# Chetram Revisionist v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 1173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-16
- **Case number:** Criminal Revision No. 809 of 2024
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chetram-revisionist-v-state-of-u-p-anr-52204
- **Pages:** 11

## Headnote

Law-(The
Code
of
Criminal
Procedure, 1973-Section 319) (The Bhartiya
Nagrik
Suraksha
Sanhita,
2023-Sections438/442)-Facts-
Revisionist
has
been
summoned by exercising the powers under
Section 319 CrPC- That prerequisite for exercise
of the power under Section 319 of the Code is
the satisfaction of the court to proceed against a
person who is not an accused but against whom
evidence is there- Once the trial court finds that
there is some 'evidence' against such a person
on the basis of which it can be gathered that
he/she appears to be the guilty of the offence,
there can be exercise of the power under
Section 319 of the Code. (Para 20, 22 & 23)

Revision dismissed. (E-15)

List of Cases cited:-

1.Brijendra Singh & ors. Vs St. of Raj: (2017) 7
SCC 706

2.Hardeep Singh Vs St. of Pun. & ors. (2014) 3
SCC 92

## Text

7 All. Chetram Vs. State of U.P. & Anr.
1173
for enhancement of sentence every case
turns on its own facts and evidence. Even
one additional or different fact may make a
big difference between the conclusion in
two cases, because even a single significant
detail may alter the entire aspect.

105- Since Criminal Appeal No.
5295 of 2023 of Afjal Ansari has been
allowed and impugned judgment and order
of conviction dated 29.04.2023 of the
appellant-Afjal Ansari has been set-aside as
noted above, therefore, afore-captioned
connected
Government
Appeal
and
Criminal
Revision
are
liable
to
be
dismissed.

106- Accordingly, Government
Appeal No. 198 of 2024 and Criminal
Revision No. 3535 of 2023 are hereby
dismissed.

107- Let a copy of this judgement
along
with
Trial
Court's
record
be
transmitted to the court concerned for
compliance.
----------
(2024) 7 ILRA 1173
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.07.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Criminal Revision No. 809 of 2024

Chetram ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Krishna Gopal

Counsel for the Respondents:
G.A.
Criminal
Law-(The
Code
of
Criminal
Procedure, 1973-Section 319) (The Bhartiya
Nagrik
Suraksha
Sanhita,
2023-Sections438/442)-Facts-
Revisionist
has
been
summoned by exercising the powers under
Section 319 CrPC- That prerequisite for exercise
of the power under Section 319 of the Code is
the satisfaction of the court to proceed against a
person who is not an accused but against whom
evidence is there- Once the trial court finds that
there is some 'evidence' against such a person
on the basis of which it can be gathered that
he/she appears to be the guilty of the offence,
there can be exercise of the power under
Section 319 of the Code. (Para 20, 22 & 23)

Revision dismissed. (E-15)

List of Cases cited:-

1.Brijendra Singh & ors. Vs St. of Raj: (2017) 7
SCC 706

2.Hardeep Singh Vs St. of Pun. & ors. (2014) 3
SCC 92

3. Yashodhan Singh & ors. Vs. St. of U.P. & anr.
(2023) 9 SCC 108

4. Manjeet Singh Vs St. of Har. & ors. (2021) 8
SCC 321

5.Mohd. Rafiq Vs St. of U.P & ors.in Criminal
Revision No.772 of 2024, decided on 11.07.2024

6. Sandeep Kumar Vs St. of Har. & anr. AIR
2023 SC 3648

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

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Sri Krishna Gopal, learned
counsel for the revisionist as well as Sri
Anurag Verma, the learned A.G.A. for the
State-respondents and perused the record.

2. Instant revision under Section
438/442 B.N.S.S., 2023 has been filed
against the order dated 15.05.2024 passed
by the learned Additional District and
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
Sessions
Judge/FTC-2nd,
Bahraich
in
Criminal Case No.321 of 2018 arising out
of Case Crime No.117 of 2018, under
Sections 307, 452, 323 and 506 IPC, Police
Station Herdi, District Bahraich whereby
the revisionist has been summoned by
exercising the powers under Section 319 of
the
Code
of
Criminal
Procedure
(hereinafter referred to as 'Code').

3. Contention of the learned
counsel for the revisionist is that though the
name of the revisionist found place in the
FIR that had been lodged by respondent
No.2, yet in the charge-sheet that had been
filed by the investigating officer dated
13.07.2018, a copy of which is Annexure-2
to the revision, he was not named.
Thereafter upon an application being filed
by the respondent No.2, the learned court
has passed the order impugned whereby the
revisionist has been summoned.

4.
 Placing
reliance
on
the
judgments of the Hon'ble Supreme court in
the cases of Brijendra Singh & Ors vs
State of Rajasthan : (2017) 7 SCC 706 as
well as Hardeep Singh vs State of Punjab
& Ors : (2014) 3 SCC 92, the argument of
the learned counsel for the revisionist is
that the learned court has only considered
the statements of the Prosecution Witnesses
(hereinafter referred to as 'P.Ws.') 1 to 3
while passing the order impugned but has
failed to consider the material that had been
gathered by the enquiry officer whereby the
revisionist had not been named and this
'evidence' should also have been considered
by the learned court while passing the order
impugned.
He
contends
that
non
consideration of the said material, as
gathered by the investigating officer, while
passing the order impugned, thus vitiates
the impugned order and therefore, it
deserves to be set aside.
5. On the other hand, Shri Anurag
Verma, learned A.G.A. has placed reliance
on the Constitution Bench judgment of the
Hon'ble Supreme Court in the case of
Hardeep Singh (supra) as well as the
judgments of the Hon'ble Supreme Court in
the cases Yashodhan Singh & Ors vs State
of U.P. & Anr : (2023) 9 SCC 108 and
Manjeet Singh vs State of Haryana & Ors
: (2021) 8 SCC 321 to contend that the
judgment of the Hon'ble Supreme Court in
the case of Brijendra Singh (supra) has
been considered in the judgment in the case
of Yashodhan Singh (supra).

6. Reliance has also been placed
on the judgment of this Court in the case of
Mohd. Rafiq vs State of U.P & Ors in
Criminal
Revision
No.772
of
2024,
decided on 11.07.2024, to contend that
power of summoning as granted to the
court under the provisions of Section 319
of the Code has been considered threadbare
by this court.

7. Placing reliance on the aforesaid
judgment, the argument of the learned
A.G.A. is that there is no infirmity in the
order impugned whereby the learned court
has considered the statements of the P.Ws.
1, 2 and 3 and has been of the view that
prima facie a case is made out against the
revisionist while passing the impugned
order and thus there is no infirmity in the
impugned order.

8. Having heard learned counsel
for the parties and perused the record, it
emerges that after the FIR had been
lodged by respondent No.2 against
various persons including the revisionist
namely Chetram, the investigating officer
submitted his report dated 13.07.2018
whereby the name of the revisionist does
not find place.
7 All. Chetram Vs. State of U.P. & Anr.
1175
9. Upon an application under
Section 319 of the Code being filed by the
respondent
No.2,
learned
court
has
summoned the revisionist after considering
the statements of the P.Ws. 1, 2 and 3 to
find that prima facie a case is made out for
summoning the revisionist and hence the
instant revision.

10. The sheet anchor of the
argument of the learned counsel for the
revisionist is that the material collected by
the investigating officer while submitting
the report should also have been considered
by the learned trial court while issuing the
impugned summoning order inasmuch as
there is only one sided consideration of the
statements of the P.Ws.1, 2 and 3 without
considering the material gathered by the
investigating officer, while passing the
impugned order and as such considering
the law laid down by the Hon'ble Supreme
Court in the case of Brijendra Singh
(supra) the order impugned is legally
unsustainable.

11. On the other hand, said order has
been supported on the basis of the judgments
of the Hon'ble Supreme Court in the cases of
Hardeep Singh (supra), Yashodhan Singh
(supra) and Manjeet Singh (supra).

12. For consideration of the
argument of the learned counsel for the
revisionist, the court has to consider as to
what has been laid down by the Hon'ble
Supreme Court in the case Brijendra Singh
(supra). For the sake of convenience,
relevant observations as have been made by
the Hon'ble Supreme Court in the case
Brijendra Singh (supra) are reproduced
below:-

"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
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
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
(Emphasized by the Court )

13. From perusal of the aforesaid
observations as made by the Hon'ble
Supreme court in the case of Brijendra
Singh (supra), it emerges that the Hon'ble
Supreme Court has held that once from the
police investigation it was revealed that the
statements of certain persons regarding the
presence of the accused at the place of
occurrence was doubtful and did not inspire
confidence, consequently this aspect should
have been considered by the learned court
while summoning the accused and the trial
court was duty bound to look into the said
evidence
while
passing
the
order
impugned.

14. On the other hand, Hon'ble
Supreme Court in the case of Yashodhan
Singh (supra) while considering the
judgment of Hon'ble Supreme Court in the
cases of Brijendra Singh (supra) as also
Hardeep Singh (supra) has held as under:-

"28. In Brijendra Singh
[Brijendra
Singh
v.
State
of
Rajasthan, (2017) 7 SCC 706 :
(2017) 4 SCC (Cri) 144] , after
referring
to
Hardeep
Singh
[Hardeep Singh v. State of Punjab,
(2014) 3 SCC 92 : (2014) 2 SCC
(Cri) 86] , this Court considered
the question as to the degree of
satisfaction that is required for
invoking the powers under Section
319CrPC and the related question,
namely, as to, in what situations,
this power should be exercised in
respect of a person named in the
FIR but not charge-sheeted. This
Court held that once the trial court
finds that there is some ?evidence?
against such a person on the basis
of which it can be gathered that he
appears to be guilty of the offence,
there can be exercise of power
under Section 319CrPC. It was
observed that the evidence in this
context means the material that is
brought before the court during
trial. Insofar as the material or
evidence
collected
by
the
investigating officer (IO) at the
7 All. Chetram Vs. State of U.P. & Anr.
1177
stage of inquiry is concerned, it can
be utilised for corroboration and to
support the evidence recorded by
court to invoke the power under
Section 319CrPC."
(Emphasized by the Court )

15. The Hon'ble Supreme Court in
the case of Hardeep Singh (supra) has held
as under:-

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

16. Subsequently, the Hon'ble
Supreme Court in the case of Manjeet
Singh (supra) while considering the
Constitution Bench judgment in the case of
Hardeep Singh (supra) has held as under:-

"13.1.4. While answering
Question (iii), namely, 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,
this
Court,
in
the
aforesaid
decision has 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. 126-27 & 13132, paras 58-59, 78 & 82-85)
'58.
To
answer
the
questions
and
to
resolve
the
impediment that is being faced by
the trial courts in exercising of
powers under Section 319CrPC,
the issue has to be investigated by
examining the circumstances which
give rise to a situation for the court
to
invoke
such
powers.
The
circumstances that lead to such
inference being drawn up by the
court for summoning a person arise
out of the availability of the facts
and material that come up before
the court and are made the basis
for summoning such a person as an
accomplice to the offence alleged
to have been committed. The
material
should
disclose
the
complicity of the person in the
commission of the offence which
has to be the material that appears
from the evidence during the
course of any inquiry into or trial
of offence. The words as used in
Section 319CrPC indicate that the
material has to be ?where ? it
appears from the evidence? before
the court.
59. Before we answer this
issue, let us examine the meaning
of the word ?evidence?. According
to Section 3 of the Evidence Act,
?evidence? means and includes:
"(1) all statements which
the court permits or requires to be
made before it by witnesses, in
relation to matters of fact under
inquiry;
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
such statements are called
oral evidence;
(2) all documents including
electronic records produced for the
inspection of the court;
such documents are called
documentary evidence.?
***
78. It is, therefore, clear
that the word ?evidence? in
Section 319CrPC means only such
evidence as is made before the
court, in relation to statements,
and as produced before the court,
in relation to documents. It is only
such evidence that can be taken
into account by the Magistrate or
the court to decide whether the
power under Section 319CrPC is to
be exercised and not on the basis of
material
collected
during
the
investigation.
***
82. This pre-trial stage is a
stage where no adjudication on
the evidence of the offences
involved takes place and therefore,
after the material along with the
charge-sheet has been brought
before the court, the same can be
inquired into in order to effectively
proceed with framing of charges.
After the charges are framed, the
prosecution
is
asked
to
lead
evidence and till that is done, there
is no evidence available in the
strict legal sense of Section 3 of the
Evidence Act. The actual trial of
the offence by bringing the accused
before the court has still not begun.
What is available is the material
that has been submitted before the
court along with the charge-sheet.
In such situation, the court only has
the preparatory material that has
been placed before the court for its
consideration in order to proceed
with the trial by framing of
charges.
83. It is, therefore, not any
material that can be utilised, rather
it is that material after cognizance
is taken by a court, that is available
to it while making an inquiry into
or trying an offence, that the court
can
utilise
or
take
into
consideration
for
supporting
reasons to summon any person on
the basis of evidence adduced
before the court, who may be on the
basis of such material, treated to be
an accomplice in the commission of
the offence. The inference that can
be drawn is that material which is
not
exactly
evidence
recorded
before the court, but is a material
collected by the court, can be
utilised to corroborate evidence
already recorded for the purpose of
summoning any other person, other
than the accused. This would
harmonise such material with the
word ?evidence? as material that
would be supportive in nature to
facilitate the exposition of any
other accomplice whose complicity
in the offence may have either been
suppressed or escaped the notice of
the court.
84. The word ?evidence?
therefore has to be understood in
its wider sense both at the stage of
trial and, as discussed earlier, even
at the stage of inquiry, as used
under Section 319CrPC. The court,
therefore, should be understood to
have the power to proceed against
any person after summoning him
on the basis of any such material
as brought forth before it. The duty
7 All. Chetram Vs. State of U.P. & Anr.
1179
and
obligation
of
the
court
becomes more onerous to invoke
such powers cautiously on such
material after evidence has been
led during trial.
85.
In
view
of
the
discussion made and the conclusion
drawn hereinabove, the answer to
the aforesaid question posed is that
apart
from
evidence
recorded
during trial, any material that has
been received by the court after
cognizance is taken and before the
trial commences, can be utilised
only for corroboration and to
support the evidence recorded by
the court to invoke the power under
Section 319CrPC. The "evidence"
is thus, limited to the evidence
recorded during trial.'"
(Emphasized by the Court )

17. Recently the Hon'ble Supreme
Court in the case of Sandeep Kumar vs
State of Haryana & Anr :AIR 2023 SC
3648 after referring to Hardeep Singh
(supra) and Manjeet Singh (supra) has
held as under:-

"14. The entire purpose of
criminal trial is to go to the truth of
the
matter.
Once
there
is
satisfaction of the Court that there
is evidence before it that an
accused has committed an offence,
the court can proceed against such
a
person.
At
the
stage
of
summoning an accused, there has
to be a prima facie satisfaction of
the Court. The evidence which was
there before the Court was of an
eye witness who has clearly stated
before the Court that a crime has
been committed, inter alia, by the
revisionist. The Court need not
cross-examine this witness. It can
stop the trial at that stage itself if
such application had been moved
under Section 319. The detail
examination of the witness and
other witnesses is a subject matter
of the trial which has to begin
afresh. The scope and ambit of
Section
319
CrPC
has
been
discussed and dealt with in detail in
the Constitution Bench judgment of
Hardeep Singh v. State of Punjab
reported in (2014) 3 SCC 92 where
it said:
"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 Cr. P.C.
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."
15.
In
Hardeep
Singh
(supra), this court further said that
the Court only has to see at the
state of Section 319, whether a
prima facie case is made out
although the degree of satisfaction
has to be much higher.
"95. At the time of taking
cognizance, the court has to see
whether a prima facie case is made
out to proceed against the accused.
Under Section 319 CrPC, though
the test of prima facie case is the
same, the degree of satisfaction
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
that is required is much stricter. A
two-Judge Bench of this Court in
Vikas v. State of Rajasthan, held
that on the objective satisfaction of
the
court
a
person
may be
?arrested? or ?summoned?, as the
circumstances of the case may
require, if it appears from the
evidence that any such person not
being the accused has committed
an offence for which such person
could be tried together with the
already arraigned accused persons.

16. In Para 106 it stated as
under:
Thus, we hold that though
only a prima facie case is to be
established from the evidence led
before the court, not necessarily
tested on the anvil of crossexamination,
it
requires
much
stronger
evidence
than
mere
probability of his complicity. The
test that has to be applied is one
which is more than prima facie
case as exercised at the time of
framing of charge, but short of
satisfaction to an extent that the
evidence, if goes unrebutted, would
lead to conviction. In the absence
of such satisfaction, the court
should refrain from exercising
power under Section 319 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? it 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."
17.
In
our
considered
opinion, the prosecution had fully
made out its case for summoning
the three as accused under Section
319, Cr. P.C., so that they may also
face trial.

"

18. The Hon'ble Supreme Court in
the case of Rajesh & Ors vs State of
Haryana : (2019) 6 SCC 368 after
considering the sheet anchor judgment of
the revisionist herein in the case of
Brijendra Singh (supra) as well as
Constitution Bench judgment in the case of
Hardeep Singh (supra) has held as under:-

"6.8. Considering the law
laid down by this Court in Hardeep
Singh [Hardeep Singh v. State of
Punjab, (2014) 3 SCC 92 : (2014) 2
SCC (Cri) 86] and the observations
and
findings
referred
to
and
reproduced hereinabove, it emerges
that (i) the Court can exercise the
power under Section 319 CrPC
even on the basis of the statement
made in the examination-in-chief of
the witness concerned and the
Court need not wait till the crossexamination of such a witness and
the Court need not wait for the
evidence
against
the
accused
proposed to be summoned to be
tested by cross-examination; and
(ii) a person not named in the FIR
or a person though named in the
FIR but has not been chargesheeted or a person who has been
discharged
can
be
summoned
under Section 319 CrPC, provided
from the evidence (may be on the
7 All. Chetram Vs. State of U.P. & Anr.
1181
basis of the evidence collected in
the form of statement made in the
examination-in-chief of the witness
concerned), it appears that such
person can be tried along with the
accused already facing trial."

19. Scope of summoning under the
provisions of Section 319 of the Code has
also been considered threadbare recently by
this Court in the case of Mohd. Rafiq
(supra) wherein this Court has held as
under:-

"27. The Hon'ble Supreme Court in
the case of Hardeep Singh (supra) has held
as under:-

"81. The second question
referred to herein is in relation to
the word `evidence` as used under
Section 319 Cr.P.C., which leaves
no room for doubt that the evidence
as understood under Section 3 of
the Evidence Act is the statement of
the witnesses that are recorded
during trial and the documentary
evidence in accordance with the
Evidence Act, which also includes
the
document
and
material
evidence in the Evidence Act. Such
evidence begins with the statement
of
the
prosecution
witnesses,
therefore,
is
evidence
which
includes
the
statement
during
examination-in-chief.
In Rakesh
(Supra), it was held that ?It is true
that finally at the time of trial the
accused
is
to
be
given
an
opportunity to cross-examine the
witness to test its truthfulness. But
that stage would not arise while
exercising the court?s power under
Section 319 CrPC. Once the
deposition is recorded, no doubt
there being no cross-examination,
it would be a prima facie material
which would enable the Sessions
Court to decide whether powers
under Section 319 should be
exercised or not.? In Ranjit Singh
(Supra), this Court held that ?it is
not necessary for the court to wait
until
the
entire
evidence
is
collected,? for exercising the said
power. In Mohd. Shafi (Supra), it
was held that the pre-requisite for
exercise of power under Section
319 Cr.P.C. was the satisfaction of
the court to proceed against a
person who is not an accused but
against whom evidence occurs, for
which the court can even wait till
the cross examination is over and
that there would be no illegality in
doing so. A similar view has been
taken by a two-Judge Bench in the
case of Harbhajan Singh & Anr. v.
State of Punjab & Anr. (2009) 13
SCC 608. This Court in Hardeep
Singh (Supra) seems to have
misread the judgment in Mohd.
Shafi (Supra), as it construed that
the said judgment laid down that
for the exercise of power under
Section 319 Cr.P.C., the court has
to necessarily wait till the witness
is cross examined and on complete
appreciation of evidence, come to
the conclusion whether there is a
need to proceed under Section 319
Cr.P.C."
(Emphasized by Court)
28. From perusal of the
aforesaid observations as have
been made by the Hon'ble Supreme
Court in Hardeep Singh (supra), it
clearly emerges that the Hon'ble
Supreme Court which considering
the powers under Section 319 of the
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
Code has held that the evidence as
understood under Section 3 of the
Evidence Act is statement of the
witnesses that are recorded during
trial and the documentary evidence
in accordance with the Evidence
Act and such evidence begins with
the statement of the prosecution
witnesses and, therefore, would
also include statements including
examination in chief. Further, the
Hon'ble Court held that it would be
discretion of the Court concerned
to summon any persons who are
found to be accused.
29. Likewise, the Hon'ble
Supreme Court in the case of
Sukhpal Singh Khaira (supra) has
held as under:-
"20. A close perusal of
Section 319 of CrPC indicates that
the power bestowed on the court to
summon any person who is not an
accused in the case is, when in the
course of the trial it appears from
the evidence that such person has a
role in committing the offence.
Therefore, it would be open for the
Court to summon such a person so
that he could be tried together with
the accused and such power is
exclusively of the Court. Obviously,
when such power is to summon the
additional accused and try such a
person with the already charged
accused against whom the trial is
proceeding, it will have to be
exercised before the conclusion of
trial. The connotation ?conclusion
of trial? in the present case cannot
be reckoned as the stage till the
evidence is recorded, but, is to be
understood as the stage before
pronouncement of the judgment as
already held in Hardeep Singh
(supra) since on judgment being
pronounced the trial comes to a
conclusion since until such time the
accused is being tried by the
Court."
(Emphasized by Court)
30. From perusal of the
judgment in the case of Sukhpal
Singh Khaira (supra), it clearly
emerges that the Hon'ble Supreme
Court has held that it is open for
the Court to summon such a person
so that he would be tried together
with the accused and such power is
exclusively of the Court. The said
observation also finds place in the
recent judgment of the Supreme
Court in the case Sandeep Kumar
(supra).
31. The Supreme Court in
the case of Juhru & Ors vs Karim
& Anr : Criminal Appeal No.549 of
2023, decided on 21.02.2023 after
considering its earlier judgments in
the case of Hardeep Singh (supra)
and Sukhpal Singh Khaira (supra)
has held as under :-
"17. It is, thus, manifested
from a conjoint reading of the cited
decisions that power of summoning
under Section 319 Cr.P.C. is not to
be exercised routinely and the
existence of more than a prima
facie case is sine quo non to
summon an additional accused. We
may hasten to add that with a view
to prevent the frequent misuse of
power
to
summon
additional
accused under Section 319 Cr.P.C.,
and in conformity with the binding
judicial dictums referred to above,
the procedural safeguard can be
that ordinarily the summoning of a
person at the very threshold of the
trial may be discouraged and the
7 All. Madhav Raj & Anr. Vs. State of U.P. & Ors.
1183
trial court must evaluate the
evidence
against
the
persons
sought to be summoned and then
adjudge whether such material is,
more or less, carry the same
weightage and value as has been
testified against those who are
already facing trial. In the absence
of any credible evidence, the power
under Section 319 Cr.P.C. ought
not to be invoked."
(Emphasized by Court)
32. From perusal of the
judgment of the Hon'ble Supreme
Court in the case of Juhru (supra),
it also emerges that the Apex Court
has categorically held that the
powers
of
summoning
under
Section 319 of the Code is not to be
exercised
routinely
and
the
existence of more than a prima
facie case is sine qua non to
summon an additional accused."

20. From the judgments as referred
to above, it is apparent that the scope of
exercise of powers under Section 319 of the
Code is vested with the court i.e. the power
to summon is exclusively of the court and
that prerequisite for exercise of the power
under Section 319 of the Code is the
satisfaction of the court to proceed against
a person who is not an accused but against
whom evidence is there.

21. Being armed with the aforesaid
interpretation as given to Section 319 of the
Code and power to summon an accused,
when the impugned order is seen in context
of the law laid down by the Hon'ble
Supreme Court in the aforesaid judgments,
it thus emerges that the learned court while
passing the order impugned has considered
the statements of P.Ws.1, 2 and 3 to arrive
at a prima facie satisfaction of the
revisionist to be summoned for being tried
for the offences as have been levelled.

22. The judgment of the Hon'ble
Supreme Court in the case of Brijendra
Singh (supra) which is the sheet anchor of
the argument of the learned counsel for the
revisionist has also been considered by the
Hon'ble Supreme Court in the case of
Yashodhan Singh (supra) wherein the
Hon'ble Supreme Court has categorically
held that once the trial court finds that
there is some 'evidence' against such a
person on the basis of which it can be
gathered that he/she appears to be the
guilty of the offence, there can be exercise
of the power under Section 319 of the
Code.

23. Keeping in view the aforesaid
discussion and the satisfaction of the Court
as per the provisions of Section 319 of the
Code vis--vis the impugned order and
summoning the revisionist, this Court does
not find any perversity in the impugned
order.
The
revision
is
accordingly
dismissed.
----------
(2024) 7 ILRA 1183
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. W.P. No. 5099 of 2024

Madhav Raj & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioners:
Amitesh Pratap
Singh, Abhijeet P. Singh
Chauhan, Naveen Kumar Singh, Shesh Ram
Yadav