1. Heard Sri V.M. Zaidi, learned Senior Advocate, assisted by Sri Satya Dheer Singh Jadaun, Sri Mohd. Akbar Shah Alam Khan and Sri Uma Shankar Tiwari, learned counsels for the revisionists, Sri Sunil Kumar Tripathi, learned A.G.A. for the State and Sri Jitendra Prasad Mishra, learned counsel for the opposite party no. 2.

2. The instant revision has been filed against the order dated 09.11.2022 passed by the Additional Sessions Judge, Deoband, District- Saharanpur in Sessions Trial No. 20 of 2022 (Old S.T. No. 1402 of 2022), "State of U.P. Vs. Rakib and others" arising out of Case Crime No. 14 of 2022, under Sections 302/34, 452/34 I.P.C., Police Station- Badgaon, District- Saharanpur.

3. By the impugned order, the trial court allowed Application No. 9Kha, under Section 319 Cr.P.C. presented by prosecution and summoned the revisionist no. 1, Bhura, revisionist no. 2, Lilla alias Mobin, both sons of Salamu, revisionist no. 3, Usman s/o Bhura, revisionist no. 4, Saleem s/o Lilla and revisionist no. 5, Inam s/o Khalil to face trial under Section 302/34, 452/34 I.P.C. along with other co-accused.

4. The revisionists have stated in their ground of revision that during investigation, the Investigating Officer found that due to village enmity, informant had named revisionists as accused in the FIR but since no evidence was available against them, the Investigating Officer did not submit charge sheet against them.

5. The Investigating Officer recorded the statement of eye-witnesses, Mursaleen, Ehsan and Arshe Alam on 05.03.2022. These eye witnesses specifically stated that accused, Rakib, Zulfequar Rana and Mobeen had Neutral Citation No. - 2023:AHC:12755 committed the murder of Asif s/o Aas Mohammad. These accused also made confessional statements and recovery of weapon was made. The Investigating Officer charge-sheeted Rakib, Zulfequar Rana and Mobeen regarding involvement in the murder of Asif s/o Aas Mohammad. The learned Trial Court without considering the statement under Section 161 Cr.P.C. of eye-witnesses, Mursaleen, Ehsan and Arshe Alam, merely on the basis of examination-in-chief recorded on 08.09.2022 of PW-1 Rashid, summoned the revisionists for facing trial.

6. It has also been submitted by the revisionists that as per the law laid down by the Hon'ble Apex Court, the trial court should sparingly exercise its power under Section 319 Cr.P.C. for summoning an accused under Section 319 Cr.P.C. Higher quality of evidence is required than that of framing charge against accused but the trial court merely on the basis of examination of PW-1, Rashid, finding prima facie case, illegally summoned the accused.

7. It has been submitted that prior to the said incident, revisionist no. 1, Bhura, had lodged first information report against Rakib and others who happens to be the relative of present informant Rashid. That case is being tried by the learned trial court. Revisionist nos. 2 to 5 are witnesses of the said incident, therefore, they have been falsely implicated in the present case.

8. The revisionist has relied on the following judgments of the Supreme Court in support of his contention:

1. Sagar vs. State of U.P. and another, Criminal Appeal No. 397 of 2022, arising out of SLP (Crl.) No. 7373 of 2021, date of decision 10.03.2022.

2. Ramesh Chandra Srivastava vs. State of U.P. and another, Criminal Appeal No. 290 of 2021, arising out of SLP (Crl.) No. 6381 of 2020, date of decision 13.09.2021.

9. Per contra, opposite party no. 2/informant, Rashid has opposed the revision and supported the impugned order stating that the trial court relying on the decisions of the Hon'ble Apex Court and on the basis of the evidence on record, has rightly summoned the revisionists to face trial in the case.

10. It has also been submitted that the informant, Rashid and witness, Wasim has named the revisionists in the FIR but due to extraneous consideration, the Investigating Officer did not rely on the statements of them and on the basis of the statements of Mursaleen, Ehsan and Arshe Alam, dropped the names of the accused in the FIR and illegally submitted charge-sheet against Rakib, Zulfequar Rana and Mobeen.

11. It has also been submitted that informant and eye-witness, PW-1 Rashid has supported the prosecution case as mentioned in the FIR in his statement in the Court and the trial court, relying on the evidence, has rightly summoned the revisionists to face trial.

12. The opposite party no. 2 has relied on the following decisions of the Hon'ble Supreme Court :

1. Manjeet Singh vs. State of U.P., Criminal Appeal No. 825 of 2021, decided on 24.08.2021.

2. Bholu Ram vs. State of Punjab and another, Criminal Appeal No. 1366 of 2008 , arising out of SLP (Crl.) No. 39 of 2001.

3. Rajindra Singh vs. state of U.P. and another, reported in AIR 2007 SC 2786 [LQ/SC/2007/971]

13. According to the prosecution case as mentioned in the FIR lodged by informant Rashid s/o Aas Mohammad r/o village- Nuna Badi, Police StationBadgaon, District- Saharanpur, is to the effect that he had enmity due to litigation with Farrukh s/o Khalil. Accused, Bhura and Mobin alias Lilla sons of Salamu, Usman s/o Bhura, Saleem s/o Lilla and Inam s/o Khalil used to threaten him and his family members to take revenge due to enmity. On 02.02.2022 at about 4-5 a.m., informant Rashid along with Wasim s/o Tahir and Idrish was returning to his house after chasing out wild animals from the jungle. They saw Bhura and Mobin alias Lilla sons of Salamu, Usman s/o Bhura, Saleem s/o Lilla and Inam s/o Khalil who had blood-stained swords and knives in their hands, were talking amongst themselves that today they had taken the revenge for the murder of their brother. They have killed Asif. They threatened the informant and his companions that they would kill them also. Thereafter, the accused ran away from that place. When informant and his companion reached the compound (Gher) of his house, he saw his brother, Asif, lying dead in a pool of blood. The door of the compound was open.

14. The scope and ambit of Section 319 Cr.P.C. has been well-settled by the pronouncement of Constitution Bench of the Hon'ble Apex Court in Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 [LQ/SC/2014/37] and paras 105 and 106 which are relevant for the purpose are reproduced hereunder :

"105. Power under Section 319 Cr.P.C, 1973 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., 1973. In Section 319 Cr.P.C., 1973, 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., 1973 to form any opinion as to the guilt of the accused."

15. In S. Mohammad Ispahani Vs. Yogendra Chandak (2017) 16 SCC 226, [LQ/SC/2017/1456] this Court has observed and held as under :

"35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 of the Cr.P.C. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."

16. In the case of Rajesh Vs. State of Haryana (2019) 6 SCC 368, [LQ/SC/2019/812] after considering the observations made by this Court in Hardeep Singh (supra) referred to hereinabove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in F.I.R. but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 Cr.P.c. and even those persons named in the F.I.R. but not implicated in charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.

17. Heard learned counsels for the parties and perused the impugned order dated 09.11.2022 passed by the trial court, copy of the first information report, statement of informant PW-1 Rashid dated 08.09.2022 and other material relied upon by the appellant in this appeal.

18. From the above rulings of Hon'ble Supreme Court, it can be concluded that the trial court can summon persons who have been charge-sheeted as accused on the basis of examination-in-chief of a witness. It is not necessary that the witness should be cross-examined before such person can be summoned under Section 319 Cr.P.C. The evidence required for summoning such persons under Section 319 Cr.P.C. is more than prima facie case but it is short of such evidence which if not rebutted will result in conviction of the persons summoned for trial.

19. The informant, Rashid, had lodged the first information report against the revisionists on 02.02.2022 for the murder of his brother, Asif s/o Aas Mohammad. The Investigating Officer during the investigation on the basis of statement recorded under Section 161 Cr.P.C. of Mursaleen which was recorded on 05.03.2022, exonerated the revisionists/accused named in the first information report of the offence and on the basis of statement of Mursaleen, filed charge-sheet against Rakib, Zulfequar Rana and Mobeen for committing the murder of Asif whereas in their statement recorded under Section 161 Cr.P.C., informant Rashid and Wasim have supported the allegations made against the accused/revisionists mentioned in the first information report. The statement of Mursaleen was recorded after a delay of 1 month 2 days after the date of incident. The arguments made on behalf of revisionists does not mention any reason why the informant instead of accusing the real accused involved in the murder of his brother, will name revisionists for his murder.

20. Considering the impugned order in light of the statement of Rashid recorded in the court in the light of law laid down by the Hon'ble Apex Court regarding the summoning of persons who have not been named in the charge-sheet as accused under Section 319 Cr.P.C., I find no illegality, irregularity or jurisdictional error in the impugned order passed by the trial court.

21. The criminal revision is rejected, accordingly.

22. In case the revisionists, Bhura and Mobin alias Lilla sons of Salamu, Usman s/o Bhura, Saleem s/o Lilla and Inam s/o Khalil, surrender before the court concerned and apply for bail within 30 days from today, no coercive action shall be taken against them till then.

23. Let a copy of this order be sent to the court concerned for necessary action.