MOHD KALEEM Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri V.M. Jaidi, learned Senior Advocate, assisted by Sri M.J. Akhtar and Sri Imran Khan, learned counsel for the revisionist, Sri Satish Trivedi, learned Senior Advocate, assisted by Sri Sheshadri Tivedi, learned counsel for the opposite party No.2 and 3 and learned A.G.A. for the State.

(2.) This criminal revision has been preferred against the order dtd. 30/11/2021, passed by the learned Additional Sessions Judge, Court No.1, Muzaffarnagar, in Session Trial No.414 of 2018 (State vs. Dilshad and Others), under Ss. 307, 302, 120-B, 147, 148 and 149 IPC, police station Kotwali Nagar, Muzaffarnagar, whereby, the application filed by the informant/revisionist Mohd Kaleem, under Sec. 319 Cr.P.C., for summoning of the opposite party No.2 and 3, namely, Rajendra and Mausam, has been rejected.

(3.) It has been argued by learned Senior Counsel for the revisionist that the impugned order is against facts and law and thus, liable to be set aside. The Trial Court failed to follow the procedure for summoning the accused in exercise of its power under Sec. 319 Cr.P.C. by inviting objections from the accused persons. It is well settled that while exercising powers under Sec. 319 Cr.P.C. for summoning the accused, who is not charge-sheeted, the evidence collected during investigation and the evidence produced by the prosecution during trial has to be considered. The accused persons have no right to raise objections against application under Sec. 319 Cr.P.C. Learned Senior Counsel submitted that during trial, PW-1. Mohd. Kaleem and other witnesses, namely, P.W-6 Khaleel and P.W-7 Tazeem have clearly stated in their statements regarding involvement of opposite party No.2 and 3 in conspiracy of the alleged incident. The evidence of said witnesses was sufficient for holding their conviction and which is more than a prima facie case against the said opposite party No.2 and 3, thus, a case for summoning the opposite party No.2 and 3 under Sec. 319 Cr.P.C. was made out. The quality of evidence produced by prosecution was higher than that of a prima facie case against the alleged accused persons. The genuineness or reliability of the statements of said witnesses was not to be considered at this stage. Referring to statements of P.W.1. Mohd. Kaleem, P.W.6 Khaleel and P.W.7 Tazeem, it was submitted that in view of their statements before the Trial Court and other facts and circumstances of the matter, a case for summoning of opposite party No.2 and 3 is made out and thus, the Trial Court has committed error by rejecting application of the revisionist/complainant filed under Sec. 319 Cr.P.C. In support of his contentions, learned Senior Counsel for revisionist has placed reliance upon the following case laws:-