P.K Jain, J.:— This revision is directed against the order dated 28.7.1995 passed by the Sub Divisional Judicial Magistrate, Tarn Taran, whereby the petitioner Jagvinder Singh has been summoned under Section 319 of the Code of Criminal Procedure (hereinafter referred to as the Code) to face trial for the offences under Sections 326/324/323/34 of the Indian Penal Code. The brief facts of the case relevant for the disposal of this revision are that on 3.4.1994, Sarbjit Singh lodged F.I.R No. 23 with the Police Station Page: 82Goindwal, Tarn Taran. He alleged that on 1.4.1994, he was going to his house after making necessary shopping in connection with the marriage of his cousin on a tractor trolley. At about 2 p.m when he reached near the house of Ajit Singh, the petitioner armed with a datar, Sukhwinder Singh armed with a datar, Gurvinder Singh armed with a ‘dang’ and Ravinder Singh armed with a handle of a spade came out of the house of Ajit Singh. On exhortation given by Gurvinder Singh, the petitioner gave a datar blow which hit the left arm near the wrist of the complainant. Sukhvinder Singh gave a datar blow on forehead. Gurvinder Singh and Ravinder Singh caught him from his long hair and gave him injuries with the handle of the spade and dang. The occurrence was witnessed by Kartar Singh and Prithvipal Singh.

2. On the basis of the above First Information Report, the petitioner alongwith others was arrested but was granted bail by the court. After investigation, the petitioner was found to be innocent by the Superintendent of Police (D) and got discharged from the court vide order dated 9.9.1994 Remaining three accused were sent up for trial. A charge was framed against them. The complainant Sarbjit Singh (respondent No. 2 herein) was examined as a prosecution witness. In his examination-in-chief he supported the entire version given by him in the First Information Report and was also cross-examined to some extent. However, the cross-examination was deferred under the orders of the court.

3. On an application moved by the said complainant under Section 319 of the Code, the Sub Divisional Judicial Magistrate, by the impugned order came to the conclusion that there was sufficient evidence on the record to summon the petitioner as an accused to face trial for the offences mentioned above and accordingly the petitioner was ordered to be summoned for 26.8.1995 The relevant portion of the impugned order reads as under:—

“In the present case, there is evidence of Sarbjit Singh, complainant against the accused, which had appeared during the course of evidence i.e trial of the accused. The word “evidence” means evidence which can be read in evidence. In Guna Ram Tanti v. State of Assam, 1983 Crl. L.J 289 it was laid down that there was no doubt that the word “evidence” in Section 319 read along with other provisions of this section means that the statement of the witnesses as recorded by the Court, and the same would include a police statement, likewise in the present case the statement of Sarbjit Singh had been recorded in the court, who has clearly named Jagwinder Singh and stated that at the time of occurrence, he was armed with a datar and also inflicted injury with a datar on the person of the complainant on the forearm near the wrist. This injury also finds mentioned in the MLR. So I find sufficient evidence on this file to summon Jagvinder Singh as an accused in this case to face trial under Sections 326/324/323 read with Section 34 I.P.C and accordingly he be summoned for 26.8.1995”

4. Feeling aggrieved, the petitioner has assailed the above order by filing this revision petition.

5. Notice was given to the respondents. I have heard the learned counsel for the parties and have gone through the record.

6. Shri P.S Hundal, Advocate, learned counsel for the petitioner has argued that under the provision of Section 319 of the Code when in the course of any enquiry 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. It has been further argued that to invoke the provisions of Section 319 of the Code, the evidence must have been recorded by the trial court and the same must be legally admissible evidence. It has been pointed out by the learned counsel that in the present case, the Sub Divisional Judicial Magistrate has acted contrary to the law inasmuch as he has placed reliance upon the statement of Sarbjit Singh PW whose cross-examination was yet to be completed and his statement cannot be said to be legally admissible in evidence at this stage. It has also been pointed out by the learned counsel that the Sub Divisional Judicial Magistrate has used the statements recorded by the police Page: 83under Section 161 of the Code which is also contrary to the law.

7. On the other hand Shri I.P.S Sidhu, learned State counsel has argued that on the basis of the material available on the record, the Sub Divisional Judicial Magistrate has exercised his powers under Section 319 of the Code and has summoned the petitioner after being satisfied that there was sufficient evidence on the record to summon the petitioner to face trial. Shri K.S Dhaliwal, Advocate, learned counsel for respondent No. 2 has adopted the argument of the learned State counsel.

8. After giving my careful thought to the respective arguments advanced at the Bar I find that the Sub Divisional Judicial Magistrate has totally gone contrary to the law and has exercised his powers under Section 319 of the Code in an arbitrary manner. It is well settled that the power under Section 319 to proceed against a person other than accused can be exercised by the court only if from the evidence recorded by the court, it appears that any person has committed an offence for which he could be tried together with the other accused. The word “evidence” used in Section 319 of the Code means admissible evidence. The statement of a witness, when he is yet to be cross-examined, cannot be treated as evidence in the eyes of law. An incomplete statement of a witness, whether being only his statement in examination-in-chief or at any other stage before it is completed, cannot be treated as evidence upon which the court can act while dealing with an application under Section 319 of the Code. This view finds affirmation in several decisions by this court, namely Amarjit Singh v. State of Punjab, 1980 Cri. LJ. NOC 98, Amarjit Singh alias Amba v. State of Punjab, 1983 (1) Recent Criminal Reports 643, Roshni Devi… v. State Of Haryana…., 1987 (1) Recent Criminal Reports 661, Smt. Viddo v. State of Punjab, 1991 (2) Recent Criminal Reports 84 and Lila Devi… v. State Of Haryana…., 1994 (1) Recent Criminal Reports 659. It is not understandable as to how the Sub Divisional Judicial Magistrate has lost sight of such a number of decisions of this court on this point.

9. From a bare perusal of the concluding portion of the impugned order reproduced above, it is evident that the Sub Divisional Judicial Magistrate has placed reliance upon a judgment of Gauhati High Court rendered in Guna Ram Tanti v. State of Assam to find affirmation with the legal proposition that a statement recorded by the police under Section 161 of the Code can be said to be “evidence” for the purposes of Section 319 of the Code. This amounts to totally misreading of the said judgment. Neither in the head-note nor in the body of the judgment such a law has been laid down. To clarify the finding m the said judgment the following observations made in para 8 of that judgment may be noted:—

“8. Thus, I have no doubt that the word “evidence” in Section 319 read alongwith other provisions of this section means the statement of the witnesses as recorded by the court, and the same would not include a police statement.”

10. The head-note of the above judgment recites these observations verbatim.

11. Still further there is a direct judgment of this court rendered in Gurtej Singh v. Jagrup Singh, 1983 Cri.L.J NOC 99 dealing with the question as to whether material collected during investigation by the police can be looked into for passing an order under Section 319 of the Code. His Lordship Hon'ble Mr. Justice M.M Punchhi (as his Lordship then was) laid down the following law:—

“A Criminal Court in exercise of powers under Section 319 of the Cr.P.C is not entitled to take into consideration the material collected during investigation and record a finding on the basis thereof not to proceed against person, not facing trial before it, for an offence which he appears to have committed.”

12. His Lordship was also pleased to make the following observations for the judicial approach in such a case:—

“In judicial annals, the maxim is well enshrined, i.e “Judex Damnatur cum Nocens absolvitur” meaning thereby “that the judge is condemned and the guilty is acquitted”. It is to promote dis-functional basis that Section 319 of the Code has an adhesive attribute to Sections 230 and 231 of the Code, which revolves on the axis of evidence led by the prosecution. Negatively put, the Court at this stage has to look to the evidence of the prosecution led before it singularly and no other Page: 84material, for were it otherwise, then the court's mind would be clouded by the investigation, the police reports, the statements of witnesses under Section 161 of the Code and the order of the Committing Court. If the Court has solely to remain influenced by these factors, this would be dereliction and abandonment of judicial duty in favour of the function of investigators and the formal function of the Committing Court, whose functions are not to be judged in the matter but merely facilitators. It is the Court to sit in judgment over the offence committed and hold who is guilty.”

13. Thus, it becomes clear that the statements recorded under Section 161 of the Code cannot be taken into consideration while exercising powers under Section 319 of the Code. It is thus evident that the Sub Divisional Judicial Magistrate fell in judicial error in taking into consideration the statements recorded under Section 161 of the Code during the investigation of the case while deciding the application under Section 319 of the Code.

14. As a result of the above discussion, this petition is allowed and the impugned order dated 28.7.1995 (Annexure P-1) is hereby quashed. It will, however, be open to the Magistrate to pass an appropriate fresh order under Section 319 of the Code after completing the statement of Sarbjit Singh PW or other witnesses examined or to be examined by the prosecution.