Rajesh vs The State Of Haryana

3. The facts leading to the present appeal in nutshell are as under:

3.1 That all the accused named in the FIR were arrested. The Investigating Officer conducted the investigation and found ten persons involved in the said incident. However, the Investigating Officer found that the appellants herein (six in numbers) were not present at the site of incident. That the Investigating Officer submitted his report under Section 173(2) of the CrPC against four accused only. That, thereafter the Investigating Agency conducted further investigation by Jagdeep Singh HPS, DSP, Panipat. It appears that a report under Section 173(8) of the CrPC was also submitted. According to the Investigating Officer, on the date of the commission of the offence the appellants herein were not present at the place of occurrence, rather they were found on different places which have been found by the Investigating Agency also. It appears that thereafter, as the appellants herein were in custody, the SHO, Police Station Sadar filed the applications before the Judicial Magistrate, First Class, 5 Panipat on 01.09.2016 and 28.10.2016 submitting that after investigation no challan is filed against the appellants herein and no evidence is found against them and, therefore, they may be discharged/released. That the learned Magistrate directed to release the appellants. That, thereafter the trial proceeded further against the remaining accused against whom the challan/charge­sheet was filed. The prosecution examined two witnesses – P.W.1, the original informant and P.W.2, Bhajji, the injured eye witness. Both of them corroborated the case of the prosecution and categorically stated that the appellants herein were also present at the time of incident. Both of them were cross­examined by the defence. That, thereafter the original informant P.W.1 submitted the application before the learned Magistrate under Section 319 of the CrPC to summon the appellants herein to face the trial for the offences under Sections 148, 149, 323, 324, 325, 302, 307 and 506 of the IPC. It was the case on behalf of the original informant that P.W.1 and P.W.2 who were examined during the course of the trial, in their depositions both of them have corroborated the case of the prosecution and the statements which they had made before the police have also been found corroborated and their statements 6 before the Court are part of the application filed and, therefore the appellants herein who were named in the FIR are to be summoned to face the trial. That, by a detailed judgment and order, the learned Magistrate in exercise of powers under Section 319 of the CrPC has directed to issue summons against the appellants herein to face the trial along with the other co­accused for the offences under Sections 148, 149, 323, 324, 325, 302, 307 and 506 of the IPC 3.2 The order passed by the learned Magistrate has been confirmed in revision by the High Court by the impugned judgment and order. Hence the present appeal by the appellants herein who are issued the summons to face the trial in exercise of powers under Section 319 of the CrPC.

5.3 Making the above submissions, it is prayed to dismiss the present appeal.

85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The “evidence” is thus, limited to the evidence recorded during trial.” 7.5 While answering question No. (ii), namely whether the word “evidence” used in Section 319(1) of the CrPC means as arising in examination­in­chief or also together with cross­examination, in the aforesaid decision, this Court has observed and held as under:

Thus, the statement of P.W.1 and P.W.2 before the Court can be said to be “evidence” during the trial and, therefore, on the basis 31 of the same and as held by this Court in the case of Hardeep Singh (supra), the persons against whom no charge­sheet is filed can be summoned to face the trial. Therefore, we are of the opinion that no error has been committed by the Courts below to summon the appellants herein to face the trial in exercise of power under Section 319 of the CrPC.

10. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned judgment and order passed by the High Court confirming the order passed by the learned Magistrate summoning the accused­appellants herein to face the trial in exercise of the power under Section 319 of the CrPC. We are in complete agreement with the view taken by the High Court. No interference is called for by this Court. In the facts and circumstance of the case and for the reasons stated hereinabove, the present appeal fails and deserves to be dismissed and is according dismissed. 33