IMPORTANT POINT
Summoning of additional accused to face trial – Power under Section 319 of Cr.P.C. is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where circumstances of case so warrant.

JUDGMENT :

AJAY RASTOGI, J.

1. Leave granted.

2. The instant appeal has been filed by the appellant assailing the correctness of the order dated 28th July, 2021 passed by the High Court of Judicature at Allahabad setting aside order dated 30th January, 2018 passed by the Additional Sessions Judge, Muzaffarnagar, whereby the trial Court had rejected the application filed by the complainant under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) for summoning the appellant as accused and to face trial in Case Crime No. 164 of 2014 under Section 302 IPC registered at P.S. Fugana, District Muzaffarnagar, Uttar Pradesh.

3. The brief facts of the case culled out from the record are that on a written complaint made by one Ravinder S/o Sadhuram that on 10th September, 2014, both his sons Sachin and Nitin were called by Jagpal S/o Shital Singh and his nephew Sagar S/o Charan Singh (appellant) from his house for tying the sugarcane crop and his son Nitin was seen in the company of Jagpal and Sagar (appellant) by the complainant while he was returning back and later at about 9.00 a.m. when the complainant went to the field of Jagpal and called Nitin, Jagpal asked Sagar to disconnect the electric wire and at some distance he saw Nitin lying near the Mend in a naked position and was burnt by electric wire around the neck. On calling Jagpal and Sagar, they ran away from the spot. On the said written complaint Case Crime No. 164 of 2014 came to be registered under Section 302 IPC.

4. After investigation, charge-sheet came to be filed against Jagpal Singh S/o Shital Singh. At the same time, it was recorded in the charge-sheet that from the statements of the complainant and witnesses and inspection of the place of incident, naming of the accused Sagar who was a juvenile and minor at the relevant point of time, was found to be wrong. No case was made out against him and challan was filed against Jagpal under Section 302 IPC.

5. After the statements of complainant (PW-1) and Sadhu Ram (PW-2), father of the complainant were recorded, the complainant during trial filed application under Section 319 of the Code on 17th March, 2016, stating, inter-alia, that during the course of investigation when the statement of complainant and his father were recorded under Section 161 of the Code, the investigating officer had arbitrarily removed the name of the present appellant from the charge-sheet, although he was also involved in committing the said crime and this fact has been recorded by PW-1 and PW-2 in their statements on oath while recording their deposition during the course of the prosecution and accordingly asked to summon the present appellant also for trial for the crime committed by him.

6. The learned trial Judge after taking into consideration the material on record and so also the statements of PW-1 and PW-2 recorded a finding that neither the complainant (PW-1) nor his father (PW-2) were eyewitness and it has only been stated about removal of the electric wire by the appellant and this fact was noticed by the investigating officer even when the charge-sheet came to be filed and the investigating officer has not found the present appellant to have participated in the commission of crime and at least at the stage when Section 319 of the Code is to be invoked, there must be a strong and cogent evidence occurred against a person from the evidence led before the Court and taking into consideration the material available on record, was not satisfy to summon the present appellant under Section 319 of the Code and consequently rejected the application by an order dated 30th January, 2018. The finding recorded by the learned trial Judge in passing the order dated 30th January, 2018 is reproduced hereunder:

“In the present session trial, the Ld. Counsel for the Complainant has argued that in the captioned Session Trial, in the FIR, name of Sagar S/o Charan Singh was written and in the statements of the Complainant, na