JUDGMENT [ENTITY], J.
1. The petitioners stand summoned as additional accused by the Additional Ses Judge, Rupnagar, under [SECTION] [ACT] [ENTITY] and Ors. are being prosecuted for offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT]. This case was registered on the statement of [ENTITY]. On 15.7.2005. After investigation, petitioners, [ENTITY], [ENTITY] and [ENTITY] were found innocent and placed in columnNo. 2. Complainant [ENTITY] appeared as PW3 and made statement before the Court. Thereafter, the prosecution had filed this application under [SECTION] [ACT] to summon the petitioners.
2. While, impugning the said order, learned Counsel has mainly contended that [ENTITY], complainant, was yet to be cross- examined when this application was moved, leading to summoning of the petitioners. As per the counsel, the petitioners could have been summoned only after the conclusion of cross-examination and not before that. In this regard, he has referred to the case of [PRECEDENT]. This is a case where the application was moved before the trial Court for summoning an additional accused. The trial Court noticed that till then a witness had only been examined in-chief and declined to accept the application at that stage. This order was impugned before the High Court, which allowed the petition and set-aside the order passed by the trial Court. The same was impugned before the Honble Supreme Court and in this background, it is held:
From the decisions of this Court, as noticed above, it is evident that before a Court exercises its discretionary jurisdiction in terms of [SECTION] of the [ACT], 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.
3. The ratio that can be culled out from the above observation of the Honble Supreme Court is that no exception can be taken where the trial Court is of the view that the application should receive its consideration only after conclusion of the cross- examination. It is the discretion to be exercised by the trial Court and if the Court is of the view that such discretion should only be exercised after conclusion of cross-examination of a witness, obviously there can not be any exception taken to this approach. From this and the above observation of the Honble Supreme Court, it would not be possible to contend that any binding precedent is being set in this judgment that additional accused can only be summoned upon conclusion of the cross-examination of a witness. The High Court order was set-aside with the observation that no exception can be taken where the trial Court wishes to arrive at its satisfaction after the cross-examination is over. Rather, the Honble Supreme Court, in the case of [PRECEDENT] has categorically held that it is difficult to hold the contention that term evidence as used in [SECTION] [ACT] would mean evidence which is tested by cross-examination. The Court further held that the question of testing the evidence by cross-examination would arise only after addition of the accused. The contention raised before the Honble Supreme Court in the case of [PRECEDENT] (supra) was precisely to this effect, as can be seen from the following:
Learned senior counsel Mr.[ENTITY] submitted that the High Court materially erred in dismissing the revision application filed by the appellants and submitted that the term `evidence mentioned in [SECTION] in reference would mean examination-in-chief and cross examination of the witnesses. It is his contention that in a case where the name of the accused is mentioned in the FIR and after investigation in the report submitted by the Investigating Officer, the said person is not added as accused and the case is committed to the Sessions Court, before adding that person as an accused, the Sessions Court ought to have permitted cross examination of the witnesses. He referred to halsburys Laws of India, Ist Edition, Volume 15, in paragraph 145.242, wherein it has been stated:
The mere statement of the plaintiffs witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiffs witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiffs evidence cannot be acted upon.
Referring to the case of [ENTITY] v. State of Punjab 1998 (4) RCR (Crl.) 552 (SC), the Supreme Court observed that [SECTION] [ACT] contemplates existence of some evidence appearing in the course of trial from where the Court can prima-facie conclude that the person arrayed before it is also involved in the commission of crime for which he can be tried with those already named by the police. In this case, the Honble Supreme Court clarified that of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers.
4. Having so observed, the Honble Supreme Court held that it is difficult to accept the contention that evidence as used in [SECTION] [ACT] would mean evidence, which is tested by cross-examination.
5. The finding in this regard is as under:
Hence, it is difficult to accept the contention of the learned Counsel for the appellants that the term, `evidence as used in [SECTION] [ACT] 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 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 investigation 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.
6. Accordingly, contention raised by counsel for the petitioners to impugn the order can not be accepted. It otherwise is logical to so say. It is to be noticed that the additional accused would be unrepresented before the Court till added and any cross- examination of the witness can not be at his instance and has to be on behalf of some other accused facing trial.
7. The revision is accordingly dismissed in limine.