The level of satisfaction required for summoning a person under Section 319 of the Code is more than a prima facie case but falls short of the satisfaction required for conviction. Summoning an accused in a criminal trial requires careful scrutiny of evidence and a reflection of the Magistrate's application of mind to the facts and applicable law.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. The challenge in this revision is made to the order dated 19.9.2018, passed in the Sessions Trial No. 223 of 2017, State vs. Brijesh Singh Yadav and Others, by the court of 3rd Additional Sessions Judge, Rudrapur, District Udham Singh Nagar. By the impugned order, an application filed under Section 319 of the Code of Criminal Procedure, 1973 (for short “the Code”) by the prosecution has been allowed and the revisionists have been summoned.

2. Heard learned counsel for the parties and perused the record.

3. Learned counsel for the revisionists would submit that the order summoning the revisionists is bad in the eyes of law; the informant is not an eye-witness; PW-2 Ashwani Kumar, who has been examined at the trial has though named all the revisionists but, the injured has yet not been examined.

4. It is argued that examination of injured is essential and material evidence in the instant case because although FIR was filed against the revisionists also but, the injured in his statement, given during investigation, did not name the revisionists as the persons, who fired at him. Therefore, merely on the basis of statements of some other persons, the revisionists could not have been summoned under Section 319 of the Code.

5. The informant has filed counter affidavit in this case but, none is present on behalf of the informant today. State did not opt to file any objection in this revision.

6. Learned counsel for the State would submit that the name of the revisionists have been disclosed by the informant in his statement given during trial. Moreover, PW-2 Ashwani Kumar also named the revisionists.

7. A very short question is pending adjudication in this Court for the last four years. The validity of an order passed under Section 319 of the Code.

8. Section 319 of the Code empowers the court to summon any person not an accused, to face trial with the existing accused, if it appears from the evidence that such persons may be so tried. This Section is as hereunder:

“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 Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then:

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard.

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.”

9. A bare perusal of Section 319 of the Code reveals that the court has to first record a preliminary satisfaction that some other person may be tried along with the existing accused. The summoning order should be categorical, as to under what offences the persons have been summoned under Section 319 of the Code. In the instant case, the impugned order does not reveal, as to under what offences the revisionists have been summoned. This is one aspect of the matter.

10. What would be the level of satisfaction to summon a person under Section 319 of the Code? In the case of Hardeep Singh vs. State of Punjab and Others, (2014) 3 SCC 92, the Hon’ble Supreme Court discussed this point and related issues. Question No. 4, as formulated in the case of Hardeep Singh (supra) is as hereunder:

“Question (iv) - What is the nature of the satisfac