The court can summon any other accused person under Section 319 of the Cr.P.C. if a more than prima facie case is established, but short of satisfaction to an extent that evidence, if goes unrebutted, would lead to conviction.

JUDGMENT :

The present Criminal revision has been preferred against the order dated 23.08.2021, passed by the First Additional Sessions Judge, Udham Singh Nagar, whereby the application under Section 319 of the Code of Criminal Procedure, moved by the prosecution, has been allowed and the revisionist has been summoned by the trial court as an accused to face trial along with other accused persons for the offences under Sections 147, 148, 307, read with Section 149 IPC and Section 302 read with Section 149 IPC.

2. Facts, in brief, of the case are that on 07.01.2018, respondent no. 2 Angrez Singh lodged an FIR against six persons with the averments that his father was murdered on 17.07.2015 and he was the informant in the said case and the accused persons were exerting pressure to enter into compromise and settle the dispute. Because of this enmity, at about 1:15 PM on 07.01.2018, when the said respondent, his cousin brothers Daljeet Singh and Rajvender Singh, and his relatives Kuldeep Singh and Harvansh Singh were participating in a Nagar Kirtan in Sitarganj, the accused persons, armed with sharp-edged weapons, lathis and dandas and pistols, attacked the complainant, his brothers and relatives. In the said incident, Daljeet Singh and Harvansh Singh died at the spot and Rajvender Singh suffered serious injuries.

3. After investigation, police submitted the charge sheet and thereafter trial commenced against the accused persons. On 25.06.2019, examination-in-chief of the complainant (respondent no.2) was recorded but the same could not be completed because of the poor health of the witness and it was deferred to 16.07.2019 at the request of prosecution. The examination-in-chief of the complainant resumed on 16.07.2019, but the same again could not be completed on that day as the court time was over. On 25.11.2019, while recording further examination-in-chief of the complainant, a CCTV footage, collected during investigation by the police which was captured in the CCTV cameras installed at the shops situated near the place of occurrence, was played before the trial court. After watching the said CCTV footage, the complainant, inter alia, identified the presence of the present revisionist at the place of incident and narrated his role in the alleged crime. The complainant further stated that at one point of time, he is being seen doing hathapai with Daljeet Singh (deceased) and Rajvender Singh (injured). In yet another scene of the said CCTV footage, the revisionist was seen making exhortation to the other accused persons to attack Daljeet Singh and Rajvender Singh.

4. After the above deposition of the complainant (PW1), the prosecution moved an application to summon the revisionist as an additional accused under Section 319 Cr.P.C. and the same was allowed by the trial court vide impugned order, as stated hereinabove.

5. Heard learned counsel for the parties and perused the material available on the record.

6. Ms. Manisha Bhandari, learned counsel for the revisionist, contended that the court below has committed grave error of law by summoning the revisionist as an accused inasmuch as the complainant, who claims to be an eyewitness of the alleged incident, did not assign any role to the revisionist in the FIR. During the course of investigation as well, the name of the revisionist as an assaulter did not surface. After commencement of the trial, on 25.06.2019 and on 16.07.2019, the complainant did not make any allegation against the revisionist in his examination-in-chief. It was only after seeing the CCTV footage on 25.11.2019, the complainant made serious allegations that it was on the exhortation of the revisionist that the accused persons committed the crime and killed Harvansh Singh and Daljeet Singh and inflicted injuries to others. Learned counsel for the revisionist argued that in the above facts and circumstances, it was totally illegal on the part of the trial court to summon the revisionist under Section 319 Cr.P.C. on the ba