IMPORTANT POINT
Summoning of additional accused to face trial – Court should not conduct a mini-trial at this stage as expression used is 'such person could be tried’ and not ‘should be tried’.

JUDGMENT :

SANJAY KAROL, J.

Leave Granted.

2. The instant appeal preferred by the appellant- complainant, arises out of judgment and order dated 23rd July 2024 passed by the High Court of Judicature at Allahabad in Criminal Revision No.5517 of 2023, quashing the summons issued against Rajendra Prasad Yadav, Respondent No.2 herein, under Section 319 of the Code of Criminal Procedure, 1973¹[Hereinafter ‘CrPC] vide order dated 28th September 2023 passed by the Additional Sessions Judge, Kaushambi²[Hereinafter “Trial Court”] in Sessions Trial No.109 of 2018, arising out of Case Crime No.303 of 2017.

3. Brief facts giving rise to the present appeal are :

(i) Two FIRs were lodged in respect of an incident which allegedly took place on 29th November 2017. First FIR³[Case Crime No. 303 of 2017] was registered by the appellant-complainant, namely, Shiv Baran⁴[The first informant], under Sections 302, 307, 504 and 506 of the Indian Penal Code, 1860⁵[Hereinafter ‘IPC’] against four persons, namely, Rahul, Dinesh, Rajendra and Shiv Moorat⁶[Moorat and Murat are referred for the same person in the record], alleging the said accused of having, with the common intention, entered his house and assaulted his brother, who, when taken to the Hospital, succumbed to the injuries.

(ii) Second FIR⁷[Case Crime No.315 of 2017] was lodged by one Suresh Kumar under Sections 452, 323, 504, 506 and 325 of IPC, alleging that the accused persons entered his house, hurled abuses, and assaulted the first informant and his wife. Here, we may clarify that the matter pertains only to the first FIR.

(iii) The Investigating Officer, based on the material collected during the course of investigation, concluded that the accused, Rajendra Prasad, not to have played any role in the alleged crime and, as such, in connection with the first FIR, submitted a chargesheet dated 24th February 2018 only with respect to accused persons, viz., Dinesh Yadav and Shiv Murat Yadav, in relation to offences committed under Sections 302, 307, 504 and 506 read with Section 34 of the IPC.

(iv) During the course of the said trial, finding witnesses PW1 - Shiv Baran Yadav, PW2 - Raj Baran and PW3 - Subhash Yadav, to have deposed about the role of accused Rajendra Prasad Yadav, the complainant moved an application under Section 319 CrPC praying therein to add his name as co-accused, which application, though initially stood rejected by the Sessions Court vide order dated 31st January 2022 but on remand by the High Court, was eventually allowed by the Trial Court vide order dated 28th September 2023.

(v) In a petition preferred by Rajendra Prasad Yadav, the High Court while setting aside the said order of summoning passed by the Trial Court, inter alia observed that PW-1 had not ascribed any role to the accused and that the testimonies of PWs 2 and 3 could not be said to be implicating the said accused, for there being no specific reference with regard to the description and the manner of occurrence of the incident. Further, they had not ascribed any motive to the crime. Unless and until there is evidence of a strong motive, a person cannot be summoned as an accused. In the absence of any cogent material prima facie indicating complicity of the said accused, the Trial Court committed an error in passing the order impugned.

(vi) Challenging this order of the High Court, the complainant/first informant is before us.

4. Heard learned counsel for the parties and perused the record.

5. Here only, it would be pertinent to extract the relevant provision of CrPC :

“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 the Court, he