# Asad Ali @ Munna & Ors v. State of U.P. & Anr

- **Citation:** (2024) 8 ILRA 1121
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-09
- **Case number:** Application U/s 482 No. 5465 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asad-ali-munna-ors-v-state-of-u-p-anr-52409
- **Pages:** 40

## Headnote

Law
-
Criminal
Procedure
Code,1973 -Section 319 - was preferred by
the prosecution-allowed by impugned order-and
summoned the accused-The case of the
applicants is based upon the 'evidence' collected
by the I.O. during investigation-"the word
"evidence" in Section 319 CrPC means only such
evidence as is made before the court-"while
exercising the powers under Section 319 CrPC -
the court is not required and/or justified in
appreciating the deposition/evidence of the
prosecution witnesses on merits which is
required to be done during the trial.

Application rejected. (E-9)

List of Cases cited:

## Text

_Characters 0–39,936 of 116,545. This is a partial read: ask again with offset=39936 for what follows._

8 All. Asad Ali @ Munna & Ors. Vs. State of U.P. & Anr.
1121
investigation was conducted in a very
cursory manner. No attempt was taken for
conducting identification parade.

13. In aforesaid circumstances, this
Court finds that present is a fit case where
inherent powers of this Court could be
invoked, hence, impugned charge sheet
dated 27.06.2019 arising out of Case Crime
No. 204/2019 under Sections 147, 279,
323, 427, 504, 506 IPC and 3(1)(r) and (s)
of SC/ST Act, Police Station- Jalaun,
District-
Jalaun
as
well
as
further
proceedings of SST No. 34/2019 (State vs.
Faheem and others) including cognizance
and summoning order pending before
Special Judge (SC/ST Act), Jalaun at Orai
are hereby quashed.

14. Application is, accordingly,
allowed.

15. Registrar (Compliance) to take
steps.
----------
(2024) 8 ILRA 1121
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.08.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/s 482 No. 5465 of 2024

Asad Ali @ Munna & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Anand Mani Tripathi, Pragati Tiwari, Yugal Kishor
Tripathi

Counsel for the Respondents:
G.A., Anand Prakash Singh

Criminal
Law
-
Criminal
Procedure
Code,1973 -Section 319 - was preferred by
the prosecution-allowed by impugned order-and
summoned the accused-The case of the
applicants is based upon the 'evidence' collected
by the I.O. during investigation-"the word
"evidence" in Section 319 CrPC means only such
evidence as is made before the court-"while
exercising the powers under Section 319 CrPC -
the court is not required and/or justified in
appreciating the deposition/evidence of the
prosecution witnesses on merits which is
required to be done during the trial.

Application rejected. (E-9)

List of Cases cited:

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

2. Brijendra Singh & ors.Vs St. of Rajasthan,
(2017) 7 SCC 706

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

4. Manjeet Singh Vs St. of Har. & ors., (2021)
18 SCC 321

5. Sukhpal Singh Khaira Vs St. of Punj., (2023)
1 SCC289

6. Yashodhan Singh & ors.Vs St. of U. P. & ors.,
(2023) LiveLaw (SC) 576 : 2023 INSC 652

7. Yashodhan Singh & ors. Vs St. of U. P. &
ors.4235 of 2022

8. Jogendra & ors.Vs St. of Bihar & anr.,
reported in (2015) 9 SCC 244

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri A. M. Tripathi and Sri Yugal
Kishor Tripathi, learned counsel for the
applicants, and Sri S. P. Tiwari, learned A.G.A.
for the State and Sri Anand Prakash Singh,
learned counsel for opposite party No. 2.
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
2. By means of the present
application u/s 482 CrPC, the applicants
have assailed the order dated 23.05.2024,
passed by Additional Sessions Judge, Court
No.1, Pratapgarh (in short 'trial court'), in
Sessions Trial No. 486 of 2019 (State Vs.
Ashraf and Ors), arising out of Case Crime
No. 306 of 2018, under Section 147, 148,
149, 302, IPC, Police Station- Antu,
District- Pratapgarh. The order under
challenge dated 23.05.2024 has been
passed by the trial court in exercise of
power under Section 319 CrPC.

3. Brief facts of the case are to the
effect that an F.I.R. was lodged by the
informant/eye-witness/opposite party No. 2
namely
Chandan
Singh
(PW-1)
on
14.08.2018, which was registered as Case
Crime No. 306 of 2018, under Section 147,
148, 149, 302 IPC. As per the allegations
levelled in the F.I.R., the deceased, father
of the opposite party No. 2, was assaulted
by Asad Ali @ Munna, Bablu, Mahroj,
Awadhesh Kumar, and an unknown person.
The deceased namely Harishchandra Singh
succumbed to the gunshot injury. As per the
F.I.R., the incident is of 14.08.2018 at
about 09:00 a.m..

4. After
the
aforesaid,
the
Investigating Officer (in short "I.O.")
carried out the investigation and the I.O.,
after due investigation, submitted the
charge sheet against Ashraf, Imran Khan,
Kalam, Segu @ Mujib and Irfan under
Section 302, & 120-B IPC.

5. The trial court, taking note of
the evidence available on record, framed
the charges against the above named
accused persons, in relation to which the
charge sheet prepared on 30.11.2018 was
submitted by the I.O. and additional charge
sheet prepared on 03.02.2019 was also
submitted and on thereafter the charges
were framed on 22.03.2021/23.03.2021, as
appears from the impugned order dated
23.05.2024, and upon denial of charges, the
accused namely Ashraf, Imran Khan,
Kalam, Segu @ Mujib and Irfan were put
to trial.

6. Before the trial court, the
statement(s) of Chandan Singh (PW1)/informant/eye
witness/opposite
party
No. 2, Suneel Ranjak (PW-2), Vahid Khan
(PW-3), Dhirendra Yadav (PW-4) and Anuj
Singh (PW-5) were recorded.

7. On the basis of the evidence/
statements of above-named witnesses, an
application under Section 319 CrPC dated
12.01.2024 was preferred from the side of
the prosecution.

8. The trial court, after considering
the evidence/ statement of informant/eye
witness/opposite party No. 2 namely
Chandan Singh, allowed the application
under Section 319 CrPC dated 12.01.2024
vide
order
dated
23.05.2024,
under
challenge, and summoned the accused
namely Asad Ali @ Munna, Akhtar Ali @
Bablu, Mahroj and Awadh Kumar Mishra
to face the trial under Sections 147, 148,
149 and 302 IPC, in regard to whom the
I.O. had submitted the report dated
11.09.2018 under Section 169 Cr.P.C.. The
relevant portion of the order 23.05.2024 is
extracted herein-under:

"3. Heard and perused the
records. First information report in
this case i.e. case crime no.
306/2018
was
lodged
on
14.08.2018 at 11.05 by informant
Chandan against accused persons
Asad Ali @ Munna, Akhtar Ali @
Bablu, Mahroj and Awadh Kumar
8 All. Asad Ali @ Munna & Ors. Vs. State of U.P. & Anr.
1123
Mishra and one unknown with the
averment that on 14.08.2018 at
about 9 A.M. informant and his
father Harish Chandra had come to
Chaukhad Pure Anti by motorcycle
and when they were returning by
making some payment to Raju
Pradhan and when they reached
near Chaukhad Pure Anti primary
school then suddenly assailants
came on two motor cycle and they
sho: at the father of the informant
and caused his death and after that
assailants left the scene. Informant
has also narrated in the first
information report that there is one
case pending in the court against
accused Asad ali for attempting to
murder of the father of the
informant and in that case Asad ali
was pressurizing the father of
informant to compromise and when
father of the informant did not get
ready to compromise then the
named
accused
persons
have
committed this offence. After the
registration of the F.I.R. this case
was investigated and investigating
officer submitted report u/s 169
Cr.P.C. against accused persons
Asad Ali @Munna, Bablu, Mahroj
and Awadh Kumar Mishra in the
first
information
report
and
submitted charge sheet against
accused
persons
Asraf,
Imran
Khan, Kalam, Sebu @ Mujeeb and
Irfaan u/s 302, 120B, P.S. Antoo,
district Pratapgarh.
4. After submission of the
charge sheet against above named
accused persons learned Special
Judge
SC/ST
Act,
Pratapgarh
framed charges against them on
02.02.2021/23.03.2021
and
proceeded for trial. During trial
prosecution examined informant
Chandan Singh as PW-1, witness
Suneel Ranjak PW-2, Vahid Khan
PW-3, Dhirendra Yadav PW-4,
Anuj Singh PW-5 and on the basis
of the evidence of these witnesses
moved
an
application
dated
12.01.2024
u/s
319
Cr.P.C.
Informant PW-1 Chandan Singh
has
given
statement
in
his
examination-in-chief that accused
persons Awadh Kumar, Asad ali,
Mahroj and Bablu are the real
culprits and they have committed
the offence of the murder of the
informant's father. Witness PW-1
has named the accused persons,
above named, in his examination in
chief and has given the testimony
that the accused persons Awadh
Kumar, Bablu, Mahroj and Asad,
came at the place of incident and
they open fired there and Asad Ali
shot dead the father of the
informant in his chest and by that
way committed the offence of
murder with the assistance of the
other co-accused persons. At the
time of the incidence Awadh Kumar
and Asad ali fired at the father of
the informant and their bullet hit
the father of the informant and
accused persons Bablu and Mahroj
were there on their motorcycle and
they were intimidating the others
for not to come near them and after
commission of the crime all the
accused persons fled away on their
motorcycles.
Thus
PW-1
has
supported
its
Tehreer
in
his
evidence. PW-1 has been crossexamined in length by the accused
persons but he has not made
otherwise statement in his crossexamination which could disown
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused persons named in the
application u/s 319 Cr.P.C.
5. Section
319 Cr.P.C.
provides 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 may proceed
against such person for the offence
which
he
appears
to
have
committed.
6. Section 319 provides the
trial court, if evidence against any
person whose name is not included
in the charge sheet comes before
the court, may summon that person
as accused to face the trial. In the
case in hand the proposed accused
persons named in the application
u/s 319 Cr.P.C. are named in the
first
information
report
and
informant is the eye-witness of the
case. As per the prosecution case
informant was accompanied with
his father on motorcycle and the
proposed
accused
persons
murdered
the
father
of
the
informant by firing fire arms at
him.
7. It is well entrenched law
that for summoning a person u/s
319 Cr.P.C. as accused court has to
consider two points, firstly that
whether the prima facie evidence
against that person is of graver
nature then framing of the charge
or not and secondly whether the
material available on records, if
not rebutted, then whether those
material will be sufficient to
convict the persons.
8. Hon'ble Supreme Court
has held in Hardeep Singh Vs.
State of Punjab [(2014) 3 SCC 92]
that for summoning a persons u/s
319 Cr.P.C. the nature of the
evidence should be of greater
quality than what is required for
framing of the charge and secondly
court has to consider that whether
the quality of the evidence is such
that if not rebutted then the accused
might be convicted only on the
basis of those evidences.
9. Hon'ble Supreme Court
has held in Labhuji Amritji Thakor
and ors. Vs. State of Gujarat [Crl.
Appeal no. 1349/23018 decided on
13.11.2018] that for summoning a
person u/s 319 Cr.P.C. court must
be satisfied that there must be an
evidence on the record which is, if
unrebutted, sufficient to convict the
accused persons.
10. Hon'ble Supreme Court
has recently held in Juhur and ors.
Vs. Kareem and ors. [Crl. Appeal
no.
549/2023
decided
on
21.02.2023] that for summoning a
person as accused u/s 319 Cr.P.C.
court has to consider on the
evidence on the records only on
that basis court has to decide that
whether the proposed accused can
be summoned as accused in the
case or not.
11. In the case in hand
informant has named the proposed
accused
persons
in
the
first
information report and has given
the trustworthy evidence before the
court in his examination in chief
and in the cross-examination that
the proposed accused persons are
8 All. Asad Ali @ Munna & Ors. Vs. State of U.P. & Anr.
1125
the real culprits and they have
committed the murder of the father
of the informant.
12. At
this
stage
the
evidence of PW-1 is such that if the
evidence of PW-1 is not rebutted by
the proposed accused persons that
will
be
sufficient
to
convict
proposed accused persons, the
informant is the eye-witness of this
case and it has also been brought
on the record that another case of
attempt to murder of the father of
the informant was already pending
against the proposed accused Asad
Ali at the time of incident. Thus, the
eye account of the whole case has
been candidly laid down by the
informant before the court and the
motive for the offence is also
associated
against
proposed
accused person Asad Ali. The other
co-accused Awadh, Bablu and
Mahroj were present at the place of
incidence at the time of the
commission of the crime and they
also have actively participated in
the commission of the crime.
Hence on the basis of
above discussions court is satisfied
that proposed accused persons
Asad Ali @ Munna, Akhtar Ali @
Bablu, Mahroj and Awadh Kumar
Mishra should be summoned for
the trial u/s 147,148,149,302 I.P.C.

ORDER

Hence application u/s 319
Cr.P.C.
dated
12.01.2024
is
allowed. Proposed accused persons
Asad Ali @ Munna, Akhtar Ali @
Bablu, Mahroj and Awadh Kumar
Mishra are hereby summoned as
accused u/s 319 Cr.P.C. to face
trial u/s 147, 148, 149, 302 I.P.C.
It is to be noted here that
the trial of these newly summoned
accused persons named above shall
be conducted separately under
another case number and they will
not be tried with the S.T. 486/2019
as this S.T. has proceeded far away
and if these newly accused will be
clubbed with the old case then the
already running S.T. 486/2019 will
retreat back to its initial stage and
that will cause the delay of justice
to the accused persons whose trial
is going on under S.T. 486/2019.
The
newly
summoned
accused persons Asad Ali @
Munna, Akhtar Ali @ Bablu,
Mahroj and Awadh Kumar Mishra
are directed to appear before the
court on 04.06.2024. Office is
directed to separate records for
them and issue summon against
them."

9. A perusal of the above extracted/
quoted portion of the order under challenge
dated 23.05.2024 reflects that the trial court
for the purposes of summoning the
accused, named above, considered and
relied upon the evidence/ statements of eye
witness/PW-1 made before the it and also
the contents of the F.I.R. lodged by this
witness.

10. In the aforesaid background of
the case, the present application has been
filed.

11. Challenging the order dated
23.05.2024, Sri Tripathi, learned counsel
for the applicants, in nutshell, made
following submissions:
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
(i) As per the story narrated
in the F.I.R., the informant and
deceased both were on the same
motorcycle and this story was
improved by PW-1 while making
the statement before the trial court
as according to the statement
before the trial court the deceased
and
informant/PW-1
were
on
different motorcycles and while
passing the order under challenge
dated 23.05.2024 on an application
preferred by the prosecution under
Section 319 CrPC, the trial court
has not considered this aspect of
the case.
(ii) The I.O. after due
investigation collected the evidence
i.e.
CCTV
footage,
the
certificate/letter from the company,
attendance sheet and Call Detail
Report (C.D.R.) and based upon the
same, the I.O. was of the view that
the applicants were not present at
the place/ situs of crime and
therefore the I.O. submitted the
report in terms of Section 169
CrPC exonerating the applicants
and all these evidence were ignored
by the trial court while passing the
order dated 23.05.2024 on an
application preferred under Section
319 CrPC. Thus, the trial court
erred in fact and law both.
(iii)
According
to
the
judgment(s) of the Constitution
Bench of the Hon'ble Apex Court
in the case of Hardeep Singh Vs.
State of Punjab, reported in (2014)
3 SCC 92, and Brijendra Singh
and
Others
Vs.
State
of
Rajasthan, reported in (2017) 7
SCC 706, the trial court should
record its subjective satisfaction
while passing the order under
Section 319 CrPC and the trial
court is under obligation to take
note of evidence which includes the
entire evidence collected by the
I.O. during investigation.
(iv) PW-5 is the real
brother of Chandan Singh (PW1/informant-eye witness) and thus
he is an interested witness and his
testimony should be considered in
terms of the principles settled by
the Hon'ble Apex Court in this
regard and further PW-5 appears to
be a planted witness and his
presence at the place of crime, as
he indicated before the trial court
while making statement, is doubtful
because as per his statement
recorded during the course of
investigation in terms of Section
161 CrPC, he was informed on
phone and thereafter he reached the
place/ situs of crime.

12. The relevant para(s) of the
affidavit filed in support of application,
under consideration, referred in regard to
the aforesaid, are reproduced herein-under:

"13. That thereafter, the
investigating
officer,
during
investigation
recorded
the
necessary information at that time,
post mortem conducted, the several
applications/tehrir
has
been
prepared by the complainant, due
to which the matter required proper
investigation. A copy of relevant
C.D. parcha is being annexed
herewith as Annexure No.8, to this
petition.
14. That the investigating
officer also recorded the statement
of alleged eye witness namely
Mohd. Mahfooz son of Koshib and
8 All. Asad Ali @ Munna & Ors. Vs. State of U.P. & Anr.
1127
alleged eye witness Mohd. Rizwan
son of Altaf, they have given proper
statement
to
the
investigating
officer. A copy of statements of eye
witness namely Mohd. Mahfooz
and Mohd. Rizwan are being
collectively annexed herewith as
Annexure No.9, to this petition.
15. That the investigating
officer, during the investigation has
come to the knowledge that one
accused
Imran
Khan
son
of
Rizwan, who is in jail in Crime
No.324/2019
and
Crime
No.
326/2018 and has full knowledge
about the alleged occurrence, then
the investigating officer recorded
his statement in jail and disclosed
the correct prosecution story and
arrested one co-accused Ashraf son
of Mohd. Azeez, who has giving
their statement on 20.08.2018. A
copy of statement of Imran Khan
and statement of co-accused Ashraf
are being annexed herewith as
Annexure No.10 and 11, to this
petition.
16. That thereafter, the
investigating officer reached the
correct
facts
of
the
alleged
occurrence and fairly examine the
statement of co-accused Ashraf and
found correct then also recorded
the statement of further witnesses.
17. That the investigating
officer also recorded the statement
of witness namely Mohd. Aslam son
of Mohd. Habib and Arif Ali son of
Safeek and also recorded the
statement of independent witness
Dhirendra Yadav and Shrawan
Kumar Pandey and Mahfooz Khan,
in which they are clearly stated that
the
applicants/petitioners
are
falsely implicated in the matter and
they have not committed any crime.
The copy of statement of witnesses
namely Mohd. Aslam, Arif Ali and
indepedent
witnesses
namley
Dhirendra Yadav and Shrawan
Kumar Pandey and Mahfooz Khan
are being collectively annexed
herewith as Annexure No.12, to this
petition.
18.
That
thereafter
investigating officer come to the
conclusion at the time of alleged
occurrence, the petitioners are not
present, they are falsely implicated
in the present case, due to old
enmity, then he further recorded the
statement of witnesses namely
Rafeek Ahmad son of Taufeek, Arif
Ali son of Safeek and Ubedullah
son of Abibullah and Ahmad Ali
son of Nazab Ali and Mohd. Aslam
son of Mohd. Habib and Rafeek
Ahmad son of Abdul Hameed, in
which they are clearly given their
statement
that
the
petitioners/applicants are falsely
implicated due to village party
bandi and old enmity. The copy of
statement of witnesses namely
Rafeek Ahmad son of Taufeek, Arif
Ali son of Safeek and Ubedullah
son of Abibullah and Ahmad Ali
son of Nazab Ali and Mohd. Aslam
son of Mohd. Habib and Rafeek
Ahmad son of Abdul Hameed are
being collectively annexed herewith
as Annexure No.13, to this petition.
19. That thereafter, the
investigating officer visited the
house of applicant Asad Ali @
Munna and recorded the statement
of his wife Qamrul Nisha and wife
of Babloo, Rehana Bano and
daughter Sama Parveen, in which,
they are clearly stated that at the
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
time of alleged occurrence, the
petitioner no.3 Mafroz present in
Gurgaon city, then the investigating
officer collect the CCTV footage
from Gurgaon city and also taking
evidence from company Manager,
in which the petitioner no.3 doing
job at Gurgaon.
The
aforesaid
facts
mentioned in CD parcha No.11 and
CD No.28. A copy of CD parcha
No.11 and CD parcha no.28
alongwith
letter-pad
of
the
company with attendance sheet and
CCTV
footage
are
being
collectively annexed herewith as
Annexure No.14, to this petition.
20. That the investigating
officer during the investigation
collected the call details at the time
of
alleged
occurrence
of
all
concerned persons, in which it has
been found the location and details
of applicants are different from the
alleged occurrence place. A copy of
report of P.S. Antu alongwith call
details parcha and details of
location are being collectively
annexed herewith as Annexure
No.15, to this petition.
21. That the investigating
officer during investigation found
that the four persons namely Asad
Ali @ Munna, Bablu @ Akhtar Ali,
Mafroz son of Asad Ali and
Awadhesh Kumar Mishra falsely
implicated
in
the
alleged
occurrence, in which the Asad Ali
@ Munna is in jail, then he sent
report to concerned Magistrate,
under section 169 Cr.P.C. on
11.09.2018. A copy of report dated
11.09.2018
is
being
annexed
herewith as Annexure No.16, to this
petition.
22. That on the basis of
report dated 11.09.2018, under
section 169 Cr.P.C., the petitioner
no.1 Asad Ali @ Munna falsely
implicated, then the concerned
Magistrate accepted the report and
passed
released
order
on
11.09.2018. A copy of release order
dated 11.09.2018 is being annexed
herewith Annexure No.17, to this
petition.
23. That thereafter, the
investigating officer prepared the
charge-sheet against the accused
persons namely Ashraf, Imran
Khan and Kalam on 30.11.2018,
under section 302, 120-B IPC. A
copy
of
charge-sheet
dated
30.11.2018
is
being
annexed
herewith as Annexure No.18, to this
petition.
24. That the investigating
officer filed supplementary chargesheet against two accused persons
namely Shebu @ Mujeeb Ahmad
and
Irfan
on
03.02.2019.
Thereafter the investigating officer
completed the investigation on
07.12.2020 by CD Parcha No.12,
in which, no allegations against the
petitioners.
A
copy
of
supplementary charge-sheet and
CD Parcha No.12 are being
collectively annexed herewith as
Annexure No.19, to this petition.
***
33. That the investigating
officer by perusal of CCTV footage
certificate issued by the concerned
company and by perusal of the call
details and location and also
considering the statement of eye
witnesses submitted the chargesheet, in which the name of the
petitioners were not found at the
8 All. Asad Ali @ Munna & Ors. Vs. State of U.P. & Anr.
1129
time of occurrence and the matter
proceed for trial.
34. That the opp. party no.2
with the malafide intention, only
harass the petitioners after taking
legal advice due to old enmity and
village
party
bandi
moved
application under
section
319
Cr.P.C., despite the facts the P.W.2
namely Sunil Razzak, P.W.3 namely
Wahid Khan and P.W.4 namely
Dhirendra Yadav not supported the
version of the prosecution and the
charge-sheet
submitted
by
the
investigating officer in fair and
proper manner."

13.

Opposing
the
present
application, learned A.G.A. Shri S. P. Tiwari
and Shri Anand Prakash Singh, Advocate,
learned counsel for the opposite party no. 2
stated that the trial court has not committed
any illegality or irregularity in passing the
order under Section 319 CrPC. It is stated
that the trial court in terms of the various
pronouncements on the issue is under
obligation to consider the evidence led before
it and not the evidence collected by the
investigating officer during investigation. In
the instant case, the trial court took note of
the contents of the F.I.R. and the evidence/
statement of PW-1, an informant and eyewitness, and after considering the statement
of PW-1 and contents of F.I.R., the trial court
observed that if the evidence/ statement of
PW-1 is not rebutted, then it would be a case
of conviction, which is the requirement of
law, and accordingly, no interference in the
order under challenge dated 23.05.2024 is
required by this Court. It would be apt to
indicate that the cause of death is gunshot
injury and this is not in issue.

14. Considered the aforesaid and
perused the record.
15. Before proceedings, on merits
of the case, it would be apt to indicate that
the principles related to dealing with an
application under Section 319 Cr.P.C. or
exercising power under Section 319 Cr.P.C.
have already been settled in various
pronouncements by the Hon'ble Apex Court
and accordingly, this Court is not inclined
to refer the judgments passed by this Court.

16. In the case of Hardeep Singh
(supra), the Hon'ble Apex Court on the
issue involved herein observed as under:

"105. Power under Section
319 CrPC is a discretionary and an
extraordinary 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
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
lead to conviction. In the absence
of such satisfaction, the court
should refrain from exercising
power under Section 319 CrPC. In
Section 319 CrPC 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
CrPC to form any opinion as to the
guilt of the accused."

Subsequently, the Hon'ble Apex
Court in the case of Brijendra Singh
(supra)
considered
the
expression
'evidence'
and
after
considering
the
language couched under Section 319
Cr.P.C. as also the expression 'evidence',
the Hon'ble Apex Court observed as under:

"13. In order to answer the
question, some of the principles
enunciated in Hardeep Singh case
may be recapitulated: power under
Section 319 CrPC can be exercised
by the trial court at any stage
during the trial i.e. before the
conclusion of trial, to summon any
person as an accused and face the
trial in the ongoing case, once the
trial court finds that there is some
"evidence" against such a person
on the basis of which evidence it
can be gathered that he appears to
be guilty of the offence. The
"evidence"
herein
means
the
material that is brought before the
court during trial. Insofar as the
material/evidence collected by the
IO at the stage of inquiry is
concerned, it can be utilised for
corroboration and to support the
evidence recorded by the court to
invoke the power under Section 319
CrPC. No doubt, such evidence
that has surfaced in examinationin-chief,
without
cross-
examination of witnesses, can also
be
taken
into
consideration.
However, since it is a discretionary
power given to the court under
Section 319 CrPC and is also an
extraordinary one, same has to be
exercised sparingly and only in
those
cases
where
the
circumstances of the case so
warrant. The degree of satisfaction
is more than the degree which is
warranted at the time of framing of
the charges against others in
respect of whom charge-sheet was
filed. Only where strong and cogent
evidence occurs against a person
from the evidence led before the
court that such power should be
exercised. It is not to be exercised
in a casual or a cavalier manner.
The prima facie opinion which is to
be
formed
requires
stronger
evidence than mere probability of
his complicity.
14. When we translate the
aforesaid principles with their
application to the facts of this case,
we gather an impression that the
trial court acted in a casual and
cavalier manner in passing the
summoning
order
against
the
appellants. The appellants were
named in the FIR. Investigation
was carried out by the police. On
the basis of material collected
during investigation, which has
been referred to by us above, the IO
8 All. Asad Ali @ Munna & Ors. Vs. State of U.P. & Anr.
1131
found that these appellants were in
Jaipur city when the incident took
place in Kanaur, at a distance of
175 km. The complainant and
others who supported the version in
the FIR regarding alleged presence
of the appellants at the place of
incident had also made statements
under Section 161 CrPC to the
same effect. Notwithstanding the
same,
the
police
investigation
revealed that the statements of
these
persons
regarding
the
presence of the appellants at the
place of occurrence was doubtful
and did not inspire confidence, in
view of the documentary and other
evidence
collected
during
the
investigation,
which
depicted
another
story
and
clinchingly
showed that the appellants' plea of
alibi was correct.
15. This record was before
the trial court. Notwithstanding the
same, the trial court went by the
depositions of the complainant and
some
other
persons
in
their
examination-in-chief, with no other
material to support their so-called
verbal/ocular version. Thus, the
"evidence" recorded during trial
was
nothing
more
than
the
statements which were already
there under Section 161 CrPC
recorded
at
the
time
of
investigation of the case. No doubt,
the trial court would be competent
to exercise its power even on the
basis of such statements recorded
before it in examination-in-chief.
However, in a case like the present
where a plethora of evidence was
collected
by
the
IO
during
investigation
which
suggested
otherwise, the trial court was at
least duty-bound to look into the
same while forming prima facie
opinion and to see as to whether
much stronger evidence than mere
possibility of their (i.e. appellants)
complicity has come on record.
There is no satisfaction of this
nature. Even if we presume that the
trial court was not apprised of the
same at the time when it passed the
order (as the appellants were not
on the scene at that time), what is
more troubling is that even when
this
material
on
record
was
specifically brought to the notice of
the High Court in the revision
petition filed by the appellants, the
High Court too blissfully ignored
the
said
material.
Except
reproducing
the
discussion
contained in the order of the trial
court and expressing the agreement
therewith, nothing more has been
done. Such orders cannot stand
judicial scrutiny."

17. In the case of Rajesh and Others
Vs. State of Haryana, reported in (2019) 6
SCC 368, the Hon'ble Apex Court
considered the observations made in the
cases of Hardeep Singh (surpa) and
Brijendra Singh (supra) as also the
expression 'evidence' and also various
other pronouncements on the issues related
to summoning the accused in exercise of
power under Section 319 Cr.P.C., which is
apparent from the following portion of the
report:

"3.5. Relying
upon
the
decision of this Court in Brijendra
Singh v. State
of
Rajasthan [Brijendra Singh v. State
of Rajasthan, (2017) 7 SCC 706 :
(2017) 4 SCC (Cri) 144] , it is
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
vehemently
submitted
by
Shri
Basant, learned Senior Advocate
appearing
on
behalf
of
the
appellants that, as observed by this
Court, merely on the basis of the
deposition of the complainant and
some other persons, with no other
material to support their so-called
verbal/ocular version, no person
can be arrayed as an accused in
exercise of powers under Section
319 CrPC. It is submitted by the
learned Senior Advocate appearing
on behalf of the appellants that, as
observed by this Court in the
aforesaid
decision,
such
an
"evidence" recorded during the
trial is nothing more than the
statements which was already there
under Section 161 CrPC recorded
at the time of investigation of the
case. Relying upon the aforesaid
decision, it is vehemently submitted
by the learned Senior Advocate
appearing
on
behalf
of
the
appellants that, in any case, the
learned Magistrate was bound to
look into the evidence collected by
the investigating officer during
investigation which suggested that
the accused were not present at the
time of commission of the offence.
It is submitted that, in the present
case, the learned Magistrate on the
applications submitted by the SHO
in fact discharged the appellantaccused herein and allowed the
applications submitted by the SHO
in which it was categorically stated
that the appellants are innocent
and that they were not present at
the time of the incident. It is
submitted that therefore the High
Court has erred in dismissing the
revision petition and confirming the
order
passed
by
the
learned
Magistrate
in
summoning
the
appellant-accused herein to face
the trial for the offences under
Sections 148, 149, 323, 324, 325,
302, 307 and 506 IPC, which was
passed in exercise of powers under
Section 319 CrPC.
***
6. While considering the
aforesaid
question/issue,
few
decisions of this Court are required
to be referred to and considered.
6.1. The
first
decision
which is required to be considered
is a decision of the Constitution
Bench of this Court in Hardeep
Singh [Hardeep Singh v. State of
Punjab, (2014) 3 SCC 92 : (2014) 2
SCC (Cri) 86] which has been
consistently followed by this Court
in subsequent decisions.
6.2. In Hardeep
Singh [Hardeep Singh v. State of
Punjab, (2014) 3 SCC 92 : (2014) 2
SCC (Cri) 86] , this Court had the
occasion to consider in detail the
scope and ambit of the powers of
the Magistrate under Section 319
CrPC the object and purpose of
Section 319 CrPC, etc. In the said
case, the following five questions
fell for consideration before this
Court : (SCC p. 112, para 6)
"6. ... 6.1.(i) What is the
stage at which power under Section
319 CrPC can be exercised?

6.2.(ii) Whether the word
"evidence" used in Section 319(1)
CrPC could only mean evidence
tested by cross-examination or the
court can exercise the power under
the said provision even on the basis
of the statement made in the
8 All. Asad Ali @ Munna & Ors. Vs. State of U.P. & Anr.
1133
examination-in-chief of the witness
concerned?
6.3.(iii) Whether the word
"evidence" used in Section 319(1)
CrPC
has
been
used
in
a
comprehensive sense and includes
the
evidence
collected
during
investigation
or
the
word
"evidence"
is
limited
to
the
evidence recorded during trial?
6.4.(iv) What is the nature
of the satisfaction required to
invoke the power under Section 319
CrPC to arraign an accused?
Whether the power under Section
319(1) CrPC can be exercised only
if the court is satisfied that the
accused summoned will in all
likelihood be convicted?
6.5.(v) Does the power
under Section 319 CrPC extend to
persons not named in the FIR or
named in the FIR but not charged
or who have been discharged?"
6.3. While considering the
aforesaid questions, this Court
observed and held as under :
(Hardeep
Singh
case [Hardeep
Singh v. State of Punjab, (2014) 3
SCC 92 : (2014) 2 SCC (Cri) 86] ,
SCC pp. 114-17, 123 & 125-26,
paras 12-14, 17-19, 22, 47 & 5356)
"12. Section 319 CrPC
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?
14. The submissions that
were raised before us covered a
very wide canvas and the learned
counsel have taken us through
various provisions of CrPC and the
judgments that have been relied on
for
the
said
purpose.
The
controversy centres around the
stage at which such powers can be
invoked by the court and the
material on the basis whereof such
powers can be exercised.
***
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
charge-sheet
filed
under
Section 173 CrPC 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
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
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 the 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 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.
***
22. In our opinion, Section
319 CrPC is an enabling provision
empowering the court to take
appropriate steps for proceeding
against any person not being an
accused for also having committed
the offence under trial.
***
47. Since after the filing of
the charge-sheet, the court reaches
the stage of inquiry and as soon as
the court frames the charges, the
trial commences, and therefore, the
power under Section 319(1) CrPC
can be exercised at any time after
the charge-sheet is filed and before
the pronouncement of judgment,
except during the stage of Sections
207/208 CrPC, committal, etc.
which is only a pre-trial stage,
intended to put the process into
motion. This stage cannot be said
to be a judicial step in the true
sense for it only requires an
application of mind rather than a
judicial application of mind. At this
pre-trial stage, the Magistrate is
required to perform acts in the
nature
of
administrative
work
rather
than
judicial
such
as
ensuring compliance with Sections
207 and 208 CrPC, and committing
the matter if it is exclusively triable
by the Sessions Court.