# Aditya & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2025) 11 ILRA 1453
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-10
- **Case number:** Criminal Revision No. 2128 of 2021
- **Bench:** Chawan Prakash
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aditya-anr-revisionists-v-state-of-u-p-anr-52758
- **Pages:** 5

## Headnote

accused under Section 319 Cr.P.C. on the
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of forming only an opinion that a
prima facie case was made out, without
recording satisfaction that more than a
prima facie case existed, as required by
settled law.

Headnotes
Code of Criminal Procedure, 1973 - s.319
- Summoning of additional accused -
Evidence
recorded
during
trial
-
Examination-in-chief
-
Degree
of
satisfaction - "More than prima facie
case" - Extraordinary power - Scope and
limitations - Order set aside - Matter
remanded for passing fresh order.

HELD:
The power under Section 319 Cr.P.C. is an
extraordinary and discretionary power, which
must
be
exercised
sparingly
and
with
circumspection. For summoning a person as an
additional accused, the Court must be satisfied
that more than a prima facie case is made out
on the basis of the evidence adduced before it
during trial. Mere formation of an opinion that a
prima facie case exists is insufficient. [Paras 7,
11, 14]

The expression "evidence" occurring in Section
319 Cr.P.C. refers only to the evidence recorded
during trial, and does not include material
collected during investigation such as the
charge-sheet or case diary. Reliance can be
placed only on the statements of witnesses
recorded before the Court. [Paras 7-10]

An application under Section 319 Cr.P.C. can be
filed and decided even after recording of
examination-in-chief of a witness, without
waiting for completion of cross-examination.
However, while allowing such application, the
Court must still apply the correct legal test
regarding the degree of satisfaction required.
[Paras 12-13]

In the present case, the Trial Court allowed the
application under Section 319 Cr.P.C. by merely
observing that a prima facie case was made out
against the revisionists, without recording a
finding that more than a prima facie case
existed. The impugned order was thus held to
be contrary to the settled principles of law
governing Section 319 Cr.P.C. [Paras 14-15]
Accordingly,
the
impugned
order
dated
01.09.2021 summoning the revisionists was set
aside, and the matter was remitted to the Trial
Court to pass a fresh order on the application
under Section 319 Cr.P.C. in accordance with
law, within a stipulated time. Criminal revision
allowed. [Paras 15-16]

Revision allowed. (E-14)

Case Law Cited
Hardeep Singh v. State of Punjab and
Others, (2014) 3 SCC 92 - relied on; Omi
@ Omkar Rathore v. State of Madhya
Pradesh and Another, 2025 INSC 27 -
relied on; Shiv Baran v. State of Uttar
Pradesh and Another, 2025 INSC 860 -
relied on.

List of Acts / Statutes
Code of Criminal Procedure, 1973

List of Keywords
Summoning of additional accused; Extraordinary
power; Evidence during trial; Examination-inchief; More than prima facie case; Degree of
satisfaction; Remand.

Case Arising From
Order dated 01.09.2021 passed by the Additional
District and Sessions Judge / Fast Track Court No. 2,
Etawah in Sessions Trial No. 310 of 2021 (State v.
Ajay and others), arising out of Case Crime No. 385
of 2019, under Sections 147, 148, 323, 304, 352,
336, 504, 506 IPC, Police Station Jaswant Nagar,
District Etawah.

Appearance for Parties
For the Revisionist: Sri Surendra Singh
For the Opposite party No. 2: Sri Sanjay Mishra
For the State: Learned A.G.A.

## Text

11 All. Aditya & Anr. Vs. State of U.P. & Anr.
1453
enquiry as to the reliability or genuineness
of allegations made in the FIR.

12. Similarly, the Apex Court in the
case of Central Bureau of Investigation
vs. Aryan Singh and others - (2023) 18
SCC 399 has held that as per the cardinal
principle of law, at the stage of quashing of
criminal proceedings, the Court is not
required to conduct a mini trial.

13. The said principle has been
reiterated by the Apex Court in the case of
Niharka Infrastructure Private Limited
v. State of Maharashtra and others-
(2021) 19 SCC 401 wherein the Apex
Court has categorically held that while
examining of FIR quashing of which is
sought, Court cannot embark upon an
inquiry as to the reliability or genuineness
or otherwise of the allegations made in the
FIR.

14. From a perusal of the recent
judgment of the Apex Court in the case of
Muskan (supra) wherein the aforesaid
judgments of Niharka Infrastructure
Private Limited (supra) and Pratima
Mohanty (supra) have already been
referred to, it clearly emerges that the High
Court is not required to conduct a mini trial
while considering the allegations made in
the FIR. The Hon'ble Supreme Court has
finally concluded that the High Court
should not embark upon an inquiry with
regard to the credibility or otherwise of the
allegations in the complaints and the FIR.
Normally, for quashing of an FIR, it must
be shown that there exists no prima facie
case against the accused persons.

15. From a perusal of the impugned
FIR,
it
emerges
that
the
petitioner
alongwith several others have indulged in
an incident. The petitioner has also been
specifically named in the incident and
F.I.R. as well.

16. The grounds as urged by the
learned counsel for the petitioner, if are to
be considered by this Court, would
primarily amount to holding of a mini trial
and an inquiry which has specifically been
restrained by the Apex Court in the cases of
Pratima Mohanty (supra), Aryan Singh
(supra), Niharka Infrastructure Private
Limited (supra) and Muskan (supra)
inasmuch as the genuineness of the
allegations made in the FIR or the
credibility of the witnesses etc cannot be
seen. From a bare perusal of the FIR, a
cognizable offence is made out against the
petitioner

17. Keeping in view the aforesaid
discussion, the instant criminal writ petition
is dismissed.
----------
(2025) 11 ILRA 1453
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2025

BEFORE

THE HON'BLE CHAWAN PRAKASH, J.

Criminal Revision No. 2128 of 2021

Aditya & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Surendra Singh

Counsel for the Opposite Parties:
Dinesh Kumar Sharma, G.A., Sanjay Mishra

Issue for Consideration
Whether the Trial Court was justified in
summoning the revisionists as additional
accused under Section 319 Cr.P.C. on the
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of forming only an opinion that a
prima facie case was made out, without
recording satisfaction that more than a
prima facie case existed, as required by
settled law.

Headnotes
Code of Criminal Procedure, 1973 - s.319
- Summoning of additional accused -
Evidence
recorded
during
trial
-
Examination-in-chief
-
Degree
of
satisfaction - "More than prima facie
case" - Extraordinary power - Scope and
limitations - Order set aside - Matter
remanded for passing fresh order.

HELD:
The power under Section 319 Cr.P.C. is an
extraordinary and discretionary power, which
must
be
exercised
sparingly
and
with
circumspection. For summoning a person as an
additional accused, the Court must be satisfied
that more than a prima facie case is made out
on the basis of the evidence adduced before it
during trial. Mere formation of an opinion that a
prima facie case exists is insufficient. [Paras 7,
11, 14]

The expression "evidence" occurring in Section
319 Cr.P.C. refers only to the evidence recorded
during trial, and does not include material
collected during investigation such as the
charge-sheet or case diary. Reliance can be
placed only on the statements of witnesses
recorded before the Court. [Paras 7-10]

An application under Section 319 Cr.P.C. can be
filed and decided even after recording of
examination-in-chief of a witness, without
waiting for completion of cross-examination.
However, while allowing such application, the
Court must still apply the correct legal test
regarding the degree of satisfaction required.
[Paras 12-13]

In the present case, the Trial Court allowed the
application under Section 319 Cr.P.C. by merely
observing that a prima facie case was made out
against the revisionists, without recording a
finding that more than a prima facie case
existed. The impugned order was thus held to
be contrary to the settled principles of law
governing Section 319 Cr.P.C. [Paras 14-15]
Accordingly,
the
impugned
order
dated
01.09.2021 summoning the revisionists was set
aside, and the matter was remitted to the Trial
Court to pass a fresh order on the application
under Section 319 Cr.P.C. in accordance with
law, within a stipulated time. Criminal revision
allowed. [Paras 15-16]

Revision allowed. (E-14)

Case Law Cited
Hardeep Singh v. State of Punjab and
Others, (2014) 3 SCC 92 - relied on; Omi
@ Omkar Rathore v. State of Madhya
Pradesh and Another, 2025 INSC 27 -
relied on; Shiv Baran v. State of Uttar
Pradesh and Another, 2025 INSC 860 -
relied on.

List of Acts / Statutes
Code of Criminal Procedure, 1973

List of Keywords
Summoning of additional accused; Extraordinary
power; Evidence during trial; Examination-inchief; More than prima facie case; Degree of
satisfaction; Remand.

Case Arising From
Order dated 01.09.2021 passed by the Additional
District and Sessions Judge / Fast Track Court No. 2,
Etawah in Sessions Trial No. 310 of 2021 (State v.
Ajay and others), arising out of Case Crime No. 385
of 2019, under Sections 147, 148, 323, 304, 352,
336, 504, 506 IPC, Police Station Jaswant Nagar,
District Etawah.

Appearance for Parties
For the Revisionist: Sri Surendra Singh
For the Opposite party No. 2: Sri Sanjay Mishra
For the State: Learned A.G.A.

(Delivered by Hon'ble Chawan Prakash, J.)

1. Heard Shri Surendra Singh, learned
counsel for the revisionists, Shri Sanjay
Mishra, learned counsel for opposite party
No.2 and learned A.G.A for the State.

2. The present revision has been filed
challenging the order dated 01.09.2021
11 All. Aditya & Anr. Vs. State of U.P. & Anr.
1455
passed by learned Additional District and
Sessions Judge/ Fast Track Court No.2,
Etawah in Session Trial No. 310 of 2021
(State v. Ajay and others) arising out of
Case Crime No. 385 of 2019 under
Sections 147, 148, 323, 304, 352, 336, 504,
506 IPC Police Station Jaswant Nagar
District Etawah.

3. It is submitted by learned counsel
for the revisionists that FIR as Case Crime
No. 385 of 2019 under Sections 147, 148,
323, 336, 452, 504, 506, 352, 307 IPC
Police Station Jaswant Nagar District
Etawa was lodged against ten persons
including the present revisionists. After the
death of injured Section 304 IPC was
inserted and Section 307 was omitted. The
investigating officer did not record the
statement of public witnesses under Section
161 Cr.P.C and did not assign any role to
the present revisionist Aditya and Arpit in
the commission of offence. No charge sheet
was filed against the revisionists. During
trial charges against other accused persons
were framed and examination-in-chief of
P.W-1 Ravindra Singh, brother of deceased
was recorded. After recording of the
examination-in-chief
and
without
completing
its
cross-examination,
application under Section 319 Cr.P.C was
filed to summon the present revisionists. It
is submitted that the said application was
allowed by the learned trial court vide
impugned order dated 01.09.2021. It is
submitted that the learned trial court while
passing the impugned order has only
opined that the prima facie case is made out
against the accused revisionist whereas
considering the principles of law laid down
he must form an opinion that more than
prima facie case is made out. It is further
submitted that other prosecution witnesses
have not supported the prosecution version
and they are turning hostile. The said order
has not been passed in compliance with the
settled principles of law and also the facts
of the present case and the said order is
liable to be set aside.

4. Per contra it is submitted by
learned A.G.A and learned counsel for
opposite party No.2 that the trial court has
not committed any illegality in passing the
impugned order because the name of
accused were mentioned in the First
Information
Report.
The
investigating
officer has not conducted fair investigation
and not not filed charge sheet against the
revisionist. During trial the examination-inchief of P.W-1 (Ravindra Singh) was
recorded
and
thereafter
the
present
application under Section 319 Cr.P.C was
filed. It is also submitted that the court has
not committed any illegality in allowing the
said application because the application
under Section 319 Cr.P.C could be filed
even on the basis of examination-in-chief
without recording cross-examination. Thus,
the trial court has not committed any
illegality in passing the impugned order.

5. Having heard learned counsel for
respective parties and having perused the
record it transpires that in the instant
revision, revisionists challenged the order
dated 01.09.2021 passed by the trial court
by which they have been summoned under
Section 319 Cr.P.C.

6. Section 319 Cr.P.C. read as under:-

"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
1456 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

7.
Therefore,
from
Section
319
Cr.P.C., it is apparent that trial court is
empowered to summon a person to face
trial, who is not the accused in the case on
the basis of the evidence. The word
'evidence' used in Section 319 Cr.P.C. is
significant. The Constitution Bench of the
Apex Court in case of Hardeep Singh Vs.
State of Punjab & Others (2014) 3 SCC
92 held that the word 'evidence' used in
Section 319(1) Cr.P.C. indicates, the word
'evidence' is limited to the evidence
recorded during trial.

8. The Apex Court in case of Omi @
Omkar Rathore v. State of Madhya
Pradesh and Another (2025 INSC 27)
also held that trial court can add an
individual as accused only on the basis of
the evidence adduced before it and not on
the basis of the materials available in the
charge-sheet or the case diary because such
materials contained in the charge-sheet or
the case diary do not constitute evidence.

9. The Apex Court in the case of Shiv
Baran v. State of U.P. and another 2025
INSC 860 also held that trial court can
exercise power to summon an additional
accused under Section 319 Cr.P.C. only on
the basis of the evidence adduced before it
and not any other material collected during
investigation.

10. Therefore, from the above dictum
of the Apex Court, it is apparent that while
invoking power under Section 319 Cr.P.C.
trial court should consider the statements of
the witnesses adduced before it and it
should not place reliance upon the material
available in the charge-sheet or the case
diary.

11. The law with regard to the
summoning of an accused under Section
319 Cr.P.C. is settled that this power is an
extraordinary power, which should be used
sparingly with circumspection and while
passing the summoning order under Section
319 Cr.P.C. court must consider whether
more than prima-facie case is made out, or
not. For summoning an additional accused
under Section 319 Cr.P.C. mere primafacie
case
is
not
sufficient.
[See:
Constitution Bench judgment of Apex
Court Hardeep Singh (surpa)]. Therefore,
in light of the above principles, it is to
analyze, whether before the trial court
material was sufficient to summon the
11 All. Ramraj Patel Vs. State of U.P. & Anr.
1457
revisionists under Section 319 Cr.P.C. or
not.

12. From the above discussions, it is
clear that the application under Section 319
Cr.P.C has been filed by the prosecution
after recording examination-in-chief by the
P.W.-1. The learned court has allowed the
said application by the impugned order.

13. It is settled principle of law that an
application under Section 319 Cr.P.C can
be
filed
even
after
recording
the
examination-in-chief of any witnesses and
the same can be decided without waiting
for cross-examination.

14. Hon'ble Apex Court in the case of
Hardeep Singh v. State of Punjab and
others (2014) 3 SCC 92 has also held that
the law with regard to the summoning of
the accused under Section 319 Cr.P.C is
an extraordinary power, which should be
used
sparingly
and
while
passing
summoning order under Section 319
Cr.P.C, the court must consider whether
more than prima facie case is made out.
For summoning under Section 319 Cr.P.C
mere prima facie case is not sufficient. In
the present case, learned trial court has
formed an opinion that prima facie case is
made out against the accused persons but
has not formed an opinion that more than
prima facie case is made out. Hence the
impugned order dated 01.09.2021 is
liable to be set aside.

15. Accordingly the impugned order
dated
01.09.2021
passed
by
learned
Additional District and Sessions Judge/
Fast Track Court No.2, Etawah in Session
Trial No. 310 of 2021 (State v. Ajay and
others) arising out of Case Crime No. 385
of 2019 under Sections 147, 148, 323, 304,
352, 336, 504, 506 IPC Police Station
Jaswant Nagar District Etawah is set aside.
The instant revision is allowed.

16. The matter is remitted to the
learned trial court concerned who will pass
order afresh on the application after
considering the provisions of law, within a
period of two months from the production
of certified copy of this order.
----------
(2025) 11 ILRA 1457
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.11.2025

BEFORE

THE HON'BLE CHAWAN PRAKASH, J.

Criminal Revision No. 3271 of 2021

Ramraj Patel ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Virendra Singh, Virendra Singh Yadav

Counsel for the Opposite Parties:
G.A., Shailesh Kumar Tripathi

Issue for Consideration
Whether the courts below were justified in
rejecting the application for DNA test of the
minor daughter of opposite party no. 2, filed by
the
husband
in
proceedings
under
the
Protection of Women from Domestic Violence
Act, 2005, in view of the conclusive presumption
of legitimacy under Section 112 of the Evidence
Act, 1872, and the settled law governing
directions for DNA testing.

Headnotes
Evidence Act, 1872 - s.112 - Protection
of Women from Domestic Violence Act,
2005 - ss.12, 23, 29 - Paternity dispute
- Presumption of legitimacy - DNA test
- Non-access - Right to privacy and
dignity - Scope of interference in revision
- Orders affirmed.