IMPORTANT POINT
Unless the witness is cross-examined, it cannot be said that is complete II evidence as contemplated under Section 319, Cr. P.C.

ORDER

U.P. Hiremath, J. - Heard for admission. Admitted Heard/on merits as well.

2. The order passed by the II Additional J.M.F.C., Ranebennur, in C.C. No. 582/1988 on 25-11-1989 under Section 319 Cr. P.C. taking cognizance of the offences against the present petitioners has been challenged in this revision petition. For offences under Sections 447, 323, 504 and 506 read with Section 34 I.P.C. a complaint was filed in the Renebennur Town Police Station against 15 persons including the present petitioners. On investigation, a report under Section 173 Cr. P.C. came to be filed against 3 of the accused named in the complaint. During trial, the prosecution examined two witnesses. Soon after the first witness i.e., P.W. 1-complainant was examined in chief, the Public Prosecutor submitted to the Court that because the complainant had deposed in his evidence-in-chief against these petitioners as well, he sought for time to file application to take cognizance of the offences against them as well. Thus, the evidence of P.W.1 complainant was stopped at that stage and P.W. 2 was asked to depose. This was nearly, one month, after the evidence-in-chief of P.W. 1 was over. Similar course was adopted by the A.P.P. of the Court when P.W. 2 was in box. The note made by the Court at the end of the evidence-in-chief of P.W. 2 is as follows:

"A.P.P. at this stage prays for time to lead the examination in further on ground that the witness had deposed not only against the accused who are before Court and also against some others and his evidence is corroborated by the evidence of P.W. 1 in this regard and to file application to take action against others also. Hence, at the request of A.P .P. further examination-in-chief is deferred. "

3. It appears, as submitted at the Bar by the petitioners Counsel, the A.P.P. filed application on 19-10-1989 under Sccti6n 319 Cr. P.C. to take cognizance against the present petitioners as well on the strength of the statement made by two witnesses in their examination-in-chief. On 3-11-1989, as against submitted at the Bar, the Counsel appearing for the accused facing trial applied to the Court under Section 311 Cr. P.C. to permit them to cross-examine the witnesses. A common order came to be passed on 18-11-1989 rejecting the application of the accused persons observing that the same could be done only after the persons against whom cognizance was sought to be taken appeared. Accordingly, the impugned order came to be passed directing issue of summons to the petitioners to appear before the Court, on or before 4-1-1990.

4. In this petition, the main contention urged on behalf of the petitioners is that the Trial Court ought not to have proceeded against the petitioners under Section 319 Cr. P.C. considering the statements made by the witnesses in evidence-in-chief alone. Unless they are cross-examined, it cannot be said that there was evidence before the Court on which it could act upon to proceed under Section 319 Cr. P.C. Section 319 (1) Cr. P.C. makes it amply clear that,

"Where in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed."

(emphasis supplied).

Thus, it is urged that Section 319 could be invoked only when there is complete evidence before the Court To emphasise the point, reference has been made to a decision of the Calcutta High Court in the case of Golam Mondal v. Nazam Hossain & Others1. The point involved was almost similar in the case before the learned Single Judge of the High Court and at paragraph-8, the learned Judge has observed as follows:

"8. There can be no doubt that the case is a very old one. The Supreme Court in Delhi Municipality Y. Ram Kinkar (A.I.R.1983 S.C. 67) has clearly cautioned that the provision of Section 319 Cr.P.C. sho