IMPORTANT POINT
The statement of a prosecution witness without the said witness having been cross examined, constitutes evidence within the meaning of Section 319 of Cr. P.C. 1973.

Headnote:Criminal Procedure Code, 1973 -Section 319-FIR under Sections 363, 366 and 376 IPC against three Prem Chand, Rakesh and Jai Bhagwan-Before trial, Rakesh and Jai Bhagwan were dropped as they were not involved in the case-When the statement of prosecutrix was recorded in examination chief she named all the three involved in case, Public Prosecutor moved an application to implead Rakesh and Jai Bhagwan also as accused-Trial Court allowed-High Court dismissed Criminal Revision-Appeal by Rakesh and Jai Bhagwan to Supreme Court-Whether the statement of a prosecution witness without the said witness having been cross examined, constitutes evidence within the meaning of Section 319 of Cr.P.C. 1973? (Yes)- Whether power u/s 319 properly used in this case? (Yes)-Appeal dismissed-Case law discussed-(Evidence Act, 1872-Section 3).
       Held : The scope of Section 319 was considered by this Court in Ranjit Singh v. State of Punjab, 1998(7) SCC 149 : 1998(7) Supreme 447. 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 for 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."
       Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term evidence as used in Section 319 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 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. Lastly, learned counsel further submitted that power under Section 319 is an extraordinary power and should be used very sparingly and only for some compelling reasons for taking cognizance of other persons against whom action has not been taken. For this purpose, he referred to MCD v. Ram Kishan Rohtagi, (1983) 1 SCC 1. In our view, there cannot be a dispute that power under Section 319 is to be sparingly used. But that would not mean that when a prosecutrix names three persons who were involved in the serious crime are not to be added as accused by exercise of such power. In the result, the appeal is dismissed. (Paras 12, 13, 14 and 15)

JUDGMENT

Shah, J.-Leave granted.

2. For deciding the question involved, facts are - on 16.3.1998, Shri Sat Pal, father of the prosecutrix Manju Bala lodged an FIR at police station Gharaunda, District Karnal, Haryana under Sections 363, 366 and 376 IPC on the allegation that his minor daughter Manju Bala aged about 16 years had gone from the house on March 15, 1998 about 7.30 p.m. at Bara (the place where cattles are tethered), but did not return thereafter. He complained that his daughter was taken away by Prem Chand, Rakesh and Jai Bhagwan due to previous enmity with the object of committing rape. On 17.3.1998, the girl and accused Prem Chand were found in Noida by the police. After investigation, the police found that the appellants Rakesh and Jai Bhagwan were not involved in the case. Therefore on August 11, 1998, charges were framed only against Prem Chand. On April 15, 1999, PWs 1, 2 and 3 were examined by the prosecution. On May 20, 1999 the prosecutix was examined as PW 4 and her cross-examination had begun, when the Public Prosecutor moved an application under Section 319 of the Cr.P.C. for arraigning the appellants as additional accused. The learned trial Judge, by an order dated July 15, 2000 arraigned the appellants as additional accused and summoned them to stand trial. The appellants preferred Criminal Revision Petition No. 1016 of 2000 before the High Court which was dismissed. Hence the present appeal.

3. The question involved in this case is-whether the statement of a prosecution witness without the said witness having been cross-examined, constitutes evidence within the meaning of Section 319 of Cr.P.C., 1973.

4. Learned senior counsel Mr. Ranjit Kumar 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 319 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 Halsbury s Laws of India, 1st Edition, Volume 15, in paragraph 145.242, wherein it has been stated:

"The mere statement of the plaintiff s witnesses cannot constitute the plaintiff s evidence in the case unless and until it is tested by cross-examination. The right of the defence cross-examine the plaintiff s witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff s evidence cannot be acted upon."

(emphasis supplied)

5. At the time of hearing of this matter, the learned counsel for the parties submitted that High Courts have taken conflicting views on this point. The High Court of Punjab and Haryana in the cases of Balvinder Singh v. State of Haryana1, Joginder Singh v. State of Punjab2, Dharam Pal v. Hardial Singh3 and Rakesh Batra v. State of Haryana4 has arrived at the conclusion that statement of the complainant without cross-examination is not admissible in evidence and, therefore, the order of the Sessions Judge exercising powers under Section 319 of the Criminal Procedure Code summoning additional persons as accused on the basis of the said statement was not lawful. The Court arrived at the conclusion that the word evidence used in Section 319 of the Code means admissible evidence and the statement of a witness when he is yet to be cross-examined cannot be treated as evidence in the eyes of law.

6. As against this, the High Court of Delhi in State v. Kishori etc.5, High Court of Punjab and Haryana in Chanan v. State of Punjab6 and the High Court of Allahabad in Ram Gopal v. State of U.P.7 have taken a contrary view and have held that

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2001 Supreme(SC) 974

IMPORTANT POINTThe statement of a prosecution witness without the said witness having been cross examined, constitutes evidence within the meaning of Section 319 of Cr. P.C. 1973.

Cases Referred (4)

IMPORTANT POINT
The statement of a prosecution witness without the said witness having been cross examined, constitutes evidence within the meaning of Section 319 of Cr. P.C. 1973.