The term 'evidence' in Section 319 Cr. P. C. does not mean evidence complete by cross-examination, and the court can summon under Section 319 Cr. P. C. even on the statement made in examination-in-chief of one or more witnesses.

ORDER :-

The present Criminal Revision has been filed against the order dated 29-7-2008 passed by learned Additional Sessions Judge/F.T. Court No. 2 Azamgarh summoning the applicants in exercise of power under Section 319 Cr. P. C. to face trial under Sections 323, 324, 509, 504, 506 and 3 (1) (10) SC/ST Act, in ST. No. 322/06 (State v. Suresh).

2. Heard learned counsel for the applicants and learned AGA and perused the record.

3. Learned counsel for the applicants submitted that the applicants were falsely implicated by opposite party No. 2 Sushil and during investigation it was found that the applicants were falsely implicated and the charge sheet was submitted only against Suresh Yadav under Sections 504, 506, 509, 323, 324 I.P.C. Thereafter, during trial after statement of PW-1 Shushil, applicants were summoned under section 319 Cr. P. C. to face the trial. He has challenged the summoning order on the ground that no accused can be summoned under Section 319 Cr. P. C. without cross examination of the witnesses. In support of his argument he has relied the judgment of the Apex Court passed in the case of Mohd. Shafi v. Mohd. Rafiq and another reported in 2007 (52) Alld Crl. C. 254 (SC) : (2007 (4) ALJ 317) decided on 9-4-2007 and the judgment of learned Single Judge of this High Court reported in 2008 (1) U. P. Cr. Rulings 501 Miss. Aase Jorgensen and another v. State of U. P. which was passed relying the judgment of Mohd. Shafi.

4. The brief fact of the case is that the applicants were named in the First Information Report but the charge-sheet was filed only against Suresh Yadav and the applicants were not charge-sheeted. The case was committed to the Sessions Court. During trial before the court of learned Additional Sessions Judge/F.T. Court No. 2 Azamgarh after recording the examination-in-chief of the informant PW-1, Shushil, who was injured witness, an application was moved under Section 319 Cr. P. C. to summon the applicants Mahendra Yadav and Hansa alias Hansraj Yadav. In examination-in-chief, injured Sushil stated that Mahendra Yadav and Hansa alias Hansraj Yadav, who were father and son, and since they were influential and monied person, hence no charge-sheet was filed against them, though they were named in the F.I.R. and in the statement under Section 161 Cr. P. C. also their involvement was disclosed to the investigating officer. In the statement on oath PW-1 Shushil stated that both Hansa and Mahendra armed with lathi, danda and belcha assaulted him (the informant, PW-1) and one Santosh, who received injuries. The aforesaid statement was supported with the injury report.

5. In view of the aforesaid fact after hearing the learned counsel for the parties and after considering the statement, since there was allegation against Hansa alias Hansraj Yadav and Mahendra with regard to assault to the informant and Santosh, who received injuries, hence the trial Judge was satisfied that, prima facie commission of offence was disclosed and found that it was a fit case in the interest of justice to summon the applicants/revisionists Hansa alias Hansraj and Mahendra under Section 319 Cr. P. C. to face trial along with the accused Suresh Yadav who had already been arraigned as accused.

6. Learned counsel for the applicants further contended that the order of the learned trial court was mechanical and without application of mind. He further submitted that in view of Mohd. Safis case the matter had already been referred by learned Single Judge of this High Court in case of Bhuri v. State and Others on 31-1-2008, hence the present matter be also referred to the larger bench to consider whether the trial court was entitled to summon the applicant before cross-examination of the witness and further submitted that during pendency of the present revision summoning order might be stayed. The learned AGA contended that the decision in Mohd. Shafts case is not contrary to earlier decisions and further the observation has to be rea