Hiremath, J.:—
Heard for admission. Admitted. Heard on merits as well.
2. The order passed by the II Additional J.M.F.C Ranebennur, in C.C No. 582/1988 on 25-11-1989 under Section 319 Cr. P.C taking cognizance of the offences against the present petitioners has been challenged in this revision petition. For offences under Sections 447, 323, 504 and 506 read with Section 34 I.P.C a complaint was filed in the Ranebennur Town Police Station against 15 persons including the present petitioners. On investigation, a report under Section 173 Cr. P.C came to be filed against 3 of the accused named in the complaint. During trial, the prosecution examined two witnesses. Soon after the first witness i.e, P.W 1-complainant was examined in chief, the Public Prosecutor submitted to the Court that because the complainant had deposed in his evidence-in-chief against these petitioners as well, he sought for time to file application to take cognizance of the offences against them as well. Thus, the evidence of P.W 1-complainant was stopped at that stage and P.W 2 was asked to depose. This was nearly one month after the evidence-in-chief of P.W 1 was over. Similar course was adopted by the A.P.P of the Court when P.W 2 was in box. The note made by the Court at the end of the evidence-in-chief of P.W 2 is as follows:
“A.P.P at this stage prays for time to lead the examination in further on ground that the witness had deposed not only against the accused who are before Court and also against some others and his evidence is corroborated by the evidence of P.W 1 in this regard and to file application to take action against others also. Hence, at the request of A.P.P further examination-in-chief is deferred.”
3. It appears, as submitted at the Bar by the petitioners' Counsel, the A.P.P filed application on 19-10-1989 under Section 319 Cr. P.C to take cognizance against the present petitioners as well on the strength of the statement made by two witnesses in their examination-in-chief. On 3-11-1989, as agains submitted at the Bar, the Counsel appearing for the accused facing trial applied to the Court under Section 311 Cr. P.C to permit them to cross-examine the witnesses. A common order came to be passed on 18-11-1989 rejecting the application of the accused persons observing that the same could be done only after the persons against whom cognizance was sought to be taken appeared. Accordingly, the impugned order came to be passed directing issue of summons to the petitioners to appear before the Court on or before 4-1-1990.
4. In this petition, the main contention urged on behalf of the petitioners is that the trial Court ought not to have proceeded against the petitioners under Section 310 Cr. P.C considering the statements made by the witnesses in evidence-in-chief alone. Unless they are cross-examined, it cannot be said that there was evidence before the Court on which it could act upon to proceed under Section 319 Cr. P.C Section 319(1) Cr. P.C makes it amply clear that,
“Where in the coarse 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 person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.”
(Emphasis supplied)
Thus, it is urged that Section 319 could be invoked only when there is complete evidence before the Court. To emphasise the point, reference has been made to a decision of the Calcutta High Court in the case of Golam Mondal v. Nazam Hossain.
The point involved was almost similar in the case before the learned Single Judge of the High Court and at paragraph-8, the learned Judge has observed as follows:
“8. There can be no doubt that the case is a very old one. The Supreme Court in Delhi Municipality v. Ram Kinkar ((1983) 1 SCC 1 : A.I.R 1983 S.C 67) has clearly cautioned that the provision of Section 319 Cr. P.C should be used very sparingly. Therefore, if the learned Additional Sessions Judge in the interest of justice said that the trial should not be further delayed and refused to entertain the applications. I am of the view that this Court should not interfere with the impugned order on that ground, moreover, the expression used in sub-section (1) of Section 319 Cr. P.C is evidence. There are two decisions, one of Punjab High Court and the other of Gujarat High Court, which have taken the view that examination in chief of a witness alone without his cross examination cannot be said to be such evidence upon which the Court can act under Section 319 Cr. P.C because such evidence in examination in chief is nothing but incomplete statement of a witness. The decisions referred to above are R.J Lakhia v. State of Gujarat (1982 Cr. L.J 1683) and Amarhit Singh v. State of Punjab (1983 Cr. L.J NOC. 98). The reasons given in the decision are sound and I approve of the views expressed in those two decisions. Therefore, when the learned Judge refused to exercise jurisdiction at the stage when the present petitioner was only examined in his examination in chief, I am of the view that there is nothing to Interfere with the said order.”
It thus follows from the decision of the Calcutta High Court as well as two other decisions referred to by the High Court that unless the witness is cross-examined, it cannot be said that there is complete “evidence” as contemplated under Section 319 Cr. P.C The reasons given in the decisions referred to above are sound enough to be accepted by this Court as well inasmuch as examination-in-chief alone cannot be considered as evidence. By analogy it may be stated that if the witness does not submit to cross-examination after he is examined-in-chief, the Court would be precluded from acting on such incomplete evidence as it cannot be said that there is “evidence” against the accused person only from the examination-in-chief. The reasons assigned by the Court-below are wholly erroneous inasmuch as the trial Court observed that the accused could have opportunity to cross-examine the witnesses only after other persons against whom cognizance was sought to be taken were before the Court. If the provisions of Section 319 Cr. P.C are closely perused, it follows that the trial Court committed serious error in acting only on the evidence-in-chief and taking cognizance of the offence against the petitioners as well. The order, therefore, is unsustainable and the same has to be set aside with liberty to the prosecution to move the trial Court when there is evidence as required under law before the trial Court to act under Section 319 Cr. P.C
5. With these observations, the petition is allowed. The order passed by the trial Court is set aside and the trial Court is directed to proceed and hear the case in the light of the observations made above.