- (1.)THE instant petition under Section 482 Cr. P. C. is directed against the order dated 21. 1. 2006 passed by the learned Addl. Sessions Judge, Dausa in Criminal Revision Petition No. 40/2005 whereby the revision petition of the accused petitioner against the order dated 23. 3. 2005 passed by the learned Addl. Chief Judicial Magistrate, Bandikui has been allowed.
(2.)THE relevant facts are that the petitioner made a report at Police Station Bandikui against accused respondents and the co- accused persons. An FIR being No. 462/2003 came to be registered on its basis for the offences under Sections 447, 323, 341 and 325 I. P. C. After investigation challan was filled against co- accused persons viz. Om Prakash, Munni Devi, Manohar Lal and Mukesh under Sections 341, 323, 447 and 325 I. P. C. No challan was filed against Davendra and Naval. After recording of the statements of seven witnesses, the learned APP filed an application under Section319 Cr. P. C. In reply, the accused non- petitioners submitted that co-accused persons have been wrongly implicated. THEir involvement in the alleged offences is not proved from the statements recorded under Section 161 Cr. P. C. THEre are serious contradictions in the statements regarding their involvement in the occurrence. After hearing both the parties, the learned Magistrate accepted the application under Section 319 Cr. P. C. and by his order dated 23. 3. 2005 took cognizance against non-petitioners Davendra and Naval non- petitioner Nos. 2 and 3 filed a revision which came to be decided by the learned Addl. District & Sessions Judge, Bandikui by his order dated 21. 1. 2006. THE revision was allowed and the order passed by the learned court below dated 23. 3. 2005 was quashed. Hence, this petition by the petitioner-complainant.
Learned counsel for the petitioner-complainant has contended that the impugned order dated 21. 1. 2006 being based on surmises and conjectures is illegal and contrary to the law and the facts on record which has resulted into failure of justice. According to him, the names of Naval and Davendra indicating their involvement in the occurrence are clearly mentioned in the FIR along with other accused persons who have been sent up for trial. The witnesses have also supported the FIR in their statements recorded in the court and have proved their participation in the alleged incident. The learned court below has illegally and without jurisdiction embarked upon the appreciation of evidence in its revisional jurisdiction which is not permissible at this stage. The revisional court cannot and ought not to interfere lightly with the discretion of the trial court.

Relying upon Smt. Rukhsana Khatoon vs. Sakhawat Hussain & Ors. AIR 2002 SC 2342, it is contended by him that the persons named in the FIR as accused, but not charge-sheeted can be summoned and arraigned as additional accused under Section 319 Cr. P. C. particularly when the evidence of the prosecution witnesses corroborates the role of these persons in the alleged incident.

In the above case, application under Section 319 Cr. P. C. was made stating that the names of four accused persons find mention in the FIR and the evidence of PW-1 Mohd. Alam and PW-2 Kamal Singh corroborates the role of those persons. The learned Sessions Judge allowed the application and ordered summoning of the above four accused persons to stand trial for the offences under Sections 147, 148, 149 and 302 IPC, but the High Court set aside the said order by holding that Section 319 Cr. P. C. cannot be invoked by the court when the persons mentioned in the FIR are not charge-sheeted. On the matter being taken to the Apex Court, it was held that the impugned order was on the face of it illegal and against the provisions of Section 319 Cr. P. C. Accordingly, the same was set aside and the order of the learned trial court was upheld.

It is further contended that the learned revisional court has allowed the revision petition simply for the reason that the application under Section 319 Cr. P. C. was belated in as much as most of the material witnesses had already been examined. It was also submitted that there was no compelling duty of the court to proceed against other persons who were not charge-sheeted.

(3.)LEARNED PP for the State has supported the case of the complainant-petitioner. However, learned counsel for non- petitioner Nos. 2 and 3 has seriously contested the contentions of the learned counsel for the petitioner. He has submitted that the names of these accused persons are not corroborated by the prosecution witnesses in their statements recorded under Section 161 Cr. P. C. and there are glaring contradictions in the evidence of the prosecution witnesses and their police statements.
I have carefully considered the rival submissions made at the bar and have perused the record as well as the impugned orders.

The names of these non-petitioners indicating their participation in the alleged incident is mentioned in the FIR Ex. P-1. Sitaram PW-1, Smt. Satto PW-2, Dwarka Prasad PW-3, Mahesh PW-5, Smt. Kishni PW-6 and Pooran PW-7 have all corroborated the FIR and have shown the participation of non-petitioner Nos. 2 and 3 in the alleged occurrence.