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TMI Blog2001 (7) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... na under Sections 363, 366 and 376 IPC on the allegation that his minor daughter Manju Bala aged about 16 years had gone from the house on March 15, 1998 about 7.30 p.m. at 'Bara' (the place where cattles are tethered), but did not return thereafter. He complained that his daughter was taken away by Prem Chand, Rakesh and Jai Bhagwan due to previous enmity with the object of committing rape. On 17.3.1998, the girl and accused Prem Chand were found in Noida by the police. After investigation, the police found that the appellants Rakesh and Jai Bhagwan were not involved in the case. Therefore on August 11, 1998, charges were framed only against Prem Chand. On April 15, 1999, PWs 1, 2 and 3 were examined by the prosecution. On May 20, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it has been stated: The mere statement of the plaintiff's witnesses cannot constitute the plaintiff's evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiff's witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff's evidence cannot be acted upon. (emphasis supplied). At the time of hearing of this matter, the learned counsel for the parties submitted that High Courts have taken conflicting views on this point. The High Court of Punjab and Haryana in the cases of Balvinder Singh Vs. State of Haryana [1996 (3) RCR 231], Joginder Singh Vs. State of Punjab [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of offence.-(1) Where, in the course 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. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded, 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. Sub-section (1) of Section 319 itself provides that in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any persons 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 for which he appears to have committed. Further in case of inquiry there may not be any question of cross-examining the witness. In State of H.P. v. Surinder Mohan and Others [(2000) 2 SCC 396], this Court dealt with the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dded as accused in a session trial case, he should be permitted to cross-examine the witnesses whose evidence is recorded. On the contrary, it lays down that once the Sessions Court is seized of the matter as a result of the committal order against some accused the power under Section 319(1) can come into play and Court can add any person, not an accused before it, as an accused and direct him to be tried alongwith other accused. The Court has further observed that the very purpose of enacting Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the expression any person not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Lastly, learned counsel further submitted that power under Section 319 is an extraordinary power and should be used very sparingly and only for some compelling reasons for taking cognizance of other persons against whom action has not been taken. For this purpose, he referred to MCD vs. Ram Kishan Rohtagi [(1983) 1 SCC 1]. In our view, there cannot be a dispute that power under Section 319 is to be sparingly used. But that would not mean that when a prosecutrix names three persons who were involved in the serious crime are not to be added as accused by exercise of such pow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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