Crl.Rev. No.2306 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Rev. No.2306 of 2008 Date of Decision: 17.3.2009 State of Haryana .....Petitioner Vs. Usman and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Ajay Chaudhary, DAG, Haryana for the petitioner. Mr. Satish Chaudhary, Advocate for the respondents. .... RAJIVE BHALLA, J (Oral) The State of Haryana, prays that the order dated 2.5.2007, passed by the Additional Sessions Judge, Gurgaon, dismissing its application filed under Section 319 of the Code of Criminal Procedure (hereinafter referred to as `the Code'), be set aside. Counsel for the State of Haryana submits that the court below has dismissed the application by holding that as the deposition by PW-1 is similar to his statement before the police, the respondents can not be summoned to stand trial. The trial Court has committed an error as it has failed to comprehend that it was required to consider “evidence” on record and it is irrelevant, whether the “evidence” on record is similar to the material collected by the police. Counsel for the respondents, submits that the impugned order does not suffer from any error of jurisdiction or of fact, as would require interference. As the deposition by PW-1 is, similar to his statement made Crl.Rev. No.2306 of 2008 2 before the police, the learned trial Court rightly declined to summon respondents no.7 and 8. I have heard learned counsel for the parties and perused the impugned order. The impugned order, in my considered opinion, suffers from an inherent error of jurisdiction. The police file a final report on the basis of “material” collected during investigation. The material collected during investigation assumes the status of “evidence” after prosecution witnesses depose before a Court. The fact that there is a similarity between the deposition before a Court and the statement recorded before the police cannot, by itself be the sole circumstance to reject a prayer for summoning, filed under Section 319 of the Code. The use of the word “evidence” in Section 319 of the Code as distinguished from the word “material” that forms the basis for a final report, filed after conclusion of investigation fortifies this conclusion. The trial Court disregarded this difference and, therefore, committed an error by declining the prayer under Section 319 of the Code. Consequently, as the impugned order suffers from an error of jurisdiction, the revision petition is allowed, the order dated 2.5.2007 is set aside and the matter is remitted to the Additional Sessions Judge, Gurgaon for adjudication afresh, in accordance with law. Before parting with the judgement, it would be necessary to mention here that PW-1's cross-examination is pending. The Additional Sessions Judge, Gurgaon, would, therefore, take up the application filed under Section 319 of the Code for consideration afresh, after the cross- examination of PW-1 concludes or at any other stage of the trial, as it may Crl.Rev. No.2306 of 2008 3 deem appropriate. 17.3.2009 (RAJIVE BHALLA) GS JUDGE