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Judgment
RAMESH CHANDER DIMRI, J. (ORAL)
The petitioner/complainant (for brevity ‘petitioner’) is before this Court in revision against a judgment dated 06.01.2020 whereby an order dated 13.03.2019 passed by the concerned Judicial Magistrate thereby summoning the respondents under Section 319 of the Code of Criminal Procedure, 1973 (for brevity ‘1973 Code’) to face trial with the co-accused already facing trial in the case in question was set aside.
As per the case set up by the petitioner in the FIR Annexure P-1, the respondent Chand gave a gandasi blow on head of brother Ram Kumar of the petitioner whereas the respondent Joginder gave a knife blow which hit the said Ram Kumar on his right ear. A perusal of the MLR Annexure P-5 shows that injuries corresponding to the said blows were detected on his person. Despite there being specific allegations against the respondents, the investigating agency, at the time of instituting final report under Section 173 of the 1973 Code, declared the said respondents as innocent and put them in column No.12 thereof. After tendering some evidence, the prosecution filed an application for summoning the respondents as additional accused. That application was dismissed on 23.09.2015. The petitioner filed a revision petition thereagainst which was dismissed by the Court concerned on 28.09.2018. The ground observed in the order for dismissing the revision petition was that statements of the injured Ram Kumar and the doctors who medico-legally examined him had not been recorded by that time. It was after recording of deposition of the said Ram Kumar and the doctors medico-legally examining him that the prosecution filed another application under Section 319 of the 1973 Code for summoning the respondents as additional accused. The said application was allowed by the concerned Magistrate. In turn, the respondents were ordered to be summoned as additional accused under the abovestated Section.
Aggrieved of such decision, the respondents filed revision petition
before the concerned Sessions Judge. It was allowed on 06.01.2020. In turn, application so filed by the prosecution for summoning of the respondents was dismissed.
Aggrieved of the said acceptance, the petitioner is before this Court in revision.
I have heard learned counsel for the petitioner and learned counsel for the respondents on the petition in question.
After hearing them, I am of the considered opinion that in the FIR Annexure P-1, the petitioner had specifically alleged that the respondent Chand inflicted a gandasi blow on head of the said Ram Kumar whereas the respondent Joginder inflicted a knife blow which hit the said Ram Kumar on his right ear. Medico legal examination Annexure P-5 of the said Ram Kumar also shows that injuries corresponding to the said blows were in fact detected on his person when he was medico legally examined. A perusal of the order Annexure P-3 dated 13.03.2019 passed by the concerned Magistrate shows that the injured Ram Kumar deposed before the Court concerned that the respondent Chand and the respondent Joginder gave blows to him causing injuries mentioned in his MLR Annexure P-5. Learned counsel for the respondents also does not dispute that the said Ram Kumar has deposed so before the Court concerned. However, he states that his such deposition before the Court is false. Alleged falsity cannot be gone into at this stage.
Therefore, from contents of the FIR Annexure P-1 and from deposition of the petitioner as well as the said Ram Kumar and other evidence brought on record, I am of the considered opinion that more than a prima facie case is made out against the respondents to proceed against them under Section 319 of the 1973 Code. Hon’ble the Supreme Court in the report Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92, in respect of the satisfaction to be arrived at while deciding an application under the said Section observed as under: -
“105.Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106.Thus, we hold that though only a prima facie case is to be established from the evidence led before the Court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima-facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.”
Applying the said observations to the case in question, I am of the considered opinion that the evidence on record makes out more than a prima facie case to proceed against the respondents under the abovestated Section. So far as opinion of the investigating agency is concerned, keeping in view the substantive deposition of the petitioner and the said Ram Kumar before the Court and other attending circumstances, it has no value at this stage.
For what has been stated above, the impugned order dated 06.01.2020 passed by the learned Additional Sessions Judge, Panipat is set aside. In turn, the order dated 13.03.2019 passed by the learned Magistrate is restored.
Petition is disposed off accordingly. Anything mentioned in the present order shall not affect final decision of the trial in question. Interim application/s, if any, also stand/s disposed off.