The power under section 319 of the CrPC to summon additional accused must be exercised prudently and based on strong evidence.

ORAL ORDER

1. By way of this petition filed under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside order dated 23.2.2018 passed by the learned 2^nd Addl. Civil Judge and JMFC, Jhalod below Exh.18 in Criminal Case No.1511 of 2014, whereby the learned trial Court exercised the power u/s 319 of the Code of Criminal Procedure, 1973 and issued summons upon the petitioner arraigning as accused in the trial on the ground that the complainant in his deposition stated that the petitioner was driving the car at the time of road accident.

2. Brief facts of the case are as under:-

2.1 On 13.06.2014, brother of the complainant had gone for interview purpose at Sadguru along with his bicycle bearing registration No GJ 27 A 9189 at Dahod. After some time, when the complainant tried to call to his brother, there is no respoence; in turn, the complainant gone out in search of his brother and came to know that bicycle of brother of the complainant bearing registration no. GJ 27 A 9189 came to be dashed with Buloro vehicle bearing registration no. GJ 20 A 4515 and thus, brother of the complainant sustained injuries on his head, legs and also succumbed to death on account of grievous injuries. With regard to this incident, the complainant had gone to Limdi Police Station so as to registration of the offence / FIR against the driver of the person who driving Bolero Vehicle bearing no. GJ 20 A 4515.

3. Heard learned advocates for the respective parties.

4. At the outset, let me reproduce the findings of the learned trial Court in arraigning the present petitioner as accused.

“Further the complainant filed the application through APP for the further Investigation which was allowed and the Investigation is done by the CPI Mr.K.P.Parmar whereby the complainant has deposed before him that the complainant did not know the name of the Babubhai Chhaganbhai Gari and the 10 Sub Inspector Mr. K. G. Jhaliaya has taken the signature of the complainant on blank paper. While the father of the complainant has deposed that he has seen the Babubhai Chhaganbhai Gari driven his Bolaro Car to nearby Limdi Police Station and Babubhai Chhaganbhai Gari was discussing the incident with the Police personals that an accident had occurred from hum by his car. Further the witness Prakashbhai Dalsing Muniya stated that he was with the crime writer in the police station namely Lalubhai when the third party accused Babubhai chhaganbhai gari confessed that he was driving his car but the Statement of the lalubhai is also not taken on record.

Further during the investigation the third party accused Babubhai was erxamined who deposed that the car was driven by the ganpatbhai Shankarbhai Soni while accused namely Ganpatbhai confessed before the CPI that he was driven the car. Thereafter the owner of the car i.e., wife of third party accused namely Babubhai Chhaganbhai Gari also stated that the driver ganpatbhai Shankarbhai Soni was driving the car. Further concluded that the complainant was in semi conscious state of mind and so not relied on the statement of the complainant and his witnesses. Further the CPI has also not examined the Lalubhai, the Crime writer at the time of the incident in Limdi Police Station, as alleged by the witness that the third party accused namely Babubhai gari confessed before him.

xxxxxxxxx Further, on perusal of the record, it is clear that the complainant in his Examination in chief asserted that the complainant identified the face of accused and later know his name who is the present third party accused namely Babu Bhai Chhaganbhai Gari. Further there is some corroboration from the statements of the other witnesses