The power under Section 319 Cr.P.C. is discretionary and should be exercised sparingly based on strong and cogent evidence, and the test for summoning a person is one which is more than prima facie case but short of satisfaction to an extent that the evidence, if unrebutted, would lead to conviction.

JUDGMENT :

Challenge to this revision

1. This criminal revision has been preferred against order dated 19.05.2023 passed by learned Additional Sessions Judge, Court No.2, Bijnor in Session Trial No. 825 of 2020 (State Government Vs. Mazid and others), arising out of Case Crime No.71 of 2020, Police Station Kiratpur, District Bijnor, whereby revisionist has been summoned under section 319 Cr.P.C. to face trial in the above stated case for offences under sections 323, 504, 506, 302 I.P.C.

Genesis of the present case

2. Brief facts of the case as cropped up from the records of the present criminal revision are that on 18.4.2020, opposite party no.2 namely, Musabbar lodged an F.I.R. against the revisionist, her husband and her son stating therein that rivalry of her family was going on with the family of one Mazid son of Jahid. Two days ago Mazid and Jahid had threatened to kill Danish. On 17.4.2020 at 5.30 P.M. when Danish was going to Bhojpur to get medicines, Mazid took Danish to his house where his mother and father also came and surrounded him. With the intention to kill Danish, Mazid hit Danish with Tabal on his head. Jahid had beaten Danish with a stick and his wife Khairunnisha (present revisionist) pushed Danish due to which he fell on the ground unconsciously. Majid, Jahid and Khairunnish (revisionist) were abusing, beating and threatening to kill Danish. After some time Danish was done to death due to the injuries sustained by him by the accused persons.

The case of the revisionist

3. The revisionist and opposite party no.2 are resident of same village and a strong political rivalry is going on between their families since long. The first informant has malafide intention against the revisionist and her family. Due to the aforesaid reason, the first informant lodged a first information report on 18.4.2020 against the revisionist, her husband and her son under Section 323, 504, 506, 308 I.P.C. Initially the first information report was lodged under section 323, 308, 504, 506 I.P.C. but during the treatment when the injured Danish has done to death, after that Section 302 I.P.C. was added in the present offence. Though the revisionist was named in the F.I.R. but during investigation her involvement was not found and thus, no charge-sheet was filed against her.

4. Further it is the case of the revisionist that PW 1 and PW 2 are interested witnesses in the present offence and are real brothers, therefore, they have given totally false statement before the court below only for making false case against the revisionist and other accused persons. The statements made by the witnesses that revisionist had pushed Danish are false and baseless and that revisionist is being falsely implicated just to create undue pressure and that no prima facie case for summoning the revisionist is made out and therefore, the order impugned is liable to be quashed by this Court.

5. Submission of the learned counsel for the revisionist

(I) The learned Additional Session Judge has mechanically summoned to the revisionist only on the basis of prima facie case while the settled law clearly provides that for exercising the powers under section 319 Cr.P.C., the additional accused can be summoned on the basis of strong evidence more than prima facie case but in the present matter, the Additional Sessions Judge did not follow the settled principle of law, therefore, the impugned order is absolutely illegal.

(II) The Hon'ble Apex court as well as this Court have categorically held in the series of judicial precedents that the categorical conclusion of investigating agency should not be disbelieved by the trial court at the time of exercising powers under section 319 Cr.P.C. out in the present matter the learned Additional Session Judge has not considered the view of the Hon'ble Apex Court and mechanically summoned to the revisionist without appreciating conclusion of investigating agency and by doing so, the leaned Additional Session Judge has committed manifest erro