IMPORTANT POINT
Summoning of additional accused to face trial – Merits of evidence has to be appreciated only during trial, by cross examination of witnesses and scrutiny of Court – This is not to be done at stage of Section 319 of Cr.P.C.

JUDGMENT :

SUDHANSHU DHULIA, J.

1. Leave granted.

2. Heard Shri Ram Naresh Yadav learned Counsel for the appellant/complainant, Shri Vishal Mahajan, Deputy Advocate General for the State/Respondent No. 1 and Shri Shreeyash U. Lalit learned Counsel for Respondent No. 2.

3. The appellant before this Court was the informant in the case and was a prosecution witness (PW-9), in Sessions Trial No. 8/2018, which is being held before the Additional Sessions Judge, Sirsa, Haryana, under Sections 458, 460, 323, 302, 148, 149 and 285 of IPC, 1860 read with Section 25 of Arms Act, 1959. The incident is of 12:30 mid night dated 07.09.2017 which occurred at Sirsa, Haryana. The First Information Report reveals that there were in total fifteen assailants which had broke open the complainant’s house, in the middle of the night and had come in order to assault the inmates of the house. Out of these assailants seven have been named who were armed with lathi and three of the named assailants/accused namely Ramesh Gandhi, Kalu Jakhar and Pawan were armed with gun and pistols respectively. Police after investigation had filed chargesheet against nine persons, but not against Ramesh Gandhi, Kalu Jakhar or Pawan whose names were placed in column 2 of the charge-sheet. After the trial had commenced and the complainant was being examined as PW-9, he disclosed the entire event as an eye witness in his examination-in-chief, where he has unambiguously assigned the roles to these three assailants as well, who were named in the FIR but not made accused in the charge-sheet, that is, Ramesh Gandhi (respondent No. 2), Kalu Jakhar and Pawan.

4. Immediately thereafter an application was moved before the Court by the Appellant under Section 319 Code of Criminal Procedure, for summoning these three persons Ramesh Gandhi, Kalu Jakhar and Pawan as accused so that they may also face the trial. This application as we have already stated was allowed, but the order was set aside by the High Court in Revision.

Before we examine the scope of Section 319 of Code of Criminal Procedure, it would be relevant to go through the statement given by PW-9, complainant, in his examination in chief as that forms the basis for summoning the three persons. PW-9 states in his examination-in-chief that on 07.09.2017, he along with his younger brother Pradeep Kumar and his cousin Bijender was sleeping in the court yard of their house, after having dinner. His father, Hanuman (deceased), was also sleeping in the court yard. The main gate of the house was bolted. His uncle Subhash, Jaibir and Raj Kumar were also sleeping in their houses. At about 12:30 i.e. in the middle of the night fifteen persons entered their house having ‘lathi’ and ‘danda’ in their hands, from the adjacent room by breaking the chain. Two were having pistols in their hand which could be seen in the light of the bulb. He then goes on to say that while Ramesh Gandhi was having a gun, Kalu Jakhar and Pawan were armed with pistols and remaining were having lathis and dandas. They first exhorted and then started beating all of them and threatened that today they will teach them a lesson, for selling liquor. When they were inflicting blows on the three of them his father Hanuman came to their rescue, to whom Subhash gave a blow from his lathi. He then states that all the accused were inflicting injuries on his father, and when they finally left the house, they left after firing from their weapons. These are the essential details of his slightly longer narration.

Section 319 of Cr.PC reads as under:

“319. Power to proceed against other persons appearing to be guilty 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 th