2 1/ Petitioners have filed this criminal revision under Section 397 of Cr.P.C. being aggrieved by the impugned order dated 24.3.2023 passed in Sessions Trial No.412/2018 by the 2nd Addl. Sessions Judge, Indore, whereby an application under Section 319 of Cr.P.C. filed by the respondents No.2 and 3/complainants has been allowed and petitioners have been summoned to face trial with the other co-accused persons for the offence punishable under Section 420 , 467 , 468 , 471 , 120-B , 506-B of the Indian Penal Code (in short " IPC ").

2/ The facts leading to filing of the present revision are that respondents No.2 and 3/complainants have submitted a written complaint on 18.7.2017 before the P.S. Khajrana, Indore by stating that they had purchased the land bearing Survey No.124 and 125/1 area 1.287 hectare situated at Khajrana, Indore in the year 2014 by way of registered sale deed. But accused Rajesh Rathore has prepared a forged sale agreement dated 29.6.2015 regarding the aforesaid land and started selling plots to the different persons. When they tried to stop the accused Rajesh Rathore, then he along with the other co-accused Bheem Yadav, Pintu Pal, Rajendra Tiwari and Harish Parichay threatened them to kill. Accordingly offence has been registered at Crime No.528/2017 against the accused Rajesh Rathore, Bhimsingh, Chandar, Vikky, Pintu Chapta, Harish Parichay and Rajendra Tiwari for the offence punishable under Section 420 , 467 , 468 , 471 , 120-B , 506-B of IPC. After completion of investigation, charge sheet has been filed before the JMFC, Indore and the case has been committed to the Sessions Court and later on it has been transferred to the 2nd ASJ, Indore.

3/ Trial Court framed the charges against the Rajesh Rathore and other Signature Not Verified Signed by: TRILOK SINGH SAVNER co-accused persons. On 17.3.2023 statement of respondent No.2 Yusuf S/o Signing time: 20-Apr-23 11:38:03 AM Nawab Shah and respondent No.3 Yunus S/o Yusuf have been recorded as 3 PW-1 and PW-2. Respondent No.2 in his statement first time mentioned the name of the petitioners and stated that petitioners with the other co-accused persons had threatened to them when he along with the respondent No.3 was walking on the disputed land. On the same day i.e. 17.3.2023 respondent No.2 has submitted an application under Section 319 of Cr.P.C. to implicate the petitioners as additional accused in this case. Thereafter trial Court vide order dated 24.3.2023 has allowed the said application and issued summons to the petitioners to face the trial with the other co-accused persons for the offence punishable under Section 420 , 467 , 468 , 471 , 120-B , 506-B of IPC.

4/ Being aggrieved by the impugned order, the petitioners have filed this revision before this Court.

5/ Learned counsel for the petitioners submits that name of the petitioners are not mentioned in the FIR and in the statement of the respondents No.2 & 3 under Section 161 of Cr.P.C. FIR has been lodged on the basis of the written complaint dated 18.7.2017, but in which complainant has not stated anything against the petitioners. Petitioners are the only witness of the alleged sale agreement which got examined by the State Examiner of Questioned Documents, Bhopal and by report dated 26.12.2017 and 26.3.2018 opined that the signature of the seller, purchaser and witnesses of the agreement dated 29.6.2015 are genuine and signature of the seller on possessions receipt are forged. Petitioners have no concern with the second part i.e. possessions receipt. They are not the witness of the delivery of possession. It was written subsequently. The alleged sale agreement dated 29.6.2015 has not been Signature Notproduced Verified and marked in the evidence of respondents No.2 and 3. The said Signed by: TRILOK SINGH written complaint was not subject matter of the investigation. Petitioners have SAVNER Signing time: 20-Apr-23 11:38:03 AM 4 been falsely implicated to setup a new case in place of existing case of the prosecution, which is not permissible under the law. During the investigation, investigating officer did not file any evidence against the petitioners. The trial Court without examining the handwriting expert report, has committed error in holding that the opinion regarding the forged signature is against the petitioners, despite that expert has given the opinion in favour of the petitioners. Impugned order passed by the trial Court is contrary to the law and facts on record. Hence, he prays that the impugned order dated 24.3.2023 and application under Section 319 of Cr.P.C. filed by the respondents No.2 and 3 be dismissed.

6/ Per contra, learned counsel for the respondent No.1/State opposed the prayer and prayed for its rejection.

7/ Counsel for the respondents No.2 and 3 also opposed the prayer and prayed for its rejection by submitting that the trial Court after considering the facts and evidence available on record has passed the right order, therefore, there is no ground to set aside the aforesaid order.

8/ Both the parties heard at length and perused the entire record with due care.

9/ Before considering the merits of the matter, it is quite necessary to refer the Section 319 of Cr.P.C. which reads as under:-

10/ From bare reading of Section 319 of Cr.P.C., it is crystal clear that power under Section 319 of Cr.P.C. can be exercised by the learned trial Court at any stage during the trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused persons.

11/ From perusal of the impugned order and other documentary evidence available on record, it appears that respondents No.2 and 3 filed a written complaint (Annexure A/2) before the P.S. Khajrana and on the basis of the said complaint, FIR (Annexure A/3) has been lodged against the accused Rajesh Rathore, Bheem Singh, Chandar, Vikky, Pintu Chapta, Harish Parichay and Rajendra Tiwari for the offeence under Section 420, 467, 468, 471, 120-B and 506 of IPC and thereafter investigating officer has recorded the statement of Yusuf S/o Nawab Shah, Yunus S/o Yusuf, petitioners Nasir Shah and Zakir Shah and after investigation charge sheet has been filed on 28.6.2018, but respondents No.2 and 3 have not stated anything against the petitioners in their Signature Not Verified Signed by: TRILOK SINGH SAVNER written complaint, FIR and statement recorded under Section 161 of Cr.P.C.

and in the charge sheet, petitioners were cited as prosecution witness. It is clear that investigating officer has not found any evidence of involvement of the petitioners in the aforesaid crime.

12/ Respondents No.2 and 3 have been partly examined before the trial Court as PW-1 and PW-2 and their statements are Annexure A/14 and A/15. During the recording of their deposition, they have exhibited certain documents marked as Ex.P/1 to P/24, but they did not mark the agreement to sale in question. It is also remarkable that no cross-examination has been conducted in respect of statement of the examination-in-chief of PW-1 and PW-2 before passing the impugned order. Respondents No.2 and 3 during their deposition marked complaint as Ex.P/5 to P/24 but these are not the documents which were produced during the investigation before the investigating officer. It is also noteworthy that at the time of framing of the charge, trial Court has framed charges against the co-accused Rajesh Rathore and other co-accused persons and at that time trial Court did not find any evidence against the petitioners for their any type of involvement in the aforesaid offence.

13/ It is also remarkable that during the investigation specimen signature of seller, purchaser and witnesses of the alleged sale agreement had been obtained and got examined from the State Examiner of Questioned Documents, Bhopal and by his report dated 26.12.2017 and 26.3.2018 it has been opined that signature of the seller, purchaser and witnesses on the agreement dated 29.6.2015 are genuine, but signature of the seller Rajesh Rathore on the possession receipt is found to be forged. From perusal of the agreement to sale (original copy of the Annexure A/4 on Page 40), it appears that petitioners have Signature Not Verified no concern with the second part i.e. possession receipt because they are not the Signed by: TRILOK SINGH SAVNER Signing time: 20-Apr-23 11:38:03 AM witness of the delivery of possession and possession receipt was written 7 subsequently. Respondents No.2 and 3 in their examination before the trial Court have not produced and marked exhibit the original agreement to sale dated 29.6.2015. Therefore, findings given by the trial Court does not appears to be just and proper.

14/ The Hon'ble Apex Court in the case of Mani Pushpak Joshi Vs. State of Uttarakhand and another reported in (2019) 3 SCR 819 held as under:-

15/ The Hon'ble Apex Court in the case of Brijendra Singh and others Vs. State of Rajasthan reported in (2017) 3 SCR 374 held as under:-

16/ The Hon'ble Apex Court in the case of Krishnappa Vs. State of Karnataka , (2004) 7 SCC 792 has held that it has to be kept in view that the power under Section 319 of the Code is discretionary and has to be exercised only to achieve criminal justice and that the Court should not turn against another whenever it comes across evidence connecting the other person also with the offence. The provisions of Section 319 of the Code are required to be used sparingly. The summoning of the appellants after the expiry of 8 years, on the facts and circumstances of the case and having regard to the nature of the depositions of the witnesses which have been examined by us, is not called for.

17/ All these citations are fully applicable in this matter. 18/ On the basis of the foregoing discussion, it is clear that the petitioners' names are not mentioned in the written complaint, FIR, charge sheet and the statement of respondents No.2 and 3 recorded under Section 161 of Cr.P.C. Investigating officer during the investigation has not found any material Signature Not Verified Signed by: TRILOK SINGH SAVNER or involvement of the petitioners in the said offence. During the framing of the Signing time: 20-Apr-23 11:38:03 AM 9 charge, trial Court has not found any material for framing the charge for implicating the petitioners in the aforesaid offence. Petitioners are neither seller nor purchaser, nor beneficiaries. They are only the witnesses of the said agreement, but they are not the witness of the possession receipt, which was later on allegedly written by the co-accused Rajesh Rathore and other co- accused persons. The evidence brought on record during the trial does not prima facie show involvement of the petitioners in the aforesaid offence. The material brought on record is not sufficient to summon the petitioners as an accused in the present case. No prima facie case is made out against the petitioners, which warrants their trial for the offences pending before the trial Court. Learned trial Court has committed grave error in not considering that the written complaint taken on record under Section 91 of the Cr.P.C. are made after the registration of FIR and the said complaints are not the subject matter of the investigation, therefore, impugned order passed by the trial Court cannot stand judicial scrutiny.

19/ Consequently this Criminal Revision is allowed. The impugned order dated 24.3.2023 passed by the trial Court to summon the petitioners under Section 319 of Cr.P.C. is set aside and the application under Section 319 of Cr.P.C. is also dismissed.

C.C. as per rules.

(ANIL VERMA) JUDGE trilok Signature Not Verified Signed by: TRILOK SINGH SAVNER Signing time: 20-Apr-23 11:38:03 AM