# Balbeer Revisionist v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 673
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-29
- **Bench:** Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balbeer-revisionist-v-state-of-u-p-ors-44193
- **Pages:** 22

## Headnote

Criminal law-Criminal Revision - Order dated 27.09.2013 - Application (98-Ka) under Section 319
Cr.P.C. - Rejected - Summoning of additional accused - Earlier application rejected - Prosecution witnesses
not cross examined - Subsequent application - Delay of more than 8 years - Stage of recording statement
under Section 313 Cr.P.C. - Enquiry into or trial of an offence - No limitation prescribed - Evidence recorded
during trial - FIR named accused - No charge sheet filed - Complicity of proposed accused - Evidence of PW1 Balbeer, PW-2 Kishanpal, PW-3 Ramveer and PW-4 Jogendra - Names, parentage and arms - Satisfaction -
More than prima facie case - Short of satisfaction to an extent that evidence if goes unrebutted would lead to
conviction - Pre-trial stage - Trial at final stage - Contradictory evidence - Medical evidence - Intention of
674 INDIAN LAW REPORTS ALLAHABAD SERIES

causing delay - Failure of justice - De novo trial - Section 319(4) Cr.P.C. - Application allowed - Order set
aside.

It is submitted by learned counsel for the revisionist that:
While passing the impugned order, the Lower Court has not applied its judicial mind and passed an illegal
order. The lower court has failed to consider that specific role has been assigned to the proposed accused.
They were nominated in the FIR and all the witnesses examined by the prosecution i.e. complainantrevisionists P.W. 1 Balbeer, P.W. 2 Kishan Pal, P.W. 3 Ramveer and PW-4 Jogendra have also specified their
roles in their respective statements recorded before the Trial Court.
Though earlier application filed by the complainant-revisionist under section 319 Cr.P.C. was rejected by the
Lower Court but it will not affect the fate of the subsequent application moved by the complainant revisionist
because earlier application was rejected on the ground that till that time cross examination of the
complainantrevisionist was not started and other witnesses were also not examined. But now the witnesses
of facts, P.W. 1,P.W. 2, P.W. 3 and PW-4 were examined and they were cross examined by the defence.
The delay which has been caused in moving the application is due to time consumed in the examination of
the prosecution witnesses and their cross examination.
To buttress his arguments, learned counsel for the revisionist has placed reliance on a judgment in the case of
Hardeep Singh Versus State of Punjab 2013(85) A.C.C. 313.
(Para-4-4.4)

Per contra, Sri Rajesh Yadav, learned counsel for O.P. Nos. 2 and 3, controverting the above submissions of
the learned counsel for the revisionist urged that:
Admittedly, earlier application filed by the complainan trevisionist under section 319 Cr.P.C. was heard and
rejected on merits vide order dated 3.8.2006.
After completion of the evidence of the prosecution, the case was fixed on 23.9.2013 for recording the
statements of accused respondent under section 313 Cr.P.C. and subsequent to that second application under
section 319 Cr.PC. has been filed for summoning of O.P. Nos. 2 and 3, which is not maintainable.
The Lower Court has passed a perfectly just and legal order, recording sufficient reasons for passing the same
alongwith discussion of the relevant case laws as such there is no illegality or irregularity in the impugned
order.
The revision lacks merits and is liable to be dismissed.
(Paras 5-5.4)

Held:(Paras- 28-32)

## Text

_Characters 0–39,977 of 66,832. This is a partial read: ask again with offset=39977 for what follows._

7 All. Balbeer Vs State Of U.P. & Ors.
673
7. This is a case where the alleged accused persons were named in the F.I.R. and in the
evidence of the informant, Govardhan Singh. The court concerned in the impugned order dated
18.10.2014 has discussed the evidence and the material available on record but it has oversighted
the fact that the alleged accused persons were named in the F.I.R. and also assigned specific role
during the commission of the crime and this has been reiterated in the oral evidence of P.W.-1,
Govardhan Singh.

8. The legal maxim "A verbis legis non est recedendum" which means, "from the words of
law, there must be no departure" has to be kept in mind. Thus, there must not be any other
interpretation of Section 319 Cr.P.C.

9. The impugned order dated 18.10.2014 passed by the learned Additional Sessions Judge,
Court No.9, Mathura suffers from legal infirmity and deserves to be set aside. Resultantly, revision
is liable to be allowed.

10. The criminal revision is allowed. The impugned order dated 18.10.2014 passed by the
learned Additional Sessions Judge, Court No.9, Mathura is hereby set aside.
----------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.07.2016

BEFORE

THE HON'BLE SHASHI KANT, J.

Criminal Revision No.- 3828 Of 2014

Balbeer ...Revisionist
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Vivek Kumar Singh, Mayank Yadav

Counsel for the Opposite Parties:
Govt. Advocate, Rajesh Yadav

 Criminal law-Criminal Revision - Order dated 27.09.2013 - Application (98-Ka) under Section 319
Cr.P.C. - Rejected - Summoning of additional accused - Earlier application rejected - Prosecution witnesses
not cross examined - Subsequent application - Delay of more than 8 years - Stage of recording statement
under Section 313 Cr.P.C. - Enquiry into or trial of an offence - No limitation prescribed - Evidence recorded
during trial - FIR named accused - No charge sheet filed - Complicity of proposed accused - Evidence of PW1 Balbeer, PW-2 Kishanpal, PW-3 Ramveer and PW-4 Jogendra - Names, parentage and arms - Satisfaction -
More than prima facie case - Short of satisfaction to an extent that evidence if goes unrebutted would lead to
conviction - Pre-trial stage - Trial at final stage - Contradictory evidence - Medical evidence - Intention of
674 INDIAN LAW REPORTS ALLAHABAD SERIES

causing delay - Failure of justice - De novo trial - Section 319(4) Cr.P.C. - Application allowed - Order set
aside.

It is submitted by learned counsel for the revisionist that:
While passing the impugned order, the Lower Court has not applied its judicial mind and passed an illegal
order. The lower court has failed to consider that specific role has been assigned to the proposed accused.
They were nominated in the FIR and all the witnesses examined by the prosecution i.e. complainantrevisionists P.W. 1 Balbeer, P.W. 2 Kishan Pal, P.W. 3 Ramveer and PW-4 Jogendra have also specified their
roles in their respective statements recorded before the Trial Court.
Though earlier application filed by the complainant-revisionist under section 319 Cr.P.C. was rejected by the
Lower Court but it will not affect the fate of the subsequent application moved by the complainant revisionist
because earlier application was rejected on the ground that till that time cross examination of the
complainantrevisionist was not started and other witnesses were also not examined. But now the witnesses
of facts, P.W. 1,P.W. 2, P.W. 3 and PW-4 were examined and they were cross examined by the defence.
The delay which has been caused in moving the application is due to time consumed in the examination of
the prosecution witnesses and their cross examination.
To buttress his arguments, learned counsel for the revisionist has placed reliance on a judgment in the case of
Hardeep Singh Versus State of Punjab 2013(85) A.C.C. 313.
(Para-4-4.4)

Per contra, Sri Rajesh Yadav, learned counsel for O.P. Nos. 2 and 3, controverting the above submissions of
the learned counsel for the revisionist urged that:
Admittedly, earlier application filed by the complainan trevisionist under section 319 Cr.P.C. was heard and
rejected on merits vide order dated 3.8.2006.
After completion of the evidence of the prosecution, the case was fixed on 23.9.2013 for recording the
statements of accused respondent under section 313 Cr.P.C. and subsequent to that second application under
section 319 Cr.PC. has been filed for summoning of O.P. Nos. 2 and 3, which is not maintainable.
The Lower Court has passed a perfectly just and legal order, recording sufficient reasons for passing the same
alongwith discussion of the relevant case laws as such there is no illegality or irregularity in the impugned
order.
The revision lacks merits and is liable to be dismissed.
(Paras 5-5.4)

Held:(Paras- 28-32)

1. It is evident from the above referred evidence of prosecution that all the above prosecution witnesses have
given evidence regarding complicity of proposed accused in the alleged crime with necessary details regarding
their names, parentage and arms kept by them during alleged incident.

2. As the matter related to proposed accused is at the pretrial stage, therefore, it is not desirable to enter into
detailed discussion and analysis of the prosecution evidence available against the proposed accused and
record finding on merits of those. At this stage it will suffice to note that evidence of above referred
prosecution witnesses PW-1, PW-2, PW-3 and PW-4 stood the test of requirement of recording satisfaction to
the effect that there is sufficient evidence to proceed further, against the proposed accused.

3. A close scrutiny of the order impugned reveals that it is in the nature of final acquittal order without any
regular trial of the proposed accused for the henious offence of murder, which is neither permissible nor
sustainable in the eyes of law and if permitted to stand, will cause failure of justice.
7 All. Balbeer Vs State Of U.P. & Ors.
675
4. For the reasons recorded above, this revision deserves to be allowed and is allowed accordingly. Order
impugned dated

5. 27.09.2013 is set aside. Application (98ka) moved for summoning of opposite parties under Section 319
Cr.P.C. to face the trial is allowed. Lower court will take all necessary steps in this regard within two weeks
from the date of filing of this order. However, it will be open to the Lower Court to decide whether proposed
accused will be tried together with the original accused facing the trial or they will be tried separately as
prescribed under Section 319(4) Cr.P.C.

6. It is made clear that this Court is not expressing any opinion with regard to the merits of the case and
whatever observations have been made in this judgment are only for the purpose of deciding this revision. 33.
No order as to costs.

Case Law discussed:

1.State of Assam Versus Abdul Halim, A.I.R. 1992 S.C. 2068 (Para-11)
2.Brijesh Kumar and another Versus State of U.P. and others, 2003 All.L.J. 52 (Para-12)
3.Amar Nath Versus State of Haryana, 1997 (4) SCC 137 (Para-13)
3.Radha Mohan Gond Versus State of Bihar, 2006 Cri.L.J. 3533 (Para-14)
4.Bholu Ram Versus State of Punjab and others, 2008 (9) SCC 140 (Para-15)
5.Hardeep Singh Versus State of Punjab and Others, 2014 (85) ACC 313 (Paras-16, 21)
6.Jogendra Yadav and Others Versus State of Bihar and Others (Para-17)
7.State of Madhya Pradesh Versus Rakesh Mishra, (2015) 13 SCC 8 (Para-18)
8.Harveer Singh and Others Versus State of U.P. and Another, Criminal Revision No. 3822 of 2007 (decided on
31.07.2015) (Para-19)
9.Pankaj Verma Versus State of U.P. and Others, Application U/S 482 No. 20458 of 2016 (decided on
15.07.2016) (Para-20)

(Delivered by Hon'ble Shashi Kant, J.)

1. Heard learned counsel for the revisionist, learned A.G.A. for the State and Sri Rajesh
Yadav, learned counsel for Opposite Party Nos. 2 and 3.

2. Since, after exchange of counter and rejoinder affidavit pleadings are complete,
therefore, with the consent of learned counsel for the parties this revision is being finally heard and
decided.

3. This criminal revision under section 397/401 of Criminal Procedure Code, 1973 (In short
'Cr.P.C.') has been filed against the order dated 27.9.2013 passed by Additional Sessions Judge,
Court No. 9, Budaun in S.T. No. 818 of 2003 - State Versus Rajendra and others, under sections
147,148,149,302 of Indian Penal Code, 1860 (In short 'I.P.C.'), whereby application (98-Ka) under
section 319 Cr.P.C. filed by the revisionist for summoning of additional accused was rejected.

4. It is submitted by learned counsel for the revisionist that:

4.1 While passing the impugned order, the Lower Court has not applied its judicial
mind and passed an illegal order. The lower court has failed to consider that specific role has been
676 INDIAN LAW REPORTS ALLAHABAD SERIES

assigned to the proposed accused. They were nominated in the FIR and all the witnesses examined
by the prosecution i.e. complainant-revisionists P.W. 1 Balbeer, P.W. 2 Kishan Pal, P.W. 3
Ramveer and PW-4 Jogendra have also specified their roles in their respective statements recorded
before the Trial Court.

4.2 Though earlier application filed by the complainant-revisionist under section
319 Cr.P.C. was rejected by the Lower Court but it will not affect the fate of the subsequent
application moved by the complainant revisionist because earlier application was rejected on the
ground that till that time cross examination of the complainant-revisionist was not started and other
witnesses were also not examined. But now the witnesses of facts, P.W. 1,P.W. 2, P.W. 3 and PW4 were examined and they were cross examined by the defence.

4.3 The delay which has been caused in moving the application is due to time
consumed in the examination of the prosecution witnesses and their cross examination.

4.4 To buttress his arguments, learned counsel for the revisionist has placed
reliance on a judgment in the case of Hardeep Singh Versus State of Punjab 2013(85) A.C.C.
313.

5. Per contra, Sri Rajesh Yadav, learned counsel for O.P. Nos. 2 and 3, controverting the
above submissions of the learned counsel for the revisionist urged that:

5.1 Admittedly, earlier application filed by the complainant-revisionist under
section 319 Cr.P.C. was heard and rejected on merits vide order dated 3.8.2006.

5.2 After completion of the evidence of the prosecution, the case was fixed on
23.9.2013 for recording the statements of accused respondent under section 313 Cr.P.C. and
subsequent to that second application under section 319 Cr.PC. has been filed for summoning of
O.P. Nos. 2 and 3, which is not maintainable.

5.3 The Lower Court has passed a perfectly just and legal order, recording
sufficient reasons for passing the same alongwith discussion of the relevant case laws as such there
is no illegality or irregularity in the impugned order.

5.4 The revision lacks merits and is liable to be dismissed.

6. I have given my careful consideration to the rival arguments raised by learned counsel
for the parties and perused the record.

7. From perusal of impugned judgment and order dated 27.09.2013, passed on the earlier
application of the revisionist under Section 319 Cr.P.C. it is clear that earlier application filed by
the complainant revisionist was rejected on the ground that prosecution witness was not cross
examined by the defence, but now that defect has been cured by examination and cross
7 All. Balbeer Vs State Of U.P. & Ors.
677
examination of prosecution witnesses namely PW 1 - Balveer, PW 2 - Krishanpal, PW 3 - Ramveer
and PW-4 Jogendra, as such rejection of earlier application of the complainant revisionist under
section 319 Cr.P.C. will not affect the merits of second application of the complainant moved under
section 319 Cr.PC. for summoning of O.P. Nos. 2 and 3.

8. In view of the above, now, only it has to be seen as to whether on the ground that the
application of the complainant- revisionist moved under section 319 Cr.P.C. with delay of more
than 8 years after rejection of earlier application at the stage of recording statement under Section
313 Cr.P.C. will preclude its filing. In other words, whether on the above grounds, aforesaid
application under section 319 Cr.P.C. is not maintainable and liable to be rejected?

9. To find out the answer of above question, relevant legal provisions and case laws on the
point is desired to be taken into consideration, which are being referred hereinafter.

10. Sections 227, 228 and 319 Cr.P.C. are relevant for the purpose of this revision, which
read as under :

Section 227 Cr.P.C.

Discharge

"227. If, upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the
Judge considers that there is not sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing."

Section 228 Cr.P.C.

Framing of Charge.

"228. (1) If, after such consideration and hearing as aforesaid, the Judge is of
opinion that there is ground for presuming that the accused has committed an offence which -

(a) is not exclusively triable by the Court of Session, he may, frame a charge
against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate [or
any other Judicial Magistrate of the first class and direct the accused to appear before the Chief
Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date
as he deems fit, and thereupon such Magistrate] shall try the offences in accordance with the
procedure for the trial of warrant-cases instituted on a police report ;

(b) is exclusively triable by the Court, he shall frame in writing a charge against
the accused.
678 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Where the Judge frames any charge under clause (b) of sub- section (1), the
charge shall be read and explained to the accused and the accused shall be asked whether he
pleads guilty of the offence charged or claims to be tried."

Section 319 Cr.P.C.

"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."

11. In State of Assam Versus Abdul Halim A.I.R. 1992 S.C. 2068. Hon'ble Apex Court
has set aside the decision of the Division Bench of the High Court of Guwahati in exercise of
inherent jurisdiction and quashed the order of the learned Single Judge passed, in Criminal revision
no. 155 of 1978 dated 12.12.1978. The order impugned in the above Criminal Revision was passed
by the Sessions Judge of Nawagaon in Sessions Case No. 18(N)/74, during the trial of murder case,
in exercise of the powers conferred under section 319 Cr.P.C., proposed five accused respondents
before the Apex Court, were summoned to be tried together with four other original accused
already committed by the magistrate to face trial under section 302/34 I.P.C. Non Bailable
Warrants were also issued against proposed accused. However, keeping in view the fact that order
of Sessions Judge was dated 23.9.1974 i.e. 18 years prior and status or the result of the Sessions
case was also not available before the Court, the Hon'ble Apex Court has allowed the appeal with
the direction not to proceed against the respondents.
7 All. Balbeer Vs State Of U.P. & Ors.
679
12. In the case of Brijesh Kumar and another Versus State of U.P. and others 2003 All.L.J.
At page 52 the Court in para 11 had held :-

"11. So far the prima facie evidence regarding involvement of the applicants in the
offence is concerned there is evidence of Onkar Singh ( P.W. 1) and Dalveer Singh( P.W. 5). These
witnesses have stated the involvement of the applicants in the offence and corroborated F.I.R.
Version. However, three other witnesses Jai Naraian( P.W. 2, Khajan Singh( P.W.3) and Udaiveer
Singh( P.W.4) have not stated about the involvement of the applicants. But at this stage it cannot be
said as to which of the witnesses are reliable and which are concealing the truth before the Court.
The reliability of the witnesses shall be decided by the trial court at the appropriate stage. It is
sufficient for purposes of this revision to observe that the two witnesses have stated about the
involvement of the applicants and therefore there was sufficient ground for the learned session
judge to summon the applicants under section 319 Cr.P.C."

13. In Amar Nath Versus State of Haryana 1997 (4) SCC 137 it was held that:-

"13. The Apex Court has held that a person summoned as additional accused,when
in the meantime trial of main case concludes, additional accused has to face trial because de novo
trial has to be held qua him. The pointed question raised was that the additional accused could be
tried only with the accused Who was being already tried and that if the trial qua the said accused
has concluded, the additional accused cannot be tried pursuant to order passed under Section 319
of the Code. This view has been rejected and the Apex Court has held that even if trial of the
accused who was being tried has concluded and that the power has been invoked under Section
319 and the additional accused has been summoned to stand the trial, the de novo trial shall be
held and that in such a situation the summoning order shall not become inoperative.

14. The question had once again come up for consideration before the Apex Court
as to what is the effect of conclusion of trial against the accused who was being proceeded with,
when the order is passed under Section 319(1) for proceeding against newly added person. The
Apex Court has observed in re : Shashikant Singh v. Tarkeshwar Singh (2002) 3 Rec Cri R 191 :
(2002 Cri LJ 2806), as under :--

"8. The effect of the conclusion of the trial against the accused who was being
proceeded with when the order was passed under Section 319(1) for proceeding against the newly
added person, is to be examined in the light of Sub-section (4) of Section 319 which stipulates a de
novo trial in respect of the newly added persons and certain settled principles of interpretation.

9. When a statute is passed for the purpose of enabling something to be done, and
prescribes the way in which it is to be done, it may be either an absolute enactment or a directory
enactment. The difference being an absolute enactment must be obeyed or fulfilled exactly, but it is
sufficient if a directory enactment be obeyed or fulfilled substantially. No universal rule can be laid
down as to whether mandatory enactments shall be considered directory only or obligatory with an
implied nullification for disobedience. It is the duty of courts of justice to try to get the real
680 INDIAN LAW REPORTS ALLAHABAD SERIES

intention of the legislature by carefully attending to the whole scope of the statute to be construed.
(Craies on Statute Law, 7th Edn. pages 260-262).

10. The intention of the provision here is that where in the course of any enquiry
into, or trial of, an offence, it appears to the court from the evidence that any person not being the
accused has committed any offence, the Court may proceed against him for the offence which he
appears to have committed. At that stage, the Court would consider that such a person could be
tried together with the accused who is already before the court facing the trial. The safeguard
provided in respect of such person is that the proceedings right from the beginning have
mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de
novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a
person so brought before the Court. It would not be sufficient to only tender the witnesses for the
cross-examination of such person. They have to be examined afresh. Fresh examination-in-chief
and not only their presentation for the purpose of cross- examination of the newly added accused is
mandate of Section 319(4). The words could be tried together with the accused in Section 319(1),
appear to be only directory. Could be cannot under these circumstances be held to be must be. The
provision cannot be interpreted to mean that since the trial in respect of a person who was before
the Court has concluded with the result that the newly added person cannot be tried together with
the accused who was before the Court when order under Section 319(1) was passed, the order
would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the
basis of evidence before it that the newly added person appears to have committed the offence
resulting in an order for his being brought before the Court.

11. Where a statute does not consist merely of one enactment, but contains a
number of different provisions regulating the manner in which something is to be done, it often
happens that some of these provisions are to be treated as being directory only, while others are to
be considered absolute and essential; that to say some of the provisions may be disregarded
without rendering invalid the things to be done, but others not. (Craies on Statute Law, 7th Edn.
Page 266- 267).

12. The mandate of the law of fresh trial is mandatory whereas the mandate that
newly added accused could be tried together the accused directly.

13. On facts, the court could not have intended while concluding the trial against
Chandra Shekhar Singh, to nullify its earlier order directing issue of warrants against respondent
No. 1. The construction to be placed on a provision like this has to commend to justice and reason.
It has to be reasonable construction to promote the ends of justice. The words 'could be' tried
together with the accused, in Section 319(1) cannot be said to be capable of only one construction.
If it was so approach to be adopted would be different since the intention of the Parliament is to be
respected despite the consequences of interpretation. There is, however, a scope for two possible
constructions. That being the position, a reasonable and common sense approach deserves to be
adopted and preferred rather than a construction that would lead to absurd results of respondent
No. 1 escaping the trial despite passing of all order against him on Court's satisfaction under
7 All. Balbeer Vs State Of U.P. & Ors.
681
Section 319(1) and despite the fact that the proceedings against him have to commence afresh. In
this view, the fact that trial against Chandra Shekhar Singh has already concluded is of no
consequence insofar as respondent No. 1 is concerned.

15. The powers conferred under Section 319(1) of the Code are extraordinary
powers and it enjoins upon the Court to summon a person not being the accused to stand trial if the
Court is of the view that such person has committed the offence. The words "in the course of
inquiry into, or trial of an offence" would only indicate that if the Court while conducting the trial
comes to a conclusion that such other person also seems to be involved, summoning orders can be
issued. The other word i.e. "tried together with the accused" have been qualified under Sub-section
(4) of Section 319 i.e. the proceedings in respect of such person shall be commenced a afresh and
the witnesses reheard. Thus, the trial of such person together with the accused stands qualified that
even if the trial in respect of the accused has concluded, the additional accused can be tried. The
powers of the Court have not been put into water tight jacket to be used with buts and ifs. The
scope is much wider. It is obvious that the facts would be divulged only in the course of inquiry
into, or when the trial has commenced and is going on qua the accused already named. The
word"any person not being the accused" has also been interpreted that even if a person has not
been proceeded against by the prosecution, though his name has occurred in the complaint/FIR,
would not deter the power of the Court to proceed under Section 319. The scope of and object of
the aforesaid provision is that if a fact is disclosed/divulged during the aforesaid stages, the Court
would be competent to proceed against such person.

16. I am of the opinion that in the case at hand, the Magistrate has correctly
summoned the petitioner to stand trial upon the basis of the facts which have been disclosed during
the trial. The extraordinary powers which have been conferred upon the Courts by virtue of Section
319, cannot be allowed to be diluted by any buts and ifs and the rigor of any other procedural
provision. The power is so explicit as the legislature did not want that any person who may be
found guilty on the occasion when the evidence is disclosed before the Court should go scot free. A
word of caution needs to be followed that the power has to be exercised cautiously and with an
endeavour that no one should suffer unnecessarily. It is categorically required that the Court must
apply its mind before invocation of extraordinary power. Once such power has been exercised,
normally the process and procedure should be allowed to be followed."

14. In Radha Mohan Gond Versus State of Bihar 2006 Cri.L.J. 3533 Patna High Court
said as under :-

"6. Section 319 of the Code provides that such person summoned there under could
be tried together with the other accused already facing trial. When this happens the proceedings in
respect of such persons shall commence afresh and the witnesses reheard. In essence, the
submission of the petitioners is that if powers under Section 319 Cr.P.C. have been exercised any
person summoned there under must be tried along with other accused already facing trial and the
entire trial must commence denovo with fresh examination in chief and cross-examination of the
witnesses for the prosecution and the defence.
682 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The emerging position in law thus is that the trial in respect of a person
summoned under Section 319 of the Code had mandatorily to be commenced afresh denovo, it was
not mandatory that such person be only tried along with other accused.

9. In view of the aforesaid discussion and the judicious reasons given by the court
below separating the trial of the present petitioners from the other accused this Court finds no
reason to interfere with the same. In any event, no prejudice shall be caused to the petitioners.

10. The petitioners have clearly been named by the victim in his deposition. This
Court can do no better than rely upon a judgment of the Supreme Court in the case of Rakesh v.
State of Haryana . The appellant therein had been summoned in exercise of powers under Section
319 Cr.P.C. in a case under Section 376 and other provisions. Their Lordships at paragraph 14 of
the judgment held:

"............In our view, there cannot be a dispute that power under Section 319 is to
be sparingly used. But that would not mean, that when a prosecutrix names three persons who were
involved in the serious crime are not to be added as accused by exercise of such power."

11. The facts of this case reflects that the petitioners have been summoned on basis
of the deposition of the victim of abduction who has named the petitioners as participants. The fact
that they may not have been involved at the time of actual abduction but had met the abductors and
given them arms whereafter the abductors proceeded with the victim, to this Court is not of much
relevance at this stage."

15. In Bholu Ram Versus State of Punjab and others 2008 (9) SCC 140 Hon'ble Apex
Court has taken into consideration the time limit for filing application under section 319 Cr.P.C.
and correctness or otherwise of evidence and held as follows :

"19. Section 319 of the Code empowers a Court to proceed against any person not
shown to be an accused if it appears from the evidence that such person has also committed an
offence for which he can be tried together with the accused.
..................
21. Sometimes a Magistrate while hearing a case against one or more accused
finds from the evidence that some person other than the accused before him is also involved in that
very offence. It is only proper that a Magistrate should have power to summon by joining such
person as an accused in the case. The primary object underlying Section 319 is that the whole case
against all the accused should be tried and disposed of not only expeditiously but also
simultaneously. Justice and convenience both require that cognizance against the newly added
accused should be taken in the same case and in the same manner as against the original accused.
The power must be regarded and conceded as incidental and ancillary to the main power to take
cognizance as part of normal process in the administration of criminal justice.
7 All. Balbeer Vs State Of U.P. & Ors.
683
22. It is also settled law that power under Section 319 can be exercised either on
an application made to the Court or by the Court suo motu. It is in the discretion of the Court to
take an action under the said section and the Court is expected to exercise the discretion judicially
and judiciously having regard to the facts and circumstances of each case.

23. In the instant case, an FIR was lodged against the appellant in August, 1986.
But it was during the course of trial that it came to light that signatures of respondent No. 2 were
also taken and were sent for examination and a report was received showing that the signatures on
the basis of which amount was withdrawn tallied with the signatures of respondent No. 2. The said
report, however, was not filed by the prosecution. It was in these circumstances that the appellant
made applications in 1994 and in 1996 under Section 319 of the Code requesting the learned
Magistrate to join respondent No. 2 as accused and to summon him.

24. The contention of the learned counsel for respondent No. 2 is that the power
under Section 319 of the Code, cannot be exercised belatedly by the Court. Again, such order can
be made only on the application by the Public Prosecutor or by some person other than the
accused. In other words, an application under Section 319 cannot be filed by a person who is
facing the trial.

25. We are unable to uphold the contentions. We have quoted Section 319 of the
Code. It nowhere states that such an application can be filed by a person other than the accused.
It also does not prescribe any time limit within which such application should be filed in the
Court......"

16. A Constitution Bench of Hon'ble Apex Court consisting five Judges in Hardeep Singh
Vs. State of Punjab and Others [2014 (85) ACC 313], has considered the various aspects of
Section 319 Cr.P.C. for the purpose of summoning additional accused and framed five questions
for its consideration.

16.1 In Hardeep Singh (supra) Hon'ble Apex Court has considered the decisions
rendered in the cases of Raghubans Dubey Vs. State of Bihar [1968 (5) ACC 69 (SC)]; State of
U.P. Vs. Lakshmi Brahman and Another [1983 (20) ACC 161 (SC)]; Raj Kishore Prasad Vs. State
of Bihar and Another [AIR 1996 SC 1931]; Moly and Another Vs. State of Kerala [2004 (49) ACC
103 (SC)]; State of Bihar Vs. Ram Naresh Pandey and Another [AIR 1957 SC 389]; Ratilal Bhanji
Mithani Vs. State of Maharashtra and Others [AIR 1979 SC 94]; V.C. Shukla Vs. State through
C.B.I. [AIR 1980 SC 962]; Union of India and Others Vs. Major General Madan Lal Yadav (Retd.)
[AIR 1996 SC 1340]; "Common Cause" a Registered Society thr. Its Director Vs. Union of India
and Others [AIR 1997 SC 1539]; In Re: Narayanaswamy Naidu Vs. Unknown [1 Ind Cas 228];
Sriramulu Vs. Veerasalingam [(1914) ILR 38 Mad. 585]; Dagdu Govindshet Wani Vs. Punja Vedu
Wani [(1936) 38 Bom. LR 1189]; Gomer Sirda Vs. Queen-Empress [(1898) ILR 25 Cal. 863];
Sahib Din Vs. The Crown [(1922) ILR 3 Lah. 115]; Fakhruddin Vs. The Crown [(1924) ILR 6 Lah.
176]; Labhsing Vs. Emperor [(1934) 35 CrLJ 1261] and held in paragraph no. 43 as under :
684 INDIAN LAW REPORTS ALLAHABAD SERIES

"43. .........as soon as the Court frames the charges, the trial commences, and
therefore, the power under Section 319 (1), Cr.P.C. can be exercised at any time after the charge
sheet is filed and before the pronouncement of judgment, ............."
(Emphasis supplied by this Court)

16.2 While considering the scope of word 'evidence' used in Section 3 of the
Evidence Act, which defines meaning of word 'evidence'. Hon'ble Apex Court has discussed
meaning of the word 'evidence' according to Tomlins Law Dictionary as well as decisions rendered
in the cases of M/s Mahalakshmi Oil Mills Vs. State of A.P. [AIR 1989 SC 335]; Punjab Land
Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court,
Chandigarh and Others [(1990) 3 SCC 682]; P. Kasilingam and Others Vs. P. S.G. College of
Technology and others [AIR 1995 SC 1395]; Hamdard (Wakf) Laboratories Vs. Dy. Labour
Commissioner and Others [AIR 2008 SC 968]; Ponds India Ltd. (merged with H.L. Limited) Vs.
Commissioner of Trade Tax, Lucknow [(2008) 8 SCC 369]; Feroze N. Dotivala Vs. P.M.
Wadhwani and Others [(2003) 1 SCC 433]; Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri and
Another [AIR 2011 SC 760]; Ameer Trding Corporation Ltd. Vs. Shapoorji Data Processing Ltd.
[AIR 2004 SC 355]; Omkar Namdeo Jadhao and Others Vs. Second Additional Sessions Judge
Buldana and Another [AIR 1997 SC 331]; Ram Swaroop and Others Vs. State of Rajasthan [AIR
2004 SC 2943]; Poda Narayana and Others Vs. State of A.P. [AIR 1975 SC 1252]; Sat Paul Vs.
Delhi Administration [AIR 1976 SC 294]; State (Delhi Administration) Vs. Laxman Kumar and
Others [AIR 1986 SC 250]; Lok Ram Vs. Nihal Singh and Another [AIR 2006 SC 1892];
Ramnarayan Mor and Another Vs. State of Maharashtra [AIR 1964 SC 949]; Sunil Mehta and
Another Vs. State of Gujarat and Another [JT 2013 (3) SC 328]; Guriya @ Tabassum Tauquir and
Others Vs. State of Bihar and Another [AIR 2008 SC 95]; Kishun Singh and Others Vs. State of
Bihar [(193) 2 SCC 16]; Ranjit Singh Vs. State of Punjab [AIR 1998 SC 3148]; Lal Suraj @ Suraj
Singh and Another Vs. State of Jharkhand [(2009) 2 SCC 696]; Rajendra Singh Vs. State of U.P.
and Another [AIR 2007 SC 2786], and thereafter, held in paragraph nos. 68 and 69 as under

"68. ......Court should not exercise the power under section 319, Cr.P.C. on the
basis of 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. The word 'evidence' in section
319,Cr.P.C. contemplates the evidence of witnesses given in the Court.

69............Therefore, for the exercise of power under section 319, Cr.P.C., the use
of word 'evidence' means material that has come before the Court during an inquiry or trial by it
and not otherwise. If from the evidence led in the trial the Court is of the opinion that a person not
accused before it has also committed the offence, it may summon such person under section 319,
Cr.P.C."

16.3. Hon'ble Apex Court further held in paragraph no. 80 of the judgment as
under :
7 All. Balbeer Vs State Of U.P. & Ors.
685
"80. 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 coroboration and to support the evidence recorded by the
Court to invoke the power under section 319, Cr.P.C. The 'evidence' is thus, limited to the evidence
recorded during trial."

16.4 In Hardeep Singh (supra) Hon'ble Apex Court has also examined scope and
meaning of the word 'evidence' used in section 319 Cr.P.C. i.e. Whether it is examination in chief
only or also together with cross-examination? The Court relying upon the decisions in the cases of
Rakesh Vs. State of Haryana [2001 (43) ACC 392 (SC)]; Ranjit Singh Vs. State of Punjab [AIR
1998 SC 3148]; Mohd. Shafi Vs. Mohd. Rafiq and Another [AIR 2007 SC 1899]; Harbhajan Singh
and Another Vs. State of Punjab and Another [(2009) 13 SCC 608] and held in paragraph 85 of the
judgment as under :

"85. Thus, in view of the above, we hold that power under section 319, Cr.P.C. can
be exercised at the stage of completion of examination in chief and Court does not need to wait till
the said evidence is tested on cross-examination for it is the satisfaction of the Court recorded by
the Court, in respect of complicity of some other person(s), not facing the trial in the offence."

16.5 In Hardeep Singh (supra) Hon'ble Apex Court has also considered the
question regarding degree of satisfaction required for invoking power under Section 319 Cr.P.C.
While replying this question Hon'ble Apex Court has taken into consideration the decisions
rendered in the cases of Pyare Lal Bhargava Vs. State of Rajasthan [AIR 1963 SC 1094]; Ram
Singh and Others Vs. Ram Niwas and Another [(2009) 14 SCC 25]; Vikas Vs. State of Rajasthan
[2013 (131) AIC 129 (SC)]; Rajendra Singh Vs. State of U.P. and Another [AIR 2007 SC 2786];
Mohd. Shafi Vs. Mohd. Rafiq and Another [AIR 2007 SC 1899]; Sarabjit Singh and Another Vs.
State of Punjab and Another [AIR 2009 SC 2792]; Brindaban Das and Others Vs. State of West
Bengal [AIR 2009 SC 1248]; Michael Machado and Another Vs. Central Bureau of Investigation
and Others [AIR 2000 SC 1127]; State of Karnataka Vs. L. Munishwamy and Others [AIR 1977 SC
1489]; All India Bank Officers' Confederation etc. Vs. Union of India and Others [AIR 1989 SC
2045]; Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia [(1989) 1 SCC 715]; Stte of
M.P. Vs. Dr. Krishna Chandra Saksena [(1996) 11 SCC 439]; State of M.P. Vs. Mohan Lal Soni
[AIR 2000 SC 2583]; Dilawar Babu Kurane Vs. State of Maharashtra [ AIR 2002 SC 564]; Union
of India Vs. Prafulla Kumar Samal and Another [AIR 1979 SC 366]; Suresh Vs. State of
Maharashtra [AIR 2001 SC 1375]; Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj
Bijjaya [AIR 1990 SC 1962]; State of Maharashtra Vs. Priya Sharan Maharaj [AIR 1997 SC
2041]; State of Bihar Vs. Ramesh Singh [AIR 1977 SC 2018]; Palanisamy Gounder and Another
Vs. State, represented by Inspector of Police [(2005) 12 SCC 327] and replied the above question
in paragraph no. 99 as under :

"99.