IMPORTANT POINT
Summoning of additional accused to face trial – Test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that evidence, if goes unrebutted, would lead to conviction.

JUDGMENT :

Rajesh Bindal, J.

1. The Order dated 16.05.2017 passed by the Allahabad High Court is under challenge before this Court. By the aforesaid order, Criminal Revision Petition was filed by the respondent No.2 challenging the order dated 15.03.2017 whereby the application filed under Section 319 Cr.P.C. for summoning the present appellant, was dismissed.

2. The High Court, vide impugned order had quashed the Order dated 15.03.2017 and remanded the matter back to the Trial Court for fresh examination.

3. Learned counsel for the appellant submitted that the appellant established his business of manufacture of tools in the year 2003. A complaint was filed by respondent no.2 regarding murder of his brother Bachchu Prasad. It was mentioned therein that he used to work in the appellant’s firm. On the basis of the aforesaid complaint, FIR No. 480/2013 was registered against unknown persons. Nearly two months after the complaint, wife of the deceased gave a complaint to the Superintendent of Police, Ghaziabad making false allegations against the appellant. The appellant was given notices by the Investigating Officer. Entire information sought was furnished by him. During investigation, the police found an eye witness namely Rajesh Kumar to the alleged murder whose statement was recorded under Section 164 of the Code of Criminal Procedure. The aforesaid fact was concealed by the complainant while making complaint against the appellant. After completion of investigation, the police filed chargesheet against two accused persons namely Pannelal @ Panna Lal and Ombeer Singh. The appellant was listed as a prosecution witness. During trial, statements of various witnesses were recorded.

Even the appellant was examined as PW6. None of the witnesses stated anything against the appellant. After the statement of the appellant (PW6) was recorded, the complainant filed an application under Section 319 of the Cr.P.C. to summon the appellant as accused solely on the basis of certain vague oral allegation by PW1, PW2 and PW3. After hearing arguments, the Trial Court dismissed the aforesaid application vide order dated 15.03.2017. It is the aforesaid order, which is under challenge in the present appeal before this Court.

4. The argument raised by learned counsel for the appellant is that the approach of the High Court in sending matter back for examination afresh was not right as the material which was available in the form of statements of various witnesses could very well be appreciated to find out as to whether any case was made out against the appellant for summoning under Section 319 of the Cr.P.C. It is not mere suspicion on the basis of which an additional accused could be summoned. Only where strong and cogent evidence is available against a person from the evidence produced before the Court, which could lead to his conviction, that such a power could be exercised. It could not be exercised in a casual and cavalier manner.

5. In the absence thereof, the impugned order passed by the High Court deserves to be set aside and the order passed by the Trial Court, dismissing the application should be upheld. In support of his arguments, reliance was placed on judgments of this Court in Hardeep Singh and Ors. Vs. State of Punjab & Ors., (2014) 3 SCC 92; Mohd. Shafi vs. Mohd. Rafiq, (2007) 14 SCC 544; Sagar vs. State of U.P. and Anr., (2022) 6 SCC 389; Kailash vs. State of Rajasthan and Anr., (2008) 14 SCC 51.

6. He further submitted that the stage at which the application was filed by the complainant to summon the appellant as an additional accused, the trial was going to conclude as the entire evidence had been led. Vide judgment of the Trial Court dated 06.10.2017, even the accused against whom the chargesheet was filed, were also acquitted. It was on the basis of the sketchy evidence produced by the prosecution before the trial court that the appellant was sought to be summoned.

7. On the other hand, learned counsel for the State and the complainant