The main legal point established in the judgment is the requirement for stronger evidence than mere probability of complicity and the need to form a prima facie opinion based on evidence led before the court, not necessarily tested on the anvil of cross-examination, for summoning under Section 319 Cr.P.C.

JUDGMENT :

1. Sri Udai Karan Saxena, learned Senior Advocate assisted by Ms. Swati Agrawal Srivastava, Advocate for revisionists, has submitted arguments, which are in two folds. Firstly, that summoning of revisionists (three in numbers), under Section 319 Cr.P.C., is contrary to judgment passed by Constitution Bench in Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 and Brijendra Singh and others vs. State of Rajasthan (2017) 7 SCC 706, that, Trial Court has to make out an opinion to see whether much stronger evidence than mere possibility of their (applicants) complicity has come on record. However, there is no satisfaction of this nature in the impugned order. Relevant para 15 of the judgment in Brijendra Singh (supra), is quoted hereinafter:

“15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the ‘evidence’ recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether ‘much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record.

There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny.” (Emphasis given by Court for revisionists)

2. Second fold of the argument of learned Senior Advocate is that, during pendency to challenge to order passed under Section 319 Cr.P.C. trial has been concluded against originally charge sheeted accused, wherein Trial Court vide judgment and order dated 07.09.2022 has acquitted said accused from the offence under Section 302 IPC, therefore, there would be no justification that present revisionists may go through the same procedure wherein same evidence has to be led again and most likely outcome of trial will be same.

3. The above submissions are vehemently opposed by Sri Sushil Kumar, learned counsel appearing for Opposite Party No. 2. He submitted that Trial Court has correctly appreciated the evidence of eye witnesses, i.e., PWs 1, 2 and 3 that all the three revisionists have also assaulted deceased, who not only received multiple injuries but died due to strangulation and said witnesses had witnessed the incident and further that in a case where a person is summoned under Section 319 Cr.P.C. he has to face de novo trial, therefore, there will be no consequence of acquittal of the charge sheeted accused for the same offence after the trial.

4. The Court proceeds to consider the second argument of learned Senior Advocate, which was vehemently opposed by counsel for Opposite Party No. 2 and AGA that what will be the consequence of conclusion of trial of charge sheeted accused if for the same offence accused persons summoned under Section 319 Cr.P.C. has to face de novo trial?

5. This issue has been considered recently by Supreme Court and law has been reiterated in A.T. Mydeen and another vs The Assistant