The court emphasized that under Section 319 Cr.P.C., summoning additional accused requires substantial evidence, not just a prima facie case, and must be exercised with caution.

JUDGMENT :

Manoj Bajaj, J.

1. Applicants-Accused are aggrieved against the order dated 14th September, 2007 passed by Additional Sessions Judge, Court No. 1, Lakhimpur Kheri in Sessions Trial No. 659 of 2004; titled State vs. Ram Narain alias Sukhdeo and others, arising out of Case Crime No. C-3 of 2001, under Sections 147, 302, 406 IPC, Police Station Gola, District Lakhimpur Kheri, whereby the trial court has summoned them as an additional accused by exercising jurisdiction under Section 319 Code of Criminal Procedure.

2. Briefly the facts of the case are that on the basis of a complaint by Kanshi Ram (PW-1), the above noticed Case Crime No. C-3 of 2001 was registered pursuant to the order passed by the Magistrate under Section 156(3) Code of Criminal Procedure, and as per allegations by complainant, his son Shyam Prakash left the house on 12th July, 2000 to visit his brother-in-law Rambilas Mishra. The complainant's son was wearing three gold rings, a chain, and was also carrying cash of Rs.1,55,000/- as well as a mobile phone. The complainant's son was residing with his second wife Rekha, who in order to grab his house at Lucknow was illegally occupying it. The complainant further alleged that the accused persons in connivance with each other administered poison to his son on 14th July, 2000, which resulted in his death. Broadly on these allegations, the above FIR was registered for alleged commission of offences punishable under Sections 302, 147 and 406 IPC against eight accused persons including the applicants namely Smt. Rekha, Anant Ram Awasthi, Smt. Ram Boli and Barkan.

3. Thereafter, the investigation in the case was conducted, and through the final report under Section 173(2) Cr.P.C., only five accused persons were sent to face trial, and during investigation, accused namely Virendra Kumar (son-in-law of Ram Narain Mishra) was also arraigned, whereas the applicants were declared innocent.

4. After considering the final report under Section 173(2) Cr.P.C., the trial against the five accused persons commenced and in order to discharge the onus, prosecution had examined three witnesses namely Kanshi Ram (PW-1), Om Prakash (PW-2) (another son of complainant) and Putti Ram (PW- 3), and at that stage, an application under Section 319 Code of Criminal Procedure was moved for summoning the applicants as an additional accused.

5. The trial court vide impugned order dated 14.09.2007 proceeded to allow the said application and summoned the applicants as additional accused. Hence, this application.

6. Learned counsel for the applicants has argued that the trial court has committed an error of law in exercising jurisdiction under Section 319 Cr.P.C. in a casual manner, as the facts, circumstances and the evidence on record do not suggest the involvement of the applicants in the alleged commission of crime. Learned counsel has drawn the attention of the Court to the impugned order to point out that the trial court has noticed the testimony of three witnesses examined by the prosecution and proceeded to observe that a prima facie case regarding involvement of the applicants-accused is also made out, and the court has not examined the nature of the evidence adduced and the case set up by prosecution. Learned counsel submits that pursuant to the interim protection granted by this Court, the proceedings against the newly added accused made no progress, whereas the trial regarding other five accused continued, which finally ended in their acquittal through the judgment dated 11th September, 2009. Learned counsel prays that the impugned order is not based upon the correct appreciation of material on record, therefore, it calls for interference by this Court. He prays that the impugned order be set aside and the application be dismissed.

7. Learned State Counsel while opposing the prayer has argued that the complainant from the very beginning had set up a common case against all the accused persons and name of the applicants was also mentioned