JUDGMENT :

RAJ BEER SINGH, J.

1. Heard learned counsel for the appellant, learned counsel for the complainant /respondent No. 2 and learned A.G.A. for the State.

2. The present criminal appeal has been preferred under section 14-A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) against order dated 16.07.2022, passed by the learned Additional Sessions Judge/Special Judge, (SC/ST Act), Court No. 2, Bhadohi Gyanpur in Criminal Case No. 81 of 2016 (State vs. Subhash and others), under Sections 323, 504, 506, 325 IPC and 3(1)10 SC/ST Act, whereby the trial court has summoned the appellant under Section 319 Cr.P.C.

3. Learned counsel for the appellant has argued that the impugned order is against the facts and law and thus, liable to be set aside. In this matter a non-cognizable report was lodged by the respondent No. 2 on 28.03.2015 against accused Subhash, Rakesh, Lavkush and Arun but the appellant was not named therein. In his statement recorded under Section 161 Cr.P.C. also, the respondent No. 2 did not name the appellant. It was submitted that the respondent No. 2 has moved an application under Section 155(2) Cr.P.C. for investigation of the incident of non-cognizable report, and in that application appellant was also named but during investigation neither the respondent No. 2 nor the other injured person has named the appellant. During trial of co-accused persons, the appellant has been summoned under Section 319 Cr.P.C. whereas, there is no credible evidence against him. It was further pointed out that during trial also, the injured Satish Kumar has not named the appellant and that only complainant/PW-1 has named the appellant but no specific role was assigned to the appellant. The statement of complainant made against appellant is not consistent with his statement, recorded during investigation. Referring to the facts and evidence of the matter, it was submitted that absolutely no case for summoning of appellant under Section 319 Cr.P.C. is made out. The court below did not consider the facts and evidence in correct perspective and without discussing or considering the position of law, the impugned order has been passed in a mechanical manner. Referring to facts of the matter, it was submitted that impugned order is against facts and law and thus, liable to be set aside.

4. Learned A.G.A. and learned counsel for the complainant/respondent No. 2 have opposed the appeal and argued that in application under Section 155 (2) Cr.P.C. the respondent No. 2/complainant has clearly stated that appellant was also involved in the alleged incident. Similarly during trial, the complainant/PW-1 Munshiram has stated that appellant was also involved in the incident. Referring to the statement of PW-1 Munshiram, recorded before the trial court, it was submitted that a case for summoning of appellant under Section 319 Cr.P.C. is made out against appellant. It is further submitted that there is no illegality or perversity in the impugned order..

5. I have considered rival submissions and perused the record.

6. Before considering the merits of the contentions, it would be apt to refer to Section 319 Cr.P.C. which reads as under:

“319. Power to proceed against other persons appearing to be guilty of offence:

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2).................

(3).................

(4) Where the Court proceeds against any person under sub-section (1), then:

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re-heard.

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offen