Section 319 Cr.P.C. requires clear evidence beyond mere allegations for summoning additional accused, affirming that summoning should not be based on speculative grounds.

JUDGMENT :

Mr. Harpreet Singh Brar, J.

1. Present revision petition has been preferred against the impugned judgment dated 13.01.2020 passed by learned Additional Sessions Judge, Jhajjar, whereby the order passed by learned Judicial Magistrate Ist Class, Jhajjar has been dismissed and the application under Section 319 Cr.P.C. for summoning the petitioners as additional accused has been allowed.

2. Brief facts of the present case are that on 09.10.2016 at about 04 O’Clock, an altercation took place between the complainant and petitioners along with co-accused. Due to which, on the same day at about 9:45 PM, all the three accused came to the complainant with a Jeli, lathi and stone and tried to kill the complainant. Hence, the FIR (supra) was registered.

3. In consequence of the FIR (supra) and after completion of the investigation by the concerned police, final report under Section 173 Cr.P.C. was presented in the learned trial Court against co-accused but not against the present petitioners. The learned trial Court framed charges against the co- accused. After the partial cross-examination of PW-1 i.e. injured/complainant, the prosecution moved an application under Section 319 Cr.P.C. before the learned trial Court for summoning the petitioners as additional accused and the same was dismissed vide impugned order dated 19.02.2018. Thereafter, the complainant filed a petition before learned Additional Sessions Judge, Jhajjar, whereby the order passed by learned trial Court was set aside and the application filed under Section 319 Cr.P.C. was allowed. Aggrieved by the same, the petitioners have approached this Court by way of filing the instant revision petition.

4. Learned counsel for the petitioners inter alia contends that the FIR (supra) was registered on the complaint made by Jagdish on 10.10.2016, perusal of which, clearly indicates that no specific injury has been attributed to either of the petitioner. Learned counsel further contends that the narration as given in the FIR (supra) is that all three accused have caused injuries on the person of the complainant-Jagdish. The names of two eye-witnesses namely, Varinder alias Binder and Rajes Singh were also mentioned in the FIR (supra) itself, as they had witnessed the alleged incident. He submits that statement of Varinder alias Binder was recorded under Section 161 Cr.P.C. by the investigating officer, which is available on record as Annexure P-6. A perusal thereof clearly indicates that the petitioners were never present at the place of incident and the main accused, namely, Varinder alias Billu had already caused injuries on the person of complainant-Jagdish, who was apprehended by the eye-witnesses. As such, it is clearly evident that the petitioners have not participated in the alleged incident. Additionally, complainant-Jagdish, while appearing as PW-1 on 12.07.2017 i.e. after nine months of the incident, has made material improvements in his deposition and assigned specific role and injuries to the petitioners as well. The complainant was duly confronted in his cross-examination in this regard. He further submits that the investigating agency, after thoroughly examining the material available on record, has declared the petitioners as innocent. Furthermore, the learned trial Court has refused to exercise power under Section 319 Cr.P.C. and there is nothing available on record to show that the impugned order passed by learned Additional Sessions Judge, Jhajjar while exercising his power under revisional jurisdiction satisfies the test of having more than prima facie case as culled out by the C