# Adesh Tyagi v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 929
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-04
- **Case number:** Application U/S 482. No. 8478 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/adesh-tyagi-v-state-of-u-p-anr-47418
- **Pages:** 10

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power - Section 319 - Power to proceed
against other persons appearing to be
guilty
of
offence
-
doctrine
judex
damnatur cum nocens absolvitur - Judge
is condemned when guilty is acquitted -
Indian Penal Code, 1860 - 489-B - Using
as genuine forged or counterfeit curency -
notes or bank notes - a person whose
name does not appear even in the FIR or
in the charge-sheet or whose name
appears in the FIR and not in the chargesheet, can still be summoned by the court
provided the conditions under the section
319 stand fulfilled.(Para -10 ,12)

Branch manager (PW-1) lodged FIR - against
two accused - accused no. 1 submitted certain
currency notes at the cash counter of bank -
checked by cashier (PW-2) - found to be
counterfeit - enquired from accused no. 1 -
currency notes handed over to him by the
accused no. 2 (applicant ) - chargesheet
submitted against accused no. 1 and not against
accused
no.2
-
application
moved
by
prosecution before trial court - two prosecution
witnesses - taken name of applicant in
examination in chief - evidence available on
record - necessary that accused no.2 be also
tried together with the accused
no.1
-
application allowed - applicant summoned for
trial.

HELD:-The power under Section 319 of the
Code to summon even those persons who are
not named in the charge-sheet to appear and
face trial, being unquestionable and the object
of the provision being not to allow a person who
deserves to be tried to go scot-free by being not
arraigned in the trial inspite of possibility of his
complicity which can be gathered from the
evidence during the course of trial, the order
passed under Section 319 of the Code
summoning the applicant does not contain any
material error so as to warrant inference. (Para
-26 )

Application u/s 482 Cr.P.C. dismissed. (E7)
List of Cases cited:-

## Text

9 All Adesh Tyagi Vs. State of U.P. & Anr.
929
the applicants/ revisionist and the Central
Bureau of Investigation could only be
tested during the trial but at this stage it is
not a case where the proceedings should
have been culminated by discharging the
accused persons. I have gone through the
whole record and have perused the material
within the permissible limits as required for
the purpose of framing of charge, including
the material/ documents, which have been
relied on by learned counsels for the parties
but I am not inclined to accept the
submission that there are no sufficient
grounds in this case to proceed further.
Culmination of trial at the stage of framing
of charge, requires very strong and cogent
grounds and inherent weaknesses in the
version of prosecution apparent on the face
to demonstrate that trial will either result in
failure of justice or will be a futile exercise
or will operate as engines of oppression or
no ingredients of alleged penal offences are
existing. Law leans in favour of trial unless
there are strong, compelling and substantial
grounds to culminate the same. Needless to
say that the falsehood or the truthfulness of
the allegations can only be tested in the
trial. The trial of a criminal case is nothing
but a journey to unearth the truth and this
course can only be disrupted when some
strong, compelling grounds and material is
available, which uproots the prosecution
from its roots and nothing is left for the
prosecution. Unfortunately that is not a
case here. Further discussion of the facts of
the case may effect the fate of trial and
suffice is to say that material available
before the Special Judge was sufficient
enough, on the basis of which charges
under appropriate sections could be framed
against accused persons. The case laws
relied on by applicants and revisionist are
also not helpful to them for the reasons
mentioned herein before.

53. Thus in the considered opinion of
this Court keeping in view all the facts,
circumstances and evidence, as well as the
law placed above, no illegality appears to
have been committed by the Special Judge
by rejecting the prayer of the applicants/
revisionist of their discharge and resultantly
the revision as well as application under
Section 482 Cr.P.C. moved by the
applicants Om Prakash Jaiswal and M/s
Shankar Cables Industries through its
Proprietor and revisionist Shri S. N. Soni is
liable to be dismissed and dismissed
accordingly.

54. Trial court is directed to proceed
with the trial and conclude the same strictly
in accordance with law, with expedition.

55. The observations made herein
above are made only for the purpose of
disposal of these cases and the same shall
not be construed as opinion of this Court on
merits of the case.

56. A copy of this judgment be placed
on record of the Criminal Revision No.
1593 of 2019.
----------
(2021)09ILR A929
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J.

Application U/S 482. No. 8478 of 2021

Adesh Tyagi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rahul Kumar Tyagi
930 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power - Section 319 - Power to proceed
against other persons appearing to be
guilty
of
offence
-
doctrine
judex
damnatur cum nocens absolvitur - Judge
is condemned when guilty is acquitted -
Indian Penal Code, 1860 - 489-B - Using
as genuine forged or counterfeit curency -
notes or bank notes - a person whose
name does not appear even in the FIR or
in the charge-sheet or whose name
appears in the FIR and not in the chargesheet, can still be summoned by the court
provided the conditions under the section
319 stand fulfilled.(Para -10 ,12)

Branch manager (PW-1) lodged FIR - against
two accused - accused no. 1 submitted certain
currency notes at the cash counter of bank -
checked by cashier (PW-2) - found to be
counterfeit - enquired from accused no. 1 -
currency notes handed over to him by the
accused no. 2 (applicant ) - chargesheet
submitted against accused no. 1 and not against
accused
no.2
-
application
moved
by
prosecution before trial court - two prosecution
witnesses - taken name of applicant in
examination in chief - evidence available on
record - necessary that accused no.2 be also
tried together with the accused
no.1
-
application allowed - applicant summoned for
trial.

HELD:-The power under Section 319 of the
Code to summon even those persons who are
not named in the charge-sheet to appear and
face trial, being unquestionable and the object
of the provision being not to allow a person who
deserves to be tried to go scot-free by being not
arraigned in the trial inspite of possibility of his
complicity which can be gathered from the
evidence during the course of trial, the order
passed under Section 319 of the Code
summoning the applicant does not contain any
material error so as to warrant inference. (Para
-26 )

Application u/s 482 Cr.P.C. dismissed. (E7)
List of Cases cited:-

1. Hardeep Singh & ors. Vs St. of Punj., (2014)
3 SCC 92

2.
S. Mohammed
Ispahani
Vs
Yogendra
Chandak & rs., (2017) 16 SCC 226

3. Rajesh & Ors. Vs St. of Har., (2019) 6 SCC
368

4. Saeeda Khatoon Arshi Vs St. of U.P. & anr.,
(2020) 2 SCC 323

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Rahul Kumar Tyagi,
learned counsel for the applicant and Sri
Pankaj Saxena, learned AGA-I appearing
for the State-opposite party.

2. The present application under
Section 482 of the Code of Criminal
Procedure1 has been filed to quash the
judgment and order dated 27.02.2018
passed by the First Additional Session
Judge, Baghpat in Application 28-B in
Sessions Trial No. 41 of 2014 (State vs.
Jahangir) arising out of Case Crime No.
417 of 2013, under Section 489-B Indian
Penal
Code2,
P.S.
Khakera,
District
Baghpat.

3. The proceedings of the case were
initiated
pursuant
to
an
FIR
dated
22.11.2013 registered as Case Crime No.
419 of 2013, under Section 489-B of the
Penal Code at P.S. Khakera, District
Baghpat. The said FIR was lodged by the
Branch Manager, State Bank of India,
Khakera, Baghpat. Among the two accused
named in the FIR the applicant's name was
mentioned as accused No.2. The incident as
described in the FIR is that on 22.11.2013
at about 3:00 p.m. the accused no.1
submitted certain currency notes at the cash
9 All Adesh Tyagi Vs. State of U.P. & Anr.
931
counter of the Bank which upon being
checked by the cashier were found to be
counterfeit and upon an inquiry from the
said accused no.1 he stated in writing that
the currency notes had been handed over to
him by the accused no.2, applicant herein.

4. Upon investigation, a charge sheet
dated 10.01.2014 was submitted against the
accused no.1, whereupon cognizance was
taken on 16.01.2014. During the course of
trial, the first informant (Bank Manger)
examined himself as PW-1 and reiterated
the FIR version by stating that upon the
currency notes having been found to be
counterfeit,
the
accused
no.1
was
questioned and he stated that the said
counterfeit currency notes had been handed
over to him by the accused no.2.

5. The cashier of the Bank, who
appeared as PW-2, during the course of
trial also corroborated the FIR version by
stating that upon the currency notes
having been found to be counterfeit the
matter was inquired from the accused
no.1 who clearly stated that the currency
notes had been handed over to him by the
accused no.2.

6. An application dated 31.08.2017
was moved by the prosecution before the
trial court stating that despite the two
prosecution witnesses having taken the
name of the applicant herein in their
examination in chief and also the name of
the said accused having specifically been
mentioned in the FIR, the police report
did not mention his name and accordingly
on the basis of evidence available on
record it was necessary that the said
accused be also tried together with the
other accused. The aforesaid application
came to be allowed by the Additional
Sessions Judge First, Baghpat by order
dated 27.02.2018, wherein upon noticing
the FIR version and also the statements of
the two prosecution witnesses and the
necessary legal provisions under Section
319 of the Code the application has been
allowed and the applicant herein has been
summoned for trial.

7. Learned counsel for the applicant
has sought to assail the aforesaid order
passed by the trial judge summoning the
applicant in exercise of powers under
Section 319 of the Code by referring to the
statements recorded during the course of
investigation to contend that since the
Investigating Officer did not find sufficient
material against the applicant and no
charge sheet was submitted against him,
there was no further material on the basis
of which the trial court could have
summoned the applicant in exercise of
powers under Section 319 of the Code. He
placed reliance upon the Constitution
Bench judgment of the Supreme Court in
Hardeep Singh and others vs. State of
Punjab3, to support his submission.

8. Learned A.G.A.-I has controverted
the submissions made by the counsel for
the applicant by drawing attention to the
fact that the applicant herein was named in
the FIR and looking to the facts as narrated
in the FIR, the applicant would be the
prime accused. It is further pointed out that
the testimony of PW-1 and PW-2 during
the course of trial made it imperative for
the court below to invoke the powers under
Section 319 of the Code to summon the
applicant for trial. It is also contended that
the testimony before the trial judge would
be required to be given more weight than
the statements recorded by the investigating
officer during the course of investigation.
Learned A.G.A.-I has also sought to place
reliance upon the Constitution Bench
932 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment in the case of Hardeep Singh
(supra).

9. In order to appreciate the rival
contentions the provisions of Section 319
of the Code are required to be referred to.
Section 319 of the Code reads as follows :-

"319.Power to proceed against
other persons appearing to be guilty of
offence.-

(1) Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence
which
he
appears
to
have
committed.

(2) Where such person is not
attending the Court, he may be arrested or
summoned, as the circumstances of the
case may require, for the purpose aforesaid.

(3) Any person attending the
Court, although not under arrest or upon a
summons, may be detained by such Court
for the purpose of the inquiry into, or trial
of, the offence which he appears to have
committed.

(4) Where the Court proceeds
against any person under sub-section (1),
then-

(a) the proceedings in respect of
such person shall be commenced afresh,
and witnesses re-heard;

(b) subject to the provisions of
clause (a), the case may proceed as if such
person had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced."

10. The ambit and scope of the
powers of the Magistrate under Section 319
of the Code were considered in the
Constitution
Bench
judgment
of
the
Supreme Court in Hardeep Singh (supra).
Referring to the object of the provision it
was held that the object of the provision is
that the real culprit should not get away
unpunished and in a situation where the
investigating agency for any reason does
not array one of the real culprits as an
accused, the court is not powerless in
calling the said accused to face trial. It was
stated thus :-

"8.The
constitutional
mandate
under
Articles
20
and
21
of
the
Constitution of India, 1950 provides a
protective
umbrella
for
the
smooth
administration of justice making adequate
provisions to ensure a fair and efficacious
trial so that the accused does not get
prejudiced after the law has been put into
motion to try him for the offence but at the
same time also gives equal protection to
victims and to society at large to ensure
that the guilty does not get away from the
clutches of law. For the empowerment of
the courts to ensure that the criminal
administration of justice works properly,
the law was appropriately codified and
modified by the legislature under CrPC
indicating as to how the courts should
proceed in order to ultimately find out the
truth so that an innocent does not get
punished but at the same time, the guilty
are brought to book under the law. It is
these ideals as enshrined under the
Constitution and our laws that have led to
several decisions, whereby innovating
methods and progressive tools have been
9 All Adesh Tyagi Vs. State of U.P. & Anr.
933
forged to find out the real truth and to
ensure that the guilty does not go
unpunished.

9.The presumption of innocence
is the general law of the land as every man
is presumed to be innocent unless proven
to
be
guilty.
Alternatively,
certain
statutory presumptions in relation to
certain class of offences have been raised
against
the
accused
whereby
the
presumption of guilt prevails till the
accused discharges his burden upon an
onus being cast upon him under the law to
prove himself to be innocent. These
competing theories have been kept in mind
by the legislature. The entire effort,
therefore, is not to allow the real
perpetrator of an offence to get away
unpunished. This is also a part of fair trial
and in our opinion, in order to achieve this
very end that the legislature thought of
incorporating provisions of Section 319
Code of Criminal Procedure. It is with the
said object in mind that a constructive and
purposive interpretation should be adopted
that advances the cause of justice and does
not dilute the intention of the statute
conferring powers on the court to carry out
the abovementioned avowed object and
purpose
to
try
the
person
to
the
satisfaction of the court as an accomplice
in the commission of the offence that is
the subject matter of trial.

xx

12. Section 319 Code of Criminal
Procedure springs out of the doctrine judex
damnatur cum nocens absolvitur (Judge is
condemned when guilty is acquitted) and
this doctrine must be used as a beacon light
while explaining the ambit and the spirit
underlying the enactment of Section 319
CrPC.

13. It is the duty of the court to do
justice by punishing the real culprit. Where
the investigating agency for any reason
does not array one of the real culprits as an
accused, the court is not powerless in
calling the said accused to face trial. The
question remains under what circumstances
and at what stage should the court exercise
its power as contemplated in Section 319
CrPC.

xxx

17. Section 319 CrPC allows the
court to proceed against any person who is
not an accused in a case before it. Thus, the
person against whom summons are issued
in exercise of such powers, has to
necessarily not be an accused already
facing trial. He can either be a person
named in Column 2 of the chargesheet filed
under Section 173 Code of Criminal
Procedure or a person whose name has
been disclosed in any material before the
court that is to be considered for the
purpose of trying the offence, but not
investigated. He has to be a person whose
complicity may be indicated and connected
with the commission of the offence.

18. The legislature cannot be
presumed to have imagined all the
circumstances and, therefore, it is the duty
of the court to give full effect to the words
used by the legislature so as to encompass
any situation which the court may have to
tackle while proceeding to try an offence
and not allow a person who deserves to be
tried to go scot free by being not arraigned
in the trial in spite of possibility of his
complicity which can be gathered from the
documents presented by the prosecution.

19.
The
court
is
the
sole
repository of justice and a duty is cast upon
934 INDIAN LAW REPORTS ALLAHABAD SERIES
it to uphold the rule of law and, therefore, it
will be inappropriate to deny the existence
of such powers with the courts in our
criminal justice system where it is not
uncommon that the real accused, at times,
get away by manipulating the investigating
and/or the prosecuting agency. The desire
to avoid trial is so strong that an accused
makes efforts at times to get himself
absolved even at the stage of investigation
or inquiry even though he may be
connected with the commission of the
offence."

11. As regards the degree of
satisfaction required for invoking the
powers under Section 319 of the Code, it
was held that the test that has to be applied
is one which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to an extent
that the evidence, if goes unrebutted, would
lead to conviction. It was observed as
follows :-

"105. Power under Section 319
Code
of
Criminal
Procedure
is
a
discretionary and an extra-ordinary power.
It is to be exercised sparingly and only in
those cases where the circumstances of the
case so warrant. It is not to be exercised
because the Magistrate or the Sessions
Judge is of the opinion that some other
person may also be guilty of committing
that offence. Only where strong and cogent
evidence occurs against a person from the
evidence led before the court that such
power should be exercised and not in a
casual and cavalier manner.

106. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court not
necessarily tested on the anvil of CrossExamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied
is one which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to an extent
that the evidence, if goes unrebutted, would
lead to conviction. In the absence of such
satisfaction, the court should refrain from
exercising power under Section 319 Code
of Criminal Procedure. In Section 319
Code of Criminal Procedure the purpose of
providing if "it appears from the evidence
that any person not being the accused has
committed any offence" is clear from the
words "for which such person could be
tried together with the accused." The words
used are not "for which such person could
be convicted". There is, therefore, no scope
for the Court acting under Section 319
Code of Criminal Procedure to form any
opinion as to the guilt of the accused.

12. The question as to in what
situations the power under the section can
be exercised in respect of persons not
named in the FIR or named in the FIR, but
not charge-sheeted or discharged was also
considered, and it was held that a person
whose name does not appear even in the
FIR or in the charge-sheet or whose name
appears in the FIR and not in the chargesheet, can still be summoned by the court
provided the conditions under the section
stand fulfilled. It was observed as follows :-

"111.
Even
the
Constitution
Bench in Dharam Pal (CB) has held that
the Sessions Court can also exercise its
original jurisdiction and summon a person
as an accused in case his name appears in
Column 2 of the chargesheet, once the case
had been committed to it. It means that a
person whose name does not appear even in
the FIR or in the chargesheet or whose
name appears in the FIR and not in the
9 All Adesh Tyagi Vs. State of U.P. & Anr.
935
main part of the chargesheet but in Column
2 and has not been summoned as an
accused in exercise of the powers under
Section 193 Code of Criminal Procedure
can still be summoned by the court,
provided the court is satisfied that the
conditions provided in the said statutory
provisions stand fulfilled.

xxx

117.6 A person not named in the
FIR or a person though named in the FIR
but has not been chargesheeted or a person
who
has
been
discharged
can
be
summoned under Section 319 Code of
Criminal Procedure provided from the
evidence it appears that such person can
be tried along with the accused already
facing trial. However, in so far as an
accused who has been discharged is
concerned the requirement of Sections 300
and 398 Code of Criminal Procedure has
to be complied with before he can be
summoned afresh. "

13. The word 'evidence' as used under
Section 319(1) of the Code was also
considered and it was held as follows :-

"84.
The
word
"evidence"
therefore has to be understood in its wider
sense both at the stage of trial and, as
discussed earlier, even at the stage of
inquiry, as used under Section 319 Code of
Criminal Procedure.The court, therefore,
should be understood to have the power to
proceed
against
any
person
after
summoning him on the basis of any such
material as brought forth before it. The
duty and obligation of the court becomes
more onerous to invoke such powers
cautiously on such material after evidence
has been led during trial.

85. In view of the discussion
made
and
the
conclusion
drawn
hereinabove, the answer to the aforesaid
question posed is that apart from evidence
recorded during trial, any material that has
been received by the court after cognizance
is taken and before the trial commences,
can be utilised only for corroboration and
to support the evidence recorded by the
court to invoke the power under Section
319 Code of Criminal Procedure. The
"evidence" is thus, limited to the evidence
recorded during trial. "

14. The principles with regard to
exercise of power by the court to summon
an accused under Section 319 of the Code
were reiterated in S. Mohammed Ispahani
Vs. Yogendra Chandak and others4, and
it was held that the power under Section
319 to summon even those persons who are
not named in the charge-sheet to appear
and face trial, is unquestionable. It was
observed thus:-

"28.Insofar as power of the Court
Under Section 319 of the Code of Criminal
Procedure, to summon even those persons
who are not named in the charge sheet to
appear and face trial is concerned, the same
is unquestionable. Section 319 of the Code
of Criminal Procedure, is meant to rope in
even
those
persons
who
were
not
implicated when the charge sheet was filed
but during the trial the Court finds that
sufficient evidence has come on record to
summon them and face the trial. In
Hardeep Singh's case, the Constitution
Bench of this Court has settled the law in
this
behalf
with
authoritative
pronouncement, thereby removing the
cobweb which had been created while
interpreting this provision earlier. As far as
object behind Section 319 of the Code of
936 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Procedure, is concerned, the
Court had highlighted the same as under:

19.The court is sole repository
of justice and a duty is cast upon it to
uphold the Rule of law and, therefore, it
will
be
inappropriate
to
deny
the
existence of such powers with the courts
in our criminal justice system where it is
not uncommon that the real accused, at
times, get away by manipulating the
investigating
and/or
the
prosecuting
agency. The desire to avoid trial is so
strong that an Accused makes efforts at
times to get himself absolved even at the
stage of investigation or inquiry even
though he may be connected with the
commission of the offence. '

15. The power to proceed against
persons named in FIR with specific
allegations against them, but not chargesheeted, was reiterated in Rajesh and
others Vs. State of Haryana,5 and it was
held that persons named in the FIR but not
implicated
in
charge-sheet
can
be
summoned to face trial, provided during the
trial some evidence surfaces against the
proposed accused.

16. The exercise of powers under
Section 319 of the Code for summoning an
additional accused again came up for
consideration in Saeeda Khatoon Arshi
Vs. State of Uttar Pradesh and another6
and it was held that it is the duty of the
court to give full effect to the words used
by the legislature so as to encompass any
situation which the court may have to
tackle while proceeding to try an offence
and not allow a person who deserves to be
tried to go scot-free by being not arraigned
in the trial inspite of the possibility of his
complicity which can be gathered from the
documents presented by the prosecution.

17. In the case at hand the FIR was
registered with regard to an offence under
Section 489-B of the Penal Code which
relates to using forged or counterfeit
currency notes, and the applicant herein
was named as an accused. The FIR version
shows complicity of the applicant inasmuch
as
the
currency
notes,
which
were
presented at the cash counter of the bank,
are stated to have been handed over to the
accused no. 1 by the applicant herein,
named as accused no. 2 in the FIR. The
accused no. 1, who is stated to have
brought the currency notes to the bank, in
fact submitted a statement in writing to the
bank cashier stating therein that the
currency notes had been handed over to
him by the applicant. Upon investigation
the police submitted a charge-sheet against
accused no. 1 under Section 489-B of the
Penal Code. During the course of trial, the
Bank Manager and the cashier appeared as
witnesses, PW-1 and PW-2 respectively,
and in their testimony corroborated the FIR
version by stating that upon the currency
notes having been found to be counterfeit,
when the accused no. 1 was questioned, he
stated that the said currency notes had been
handed over to him by the accused no. 2.

18. The charge in respect of which
trial is proceeding is an offence under
Section 489-B of the Penal Code, which
relates to using forged or counterfeit
currency notes and in view thereof the
source of the currency notes or the person
from whom the said notes had been
received would be relevant. The FIR
version as well as the testimony of two
witnesses having indicated that the accused
no. 1 i.e. the person who had presented the
currency notes at the cash counter of the
bank had specifically stated that currency
notes had been handed over to him by the
accused no. 2, the complicity of the said
9 All Adesh Tyagi Vs. State of U.P. & Anr.
937
accused could not be ruled out. The
evidence before the trial judge being
indicative
of
the
complicity
of
the
applicant, though not arraigned as an
accused in the charge-sheet, it was open to
the trial court to form a view that the
applicant be tried together with the
accused, and for the said purpose summon
the applicant in exercise of powers under
Section 319 of the Code.

19. The broad principles which have
been laid down for exercise of powers
under Section 319 of the Code underline
the object of the enactment that the real
perpetrator of the offence should not get
away unpunished and in a situation where
the investigating agency for any reason
does not array the real culprit as an accused
the court would not be powerless in calling
the accused to face trial; rather it would be
duty of the court to do justice by punishing
the real culprit.

20. The test which has been laid down
with regard to the degree of satisfaction
required for invoking the powers under
Section 319 is one which is more than
prima facie case as exercised at the time of
framing of charge, but short of satisfaction
to an extent that the evidence, if goes
unrebutted, would lead to conviction.

21. The power to proceed under
Section 319 has also been held to be
exerciseable in respect of persons though
named in the FIR but not charge-sheeted
provided the court is satisfied that the
conditions provided under the section stand
fulfilled.

22. The only ground which has been
canvassed on behalf of the applicant to
raise a challenge to the order of summoning
under Section 319 of the Code, is that the
statements recorded by the investigating
officer during the course of investigation
did not indicate any material against the
applicant and that no charge-sheet was
submitted against the applicant.

23. Section 319 (1) of the Code
envisages that where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence
which
he
appears
to
have
committed.

24. The word evidence used under
Section 319 (1) of the Code has been held
to be understood to refer to the evidence
recorded during trial, and also any material
that has been received by the court after
cognizance is taken and before the trial
commences, to be utilized for corroboration
and to support the evidence recorded by the
court.

25. The evidence recorded by the
court during trial is thus to be accorded
primacy and for the purpose of exercise of
power under Section 319 of the Code
would have to be given weight over the
material which was collected during the
course of investigation. The contention
which has been sought to be raised placing
reliance upon the material collected by the
investigating officer during the course of
investigation, for the purpose of exercise of
powers under Section 319 of the Code, thus
cannot be accepted.

26. The power under Section 319 of the
Code to summon even those persons who are
not named in the charge-sheet to appear and
face trial, being unquestionable and the object
938 INDIAN LAW REPORTS ALLAHABAD SERIES
of the provision being not to allow a person
who deserves to be tried to go scot-free by
being not arraigned in the trial inspite of
possibility of his complicity which can be
gathered from the evidence during the course
of trial, the order passed under Section 319 of
the Code summoning the applicant does not
contain any material error so as to warrant
inference.

27. Counsel for the applicant at this
stage submits that he does not dispute the
aforementioned legal position with regard to
the exercise of powers under Section 319 of
the Code and states that the applicant would
submit to the jurisdiction of the court below
and seek bail.

28. It goes without saying that in case
any such application is moved, the court
below would be expected to dispose it of in
accordance with the settled principles of law.

29. Subject to the aforesaid observation,
the application stands dismissed.
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(2021)09ILR A938
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2021

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Application U/S 482. No. 8735 of 2021

Sr. Kafeel @ Dr. Kafeel Ahmed Khan
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajrshi Gupta, Sri Dileep Kumar (Senior
Adv.), Sri Manish Singh, Sri Nazrul Islam Jafri
(Senior Adv.), Sri Sambhavi Shukla

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power , Section 196 - prior sanction from
Central Government or State Government
before cognizance is taken of any offence
punishable
under
Chapter-VI
I.P.C.
,
Indian Penal Code, 1860 - Section 153 A -
promoting
enemity
between
different
groups on grounds of religion, Section 153
B - imputations, assertions prejudicial to
national integration , Section 505 (2) -
statements creating or promoting enmity ,
hatred or ill - will between classes ,
Section109 - Punishment for abetment -
Prior
sanction
either
of
the
State
Government or of the Central Government
is necessary before taking cognizance of
the offences under Sections 153-A and
153-B
of
the
Indian
Penal
Code
-
Magistrate had no jurisdiction to take
cognizance of the offences under Sections
153-A and 153-B of the Indian Penal Code
in absence of any sanction as envisaged
under
Section
196(1)(a)(1-A)(a)
CrPC.(Para - 9)

Criminal proceedings against applicant - Alleged
Inflammatory
Speech
against
CAA
-
Chargesheet and cognizance order passed
against applicant - requisite prior sanction of
prosecution
not
taken
by
the
Central
government or the State government or the
district magistrate under Section 196(A) CrPC.

HELD:-The entire criminal proceedings and
the cognizance order passed by the Chief
Judicial Magistrate quashed , on the ground
that prior requisite sanction of prosecution
not taken by the Central government or the
State government or the district magistrate
under
Section
196(A)
of
the
Criminal
Procedure Code (CrPC). Matter remanded
back to the court of chief judicial magistrate ,
with the direction that as per the provision of
Section 196 CrPC, Order of cognizance under
the sections 153A , 153B , 505(2) , 109 of IPC
may be passed against the applicant only
after obtaining prior sanction of prosecution
by the Central government or the State
government or the district magistrate.(Para -
16,17)