The court emphasized the need for strong and cogent evidence and a higher degree of satisfaction to exercise the power under Section 319 of the Cr.P.C.

DEEPAK GUPTA, J.

This order shall dispose of two petitions titled above, both filed by same petitioner namely Samsu @ Shamshuddin, arising out of same case pertaining to FIR No.210 dated 17.06.2018 under Sections 148, 149, 323, 341, 307, 506, 302/120-B of the IPC and Section 25 of Arms Act, registered at Police Station Sadar Tauru, District Nuh.

2. In CRR-1652-2023, petitioner has challenged the order dated 06.07.2023 passed by learned Additional Sessions Judge, Nuh, whereby he has been summoned under Section 319 Cr.P.C. to face trial in above case; whereas in CRM-M-41899-2023, petitioner prays for grant of anticipatory bail under Section 438 Cr.P.C.

Prosecution case and further proceedings:

3. (i) As per prosecution case, on 16.06.2018, a police party was on crime patrolling duty at Village Shikarpur, when it received information from the Police Station Tauru that Shabbir son of Mahmud resident of Village Rahadi and others had been admitted in CHC, Nuh, on account of assault injuries. Police reached the hospital but the injured having received pellets and bullet injuries, requested to get their statements recorded next day. Medico legal reports of at least 15 injured persons were collected, who had received varying number of firearm injuries.

(ii) On next date i.e. 17.06.2018, Chakriya son of Bhobal made statement to the police, as per which on the previous date i.e. 16.06.2018 at about 11:00 a.m. his family members were returning to their home after offering prayers at Eidgah in Village Rahadi, when accused Suban Khan, Abdul Razzak, Shamshuddin (petitioner), Shahrukh, Arif, Tarif, Majjar, Sajid, Nargish, Akhtari, Usmani and 10-12 other peoples all residents of Village Rahadi waylaid Anees son of Shabbir aged 16 years and started beating him. Chakriya disclosed further that as his family members came to know about the said incident, they reached the spot. The accused having guns in their hands, gave gunshot injuries to Satbir, Samina, Nafees, Shahjad, Ajmat, Mohsim, Mubin etc.

(iii) Initially, FIR No.210 dated 17.06.2018 was registered under Sections 148, 149, 307, 323, 341, 506 of the IPC and Section 25 of Arms Act. As Imran and Sehnawaj died during the course of investigation, Section 302 of the IPC was added. Though some of the assailants/accused were arrested during the course of investigation, but Shamshuddin (petitioner), his wife Usmani, Abdul Razzak, Subhan Khan, Akhtari, Nargis and Israq were found to be innocent during investigation.

(iv) After presentation of the challan under Section 173 Cr.P.C. and the commitment proceedings, the trial commenced against the challaned accused. After recording statement of PW-1 Ajmal and that of PW-2 Nishar (Copies Annexure P-3 & Annexure P-4), application under Section 319 Cr.P.C. was moved by the complainant, which was duly forwarded by the Public Prosecutor, so as to summon petitioner Samsu @ Shamshuddin and some others to face trial along with already challaned accused. Learned Trial Court vide order dated 06.07.2023 partly allowed the application by observing that there was more than prima facie case against petitioner Samsu @ Shamshuddin, besides Suban Khan, Abdul Razzak and Israq and so, they were directed to be summoned to face trial along with already challaned accused.

CRR-1652-2023

4. Challenging the aforesaid order, it is contended by learned counsel that though 11 persons were named in the FIR besides 10-12 others but with no specific role attributed to the petitioner. Petitioner and his wife were found innocent during investigation made by DSP Tauru. Even the statement dated 17.06.2018 of PW-1 Ajmal under Section 161 Cr.P.C. (Annexure P-2), does not attribute any specific role to the petitioner but in his testimony as PW-1, he improved his version by attributing gunshot injury by the petitioner to have been caused to deceased Sehnawaj @ Sunny, hitting him on the chest, neck and other parts of the body. Learned counsel contends that PW-2 Nishar made contradictory statement. In