Once the trial is concluded with regard to other co-accused, the revisionist cannot be tried again under Section 319 Cr.P.C.

NEERAJ TIWARI, J.

1. Heard learned counsel for the revisionist and learned A.G.A. For the State.

2. By way of criminal revision, revisionist is challenging the order dated 15.12.2009 passed under Section 319 Cr.P.C. summoning the revisionist for trial under Sections 302 read with Section 34 & 504 IPC.

3. The submission of learned counsel for the revisionist is that initially FIR was lodged against the revisionist along with three co-accused persons at Police Station- Phugana District- Muzaffarnagar, which was registered as Case Crime No.304 of 2007, under Sections 324, 323, 504 IPC. During the investigation, injured namely, Ratan Singh died due to injury and after his death case was converted under Section 302, 34 IPC. The Investigating Officer completed the investigation and submitted charge sheet under Sections 302, 34, 504 IPC against the co-accused, namely, Bhopal, Ram Niwas & Anuj and exonerated the revisionist from the charges and his name has not find place in charge sheet. Learned Chief Judicial Magistrate has committed the case for Session Trial before the Sessions Judge on 20.11.2017 and charge was framed against the charge sheeted person on 11.03.2008 under Sections 302, 34 & 504 IPC.

4. During the course of trial, witness Ravindra Kumar was examined as P.W.-1 and his examination-in-chief was recorded on 29.08.2008. Immediately thereafter, prosecution has filed an application under Section 319 Cr.P.C. for summoning the revisionist to face trial with co-accused on 29.8.2008 and learned Additional District & Sessions Judge, Court No.3, Muzaffarnagar illegally and arbitrarily summoned the revisionist under Section 319 Cr.PC.

5. He further submitted that during the pendency of instant revision, trial of co-accused persons have been concluded and co-accused Ram Niwas & Anuj were acquitted by the trial Court vide order dated 11.4.2014. It is also mentioned that during the pendency of trial, main accused Bhopal died and his trial has been abated on 11.9.2012.

6. Learned counsel for the revisionist argued that by plain reading of Section 319 Cr.PC, it is clear that additional accused could be tried with accused and in instant case, no trial is pending and co-accused, namely, Anuj & Ram Niwas have already been acquitted by the trial Court coupled with this fact that after death of main accused Bhopal, trial was abated against him on 11.9.2012. Therefore, revisionist cannot be tried together under such facts of the case. In support of his contention, he has placed reliance upon the judgment of Madhya Pradesh High Court in the case of Ramesh Agarwal Vs. Mukesh Jain passed in M.Cr.C. No.13702 of 2015 decided on 7th February, 2017.

7. He further submitted that examination-in-chief of P.W. 1 was completed on 29.8.2008 and on the very same day application under Section 319 Cr.P.C. was filed by the prosecution against the revisionist and the Court below has passed the impugned summoning order dated 15.12.2009. He also submitted that examination of P.W.1 was continued before the trial Court on 21.01.2009 & 06.04.2009. He argued that there is contradiction in the statement of P.W.1 as on 29.8.2008, he stated that he along with his brother reached at the place of incident and saved his father from all accused including revisionist, whereas on 21.01.2009, he stated that when he reached at the place of incident, accused are fled away from the said place. He further pointed out that the statement of P.W.2 was also recorded on 1.9.2009, he also stated the same facts that he has reached at the place of incident and saved his father (deceased) from the accused. His statement was continued on 27.11.2009, 06.08.2012, 05.09.2012 and 01.04.2014. In his cross examination on 01.04.2014, he clearly stated that at the time of incident, he along with his brother P.W.1 was present at home and after hearing the noise, he along with his brother came out from the home and found that his father was lying injured at Khadnja and no one was present at th