The power under Section 319 Cr.P.C. can be exercised against a person not named in the First Information Report or against whom no charge sheet is filed by the police, and the accused can be summoned only on the basis of the examination-in-chief of the witness and need not wait for cross-examination. The degree of satisfaction of the court for summoning the accused under Section 319 Cr.P.C. is the same as applicable for framing a charge.

JUDGMENT :

SHEKHAR KUMAR YADAV, J.

1. Supplementary affidavit has been filed today, is taken on record.

2. Heard learned counsel for the revisionist and learned AGA for the State.

3. The instant revision has been filed for quashing the impugned judgment and order dated 27.10.2021 passed by learned Additional District and Sessions Judge, FTC II, Deoria in Session Trial No. 201 of 2015 (State of U.P. vs. Lal Bahadur and Others) arising out of Case Crime No. 323 of 2015, under Sections 147, 148, 323/149, 302/149, 504, 506 IPC and Section 7 Criminal Law Amendment Act at Police Station Ikauna, District Deoria. Further prayer has been made to stay the effect and operation of the above mentioned case crime.

4. In short the prosecution story is that on 13.07.2015 at about 05.00 P.M. and first informant Ganesh and his father Ramdhari went in Harijan Basti where accused persons, namely, Daya Shankar Tiwari, Lal Bahadur, Ashok @ Bablu Yadav, Ram Kumar @ Tuntun, the revisionist, Gama, Veer Singh and Ram Pravesh @ Sonu armed with Bhala, Kudal, Rod, Hockey and Tamancha assaulted the informant and his father. It is further alleged that the accused revisionist Ram Kumar @ Tuntun have caused injuries upon the head of Ramdhari by using Kudal, as a result, he sustained serious injuries and fell down on the earth. The other accused, namely, Ashok @ Bablu, Lal Bahadur and Gama also assaulted the injured. Upon quarrelling, Smt. Tara Devi, the wife of injured Ramdhari Yadav and brother Ram Naresh and other villagers came at the spot and rescued the injured. Thereafter, the injured Ramdhari Yadav was taken to Government Hospital where he was referred to Deoria Government Hospital where the injured was declared dead.

5. Learned counsel for the revisionist has submitted that the incident took place on 13.07.2015 at about 5.00 P.M. whereas the impugned first information report has been lodged on 15.07.2015 at about 7.30 P.M. i.e. after two days of the alleged incident. As per prosecution story, the revisionist and other coaccused persons have caused injury upon the head of deceased by using Kudal, but as per postmortem report, the deceased has not received any head injury. He has further submitted that there is material contradiction in the statements of PW-1 and PW-2 but the court below ignoring the same has illegally passed the impugned summoning order, which cannot be justified. He has further submitted that during investigation, an application under Section 319 Cr.P.C. has illegally been filed by the witness, namely, Ram Naresh who happens to the brother of the deceased who has no right. The court below has committed manifest error while summoning the revisionist and other accused persons, hence, the same is liable to be set aside.

6. Per contra, learned A.G.A. has vehemently opposed the prayer for quashing the impugned order dated 27.10.2021 and has submitted that the revisionist and other co-accused persons were named in the impugned first information report. The injured Ganesh Yadav in his statement has clearly stated that accused Shankar Tiwari, Lal Bahadur, Ashok @ Bablu Yadav, Ram Kumar @ Tuntun, the revisionist, Gama, Veer Singh and Ram Pravesh @ Sonu armed with Bhala, Kudal, Rod, Hockey and Tamancha assaulted his father. He has further stated that revisionist Ram Kumar @ Tuntun has caused injuries upon the head of his father by using Kudal, as a result, his father sustained serious injuries and fell down on the earth. The other accused, namely, Ashok @ Bablu, Lal Bahadur and Gama also assaulted his father. The alleged incident have been witnessed by PW-1 and PW-2, who have also supported the prosecution story. He has further submitted that the medical report of the deceased also supported the prosecution story, therefore, the court below has rightly summoned the revisionist and other accused persons, hence, the same does not suffer from any illegality or infirmity. In support of his contention, learned counsel for AGA has relied upon a judgment of