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

- **Citation:** (2022) 10 ILRA 712
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-19
- **Case number:** Criminal Revision No. 2179 of 2022
- **Bench:** Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-revisionist-v-state-of-u-p-anr-47780
- **Pages:** 35

## Headnote

Law
-
Code
of
Criminal
Procedure,1973
-
Section
319Application u/s 319 Cr.P.C. by informantallowed-Applicant summoned to face trialP.W.1
-eye
witness-informant-St.ment-in
chief and cross-examination recorded-his
testimony falls in realm of legal evidencewhile considering Application u/s 319 Cr.P.C.-
court
relied
upon
St.ment-in-chief-no
illegality-no material on the basis of which
PW-1's testimony be discarded at this stagecomplicity of revisionist in crime is clearly
established.

Revision dismissed. (E-9)
10 All. Mahendra Singh Vs. State of U.P. & Anr.
713
List of Cases cited:

## Text

_Characters 0–39,841 of 116,742. This is a partial read: ask again with offset=39841 for what follows._

712 INDIAN LAW REPORTS ALLAHABAD SERIES
on record to reject the application of
juvenile for bail. Hence, the revision
deserves to be allowed. Both the courts
below could not appreciate the legal
position while rejecting bail application of
delinquent juvenile. The revision stands
allowed.
Consequently,
the
impugned
orders dated 19.01.2022, passed by Special
Judge (POCSO Act)/Additional Session
Judge, Fatehpur in Criminal Appeal No. 53
of 2021 (Juvenile through guardian father
Vs. State of U.P.) and order dated
17.09.2021 passed by the Juvenile Justice
Board, Fatehpur in Case No.111/2020,
arising out of Case Crime No.489/2020,
under Sections 376-A, B, 504, 506 I.P.C.
and Section 5/6 of POCSO Act, Police
Station - Bindki, District -Fatehpur are set
aside.

21. It is directed that the revisionist
shall be released on bail executing personal
bond by his natural guardian/father with two
solvent sureties each in the like amount to the
satisfaction of Principal Magistrate, Juvenile
Justice Board, Fatehpur with the stipulation
that on subsequent dates of hearing, he shall
produce the delinquent juvenile before the
Board during the pendency of the case. His
guardian/father
shall
also
submit
an
undertaking before the Board that, (i) he shall
keep proper control and look after the
juvenile, (ii) He will keep away him from the
company of known criminals and will do all
of his endeavour to improve his better future,
(iii) he will take care for moral, physical and
psychological development of his son, (iv)
the revisionist or his father shall not tamper
with the evidence or cause threat to the
witnesses. The revisionist through his
guardian shall also file undertaking to the
effect that he shall not seek an adjournment
on the date fixed for evidence when the
witnesses are present before the Juvenile
Justice Board.

22. The District Probation Officer will
keep strict vigil on the activities of the
revisionist and regularly draw up his social
investigation
report
that
would
be
submitted to the Juvenile Justice Board,
Fatehpur on such periodical basis as the
Juvenile Justice Board determines.

23. In case of default, the Board
would be competent to cancel the bail of
revisionist after giving opportunity of
hearing to him.
----------
(2022) 10 ILRA 712
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2022

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Criminal Revision No. 2179 of 2022

Mahendra Singh ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Vikas Sharma

Counsel for the Respondents:
G.A., Sri Sudhir Dixit, Sri Utkarsh Dixit

Criminal
Law
-
Code
of
Criminal
Procedure,1973
-
Section
319Application u/s 319 Cr.P.C. by informantallowed-Applicant summoned to face trialP.W.1
-eye
witness-informant-St.ment-in
chief and cross-examination recorded-his
testimony falls in realm of legal evidencewhile considering Application u/s 319 Cr.P.C.-
court
relied
upon
St.ment-in-chief-no
illegality-no material on the basis of which
PW-1's testimony be discarded at this stagecomplicity of revisionist in crime is clearly
established.

Revision dismissed. (E-9)
10 All. Mahendra Singh Vs. State of U.P. & Anr.
713
List of Cases cited:

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

2. S. Mohammed Ispahani Vs Yogendra Chandak
& ors., (2017) 16 SCC 226 and Brijendra Singh
& ors. Vs St. of Raj., (2017) SCC 706

3. Labhuji Amratji Thakor Vs St. of Guj., (2019)
12 SCC 644

4. Dharam Pal & ors. Vs St. of Har. & anr.,
(2014) 3 SCC 306 (Constitution Bench)

5. Hardeep Singh Vs St. of Pun. & ors., (2014) 3
SCC 92 (Constitution Bench)

6. Babubhai Bhimabhai Bokhiria & anr. Vs St. of
Gujarat & ors., (2014) 5 SCC 568

7. Jogendra Yadav & ors. Vs St. of Bihar & anr.,
(2015) 9 SCc 244

8. Brijendra Singh & ors. Vs St. of Raj., (2017)
SCC 706

9. S Mohammed Ispahani Vs Yogendra Chandak
& ors., (2017) 16 SCC 226

10. Dev Wati & ors. Vs St. of Har. & anr. (2019)
4 SCC 329

11. Periyasamai & ors. Vs S.Nallasamy, (2019) 4
SCC 342

12. Sunil Kumar Gupta & ors. Vs St. of U. P. &
ors., (2019) 4 SCC 556

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

14. Sukhpal Singh Khaira Vs St. of Pun., (2019)
6 SCC 638

15. Mani Pushpak Joshi Vs St. of Uttarakhand &
anr., (2019) 9 SCC 805

16. Sugreev Kumar Vs St. of Punj. & ors., (2019)
SCC Online Sc 390

17. Labhuji Amratji Thakor Vs St. of Guj., (2019)
12 SCC 644
18. Shiv Prakash Mishra Vs St. of U.r P. & anr.,
(2019) 7 SCC 806

19. Sartaj Singh Vs St. of Har. & anr., (2021) 5
SCC 337

20. Manjeet Singh Vs St. of Har. & ors., 2021
SCC Online SC 632. 8 1
(Delivered by Hon'ble Gajendra Kumar, J.)

1. Heard Mr. Vikas Sharma, learned
counsel for revisionist, learned counsel for
the State-respondents and perused the
record.

2. This criminal revision has been
filed challenging order dated 13.05.2022,
passed by learned court of Additional
District and Sessions Judge, Bulandshahar,
in Sessions Trial No.660 of 2020 (State Vs.
Hemant), under section 302 IPC, Police
Station- Araniya, District Bulandshahar,
arising out of Case Crime No.313 of 2019,
whereby application under Section 319
Cr.P.C., filed by first informant/opposite
party-2 Raj Kumar has been allowed.
Consequently,
applicant
has
been
summoned to face trial in above mentioned
case.

3. From perusal of the records, it is
evident that in respect of an incident, first
informant/opposite party-2 Raj Kumar
lodged a F.I.R. dated 21.12.2019, which
was registered as under section 302 IPC,
Police
Station-
Araniya,
District
Bulandshahar, arising out of Case Crime
No.313 of 2019. In the aforesaid F.I.R., as
many as three named persons namely,
Hemant, Mahendra Singh, Lalit and two
unknown persons have been nominated.

4. In brief prosecution story as
unfolded
in
F.I.R
dated
21.12.2019,
alleging therein that 1-1/2 years ago, co-
714 INDIAN LAW REPORTS ALLAHABAD SERIES
accused, Hemant borrowed Rs.6,50,000/-
from
the
informant's
uncle
namely,
Gyanendra Pratap Singh and despite
several requests made by Gyanendra Singh,
he did not return the aforesaid amount. Due
to this, co-accused-Hemant feeling enmity
with
Gyanendra
Pratap
Singh,
on
21.12.2019 at about 09:24 a.m., he called
him
by
his
mobile-phone
bearing
No.9311444194 near Dashahara Mobile
Tower and when his uncle Gyanendra
Pratap Singh along with one Laxmi Raj and
Sateyendra Pratap Singh reached to the
Bridge, then co-accused-persons namely,
Hemant
(revisionist),
Lalit
and
two
unknown persons started firing by using the
pistol and revolver at Gyanendra Pratap
Singh, as a result, he seriously injured and
during treatment in the hospital, he died.

5. During the course of investigation,
Investigating
Officer
examined
first
informant and other witnesses, who have
supported
the
prosecution
story,
as
unfolded in F.I.R. On the basis of above, as
well as other material collected by
Investigating Officer, during course of
investigation, Investigating Officer opined
to submit a charge sheet. Accordingly,
Investigating Officer submitted charge
sheet dated 15.03.2020, whereby one
named
accused
namely,
Hemant
(revisionist) has been charge sheeted under
Section 302 IPC and Section 30 of Arms
Act, 1959, whereas other co-accused,
namely, Mahendra Singh Chauhan s/o
Dalbir Singh, Lokendra Singh @ Lalit s/o
Sarjeet Singh have been exonerated.
Perusal of charge sheet further goes to
show that as many as 34 prosecution
witnesses have been nominated therein.

6. After submission of above mentioned
charge sheet, cognizance was taken upon the
same by the concerned Magistrate. Since
offence complained was triable by Court of
Sessions, accordingly, concerned Magistrate,
committed the case to the Court of Sessions.
Resultantly, Sessions Trial No.660 of 2020
(State Vs. Hemant), came to be registered.

7. Trial commenced. Charges were
framed against charge sheeted accused who
denied the same. Consequently, burden fell
upon prosecution to establish the charges so
framed by leading evidence.

8. In discharge of aforesaid burden,
prosecution adduced first informant (Raj
Kumar) and was examined as P.W. 1. His
statements were recorded. Thereafter, first
informant/opposite party-2, who is also
P.W.1, filed an application dated 19.04.2022,
in terms of Section 319 Cr.P.C., praying
therein, that since complicity of non charge
sheeted but named accused Mahendra Singh
s/o Dalveer Singh and Lalit s/o Sarjeet Singh
are also established in the crime in question,
as per his testimony therefore, they be also
summoned under Section 319 Cr.P.C. to face
trial in above mentioned case.

9. While aforesaid application was
pending, statement of P.W.2 (Satyendra
Pratap Singh) was also recorded.

10. Application under Section 319
Cr.P.C. filed by first informant/opposite
party-2 was opposed by charge sheeted
accused-Hemant. Ultimately, court below by
means of order dated 13.05.2022, allowed the
application under Section 319 Cr.P.C. and
consequently,
summoned
co-accused,
namely, Mahendra Singh s/o Dalveer Singh
and Lalit s/o Sarjeet Singh to face trial in
above mentioned criminal case.

11. Feeling aggrieved by the above,
revisionist- Mahendra Singh s/o Dalveer
Singh has now approached this Court by
means of instant criminal revision.
10 All. Mahendra Singh Vs. State of U.P. & Anr.
715

12. Mr. Vikas Sharma, learned
counsel for revisionist submits that order
impugned in present criminal revision is
manifestly illegal and without jurisdiction
and the same is unsustainable in law and
fact. It is then contended by the learned
counsel for revisionist that revisionist was
nominated as one of the named accused in
F.I.R. dated 21.12.2019. However, during
investigation,
no
such
material
was
gathered by the Investigating Officer on the
basis of which, complicity of present
applicant was found to be established in the
crime in question. Resultantly, applicant
has been exculpated in the charge sheet
dated 15.03.2020. He, further, submits that
Investigating Officer of concerned case
crime number has not yet been examined
by Court below. In such circumstance,
court below ought to have deferred the
disposal of application under

Section 319 Cr.P.C. filed by first
informant/opposite party-2, till statementin-chief of Investigating Officer was
recorded as he will be the best person to
demonstrate
as
to
under
what
circumstances,
complicity
of
present
applicant was not found to be established in
the crime in question. As court below has
pre-empted the disposal of application
under
Section
319
Cr.P.C.,
serious
prejudice has been caused to applicant. It is
lastly submitted that no cast iron case is
made out for summoning the present
applicant as per testimonies of P.W.1 Raj
Kumar and P.W.2 Satendra Pratap Singh.
Nothing new has been stated by P.W.1 and
P.W.2 in their deposition before Court
below than what was stated in their
statements under Section 161 Cr.P.C.
before Investigating Officer. Impugned
order passed by the Court below is, thus, in
teeth of Constitution Bench judgement in
case of Hardeep Singh Vs. State of
Punjab and Others, (2014) 3 SCC 92, as
well as law laid down in S. Mohammed
Ispahani Vs. Yogendra Chandak and
Others, (2017) 16 SCC 226 and Brijendra
Singh and Others Vs. State of Rajasthan,
(2017) SCC 706 and court below has thus
failed
to
exercise
its
jurisdiction
"diligently" and has summoned revisionist
in
a
"casual
and
cavalier
manner",
inasmuch as, there is no "strong nor cogent
evidence" against revisionist, which is a
pre-condition for summoning a prospective
accused under Section 319 Cr.P.C.

13. On the cumulative strength of
above, Mr. Vikas Sharma, learned counsel
for revisionist vehemently contends that
present criminal revision is liable to be
allowed and impugned order be set aside.

14. Per contra, learned A.G.A. as well
as learned counsel for the opposite party
no.2 has opposed this criminal revision and
contends that statement of P.W.1-Raj
Kumar is alone material for deciding the
application under Section 319 Cr.P.C. as he
is a prosecution witnesses of fact,. as per
law laid down by Constitution Bench in
Hardeep Singh (Supra). However, in the
present case, cross examination of P.W.-1
and P.W.-2 have also been conducted
before the court below. No illegality has
been committed by court below in placing
reliance upon testimonies of P.W.1 and
P.W.2, who have been cross-examined.
Statements of P.W.1 and P.W.2- thus falls
in the realm of legal evidence. Therefore
court below has rightly proceeded to pass
order dated 13.05.2022 by placing reliance
upon same. No irregularity or illegality has
been committed by the court below in
passing impugned order dated 13.05.2022.
From perusal of testimonies of P.W.1 and
P.W.2 complicity of present applicant in
the crime in question is fully established.
716 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W.1 and P.W.2 are eye witnesses of the
occurrence and their testimonies have to be
held to be more credible and reliable. As
such Court below has exercised its
jurisdiction "diligently" and not in a "casual
and caviliar manner". Applicant has been
summoned on the basis of "strong and
cogent" evidence that has emerged against
him during course of above mentioned
sessions trial. It cannot be said at this stage
that "applicants cannot be tried along with
other accused" and further that "if the
evidence which has been recorded up to
this stage goes unrebutted would not lead to
conviction of revisionist". Police report
submitted by Investigating Officer is not
conclusive
proof
of
innocence
of
revisionist. Even though, revisionist has
been exonerated by Investigating Officer,
same cannot be taken as a ground to urge
that revisionist cannot be subsequently
summoned to face trial. Revisionist will
have adequate opportunity to prove his
innocence before court below during course
of trial by adducing Investigating Officer as
a defence witness also. No ground has been
raised in the grounds of revision that P.W.1
and P.W.2 have not stated anything new in
their depositions before the court below
than what was stated by them in their
statements. On the aforesaid premise, it is,
thus, urged by learned A.G.A. that
revisionist is not entitled to any indulgence
by this Court. Consequently, present
criminal revision is liable to be dismissed.

15. Having heard learned counsel for
revisionist, learned A.G.A. for State and
upon perusal of record, this Court finds that
the issue, which arises for determination in
present criminal revision is: What are the
parameters for exercise of jurisdiction
under Section 319 Cr.P.C As a corollary to
above, whether the order impugned is
within the established parameters or not.

16. Parameters regarding exercise of
jurisdiction by the courts under Section 319
Cr.P.C. has been considered time and again
by Supreme Court. The chronology of the
same is reads as under:

(i) Dharam Pal and Others Vs.
State of Haryana and Another, (2014) 3
SCC 306 (Constitution Bench)

(ii) Hardeep Singh Vs. State of
Punjab and Others, (2014) 3 SCC 92
(Constitution Bench)

(iii)
Babubhai
Bhimabhai
Bokhiria and Another Vs. State of Gujarat
and Others, (2014) 5 SCC 568

(iv) Jogendra yadav and Others
Vs. State of Bihar and Another, (2015) 9
SCc 244

(v) Brijendra Singh and Others
Vs. State of Rajasthan, (2017) SCC 706

(vi) S Mohammed Ispahani Vs.
Yogendra Chandak and Others, (2017) 16
SCC 226

(vii) Dev Wati and Others Vs.
State of Haryana and Another (2019) 4
SCC 329

(viii) Periyasamai and Others
Vs. S.Nallasamy, (2019) 4 SCC 342

(ix) Sunil Kumar Gupta and
Others Vs. State of Uttar Pradesh and
Others, (2019) 4 SCC 556

(x) Rajesh and Others Vs. State
of Haryana, (2019) 6 SCC 368

(xi) Sukhpal Singh Khaira Vs.
State of Punjab, (2019) 6 SCC 638
10 All. Mahendra Singh Vs. State of U.P. & Anr.
717

(xii) Mani Pushpak Joshi Vs.
State of Uttarakhand and Another, (2019)
9 SCC 805

(xiii) Sugreev Kumar Vs. State of
Punjab and Others, (2019) SCC Online Sc
390

(xiv) Labhuji Amratji Thakor
Vs. State of Gujarat, (2019) 12 SCC 644

(xv) Shiv Prakash Mishra Vs. State of
Uttar Pradesh and Another, (2019) 7 SCC
806

(xvi) Sartaj Singh Vs. State of
Haryana and Another, (2021) 5 SCC 337

(xvii) Manjeet Singh Vs. State of
Haryana and Others, 2021 SCC Online
SC 632.

17. To begin with, a constitution
Bench of Supreme Court in Dharam Pal
(Supra) considered the provisions of
Sections 193, 190, 319, 209, 173(2) and
200 to 204 Cr.P.C. and held that Sessions
Judge has power to summon non charge
sheeted accused after the case has been
committed to Court of Sessions under
section 193 Cr.P.C and for this purpose
need not wait for evidence to be recorded
so that non charge sheeted accused could
be summoned under section 319 Cr.P.C.

18. Subsequently, in Hardeep Singh
(Supra), another constitution Bench of
Supreme Court considered the parameters
for exercise of jurisdiction under Section
319 Cr.P.C. The Constitution Bench upon
consideration of various provisions of
Indian Evidence Act, Code of Criminal
Procedure as well as underlying principles
of Section 319 Cr.P.C. framed five
questions for defining the parameters for
exercising jurisdiction under Section 319
Cr.P.C. Thereafter, Court held as under in
paragraphs 4, 5, 6, 6.5, 7, 11, 55, 56, 57,
85, 92, 105, 106, 116, 117.1 to 117.6:

"4. Reference made in Dharam
Pal (Supra) came to be answered in
relation to the power of a Court of Sessions
to invoke Section 319 Cr.P.C. at the stage
of committal of the case to a Court of
Sessions. The said reference was answered
by the Constitution Bench in the case of
Dharam Pal & Ors. v. State of Haryana &
Anr., AIR 2013 SC 3018 [hereinafter called
'Dharam Pal (CB)'], wherein it was held
that a Court of Sessions can with the aid of
Section 193 Cr.P.C. proceed to array any
other person and summon him for being
tried even if the provisions of Section 319
Cr.P.C. could not be pressed in service at
the stage of committal.

5. Thus, after the reference was
made by a three-Judge Bench in the present
case, the powers so far as the Court of
Sessions is concerned, to invoke Section
319 Cr.P.C. at the stage of committal,
stood answered finally in the aforesaid
background.

6. On the consideration of the
submissions raised and in view of what has
been noted above, the following questions
are to be answered by this Bench:

6.1 (i) What is the stage at which
power under Section 319 Cr.P.C. can be
exercised?

6.2
(ii)
Whether
the
word
"evidence" used in Section 319(1) Cr.P.C.
could only mean evidence tested by crossexamination or the court can exercise the
power under the said provision even on the
basis of the statement made in the
718 INDIAN LAW REPORTS ALLAHABAD SERIES
examination-in-chief
of
the
witness
concerned?

6.3
(iii)
Whether
the
word
"evidence" used in Section 319(1) Cr.P.C.
has been used in a comprehensive sense
and includes the evidence collected during
investigation or the word "evidence" is
limited to the evidence recorded during
trial?

6.4 (iv) What is the nature of the
satisfaction required to invoke the power
under Section 319 Cr.P.C. to arraign an
accused? Whether the power under Section
319(1) Cr.P.C. can be exercised only if the
court
is
satisfied
that
the
accused
summoned will in all likelihood convicted?

6.5 (v) Does the power under
Section 319 Cr.P.C. extend to persons not
named in the FIR or named in the FIR but
not charged or who have been discharged?

7. In this reference what we are
primarily concerned with, is the stage at
which such powers can be invoked and,
secondly, the material on the basis whereof
the invoking of such powers can be
justified. To add as a corollary to the same,
thirdly, the manner in which such power
has to be exercised, also has to be
considered.

11. Section 319 Cr.P.C. as it
exists today, is quoted hereunder:

"319 Cr.P.C. -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-

(5) (a) the proceedings in respect
of such person shall be commenced afresh,
and the 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."

55. Accordingly, we hold that the
court can exercise the power under Section
319 Cr.P.C. only after the trial proceeds
and commences with the recording of the
evidence
and
also
in
exceptional
circumstances as explained herein above.

56. There is yet another set of
provisions which form part of inquiry
relevant for the purposes of Section 319
Cr.P.C. i.e. provisions of Sections 200, 201,
10 All. Mahendra Singh Vs. State of U.P. & Anr.
719
202, etc. Cr.P.C. applicable in the case of
Complaint Cases. As has been discussed
herein, evidence means evidence adduced
before the court. Complaint Cases is a
distinct category of criminal trial where
some sort of evidence in the strict legal
sense of Section 3 of the Evidence Act
1872, (hereinafter referred to as the
'Evidence Act') comes before the court.
There does not seem to be any restriction in
the provisions of Section 319 Cr.P.C. so as
to preclude such evidence as coming before
the court in Complaint Cases even before
charges have been framed or the process
has been issued. But at that stage as there
is no accused before the Court, such
evidence can be used only to corroborate
the evidence recorded during the trial for
the purpose of Section 319 Cr.P.C., if so
required. What is essential for the purpose
of the section is that there should appear
some evidence against a person not
proceeded against and the stage of the
proceedings is irrelevant. Where the
complainant is circumspect in proceeding
against several persons, but the court is of
the opinion that there appears to be some
evidence pointing to the complicity of some
other persons as well, Section 319 Cr.P.C.
acts as an empowering provision enabling
the court/Magistrate to initiate proceedings
against such other persons. The purpose of
Section 319 Cr.P.C. is to do complete
justice and to ensure that persons who
ought to have been tried as well are also
tried. Therefore, there does not appear to
be any difficulty in invoking powers of
Section 319 Cr.P.C. at the stage of trial in
a complaint case when the evidence of the
complainant as well as his witnesses is
being recorded.

57. Thus, the application of the
provisions of Section 319 Cr.P.C., at the
stage of inquiry is to be understood in its
correct perspective. The power under
Section 319 Cr.P.C. can be exercised only
on the basis of the evidence adduced before
the court during a trial. So far as its
application during the course of inquiry is
concerned, it remains limited as referred to
hereinabove, adding a person as an
accused, whose name has been mentioned
in Column 2 of the charge sheet or any
other person who might be an accomplice

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 Cr.P.C. The 'evidence' is thus, limited
to the evidence recorded during trial.

92. 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 which can be
gathered from the reasons recorded by the
court, in respect of complicity of some
other person(s), not facing the trial in the
offence.

105. Power under Section 319
CrPC
is
a
discretionary
and
an
extraordinary power. It is to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. It is
not to be exercised because the Magistrate
or the Sessions Judge is of the opinion that
some other person may also be guilty of
committing that offence. Only where strong
720 INDIAN LAW REPORTS ALLAHABAD SERIES
and cogent evidence occurs against a
person from the evidence led before the
court that such power should be exercised
and not in a casual and cavalier manner.

106. Thus, we hold that though only
a prima facie case is to be established from the
evidence led before the court not necessarily
tested on the anvil of Cross-Examination, 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 Cr.P.C. In
Section 319 Cr.P.C. the purpose of providing
if 'it appears from the evidence that any person
not being the accused has committed any
offence' is clear from the words "for which
such person could be tried together with the
accused." The words used are not 'for which
such person could be convicted'. There is,
therefore, no scope for the Court acting under
Section 319 Cr.P.C. to form any opinion as to
the guilt of the accused.

116. Thus, it is evident that power
under Section 319 Cr.P.C. can be exercised
against
a
person
not
subjected
to
investigation, or a person placed in the
Column 2 of the Charge-Sheet and against
whom cognizance had not been taken, or a
person who has been discharged. However,
concerning a person who has been
discharged,
no
proceedings
can
be
commenced against him directly under
Section
319
Cr.P.C.
without
taking
recourse to provisions of Section 300(5)
read with Section 398 Cr.P.C.

117. We accordingly sum up our
conclusions as follows:

Questions (i) and (iii)

-
 What is the stage at which power
under
Section
319
Cr.P.C.
can
be
exercised?

AND

-

 Whether the word "evidence"
used in Section 319(1) Cr.P.C. 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?

Answer 117.1. In Dharam Pal
case, the Constitution Bench has already
held that after committal, cognizance of an
offence can be taken against a person not
named as an accused but against whom
materials are available from the papers
filed by the police after completion of
investigation. Such cognizance can be
taken under Section 193 Cr.P.C. and the
Sessions Judge need not wait till 'evidence'
under
Section
319
Cr.P.C.
becomes
available for summoning an additional
accused.

117.2.
Section
319
Cr.P.C.,
significantly, uses two expressions that
have to be taken note of i.e. (1) Inquiry (2)
Trial. As a trial commences after framing
of charge, an inquiry can only be
understood to be a pre-trial inquiry.
Inquiries under Sections 200, 201, 202
Cr.P.C.; and under Section 398 Cr.P.C.
are species of the inquiry contemplated by
Section 319 Cr.P.C. Materials coming
before the Court in course of such
enquiries can be used for corroboration of
the evidence recorded in the court after the
trial commences, for the exercise of power
under Section 319 Cr.P.C., and also to add
10 All. Mahendra Singh Vs. State of U.P. & Anr.
721
an accused whose name has been shown in
Column 2 of the charge-sheet.

117.3. In view of the above
position the word 'evidence' in Section 319
Cr.P.C. has to be broadly understood and
not literally i.e. as evidence brought during
a trial.

Question (ii)- Whether the word
"evidence" used in Section 319(1) Cr.P.C.
could only mean evidence tested by crossexamination or the court can exercise the
power under the said provision even on the
basis of the statement made in the
examination-in-chief
of
the
witness
concerned?

Answer 117.4. Considering the
fact that under Section 319 Cr.P.C. a
person against whom material is disclosed
is only summoned to face the trial and in
such an event under Section 319(4) Cr.P.C.
the proceeding against such person is to
commence from the stage of taking of
cognizance, the Court need not wait for the
evidence against the accused proposed to
be summoned to be tested by crossexamination.

Question (iv)- What is the nature
of the satisfaction required to invoke the
power under Section 319 Cr.P.C. to
arraign an accused? Whether the power
under Section 319 (1) Cr.P.C. can be
exercised only if the court is satisfied that
the accused summoned will in all likelihood
be convicted?

Answer.

117.5. Though under Section
319(4)(b) Cr.P.C. the accused subsequently
impleaded is to be treated as if he had been
an accused when the Court initially took
cognizance of the offence, the degree of
satisfaction that will be required for
summoning a person under Section 319
Cr.P.C. would be the same as for ?framing
a charge. The difference in the degree of
satisfaction for summoning the original
accused and a subsequent accused is on
account of the fact that the trial may have
already commenced against the original
accused and it is in the course of such trial
that materials are disclosed against the
newly
summoned
accused.
Fresh
summoning of an accused will result in
delay of the trial - therefore the degree of
satisfaction for summoning the accused
(original and subsequent) has to be
different.

Question (v)- Does the power
under Section 319 Cr.P.C. extend to
persons not named in the FIR or named in
the FIR but not charge-sheeted or who
have been discharged?

Answer 117.6. 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 Cr.P.C. provided from the
evidence it appears that such person can be
tried along with the accused already facing
trial. However, in so far as an accused who
has been discharged is concerned the
requirement of ?Sections 300 and 398
Cr.P.C. has to be complied with before he
can be summoned afresh."

19. After aforesaid Constitution
Bench judgement, the issue as involved in
present application again came up for
consideration before Supreme Court in
Babubhai Bhimabhai Bokhiria (Supra),
wherein Court dealt with the issue of
summoning of a non charge sheeted
722 INDIAN LAW REPORTS ALLAHABAD SERIES
accused under Section 319 Cr.P.C. who
was alleged to be involved in the crime in
question on the basis of dying declaration.
The issue that arose for consideration was
whether on the basis of dying declaration
an inference of guilt could be drawn against
non-charge sheeted accused sought to be
summoned in a case, which arose out of an
F.I.R. registered at Kalambaug Police
Station Porbandar under Sections- 302,
201, 34, 120B, 465, 468, 471 I.P.C. and
Section- 25 of Arms Act. Court took notice
of paragraphs 105 and 106 of the
Constitution Bench judgement in Hardeep
Singh's case (Supra) and deduced as
follows in paragraphs 7, 8, 9, 15, 20, 21
and 22:

"7. Before we proceed to deal
with the evidence against the appellant and
address whether in light of the evidence
available, power under Section 319 of the
Code was validly exercised, it would be
expedient to understand the position of law
in this regard. The issue regarding the
scope and extent of powers of the court to
arraign any person as an accused during
the course of inquiry or trial in exercise of
power under Section 319 of the Code has
been set at rest by a Constitution Bench of
this Court in Hardeep Singh v. State of
Punjab [(2014) 3 SCC 92 : (2014) 2 SCC
(Cri) 86 : (2014) 1 Scale 241]. On a review
of the authorities, this Court summarised
the legal position in the following words:
(SCC p. 138, paras 105-06) "105. Power
under Section 319 CrPC is a discretionary
and an extraordinary power. It is to be
exercised sparingly and only in those cases
where the circumstances of the case so
warrant. It is not to be exercised because
the Magistrate or the Sessions Judge is of
the opinion that some other person may
also be guilty of committing that offence.
Only where strong and cogent evidence
occurs against a person from the evidence
led before the court that such power should
be exercised and not in a casual and
cavalier manner.

106. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied
is one which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to an
extent that the evidence, if goes unrebutted,
would lead to conviction. In the absence of
such satisfaction, the court should refrain
from exercising power under Section 319
CrPC."

8. Section 319 of the Code
confers power on the trial court to find out
whether a person who ought to have been
added as an accused has erroneously been
omitted or has deliberately been excluded
by the investigating agency and that
satisfaction has to be arrived at on the
basis of the evidence so led during the trial.
On the degree of satisfaction for invoking
power under Section 319 of the Code, this
Court observed that though the test of
prima facie case being made out is same as
that when the cognizance of the offence is
taken and process issued, the degree of
satisfaction under Section 319 of the Code
is much higher.

9. Having summarised the law on
the degree of satisfaction required by the
courts to summon an accused to face trial
in exercise of power under Section 319 of
the Code, we now proceed to consider the
submissions advanced by the learned
counsel.
10 All. Mahendra Singh Vs. State of U.P. & Anr.
723

15. In the present case, except the
apprehension expressed by the deceased, the
statement made by him does not relate to the
cause of his death or to any circumstance of
the transaction which resulted in his death.
Once we hold so, the note does not satisfy the
requirement of Section 32 of the Act. The
note, therefore, in our opinion, is not
admissible in evidence and, thus, cannot be
considered as such to enable exercise of
power under Section 319 of the Code.

20.Now we revert to the authority
of this Court in Rattan Singh [Rattan Singhv.
State of H.P., (1997) 4 SCC 161 : 1997 SCC
(Cri) 525] relied on by Dr Singhvi. In the
said case, the deceased immediately before
she was fired at, spoke out that the accused
was standing nearby with a gun. In a split
second the sound of firearm shot was heard
and in a trice her life snuffed off. In the said
background, this Court held that the words
spoken by the deceased have connection with
the circumstance of transaction which
resulted into death. In the case in hand,
excepting apprehension, there is nothing in
the note. No circumstance of any transaction
resulting in the death of the deceased is found
in the note. Hence, this decision in no way
supports the contention of Dr Singhvi.

21. The other evidence sought to
be relied for summoning the appellant is
the alleged conversation between the
appellant
and
the
accused
on
and
immediately
after
the
day
of
the
occurrence. But, nothing has come during
the course of trial regarding the content of
the conversation and from the call records
alone, the appellant's complicity in the
crime does not surface at all.

22.From what we have observed
above, it is evident that no evidence has at
all come during the trial which shows even
a prima facie complicity of the appellant in
the crime. In that view of the matter, the
order passed by the trial court summoning
the appellant, as affirmed by the High
Court, cannot be allowed to stand."

20. Subsequently in Jogendra yadav
(Supra), Court considered the issue as to
whether a non-charge sheeted accused
summoned under section 319 Cr.P.C. can
claim discharge under section 227 Cr.P.C.
Court referred to observations contained in
paragraphs 105 and 106 of the Constitution
Bench judgement in Hardeep Singh's case
in paragraph 10 of the judgement and
delineated the rights of an accused
summoned under section 319 Cr.P.C. to
claim discharge in paragraph-13 of the
judgement, which reads as under:

"13. We are not unmindful of the
fact that the interpretation placed by us on
the scheme of Sections 319 and 227 makes
Section 227 unavailable to an accused who
has been added under Section 319 CrPC.
We are of the view, for the reasons given
above, that this must necessarily be so
since a view to the contrary would render
the exercise undertaken by a court under
Section 319 CrPC, for summoning an
accused, on the basis of a higher standard
of proof totally infructuous and futile if the
same court were to subsequently discharge
the same accused by exercise of the power
under Section 227 CrPC, on the basis of a
mere prima facie view. The exercise of the
power under Section 319 CrPC, must be
placed on a higher pedestal. Needless to
say the accused summoned under Section
319 CrPC, are entitled to invoke remedy
under law against an illegal or improper
exercise of the power under Section 319,
but cannot have the effect of the order
undone by seeking a discharge under
Section 227 CrPC. If allowed to, such an
action of discharge would not be in
724 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with the purpose of Criminal
Procedure Code in enacting Section 319
which empowers the Court to summon a
person for being tried along with the other
accused where it appears from the evidence
that he has committed an offence."

21. In spite of above noted
judgements, issue did not come to rest, but
again cropped up for consideration in
Brijendra Singh (supra) wherein Court
considered the observations made in
paragraphs 8, 12, 13, 19, 105 and 106 of
Constitution Bench judgement in Hardeep
Singh (Supra) and applying the ratio as
mentioned in aforesaid paragraphs widened
the scope of parameters regarding exercise
of jurisdiction under section 319 Cr.P.C. In
this case, Court was examining the
summoning
of
a
non-charge-sheeted
accused in a Sessions Trial under Sections-
147, 148, 149, 323, 448, 302/149 I.P.C. and
Section- 3 and 3(2)(v) of the Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989. Court
went a step further. A parallel was drawn
with
the
deposition
of
prosecution
witnesses before court and their statements
recorded under section 161 Cr.P.C. to find
out whether something new has come out
in their depositions or not. Having done so,
Court summed up as follows in paragraphs
13, 14, 15:-

"13. In order to answer the
question, some of the principles enunciated
in
Hardeep
Singh's
case
may
be
recapitulated: power under Section 319
Cr.P.C.