Arvind K.Tripathi, J. - (1.) HEARD learned counsel for the revisionists, learned A.G.A., and perused the record.
(2.) THE present criminal revision has been filed against the impugned judgment and order dated 17.12.2008 passed by the Special/Additional Sessions Judge, Fast Track Court No. 1, Saharanpur in Special Sessions Trial No. 258/2008 (State v. Muzammil) under Sections 452, 323/34, 504, 506, I.P.C. and 3 (1) (x) SC/ST (Prevention of Atrocities) Act summoning the petitioners in exercise of power under Section 319, Cr.P.C. to face the trial along with accused who has already been charge-sheeted. Counsel for the revisionists submitted that there was no new ground before the Court concerned except what has already been stated in the F.I.R. and during investigation hence the application under Section 319, Cr.P.C. was liable to be rejected but the applicant has wrongly been summoned. There was allegation in the F.I.R. that co-accused, Muzammil and the applicants beaten with, saria and lathi-danda. However, the charge-sheet was submitted only against co-accused, Muzammil. Thereafter the statement of PW-1 and PW-2 was recorded. The PW-1 was the eye-witness who has made allegation in examination-in-chief. All the four persons including the applicants abused and assaulted injured Ashok. The PW-2 Ashok who was injured witness has also stated in his statement that all the four persons including the applicant assaulted with saria and lathi-danda. The applicants were armed with lathi- danda. From perusal of the injury report, it is clear that there are six injuries and all the injuries are possible by saria and lathi-danda. Since there is an identical allegation against all the four persons including the co-accused, Muzammil against whom the charge-sheet has been submitted and trial is pending hence no illegality was committed by the Trial Court in summoning the petitioner, if the Trial Court was satisfied in view of the evidence that there was possibility of conviction. The Trial Court has summoned the applicants after satisfaction, hence I am not inclined to interfere in the summoning order under Section 319 Cr. PC.
(3.) COUNSEL for the revisionists relied the judgment of the Supreme Court reported in JT2007 (11) SC 438, Guria @ Tabassum Tauquir and others v. State of Bihar and another. He has specially relied upon paras 13,14,15 and 16 of the aforesaid judgment which are quoted herein below: "13. On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial. The trial Court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. Of course, as evident from the decision reported in Sohan Lal and others v. State of Rajasthan, JT 1990 (3) SC 599, the position of an accused who has been discharged stands on a different footing. 14. Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it, if it is satisfied that any person other than accused has committed an offence and he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates evidence of witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. [See (Lok Ram v. Nihal Singh and another), JT 2006 (4) SC 464]. 15. The factual position noted above goes to show that there was no new material after examination of the accused persons under Section 313 Cr.P.C. which threw any light on the incident. The evidence of PWs 4 and 5 is not the basis of the application under Section 319, Cr.P.C. as they have not spoken anything about the appellants. 16. As noted above, PWs 1,2 and 3 have stated about the presence of the appellants without any definite role being ascribed to them in their evidence recorded on 16.4.2001, 8.1.2002 and 29.4.2002. If really the complainant had, any grievance about the appellants being not made accused, that could have, at the most, be done immediately after the recording of evidence of PWs 1, 2 and 3. That has apparently not been done. Additionally, after the charge-sheet was filed, a protest petition was filed by the complainant which was dismissed. No explanation whatsoever has been offered as to why the application in terms of Section 319, Cr.P.C. was not filed earlier. The revisional Court did not deal with these aspects and came to an abrupt conclusion that all the PWs have stated that the appellants have committed overt acts and their names also find place in the protest petition. Undisputedly, no overt act has been attributed to the appellants by PWs 1,2 and 3. Nothing has been stated about the appellants by PWs 4 and 5. There was mention of their names in the F.I.R. A protest petition was filed. Same was also rejected. These could not have formed the basis of accepting the prayer in terms of Section 319, Cr.P.C. The High Court's order, to say the least, is bereft of any foundation. It merely states that there are materials against the petitioners before it. It also did not deal with various aspects highlighted above." From perusal of the aforesaid judgment, it is clear that PWs 1, 2 and 3 have stated only about presence of the appellants in that case without any definite role being scribed to them in their evidence. Hence the aforesaid judgment is not supporting the case of the applicants and even in the aforesaid judgment, the Apex Court has observed that any person not being the accused before the Trial Court can be summoned to face the trial if the Trial Court is satisfied at any stage of the proceeding on the evidence adduced before the Court. The discretion must be exercised judicially. Even such persons who had initially been named in the F.I.R. as an accused, who were not charge-sheeted can be added to face the trial and the word "evidence" under Section 319, Cr. P.C. contemplates the evidence, of witnesses given before the Court. Hence the Trial Court can exercise power under Section 319 Cr.P.C. on the basis of the evidence adduced before the Court and not on the basis of the material available in the charge- sheet or the case diary because such materials do not constitute evidence.;