The participation of an individual in a crime, as established by evidence, warrants summoning for trial with other accused, and the rejection of such application must be in accordance with the law.

The order, dated 15-12-1994 passed by VHIth Additional Sessions Judge, Bulandshahr in Sessions trial No. 337 of 1989 under Section 498-A/304-B IPC rejecting the application of the applicant, who is the complainant in the case under Section 319 Cr. P. C. , to summon the opposite party No. 2 to stand trial with other accused for offences under Section 498-A, 304- B. , I. P. C. has been challenged in this revision.

2. I have heard Sri Apul Misra, learned counsel for the revisionist and Sri D. R. Choudhary learned counsel for op posite party No. 2.

3. The revisionist is a complainant of the case for offences under Section 498-A/304-B IPC and 3/4 Dowry Prohibition Act. The husband of the deceased and other relations are being tried before the VIII Additional Sessions Judge, Bulandshahr in S. T No. 337/89. The opposite party No. 2was also named in the F. I. R. He is the younger brother of the husband. However, the police did not submitted any charge- sheet against him. The statement of five witnesses of the incident have been recorded by the learned VIII Additional Sessions Judge, Bulandshahr. It is undisputed that they have stated that the opposite party No. 2 also made a demand for dowry and treated the victim with cruelty. Therefore, the evidence produced in the court prima fide shows the participation of the opposite party No. 2 in the crime. The learned Addi tional Sessions Judge has failed to exercise his jurisdiction in rejecting the applica tion. The learned Additional Sessions Judge has passed a detailed order but I find that he has considered the matters which were not relevant for the disposal of the application under Section 319 Cr. PC. and he has scrutinised the evidence. He has also mentioned that the statements of the police witnesses have not been recorded. This approach of the trial Court is not in accordance with law. The participation of the opposite party No. 2 appear from the statements of five prosecution witnesses examined by the prosecution and there fore he should also have been summoned under Section 319 Cr. PC. for trial with the other accused.

4. It is contended that prior to the presentation of the application under Sec tion 319 Cr. PC. the application for the same purpose was moved, which was al lowed by the learned VIII Additional Ses sions Judge, Bulandshahr. Against that order a revision was preferred, which was allowed by this Court, only on the ground that the witnesses have not been cross-ex amined and the statements cannot be treated as evidence without cross- ex amination, as this view was taken by this Court in several cases. The matter was sent back to the learned VIII Additional Ses sions Judge, Bulandshahr for orders. That does not bar the present application.

5. Accordingly the revisiorris allowed and the impugned order of the learned Additional Sessions Judge, Bulandshahr dated 15-12- 1994 is quashed. He is directed to summon the opposite party No-2 to stand trial with other accused for offences under Sections 498-A, 304-B IPC. and after appearance of the opposite party No. 2 he shall proceed with the case in accordance with law.

Revision allowed

.