ORDER K.C. Bhargava, J.
1. By means of this revision the revisionists have challenged an order dated 26-8-1993 passed by 5th Additional Sessions Judge, Unnao summoning the revisionists under Section 319 of the Code of Criminal Procedure. The facts which are relevant for deciding the present controversy are that one Suryanarain, the father of deceased Rani, lodged a written report on 5-7-1992 with the allegations that his daughter, Rani, was married to Kashi Din about six years back. After some days of the marriage his daughter' complained to him that she is being assaulted and tortured. She is also given mental torture by saying that she has not brought anything from her parents during the marriage. The complainant talked to the in-laws of his daughter but the matter could not be settled. About two months back the mother-in-law and sister-in-law (Nanand) of his daughter came and took away his daughter after getting the Bida done. On 5-7-1992 at about 8 a.m. Prem Narain, brother-in-law (Devar) and Ram Pasi informed the complainant that his daughter had died. On receiving this information he went to the place of his Samdhi and found that his daughter had died. From the body symptoms it appeared that she had been given some poison. The case was investigated. After investigation a charge-sheet was submitted in which the names of the revisionists, namely Srimati Shivrani and Kumari Santosh, were not mentioned meaning thereby that they were not made accused in the case. The case was committed to the Court of Session and the Additional Sessions Judge started recording the statements of witnesses. He recorded the examination-in-chief of one Suryanarain (complainant-P.W. 1) and Suraj Prasad (P.W. 2). On the basis of these statements the learned Additional Sessions Judge passed an order dated 26-8-1993 summoning both the revisionists under Section 319 of the Code of Criminal Procedure mentioning therein that in the First Information Report both the revisionists have been mentioned as accused persons. He also considered the part of the statements i.e. the examination-in-chief recorded by him and on the basis of the evidence existed at that time he summoned the revisionists. Aggrieved against this summoning order the present revision has been filed.
2. Heard learned Counsel for the revisionists and the learned Counsel for the State. Learned Counsel for the revisionists has argued that in the present case the learned Sessions Judge has only recorded the examination-in-chief of two witnesses and without waiting for completion of the statements meaning thereby completion of cross-examination the Additional Sessions Judge could not have summoned the revisionists. According to the learned Counsel for the revisionists merely recording of examination-in-chief cannot be said to be evidence within the meaning of Section 319 of the Code of Criminal Procedure. Section 319(1) of the Code of Criminal Procedure runs as under:-
"Section 319(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 should be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed."
It is not necessary to reproduce the entire Section 319 of the Code of Criminal Procedure because the import of the word "evidence" used in sub-clause (1) is to be interpreted.
3. In the latest decision of the apex Court in the case of Kishun Singh v. State of Bihar, (1993) 1 Crimes 494 : (1993 Cri LJ 1700), the Supreme Court had an occasion to interpret the provisions of Section 319 of the Code of Criminal Procedure in relation to the powers of the Court to summon the persons not named in the charge-sheet though their involvements in the crime is disclosed in the First Information Report and the statement recorded under Section 161 of the Code of Criminal Procedure. The Hon'ble Supreme Court has considered the provisions of Section 193 of the Code of Criminal Procedure also and has held that the provisions of Section 193 of the Code of Criminal Procedure will apply to pre-cognizance stage and once cognizance is taken the provisions of Section 319 of the Code of Criminal Procedure will apply. In that case the Magistrate had summoned the accused persons at pre-cognizance stage without having recorded any evidence. Therefore that case was covered by the provisions of Section 193 of the Code of Criminal Procedure but the matter has also been dealt with by the apex Court in relation to Section 319 of the Code of Criminal Procedure. The principles which apply for summoning a person under Section 193 of the Code of Criminal Procedure also apply to the provisions of Section 319. In that case it was held that a Court of Session after commitment of a case to it by a Magistrate without recording any evidence by himself can summon a person who has not been named in the charge-sheet, under Section 193 of the Code of Criminal Procedure. The Hon'ble Supreme Court, in para 12 (of Crimes): (Para 11 of Cri LJ), laid down the following proposition :-
"On a plain reading of sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered ,in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police."
In para 17 (of Crimes) : (Para 16 of Cri LJ), the Court also summarised its conclusions which are to the following effect:-
"We have already indicated earlier from the ratio of this Court's decision in the cases of Raghubans Dubey and Hariram that once the court takes cognizance of the offence (not the offender) it becomes the court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the court's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance."
The Hon'ble Supreme Court has held that it is the duty of the court to summon the accused persons who appear to have been involved in the crime under the relevant law including Section 319 of the Code of Criminal Procedure. The court has to find as to who is the real offender and once the court prima facie comes to the conclusion that a particular person is also involved in the crime then that person has to be summoned by the court. The satisfaction of the court summoning a person as accused should be there and if prima facie evidence exists then he has to be summoned.
4. Now as seen in the earlier part of the judgment the word "evidence" has been used in Section 319 of the Code of Criminal Procedure. The word "evidence" has been defined in Section 3 of the Indian Evidence Act as under:-
"Evidence".- "Evidence" means and includes -
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters to fact under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
For the purposes of deciding the present controversy we have to take into consideration sub-clause (1) which deals with all statements which the Court permits or requires to be made before it by witnesses, in relation to matters to fact under inquiry. Naturally such statements have to be in relation to matters to fact which are under inquiry. It is also mentioned that these statements are called 'oral evidence'. The Indian Evidence Act has made distinction between 'oral evidence' and 'documentary evidence'. Documentary evidence is dealt with in sub-clause (2). But at present this Court is concerned only with the oral evidence i.e. the statements of witnesses which are recorded during the course of a trial. According to the learned Counsel for the revisionists the word "evidence" will only cover the statements of the witnesses which have been tested by cross-examination and unless the statement of a witness recorded in examination-in-chief is tested by cross-examination it cannot be acted upon and on the basis of the same a person cannot be summoned under Section 319 of the Code of Criminal Procedure. In support of his contention the learned Counsel has placed reliance on the case of Mohan Lal v. State of U.P., 1990 LLJ 271. The facts of that case were that the applicant of that case was summoned under Section 319 of the Code of Criminal Procedure for certain offences. In that case after investigation the police submitted charge-sheet only against Shanker, Vishambhar and Chhotey Lal and charge was also framed against those persons. During the examination-in-chief at the instance of one Kamlesh Kumari the prosecution moved an application for summoning the applicant on the basis of the statement of Kamlesh Kumari. The Magistrate summoned the applicant, Mohan Lal, on the basis of the examination-in-chief recorded by him, under Section 319 of the Code of Criminal Procedure. The learned single Judge of this Court while deciding the above case placed reliance on an unreported decision of this Court in Criminal Revision No. 255 of 1989, Barki v. State, decided on 14-9-1989. In that case it was held that incomplete statement of a witness cannot be treated as evidence in the case and therefore a person mentioned in the incomplete statement of a witness cannot be summoned under Section 319 of the Code of Criminal Procedure. The same question was involved in the case before the Court and the earlier decision was followed and the revision was allowed.
5. In the case of Barki v. State (supra), the facts were that the Assistant Sessions Judge, Sitapur summoned Srimati Barki and Srimati Prayaga under Section 319 of the Code of Criminal Procedure for offence under Section 307 of the Indian Penal Code. The police had submitted a charge-sheet against Raja Babu alias Raj Bahadur but no charge-sheet was submitted against the applicants. After commitment of the case against Raja Babu alias Raj Bahadur the Assistant Sessions Judge framed charge against Raja Babu alias Raj Bahadur and proceeded to record statement of P.W. 1 Gaindan Lal. The statement of Gaindan Lal was not complete and during that statement the complainant in his examination-in-chief named Srimati Barki and Srimati Prayaga as accused persons. As soon as the names of the applicants came to light an application was moved by the prosecution for summoning the applicants. The Assistant Sessions Judge allowed the application and hence the revision was filed in the High Court. The Court on the facts of the case came to the conclusion that when the statement of P.W. 1 Gaindan Lal was being recorded and it was in the midst of the examination-in-chief, the prosecution moved an application for summoning the applicants because their names emerged in the statement of P.W. 1, Gaindan Lal. The Court held that the Asstt. Sessions Judge committed an error in summoning the accused persons in the midst of the examination-in-chief and the proper courses would have been that the trial Court should have waited for completion of the statement of P.W. 1 Gaindan Lal. The word 'evidence' was taken to mean that 'examination-in-chief' of a witness cannot be said to be 'evidence' under Section 319 of the Code of Criminal Procedure. Thus on the facts of the above case the present case is distinguishable because in that case the examination-in-chief was not complete when the prosecution moved an application for summoning the accused persons and the court ordered for summoning the accused persons. While deciding the above case the Court relied on two cases; namely (i) Gulam Mondal v. Nazam Hossain, 1987 Cri LJ 729 (Cal) and (ii) R.J. Lakhia v. State of Gujarat, 1982 Cri LJ 1687 (Guj). In the case of Gulam Mondal v. Nazam Hossain (supra) decided by the Calcutta High Court the facts were that the Additional Sessions Judge, Bardwan refused to entertain the applicant's application under Section 319 of the Code of Criminal Procedure for summoning the respondents 1 and 2 to stand trial with other accused persons. In that case the statement (examination-in-chief) of Gulam Mondal (P.W. 2) was being recorded and at that stage the prosecution prayed for issuing summons to respondents 1 and 2 under Section 319 of the Code of Criminal Procedure. It was argued that as the examination-in-chief of the witness was not completed the respondents could not have been summoned under Section 319 of the Code of Criminal Procedure. The Calcutta High Court relying on the case of R. J. Lakhia v. State of Gujarat (1982 Cri LJ 1687) (supra) and another case came to the conclusion that the order passed by the learned Additional Sessions Judge was incorrect and no person can be summoned only on the basis of the examination-in-chief of a witness. It was also mentioned therein that in the case of Delhi Municipality v. Ram Kishan, , the Supreme Court has cautioned that the provisions of Section 319, Cr. P.C. should be used very sparingly. In the second case of R. J. Lakhia v. State of Gujarat (1982 Cri LJ 1687) (supra), the facts were that a practising advocate was summoned under Section 319 of the Code of Criminal Procedure. The Court did not go into the question as to whether a summoning order can be passed under Section 319 of the Code of Criminal Procedure on the basis of examination-in-chief alone. The Court only took into consideration the status and the age of the advocate and opined that it is not necessary to emphasise the need of protecting the dignity and honour of any Advocate practising in any Law Court in the State. If Judges shut their eyes to the dignity, decorum and self respect of an Advocate, why should the Members of legal profession, who are the counter parts of the Administration of Justice at all care for the dignity of the Judges. It was further opined that the concept of maintaining dignity and decorum of our Law Courts is essentially based on mutual respect for the Bar and the Bench. It was also opined that the prestige and dignity of an Advocate even in his own house will be affected, even though no prima facie case is made out against the petitioner-Advocate for an offence punishable under Section 366 of the, Indian Penal Code. The Court further remarked as to why should a senior Advocate, aged 55 years, be so demoralised so as to be hand-in-glove with a young girl of about 18 years. Why would he see that he is a party to some marriage between the girl and the accused. Is there any evidence worth the name to warrant a conclusion that Bai Kamla had ever met the petitioner-Advocate prior to December, 1980. It was also opined as to was it not the duty of the learned Prosecutor or the learned trial Judge to request Mr. Lakhia, and not to summon Mr. Lakhia, to verify as to what he had to say about some passing allegations a young desperate girl and the concerned clerk. It was also mentioned that the Court also asked the learned Advocate several questions on the merits of the matter, at considerable length and the Court was happy to state that Mr. A. J. Patel, the learned Public Prosecutor very rightly stated that it was not possible for him even to countenance the aforesaid impugned order. The revision was, therefore, allowed. The observations made in the above case do not interpret the provisions of Section 319 of the Code of Criminal Procedure in regard as to what is "evidence" as defined in Section 3 of the Indian Evidence Act. That case was not decided on legal questions which were raised in that case but was decided on some other considerations. The learned Judge had asked the question as to whether it was not the duty of the trial Judge to request the advocate as to what he has to say in his defence, before summoning him, about the allegations made by the girl against him. There is no such procedure in the Code of Criminal Procedure and no such procedure has been brought to the notice of this Court under the Code of Criminal Procedure or any other law, that before summoning a person the Court has to enquire from that person, howsoever high in rank he may be, as to what he has to say in his defence in regard to the allegations made ' against him. The Court has no power of enquiry from a person during the course of a judicial enquiry unless a provision exists for doing so empowering the Court to make enquiry apart from the trial of a case. Had the learned trial Judge made enquiry in that case from the advocate concerned that would have been beyond his powers. A person can only be said to be an accused only after the process is issued against him. Unless an order for summoning a person is passed against him he has no locus standi to participate in the proceedings or to produce his defence. Therefore 1 am not inclined to follow this case because it was not decided on the basis of the questions raised in that case but was decided on other considerations which, in my opinion, cannot be taken into consideration by the Court and the Court cannot adopt a novel procedure of making enquiries from a person, howsoever high in rank or position he may be, unless he is made a party to the case.
6. In the case of Kishun Singh v. State of Bihar (1993 Cri LJ 1700) (supra), as mentioned in the earlier part of the judgment, the Hon'ble Supreme Court held that there should be some prima facie evidence for summoning a person under Section 319 of the Code of Criminal Procedure. The prima facie evidence should show that the person who is not named in the charge-sheet was also involved in the crime for which he can be tried with other accused persons who have already been charge-sheeted. It is not correct to say that the word "evidence" as defined in Section 3 of the Indian Evidence Act will not cover a statement of a witness which has been recorded in examination-in-chief. The word "evidence" has not to be taken in the sense that it should be proved. The word "proved" has been defined separately by the Indian Evidence Act in Section 3. The proof required in a particular case cannot be the same as evidence. Unless a fact is proved no conviction can be made in a criminal case on the basis of the fact that the prosecution has produced witnesses. A statement which is made before a Court whether it has been cross-examined or not is evidence within the meaning of the term "evidence" as used in the Indian Evidence Act. The Indian Evidence Act has not laid down that a statement which has been proved or which has been tested by cross-examination can only be taken into consideration and not otherwise.
7. In the case of Ramnarayan Mor v. State of Maharashtra, , the Hon'ble Supreme Court had an occasion to interpret "evidence" recorded under Section 207A(4), (6) and (7) of the Code of Criminal Procedure. After considering the definition of the word "evidence" in Section 3 of the Indian Evidence Act the Court held that there is no restriction in this definition to documents which are duly proved by evidence. Normally in a criminal trial, the Court can proceed on documents which are duly proved, or by the rules of evidence made admissible without formal proof, but under the amended Code the Legislature has in Section 207-A prescribed a special procedure in proceedings for commitment of the accused. The record consists of the oral evidence recorded under Sub-section (4) of Section 207-A and it would be difficult to regard only those documents which are duly proved, or which are admissible without proof as "evidence" within the meaning of clause (6) and not the rest.
8. From this case it will appear that if a document has not been proved even that document can be taken into consideration under the provisions of Section 207-A of the Code of Criminal Procedure. Thus proof of a particular document is not necessary for its being read in evidence at a preliminary stage in order to see whether a prima facie case is made out. Applying the same principle to the present case it cannot be said that the examination-in-chief, which is also a statement, cannot be acted upon .by a court without its being cross-examined for the purposes of being satisfied that a prima facie case exists against a particular person who is sought to be summoned under Section 319 of the Code of Criminal Procedure. Existence of a prima facie case is different from a proved case. The opinion of a court at initial stage on the basis of prima facie case cannot bind the court from acquitting that accused who has been summoned if it finds that on the basis of the evidence which has been adduced in the case or documents relied upon by the prosecution the accused is not found guilty. The court can acquit a person who has been summoned under Section 319 of the Code of Criminal Procedure on the basis of prima facie satisfaction of the court at the initial stage of the case. Therefore the opinion of the court formed at an earlier stage can be changed by the same court if on the basis of the evidence on record a different conclusion is drawn by it.
9. In the case of Sher Sing v. Jitendra Nath Sen, 36 Cal WN 16 : (1932 (33) Cri LJ 3), the Court had an occasion to consider as to what is meant by 'prima facie case'. It was held that it only means that there is a ground for proceeding. When the Magistrate is taking action under Section 204 if there is sufficient ground for proceeding and the case appears to be one in which process can be issued the Magistrate issues process and if the Magistrate is of the opinion that there is a ground to presume that a person has committed an offence, he frames a charge against that person. It was held as under.
"What is meant by a prima facie case ? It only means that there is ground for proceeding."
"Therefore so far the Court is only dealing with the initial stage and he has to proceed if there is ground for proceeding. But a prima facie case is not the same thing as "proof, which comes later when the Court has to find whether the accused is guilty or not guilty. "Proof" is nothing but relief according to the conditions laid down in the Evidence Act and it is an obvious fallacy to say that, because the Magistrate has found a prima facie case, therefore he believes the case to be true in the sense that the case is proved."
The above quoted para will go to show that there is distinction between 'prima facie case' and 'proof. The proof will come at a later stage but the prima facie case will come at the initial stage. If there exists a prima facie case against a person then the court will certainly have the power to summon him. That will not mean that the Magistrate or Judge summoning an accused at that stage has come to the conclusion that the case has been proved against that accused. In that case it was also argued that the Magistrate having once given his finding that a prima facie case is made out against the accused he is bound to follow that finding. Dealing with this point the Court held as under:-
"...he has to keep an open mind till the final stage, when the question for him would be to decide as to whether he should believe the evidence or not, and before that final stage is reached, the Magistrate would get at least one opportunity to revise his estimate."
Thus this authority deals with the proposition that if a prima facie case is made out it does not mean that the case has been proved against the accused. 'Prima facie case' is different from proved case. Proof comes at a later stage while prima facie opinion has to be formed at an earlier stage of the proceedings and the Judge or Magistrate is not bound at a later stage by his prima facie opinion formed earlier while summoning the accused.
10. In the case of Kishun Singh v. State of Bihar (1993 Cri LJ 1700) (supra) the Court also said that even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code. This means that the opinion of the Magistrate discharging the accused on prima facie satisfaction after going through the evidence existing at that stage can be changed by him when he orders for summoning a person under Section 319 of the Code. The Magistrate has power to revise his opinion which he had once exercised when he had discharged the accused.
11. Thus in view of what has been said above it is clear that the Magistrate when he acts for summoning a person under Section 319 of the Code forms an opinion on the basis of the evidence available on the record at that stage that a prima facie case is made out against a person who is going to be summoned. That opinion has to be formed on the basis of the evidence existing at that time and the same can be changed at the later stage of the trial. The evidence will include the examination-in-chief of a witness which he has recorded. This conclusion can be safely drawn from the case of Kishun Singh v. State of Bihar (1993 Cri LJ 1700) (supra). This aspect of the matter has not been considered in the cases relied upon by the learned Counsel for the revisionists. Therefore in view of the decision of the Hon'ble Supreme Court in the case of Kishun Singh v. State of Bihar (supra) those cases have lost their authority and in the opinion of this Court now they are no longer a good law and hence they are not being followed by this Court. After considering the case law and the definition of 'evidence' as contained in the Indian Evidence Act this Court comes to the conclusion that even an examination-in-chief of a witness is evidence within the meaning of Section 319 of the Code of Criminal Procedure as defined by Section 3 of the Indian Evidence Act and it cannot be said that unless the examination-in-chief is tested by cross-examination it cannot be relied upon and considered as evidence for summoning a person under Section 319 of the Code of Criminal Procedure.
12. This matter can be considered in the light of the provisions relating to complaints to Magistrates occurring in Chapter XV of the Code of Criminal Procedure. Section 200, Cr, P.C. provides that when a complaint is filed the Magistrate shall record the statements of complainant and his witnesses (except in cases covered by proviso) under Section 202, Cr. P.C.). The Magistrate, if he does not think fit to postpone the issue of process then he shall issue process under Section 204, Cr. P. C. if a sufficient ground appears for proceeding with the case. Thus the Magistrate has been given power to issue process if a prima facie case appears to have been made out on the basis of allegations made in the complaint, the statement of complainant and his witnesses. These statements are only in the form of examination-in-chief and are not tested on cross-examination. This procedure is permitted by the Code and in the same way the Magistrate or the Judge has to satisfy himself before summoning a person under Section 319 of the Code of Criminal Procedure whether a prima facie case exists against the person to be summoned. Thus the person who is to be summoned does not get any right to cross-examine those witnesses. He can merely watch the proceedings but cannot take part in the proceedings and cannot put his defence before the Court. Similar is the position in the present case. When a person is summoned under Section 319 of the Code of Criminal Procedure the court records evidence in the trial pending before it. At that stage only examination-in-chief of a witness is recorded. Suppose that witness is allowed to be cross-examined on behalf of the accused persons who have already been arrayed as accused then it does not mean that a person who is to be summoned will also have a right of cross-examination at that stage. Only those persons have a right of cross-examining the witnesses who have been arrayed as accused in that case. A person who is not arrayed as accused till that stage has no right to cross-examine the witnesses. A person cannot, under any provisions of law, cross-examine the prosecution witness before he is summoned under Section 319 of the Code of Criminal Procedure. When he is summoned under Section 319 of the Code only then he gets the status of an accused and in that capacity he gets right to cross-examine the witnesses.
13-14. In the case of Kishun Singh v. State of Bihar (1993 Cri LJ 1700) (supra), the apex Court after consideration of the provisions of Section 193 of the Code of Criminal Procedure held that at a pre-cognizance stage the Court trying the case can summon a person even on the basis of the evidence which has been collected during the investigation. This shows that the court trying a case has a power to assess the evidence collected by the Investigating Officer during the investigation and on the basis of that evidence can take a different view from the Investigating Officer and summon a person against whom no charge-sheet has been submitted by the Investigating Officer. After the cognizance is taken the person is to be summoned under Section 319 of the Code of Criminal Procedure. Therefore when a court can summon a person on the basis of the evidence recorded or collected by the Investigating Officer then the court certainly has the power to summon a person on the basis of the statement of a witness even though he has not been cross-examined.
15. In the present case the revisionists who have been summoned under Section 319 of the Code of Criminal Procedure on the basis of examination-in-chief of a witness will have the right of cross-examining the witnesses only after they appear before the court as accused. If after recording the entire evidence in the case the court comes to the conclusion that the accused persons who have been summoned are not guilty of any offence they may be acquitted. Therefore it cannot be said that the statement of a witness which has not been tested on cross-examination cannot be treated as evidence in relation to the provisions of Section 319 of the Code of Criminal Procedure. Therefore in view of these provisions of law the revisionists could not have cross-examined the two witnesses who had been produced in the case by the prosecution before the trial Judge,
16. Learned Counsel for the revisionists has also argued that the First Information Report is not evidence at this stage. This argument ignores the definition of "evidence" given in the Indian Evidence Act. Sub-clause (2) of Section 3 of the Indian Evidence Act shows that all documents produced for inspection of the court are called documentary evidence and also included in the word "evidence". As mentioned in the earlier part of the judgment even the documents which have not been proved can be taken into consideration for the purposes of Section 319 of the Code of Criminal Procedure. Therefore the First Information Report is evidence and could have been taken into consideration by the trial Court while summoning the revisionists.