# Om Prakash v. State of U.P

- **Citation:** (2019) 1 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-16
- **Case number:** CIVIL MISC. WRIT PETITION No.38033 of 2013
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-44537
- **Pages:** 13

## Headnote

A. Criminal Procedure Code, 1973 -
Section 319 Cr.P.C - Objective - real
culprit should not get away unpunished -
Based on latin doctrine : "litigantes ab
cœtibus summa debet non putat de
manu mali legem" (Para 6)

Criminal Procedure Code, 1973 - U/s 319
Cr.P.C Court can proceed against non-accused
only if it appears from evidence that a non
accused person was also an active participant
of that particular offence (Para 6).

B. Criminal Procedure Code, 1973 - Power
under Section 319 Cr.P.C - can be
exercised only during pendency of the
inquiry or trial. Power /s 319 Cr.P.C not to
be exercised after conclusion of trial -
After judgment is delivered court could not
fix a future date to exercise power under
Section 319 Cr.P.C. (Para 33)

C. Criminal Procedure Code, 1973 -
Section 319 Cr.P.C- Evidence- Trial Judge
is duty bound to take into account the
evidence collected by the Investigating
Officer-during
investigation
while
68 INDIAN LAW REPORTS ALLAHABAD SERIES
exercising anddeciding the application
under section 319 Cr.P.C. (Para 29)

D. Criminal Procedure Code, 1973 -
Power under section 319 Cr.P.C to be
exercised only where strong and cogent
evidence is on record i.e. much stronger
evidence
than
mere
probability
of
complicity of a person.

Held: Where identity of person sought to be
summoned under section 319 Cr.P.C. is
doubtful, it is highly risky to ask a person, to
face trial along with other co-accused persons
- it is duty of trial Judge to establish the
identity of a person/accused by at least
perusing the case diary carefully - before
exercising extra-ordinary powers under section
319 Cr.P.C. (Para 24)

Applicant - Om Prakash (non accused) was
summoned by the trial court in exercise of
power envisaged under section 319 Cr.P.C. to
face the trial - Entire thrust in FIR that minor
daughter of the informant, was enticed away
by co-accused Prakash Rajbhar- In statements
under section 161 & 164 Cr.P.C. of the victim
girl - no whisper of the applicant Om Prakash
nor he was named in the FIR anywhere. There
was no charge sheet against the present
applicant- Om Prakash - On application under
section 319 Cr.P.C. by the informant- the
applicant Jani alias Om Prakash S/o Lalchand
was summoned to face trial along with other
co-accused persons - Held - It was the duty of
trial Judge to establish the identity of a
person/accused as to whether the present
applicant Om Prakash and Jani are one and
same before exercising extra-ordinary powers
under section 319 Cr.P.C. High Court quashed
the summoning order. . (E-5)

Application allowed.

List of cases cited:

## Text

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1 All. Om Prakash Vs. State of U.P.
67
applicants for sale of the plot in question
by the applicant in favour of opposite
party no.2 and the remaining amount was
to be paid subsequently. If the accusedapplicant did not want to sell the said plot
to the opposite party no. 2, they should
not have received/accepted the said
amount of Rs.50,000/-. It is also true that
the agreement to sell which is stated to
have been executed by the accusedapplicant in favour of opposite party no..2
is not a registered document, hence on the
civil side the claim to get the sale deed
executed of the disputed plot would not be
possible to make because of said document
being unregistered one, as, for transfer of
immovable
property
such
kind
of
transaction is bound to be a registered
document. In the present case, it is not a
registered document but it cannot be
denied that the accused-applicant has
accepted Rs.50,000/- despite the fact that
they did not have any intention to sell the
said land to the opposite party no. 2 and
did not return that money also. Therefore,
it cannot be said that the offence would
not be covered under the definition of
cheating which is defined under section
419 IPC and which is punishable under
section 420 IPC prima-facie. It is apparent
that the accused-applicant instead of
selling the said plot to the opposite party
no.2, sold the same to other three persons
on higher amount. Therefore,intention not
to sell the said land to opposite party no. 2
was right from the beginning. Whatever
other factual disputes are referred in the
present
case
such
as
payment
of
Rs.6.00,000/-
over
and
above
of
Rs.50,000/-, same has been paid or not, is
a subject matter of evidence which would
be seen only during the trial. In such
conspectus, I consider it not appropriate
to quash the proceedings under inherent
jurisdiction of this Court, therefore, the
application deserves to be dismissed and
is accordingly dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.05.2019

BEFORE
THE HON'BLE RAHUL CHATURVEDI, J.

CIVIL MISC. WRIT PETITION No.38033 of 2013
(u/s - 482 Cr. P.C.)

Om Prakash ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Daya Shankar Mishra, Sri Chandrakesh
Mishra.

Counsel for the Opposite Party:
A.G.A., Sri Raj Kumar.

A. Criminal Procedure Code, 1973 -
Section 319 Cr.P.C - Objective - real
culprit should not get away unpunished -
Based on latin doctrine : "litigantes ab
cœtibus summa debet non putat de
manu mali legem" (Para 6)

Criminal Procedure Code, 1973 - U/s 319
Cr.P.C Court can proceed against non-accused
only if it appears from evidence that a non
accused person was also an active participant
of that particular offence (Para 6).

B. Criminal Procedure Code, 1973 - Power
under Section 319 Cr.P.C - can be
exercised only during pendency of the
inquiry or trial. Power /s 319 Cr.P.C not to
be exercised after conclusion of trial -
After judgment is delivered court could not
fix a future date to exercise power under
Section 319 Cr.P.C. (Para 33)

C. Criminal Procedure Code, 1973 -
Section 319 Cr.P.C- Evidence- Trial Judge
is duty bound to take into account the
evidence collected by the Investigating
Officer-during
investigation
while
68 INDIAN LAW REPORTS ALLAHABAD SERIES
exercising anddeciding the application
under section 319 Cr.P.C. (Para 29)

D. Criminal Procedure Code, 1973 -
Power under section 319 Cr.P.C to be
exercised only where strong and cogent
evidence is on record i.e. much stronger
evidence
than
mere
probability
of
complicity of a person.

Held: Where identity of person sought to be
summoned under section 319 Cr.P.C. is
doubtful, it is highly risky to ask a person, to
face trial along with other co-accused persons
- it is duty of trial Judge to establish the
identity of a person/accused by at least
perusing the case diary carefully - before
exercising extra-ordinary powers under section
319 Cr.P.C. (Para 24)

Applicant - Om Prakash (non accused) was
summoned by the trial court in exercise of
power envisaged under section 319 Cr.P.C. to
face the trial - Entire thrust in FIR that minor
daughter of the informant, was enticed away
by co-accused Prakash Rajbhar- In statements
under section 161 & 164 Cr.P.C. of the victim
girl - no whisper of the applicant Om Prakash
nor he was named in the FIR anywhere. There
was no charge sheet against the present
applicant- Om Prakash - On application under
section 319 Cr.P.C. by the informant- the
applicant Jani alias Om Prakash S/o Lalchand
was summoned to face trial along with other
co-accused persons - Held - It was the duty of
trial Judge to establish the identity of a
person/accused as to whether the present
applicant Om Prakash and Jani are one and
same before exercising extra-ordinary powers
under section 319 Cr.P.C. High Court quashed
the summoning order. . (E-5)

Application allowed.

List of cases cited:

1. Hardeep Singh Vs. State of Punjab& Others,
[(2014) 3 SCC 92]

2. Ramdhan Mali and another v. State of
Rajasthan and another [Criminal Appeal No. 3.
1750 OF 2008] delivered on 10.01.2014 in
3. Brijendra Singh & Ors vs State Of Rajasthan
(2017) 7 SCC 706]

4. Labhuji Amratji Thakor &Ors. Vs. State of
Gujarat &ANR. in Criminal Appeal No.1349 of
2018 arising out of SLP (CRL.) No.6392 /2018
decided 13.11,2018

5. Periyasami and Ors. Vs. S. Nallasamy
[Criminal Appeal No. 456 of 2019 arising out
of S.L.P (Crl.) No. 208 of 2019 passed on
March 14, 2019]

6. Sugreev Kumar vsThe State Of Punjab

7. Criminal Appeal No. 509 OF 2019
Arising Out of SLP (Crl.) No. 9687 of 2018)
decided on 15 March, 2019
(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Sri Daya Shankar Mishra,
learned counsel for the applicant assisted
by Sri Chandrakesh Mishra, Sri Raj
Kumar, learned counsel for the private
opposite party and learned AGA at length.

2. The order impugned dated
24.08.2013 passed by learned Additional
Session Judge, Court No. 2, Mau under
section 319 Cr.P.C. in Session Trial No.
196 of 2010 (State v. Sanny and others),
under sections 363, 366, 376, 373. 373 IPC
and 3, 4, 5, 6 and 7 ITP Act, P.S. Mau,
District Mau is the core issue of the instant
proceedings and it has been canvassed by
learned counsel for the applicants that the
same may be set aside.

3. On 09.04.2019 after hearing rival
submissions of learned counsel, this Court
was of the opinion that the instant
application filed under section 482
Cr.P.C., deserves to be allowed and
accordingly the application was allowed
with a direction that the detailed reasons
would follow shortly.
1 All. Om Prakash Vs. State of U.P.
69

4. After efficaciously perusing the
record, facts and circumstances of the
case, submissions of the rival learned
counsel for the contesting parties, the
detailed reasons are mentioned herein
below:

5. By means of the instant
application filed under section 482 Cr.P.C.,
the applicant is assailing the veracity and
validity of order dated 24.08.2013 passed
by Additional Session Judge, Court No. 2,
Mau passed in S.T. No. 196 of 2010 (State
v. Sanny and another), under sections 363,
366, 376, 373, 372 IPC and 3,4,5,6 and 7
of the ITP Act (herein referred to "ITP
Act"), P.S. Mau, District Mau whereby the
applicant- Om Prakash S/o Lalchandra
(non accused) and one Nisha D/o D/o
Pratap Dhobi has been summoned by the
trial court in exercise of power envisaged
under section 319 Cr.P.C. to face the trial.
Since the instant proceedings under section
482 Cr.P.C. is preferred by the applicant-
Om Prakash, thus, the judgement confines
to him only.

6. Before adjudicating the case it
would be imperative to spell out the
objectives and aims to understand section
319 Cr.P.C., which has also been vividly
elaborated in catena of judgements passed by
Hon'ble the Apex Court time and again. For
ready
reference,
this
Court
feels
it
appropriate
to
peruse
the
provisions
contained in section 319 Cr.P.C., for fair
adjudication of the case on merits. The
provisions of section 319 Cr.P.C., was
enacted and incorporated to achieve the
objective that, the real culprit should not get
away unpunished. By virtue of these
provisions, the Court is empowered to
proceed against any person not shown as an
accused, if it appears from evidence that a
non accused person was also an active
participant of that particular offence, then the
courts are not powerless to summon that
person and try together with other coaccused person. Courts are the sole
repository of doing justice so that the rule of
law should be upheld and, therefore, it will
be inappropriate to deny the existence of
such powers with the courts in our criminal
justice system, where it is not uncommon
that the real accused, at times, get away by
manipulating the investigating and/or the
prosecuting agency. The legislation has
empowered the courts by this additional
power through the provisions of the aforesaid
sections
to
fulfill
the
latin
doctrine
"litigantes ab cœtibus summa debet non
putat de manu mali legem" (unscrupulous
litigants should not get away from the
clutches of law).

7. Keeping in view the controversy
involved in the instant case in the light of
above
doctrine
behind
section
319
Cr.P.C., it would be pertinent to mention
that, responding to the application under
section 319 Cr.P.C. by the informant
Basanti Devi (opposite party no. 2) the
applicant Jani alias Om Prakash S/o
Lalchand R/o Mohall Shivdaspur (Red
Light are, P.S. Maduadeeh, District
Varanasi and Nisha D/o Pratap Dhobi R/o
Mohalla
Munshipura,
P.S.
Kotwali,
District Mau were summoned to face trial
along with other co-accused persons vide
order impugned dated 24.08.2013 under
the aforesaid sections of the ITP Act.

8. Before proceeding further it
would be pertinent to appreciate the
admissions made by contesting parties
which are as follows:

9. Opposite party no. 2 -Basanti
Devi w/o Achchey Lal is said to have
lodged the FIR through application under
70 INDIAN LAW REPORTS ALLAHABAD SERIES
section 156(3) Cr.P.C., mentioning that
for the incident of 03.09.2006 in the
evening hours i.e. around 18.00 hours and
the FIR of the same was got registered on
04.11.2006 at about 17.45 hours wherein
she disclosed the names of accused
persons (I) Prakash Rajbhar S/o Jawahir
Rajbhar (ii) Ajay S/o Ashok (iii) Nisha
D/o unknown with the allegation of
elopement of her daughter by the
aforesaid named accused persons in the
aforesaid offence. There is no reference of
the name of the applicant.

(a) By bare reading of the FIR it
is culled out that the entire thrust is made
therein that at the said date and time,
Lakshmi, 14 years minor daughter of the
informant, was enticed away by coaccused
Prakash
Rajbhar
to
some
unknown destination in front of the open
eyes of the informant, herself and her
elder daughter Baby and at that time.
Astonishingly, they did not raise any
resistance
or
objection.
Even
after
considerable lapse of time the alleged
victim girl could not be traced out,
thereafter a search for her recovery started
rolling and during this process they came
across the informaton that this act of
enticement was made by none other but
her close associate Nisha and to this effect
they filed an application of endorsement
to Superintendent of Police on 08.09.2006
which went in vain.

(b) The alleged victim was
eventually recovered on 29.04.2009 and
her statement under section 164 Cr.P.C.
was recorded. On 09.03.2010, thereafter,
her statement was recorded under section
161 Cr.P.C. In her statement recorded
under section 164 Cr.P.C. the alleged
victim girl claimed that she is aged about
28 years. In her statements recorded in
both the aforesaid sections, which are
annexed as annexures 3 and 3-A along
with the affidavit, she attributed the role
of enticement to accused persons Ajay
and Prakash and alleged that the aforesaid
two offenders had outraged her modesty
and have not only shown porn videos but
also shot her obscene videos and
thereafter she was taken to a distant
brother-in-law (Jeeja) of the aforesaid
Ajay, with whom she was not acquainted
to. She further submits therein that the
accused persons Ajay, Prakash, one
Sanny and alleged Jeeja of Ajay took her
in a Maruti Car to one Afzal Begum and
sold in her hands at Maduadeeh. She
stated that Sanny, Ajay and his aforesaid
jeeja also ravished her modesty time and
again and she was forced in human
trafficking market. In her statement
recorded under section 161 Cr.P.C., she
made a insignificant deviation viz-a-viz;
above statements recorded under section
164 Cr.P.C., wherein she added that in the
human trafficking market she gave birth
to a baby girl (who resembles with
accused Ajay). In her statement recorded
under section 164 Cr.P.C. She also added
that all the aforesaid persons manhandled
and sexually humiliated her besides
ravishing her modesty. The manhandling
and sexually humiliation suffered by all
the four hooligans were missing in the
statement recorded under section 161
Cr.P.C. It is an astonishing feature, after
perusing both the statements of the
alleged victim girl, that there is not even
whisper of the present applicant Om
Prakash nor he is named in the text of the
FIR anywhere, therefore, there is no
question of attributing any role to the
present applicant in the heinous offence.

(c) After collection the material
evidence on record and analyzing the
1 All. Om Prakash Vs. State of U.P.
71
same, the police on 06.06.2010 and
08.02.2012 submitted two charge sheets
i.e., one bearing number 120-A of 2007
and the other bearing no. 120-B of 2007
respectively. The earlier charge sheet was
submitted against Sanny @ Dinesh
Rajbhar, Rakesh Rajbhar, both sons of
Jawahar and Ajays/o Ashok Ram under
the aforesaid sections and in charge sheet
number 120-B, Afzal Begum w/o Late
Rehmat Ali was made accused but the
fact remains that in both the charge sheets
nowhere the present applicant has been
made an accused.

10. Learned counsel for the
applicant has drawn attention of the Court
towards annexure 5-A sworn by none
other but by the victim Laxmi Devi
herself dated 03.02.2012 wherein she has
taken "U" turn from her earlier stand by
candidly mentioning that under the
pressure exerted by the police she had
taken the names of Afzal Begum, Sanny
@ Dinesh Rajbhar, Rakesh Rajbhar Ajay
and aforesaid jeeja of Ajay etc., and she
completely denied that she was ever
subjected to any sexual assault upon her
by them. She also denied the factum of
shoot of any obscene video of her by any
of them. Relying upon the aforesaid
affidavit of the alleged victim herself, the
police on 13.03.2012 after recording her
"Majeed Bayan" dropped the names of
Ajay ka Jeeja and Janu alias Om Prakash
and submitted charge sheet mentioning
therein that since the victim herself does
not want to proceed against the applicant,
therefore, the Investigation Officer, after
dropping the names of the Ajay ka Jeeja
and Janu alias Om Prakash has closed the
chapter of investigation.

11. In the counter affidavit too,
though there was no denial to the
aforesaid fact but it has been emphatically
mentioned therein that the nick name of
the present applicant Om Prakash, who is
referred as Jani and not Janu. In
paragraphs 13 of the counter affidavit it
has been mentioned that annexure 5-A of
the alleged victim is forged as she was
compelled to sign over this affidavit.

12. Learned counsel for private
opposite party submitted that the alleged
victim had filed yet another affidavit on
03.02.2012 and denied the contents of her
earlier affidavit.

13. But the fact remains that there is
no charge sheet against the present
applicant-
Om
Prakash.
Since,
the
offences are exclusively triable by the
court of Sessions and after committal of
the case, charges were framed against the
named accused persons by the learned
Additional Session Judge and trial of the
case started rolling.

14. Learned counsel for the
applicant drew attention of the Court
towards the testimony of P.W.-1- Basanti
Devi as well as the alleged victim P.W.-2
Laxmi Devi (annexed as annexures 6 and
6 Ka) of the petition. In the testimony of
P.W.- 1 Basanti Devi disclosed that in
the year 2008 the victim came to her
house, carrying a baby girl aged about
half a month in her lap, who died
thereafter. On her query to the victim,
she disclosed that Ajay and Prakash after
making her unconscious took her away in
a car to some unknown destination and
further answered to her queries that Ajay,
Prakash, Sanny and Jani alias Om
Prakash raped upon her and shot "dirty"
pictures of her, thereafter she was sold to
Afzal Begum from where she was
thrown to the flesh peddler market.
72 INDIAN LAW REPORTS ALLAHABAD SERIES
However, The victim, P.W.-2 Laxmi
Devi
D/o
Achchey
Lal
in
her
examination-in-chief
recorded
on
15.01.2013 revealed as under:

Þfu'kk dks eSa igys ls tkurh gwaA esjs ?kj
vkrh&tkrh FkhA esjh lgsyh FkhA eq>s nqdku ij
ysdj tk jgh Fkh jkLrs esa vt;] izdk'k] luh vkSj
tkuh uke ds vkneh feysA eSa muesa ls vt;] izdk'k
vkSj luh dks tkurh FkhA os yksx esjs ?kj ds cxy esa
jgrs FksA mijksDr pkjks O;fDr eq>s nokbZ lqa?kkdj
xkM+h esa ysdj pys x;sA xkM+h esa fu'kk Hkh lkFk esa
FkhA mijksDr yksx eq>s eMqokMhg cukjl esa ,d
vkneh ftldk uke tkuh gS ds ?kj esa j[ksA bu
yksxksa us ogk ij esjs lkFk xUnk&xUnk dke fd;kA
xUnk&xUnk dke djus okyksa esa ls vt;] izdk'k]
luh vkSj tkuh FksA tkuh dk dksbZ vkSj uke ugha gSA
dsoy tkuh uke gSA tkuh dks eS igys ls ugh
tkurh FkhA tc ysdj x, rc tkukA cqjs dke ls
eryc xUnk&xUnk dke djuk gksrk gSA eq>ls jaMh
is'kk djokrs FksA vt;] izdk'k] luh vkSj tkuh us
esjh ohfM;ksa fQYe cuk;hA vt;] izdk'k] luh vkSj
tkuh us viuk diM+k fudky fn;k Fkk vkSj esjk
diMk Hkh QkM+ fn;k Fkk blds ckn esjs 'kjhj ij cqjk
dke fd;kA ml le; fu'kk esjs ikl FkhA tks Cyw
fQYe esjh cuh Fkh og eSus ns[kh FkhA Cyw fQYe
fn[kkdj vt;] izdk'k] luh vkSj tkuh us eq>s
/kedk;k Fkk fd vxj rqe Hkkxh rks ekj MkysxsAß

15. From a keen analysis of the
aforesaid statement of the victim, it is
borne out that the victim herself was
candidly stating that besides the named
persons in the FIR, there was an
additional person named as "Jani" and the
named persons have kept her at his
residence. She further submits therein that
there is no nick name or sir-name of Jani
and she was not acquainted with Jani. It is
strange that during the statement, the
parentage of Jani was clandestined to
ascertain the identity of this person.

16. Per contra, Sri Raj Kumar,
learned counsel for private opposite party,
while referring to his counter affidavit,
submitted that as per class VI of the
victim, the date of birth of the victim is
01.07.1991, therefore, on the date of
incident, she was a minor. Though in her
ossification test, age of the victim was
computed as around 18+. There is a
specific mention in the counter affidavit at
paragraph 9 that Jani is the sirname of Om
Prakash (applicant) and he is one and the
same person, to whom the victim has
referred in her testimony. Not only this,
paragraph 10 of the counter affidavit also,
while reiterating the same version of
paragraph 9, it has been mentioned that
there is no other name of Jani nor there is
any other material in support of this
proposition of Jani. This sirname of Om
Prakash has been assailed by opposite
party no. 2 from the examination-in-chief
of the victim wherein it has been made
crystal clear that the victim the soul, mind
and
body
were
immensely
tortured,harassed and crushed by various
persons but millions dollar question is yet
to be answered as to who this Jani was? In
her statement she candidly stated that
there is no other nick name of Jani. She
does not know the parentage of this Jani
nor she was acquainted with this person
during her life-time. Nor there was any
test identification parade so that she may
identify/ascertain the real culprit, who
ravished her.

17. In the light of the aforesaid
factual background the validity and
veracity of the order impugned is to be
adjudicated.

18. This Court has keenly gone
through the entire impugned order dated
24.08.2013 passed by the Additional
Session Judge verbatimly.

19. In paragraph 2 of the aforesaid
order seems to have misquoted the
1 All. Om Prakash Vs. State of U.P.
73
testimony of P.W.-2 by mentioning therein
that she had disclosed the name of Jani alias
Om Prakash s/o Om Prakash and Nisha d/o
Pratap Dhobi as co-accused persons, which
is an apparent case of misquoting the
testimony of P.W.-2. P.W. -1 in her
testimony narrated the sad saga of her
daughter, mouthed by the victim herself.
There is an apparent contrast between both
the testimonies with regard to the identity of
Jani and Om Prakash and whether they are
one and the same person or of two different
identities. Till the time this puzzle is
resolved satisfactorily it would at higher
risk to exercise power envisaged under the
jurisdiction of section 319 Cr.P.C. by the
court concerned. It is in the last but one
paragraphs of the impugned judgement that
without any material on record, the learned
Additional Session Judge had his own
wisdom mixed by interpreting as to this
person Jani alias Om Prakash is one and the
same person, which is factually incorrect
proposition and not permissible under law..
In the examination-in-chief the victim girl
has refuted that there is no other nick name
of Jani which can be interpreted thereafter
to be aliasing as Om Prakash but the learned
Additional Session Judge has tried to raise
castle over this defective premises.

20. Fact remains that the applicant is
neither named in the FIR nor has been
charge sheeted by the police and there is
not even iota of his name in the entire
case diary as to the fact that Jani and Om
Prakash are one and same person. There is
deep rooted identity crisis of this person
concerned and on the basis of flimsy and
blurred factual premises an innocent
person (till date) cannot be dragged to
face criminal prosecution for the aforesaid
offence, which would axe the very
objective of the provisions of Section 319
Cr.P.C.

21.
In
order
to
buttress
his
contention, learned counsel for the
applicant has drawn attention of this
Court towards paragraphs 95, 105 and
106 of the judgement of the Hon'ble Apex
Court wherein it has followed the
proposition annunciation in other cases
while adjudicating the case of Hardeep
Singh Vs. State of Punjab & Others,
[(2014) 3 SCC 92], which are extracted
herein below:

"....95. In Suresh v. State of
Maharashtra, AIR 2001 SC 1375, this
Court after taking note of the earlier
judgments in Niranjan Singh Karam
Singh
Punjabi
v.
Jitendra
Bhimraj
Bijjaya, AIR 1990 SC 1962 and State of
Maharashtra v. Priya Sharan Maharaj,
AIR 1997 SC 2041, held as under:

"9......at the stage of Sections
227 and 228 the Court is required to
evaluate the material and documents on
record with a view to finding out if the
facts emerging therefrom taken at their
face value disclose the existence of all the
ingredients
constituting
the
alleged
offence. The Court may, for this limited
purpose, sift the evidence as it cannot be
expected even at that initial stage to
accept all that the prosecution states as
gospel truth even if it is opposed to
common sense or the broad probabilities
of the case. Therefore, at the stage of
framing of the charge the Court has to
consider the material with a view to find
out if there is ground for presuming that
the accused has committed the offence or
that there is not sufficient ground for
proceeding against him and not for the
purpose of arriving at the conclusion that
it is not likely to lead to a conviction."

............
74 INDIAN LAW REPORTS ALLAHABAD SERIES

105. In Sohan Lal &Ors. v.
State of Rajasthan, (1990) 4 SCC 580, a
two-Judge Bench of this Court held that
once an accused has been discharged, the
procedure for enquiry envisaged under
Section
398
Cr.P.C.
cannot
be
circumvented by prescribing to procedure
under Section 319 Cr.P.C.

........

106. In Municipal Corporation
of Delhi v. Ram Kishan Rohtagi &Ors.,
AIR 1983 SC 67, this Court held that if
the prosecution can at any stage produce
evidence which satisfies the court that
those who have not been arraigned as
accused or against whom proceedings
have been quashed, have also committed
the
offence,
the
Court
can
take
cognizance against them under Section
319 Cr.P.C. and try them along with the
other accused."

22. The aforesaid paragraphs are
with regard to the degree of satisfaction at
the stage of framing of the charge the
Court has to consider the material with a
view to find out if there is ground for
presuming that the accused has committed
the offence or that there is not sufficient
ground for summoning him under section
319 Cr.P.C.

23. In another case of Sugreev
Kumar vs The State Of Punjab
[Criminal Appeal No. 509 OF 2019
Arising Out of SLP (Crl.) No. 9687 of
2018) decided on 15 March, 2019,
Hon'ble the Apex Court has casted
embargo that section 319 Cr.P.C. is an
extra-ordinary provision which would be
invoked only on the basis of available
material on record. It is being, a
discretionary and an extraordinary power,
which has to be exercised sparingly and
diligently and only in the circumstance
where strong and cogent evidence is on
record. The prima facie opinion, which is
to be found for exercise of power requires
much
stronger
evidence
than
mere
probability of complicity of a person. The
test to be applied is the one which more
prima facie case, as examined at the time
of framing of charge but not of
satisfaction
to
the
extent
that
the
evidence, if goes uncontroverted would
lead conviction of the accused.

24. By applying this yardstick in the
present case, where identity of a person is
doubtful and there is no confidence
generating material on record that Jani
and Om Prakash are one and the same
person or two different individuals and in
the opinion of this Court, it is highly risky
to ask a person, whose identity is at stake,
to face trial along with other co-accused
persons. During the entire investigation, a
person like Om Prakash s/o Lalchand,
nowhere came into the light frame and
thus cannot be said to be involved, by any
means, in the instant case. No identity
parade was conducted to ascertain the
identities of the accused persons and
identify the real culprit/s. The victim,
herself, has stated in her statement
recorded at the relevant stages of trial that
there is no other nick name of Jani, then
the blanks cannot be filled without any
confidence generating material.

25. T heir is yet another aspect of the
issue underlining the facts, that the victim
girl herself admits that she was thrown
into the flesh market for almost one and a
half year. She remained in a burrow of a
badger during those disgusting days,
where her body, mind and soul was
debilitated rather shattered into pieces,
emotions and feelings were crushed and
1 All. Om Prakash Vs. State of U.P.
75
the poor girl ought to have acted like a
chicken with its head cut-off, thus,
presumably it was her state of mind where
she could not utter a single word in
certainty that it was the applicant- Om
Prakash, who exploited her to the hilt by
committing the nasty act with her.
Therefore, under the aforesaid peculiar
circumstances of the case, it would not be
safe to use this extra-ordinary power for
summoning the applicant.

26. Recently, yet in another judgement
of Hon'ble the Apex Court delivered in the
case of Periyasami and Ors. Vs. S.
Nallasamy [Criminal Appeal No. 456 of
2019 arising out of S.L.P (Crl.) No. 208 of
2019 passed on March 14, 2019] wherein
relevant paragraph 15 of the aforesaid
judgement is extracted herein below:

"15. The High Court has set
aside the order passed by the learned
Magistrate only on the basis of the
statements of some of the witnesses
examined by the Complainant. Mere
disclosing the names of the appellants
cannot be said to be strong and cogent
evidence to make them to stand trial for
the offence under Section 319 of the Code,
especially when the Complainant is a
husband and has initiated criminal
proceedings against family of his in-laws
and when their names or other identity
were
not
disclosed
at
the
first
opportunity."

27. Perusal of the aforesaid
paragraph categorically clears the dust on
the mirror by mentioning that mere
disclosing name of any person cannot be
construed to be strong, cogent evidence to
make them to stand trial for the offence
under section 319 Cr.P.C., to summon any
non-accused person.

28. It is mind boggling that girl is
being enticed away right in front of her
mother and sister by some unknown
person and there was no resistance or
objection, what-so-ever by her sibling i.e.
mother or her own sister on the fateful
day and that too after considerable delay,
the mother of the victim moved an
application under section 156 (3) Cr.P.C.
for lodging an FIR against three persons
(wherein the present applicant was not
named/referred). In both the statements
recorded under sections 161 and 164
Cr.P.C., the victim girl has not even
whispered the name of the applicant-Om
Prakash whereas she referred the name of
one Jani categorically specifying that
there is no nick name of Jani, which
compelled the Investigating Agency to
drop the name of applicant-Om Prakash
and closing the entire investigation. In the
aforesaid circumstance, it was binding
duty of the learned trial Judge to establish
the identity of a person/accused as to
whether the present applicant Om Prakash
and Jani
areone and same before
exercising his extra-ordinary powers
under section 319 Cr.P.C. at least peruse
the case diary carefully while exercising
his extra-ordinary power under section
319 Cr.P.C., which falls within the
definition of evidence as in the case of
Brijendra Singh & Ors vs State Of
Rajasthan (2017) 7 SCC 706]. Relevant
portion of the aforesaid case is extracted
herein below:

".....Thus, the ''evidence' recorded
during trial was nothing more than the
statements which was already there under
Section 161 Cr.P.C. 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.
76 INDIAN LAW REPORTS ALLAHABAD SERIES
However, in a case like the present where
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...."

29. Thus the trial Judge was duty
bound to follow the aforesaid principles
of law enunciated in the case of Brijendra
Singh (Supra) and he ought to have taken
into account the evidence collected by the
Investigating Officer of the case during
investigation
while
exercising
and
deciding the application under section 319
Cr.P.C. in the instant case.

29. It appears that the learned
Additional Session Judge has solely and
blindly followed the testimonies of P.Ws.-
1 and 2 only over ruling all other
materials collected by the Investigating
Officer, which has lead him to a wrong
conclusion in passing the order impugned.

30. Besides this, the trial Judge
ought
to
have
recorded
his
only
satisfaction as to the sufficiency of
material on record while exercising his
extra-ordinary power in summoning a
non-accused person- Om Prakash (the
applicant) to face trial with other accused
persons. Thus, after carefully perusing the
impugned order dated 24.08.2013 and
comparing the same with the ratio laid
down in the cases of (i) Hardeep Singh
(Supra) (ii) Sugreev Kumar (Supra)
(iii) Periyasami and Ors. (Supra) (iv)
Brijendra
Singh
(Supra)
and
(v)
Labhuji Amratji Thakor &Ors. Vs.
State
of
Gujarat&ANR.
decided
13.11,2018 in Criminal Appeal No.1349
of 2018 arising out of SLP (CRL.)
No.6392 /2018, I have no hesitation to
hold that the order-in-question is well
short of the level of satisfaction required
for invoking the powers under section 319
Cr.P.C.

31.
Normally
under
such
circumstances, the matter may be remanded
for a fresh look into the matter in the light of
the aforesaid ration laid down by the Apex
Court but at this juncture when in his
rejoinder affidavit, learned counsel for the
applicant has annexed RA-1 to the petition,
which is copy of the judgement and order
dated 30.07.2016 passed in S.T. Nos. 196 of
2019 (State of U.P. v. Sanny alias Dinesh
Rajbhar) and 88 of 2012 (State of U.P. v.
Afzal Begum) passed by the Additional
Session
Judge/FTC
No.
1,
Mau
respectively, wherein the accused persons
Sanny alias Dinesh Rajbhar and Afzal
Begum were acquitted for the offence under
sections under sections 363, 366, 376, 373,
108/376, 372, 373 IPC and 3, 4, 5, 6 and 7
ITP Act on the basis of benefit of doubt
whereas the judgement with regard to rest
of the accused persons has already been
delivered, acquitting them from all the
charges in which they have been charged
for, thus, it would be an exercise in futility
or only for academic interest without any
tangible result.

32. In support of the aforesaid
annexure of the rejoinder affidavit,
1 All. Om Prakash Vs. State of U.P.
77
learned counsel for the applicant has
drawn attention of this Court towards the
issue of power to proceed against other
persons appearing to be guilty appearing
to be quilty of offence by quoting section
319 Cr.P.C. itself. For ready reference, it
would be beneficial to go through it once
again and the same runs as follows:

"
Section 319 in The Code Of
Criminal Procedure, 1973

319. Power to proceed against
other persons appearing to be guilty of
offence.

(1) Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any
person not being the accused has
committed any offence for which such
person could be tried together with the
accused, the Court may proceed against
such person for the offence which he
appears to have committed.

(2) Where such person is not
attending the Court, he may be arrested or
summoned, as the circumstances of the case
may require, for the purpose aforesaid.

(3) Any person attending the
Court, although not under arrest or upon a
summons, may be detained by such Court for
the purpose of the inquiry into, or trial of, the
offence
which
he
appears
to
have
committed.

(4) Where the Court proceeds
against any person under sub- section (1),
then-

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

33. Learned counsel for the
applicant laid his emphasis that since the
aforesaid Session Trials have ended in
acquittal of accused persons Sanny alias
Dinesh Rajbhar and Afzal Begum and the
present applicant applicant has been
summoned under section 319 Cr.P.C. and
the provision of this section can only be
exercised during pendency of the trial, as
the trial has already been concluded in the
matter, therefore, the order impugned
becomes functus officio. Thus the order
impugned itself does not sustain and is
liable to be rectified. To buttress his
submission, learned counsel for the
applicant has relied upon the judgement
and order dated 08.03.2011 passed in
Criminal Revision No. 1440 of 2011
(Ajay v. State of U.P.) by coordinate
Bench of this Court wherein aggrieved by
summoning
order
dated
11.02.2011
passed under section 319 Cr.P.C., by the
court below, the revisionist had knocked
door of this Court by submitting therein
that power under Section 319 Cr.P.C, as
the enacted statute ordains, can be
exercised only during pendency of the
trial. If the trial is concluded, no power
under the aforesaid section can be
wielded/utilized by the trial Judge. He
submits that after the date when judgment
was delivered, the court became functus
officio and, therefore, the court could not
have fixed a future date to exercise power
under Section 319 Cr.P.C. The conclusion
drawn by the aforesaid coordinate court is
as follows:

"I have perused the impugned
judgement and order. While judgmenting
S.S.T. No.374 of 2008 State Vs. Navneet
and
others
for
the
aforementioned
offences, the trial Judge convicted all the
78 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons for charges under
Sections 294, 147, 148, 452, 323/149,
324/149, 504 I.P.C. and 3 (1) (X) SC/ST
Act. While sentencing the aforesaid
accused persons for the aforesaid offences,
the trial Judge directed that record in respect
of the revisionist Ajay be separated and for
issuing process, 21.2.2011 was fixed. This
order was passed on 11.2.2011. As the record
reveals that on 11.2.2011, the trial Judge
judgmented the aforesaid Special Session
Trial, therefore, after judgmenting the case,
the trial Judge became functus officio. He
could not have taken any proceedings in
respect of other person wielding power under
section 319 Cr.P.C, which could have been
utilized only during commencement of the
trial. After conclusion of the case, no court
can utilize power under Section 319 Cr.P.C.
and start afresh trial in respect of separate
accused.

Phraseology
of
Section
319
Cr.P.C. further indicates that power under
Section 319 Cr.P.C. can be utilized to add any
person as an accused who is not already
facing trial, only during pendency of the
inquiry or trial. That section further ordains
that in the event the trial Judge harbingers
intention to add any accused, he should have
stayed the trial and take up trial in respect of
newly
added
accused
simultaneously
including examination of the witnesses
afresh."

34. Here it would be pertinent to
peruse the principles of law enunciated by
the Apex Court in the case of Ramdhan
Mali and another v. State of Rajasthan and
another
delivered
on
10.01.2014
in
Criminal Appeal No. 1750 OF 2008 along
with other petitions, which re-emphasises
the provisions of section 319 Cr.P.C.
Relevant portion of the aforesaid judgement
and order are extracted herein below:

"37. Even the word "course"
occurring in Section 319 Cr.P.C., 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 upto the stage of
the conclusion of the trial. The court does
not become functus officio even if
cognizance is taken so far as it is looking
into the material qua any other person
who is not an accused. The word "course"
ordinarily conveys a meaning of a
continuous progress from one point to the
next in time and conveys the idea of a
period of time; duration and not a fixed
point of time."

38.