Surinder Gupta, J. - (1.) THIS revision petition is directed against the order dated 04.06.2014 passed by learned Sessions Judge, Karnal whereby he allowed the application under Section 319 Code of Criminal Procedure (for short 'Cr.P.C.') moved by the prosecution and the petitioner was summoned to face trial for the offences punishable under Sections 120 -B, 148, 307, 325, 323, 506, 285 read with Section 149 Indian Penal Code (for short 'IPC').
(2.) A case bearing FIR No. 537 dated 17.07.2013 was registered at Police Station Sadar Karnal on the statement of complainant Rajesh Kumar. The occurrence took place on 17.07.2013. The relevant part of the FIR relating to the occurrence as incorporated in Annexure P -1 is as follows: - Today I along with Sandeep son of Kalu Ram caste Nai, resident of Sisoli, PS Bhorkalan, District Muzaffar Nagar and now resident of Gali No. 20 Karan Vihar, Karnal, Sushil Rana son of Hukam Chand, resident of village Amritpur, at present PS Madhuban at present Karan Vihar, Karnal and Amit Luthra son of bal Kishan resident of E -277, Arjun Gate, Karnal now resident of Factory Belt, Prithvi Vihar, Karnal, were making the foundation of plot at Prithvi Vihar according to the agreement to sell and we had employed some labourers. We all four persons were standing near labourer and Mason whose addresses are not known. Today time about 1.30 PM, 5 to 6 persons came in a Swift Car. Their names are Mahesh son of Hukam Chand, resident of Jaani and Virender resident of Sisolia and elder son of Prem Singh Panchal and two other unknown persons came there. Virender was possessed with rifle and the other boys were possessed with binda of kassi and in the meantime, four boys followed Virender having kassi binda in their hands. Immediately after coming, Virender touched the rifle at my stomach and said 'teach him a lesson for making the foundation in this plot' and at the same time, the accomplice of Virender attacked my friends with their bindas of kassi and Virender gave a blow on the back side of my head with butt of his rifle and caused another injury at my right arm with his rifle and Virender ran away from the spot with his accomplice making fire from his rifle and we had a narrow escape. Virender and others with their common intention caused injuries to us at the behest of Prem Panchal and Virender and others threatened to kill us. I have got recorded my statement, heard and found it correct. Sd/ - Rajesh Kumar, 17.07.2013. The police presented the final report in which the petitioner was not challaned. The trial Court after recording the statement of complainant and on the basis of evidence on file, ordered the summoning of the petitioner as additional accused on the application of the prosecution. The operative part of the order of trial Court is as follows: - In his statement Ex. P2, complainant Rajesh did not mention the name of Raju as one of the assailants, but he mentioned that elder son of Prem Singh Panchal was one of the assailants. Raju, who has been sought to be summoned as additional accused is the same person, who is elder son of Prem Singh Panchal. Complainant Rajesh when appeared in the witness box has mentioned the name of Raju as one of the assailants. Injured Sushil Kumar in his statement under Section 161 Cr.P.C. also named Raju son of Prem Singh Panchal, as one of the assailants and he has alleged that he gave a wooden log of the kassi in his head and thus caused injuries. Prima facie there is evidence that said Raju son of Prem Singh Panchal was also one of the members of the unlawful assembly alongwith co -accused, who are facing trial. As such prima facie offences punishable under Sections 120 -B, 148, 307, 325, 323, 506, 285 read with Section 149 IPC are made out against accused Raju son of Prem Singh Panchal. As such he be summoned as an additional accused to face trial for the aforesaid offences for 25.7.2014, through non -bailable warrants of arrest.
(3.) LEARNED counsel for petitioner argues that the petitioner was not named in the FIR. During police investigation, he was found innocent. The statement of complainant recorded by the trial Court was in contradiction to the statement recorded by the police at the time of recording the FIR. The trial Court has also taken into account the statement of another injured of the occurrence namely Sushil Kumar recorded under Section 161 Cr.P.C. He has relied upon the observations of the Hon'ble Supreme Court in case of Babubhai Bhimabhai Bokhiria & Anr. Vs. State of Gujarat & Ors., 2014(3) Criminal Court Cases 194, wherein it has been observed that while recording its satisfaction under Section 319 Cr.P.C., the Court has to satisfy itself on the basis of evidence led during trial. On the strength of the above argument, learned counsel for the petitioner has argued that the statement of injured Sushil Kumar recorded by the police under Section 161 Cr.P.C. could not be taken into consideration by the trial Court while summoning the petitioner as an additional accused.;