Criminal Misc. No.M-23075 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-23075 of 2008 Date of decision : 1.12.2008 **** Gurmit Kaur and others .....Petitioners Versus State of Punjab ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Naresh Kaushal,Advocate for the petitioner Ms. Manjari Nehru, Deputy Advocate Genera, Punjab Mr. Pritam Sharma, Advocate for the complainant. S. D. ANAND, J. The impugned order under Section 319 Cr.P.C. came to be passed by the Trial Magistrate on the basis of the concededly incomplete examination-in-chief. The incomplete part of the statement (PW Paramjit Kaur) is quoted in para 3 of the petition. It is apparent, on a perusal thereof, that further examination came to be deferred on the request of the Public Prosecutor for want of availability of original letters. It is common ground that Paramjit Kaur did not enter the witness box thereafter and opted to file the impugned plea for the summoning of the petitioners which (plea) came to be allowed, vide the impugned order. Learned counsel for the petitioners argues that the plea under Section 319 Cr.P.C. could not have been entertained in view of the fact Criminal Misc. No.M-23075 of 2008 -2- **** that the petitioners had been exonerated of the charge by the Investigating Agency and it is for want of incriminating evidence against them that their names had been shown in column No. 2 of the report under Section 173 Cr.P.C.. The plea is completely denuded of merit. There is no law which could be cited by the learned counsel for the petitioner for upholding the advocated plea. The finding by the police does not estop the applicability of the provisions of Section 319 Cr.P.C. which, by the very nature of things, come into play at a time subsequent to the filing of report under Section 173 Cr.P.C. However, the petition has to succeed in view of the fact that impugned order is based upon incomplete statement of PW-1 Paramjit Kaur which (incomplete statement) cannot be said to have attained the character of substantive evidence. That nomenclature would have become available for that statement only after the witness aforementioned had been subjected to the cross-examination on behalf of the party opposite thereto. In the light of the fore-going discussion, the petition shall stand allowed. The impugned order shall stand set aside. Learned Trial Magistrate shall, however, at liberty to pass an order afresh on the basis of whatever substantive evidence may be available on record for consideration of the plea. December 01, 2008 (S. D. ANAND) Pka JUDGE