The main legal point established in the judgment is the requirement for stronger evidence than mere probability of complicity for summoning under Section 319 of the Cr.P.C.

AMOL RATTAN SINGH, J.

By this petition, the two petitioners seek setting aside of the order of the learned trial Court (Additional Sessions Judge, Karnal), dated 14.09.2017, vide which the petitioners have been summoned as 'additional accused' upon an application filed by the complainant (in the FIR), under Section 319 of the Cr.P.C., seeking that they be so summoned.

Prior to the order now impugned before this Court, a similar order dated 24.10.2016 was passed by the learned trial Court, that came to be challenged before this Court by way of Criminal Revision no.4489 of 2016, which was allowed by this Court (a co-ordinate Bench), vide its order dated August 29, 2017, thereby setting aside that order of the trial Court dated 24.10.2016, further directing that Court to hear the parties afresh and decide the application (under Section 319 Cr.P.C.), giving proper reasoning.

Thus, it is thereafter that the impugned order has been passed, again summoning the petitioners to face trial in criminal proceedings emanating from the registration of FIR no.958, dated 01.12.2015, at Police Station Civil Line, Karnal, alleging therein the commission of offences punishable under Sections 148, 149, 302 and 506 IPC.

2. As per the FIR, registered at the instance of one Savita (the applicant in the application filed under Section 319 Cr.P.C.), on the evening of 30.11.2015, she left her house along with her husband Sanjay, one Balinder son of Malkhan Singh and Manoj son of Prem Singh, in a car bearing registration no.HR-20-AE-1068.

As per the complainant, she had dropped off her husband and Balinder at a gymnasium situated in the Model Town Market at Karnal, after which she went to the market with Manoj.

At about 6:15 p.m., when she and Manoj were returning and had reached near the gymnasium, her husband and Balinder were seen coming down stairs with Vicky son of Roshan Lal, Rajesh son of Phool Singh, both armed with swords. Another Balinder and Bajinder, Rajbir, Mannu @ Ashok, as also the present two petitioners, i.e. Harpreet Singh @ Happy and Roshan, were also stated to be present along with 10 or 12 other young boys, all armed with iron rods.

They are all stated to have surrounded the complainants' husband (Sanjay), with one Vicky exhorting them to not allow Sanjay to escape and that he be killed.

Further as per the FIR, Rajesh and Vicky gave sword blows on the head of Sanjay, with the remaining accused causing multiple injuries on him with their iron rods.

Upon the complainant, Balinder and Manoj having cried for help, and upon them proceeding to rescue Sanjay, accused Balinder and the present two petitioners are alleged to have 'proclaimed' that if they tried to interfere, they “would also be finished”.

Allegedly, another unknown boy was also inflicted injuries by the accused party while leaving the spot.

Sanjay having been taken to the Government Hospital, Karnal, he was medico-legally examined, after which he was taken to the Virk Hospital at Karnal, from where he was shifted to the Fortis Hospital at Mohali, where he succumbed to his injuries.

3. After investigation, the police submitted its report under Section 173 Cr.P.C., declaring the present petitioners to be innocent. However, after framing of the charge, the complainant, Savita, having been examined along with Manoj (as PWs1 and 2 respectively), the application under Section 319 Cr. P.C. was filed, seeking to summon the present two petitioners as 'additional accused'.

4. As already noticed hereinabove, the trial Court had earlier vide its order dated 24.10.2016 allowed the application after referring to judgments of the Supreme Court in Sunil Bharti Mittal v. Central Bureau of Investigation 2015 (2) RCR (SC) 1 and Babubhai Bhimabhai Bokhiria and another v. State of Gujarat and others 2014 (2) Apex Court Judgments (SC) 268, holding that the test to be applied for summoning any person upon an application made under Section 319 Cr. P.C, would be that more than a prima-facie case is made