(SHORT NOTE)
PUNJAB AND HARYANA HIGH COURT
D. S. Tewatia, J.
Amarjit Singh - Petitioner
versus
State of Punjab and another - Respondents
Criminal Misc. No. 3762-M of 1982
Decided on 17-11-1982
Ujagar Singh, Advocate with R. P. Bhatia, Advocate-For the Petitioner.
P. S. Kang, Advocate-For the Respondent.

IMPORTANT POINT
A person named in the F.I.R. as an accused person and challaned by the police, but discharged by the Magistrate under Section 239, Criminal Procedure Code could be considered to be, a person not being an accused," and summoned by the very court by virtue of the provisions of Section 319, Criminal Procedure Code to be tried alone with other accused persons at the stage when "evidence" is produced before the court that the discharged person could be implicated along with other persons who were being tried.
Order accordingly.

Headnote:(i) Criminal Procedure Code, 1973, Sections 239 and 319 - Petitioner was named as an accused along with two other persons' in F.I.R. for an offence under Sections 326/34 Indian Penal Code and was challaned by the police-Trial court after considering F.I.R. and statements under Section 161 Criminal Procedure Code discharged the petitioner under Section 239 Criminal Procedure Code. Whether a person named in the F.I.R. as an accused and challaned by the police, but discharged by the Magistrate under Section 239, Criminal Procedure Code could be considered to be “a person not being an accused", and summoned by the very court by virtue of the provisions of Section 319, Criminal Procedure Code to be tried along with other accused? (Yes, at the stage when evidence is produced before the court showing that the person could be implicated along with other persons who were being tried)

       Joginder Singh v. State of Punjab, 1979 Cr. L.J. 333 (S.C.) followed.

       (ii) Criminal Procedure Code, 1973, Section 319-Petitioner named as an accused in F.I.R. but later discharged by Magistrate before commencing trial-Trial commencing-Prosecution witness deposing in her examination-in-chief attributing a positive act of criminality to petitioner-Magistrate ordering at that stage for summoning of petitioner to be tried along with two other accused-Order whether legal? (No)

       Held unless the statement of the prosecution witness bad concluded it could not be termed "evidence". Though the Magistrate was competent to summon the petitioner under Section 319, Criminal Procedure Code who was discharged by him" such summoning by him on the basis of examination-in-chief alone could not be said to be such "evidence" upon which the Magistrate could act upon under Section 319 as it was an incomplete statement not admissible in "evidence". The accused persons already standing trial should be given an opportunity of cross-examining the prosecution witness Gandoor Singh V. State of Punjab, Cr. Misc. No. 5484-M of 1980 decided on 17-12-1980 by Tiwana J. of Pb. & Hry High Court followed.