# Raju @ Rajesh Kumar Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-25
- **Case number:** Criminal Revision No. 3037 of 2021
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-rajesh-kumar-revisionist-v-state-of-u-p-anr-46485
- **Pages:** 20

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 - Revision -
Indian Penal Code, 1860 - Section 354-A, 342,
323, 286 - doctrine judex damnatur cum
nocens absolvitur (Judge is condemned when
guilty is acquitted) - stage contemplated under
section 319 Cr.P.C. - stage before conclusion of
trial - Magistrate must be prima facie of the
opinion that there are sufficient material and
cause for summoning the culprit who is either
not named in the FIR or if named, he has not
been charge sheeted or discharged. (Para -20 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 319 - Power to
proceed against other persons appearing to be
guilty of offence - once the Magistrate finds
that there was sufficient material available on
record before it to summon a person in the trial
which is proposed to be undertaken then the
powers u/s 319 Cr.P.C. are to be invoked. (Para
- 18)

Aggrieved against non-submission of charge sheet
against the applicant - O.P. no.2 preferred an
application under Section 319 CrPC - court below
summoned revisionist.

HELD:- Court in exercise of the revisional
jurisdiction cannot embark upon the inquiry with
regard to facts of the case, particularly when the
courts below had applied its mind and taken a
view, which does not appear to be perverse or
palpable while issuing summons. There exist
sufficient material which itself shows that the
powers exercised by the court below while
summoning the applicants, does not suffer from
any illegality and infirmity. No good ground to
interfere into the order summoning the revisionist.
(Para - 28,29)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

## Text

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11 All. Raju @ Rajesh Kumar Vs. State of U.P. & Anr.
207
minor son of the revisionist. This Court finds
that there are sufficient material on record to
show that the determination so done by the court
below while awarding Rs.4000/-per month as
maintenance to the wife and Rs.3000/- towards
maintenance of the minor son per month is not
excessive. The court below has taken note of the
income of the revisionist as well as the financial
condition of the opposite party no.2 as well as
the prevailing circumstances including the
inflation. Hence the arguments so raised by the
learned counsel on that count deserves to be
rejected.

39. No other point has been raised by
learned counsel for the revisionist.

40. Resultantly, this Court does not find
any manifest illegality by the court below in the
order dated 12.8.2021 passed by the court of
learned Additional Family Judge/Family Court,
Court No.1, Kanpur Nagar in the proceedings
under Section 125 Cr.P.C. having Case
No.460/2019, (CNRI-UPKN) 0200164/2019,
Smt. Shalini and others Vs. Navin Agarwal.

41. Accordingly, the criminal revision is
dismissed.
----------
(2021)12ILR A207
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 3037 of 2021

Raju @ Rajesh Kumar ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Prem Prakash, Sri Abhay Raj

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 - Revision -
Indian Penal Code, 1860 - Section 354-A, 342,
323, 286 - doctrine judex damnatur cum
nocens absolvitur (Judge is condemned when
guilty is acquitted) - stage contemplated under
section 319 Cr.P.C. - stage before conclusion of
trial - Magistrate must be prima facie of the
opinion that there are sufficient material and
cause for summoning the culprit who is either
not named in the FIR or if named, he has not
been charge sheeted or discharged. (Para -20 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 319 - Power to
proceed against other persons appearing to be
guilty of offence - once the Magistrate finds
that there was sufficient material available on
record before it to summon a person in the trial
which is proposed to be undertaken then the
powers u/s 319 Cr.P.C. are to be invoked. (Para
- 18)

Aggrieved against non-submission of charge sheet
against the applicant - O.P. no.2 preferred an
application under Section 319 CrPC - court below
summoned revisionist.

HELD:- Court in exercise of the revisional
jurisdiction cannot embark upon the inquiry with
regard to facts of the case, particularly when the
courts below had applied its mind and taken a
view, which does not appear to be perverse or
palpable while issuing summons. There exist
sufficient material which itself shows that the
powers exercised by the court below while
summoning the applicants, does not suffer from
any illegality and infirmity. No good ground to
interfere into the order summoning the revisionist.
(Para - 28,29)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

1. Hardeep Singh Vs St. of Punj. , 2014 (3) SCC 92S

2. Mohammad Ispahani Vs Yogendra Chandak & ors. ,
(2017) 16 SCC 226
208 INDIAN LAW REPORTS ALLAHABAD SERIES
3. M/S. Mahalakshmi Oil Mills Vs St. of A.P. AIR 1989
SC 335

4.
Punjab
Land
Development
&
Reclamation
Corporation Ltd. Chandigarh Vs Presiding Officer,
Labour Court, Chandigarh & ors., (1990) 3 SCC 682

5. P. Kasilingam & ors. Vs P.S.G. collage of
Technology & ors, AIR 1995 SC 1395

6. Hamdard (Wakf) Laboratories Vs Dy. Labour
Commissioner & ors., AIR 2008 SC 968

7. Ponds India Ltd. (merged with H.L. Limited) Vs
Commissioner of Trade Tax, Luck., (2008) 8 SCC 369

8. Feroze N. Dotivala Vs P.M. Wadhwani & ors, (2003)
1 SCC 433

9. Ameer Trading Corporation Ltd. Vs Shapoorji Data
Processing Ltd., AIR 2004 SC 355

10. Omkar Namdeo Jadhao & ors. Vs Second
Additional Sessions Judge Buldana & anr., AIR 1997
SC 331;

11. Ram Swaroop & ors. Vs St. of Raj., AIR 2004 SC
2943

12. Lok Ram Vs Nihal Singh & anr., AIR 2006 SC 1892

13. Podda Narayana & ors. Vs St. of A.P., AIR 1975
SC 1252;

14. Sat Paul Vs Delhi Administration, AIR 1976 SC 294

15. St. (Delhi Administration) Vs Laxman Kumar &
ors., AIR 1986 SC 250

16. Ramnarayan Mor & anr. Vs The St. of Mah., AIR
1964 SC 949

17. Sunil Mehta & anr. Vs St. of Guj. & anr., JT 2013
(3) SC 328

18. Guriya @ Tabassum Tauquir & ors. Vs St. of Bihar
& anr., AIR 2008 SC 95

19. Rajendra Singh Vs St. of U.P. & anr., AIR 2007 SC
2786

20. Lal Suraj @ Suraj Singh & anr. Vs St. of
Jharkhand, (2009) 2 SCC 696
(Delivered by Hon'ble Vikas Budhwar, J.)

1. This is a revision purported to be under
Section 397/401 of CrPC challenging the order
dated 4.3.2021 passed by Addl. Sessions Judge/
Fast Track Court No.2, Etawah in Session Trial
No. 279 of 2017 (State Vs. Manoj Kumar @
Chhange) arising out of Case Crime no.520 of
2016, under Sections 342, 323, 308 IPC, P.S.-
Ekdil, District - Etawah.

2. Heard Sri Prem Prakash, learned counsel
for the revisionist, as well as Sri K.K. Rajbhar,
the learned A.G.A.

3. In view of the order so sought to be
passed, there is no need to issue notice to O.P.
no.2.

4. Brief facts of the case shorn off
unnecessary details are that an FIR was lodged
by O.P. no.2 on 24.11.2016 before the Police
Station- Ekdil, District Etawah being Case
Crime no.520 of 2016, purported to be under
Section 354-A, 342, 323, 286 IPC, 1860 against
the accused Rajeev son of Shiv Ram Singh,
Chhote son of Kayam Singh, Chhange Singh son
of Bhogi Ram and unknown persons with regard
to the allegations referable to the incident, which
occurred on 24.11.2016, whereby it was alleged
at about 7:00 in the morning, the O.P. no.2 along
with her husband being Kamlesh son of Giriwar
Singh, resident of Ramnagar, P.S. Ekdil, Etawah
was in their agricultural field with regard to
farming activity relating to sowing. At the
relevant point of time, Sri Rajeev son of Shiv
Raj Singh, R/o Nagla Barra, Chhote son of
Kayam Singh resident of Nagla Pancchi,
Chhange son of Bhogiram resident of Buapur,
P.S. Ekdil, District Etawah along with one
unknown person came on a motorcycle armed
with rifle and pistol and started manhandling the
O.P. no.2, who started screaming and the same
gathered attention of other persons, present in
the field and the husband of O.P. no.2 tried to
11 All. Raju @ Rajesh Kumar Vs. State of U.P. & Anr.
209
get her released from the clutches of the
aforesaid accused, then they took him away and
administered beating while taking him on their
motorcycle to an unknown place and when the
aforesaid accused were confronted with some
people, including one Santosh Chaudhary and
Shivam Chaudhary, who were standing nearby,
then on account of their resistance, then accused
left the husband of O.P. no.2 in deplorable
condition and they also fired in air.

5. Thereafter the Investigating Officer
submitted a charge sheet dated 14/15.8.2017
under Sections 342, 323, 308 IPC in Case Crime
no. 520 of 2016, P.S. Ekdil, District Etawah
before the court concerned against Manoj
Kumar only, and not against the applicant
herein.

6. It appears that PW-1 being the O.P. no.2
gave her statement on 8.3.2018, wherein she had
specifically taken the name of Rajeev son of
Shivraj Singh resident of Nagla Bari, Ekdil,
Etawah, Chhote son of Kayam Singh resident of
Nagla Panchhi, Ekdil, District Etawah and
Chhange son of Bhogiram, resident of Buapur,
Ekdil, District Etawah and an unknown person
supporting the same incident, which was
narrated in the FIR dated 24.11.2016.

7. Kamlesh, the husband of O.P. no.2 also
got his statement recorded under Section 161
CrPC on 17.8.2019, wherein he specifically took
the name of applicant herein with regard to
commission of the offences resulting to lodging
of the FIR dated 24.11.2016.

8. Being aggrieved against non-submission
of charge sheet against the applicant, the O.P. no.2,
thereafter preferred an application under Section
319 CrPC dated 30.9.2019 before the Court of
Addl. Sessions Judge, Court No.8, Etawah in S.T.
No. 279 of 2017. The aforesaid application so
submitted by O.P. No.2 under Section 319 CrPC
has been allowed by virtue of order dated 4.3.2021
passed by court below, while issuing summons to
the revisionist under Sections 342, 323, 308 IPC.

9. The order dated 4.3.2021 passed by the
Court of Addl. Sessions Judge/ Fast Track Court
No.2, Etawah in Session Trial No. 279 of 2017
(State Vs. Manoj Kumar @ Chhange) arising out
of Case Crime no.520 of 2016, under Sections 342,
323, 308 IPC, P.S.- Ekdil, District - Etawah.

10. The moot question, which falls for
consideration before this Court in the proceedings
u/s 397/401 of Cr.P.C. is as to whether the order
passed by the court below along with the
application under Section 319 CrPC is within the
parameters as set out in the said provisions.

11. For the ready reference section 319 of the
Cr.P.C. 1973 is quoted hereinunder.

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

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

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

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

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

(a) the proceedings in respect of such
person shall be commenced afresh, and the
witnesses re-heard;

(b) subject to the provisions of clause
(a), the case may proceed as if such person had
210 INDIAN LAW REPORTS ALLAHABAD SERIES
been an accused person when the Court took
cognizance of the offence upon which the inquiry
or trial was commenced."

12. The issue with respect to the scope and
ambit of the powers so conferred upon the
Magistrate u/s 319 Cr.P.C. 1973 is no more res
integra as the Constitutional Bench of the
Hon'ble Supreme Court in the case of Hardeep
Singh Vs. State of Punjab reported in 2014 (3)
SCC 92 has observed as under:-

"8. The Constitutional mandate under
Articles 20 and 21 of the Constitution of India,
1950
(hereinafter
referred
to
as
the
''Constitution') provides a protective umbrella
for the smooth administration of justice making
adequate provisions to ensure a fair and
efficacious trial so that the accused does not get
prejudiced after the law has been put into
motion to try him for the offence but at the same
time also gives equal protection to victims and
to the society at large to ensure that the guilty
does not get away from the clutches of law. For
the empowerment of the courts to ensure that the
criminal
administration
of
justice
works
properly, the law was appropriately codified
and modified by the legislature under the
Cr.P.C. indicating as to how the courts should
proceed in order to ultimately find out the truth
so that an innocent does not get punished but at
the same time, the guilty are brought to book
under the law. It is these ideals as enshrined
under the Constitution and our laws that have
led to several decisions, whereby innovating
methods and progressive tools have been forged
to find out the real truth and to ensure that the
guilty does not go unpunished.

9. The presumption of innocence is the
general law of the land as every man is
presumed to be innocent unless proven to be
guilty.
Alternatively,
certain
statutory
presumptions in relation to certain class of
offences have been raised against the accused
whereby the presumption of guilt prevails till the
accused discharges his burden upon an onus
being cast upon him under the law to prove
himself to be innocent. These competing theories
have been kept in mind by the legislature. The
entire effort, therefore, is not to allow the real
perpetrator of an offence to get away
unpunished. This is also a part of fair trial and
in our opinion, in order to achieve this very end
that the legislature thought of incorporating
provisions of Section 319 Cr.P.C. It is with the
said object in mind that a constructive and
purposive interpretation should be adopted that
advances the cause of justice and does not dilute
the intention of the statute conferring powers on
the court to carry out the above mentioned
avowed object and purpose to try the person to
the satisfaction of the court as an accomplice in
the commission of the offence that is subject
matter of trial.

10. In order to answer the aforesaid
questions posed, it will be appropriate to refer
to Section 351 of the Criminal Procedure Code,
1898 (hereinafter referred to as `Old Code'),
where
an
analogous
provision
existed,
empowering the court to summon any person
other than the accused if he is found to be
connected with the commission of the offence.
However, when the new Cr.P.C. was being
drafted, regard was had to 41st Report of the
Law Commission where in the paragraphs 24.80
and 24.81 recommendations were made to make
this provision more comprehensive. The said
recommendations read:

"24.80 It happens sometimes, though
not very often, that a Magistrate hearing a case
against certain accused finds from the evidence
that some person, other than the accused before
him, is also concerned in that very offence or in
a connected offence. It is proper that Magistrate
should have the power to call and join him in
proceedings. Section 351 provides for such a
situation, but only if that person happens to be
attending the Court. He can then be detained
and proceeded against. There is no express
provision in Section 351 for summoning such a
11 All. Raju @ Rajesh Kumar Vs. State of U.P. & Anr.
211
person if he is not present in court. Such a
provision would make Section 351 fairly
comprehensive, and we think it proper to
expressly provide for that situation.

24.81 Section 351 assumes that the
Magistrate proceeding under it has the power of
taking cognizance of the new case. It does not,
however, say in what manner cognizance is
taken by the Magistrate. The modes of taking
cognizance are mentioned in Section 190, and
are apparently exhaustive. The question is,
whether against the newly added accused,
cognizance will be supposed to have been taken
on the Magistrates own information under
Section 190(1), or only in the manner in which
cognizance was first taken of the offence against
the accused. The question is important, because
the methods of inquiry and trial in the two cases
differ. About the true position under the existing
law, there has been difference of opinion, and
we think it should be made clear. It seems to us
that the main purpose of this particular
provision is that the whole case against all
known suspects should be proceeded with
expeditiously and convenience requires that
cognizance against the newly added accused
should be taken in the same manner against the
other accused. We, therefore, propose to recast
Section 351 making it comprehensive and
providing that there will be no difference in the
mode of taking cognizance if a new person is
added as an accused during the proceedings. It
is, of course, necessary (as is already provided)
that in such a situation the evidence must he
reheard in the presence of the newly added
accused."

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-

(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."

12. Section 319 Cr.P.C. springs out of
the doctrine judex damnatur cum nocens
absolvitur (Judge is condemned when guilty is
acquitted) and this doctrine must be used as a
beacon light while explaining the ambit and the
spirit underlying the enactment of Section 319
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. The question remains
under what circumstances and at what stage
should the court exercise its power as
contemplated in Section 319 Cr.P.C.?

14. The submissions that were raised
before us covered a very wide canvas and the
learned counsel have taken us through various
provisions of Cr.P.C. and the judgments that
have been relied on for the said purpose. The
controversy centers around the stage at which
such powers can be invoked by the court and the
212 INDIAN LAW REPORTS ALLAHABAD SERIES
material on the basis whereof such powers can
be exercised.

15. It would be necessary to put on
record that the power conferred under Section
319 Cr.P.C. is only on the court. This has to be
understood in the context that Section 319
Cr.P.C. empowers only the court to proceed
against such person. The word "court" in our
hierarchy of criminal courts has been defined
under Section 6 Cr.P.C., which includes the
Courts
of
Sessions,
Judicial Magistrates,
Metropolitan Magistrates as well as Executive
Magistrates. The Court of Sessions is defined in
Section 9 Cr.P.C. and the Courts of Judicial
Magistrates has been defined under Section 11
thereof. The Courts of Metropolitan Magistrates
has been defined under Section 16 Cr.P.C. The
courts which can try offences committed under
the Indian Penal Code, 1860 or any offence
under any other law, have been specified under
Section 26 Cr.P.C. read with First Schedule.
The explanatory note (2) under the heading of
"Classification of Offences" under the First
Schedule specifies the expression ''magistrate of
first class' and ''any magistrate' to include
Metropolitan Magistrates who are empowered
to try the offences under the said Schedule but
excludes Executive Magistrates.

16. It is at this stage the comparison of
the words used under Section 319 Cr.P.C. has to
be understood distinctively from the word used
under Section 2(g) defining an inquiry other
than the trial by a magistrate or a court. Here
the legislature has used two words, namely the
magistrate or court, whereas under Section 319
Cr.P.C., as indicated above, only the word
"court" has been recited. This has been done by
the legislature to emphasise that the power
under Section 319 Cr.P.C. is exercisable only by
the court and not by any officer not acting as a
court. Thus, the magistrate not functioning or
exercising powers as a court can make an
inquiry in particular proceeding other than a
trial but the material so collected would not be
by a court during the course of an inquiry or a
trial. The conclusion therefore, in short, is that
in order to invoke the power under Section 319
Cr.P.C., it is only a Court of Sessions or a Court
of Magistrate performing the duties as a court
under the Cr.P.C. that can utilise the material
before it for the purpose of the said Section.

17. Section 319 Cr.P.C. allows the
court to proceed against any person who is not
an accused in a case before it. Thus, the person
against whom summons are issued in exercise of
such powers, has to necessarily not be an
accused already facing trial. He can either be a
person named in Column 2 of the chargesheet
filed under Section 173 Cr.P.C. or a person
whose name has been disclosed in any material
before the court that is to be considered for the
purpose
of
trying the
offence,
but
not
investigated. He has to be a person whose
complicity may be indicated and connected with
the commission of the offence.

18.
The
legislature
cannot
be
presumed
to
have
imagined
all
the
circumstances and, therefore, it is the duty of the
court to give full effect to the words used by the
legislature so as to encompass any situation
which the court may have to tackle while
proceeding to try an offence and not allow a
person who deserves to be tried to go scot free
by being not arraigned in the trial in spite of
possibility of his complicity which can be
gathered from the documents presented by the
prosecution."

13. The judgment in the case of Hardeep
Singh (Supra) has also been considered and
taken note in the judgment in the case of S.
Mohammad Ispahani Vs. Yogendra Chandak
and Others reported in (2017) 16 SCC 226,
wherein paragraph nos. 28 and 29 the Hon'ble
Apex Court has observed as under:

"28) Insofar as power of the Court
under Section 319 of the Cr.P.C. to summon
even those persons who are not named in the
charge sheet to appear and face trial is
11 All. Raju @ Rajesh Kumar Vs. State of U.P. & Anr.
213
concerned, the same is unquestionable. Section
319 of the Cr.P.C. is meant to rope in even those
persons who were not implicated when the
charge sheet was filed but during the trial the
Court finds that sufficient evidence has come on
record to summon them and face the trial. In
Hardeep Singh's case, the Constitution Bench of
this Court has settled the law in this behalf with
authoritative pronouncement, thereby removing
the cobweb which had been created while
interpreting this provision earlier. As far as
object behind Section 319 of the Cr.P.C. is
concerned, the Court had highlighted the same
as under:

"The court is sole repository of justice
and a duty is cast upon it to uphold the rule of
law 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 desire to
avoid trial is so strong that an accused makes
efforts at times to get himself absolved even at
the stage of investigation or inquiry even though
he may be connected with the commission of the
offence."

29) At the same time, the Constitution
Bench has clarified that the power under Section
319 of the Cr.P.C. can only be exercised on
''evidence' recorded in the Court and not
material gathered at the investigation stage,
which has already been tested at the stage under
Section 190 of the Cr.P.C. and issue of process
under Section 204 of the Cr.P.C. This principle
laid down in Hardeep Singh's case has been
explained in Brjendra Singh and Others v. State
of Rajasthan in the following manner:

"10. It also goes without saying that
Section 319 CrPC, which is an enabling
provision empowering the Court to 6 (2017) 7
SCC 706 Criminal Appeal No. 1720 of 2017 &
Ors. appropriate steps for proceeding against
any person, not being an accused, can be
exercised at any time after the charge-sheet is
filed and before the pronouncement of the
judgment, except during the stage of Sections
207/208 CrPC, the committal, etc. which is only
a pre-trial stage intended to put the process into
motion.

11. In Hardeep Singh case , the
Constitution
Bench
has
also
settled the
controversy on the issue as to whether the word
"evidence" used in Section 319(1) CrPC has
been used in a comprehensive sense and
indicates
the
evidence
collected
during
investigation or the word "evidence" is limited
to the evidence recorded during trial. It is held
that it is that material, after cognizance is taken
by the court, that is available to it while making
an inquiry into or trying an offence, which the
court can utilise or take into consideration for
supporting reasons to summon any person on
the basis of evidence adduced before the court.
The word "evidence" has to be understood in its
wider sense, both at the stage of trial and even
at the stage of inquiry. It means that the power
to proceed against any person after summoning
him can be exercised on the basis of any such
material as brought forth before it. At the same
time, this Court cautioned that the duty and
obligation of the court becomes more onerous to
invoke such powers consciously on such
material after evidence has been led during
trial. The Court also clarified that " evidence"
under Section 319 CrPC could even be
examination-in-chief and the Court is not
required to wait till such evidence is tested on
cross-examination, as 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 trial in the
offence.

12. The moot question, however, is the
degree of satisfaction that is required for
invoking the powers under Section 319 CrPC
and the related question is as to in what
situations this power should be exercised in
respect of a person named in the FIR but not
charge-sheeted. These two aspects were also
214 INDIAN LAW REPORTS ALLAHABAD SERIES
specifically dealt with by the Constitution Bench
in Hardeep Singh case and answered in the
following manner: (SCC pp. 135 & 138, paras
95 & 105-106)

"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 that is required is much stricter. A
two-Judge Bench Criminal Appeal No. 1720 of
2017 & Ors. this Court in Vikas v. State of
Rajasthan [Vikas v. State of Rajasthan, (2014) 3
SCC 321 : (2014) 2 SCC (Cri) 172] , held that
on the [Ed.: The words between two asterisks
have been emphasised in original.] objective
satisfaction [Ed.: The words between two
asterisks have been emphasised in original.] 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.

***

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 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 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" is
clear from the words " [Ed.: The words between
two asterisks have been emphasised in original.]
for which such person could be tried together
with the accused [Ed.: The words between two
asterisks have been emphasised in original.] ".
The words used are not "for which such person
could be Criminal Appeal No. 1720 of 2017 &
Ors. ". There is, therefore, no scope for the court
acting under Section 319 CrPC to form any
opinion as to the guilt of the accused."

13. In order to answer the question,
some of the principles enunciated in Hardeep
Singh case may be recapitulated: power under
Section 319 CrPC can be exercised by the trial
court at any stage during the trial i.e. before the
conclusion of trial, to summon any person as an
accused and face the trial in the ongoing case,
once the trial court finds that there is some
"evidence" against such a person on the basis of
which evidence it can be gathered that he
appears to be guilty of the offence. The
"evidence" herein means the material that is
brought before the court during trial. Insofar as
the material/evidence collected by the IO at the
stage of inquiry is concerned, it can be utilised
for corroboration and to support the evidence
recorded by the court to invoke the power under
Section 319 CrPC. No doubt, such evidence that
has surfaced in examination-in-chief, without
cross-examination of witnesses, can also be
taken into consideration. However, since it is a
discretionary power given to the court under
Section 319 CrPC and is also an extraordinary
one, same has to be exercised sparingly and only
in those cases where the circumstances of the
case so warrant. The degree of satisfaction is
11 All. Raju @ Rajesh Kumar Vs. State of U.P. & Anr.
215
more than the degree which is warranted at the
time of framing of the charges against others in
respect of whom charge-sheet was filed. Only
where strong and cogent evidence occurs against
a person from the evidence led before the court
that such power should be exercised. It is not to
be exercised in a casual or a cavalier manner.
The prima facie opinion which is to be formed
requires stronger evidence than mere probability
of his complicity." (emphasis supplied)

14. The legislature was quite conscious
while engrafting section 319 Cr.P.C. while
employing the words "in the course of any
inquiry into, or trial of, an offence, it appears
from the evidence". The aforesaid words so
employed under section 319 Cr.P.C. itself shows
that degree of satisfaction has to be accorded by
the Magistrate while exercising powers u/s 319
Cr.P.C.

15. Obviously, degree of satisfaction defers
from case to case and according to the degree of
satisfaction the test to be applied as one should
be more than prima facie case at the stage of
framing of charges. The Hon'ble Supreme Court
in the case of Hardeep Singh (Supra) has
observed as under:-

"93.
Section
319(1)
Cr.P.C.
empowers the court to proceed against other
persons who appear to be guilty of offence,
though not an accused before the court. The
word
"appear"
means
"clear
to
the
comprehension", or a phrase near to, if not
synonymous with "proved". It imparts a lesser
degree of probability than proof.

94. In Pyare Lal Bhargava v. The
State of Rajasthan, AIR 1963 SC 1094, a fourJudge Bench of this Court was concerned with
the meaning of the word ''appear'. The court
held that the appropriate meaning of the word
''appears' is ''seems'. It imports a lesser degree
of probability than proof. In Ram Singh &
Ors. v. Ram Niwas & Anr., (2009) 14 SCC 25,
a two-Judge Bench of this Court was again
required to examine the importance of the
word ''appear' as appearing in the Section. The
Court held that for the fulfillment of the
condition that it appears to the court that a
person had committed an offence, the court
must satisfy itself about the existence of an
exceptional
circumstance
enabling
it
to
exercise an extraordinary jurisdiction. What is,
therefore, necessary for the court is to arrive at
a satisfaction that the evidence adduced on
behalf of the prosecution, if unrebutted, may
lead to conviction of the persons sought to be
added as an accused in the case.

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 Cr.P.C., though the test of
prima facie case is the same, the degree of
satisfaction that is required is much stricter. A
two- Judge Bench of this Court in Vikas v.
State of Rajasthan, 2013 (11) SCALE 23, 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.

96. In Rajendra Singh (Supra), the
Court observed:

"Be it noted, the court need not be
satisfied that he has committed an offence. It
need only appear to it that he has committed an
offence. In other words, from the evidence it
need only appear to it that someone else has
committed an offence, to exercise jurisdiction
under Section 319 of the Code. Even then, it has
a discretion not to proceed, since the expression
used is "may" and not "shall". The legislature
apparently wanted to leave that discretion to the
trial court so as to enable it to exercise its
jurisdiction under this section. The expression
"appears" indicates an application of mind by
216 INDIAN LAW REPORTS ALLAHABAD SERIES
the court to the evidence that has come before it
and then taking a decision to proceed under
Section 319 of the Code or not."

97. In Mohd. Shafi (Supra), this Court
held that it is evident that before a court
exercises its discretionary jurisdiction in terms
of Section 319 Cr.P.C., it must arrive at a
satisfaction that there exists a possibility that the
accused so summoned in all likelihood would be
convicted.

98. In Sarabjit Singh & Anr. v. State of
Punjab & Anr., AIR 2009 SC 2792, while
explaining the scope of Section 319 Cr.P.C., a
two-Judge Bench of this Court observed:

"....For the aforementioned purpose,
the courts are required to apply stringent tests;
one of the tests being whether evidence on
record is such which would reasonably lead to
conviction of the person sought to be
summoned......

Whereas the test of prima facie case
may be sufficient for taking cognizance of an
offence at the stage of framing of charge, the
court must be satisfied that there exists a strong
suspicion. While framing charge in terms of
Section 227 of the Code, the court must consider
the entire materials on record to form an opinion
that the evidence if unrebutted would lead to a
judgment of conviction.

Whether a higher standard be set up
for the purpose of invoking the jurisdiction
under Section 319 of the Code is the question.
The answer to these questions should be
rendered in the affirmative. Unless a higher
standard for the purpose of forming an opinion
to summon a person as an additional accused is
laid down, the ingredients thereof viz. (i) an
extraordinary case, and (ii) a case for sparingly
(sic sparing) exercise of jurisdiction, would not
be satisfied." (Emphasis added)

99. In Brindaban Das & Ors. v. State
of West Bengal, AIR 2009 SC 1248, a twoJudge Bench of this Court took a similar view
observing that the court is required to consider
whether such evidence would be sufficient to
convict the person being summoned. Since
issuance of summons under Section 319 Cr.P.C.
entails a de novo trial and a large number of
witnesses may have been examined and their reexamination could prejudice the prosecution and
delay the trial, the trial court has to exercise such
discretion with great care and perspicacity.

A similar view has been re-iterated by
this Court in Michael Machado & Anr. v.
Central Bureau of Investigation & Ors., AIR
2000 SC 1127.

100. However, there is a series of
cases wherein this Court while dealing with the
provisions of Section 227, 228, 239, 240, 241,
242 and 245 Cr.P.C., has consistently held that
the court at the stage of framing of the charge
has to apply its mind to the question whether or
not there is any ground for presuming the
commission of an offence by the accused. The
court has to see as to whether the material
brought on record reasonably connect the
accused with the offence. Nothing more is
required to be enquired into. While dealing with
the aforesaid provisions, the test of prima facie
case is to be applied. The Court has to find out
whether the materials offered by the prosecution
to be adduced as evidence are sufficient for the
court to proceed against the accused further.
(Vide: State of Karnataka v. L. Munishwamy &
Ors., AIR 1977 SC 1489; All India Bank
Officers' Confederation etc. v. Union of India &
Ors., AIR 1989 SC 2045; Stree Atyachar
Virodhi Parishad v. Dilip Nathumal Chordia,
(1989) 1 SCC 715; State of M.P. v. Dr. Krishna
Chandra Saksena, (1996) 11 SCC 439; and State
of M.P. v. Mohan Lal Soni.

101.In Dilawar Babu Kurane v. State
of Maharashtra AIR 2002 SC 564, this Court
while dealing with the provisions of Section 227
and 228 Cr.P.C., placed a very heavy reliance on
the earlier judgment of this Court in Union of
India v. Prafulla Kumar Samal & Anr., AIR
1979 SC 366 and held that while considering the
question of framing the charges, the court may
weigh the evidence for the limited purpose of
11 All. Raju @ Rajesh Kumar Vs. State of U.P. & Anr.
217
finding out whether or not a prima facie case
against the accused has been made out and
whether the materials placed before this Court
disclose grave suspicion against the accused
which has not been properly explained. In such
an eventuality, the court is justified in framing
the charges and proceeding with the trial. The
court has to consider the broad probabilities of
the case, the total effect of the evidence and the
documents produced before the court but court
should not make a roving enquiry into the pros
and cons of the matter and weigh evidence as if
it is conducting a trial.

102 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." (Emphasis supplied)

103.