The main legal point established in the judgment is the interpretation of evidence and examination-in-chief as evidence under Section 319, Cr. P.C., and the necessity of cross-examination in exercising the power under this section.

JUDGMENT :

B.P. Das, J. - This revision is directed against the order dated 22-11-1999 passed by the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Balasore, in S.T. No. 51/100 of 1998 entertaining a petition u/s 319 of the Code of Criminal Procedure ('Cr. P.C.' in short) and directing issuance of process against the Petitioner.

2. The background leading to the impugned order is that the three brothers of the Petitioner have been arrayed as accused persons and are facing trial in the aforesaid sessions trial on being charge-sheeted u/s 324, 323, 307/34,1. P.C. The present Petitioner is not an accused in the aforesaid case. In para 10 of the revision petition it is stated that on 20-11-1999 and 22-11-1999 the prosecution examined two witnesses, namely, the informant-Dharanidhar Parida (opposite party No. 2) as p.w. 1 and the eye-witness-Rama Chandra Behera as p. w. 2, but before their cross-examination, on the basis of the statements of those prosecution witnesses, and without giving a chance to the defence to rebut the same by way of cross-examination, the learned Assistant Sessions Judge entertained an application filed by the prosecution u/s 319, Cr. P.C. praying to add the Petitioner as an accused and directed him to face the trial tor the offence u/s 304. I.P.C. along with the other accused persons. Consequently, process was issued against: the Petitioner.

3. The main plank of the argument of the learned Counsel for the Petitioner is that the trial court should have allowed the defence to cross-examine the prosecution witnesses in order to test the veracity of their statements and by not giving such a chance, the order of the trial court directing issuance of process is erroneous and cannot withstand the rigor of judicial scrutiny. Petitioner's further case is that the provisions of Section 319, Cr. P.C. should be used sparingly and statement of the witness in examination-in-chief cannot be said to be evidence upon which the court can act u/s 319, Cr. P.C., because, according to the Petitioner, such statement in examination-in-chief is nothing but incomplete statement of the witness.

4. Before proceeding to examine the aforesaid contention of the Petitioner, let me see the provisions of Section 319, Code of Criminal Procedure which read thus:

319. Power to proceed against to her persons appearing to be guilty of offence:

(1) 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 persons could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under Sub-section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

Let me now examine whether the statements of the witnesses recorded in examination-in-chief can be construed as evidence or not. The principles laid down by the Apex Court in the case of Ranjit Singh Vs. State of Punjab are relevant on the point. ln para 8 of the aforesaid decision it is held:

"8. Now it is well heigh settled that 'evidence' envisaged in Section 319 of the Code is the evidence tendered during trial of the case if the offence is triable by a Court of Session. The material placed before the committal court cannot be treated as evidence collected during