LexRAKESH AND ANR. versus STATE OF HARYANA
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• RAKESH AND ANR. A V. STATE OF HARYANA JULY 25, 2001 [M.B. SHAH AND S.N. VARIAVA, JJ.] B Code of Criminal Procedure, 1973 : Section 319-0ther persons-Not mentioned as accused in charge- sheet-Power to proceed against-Statement of witness during trial revealed C involvement of some persons in the crime:_ Trial court arraigned these persons as accused without cross-examining the said witness-Correctness of-Held.• Once deposition of witness is recorded it is prima facie material to exercise power under S.319-The word 'evidence' in S.319 is not evidence which is tested by cross-examination-Hence, there is no question of cross-examining D the witness prior to add,ing such a person as accused. Words and Phrases : "Evidence"-Meaning of-In the context of S.319(1) of the Code of Criminal Procedure, 197 3. E The father of the prosecutrix lodged a complaint that she was taken away by three persons including the appellants with the object of committing rape. However, the police found that the appellants were not involved in the case. Therefore, charges were framed only against one person. After the prosecutrix was examined and her cross-examination had begun the public F prosecutor moved an application under Section 319 ofthe_Code of Criminal Procedure, I 973 for arraigning the appellants as additional accused. The trial court allowed the application. The appellants' criminal Revision Petition was dismissed by the High Court. Hence this appeal. The following question arose before this Court :- Whether the statement of a prosecution witness without the said witness having been cross-examined, constitutes 'evidence' within the meaning of Section 319 of the Code of Criminal Procedure, 1973? G H 2 SUPREME COURT REPORTS [2001] SUPP. I S.C.R. A Dismissing the appeal, the Court HELD : I. Once the Sessions Court records a statement of the witness it would be part of the evidence. It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising court's power B under Section 319 of the Code of Criminal Procedure, 1973. Once the deposition is recorded, no doubt there being no cross-examination, it would be a Prima facie material which would enable the sessions court to decide whether powers under Section 319 should be exercised or not. 16-C-D) C State of H.P. v. Surinder Mohan, 120001 2 SCC 396 and Ranjit Singh v. State of Punjab, (1998) 7 SCC 149, relied on. Joginder Singh v. State of Punjab, 11979) I SCC 345, held inapplicable. State v. Kishori, 11999) I RCR 200 (Del); Chanan v. State of Punjab, (1999) I RCR 371 (P and H) and Ram Copa/ v. State of UP., (1999) 2 RCR 534 (All), D approved. Balvinder Singh v. State of Haryana, (1996( 3 RCR 231 (P and H); Joginder Singh v. State of Punjab, (1999( 1 RCR 562 (P&H) and Rakesh Batra v. State of Haryana, (P and H), overruled. E Hals bury 's Laws of India, 1st Edn., Vol. 15, para 145.242, referred to. 2. It is not possible to accept the contention of the appellant that the term 'evidence' as used in Section-319 Cr.P.C. would mean evidence, which is tested by cross-examination. The question of testing the evidence by cross- F examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section 319 does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. The word "evidence" occurring in G Section 319(1) is used in a comprehensive and broad sense, which would also include the material collected by the investigating officer and the material, or evidence, which comes before the court and from which the court can Prima facie conclude that person not arraigned before it is involved in the commission of the crime. 17-F-H( H 3. The power under Section 319 is to be sparingly used. But that:would .- - .. • _ _,, RAKE SH v. STATE OF HAR Y ANA [SHAH. J. I 3 not mean that when a prosecutrix names three persons who were involved in A the serious crime they are not to be added as accused by exercise of such power. 18-A-BI MCD v. Ram Kishan Rothagi, [198311 SCC 1, referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. B 744 of 2001
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