# Ram Singh & Ors. Revisionists v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 1299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-27
- **Bench:** Alok Kumar Mukherjee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-singh-ors-revisionists-v-state-of-u-p-anr-43734
- **Pages:** 6

## Headnote

Criminal Procedure Code, 1973 - Sections 193 & 319 - Summoning of additional accused -
Stage of trial - Meaning of "evidence" - Power of Sessions Court - Premature exercise of
jurisdiction - Order set aside.

Section 193 Cr.P.C. Scope and Stage -
Power of the Court of Session to take cognizance as a Court of original jurisdiction under Section 193 Cr.P.C.
can be exercised only after committal of the case by the Magistrate and before commencement of trial, i.e.,
till the stage of framing of charge. Once trial has commenced, the said power cannot be invoked.

Commencement of Trial
Where charges have already been framed and the case is fixed for recording of prosecution evidence, trial is
deemed to have commenced and the Sessions Court ceases to have jurisdiction under Section 193 Cr.P.C. to
summon persons not committed for trial.

Section 319 Cr.P.C. - Mandatory Requirement of Evidence
Summoning of additional accused after commencement of trial can be done only under Section 319 Cr.P.C.
and solely on the basis of "evidence" recorded before the Court during trial, and not on the basis of material
collected during investigation such as FIR, Section 161 Cr.P.C. statements, injury reports or X-ray reports.

Meaning of "Evidence" - Section 319 Cr.P.C.
The word "evidence" occurring in Section 319 Cr.P.C. refers only to evidence recorded before the Court during
trial and does not include material collected by the Investigating Officer during investigation. Such material
can be used only for corroboration and not for invoking Section 319 Cr.P.C.

Premature Summoning - Illegality
Summoning of additional accused at a stage when no prosecution witness has been examined and no
evidence has been recorded amounts to gross illegality and erroneous exercise of jurisdiction.

Application under Section 319 Cr.P.C. - Proper Stage
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
Application seeking summoning of additional accused should be considered only after recording of prosecution
evidence, at least upon completion of examination-in-chief, in accordance with law laid down by the
Constitution Bench of the Hon'ble Supreme Court.

Reliance on Supreme Court Precedents
Principles laid down in Kishun Singh v. State of Bihar and Dharam Pal v. State of Haryana govern exercise of
power under Section 193 Cr.P.C., while the Constitution Bench decision in Hardeep Singh v. State of Punjab
governs exercise of power under Section 319 Cr.P.C.

Result
Order of summoning passed by the Sessions Court at a premature stage of trial, without recording any
evidence, is unsustainable in law and liable to be set aside.

Criminal Revision allowed - Impugned order dated 25.11.2005 set aside - Matter remanded to
trial court to decide application at appropriate stage after recording evidence, in accordance
with law.

Case listed

Hardeep Singh and others Vs. State of Punjab and others, 2014 (85) A.C.C. 313 (SC)
Kishun Singh Vs. State of Bihar, 1993(36) ACC 167 (SC)
Dharam Pal and others Vs. State of Haryana and another, 2013 (82) ACC 963 (SC).

## Text

5 All. Ram Singh & Ors. Vs State Of U.P. & Anr.

1299
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2016

BEFORE

THE HON'BLE ALOK KUMAR MUKHERJEE, J.

Criminal Revision No.- 5271 Of 2005

Ram Singh & Ors. ...Revisionists
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Shri Prakash Dwivedi

Counsel for Opposite Parties:
Govt. Advocate, A.K. Rai, R.N. Rai

Criminal Procedure Code, 1973 - Sections 193 & 319 - Summoning of additional accused -
Stage of trial - Meaning of "evidence" - Power of Sessions Court - Premature exercise of
jurisdiction - Order set aside.

Section 193 Cr.P.C. Scope and Stage -
Power of the Court of Session to take cognizance as a Court of original jurisdiction under Section 193 Cr.P.C.
can be exercised only after committal of the case by the Magistrate and before commencement of trial, i.e.,
till the stage of framing of charge. Once trial has commenced, the said power cannot be invoked.

Commencement of Trial
Where charges have already been framed and the case is fixed for recording of prosecution evidence, trial is
deemed to have commenced and the Sessions Court ceases to have jurisdiction under Section 193 Cr.P.C. to
summon persons not committed for trial.

Section 319 Cr.P.C. - Mandatory Requirement of Evidence
Summoning of additional accused after commencement of trial can be done only under Section 319 Cr.P.C.
and solely on the basis of "evidence" recorded before the Court during trial, and not on the basis of material
collected during investigation such as FIR, Section 161 Cr.P.C. statements, injury reports or X-ray reports.

Meaning of "Evidence" - Section 319 Cr.P.C.
The word "evidence" occurring in Section 319 Cr.P.C. refers only to evidence recorded before the Court during
trial and does not include material collected by the Investigating Officer during investigation. Such material
can be used only for corroboration and not for invoking Section 319 Cr.P.C.

Premature Summoning - Illegality
Summoning of additional accused at a stage when no prosecution witness has been examined and no
evidence has been recorded amounts to gross illegality and erroneous exercise of jurisdiction.

Application under Section 319 Cr.P.C. - Proper Stage
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
Application seeking summoning of additional accused should be considered only after recording of prosecution
evidence, at least upon completion of examination-in-chief, in accordance with law laid down by the
Constitution Bench of the Hon'ble Supreme Court.

Reliance on Supreme Court Precedents
Principles laid down in Kishun Singh v. State of Bihar and Dharam Pal v. State of Haryana govern exercise of
power under Section 193 Cr.P.C., while the Constitution Bench decision in Hardeep Singh v. State of Punjab
governs exercise of power under Section 319 Cr.P.C.

Result
Order of summoning passed by the Sessions Court at a premature stage of trial, without recording any
evidence, is unsustainable in law and liable to be set aside.

Criminal Revision allowed - Impugned order dated 25.11.2005 set aside - Matter remanded to
trial court to decide application at appropriate stage after recording evidence, in accordance
with law.

Case listed

Hardeep Singh and others Vs. State of Punjab and others, 2014 (85) A.C.C. 313 (SC)
Kishun Singh Vs. State of Bihar, 1993(36) ACC 167 (SC)
Dharam Pal and others Vs. State of Haryana and another, 2013 (82) ACC 963 (SC).

(Delivered by Hon'ble Alok Kumar Mukherjee, J.)

1. This Criminal Revision has been preferred against the order dated 25.11.2005 passed by the
Additional Session Judge/F.T.C., Court No.3, Mirzapur in S.T. No. 134 of 2005 (State Vs. Jai
Prakash and others) under Sections 307, 323, 325, 504 I.P.C., P.S. Adalhat, District Mirzapur,
whereby the learned trial court has allowed the application 9-Kha, moved by the informant Anand
Kumar Singh for summoning the revisionists-accused persons for trial along with the charge
sheeted accused persons.

2. Brief facts narrated in the application 9-Kha, is that there are two cross cases between the
parties bearing Crime Nos. 327 of 2004 and 327-A of 2004 out of which in the present case in
question, i.e., in Crime No. 327 of 2004, seven accused persons were named in the FIR by the
informant/applicant but after investigation the I.O. has filed chargesheet only against three accused
persons, despite there being ample evidence before the Investigating Officer. Hence, the opposite
party no.2/informant had moved this application in question before the trial court at the stage of
prosecution evidence. Thereafter, by the impugned order, the learned Additional Session Judge, on
the basis of the evidence collected during the investigation of the case, the FIR, X-ray report, injury
reports of the injured and after hearing the parties had allowed the application in question and
summoned the remaining accused persons/revisionists named in the FIR for trial along with the
charge sheeted accused persons.
5 All. Ram Singh & Ors. Vs State Of U.P. & Anr.

1301
3. Heard Shri Prakash Dwivedi, learned counsel for the revisionists and Sri R.N. Rai, learned
counsel for the opposite party no.2 as well as learned A.G.A. for the State.

4. Learned counsel for the revisionists contended that the impugned order of summoning is
erroneous and perverse because the trial had already commenced and not a single prosecution
witness had been examined, which could lead to inference of involvement of remaining accused
persons/revisionists in the incident in question. It is further submitted that the learned trial Judge,
only on the basis of the evidence, recorded under section 161 Cr.P.C., the FIR, X-ray report and
injury reports, i.e., the documents submitted by the I.O. along with the chargesheet, had illegally
summoned the revisionists, because such power cannot be exercised before collection of
"evidence" during trial. At this stage, power conferred under section 193 Cr.P.C. cannot be
exercised. Since the impugned order has been passed without considering the relevant law on the
point and "evidence" adduced before the trial court, such illegal, erroneous and perverse order
should be set aside. In support of his contention the learned counsel for the revisionists has relied
upon the principles laid down by the Constitution Bench of the Hon'ble Apex Court in Hardeep
Singh and others Vs. State of Punjab and others, 2014 (85) A.C.C. 313 (SC).

5. Refuting the arguments advanced by the learned counsel for the revisionists, learned
counsel for the opposite party no. 2 has submitted that the trial court had passed the impugned
order by invoking the power under section 193 Cr.P.C., i.e., acting as a court of original
jurisdiction, on the basis of the records transmitted to it, as a result of which committal order has
been passed by the learned Magistrate. Learned counsel for the opposite party no.2/informant has
relied upon the decisions of Hon'ble Supreme Court in the case of Kishun Singh Vs. State of
Bihar, 1993(36) ACC 167 (SC) as well as the principles laid down by the Constitution Bench of
the Hon'ble Apex Court in Dharam Pal and others Vs. State of Haryana and another, 2013 (82)
ACC 963 (SC).

6. I have considered the rival contentions of the learned counsels for the parties and gone
through the record as well as the principles laid down by the Hon'ble Apex Court on this point.

7. Perusal of the impugned order dated 25.11.2005 reveals that the said order is silent on the
point that under which section of the Criminal Procedure Code the learned Session Judge has
invoked the power of summoning the revisionists. Although the perusal of the order of the learned
Session Judge dated 16.11.2005 manifests that when the application 9-Kha was moved by the
opposite party no.2 informant Arun Kumar Singh and heard by the learned Session Judge, the trial
had already commenced after framing of charge against the chargesheeted accused persons and it
was fixed for recording of prosecution evidence.

8. Section 193 of the Criminal Procedure Code speaks of cognizance of offences by court of
session and provides as follows:-

"193. Cognizance of offences by Courts of Session.-- Except as otherwise expressly
provided by this Code or by any other law for the time being in force, no Court of Session shall
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
take cognizance of any offence as a Court of original jurisdiction unless the case has been
committed to it by a Magistrate under this Code."

9. A close reading of Section 193 Cr.P.C. categorically states that the power of the court of
Sessions to take cognizance in this section would commence only after committal of the case by a
Magistrate but the said provision opens with a non-obstante clause "except as otherwise expressly
provided by this code or by any other law for the time being in force". The section, therefore, is
clarified by the said opening words which clearly means that if there is any other provision under
Cr.P.C., expressly making a provision for exercise of powers by the court to take cognizance at that
very stage, then the same would apply and the provisions of Section 193 Cr.P.C. would not be
applicable. Therefore, in this section, the Session court can apply its mind after committal of the
case till the time of framing of charge only. Moreover, if the Court came to the conclusion from the
materials available on record transmitted to it that in fact an offence is made out even against those
persons who have not been committted for trial, then only it has power to proceed against the
persons who have not been committed for trial by the Magistrate because till then the trial has not
commenced. This principle has been laid down by the Hon'ble Apex Court in Kishun Singh's case
(supra) and affirmed by the Constitution Bench of the Hon'ble Apex Court in Dharam Pal's case
(supra).

10. But once the trial of the case has commenced, invoking power under section 193 Cr.P.C. is
not at all permissible. The non-obstante clause of Section 193 Cr.P.C. itself would prevent the court
to exercise the power enshrined under Section 193 Cr.P.C. at that stage. At the stage of trial, only
the provisions of Section 319 Cr.P.C. can come into play for taking cognizance against those
persons who have not been committed for trial but their complicity is established by the "evidence"
adduced during the trial.

11. Relevant portion of Section 319 Cr.P.C. reads as under:-

"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."

12. The latest Constitution Bench of the Hon'ble Supreme Court, while dealing with the
aforementioned Section 319 Cr.P.C., in Hardeep Singh's case (supra) held as follows:-

"53. 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.
5 All. Ram Singh & Ors. Vs State Of U.P. & Anr.

1303

71. It is, therefore, clear that the word "evidence" in Section 319 Cr.P.C. means only
such evidence as is made before the Court, in relation to statements, and as produced before the
Court, in relation to documents. It is only such evidence that can be taken into account by the
Magistrate or the Court to decide whether the power under Section 319 Cr.P.C. is to be exercised
and not on the basis of material collected during investigation.

80. 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.

85. 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 Courts 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."

13. In the instant case, admittedly, when the application in question was moved and heard by
the informant, the charge had already been framed by the learned Sessions Judge and the case was
fixed for recording of prosecution evidence. Therefore, by applying the principles laid down by the
Hon'ble Apex Court in the afore-mentioned cases, it is crystal clear that in this case the learned
Sessions Judge had wrongly exercised the power, either under Section 193 or under Section 319
Cr.P.C., while passing the impugned order. This is not the stage where power under Section 193
Cr.P.C. can be utilized because trial had already commenced. Similarly, learned Sessions Judge
was also not expected to take cognizance only on the basis of material collected during the
investigation at this premature stage of trial, where "evidence" could not be recorded. Hence, in this
case the only power which could be exercised by the Sessions Judge was under Section 319 Cr.P.C.
and in no other section, and that, too, at an appropriate stage of trial. It was expected from the
learned Sessions Judge that the said application be heard and decided after "evidence" recorded
during the trial, i.e., in the light of the principles laid down by the Hon'ble Supreme Court in
Hardeep Singh's case (supra), in which the word "evidence" used in Section 319 Cr.P.C. has been
defined extensively.

14. Accordingly, this Court is of the opinion that the impugned order appears to have been
passed after ignoring the statutory provisions and the principles laid down by the Hon'ble Apex
Court in this regard. Thus it is amply clear that the trial court had acted in gross illegality in passing
the impugned order at the premature stage of the trial, simply on the basis of the material collected
during the investigation and consequently committed serious error in deciding the application in
question and taking cognizance against the revisionists in haste, without recording and considering
the "evidence" adduced during the trial, i.e., by not applying the provisions under Section 319
Cr.P.C. at an appropriate stage of the trial. Therefore, this revision is allowed and the impugned
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 25.11.2005 is set aside. The matter is remanded to the trial court with a direction to
decide the application 9-Kha moved by the informant, at the appropriate stage of the trial, after
affording opportunity of hearing to the parties in accordance with law.

15. Let a copy of this order be sent to the trial court immediately for ensuring compliance.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2016

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

First Appeal From Order No.- 636 Of 2016

R.N. Gupta & Co. Ltd. Jasola New Delhi
 ...Appellant
Versus
M/S Action Construction Equipments Ltd. Dudhola & Ors. ...Respondents

Counsel for the Appellant:
Manu Kahre

Counsel for the Respondents:
Samit Gopal

Designs Act, 2000 - Sections 19 & 22(3), (4) - Interim injunction - Defence of cancellation of
design - Stage of raising defence - Transfer of suit to High Court - Jurisdiction of District
Judge - Mandatory transfer - Effect.

Section 22(4) of the Designs Act
Mandatory Transfer - Where, in a suit for infringement of a registered design under Section 22(2) of the
Designs Act, 2000, the defendant avails any ground for cancellation of design as enumerated under Section
19 of the Act as a ground of defence, the District Court ceases to have jurisdiction and the suit or proceeding
shall stand transferred to the High Court for decision.

Defence Raised in Reply to Interim Injunction - Sufficiency
A defence under Section 19 of the Act raised even in a reply to an application for interim injunction under
Order XXXIX Rules 1 and 2 CPC constitutes availing of a statutory defence under Section 22(3) of the Act and
attracts the mandatory consequence of transfer under Section 22(4).

No Prima Facie Enquiry by District Court Permissible
Once a statutory defence under Section 19 of the Act is taken, the District Court cannot examine the merits or
sufficiency of such defence nor record prima facie satisfaction; its only jurisdiction thereafter is to effect
transfer of the suit to the High Court.

District Court Becoming Functus Officio