The discretionary and extraordinary nature of the power under section 319 of Cr.P.C., the requirement for strong and cogent evidence against a person, and the need for sufficient material to summon an accused.

ORDER : – Instant criminal revision is preferred by the petitioner under section 397/401 of Cr.P.C. against the order dated 12-3-2022 passed by trial Court, whereby, application under section 319 of Cr.P.C. for summoning the petitioner as accused has been allowed.

2. Precisely stated facts of the case are that on 20-7-2019 one Dehati Nalisi was registered by complainant Pradeep Singh stating that his agricultural field which is adjacent to the field of Vinod, some new saplings were tried to be extirpated by Vinod which led to some dispute and therefore, Police (100 dial vehicle) was called which intervened in the matter and advised both the parties to report the matter to the concerning police station. When complainant Pradeep Singh and his father were going to police station on motorcycle then on a culvert accused Vinod, Shailendra, Indra Singh (present petitioner), Jaswant and Rajesh started hurling verbal abuse and threatened to kill them. When they passed the culvert then Vinod and Shailendra opened fire on them. Vinod fired on father of the complainant namely Sitaram, who sustained injury on chest and fell down. All assailants fled while threatening them for dire consequences if they report the incident to police.

3. Father of the complainant namely Sitaram was taken to Hospital; where, he succumbed to the injuries. Thereafter, Marg was registered and Dehati Nalisi bearing No. 0/19 was registered. On the basis of Dehati Nalisi, FIR was registered for offence under sections 302, 307,147, 148, 149, 506-B of IPC.

4. During course of investigation, Investigating Officer as well as higher authorities recorded statements of different witnesses. Statement of Satyanarayan, Anod Singh, Rajendra and Police Constable Kamlesh Sharma and pilot of 100 dial vehicle Madan Sharma were also recorded under section 161 of Cr.P.C. All referred the fact that Indra Singh i.e. present petitioner after initial verbal abuse at agricultural field sat in the vehicle and rode with Police Constable Kamlesh from spot to Police Station. Before reaching to the Police Station, information came to them about said shootout, therefore, all went there directly, therefore, all these witnesses have specifically stated about the presence of present petitioner with them in the vehicle. He was allegedly not present on the spot when alleged offence under section 302 of IPC has been committed by other accused persons.

5. Apparently, charge-sheet was filed against other accused persons and since present petitioner was not found on spot in investigation, therefore, charge-sheet was not filed against present petitioner. Charges were framed and trial proceeded.

6. Pradeep Singh as prosecution witness No. 1 appeared before the trial Court and referred the name of present petitioner also at the time of incident when his father was injured at the hands of accused persons. Thereafter, prosecution moved an application under section 319 of Cr.P.C. for impleadment of present petitioner as accused which vide impugned order dated 12-3-2022 was allowed and trial Court issued summons to the petitioner for appearance. Therefore, petitioner has preferred this petition.

7. It is the submission of learned counsel for the petitioner that Kamlesh Sharma who happens to be the Police Constable who reached on spot when dispute for the first time erupted and gave counseling to aggrieved parties and thereafter, present petitioner sat in the vehicle of police (100 dial vehicle) and was moving towards different direction, therefore, he could not have been present on the spot at the time of incident. Not only Police Constable Kamlesh Sharma but the pilot of the 100 dial vehicle namely Madan Sharma referred the said fact in categorical terms, therefore, Investigating Officer rightly believed them and based upon plea of alibi did not charge-sheet the present petitioner. Other witnesses, Rajendra Singh, Satyanarayan and Anod Singh in their respective statements under section 161 of Cr.P.C. also su