The trial court can summon additional accused under Section 319 Cr.P.C. only if there is more than a mere prima facie case supported by evidence.

JUDGMENT :

CHAWAN PRAKASH, J.

1. Heard Shri Surendra Singh, learned counsel for the revisionists, Shri Sanjay Mishra, learned counsel for opposite party No.2 and learned A.G.A for the State.

2. The present revision has been filed challenging the order dated 01.09.2021 passed by learned Additional District and Sessions Judge/ Fast Track Court No.2, Etawah in Session Trial No. 310 of 2021 ( State v. Ajay and others ) arising out of Case Crime No. 385 of 2019 under Sections 147, 148, 323, 304, 352, 336, 504, 506 IPC Police Station Jaswant Nagar District Etawah.

3. It is submitted by learned counsel for the revisionists that FIR as Case Crime No. 385 of 2019 under Sections 147, 148, 323, 336, 452, 504, 506, 352, 307 IPC Police Station Jaswant Nagar District Etawa was lodged against ten persons including the present revisionists. After the death of injured Section 304 IPC was inserted and Section 307 was omitted. The investigating officer did not record the statement of public witnesses under Section 161 Cr.P.C and did not assign any role to the present revisionist Aditya and Arpit in the commission of offence. No charge sheet was filed against the revisionists. During trial charges against other accused persons were framed and examination-in-chief of P.W-1 Ravindra Singh, brother of deceased was recorded. After recording of the examination-in-chief and without completing its cross-examination, application under Section 319 Cr.P.C was filed to summon the present revisionists. It is submitted that the said application was allowed by the learned trial court vide impugned order dated 01.09.2021. It is submitted that the learned trial court while passing the impugned order has only opined that the prima facie case is made out against the accused revisionist whereas considering the principles of law laid down he must form an opinion that more than prima facie case is made out. It is further submitted that other prosecution witnesses have not supported the prosecution version and they are turning hostile. The said order has not been passed in compliance with the settled principles of law and also the facts of the present case and the said order is liable to be set aside.

4. Per contra it is submitted by learned A.G.A and learned counsel for opposite party No.2 that the trial court has not committed any illegality in passing the impugned order because the name of accused were mentioned in the First Information Report. The investigating officer has not conducted fair investigation and not not filed charge sheet against the revisionist. During trial the examination-in-chief of P.W-1 (Ravindra Singh) was recorded and thereafter the present application under Section 319 Cr.P.C was filed. It is also submitted that the court has not committed any illegality in allowing the said application because the application under Section 319 Cr.P.C could be filed even on the basis of examination-in-chief without recording cross-examination. Thus, the trial court has not committed any illegality in passing the impugned order.

5. Having heard learned counsel for respective parties and having perused the record it transpires that in the instant revision, revisionists challenged the order dated 01.09.2021 passed by the trial court by which they have been summoned under Section 319 Cr.P.C.

6. Section 319 Cr.P.C. read 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