# Bharat Singh Revisionist v. State of U.P. & Anr

- **Citation:** (2024) 12 ILRA 442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-09
- **Case number:** Criminal Revision No. 1989 of 2024
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharat-singh-revisionist-v-state-of-u-p-anr-51218
- **Pages:** 10

## Headnote

Law-
Criminal
Procedure
Code,1973 - Section 319- Power to
summon additional accused - Timing of
exercise of the power vested under
Section 319- Summoning order passed
prior to recording conviction and sentence
of co-accused - Permissibility - Held,
Court not functus officio - Separate trial
of summoned accused permissible -
Summoning order valid. (Paras 10, 21, 23,
24, and 25)

HELD:
The Hon'ble Court observed that once the
learned trial judge passes an order on sentence,
the Court becomes functus officio and it is not
within its jurisdiction to pass an order under
Section 319 Cr.P.C. (Para 10)
After giving a thoughtful and respectable
consideration to judgments cited above, I am of
the considered opinion that the summoning of
revisionist by trial court in suo motu exercise of
powers under Section 319 Cr.P.C. is not contrary
to law and is based on evidence on record. The
impugned order is not hit by judgment of
Hon'ble Supreme Court in Devendra Kumar Pal
Vs St. of U.P. & anr. in SLP (Crl.) No.6960 of
2021 and Criminal Appeal No.885 of 2019 and
Criminal Appeal No.886 of 2019 in Sukhpal
Singh Khaira Vs The St. of Punjab as the facts of
those cases were slightly different from the facts
of the present case. In those cases summoning
of additional accused was done after recording
of conviction and passing of sentences to
accuses persons who were already facing trial.
Whereas in the present case the revisionist has
been summoned under Section 319 Cr.P.C. in
judgment dated 17.01.2024, prior to recording
of conviction of chargesheeted accused persons.
In paragraph No.50 of impugned judgment,
wherein the court below has observed that on
the basis of evidence of PW-2 Hariom, PW-3 Brij
Mohan and PW-5 Manoj Singh complicity of
Bharat Singh is also established alongwith other
accused persons, they have also filed affidavit in
support of this version during the course of
investigation which is part of case diary. There
are cogent and strong evidence on record
regarding complicity of accused Bharat Singh in
the offence, which if remains unrebutted his
conviction may be fully probable, therefore
cognizance has been taken for charge under
Section 302/34 I.P.C. against accused Bharat
Singh and he is being summoned under Section
319 Cr.P.C. for trial. (Para 21)

Hon'ble Supreme Court in Sukhpal Singh Khaira
(supra) held that if the decision is that the
summoned accused can be tried separately, on
such order being made, there will be no
impediment for the Court to continue and
conclude the trial against the accused who were
being proceeded with. (Para 23)

The Hon'ble Court also held that the power
under Section 319 Cr.P.C. can be exercised
before
the
pronouncement
of
order
on
sentence, where there is a judgment of
conviction of the accused. In the case of
acquittal the power should be exercised before
the order of acquittal is pronounced. Hence, the
12 All. Bharat Singh Vs. State of U.P. & Anr.
443
summoning order has to precede the conclusion
of trial by imposition of sentence in the case of
conviction. If the order is passed on the same
day, it will have to be examined on the facts and
circumstances of each case and if such
summoning order is passed either after the
order of acquittal or imposing sentence in the
case of conviction, the same will not be
sustainable. (Para 24)

Therefore, the answer to the legal issue
involved in the present case is found in above
dictum of Hon'ble Court. As in the present case
as the summmoning order was passed prior to
recording of conviction and imposition of
sentence on other accused persons, although in
the same judgment, the procedure adopted by
learned court below cannot be faulted with and
Hon'ble Supreme Court itself provided a space
for separate trial of the accused who has been
summoned under Section 319 Cr.P.C.. If trial of
other accused persons has concluded and it is
not feasible to carry on joint trial of the newly
added accused with other accused persons, who

## Text

442 INDIAN LAW REPORTS ALLAHABAD SERIES
power. Thus, the impugned order dated
28.07.2023 suffers from grave illegality
and warrants interference by this Court.

16. Resultantly, the appeal succeeds
and the impugned order dated 28.07.2023
is hereby set-aside. The application filed
under
Section
319
Cr.P.C.
by
the
prosecution is hereby dismissed.
----------
(2024) 12 ILRA 442
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2024

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 1989 of 2024

Bharat Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Chandra Pal Singh, Pankaj Kumar Gupta

Counsel for the Opposite Parties:
G.A.

Criminal
Law-
Criminal
Procedure
Code,1973 - Section 319- Power to
summon additional accused - Timing of
exercise of the power vested under
Section 319- Summoning order passed
prior to recording conviction and sentence
of co-accused - Permissibility - Held,
Court not functus officio - Separate trial
of summoned accused permissible -
Summoning order valid. (Paras 10, 21, 23,
24, and 25)

HELD:
The Hon'ble Court observed that once the
learned trial judge passes an order on sentence,
the Court becomes functus officio and it is not
within its jurisdiction to pass an order under
Section 319 Cr.P.C. (Para 10)
After giving a thoughtful and respectable
consideration to judgments cited above, I am of
the considered opinion that the summoning of
revisionist by trial court in suo motu exercise of
powers under Section 319 Cr.P.C. is not contrary
to law and is based on evidence on record. The
impugned order is not hit by judgment of
Hon'ble Supreme Court in Devendra Kumar Pal
Vs St. of U.P. & anr. in SLP (Crl.) No.6960 of
2021 and Criminal Appeal No.885 of 2019 and
Criminal Appeal No.886 of 2019 in Sukhpal
Singh Khaira Vs The St. of Punjab as the facts of
those cases were slightly different from the facts
of the present case. In those cases summoning
of additional accused was done after recording
of conviction and passing of sentences to
accuses persons who were already facing trial.
Whereas in the present case the revisionist has
been summoned under Section 319 Cr.P.C. in
judgment dated 17.01.2024, prior to recording
of conviction of chargesheeted accused persons.
In paragraph No.50 of impugned judgment,
wherein the court below has observed that on
the basis of evidence of PW-2 Hariom, PW-3 Brij
Mohan and PW-5 Manoj Singh complicity of
Bharat Singh is also established alongwith other
accused persons, they have also filed affidavit in
support of this version during the course of
investigation which is part of case diary. There
are cogent and strong evidence on record
regarding complicity of accused Bharat Singh in
the offence, which if remains unrebutted his
conviction may be fully probable, therefore
cognizance has been taken for charge under
Section 302/34 I.P.C. against accused Bharat
Singh and he is being summoned under Section
319 Cr.P.C. for trial. (Para 21)

Hon'ble Supreme Court in Sukhpal Singh Khaira
(supra) held that if the decision is that the
summoned accused can be tried separately, on
such order being made, there will be no
impediment for the Court to continue and
conclude the trial against the accused who were
being proceeded with. (Para 23)

The Hon'ble Court also held that the power
under Section 319 Cr.P.C. can be exercised
before
the
pronouncement
of
order
on
sentence, where there is a judgment of
conviction of the accused. In the case of
acquittal the power should be exercised before
the order of acquittal is pronounced. Hence, the
12 All. Bharat Singh Vs. State of U.P. & Anr.
443
summoning order has to precede the conclusion
of trial by imposition of sentence in the case of
conviction. If the order is passed on the same
day, it will have to be examined on the facts and
circumstances of each case and if such
summoning order is passed either after the
order of acquittal or imposing sentence in the
case of conviction, the same will not be
sustainable. (Para 24)

Therefore, the answer to the legal issue
involved in the present case is found in above
dictum of Hon'ble Court. As in the present case
as the summmoning order was passed prior to
recording of conviction and imposition of
sentence on other accused persons, although in
the same judgment, the procedure adopted by
learned court below cannot be faulted with and
Hon'ble Supreme Court itself provided a space
for separate trial of the accused who has been
summoned under Section 319 Cr.P.C.. If trial of
other accused persons has concluded and it is
not feasible to carry on joint trial of the newly
added accused with other accused persons, who
are already facing trial, separate trial of newly
summoned accused is not barred under law.
(Para 25)

Revision application dismissed. (E-14)

List of Cases cited:

1. Devendra Kumar Pal Vs St. of U.P. & anr. in
SLP (Criminal) No.6960 of 2021

2. Sukhpal Singh Khaira Vs The St. of Pun. AIR
2023 SC 1

3. Hardeep Singh Vs St. of Pun. & ors. 2014(2)
SCR 1

4. Yakub Abdul Razak Memon Vs St. of Mah.
(2013) 13 SCC 1

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant Criminal Revision has been
preferred against the impugned Judgment
and order dated 17.01.2024 passed by
learned Additional Session Judge, Court
No.7, Moradabad in Session Trial No.02 of
2010,
whereby
revisionist
has
been
summoned under Section 319 Cr.P.C. as
well as subsequent order dated 29.01.2024
passed by the learned Additional District
and Session Judge, Court No.7, Moradabad
in Session Trial No.37 of 2010 arising out
of Case Crime No.329 of 2009 under
Section
302/34
IPC,
Police
Station
Thakurdwara, District Moradabad.

2. Heard learned counsel for the
revisionist and learned A.G.A. for the
State-respondent and perused the material
on record.

3. The brief facts of the case are that
FIR was lodged on the basis of information
received by village watchman Ram Prasad
vide GD Report No.20 Time 17:25 hours
dated 22.04.2009 at PS. Thakurdwara,
District Moradabad to the effect that village
watchman informed to the police station
that dead body of unknown person is lying
in the vacant wheat field of Jai Prakash son
of Radhey Shyam of his village. The SHO
concerned moved into action on this
information; he visited the place of incident
alongwith his colleagues, who are police
personnel by his official jeep. The police
investigated the case and dead body was
identified as that of Suresh Chauhan, son of
late Hira Singh alias Hari Singh, resident of
village
Darapur,
Police
Station
Thakurdwara, District Moradabad. The
inquest on dead body of the deceased was
already
done
as
unknown
person
22.04.2009 between 15:25 to 17:13 hours.

3. In postmortem report of the
deceased Suresh Chauhan four external
injuries were found on his person which
included an incised wound 12 x 4 cm on
neck and one incised wound 23 x 7 cam
upcoming to abdomen cavity, intestines
444 INDIAN LAW REPORTS ALLAHABAD SERIES
had comes out, one abrasion on forehead
and skin peeled out on right shoulder to
arm. In internal examination trachea and
larynx were found cut, membrane of heart
was
found
lacerated,
membrane
of
abdomen was also found lacerated. In the
opinion of doctor the cause of death was
shock and haemorrhage due to ante-remote
injuries. The postmortem was conducted on
23.04.2009, in which time of death was
approximated as between 12:30 to 01:00
hours on 22.04.2009. Rigor mortis passed
on from entire body. During investigation
name of five accused persons surfaced as
author of time of murder of the deceased,
who were subjected to trial for charge
under Section 302/34 IPC, the case was
converted into Crime No.329 of 2009 after
post-mortem examination of the deceased.
During investigation the name of five
accused persons namely Jasram and four
others surfaced as author of the crime of
murder of the deceased. They were
subjected to trial and the learned Additional
Session Judge Court No.7, Moradabad by
impugned judgment and order dated
17.01.2024 convicted four accused persons
for charge under Section 302/34 IPC and
sentenced them to imprisonment for life,
and Rs.25,000/- fine was imposed on by
each of them. One accused person Jasram
Singh died during the trial and the trial in
respect of deceased accused was abated.

4. In Judgment and order dated
17.01.2024, learned trial judge in paragraph
No.50 has observed that on the basis of
evidence of PW 2, 3 and 5 complicity of
accused Bharat Singh is found, and there is
cogent and strong evidence against accused
Bharat Singh regarding his complicity in
the offence and on the basis of the evidence
adduced during trial there is full probability
of his conviction, if the same remains
unrebutted. With these observations the
learned trial court had summoned the
revisionist/Bharat Singh under Section
302/34 IPC to face trial for the murder of
deceased.

5. Learned counsel for the revisionist
submitted that learned trial judge has
summoned the revisionist in exercise of
powers under Section 319 Cr.P.C. in the
impugned judgment, wherein all the
accused persons who were facing trial were
convicted and sentenced. He has not been
directed to be summoned separately on
conclusion of trial of co-accused person
therefore joint trial of the revisionist
alongwith other accused persons had
become impossible.

6. Learned trial court could not
summon the revisionist in exercise of
powers under Section 319 Cr.P.C. in the
same breath, wherein other accused persons
were convicted and sentenced and therefore
the trial concluded. Learned counsel for the
revisionist placed reliance on a judgment of
Supreme Court in Devendra Kumar Pal
Vs. State of U.P. and another in SLP
(Criminal) No.6960 of 2021, wherein
constitution Bench judgment of Supreme
Court in Sukhpal Singh Khaira Vs. The
State of Punjab AIR 2023 SC 1 was
discussed and reliance was placed thereon.
After citing the twelve guidelines issued by
the Constitution Bench, Hon'ble Court in
paragraph No.13, 14 and 15 observed that
if summoning order under Section 319
Cr.P.C. is passed, either after the order of
acquittal or of imposing sentence in the
conviction,
the
same
may
not
be
sustainable.

7. Learned counsel further submitted
that Hon'ble Supreme Court in Constitution
Bench Judgment in Hardeep Singh Vs.
State of Punjab and others 2014(2) SCR
12 All. Bharat Singh Vs. State of U.P. & Anr.
445
1 in paragraph No.43 held that since after
the filing of chargesheet, 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) Cr.P.C. can be exercised at any time
after the chargesheet is filed and before the
pronouncement of judgment, except during
the stage of Section 207/208 Cr.P.C.,
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.

8. Learned counsel for the revisionist
further submitted that in Sukhpal Singh
Khaira Vs. The State of Punjab out of 11
accused persons, the trial in S.T. No.289 of
2009 proceeded against 10 accused persons
who were convicted on conclusion of trial
as one of the accused was not available.
Learned Session Judge pronounced the
judgment on 31.10.2017, whereby one of
the accused was acquitted while remaining
nine accused persons were convicted and
sentence was passed against them on
31.10.2017. The learned Session Judge also
allowed the application filed under Section
319 Cr.P.C. dated 21.09.2017 on the same
day i.e. 31.10.2017 and summoned the
appellant to face trial. It is in this back drop
the summoning order of the appellant was
assailed by him, since according to him
such order is not sustainable in law, as the
same was not passed in a proceeding
pending before the learned Session Judge
as at the stage when the power to summon
was exercised by learned Sessions Judge,
the judgment of conviction and sentence
had already been passed earlier on
31.10.2017. The said order was assailed in
Criminal Revision Petition No.4070 and
4113 of 2017 but the same was dismissed
by the High Court, which had led to the
filing of SLP Criminal No.5933 of 2019,
where Supreme Court framed three issues
and referred the matter to Hon'ble the
Chief Justice to constitute a Larger Bench
to consider the questions raised. The
Constitution
Bench
of
the
Hon'ble
Supreme Court vide judgment dated
05.12.2022 addressed and decided the
issues referred for its consideration and
issued as many as 12 guidelines therein
regarding stage of invoking powers under
Section 319 Cr.P.C. by trial court.

9. He next submitted that after
constitution bench judgment the matter was
finally decided by a division bench of
Hon'ble Supreme Court in Sukhpal Singh
Khaira (supra) and the summoning order
passed by learned trial court under Section
319 Cr.P.C. against the appellant Sukhpal
Singh Khaira was quashed and set-aside
with finding that in view of the law laid
down by the Hon'ble Supreme Court in
Sukhpal Singh Khaira (supra) these
appeals are allowed.

10. The Hon'ble Court observed that
once the learned trial judge passes an order
on sentence, the Court becomes functus
officio and it is not within its jurisdiction to
pass an order under Section 319 Cr.P.C.

11. Learned counsel for the revisionist
also placed reliance on Devendra Kumar
Pal (supra) arising out of SLP (Cril.)
No.6960 of 2021, wherein in paragraph 14
it is observed that the Constitution Bench
has clearly held that if such a summoning
order is passed, either after the order of
acquittal or imposing of sentence in the
conviction, same may not be sustainable.

12. With above submissions, leaned
counsel concluded that as summoning of
446 INDIAN LAW REPORTS ALLAHABAD SERIES
the revisionist and recording of conviction
and awarding of sentence on other accused
persons are part of same judgment and
order, the joint trial of the revisionist
alongwith other accused persons was not
possible in view of the judgments cited
above as the court had become functus
officio on recording conviction of the
accused persons who are already facing
trial and awarding sentence against them.
Thus in this backdrop the summoning of
the revisionist was contrary to law and the
impugned order deserves to be quashed and
set-aside.

13. Per contra, learned A.G.A. for the
State submitted that revisionist has been
summoned
in
paragraph
50
of
the
impugned judgment and order, whereas the
conviction and sentence has been awarded
to the accused persons who are already
facing trial in paragraph No.51 onwards.
Therefore, it cannot be assumed that the
summoning of the accused revisionist was
done after conclusion of trial of co-accused
persons. She also submitted that in
paragraph No.50, learned trial court has
observed that in evidence of PW2, PW3,
PW4 and PW5 there is cogent evidence
against the revisionist and for that reason
he has been summoned to face trial under
section 319 Cr.P.C.. There is no illegality,
irregularity or perversity in the impugned
order passed by the learned trial court.

14. The Hon'ble Court observed that
at the outset, having noted the provisions of
Section 319 Cr.P.C, it is amply clear that
the power bestowed on the Court is to the
effect that in the course of an inquiry into,
or trial of an offence, based on the evidence
tendered before the Court, if it appears to
the Court that such evidence points to any
person other than the accused who are
being tried before the Court to have
committed any offence and such accused
has been excluded in the charge sheet or in
the process of trial till such time could still
be summoned and tried together with the
accused for the offence which appears to
have been committed by such persons
summoned as additional accused.

15. Hon'ble Court placed reliance on
its earlier Constitution Bench Judgment in
Hardeep Singh Vs. State of Punjab (2014)
3 SCC 92, wherein it is held that Section
319 Cr.P.C. 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. 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. Even the word "course"
occurring in Section 319 CrPC, clearly
indicates that the power can be exercised
only during the period when the inquiry has
been commenced and is going on or the
trial which has commenced and is going
on. It covers the entire wide range of the
process of the pre-trial and the trial stage.
The word "course" therefore, allows the
court to invoke this power to proceed
against any person from the initial stage of
inquiry up to the stage of the conclusion of
the trial.

16. The Hon'ble Supreme Court in
Sukhpal Singh Khaira (supra) after
giving thoughtful consideration of number
of its judgements on ambit and scope of
12 All. Bharat Singh Vs. State of U.P. & Anr.
447
Section 319 Cr.P.C. cited as Sections 232,
235, 353,319, 354 of Code of Criminal
Procedure.

17.
Hon'ble
Court
observed
in
paragraph No.26 that Hon'ble Court cited
an earlier judgment delivered in Yakub
Abdul Razak Memon vs. State of
Maharashtra (2013) 13 SCC 1, wherein it
is held that "It is clear that a conviction
order
is
not
a
"judgment"
as
contemplated under Section 315, 353 and
that a judgment is pronounced only after
the award of sentence." It is also relevant
to mention that Section 354 makes it clear
that
"judgment"
shall
contain
the
punishment awarded to the accused. It is
therefore, complete only after the sentence
is determined.

18.
The
Hon'ble
Court
further
observed as under:

"27. Therefore, from a perusal of
the provisions and decisions of this Court,
it is clear that the conclusion of the trial in
a criminal prosecution if it ends in
conviction, a judgment is considered to be
complete in all respects only when the
sentence is imposed on the convict, if the
convict is not given the benefit of Section
360 of CrPC. Similarly, in a case where
there are more than one accused and if one
or more among them are acquitted and the
others are convicted, the trial would stand
concluded as against the accused who are
acquitted and the trial will have to be
concluded against the convicted accused
with the imposition of sentence. When
considered in the context of Section 319 of
CrPC, there would be no dichotomy as
argued, since what becomes relevant here
is only the decision to summon a new
accused based on the evidence available on
record which would not prejudice the
existing accused since in any event they are
convicted.

28. In that view of the matter, if
the Court finds from the evidence recorded
in the process of trial that any other person
is involved, such power to summon the
accused under Section 319 of CrPC can be
exercised by passing an order to that effect
before the sentence is imposed and the
judgment is complete in all respects
bringing the trial to a conclusion. While
arriving at such conclusion what is also to
be kept in view is the requirement of subsection (4) to Section 319 of CrPC. From
the said provision it is clear that if the
learned Sessions Judge exercises the power
to summon the additional accused, the
proceedings in respect of such person shall
be commenced afresh and the witnesses
will have to be re-examined in the presence
of the additional accused. In a case where
the learned Sessions Judge exercises the
power under Section 319 of CrPC after
recording the evidence of the witnesses or
after
pronouncing
the
judgment
of
conviction but before sentence being
imposed, the very same evidence which is
available on record cannot be used against
the newly added accused in view of Section
273 of CrPC. As against the accused who
has been summoned subsequently a fresh
trial is to be held. However while
considering the application under Section
319 of CrPC, if the decision by the learned
Sessions Judge is to summon the additional
accused before passing the judgment of
conviction or passing an order on sentence,
the conclusion of the trial by pronouncing
the judgment is required to be withheld and
the application under Section 319 of CrPC
is required to be disposed of and only then
the conclusion of the judgment, either to
convict the other accused who were before
the Court and to sentence them can be
proceeded with. This is so since the power
448 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 319 of CrPC can be
exercised only before the conclusion of the
trial by passing the judgment of conviction
and sentence.

29. Though Section 319 of CrPC
provides that such person summoned as per
sub-section (1) thereto could be jointly
tried together with the other accused,
keeping in view the power available to the
Court under Section 223 of CrPC to hold a
joint trial, it would also be open to the
learned Sessions Judge at the point of
considering the application under Section
319 of CrPC and deciding to summon the
additional accused, to also take a decision
as to whether a joint trial is to be held after
summoning such accused by deferring the
judgment being passed against the tried
accused. If a conclusion is reached that the
fresh trial to be conducted against the
newly added accused could be separately
tried, in such event it would be open for
the learned Sessions Judge to order so
and proceed to pass the judgment and
conclude the trial insofar as the accused
against whom it had originally proceeded
and thereafter proceed in the case of the
newly added accused. However, what is
important is that the decision to summon
an additional accused either suo-moto by
the Court or on an application under
Section 319 of CrPC shall in all
eventuality be considered and disposed of
before the judgment of conviction and
sentence is pronounced, as otherwise, the
trial would get concluded and the Court
will get divested of the power under
Section 319 of CrPC. Since a power is
available to the Court to decide as to
whether a joint trial is required to be
held or not, this Court was justified in
holding the phrase, "could be tried
together with the accused" as contained
in Section 319(1) of CrPC, to be
directory as held in Shashikant Singh
(supra) which in our opinion is the
correct view."

19. Hon'ble Court answered the
questions referred for determination in
paragraph No.33 of the judgment which
is reproduced as under:-

33. For all the reasons stated
above, we answer the questions referred
as hereunder:-

"I. Whether the trial court has
the power under Section 319 of CrPC for
summoning additional accused when the
trial with respect to other co- accused has
ended and the judgment of conviction
rendered
on
the
same
date
before
pronouncing the summoning order?

The power under Section 319 of
CrPC is to be invoked and exercised before
the pronouncement of the order of sentence
where there is a judgment of conviction of
the accused. In the case of acquittal, the
power should be exercised before the order
of acquittal is pronounced.

Hence, the summoning order has
to precede the conclusion of trial by
imposition of sentence in the case of
conviction. If the order is passed on the
same day, it will have to be examined on
the facts and circumstances of each case
and if such summoning order is passed
either after the order of acquittal or
imposing sentence in the case of conviction,
the same will not be sustainable.

II. Whether the trial court has the
power under Section 319 of the CrPC for
summoning additional accused when the
trial in respect of certain other absconding
accused (whose presence is subsequently
secured) is ongoing/pending, having been
bifurcated from the main trial?

The trial court has the power to
summon additional accused when the trial
is proceeded in respect of the absconding
12 All. Bharat Singh Vs. State of U.P. & Anr.
449
accused after securing his presence,
subject to the evidence recorded in the split
up (bifurcated) trial pointing to the
involvement of the accused sought to be
summoned. But the evidence recorded in
the main concluded trial cannot be the
basis of the summoning order if such power
has not been exercised in the main trial till
its conclusion.

III. What are the guidelines that
the competent court must follow while
exercising
power
under
Section
319
CrPC?"

(i) If the competent court finds
evidence or if application under Section
319 of CrPC is filed regarding involvement
of any other person in committing the
offence based on evidence recorded at any
stage in the trial before passing of the
order on acquittal or sentence, it shall
pause the trial at that stage.

(ii) The Court shall thereupon
first decide the need or otherwise to
summon the additional accused and pass
orders thereon.

(iii) If the decision of the court is
to exercise the power under Section 319 of
CrPC and summon the accused, such
summoning order shall be passed before
proceeding further with the trial in the
main case.

(iv) If the summoning order of
additional accused is passed, depending on
the stage at which it is passed, the Court
shall also apply its mind to the fact as to
whether such summoned accused is to be
tried along with the other accused or
separately.

(v) If the decision is for joint trial,
the fresh trial shall be commenced only
after
securing
the
presence
of
the
summoned accused.

(vi) If the decision is that the
summoned accused can be tried separately,
on such order being made, there will be no
impediment for the Court to continue and
conclude the trial against the accused who
were being proceeded with.

(vii) If the proceeding paused as
in (i) above is in a case where the accused
who were tried are to be acquitted and the
decision is that the summoned accused can
be tried afresh separately, there will be no
impediment to pass the judgment of
acquittal in the main case.

(viii) If the power is not invoked
or exercised in the main trial till its
conclusion and if there is a split-up
(bifurcated) case, the power under Section
319 of CrPC can be invoked or exercised
only if there is evidence to that effect,
pointing
to
the
involvement
of
the
additional accused to be summoned in the
split up (bifurcated) trial.

(ix) If, after arguments are heard
and the case is reserved for judgment the
occasion arises for the Court to invoke and
exercise the power under Section 319 of
CrPC, the appropriate course for the court
is to set it down for re-hearing.

(x) On setting it down for rehearing, the above laid down procedure to
decide about summoning; holding of joint
trial or otherwise shall be decided and
proceeded with accordingly.

(xi) Even in such a case, at that
stage, if the decision is to summon
additional accused and hold a joint trial
the trial shall be conducted afresh and de
novo proceedings be held.

(xii) If, in that circumstance, the
decision is to hold a separate trial in case
of the summoned accused as indicated
earlier;

(a) The main case may be decided
by
pronouncing
the
conviction
and
sentence and then proceed afresh against
summoned accused.

(b) In the case of acquittal the
order shall be passed to that effect in the
450 INDIAN LAW REPORTS ALLAHABAD SERIES
main case and then proceed afresh against
summoned accused.

20. In the present case, the learned
trial court has summoned the revisionist in
impugned judgment dated 17.01.2024 on
finding his complicity in the offence
alongwith co-accused persons on the basis
of evidence appearing on record. The
revisionists is named in the FIR and similar
role has assigned to him in the offence of
murder
together
with
other
accused
persons, who were tried, convicted and
sentenced by trial court in impugned
judgment and order dated 17.01.2024.

21. After giving a thoughtful and
respectable consideration to judgments
cited above, I am of the considered opinion
that the summoning of revisionist by trial
court in suo motu exercise of powers under
Section 319 Cr.P.C. is not contrary to law
and is based on evidence on record. The
impugned order is not hit by judgment of
Hon'ble Supreme Court in Devendra
Kumar Pal Vs. State of U.P. and another
in SLP (Crl.) No.6960 of 2021 and
Criminal Appeal No.885 of 2019 and
Criminal Appeal No.886 of 2019 in
Sukhpal Singh Khaira Vs. The State of
Punjab as the facts of those cases were
slightly different from the facts of the
present case. In those cases summoning of
additional accused was done after recording
of conviction and passing of sentences to
accuses persons who were already facing
trial. Whereas in the present case the
revisionist has been summoned under Section
319 Cr.P.C. in judgment dated 17.01.2024,
prior
to
recording
of
conviction
of
chargesheeted accused persons. In paragraph
No.50 of impugned judgment, wherein the
court below has observed that on the basis of
evidence of PW-2 Hariom, PW-3 Brij Mohan
and PW-5 Manoj Singh complicity of Bharat
Singh is also established alongwith other
accused persons, they have also filed affidavit
in support of this version during the course of
investigation which is part of case diary.
There are cogent and strong evidence on
record regarding complicity of accused
Bharat Singh in the offence, which if remains
unrebutted his conviction may be fully
probable, therefore cognizance has been
taken for charge under Section 302/34 I.P.C.
against accused Bharat Singh and he is being
summoned under Section 319 Cr.P.C. for
trial.

22. After summoning of revisionist in
paragraph 50 of the judgment, the learned
trial court has recorded finding of conviction
in respect of accused Ghanshyam, Sauran,
Satpal and Rishi Pal for charge under Section
302/34 IPC and after hearing them on
question of sentence, the sentence was passed
against them in paragraph Nos. 54 and 55 of
the judgment. In paragraph No.61 of the
judgment some directions have been issued to
office that in the light of facts mentioned in
paragraph No.50 of this judgment, a separate
case filed be prepared in respect of accused
Bharat Singh for his trial for charge under
Section 302/34 IPC, wherein certified copies
of relevant prosecution documents will be
placed, thereafter summoned be issued to him
in concerned file.

23.
Hon'ble
Supreme
Court
in
Sukhpal Singh Khaira (supra) held that if
the decision is that the summoned accused
can be tried separately, on such order being
made, there will be no impediment for the
Court to continue and conclude the trial
against the accused who were being
proceeded with.

24. The Hon'ble Court also held that
the power under Section 319 Cr.P.C. can be
exercised before the pronouncement of
12 All. Smt. Rekha & Anr. Vs. State of U.P. & Anr.
451
order on sentence, where there is a
judgment of conviction of the accused. In
the case of acquittal the power should be
exercised before the order of acquittal is
pronounced. Hence, the summoning order
has to precede the conclusion of trial by
imposition of sentence in the case of
conviction. If the order is passed on the
same day, it will have to be examined on
the facts and circumstances of each case
and if such summoning order is passed
either after the order of acquittal or
imposing
sentence
in
the
case
of
conviction,
the
same
will
not
be
sustainable.

25. Therefore, the answer to the legal
issue involved in the present case is found
in above dictum of Hon'ble Court. As in
the present case as the summmoning order
was passed prior to recording of conviction
and imposition of sentence on other
accused persons, although in the same
judgment,
the procedure
adopted
by
learned court below cannot be faulted with
and Hon'ble Supreme Court itself provided
a space for separate trial of the accused
who has been summoned under Section
319 Cr.P.C.. If trial of other accused
persons has concluded and it is not feasible
to carry on joint trial of the newly added
accused with other accused persons, who
are already facing trial, separate trial of
newly summoned accused is not barred
under law.

26. Consequently, I find no illegality
or
irregularity
or
perversity
in
the
impugned judgment passed by learned trial
court. The revison is devoid of merit and it
deserves to be dismissed.

27. The revision is dismissed.
----------
(2024) 12 ILRA 451
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2024

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Criminal Revision No. 2948 of 2024

Smt. Rekha & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Braj Mohan Singh

Counsel for the Opposite Parties:
G.A., Sudhir Mehrotra

A. Criminal Law -Criminal Procedure
Code,
1973-Sections
397
&
125Wife/Reviisonist
filed
maintenancedespite a prior court order granting
maintenance, the respondent/husband
did not comply-the family court later
dismissed the wife's application for nonprosecution, prompting her to file the
current revision petition-Held, Family
courts must prioritize timely disposal of
cases-judicial officers should exercise
heightened
sensitivity
in
cases
of
destitute
women-the
revision
was
disposed of with directions to decided
the case within three weeks.(Para 1 to
12)

The revision petition is disposed of. (E-6)

List of Cases cited:

1. Rajnesh Vs Neha & anr.(2021) 2 SCC 324

2. Smt. Parul Tyagi Vs Gaurav Tyagi (2023) SCC
OnLine All 2684

3. Rajesh Babu Saxena Vs St. of U.P. CRLRD No.
1789 of 2023

(Delivered by Hon'ble Vinod Diwakar, J.)