Syed Aftab Husain Rizvi, J.

1. Heard learned counsel for the revisionist, learned AGA for the State and learned counsel for opposite party no.2.

2. This criminal revision is directed against the order dated 19.10.2022 passed by Additional Sessions Judge, court no.7 Ghaziabad in S.T. No.923 of 2018 (State vs. Neelesh and ors) crime no.149 of 2016, U/s 323, 324, 504, 506, 325 and 307 IPC, P.S. Niwadi District Ghaziabad. By the impugned order, the learned court below in exercise of powers U/s 319 Cr.P.C. on an application of prosecution has summoned the revisionist accused Vidur to face trial for offence U/s 307, 504 & 506 IPC.

3. An FIR crime no.149 of 2016 was lodged on a written information of complainant Narendra. It is alleged that today at 6:00 am complainant was going on his tube-well his neighbours Ashok, Vidur and their servant were lying in ambush and as soon as the complainant passed from there, Ashok hurling abuses asked him to stop and his son Vidur with intention to kill opened fire with country made pistol and ran behind the complainant. The complainant while running fell down then Ashok holding a farsa and his servant holding a lathi came there and assaulted the complainant causing him serious injuries on his head and other parts of the body, he became unconscious. Meanwhile, Om Dutt and Sanjay who were going to their fields came at the spot, seeing them all the accused persons ran away in the fields. The complainant was brought to police station from where he was sent for medical examination. In the noon at 12 O’clock when complainant was coming with his son Shobit to police station to lodge FIR then Ashok and Neelesh again attacked them with bricks. After investigation, charge sheet was submitted against Ashok Kumar for offence U/s 323, 324, 325, 307, 504 & 506 IPC and accused Neelesh for offence U/s 323, 324, 504 & 506 IPC. The Investigating Officer exonerated the other named accused Vidur Tyagi. During trial, prosecution examined, complainant Narendra Tyagi as P.W.-1 and Sanjay Tyagi as P.W.-2. Thereafter an application was moved U/s 319 Cr.P.C. to summon Vidur the named accused in the FIR for trial. By the impugned order, the learned court below has allowed the application and has summoned the revisionist accused.

4. Learned counsel for the revisionists contended that during the course of investigation, the Investigating Officer recorded the statement of independent witnesses on the basis of their affidavits in which they have not supported the prosecution story and denied the presence of revisionist at the time of alleged incident. The Investigating Officer submitted the charge-sheet against the co-accused persons and excluded the name of revisionist as it was found that no offence is made out against him. It is further contended that complainant/ opposite party no.2 has been examined before the trial court in which he has not made any specific allegations against the revisionist and other witness Sanjay Tyagi has also been examined and he has also not pointed out about the involvement of the revisionist. He has also accepted the fact that a civil suit with regard to land in question is pending in the civil court. From the perusal of the statements of P.W.-1 Narendra Tyagi, it is apparent that there is no evidence against the revisionist, hence summoning the revisionist is absolutely illegal and contrary to the evidence on record. P.W.-2 of the case has also not supported, the statement of P.W.-1 in his cross-examination. A civil suit no.769 of 2017 filed by opposite party no.2 against the father of the revisionist and others is pending for adjudication before the civil court. The independent witnesses and witnesses mentioned in the FIR do not support the story set up by the opposite party no.2 against the revisionist and others and during the investigation, it was found that the revisionist was not present on the spot. He was studying at Delhi for competitive examination, therefore the Investigating Officer has rightly exonerated him. The learned court below without considering this relevant aspect summoned him to face the trial which is not proper. It is further contended that it is settled law that only on the basis of statement of informant, the accused cannot be summoned U/s 319 Cr.P.C. there should be sufficient evidence on record, therefore the impugned order is against the settled principle of law and is also against the evidence on record. The learned court below has not applied its judicial mind in passing the impugned order. From the perusal of the materials including medical report, prima-facie no offence is made out against the revisionist. Therefore, the impugned order is liable to be set aside.

5. Learned AGA for the State and learned counsel appearing for opposite party no.2 submitted that revisionist accused is named in the FIR with specific allegations that he opened fire on the complainant. The complainant has suffered injuries in the incident. In his statement recorded U/s 161 Cr.P.C. he has corroborated the allegations of the FIR and stated about the complicity of the revisionist accused. The Investigating Officer in collusion with the accused on the basis of affidavits filed by some persons recorded their statement U/s 161 Cr.P.C. and exonerated the revisionist in improper manner. During trial, complainant/ injured Narendra Tyagi has again corroborated the allegations of the FIR and stated that Vidur with intention to kill opened fire with country made pistol upon the complainant. The other witness named in the FIR Sanjay Tyagi P.W.-2 has also supported the statement of the complainant. So there is sufficient evidence on record. No error has been committed by the trial court in summoning the revisionist accused. There is no illegality in the impugned summoning order.

6. The FIR of this case has been lodged on the date of the incident itself by Narendra the complainant who is also injured. The revisionist is named in the FIR and there are specific allegations against him that with intention to kill Narendra, he opened fire with a country made pistol. For remaining accused, it is alleged that they assaulted the complainant Narendra with farsa and lathi causing him serious injuries. The complainant/ injured Narendra in his statement recorded U/s 161 Cr.P.C. has corroborated the aforesaid allegations of the FIR. Om Dutt and Sanjay S/o Om Prakash are two witnesses named in the FIR. Witness Sanjay in his statement U/s 161 Cr.P.C. has also corroborated the statement of Narendra that the revisionist Vidur opened fire on him by country made pistol. The statement of other named witness of FIR Om Dutt is not annexed. During trial prosecution has examined complainant/ injured Narendra as P.W.-1 and Sanjay the named eye witness of FIR as P.W.-2. Both these witnesses in their deposition before the trial court has again implicated Vidur assigning him the role of firing with pistol. The Investigating Officer has exonerated the revisionist-accused Vidur on the basis of affidavits filed by Sanjay S/o Ramesh Chandra, Praveen, Narendra S/o Ramesh, Raj Kumar, Rakesh, Arun, Mohit, Jaswant and Rakesh (S/o Om Prakash). In their affidavits they have alleged that Vidur is studying Mass-communication at Delhi and used to live there. He seldom visits his village. He has been falsely implicated due to village party bandi and enmity. The Investigating Officer has also recorded the statement of four other witnesses namely Hari Kishan (the ex-Pradhan), Madan, Smt. Bala and Smt. Vedo and they have stated that Vidur was not present at the time of occurrence at the place of incident. He was not involved in the incident. Except the oral statements and affidavits of the aforesaid witnesses, the Investigating Officer has not collected any substantive evidence with regard to the fact that Vidur was not present at the place of occurrence on the date of the incident and he was at Delhi. The Investigating Officer has also not verified the averments of affidavits that Vidur is studying at Delhi. The Investigating Officer only on the basis of oral statements and affidavits has come to the conclusion that nomination of revisionist accused Vidur is false. As stated above, the revisionist is named in the FIR which has been lodged on the date of the incident itself with specific allegations that he opened fire with a country made pistol. The complainant/ injured Narendra and Sanjay (S/o Om Prakash) the eye witnesses named in the FIR, in their statements U/s 161 Cr.P.C. as well as before the trial court have corroborated the allegations of the FIR about the complicity of the revisionist accused. It is settled law that the testimony of injured witness has greater evidentiary value and it should not be discarded unless there are cogent reasons.

7. The Apex Court in the case of Hardeep Singh Vs. State of Punjab AIR 2014 Supreme Court page 1400 has prescribed the standard of evidence required for exercising powers under section 319 Cr.P.C. The relevant paras 98 and 99 are as follows:

"98. Power under Section 319, Cr.P.C. is a discretionary and an extra-ordinary 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."

"99. Thus, we hold that though only a prima face 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."

In the case of Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC page 706 the Apex Court has reiterated the principles laid down in Hardeep Singh's case. The relevant para no. 13 is quoted below:

"13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."

In Rajesh and ors vs.State of Haryana, (2019) 6 SCC 368 wherein informant named 10 persons for attempt to murder of his son and another with specific allegations against all the accused. The Investigating Officer submitted his report U/s 173 (2) Cr.P.C. against four accused only, no challan filed against six accused (appellants). The trial proceeded against four accused only. During trial, P.W.-1 (complainant) and P.W.-2 (injured witness) specifically stated about the overacts by the accused appellants and role played by them. An application for proceeding against them under section 319 Cr.P.C. was allowed by the trial court. The High Court dismissed the revision. The Apex Court held that, "the appellants herein are also named in the FIR, in the deposition before court, P.W. 1 & 2 have specifically stated against appellants and specific roles attributed to them, on the basis of the same, the persons against whom, no charge-sheet is filed can be summoned to face the trial, no error has been committed by the courts below to summon the appellants therein to face the trial in exercise of power U/s 319 Cr.P.C.”

8. So applying the test laid down by the Apex Court on the present set of facts, it is clear that there is strong evidence than mere probability of the complicity of the accused in the form of testimony of injured witness as well as eye witness named in the FIR. In comparison to it the the evidence on the basis of which the Investigating Officer has exonerated the revisionist accused is of a very weak nature. There is sufficient and cogent evidence on record 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 un-rebutted would led to conviction and it pass the test as laid down by the Apex Court.

9. The learned trial court with a detailed and reasoned order has allowed the application. The learned trial court has narrated the entire facts, evidence and other material available on record and the proposition of law on the point and thereafter has given the finding that there is sufficient ground to exercise the powers U/s 319 Cr.P.C. and has passed the impugned summoning order. There is no illegality or infirmity in the impugned summoning order. It is just and proper.

10. Accordingly, the revision is devoid of merits and is hereby dismissed.