Point of law: for the exercise of power under Section 319 Cr.P.C. the use of word ‘evidence’ means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under Section 319 Cr.P.C

JUDGMENT :

SAROJ YADAV, J.

1. This petition has been filed by the petitioners praying to quash/set aside the order dated 10.05.2019 passed by learned Additional Sessions Judge, Court No. 11, Hardoi in Sessions Trial No. 47/2018 (State vs. Dharamveer Singh and Others) and Crime No. 203/17.

2. Heard learned counsel for the petitioners, learned counsel for the opposite party no. 2 and learned Additional Government Advocate appearing on behalf of the State.

3. Learned counsel for the petitioners submitted that the petitioners were named in the first information report but after investigation, the Investigating Officer found that the petitioners were not present in the Village at the time of incident and the location of the petitioner no. 1 was in Delhi and Haryana since 01.10.2017 till 15.10.2017, whereas the alleged incident took place on 12.10.2017. The petitioner no. 2 is the wife of the petitioner no. 1 and she is residing with him. Both the petitioners are residing separately since 2015, the petitioner no. 1 is doing a private job in Delhi. On the basis of the evidence collected during investigation, the Investigating Officer did not find any involvement of the petitioners in the alleged crime, as such, he dropped the names of the petitioners but during trial, the informant moved an application under Section 319 Cr.P.C. for summoning the petitioners as accused and learned Trial Court allowed the same without considering the material available on record i.e. call details of the petitioner no. 1, availed by the Investigating Officer. Learned counsel for the petitioners further submitted that learned Trial Court has passed the impugned order summoning the petitioners as accused persons only on the basis of the evidence of PW-1 to 4, which is not justified, so the impugned order should be quashed.

4. Learned counsel for the petitioners has relied upon the judgment of the Apex Court in the case of Brijendra Singh and Others vs. State of Rajasthan, (2017) SCC 2839 decided on 27.04.2017.

5. Contrary to it, learned counsel for the informant as well as learned A.G.A. appearing on behalf of the State opposed the arguments advanced by the learned counsel for the petitioners and submitted that while deciding the application moved under Section 319 Cr.P.C. learned Trial Court has to take into consideration only that evidence and material which is available on record. In this matter, learned Trial Court considered the evidence of the witnesses of facts examined in the Court and on the basis of that evidence has passed the order, which is legally correct because in the case of Hardeep Singh vs. State of Punjab and Others, 2014 (3) SCC 92, the Hon'ble Apex Court has made it clear that only that evidence will be considered which is produced before the Court, hence, the order passed by the learned Trial Court on the basis of the statements of witnesses PW-1 to 4 is perfectly correct and this petition deserves rejection.

6. Considered the submissions of both the sides and perused the case laws cited above.

7. Learned counsel for the petitioners relied upon the following extract of the case of Brijendra Singh and Others vs. State of Rajasthan (Supra):

“In Hardeep Singh's case, the Constitution Bench has also settled the controversy on the issue as to whether the word ‘evidence’ used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and indicates the evidence collected during investigation or the word ‘evidence’ is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court. The word ‘evidence’ has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summ