet against them, Girish Yadav v. State of M.P. This power under Section 319 does not exclude from its operation and accused who has been released by the police under section 169 Cr. P. C. Joginder Singh v. State of Punjab. (12) The powers under Section 319 should not be confused with section 193 Cr. P. C. By virtue of which Sessions Judge is empowered to summon a person as an accused without recording evidence if such person is not named in police report under section 173 to stand trial if the material on record annexed to the report under Section 173 revealed their involvement. It was held in Kishun Singh v. State of Bihar, that such person can and should be summoned and arraigned before the court as accused persons along with the accused already named in the charge-sheet. The reasoning assigned by the Supreme Court is reproduced below : "The Court of Session had the power under Section 193 of the Code to summon the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case. Though power was exercised under Section 319, there is no reason to interfere with the impugned order as it is well settled that once it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid." (14) There is no legal bar based on the principle of issue estoppel to proceed under section 319 against a person complained against if on the same material the court had dismissed a complaint under Section 203, Cr. P. C. S. S. Khanna v. Chief Secretary. The scope of this Section is wide enough to include cases instituted on private complaint; Sohan Lal v. State of Rajasthan. (23) It cannot be disputed that "Evidence" in sub-section (1) of Section 319 Cr. P. C. S. S. Khanna v. Chief Secretary. The scope of this Section is wide enough to include cases instituted on private complaint; Sohan Lal v. State of Rajasthan. (23) It cannot be disputed that "Evidence" in sub-section (1) of Section 319 Cr. P. C. relates only to oral evidence and not the statements under Section 161 Cr. P. C. nor confession, dying declaration, etc. unless provided by oral evidence under Section 161 Cr. P. C. confession, dying declaration, etc. the interpretation clause does not specifically require a witness to be cross-examined before any statement can be treated as "Evidence". (26) 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 persons 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 cbntroversy 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 : "I am now coming to the term "evidence" as used in the Indian Evidence Act, 1872. 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 : "I am now coming to the term "evidence" as used in the Indian Evidence Act, 1872. In this Act, the term "evidence" has been defined in Section 3 as meaning and including all statements which the court permits or requires to be made before it by witnesses in relation to the matters of fact under enquiry as also all evidence produced for inspection of the court. This definition, of course, is not complete as it is silent about any dying declaration, statement of co-accused, materials produced for inspection or prior admission of a party which are also matters on which the courts do rely to come to a finding and are evidence in the broad sense of the term. This term evidence again has been used in various Sections of Evidence Act with different connotation. Section 33 of the Evidence Act permits evidence given by a witness in a judicial proceeding to be used in a subsequent judicial proceeding or in a later state of the same judicial proceeding provided the adverse party in the first proceeding had the right of opportunity to cross-examine him. We may stop here for the time being. If evidence would only mean such statement as has been tested by the cross-examination, then there was no necessity of adding this proviso that the adverse party in the first proceeding had the right and opportunity to cross-examine. This only suggests that there could be an evidence even without cross-examination, but, for Section 33 only, such evidence may not be read at a subsequent stage etc. unless there was a right and opportunity of the other party to cross-examine. The Evidence Act forbids acceptance of hearsay evidence. If we go by the strict interpretation of the term evidence, that a statement is not evidence unless tested by cross-examination, then in examination-in-chief there should not be any bar to accept a hearsay which could only be discarded after cross-examination. Section 58 of the Evidence Act says that the facts admitted need not be proved. If we go by the strict interpretation of the term evidence, that a statement is not evidence unless tested by cross-examination, then in examination-in-chief there should not be any bar to accept a hearsay which could only be discarded after cross-examination. Section 58 of the Evidence Act says that the facts admitted need not be proved. It only means that when the facts are admitted by the party, either party may not be allowed even to lead evidence on that point, i.e. Such evidence may not be admitted in the examination-in-chief or may only be discarded after cross-examination." (31) The above discussion indicates that the word "evidence" has been used in different sense and its true meaning has to be determined in the background in which that provision has been enacted. If evidence is meant for deciding the case finally or to record conviction or acquittal the "evidence" must mean as including the cross-examination. On the contrary if the evidence is to be recorded for determining whether any prima facie case is made out for summoning the accused or whether the evidence is if un-rebutted is sufficient to case conviction and thereby requiring the court to frame . charges, or whether the accused can be discharged the "evidence" may not mean as including cross-examination. (41) The reference is answered as follows : "The term Evidence used in Section 319 Cr. P. C. does not mean an Evidence complete by cross-examination and the court can take action under section 319 Cr. P. C. even on the statement made in examination-in-chief- of one or more witnesses." 10. From the aforesaid decision of the Division Bench it is clear that the term evidence as used in Section 319 Cr. P. C. for determining whether the evidence recorded in the court prima facie indicates commission of offence means only statement made in examination-in-chief. In case the evidence disclosed the involvement of such other person, who have not been charge-sheeted he can be summoned to face the trial. Word evidence used in Section 319 Cr. P. C. relates to oral evidence recorded on oath. The evidence has been used in different context in different sections, hence the same has to be understood and interpreted in the context in which it has been used. Word evidence used in Section 319 Cr. P. C. relates to oral evidence recorded on oath. The evidence has been used in different context in different sections, hence the same has to be understood and interpreted in the context in which it has been used. There is no dispute that any case cannot be decided finally on oral evidence without giving opportunity to the parties to cross-examine the witness. At the stage of summoning under Section 319 Cr. P. C., the purpose is only to summon such other person who has not been charge-sheeted, to face the trial, along with the accused, already arraigned. At the stage of summoning under Section 319 Cr. P. C. the case has not to be decided finally. At this stage it is also relevant to consider that even at the time of framing of the charge or discharge of the accused, there is no opportunity to cross examine the witness. 11. At the stage of summoning the persons under Section 319 Cr. P. C. is concerned, same is similar to the Section 204 Cr. P. C., in which, on the basis of statement recorded under Section 200/202 Cr. P. C., an accused can be summoned and there is no cross-examination unless the person is summoned to face the trial. 12. It has been observed by the Division Bench that even if the witnesses were cross examined by the accused who had already been facing trial that might not be helpful to such person who are to be summoned under Section 319 Cr. P. C. Since the accused facing trial might not be aware of the defence of such person, hence it might not be of any help to such person who has to be summoned. Apart from that it has also been considered that in view of the provision of Section 319 Cr. P. C.(4) the proceeding in respect of such person is to be commenced afresh and witness would be reheard, hence such other person summoned under Section 319 Cr. P. C. to face trial would net be prejudiced if summoned before the cross-examination on behalf of the accused already facing trial. 13. It was held by the Division Bench that the term evidence under section 319 Cr. P.C. does not mean that an evidence would be complete by cross-examination. The court can summon under Section 319 Cr. P. C. to face trial would net be prejudiced if summoned before the cross-examination on behalf of the accused already facing trial. 13. It was held by the Division Bench that the term evidence under section 319 Cr. P.C. does not mean that an evidence would be complete by cross-examination. The court can summon under Section 319 Cr. P. C. even on the statement made in examination-in-chief of one or more witnesses. 14. In case of Rakesh and another v. State of Haryana reported in JT(5) 2001 SC 639 : ( AIR 2001 SC 2521 ) decided by the Apex Court on 25-7-2001 the power under Section 319 Cr. P. C. was considered. The relevant paragraphs of the aforesaid judgment are- excerpted below : (10) Hence, once the Sessions Court records a statement of the witness it would be part of the evidence. It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising courts power under Section 319 Cr. P. C. Once the deposition is recorded no doubt there being no cross-examination it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 319 should be exercised or not. Sub-section (1) of Section 319 itself provides that in the course of any inquiry or trial of an offence, it appears from the evidence that any persons not being the accused has committed any offence for which such person would be tried together with the accused, the Court may proceed against such persons for the offence for which he appears to have committed. Further in case of inquiry there may not be any question of cross-examining the witness in (State of H. P. V. Surinder Mohan and Others JT 2000 (1) SC 593 : 2000 (2) SCC 396 ) : ( AIR 2000 SC 1862 ) this court dealt with the contention that before granting pardon under Section 306 of the Cr. P. C. accused should be permitted to cross-examine such person whose evidence is recorded by the Magistrate. The Court negatived the said contention by holding that at the time of investigation or inquiry into an offence, the accused cannot claim any right under law to cross-examine the witness. P. C. accused should be permitted to cross-examine such person whose evidence is recorded by the Magistrate. The Court negatived the said contention by holding that at the time of investigation or inquiry into an offence, the accused cannot claim any right under law to cross-examine the witness. The right to cross-examine would arise only at the time of trial. During the course of investigation by the police, the question of cross-examination by the accused does not arise. Similarly, under Section 200 Cr. P.C. when the Magistrate before taking cognizance of the offence, that is, before issuing process holds the inquiry, the accused has no right to be heard, and therefore, the question of cross-examination does not arise. Further, the person to whom pardon is granted, is examined but is not offered for cross-examination and thereafter during trial if he is examined and cross-examined then there is no question of any prejudice caused to the accused. In such cases, at the most the accused may lose the chance to cross-examine the approver twice, that is to say, once before committal and the other, at the time of trial. Similar would be the position under Section 319 Cr. P. C. (11) In support of this contention, learned Senior Counsel Mr. Ranjit Kumar referred to the decision of the Court in (Joginder Singh v. State of Punjab and another 1979 (1) SCC 345 ) : ( AIR 1979 SC 339 ). In our view, this decision nowhere lays down that before a person is added as accused in a session trial case, he should be permitted to cross-examine the witnesses whose evidence is recorded. On the contrary, it lays down that once the sessions court is seized of the matter as a result of the committal order against some accused the power under Section 319(1) can come into play and Court can add any person, not an accused before it, as an accused and direct him to be tried along with other accused. On the contrary, it lays down that once the sessions court is seized of the matter as a result of the committal order against some accused the power under Section 319(1) can come into play and Court can add any person, not an accused before it, as an accused and direct him to be tried along with other accused. The Court has further observed that the very purpose of enacting 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 expression "any person not being the accused." (12) Further, the scope of Section 319 was considered by this Court in (Ranjit Singh v. State of Punjab JT 1998 (6) SC 512 : 1998 (7) SCC149) : ( AIR 1998 SC 3148 ).In paragraph 10, the Court held that sub-section (1) of Section 319 contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime which he can be tried with those already named by the police. The Court has also clarified that : "Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers". (13) Hence, it is difficult to accept the contention of the learned Counsel for the appellants that the term evidence as used in Section 319 of Criminal Procedure Code would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section 319 does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word evidence occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime. 15. Word evidence occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime. 15. From the aforesaid judgment of the Apex Court it is clear that after considering the earlier judgment of the Apex Court it was held in para 13 that it was difficult to accept the contention that the term evidence as used in section 319 Cr. P. C. would mean evidence which is tested by a cross-examination. Further, it has been held by the Apex Court that the question of testing the evidence by cross examination would arise only after the addition of the accused and there was no question of cross-examining the witness prior to adding such person as accused. 16. In case of Lokram v. Nihal Singh and another reported in 2006 (3) SCC Cr. 532 : ( AIR 2006 SC 1892 ) it was held that under Section 319 Cr. P. C. the trial court has undoubted jurisdiction to add any person not being the accused, to face trial along with the other accused already charge-sheeted, if the trial court was satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face trial. It was further held that the person even though was initially named in the First Information as an accused, who was not charge-sheeted, could also be added to face trial, on the basis of the evidence adduced before the trial court and not on the basis of the material available in the charge-sheet or the case diary because such material contained in the charge-sheet or case diary do not constitute the evidence. It was further held by the Apex Court that the power under Section 319 Cr. P. C. can be exercised by the trial court suo motu or on an application by some one including the accused already charge-sheeted, if the trial court is satisfied that such other person has committed offence, who was to be tried together with the other accused already arraigned. P. C. can be exercised by the trial court suo motu or on an application by some one including the accused already charge-sheeted, if the trial court is satisfied that such other person has committed offence, who was to be tried together with the other accused already arraigned. Paragraphs 10, 11, 12 of the aforesaid judgment are quoted here-in below :- "(10) On a careful reading of Section 319 of the Code 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 face the trial along with the 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 evidence that such person even though had initially been named in the FIR as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet of the case diary do not constitute evidence. Of course as evidence from the decision in Sohan Lal v. State of Rajasthan : ( AIR 1990 SC 2158 ) the position of an accused who has been discharged stands on a different footing. (11) Power under Section 319 of the Code can be exercised by the court suo motu or on an application by some one including the accused already before it. If it is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused. The power is, discretionary and such discretion of the case. Undisputedly it is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against person whom action had not be taken earlier. The word evidence in Section 319 contemplates the evidence of witnesses given in court. The power is, discretionary and such discretion of the case. Undisputedly it is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against person whom action had not be taken earlier. The word evidence in Section 319 contemplates the evidence of witnesses given in court. Under sub- section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. (12) It is to be noted that the trial court rejected the application only on the ground that the complainant was an interested witness and, therefore, sufficient ground did not exist to take action against the accused persons. As noted above though the power is extraordinary and is used only if compelling reasons exist, the factor which weighed with the trial court does not appear to be relevant and, therefore, the High Court has rightly interfered in the matter. The impugned judgment does not suffer from any infirmity. However, we make it clear that we have not expressed any opinion on the merits of the case. Since the matter is pending long, trial court is requested to complete the trial as early as possible." 17. In the aforesaid judgment it was also held by the Apex Court that merely on the ground that the witness was an interested witness, it cannot be said that there was no sufficient ground to take action against such other person. 18. In case of Rajendra Singh v. State of U. P. reported in 2007 (7) SCC 378 : (2007 (5) ALJ 485) after considering the earlier judgment it was held by the Supreme Court that if the evidence tendered in the course of the trial that any person not being the accused had committed any offence, for which he could be tried together with the accused, he could be summoned to face trial even though he could not be charge-sheeted or might have been discharged at the earlier stage. 19. As far as the case of Mohd. Shafi v. Mohd. 19. As far as the case of Mohd. Shafi v. Mohd. Rafiq (2007 (4) ALJ 317) and another is concerned, the same has to be read in the light of the fact of aforesaid case for considering the application of Section 319 Cr. P. C. The relevant paragraphs to place fact of that case are quoted herein-below- (2) A First Information Report was lodged against the appellant herein by one Rafiq on 10-11-2005 alleging commission of an offence under Section 307/324 IPC. In view of the death of the injured, the case was converted to one under Section 302 IPC. The police submitted a charge-sheet only against one Karimullah alias Aarif. No charge-sheet was submitted as against the appellant herein. After the matter was taken up for hearing before the learned Trial Judge, respondent No. 1 examined himself as P. W. 1. In his examination-in-chief, he alleged that the incident had taken place in his presence and the appellant had taken part in the incident. An application was filed for summoning the appellant herein under Section 319 of the Code of Criminal Procedure only on the basis thereof. The learned Sessions Judge refused to accede to the said prayer stating :- "File is taken up. Statement has been perused in regard to the application under Section 319 Cr. P. C. On perusal of the statement of the witness PW 1 Rafiq uptil now, witnesss chief-examination is only done. The witness had stated the incident has taken place in his presence and has further stated to reach the spot on hearing the noise. On going through statement given under Section 161 Cr. P. C. of the witness, it is found to be recorded in Paper No. 1 dated 10-11-2005 that he reached the spot after the incident as stated by this witness. And accused, Karimullah is said to be the incident doer. Hence, the application is not acceptable at this stage. The application under Section 319 Cr. P. C. is being dismissed at this stage." (3) Respondent No. 1 filed an application before the High Court of Judicature at Allahabad under Section 482 Cr. P. C. against the said order and by reason of the impugned order, the same has been allowed. The appellant is, thus, before us. The application under Section 319 Cr. P. C. is being dismissed at this stage." (3) Respondent No. 1 filed an application before the High Court of Judicature at Allahabad under Section 482 Cr. P. C. against the said order and by reason of the impugned order, the same has been allowed. The appellant is, thus, before us. (12) The Trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instances of a witness and when the State was not aggrieved by the same. (13) From a decisions of this Court, as noticed above, it is evident that before a Court exercises its discretionary jurisdiction in terms of section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly, set aside. The appeal is allowed." 20. From the reading of the judgment passed in the case of Mohd. Shafi : (2007 (4) ALJ 317), it is clear that in that case the prosecution witness has alleged that the incident had taken place in his presence. However, he stated further that he reached on the spot after hearing the noise, hence after considering the fact and circumstances of the case the trial court found that the application for summoning the appellant Mohd. Shafi was not acceptable at that stage and the same was rejected at that stage. 21. In view of the aforesaid fact the Apex Court has observed that if the trial court thought that the matter should receive his due consideration only after cross-examination of the witnesses are over, no exception thereto could be taken for less at the instance of a witness and even when the State was not aggrieved by the same. 21. In view of the aforesaid fact the Apex Court has observed that if the trial court thought that the matter should receive his due consideration only after cross-examination of the witnesses are over, no exception thereto could be taken for less at the instance of a witness and even when the State was not aggrieved by the same. It was further held that in exercise of its discretionary jurisdiction, in terms of the Section 319 Cr. P. C. the trial court must arrive the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. In reference of the aforesaid fact it was observed by the Apex Court that such satisfaction could be arrived at inter alia upon completion of the cross-examination of the said witness and for the said purpose, the court concerned might also like to consider the other evidence. At that stage the trial court was not satisfied to summon other person under Section 319 Cr. P. C. to face trial which was set aside by the High Court and as such in view of the fact and circumstances of that case the order of High Court was set aside by the Apex Court. Merely reading one sentence of the aforesaid judgment it cannot be said or interpreted that such other persons cannot be summoned in exercise of power under section 319 Cr. P. C. before cross-examination of the witness. In case of Haryana Financial Corporation v. M/s Jagdamba Oil Mills 2002 (1) U.P.LB.E.C.937 : ( AIR 2002 SC 834 ) the Supreme Court held that the observations of the courts could not be read as provisions of statute. The observation of the court to be read in the context in which they appear. It was further held that Judges interprets statutes and do not interpret judgments. 22. In case of State of Rajasthan v. Ganesh Lal reported in AIR 2008 SC 690 it was held by the Apex Court that the reliance on the decision, without looking into factual background of the case before it, is clearly impermissible. A decision would be a precedent on its own facts. Each case presents its own features. A decision is an authority for what it actually decides. A decision would be a precedent on its own facts. Each case presents its own features. A decision is an authority for what it actually decides. What is of the essence in a decision is ratio and not every observation found therein nor what logically flows from various observations made in the judgments. The enunciations of the reasons of principal on which a question before a court has been decided is alone binding as a precedent. 23. In case of Mohd. Shaft : (2007 (4) ALJ 317) neither the issue was raised nor it was considered and decided by the Supreme Court that the evidence used in Section 319 Cr. P.C. would be complete only after cross-examination or examination-in-chief would not be a complete evidence in term of Section 319 Cr. P. C. for summoning such other person to face the trial who has not been charge-sheeted. 24. Thereafter in another judgment Mohd. Shafts case was considered in which one of the Hon. Judge (Hon. S.B. Sinha, J,) was member of the bench which is reported in AIR 2008 SC 1564 Kailash v. State of Rajasthan another decided on 3-3-2008. 25. In the aforesaid judgment this was not held by the Apex Court that the evidence would be complete only after the cross-examination and the power could not be exercised on the basis of the examination-in-chief. The relevant portion of the paragraphs 9 and 10 of the aforesaid judgment is quoted herein below : (9) "A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are "it appears from the evidence" ..any persons "..... has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against the persons, the discretion under Section 319 would be used by the court. This is apart from the fact that such person against whom such discretion issued, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr. This is apart from the fact that such person against whom such discretion issued, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr. P. C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It would, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words it appears are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands. (10) In a reported decision in Mohd. Shafi v. Mohd. Rafiq and Anr. (JT 2007(5) SC 562 : (2007 (4) ALJ 317) to which one of us (Sinha, J.) was party, this Court had observed in para 7 as under : "Before, thus, a trial court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. commission of an offence by a person not facing trial, must, therefore, appear to the Court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the Court must arrive at its satisfaction in this behalf." 26. In the aforesaid judgment the Apex Court held that the power under Section 319 Cr.". P. C. has to be exercised very sparingly and with caution and only when the trial court was satisfied that some offence has been committed by such person on the basis of the evidence. It was observed that the power under Section 319 Cr. P. C. could therefore be used only after legal evidence comes on the record and from that evidence it appears that the concerned person has committed an offence. 27. It was observed that the power under Section 319 Cr. P. C. could therefore be used only after legal evidence comes on the record and from that evidence it appears that the concerned person has committed an offence. 27. In view of the aforesaid cases and discussions it is clear that the statement recorded before the trial court in examination in chief is a legal evidence, hence if it appears to the trial court that on the basis of the evidence examination-in-chief of the witnesses that prima facie commission of the offence is disclosed, such other persons can be summoned to face the trial along with the accused who has already been arraigned as accused. If the court is satisfied on the basis of examination-in-chief of the eye-witness, then it is not mandatory for the trial court to wait for cross-examination or other evidence. Mohd. Shafts Case : (2007 (4) ALJ 317) is not in contradiction to the earlier judgments including the judgment of Rakesh and others. Further in subsequent case of Kailash v. State of Rajasthan : ( AIR 2008 SC 1564 ) while considering the word evidence no such observation was made by the Apex Court that the evidence would be complete only after cross-examination though Mohd. Shaft case was considered. 28. It is well settled that while considering the application under Section 319 Cr. P. C. to summon the other persons to face the trial along with the accused who had already been charge-sheeted, the trial court must have reasonable satisfaction from the evidence already placed before the Court to the fact that the other person has committed an offence and for such offence he should be tried along with the other accused already arraigned. The aforesaid power in exercise of judicial discretion, would be exercised by the trial court to achieve criminal justice. It is also well settled that at the stage of section 319 Cr. P.C. the trial court might not enter into the merit of the matter like a trial to pass order for conviction, but when in its opinion there is prima facie offence was disclosed and there was a possibility that the person to be summoned in all likelihood, might be convicted then the power can be exercised. However, the court is also required to consider that the innocent person might not be prosecuted. However, the court is also required to consider that the innocent person might not be prosecuted. The court is also not bound by the opinion of the investigating officer but is required to consider the evidence adduced during trial before the court. Merely on the ground of the opinion of the investigating officer, that no evidence was available, or no offence was disclosed against the person and no charge-sheet was submitted it would not be sufficient to refuse to issue summon to a person under Section 319 Cr. P. C. against whom the evidence has been adduced before the trial Judge, who is required to be summoned to achieve criminal justice. There is no dispute that power under section 319 Cr. P. C. has to be exercised sparingly. But in the present case since the injured witness has named the applicants who assaulted him and one Santosh, they were injured, hence it can not be said that applicants can not be added as accused in exercise of power under Section 319 Cr. P. C. Since the trial court was satisfied hence it was not necessary to wait for the cross-examination or statement of other witness. In view of the aforesaid discussion there is no illegality in the summoning order under section 319 Cr. P. C. and it is not necessary to refer the matter to the larger bench. Hence present revision has no force and accordingly the same is rejected. 29. Learned counsel for the applicants further submitted that since the applicants were not charge-sheeted and has been summoned under Section 319 Cr. P. C. hence their bail application might be decided on the same day. 30. In view of the facts, it is directed that if the applicants appear before the court below within six weeks from today and apply for bail, the same shall be considered and disposed off expeditiously, if possible on the same day. No coercive steps shall be taken against them for a period of six weeks in pursuance of the summoning order or non bailable warrant if any. Revision dismissed.