# Ramesh Tiwari Revisionist v. State of U.P. & Anr

- **Citation:** (2025) 2 ILRA 405
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-19
- **Case number:** Criminal Revision No. 2019 of 2024
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-tiwari-revisionist-v-state-of-u-p-anr-52993
- **Pages:** 11

## Headnote

Criminal Law -Indian Penal Code, 1860 -
Sections 323, 325, 452, 504, 506 & 308 -
Criminal Procedure Code, 1973 - Sections
319, 397 & 401-Summoning under Section
319 Cr.P.C. - Sustainability of summoning
order passed after conclusion of trial of
chargesheeted accused - Applicant not
charge-sheeted
-
Summoned
as
additional
accused
after
co-accused
already convicted and sentenced - Held,
in view of law laid down in Sukhpal Singh
Khaira v. St. of Punjab, (2022) 17 SCC
246,
summoning
under
Section
319
Cr.P.C. must precede conclusion of trial -
Summoning
order
passed
after
trial
concluded and sentence pronounced is not
sustainable - Impugned order set aside.
(Paras 15 to 19)

HELD:
The Hon'ble Court answered question No.1,
which is pertinent for the purposes of present
Criminal Revision in affirmative and observed as
under:- "The power under Section 319 of CrPC
is to be invoked and exercised before the
pronouncement of the order of sentence where
there is a judgment of conviction of the
accused. In the case of acquittal, the power
should be exercised before the order of acquittal
is pronounced. Hence, the summoning order
has to precede the conclusion of trial by
imposition of sentence in the case of conviction.
If the order is passed on the same day, it will
have to be examined on the facts and
circumstances of each case and if such
summoning order is passed either after the
order of acquittal or imposing sentence in the
case of conviction, the same will not be
sustainable." (Para 16)

In the light of above observation it can be
concluded that where the trial of co-accused
where at the time of passing of summoning
order under Section 319 Cr.P.C. in respect of a
person who was not earlier facing trial as
accused in the case after conclusion of trial of
the persons who were already facing as accused
in the case resulting in their conviction and
imposition of sentence, summoning order of the
persons concerned as additional accused in
exercise of powers under Section 319 Cr.P.C. will
not be sustainable. (Para 17)

The facts of present case are squarely covered
with the land mark judgment of the Hon'ble
Supreme Court in Sukhpal Singh Khaira (supra)
and in view of foregoing discussion, the
summoning order passed by learned court
below against the revisionist in exercise of
powers
under
Section
319
Cr.P.C.
after
conclusion of trial, resulting in conviction and
sentencing of accused persons who had already
faced trial in main S.T. No. 84 of 2006, is not
sustainable and thus cannot affirmed, the
impugned summoning order is in conflict with
law laid down by Hon'ble Supreme Court in
406 INDIAN LAW REPORTS ALLAHABAD SERIES
Sukhpal Singh Khaira (supra) as discussed
above and thus vitiated by law, consequently
the impugned order deserves to be set-aside.
(Para 19)

Revision application allowed. (E-14)

List of Cases cited:

## Text

2 All. Ramesh Tiwari Vs. State of U.P. & Anr.
405

52. In the entirety of facts and
circumstances and for the reasons noted
above, present appeal succeeds and is
allowed on the benefit of doubt that has
arisen in favour of accused appellant. The
appellant is on bail. His sureties and bail
bonds
are
discharged,
subject
to
compliance of Section 437-A Cr.P.C..

53. Let the trial court record be
returned to the concerned court forthwith
alongwith a copy of this order.
----------
(2025) 2 ILRA 405
REVISIONALJURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2025

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 2019 of 2024

Ramesh Tiwari ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Narendra Deo Shukla, Vivek Shukla

Counsel for the Opposite Parties:
G.A., Lokesh Kumar Dwivedi, Ratnesh
Kumar Pathak

Criminal Law -Indian Penal Code, 1860 -
Sections 323, 325, 452, 504, 506 & 308 -
Criminal Procedure Code, 1973 - Sections
319, 397 & 401-Summoning under Section
319 Cr.P.C. - Sustainability of summoning
order passed after conclusion of trial of
chargesheeted accused - Applicant not
charge-sheeted
-
Summoned
as
additional
accused
after
co-accused
already convicted and sentenced - Held,
in view of law laid down in Sukhpal Singh
Khaira v. St. of Punjab, (2022) 17 SCC
246,
summoning
under
Section
319
Cr.P.C. must precede conclusion of trial -
Summoning
order
passed
after
trial
concluded and sentence pronounced is not
sustainable - Impugned order set aside.
(Paras 15 to 19)

HELD:
The Hon'ble Court answered question No.1,
which is pertinent for the purposes of present
Criminal Revision in affirmative and observed as
under:- "The power under Section 319 of CrPC
is to be invoked and exercised before the
pronouncement of the order of sentence where
there is a judgment of conviction of the
accused. In the case of acquittal, the power
should be exercised before the order of acquittal
is pronounced. Hence, the summoning order
has to precede the conclusion of trial by
imposition of sentence in the case of conviction.
If the order is passed on the same day, it will
have to be examined on the facts and
circumstances of each case and if such
summoning order is passed either after the
order of acquittal or imposing sentence in the
case of conviction, the same will not be
sustainable." (Para 16)

In the light of above observation it can be
concluded that where the trial of co-accused
where at the time of passing of summoning
order under Section 319 Cr.P.C. in respect of a
person who was not earlier facing trial as
accused in the case after conclusion of trial of
the persons who were already facing as accused
in the case resulting in their conviction and
imposition of sentence, summoning order of the
persons concerned as additional accused in
exercise of powers under Section 319 Cr.P.C. will
not be sustainable. (Para 17)

The facts of present case are squarely covered
with the land mark judgment of the Hon'ble
Supreme Court in Sukhpal Singh Khaira (supra)
and in view of foregoing discussion, the
summoning order passed by learned court
below against the revisionist in exercise of
powers
under
Section
319
Cr.P.C.
after
conclusion of trial, resulting in conviction and
sentencing of accused persons who had already
faced trial in main S.T. No. 84 of 2006, is not
sustainable and thus cannot affirmed, the
impugned summoning order is in conflict with
law laid down by Hon'ble Supreme Court in
406 INDIAN LAW REPORTS ALLAHABAD SERIES
Sukhpal Singh Khaira (supra) as discussed
above and thus vitiated by law, consequently
the impugned order deserves to be set-aside.
(Para 19)

Revision application allowed. (E-14)

List of Cases cited:

1. Sukhpal Singh Khaira Vs St. of Pun., (2022)
17 SCC 246

2. Hardeep Singh Vs St. of Pun., AIR 2014 SC
1400

3. Brijendra Singh Vs St. of Raj., (2017) 7 SCC
706

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant Criminal Revision has been
preferred under Section 397/401 Cr.P.C.
against order dated 26.02.2024 passed by
Learned Session Judge, Bhadohi in Misc.
Criminal Case No. 155 of 2018 Ramesh
Tiwari Vs. State, whereby the revisionist has
been summoned to face trial in exercise of
powers under Sections 319 Cr.P.C. for charge
under Sections 323, 325, 452, 504, 506, 308
IPC in a case arising out of Case Crime
No.186 of 2006, P.S. Suriyawa, District
Bhadohi. Revisionist has been summoned on
application filed by respondent No.2, the
informant in the case.

2. Heard learned counsel for the
revisionist,
learned
counsel
for
the
respondent No.2 and learned A.G.A. for the
State-respondent and perused the material
available on record.

3. Learned counsel for the revisionist
has contended that the learned court below
has not recorded its finding with regard to
its satisfaction while passing the impugned
order dated 26.02.2024 in exercise of
powers
under
Section
319
Cr.P.C..
Whereby
the
revisionist
has
been
summoned to face trial for charge under
Sections 323, 325, 452, 504, 506, 308 IPC.

4. Learned counsel for the revisionist
further contended that it is settled law that a
person should not be summoned by trial
court in exercise of power under Section
319 Cr.P.C. as a matter of routine and the
power should be exercise on the basis of
cogent and plausible evidence. This power
should not be exercised mechanically on
the ground that some evidence has come on
record implicating the person sought to be
made an accused. Thus the impugned order
is not sustainable in the eye of law. The
power under Section 319 Cr.P.C. is
discretionary and it should not be exercised
only due to fact that some evidence has
been adduced during trial connecting him with
the offence alleged. The court should exercise
its judicial discretion, after considering all the
relevant facts and circumstances, it is an
extraordinary power conferred on the court
and it should be used sparingly only if the
compelling
reasons
exists
for
taking
cognizance against the persons who has not
been arrayed as an accused in chargesheet. It is
bounden duty of the trial court to record its
satisfaction as laid down in the judgment of
the Hon'ble Supreme Court in Brijendra
Singh & Ors vs State Of Rajasthan and
others, 2017 (7) SCC 706. The moot question
is
degree
of
satisfaction
i.e.
required
satisfaction it must be 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.

5. He lastly submitted that the
Investigating
Officer
had
not
found
2 All. Ramesh Tiwari Vs. State of U.P. & Anr.
407
complicity of the accused revisionist, in the
offence and his presence was not found on
the spot. The revisionist is named in the
FIR, but his naming in the FIR was found
false during investigation and his name was
dropped by the Investigating Officer in the
chargesheet. The Investigating Officer
submitted chargesheet against three named
accused persons Dinesh alias Kaptan,
Suresh
Vishwakarma
and
Ramesh
Vishwakarma to face trial in S.T. No. 84 of
2006 State Vs. Dinesh alias Kaptan and
others in the court of Session Judge,
Bhadohi and were convicted and sentenced
for said charges vide judgment and order
dated 28.09.2017. The Investigation Officer
had found presence of the revisionist some
where else during investigation and not on
the spot of occurrence. The respondent
No.2, informant Rajeev Vishwakarma had
filed an application under Section 319
Cr.P.C. after recording of evidence of PW1 Rajeev Vishwakarma and PW2-Sanjay
Vishwakarma during the course of trial of
chargesheeted accused persons which was
allowed by trial court vide order dated
10.08.2007 and revisionist was summoned
as accused to face trial for charge under
Sections 323, 325, 452, 504, 506, 308 IPC.
The revisionist assailed said summoning
order in Criminal Revision No.2486 of
2007 (Ramesh Tiwari Vs. State of U.P. and
another) which was allowed by the Hon'ble
Court with following observations:-

"After
hearing
the
rival
submissions it appears that from the law
settled by this Court and the Apex Court,
discussed above, a very strong satisfaction
is required to be recorded by the trial court
before summoning the accused under
Section 319 Cr.P.C. In the present case
only reference to the statement of P.W.-1
and P.W.- 2 has been made by the trial
court without discussing what has come in
the statement of P.W.-1 and P.W-2, against
the applicant which has led the trial court
to exercise its powers under Section 319
Cr.P.C. and summon the applicant for trial.

In view of the above, the
impugned order dated 10.08.2007 passed
by the trial court is set aside. Trial court is
directed to pass fresh order, relating its
satisfaction as required under Section 319
Cr.P.C. within one month from the receipt
of the certified copy of this order without
granting any adjournment at all to the
revisionist."

6. Learned counsel for the revisionist
further submitted that before passing of
final order in Criminal Revision No.2486
of 2007 by this Hon'ble Court the Session
Trial
being
conducted
against
chargesheeted accused persons was finally
concluded by trial court vide judgment and
order
dated
28.09.2017
and
accused
persons were convicted and sentenced for
said charges. However, learned court below
has taken up the case of the revisionist
separately after conclusion of trial of coaccused persons and passed fresh order on
application 26 Kha filed by the informant
in S.T. No.84 of 2006 in Misc. Case
No.155 of 2018 after the matter was
remitted to court below by orders of
Hon'ble Court dated 27.07.2018 which is
assailed in present Criminal Revision. The
impugned order is contrary to law and
outcome of mis-appreciation of evidence
appearing on record. Inasmuch as the
revisionist could be summoned under
Section 319 Cr.P.C after conclusion of trial
of the accused who had already faced trial
for alleged offence.

7. Per contra, learned counsel for the
respondent No.2 and learned A.G.A. for the
State submitted that there is no illegality,
irregularity or perversity in the impugned
408 INDIAN LAW REPORTS ALLAHABAD SERIES
order passed by learned court below.
Learned court below has discussed the facts
and evidence on record elaborately while
passing the impugned order. The revisionist
is named in the FIR, he has been attributed
specific role in the offence in FIR, wherein
the informant has stated that the occurrence
took place on 11.04.2006 at 08:30 PM
when Sanjay Vishwakarma the brother of
the informant while returning home after
negotiating the matter of harvesting of his
wheat crop with labourers, as soon as he
came at the door of his house the accused
persons Dinesh alias Kaptan, Suresh
Vishwakarma and Ramesh Vishwakarma
sons of Khurbhud Vishwakarma and
Ramesh Tiwari son of Asha Ram who were
hiding near the house of the informant
emerged there armed with lathi, danda and
iron rod. On exhortation of Ramesh Tiwari
all the accused persons assaulted Sanjay
Vishwakarma by the respective weapons.
Geeta Devi wife of Sanjay Vishwakarma
rushed there to save her husband on hearing
his shrieks, but the accused persons also
assaulted her when Sanjay and his wife ran
inside the house to save themselves. The
accused persons entered into the house and
again gave beating to them, they also
snatched a chain worn by Geeta Devi. The
injured Sanjay Vishwakarma got fractured
in his both legs due to blow given by the
accused. He also received laceration on his
head, the brother and sister-in-law (Bhabhi)
of the informant got seriously injured and
fell unconscious due to severe assault given
by accused persons, they fled away from
the
place
of
occurrence
when
the
complainant and witnesses reached there,
the injured were transported to Government
Hospital, Suriyawa from where they were
referred to district Hospital Bhadohi, but
doctors referred them to some higher center
and they were admitted in Holicity
Hospital, Pahadiya Varanasi, when their
conditions improved in said hospital they
were shifted to Jeevan Jyoti Hospital,
Bhadohi. In exercise of examination of
injured Sanjay Vishwakarma and his wife
Geeta Devi the injuries were found
grievous. The informant lodged FIR on
20.04.2006 at P.S. concerned when the
conditions of injured improved. The
informant and injured witnesses have
attributed role of exhortation and causing
injuries both to revisionist alongwith coaccused persons in their statement under
Section 161 Cr.P.C. PW1 and PW2
Ramesh
Vishwakarma
and
Sanjay
Vishwakarma.
These
witnesses
have
attributed active role to revisionist in their
evidence before the court, they have stated
that Ramesh Tiwari armed with iron rod
assaulted Sanjay Vishwakarma on his head
and left hand. After passing of the earlier
order under Section 319 Cr.P.C., and
before rehearing on application under
Section
319
Cr.P.C.
in
respect
of
summoning of present revisionist, evidence
of PW-3 Geeta Devi and PW-4 Mastu
Tiwari was also recorded and these
witnesses have also attributed specific and
active role to the revisionist in the offence,
which resulted in grievous and serious
injuries to PW-2 Sanjay Vishwakarma and
PW-3 Geeta Devi. The injury reports of
injured corroborates the oral testimony of
the witnesses. The Revisionist has been
attributed role of both as extortionist as
well as assailant.

8. The learned court below has
discussed the evidence of witnesses PW1
and PW2 as pointed out by this Court in
remand order and there is no legal or
factual flaw therein. The learned court
below has rightly summoned the revisionist
to face trial for said charges, as there is
ample evidence on record in support of the
complicity of the revisionist in the offence.
2 All. Ramesh Tiwari Vs. State of U.P. & Anr.
409

9. The medico legal examination
report of injured Geeta Devi dated
16.04.2006 reveals following injuries on
her person:-

1. Contusion 6 cm x 3 cm on the
right forearm, 3 cm below right elbow joint
for swelling advice X-ray right forearm,
injured referred to S.S.P.G. Hospital
Varanasi.

2. Contusion 6.5 cm x 5 cm on the
left palm 5.5 cm below left writ joint
swelling advice X-ray left palm.

3. complaint of pain in left leg.

4. Complaint of pain in right leg.

Duration about 6 days.

10.
Injury
report
of
Sanjay
Vishwakarma reveals following visible
injuries on his person on different party of
his bodies i.e. right wrist joint, right palm,
left upper arm, left upper interior. Right
leg, left leg.

In
X-ray
report
of
Sanjay
Vishwakarma

1. Fracture of lower end of ulna
and fracture in middle part of radius bone
of right side seen. Nailing of the both bone
has been done.

2. Fracture of the base of distal
phalanx of thumb, fracture on the head of
the second metacarpal bone, fracture of the
proximal phalanx of the little finger of right
palm.

3. Fracture of the shoft of the left
arm.

4. Fracture of the lower end of
fibula of right leg seen.

5. Fracture of the fibula bone at
lower end of left leg seen.

6. There is breach in external
lamina and depressed internal at frontal
parietal junction of skull.

11. In X-ray report of Geeta Devi
following injuries were seen:-

Fracture of right radius bone and
fracture of second metacarpal bone were
seen.

12.
The
Constitution
Bench
of
Hon'ble Supreme Court in Hardeep
Singh Vs. State of Punjab and others
AIR 2014 SC 1400 settled the ambit and
scope of exercise of power by trial court
under Section 319 Cr.P.C. to add a person
whose complicity in the offence is found as
accused. Hon'ble Court addressed various
issues involved under Section 319 Cr.P.C.
and held that section deserves to be given
constructive and purposive interpretation
that advances cause of justice. Hon'ble
Court observed as under:-

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
410 INDIAN LAW REPORTS ALLAHABAD SERIES
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
nocensabsolvitur (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.

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.?

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 material on
the basis whereof such powers can be
exercised.

......15.
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.

......45. It may be pertinent to
refer to the decision in the case of Raj
Kishore Prasad (supra) where, in order to
avoid any delay in trial, the court
emphasised that such a power should be
exercised keeping in view the context in
which the words "inquiry" and "trial"
have been used under Section 319 Cr.P.C.
and came to the conclusion that such a
power is not available at the pre-trial stage
and should be invoked only at the stage of
inquiry or after evidence is recorded.

......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 power under Section 319
Cr.P.C. is to be exercised and not on the
basis
of
material
collected
during
investigation.

....98. Power under Section 319
Cr.P.C. is a discretionary and an extra-
ordinary 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
2 All. Ramesh Tiwari Vs. State of U.P. & Anr.
411
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.

99. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court not
necessarily tested on the anvil of CrossExamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied
is one which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to an
extent that the evidence, if goes unrebutted,
would lead to conviction. In the absence of
such satisfaction, the court should refrain
from exercising power under Section 319
Cr.P.C. In Section 319 Cr.P.C. the purpose
of providing if 'it appears from the
evidence that any person not being the
accused has committed any offence' is
clear from the words "for which such
person could be tried together with the
accused." The words used are not 'for
which such person could be convicted'.
There is, therefore, no scope for the Court
acting under Section 319 Cr.P.C. to form
any opinion as to the guilt of the accused.
Q.(v) In what situations can the power
under this section be exercised: Not named
in FIR; Named in the FIR but not chargesheeted or has been discharged?

13.
Hon'ble
Supreme
Court
in
Brijendra Singh & Ors vs State Of
Rajasthan and others reported in 2017
(7) SCC 706 observed as under:-

"12. The moot question, however,
is the degree of satisfaction that is required
for invoking the powers under Section 319
Cr.P.C. 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 specifically dealt with by
the Constitution Bench in Hardeep Singh's
case and answered in the following
manner:

"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 of this Court in Vikas V. State of
Rajasthan [(2014) 3 SCC 321] , 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.

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

106. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied
is one which is more than prima facie case
as exercised at the time of framing of
412 INDIAN LAW REPORTS ALLAHABAD SERIES
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 "for which such person could be
tried together with the accused". The words
used are not "for which such person could
be convicted". There is, therefore, no scope
for the court acting under Section 319
CrPC to form any opinion as to the guilt of
the accused.

13. In order to answer the
question, some of the principles enunciated
in
Hardeep
Singh's
case
may
be
recapitulated: Power under Section 319
Cr.P.C. 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 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
utilized for corroboration and to support
the evidence recorded by the Court to
invoke the power under Section 319
Cr.P.C. 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 Cr.P.C. and is
also an extraordinary one, same has to be
exercised sparingly and only in those cases
where the circumstances of the case so
warrants. The degree of satisfaction is
more than the degree which is warranted at
the time of framing of the charges against
others in respect of whom chargesheet 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.

14. Learned counsel for the respondent
No.2, the informant produced photo copy
of certified copy of judgment passed in ST
No. 84 of 2006 State of U.P. Vs. Dinesh
alias Kaptan and others arising out of Case
Crime No.186 of 2006, P.S. Suriyawa,
District Bhadohi, which reveals that the coaccused persons in the present offence have
already been convicted and sentenced to
maximum
term
of
seven
years
imprisonment
and
fine
for
aforesaid
charges. The earlier summoning order was
passed on application under Section 319
Cr.P.C. moved by respondent No.2 on
10.08.2007 was set-aside by this Court in
Criminal Revision No.2486 of 2007 and
matter was remanded to trial court for
passing a fresh on application under
Section 319 Cr.P.C. within a month vide
order dated 27.07.2018 passed by this
Court. This Court observed that in the
impugned that only reference of the
statement of PW-1 and PW-2 has been
made by the trial court without discussing
what has come in the statement of PW-1
and PW-2 applicant which has led the trial
court to exercise its power under Section
319 Cr.P.C. and summoned the applicant
for trial. It appears that when the final order
was passed by this Court on 27.07.2018 in
Criminal
Revision
No.2486 of
2007
2 All. Ramesh Tiwari Vs. State of U.P. & Anr.
413
preferred by present revisionist against
earlier summoning order under Section 319
Cr.P.C. the session trial in respect of coaccused persons had already decided by
trial court on 28.09.2017 and perhaps this
fact was not brought to the notice of
counsels for either side, otherwise this
important fact would have come in final
order passed by this Court. Thus, the
position emerges that on the date of passing
a fresh order on application under Section
319 Cr.P.C. with regard to summoning of
the revisionist as accused on 26.02.2024,
the trial in respect of co-accused persons
who were chargesheeted and faced trial for
said offence was concluded way-back on
28.09.2017 and therefore there was no
question to hold a joint trial of the
revisionist with co-accused persons who
were already facing trial in the case as their
trial was already concluded and they were
convicted and sentenced for said charges.

15. The Hon'ble Supreme Court in
Sukhpal Singh Khaira Vs. The State of
Punjab 2022 (17) SCC 246 addressed
three substantial questions of law were
raised for further consideration before the
Constitution
Bench
which
read
as
hereunder:-

"I. Whether the trial court has
the power under Section 319 of CrPC for
summoning additional accused when the
trial with respect to other co-accused has
ended and the judgment of conviction
rendered
on
the
same
date
before
pronouncing the summoning order?

II. Whether the trial court has the
power under Section 319 of the CrPC for
summoning additional accused when the
trial in respect of certain other absconding
accused (whose presence is subsequently
secured) is ongoing/pending, having been
bifurcated from the main trial?

III. What are the guidelines that
the competent court must follow while
exercising power under Section 319 CrPC
?"

16. The Hon'ble Court answered
question No.1, which is pertinent for the
purposes of present Criminal Revision in
affirmative and observed as under:-

"The power under Section 319
of CrPC is to be invoked and exercised
before the pronouncement of the order
of sentence where there is a judgment of
conviction of the accused. In the case of
acquittal, the power should be exercised
before
the
order
of
acquittal
is
pronounced. Hence, the summoning
order has to precede the conclusion of
trial by imposition of sentence in the case
of conviction. If the order is passed on
the same day, it will have to be examined
on the facts and circumstances of each
case and if such summoning order is
passed either after the order of acquittal
or imposing sentence in the case of
conviction,
the
same
will
not
be
sustainable."

17. In the light of above observation it
can be concluded that where the trial of coaccused where at the time of passing of
summoning order under Section 319
Cr.P.C. in respect of a person who was not
earlier facing trial as accused in the case
after conclusion of trial of the persons who
were already facing as accused in the case
resulting in their conviction and imposition
of sentence, summoning order of the
persons concerned as additional accused in
exercise of powers under Section 319
Cr.P.C. will not be sustainable.

18. The Hon'ble Court laid down
following 12 guidelines that the competent
414 INDIAN LAW REPORTS ALLAHABAD SERIES
court must follow while exercising power
under Section 319 Cr.P.C.

"(i) if the competent court finds
evidence or if application under Section
319 of CrPC is filed regarding involvement
of any other person in committing the
offence based on evidence recorded at any
stage in the trial before passing of the
order on acquittal or sentence, it shall
pause the trial at that stage.

(ii) The Court shall thereupon
first decide the need or otherwise to
summon the additional accused and pass
orders thereon.

(iii) If the decision of the court is
to exercise the power under Section 319 of
CrPC and summon the accused, such
summoning order shall be passed before
proceeding further with the trial in the
main case.

(iv) If the summoning order of
additional accused is passed, depending on
the stage at which it is passed, the Court
shall also apply its mind to the fact as to
whether such summoned accused is to be
tried along with the other accused or
separately.

(v) If the decision is for joint trial,
the fresh trial shall be commenced only
after
securing
the
presence
of
the
summoned accused.

(vi) If the decision is that the
summoned accused can be tried separately,
on such order being made, there will be no
impediment for the Court to continue and
conclude the trial against the accused who
were being proceeded with.

(vii) If the proceeding paused as
in (i) above is in a case where the accused
who were tried are to be acquitted and the
decision is that the summoned accused can
be tried afresh separately, there will be no
impediment to pass the judgment of
acquittal in the main case.

(viii) If the power is not invoked
or exercised in the main trial till its
conclusion and if there is a split-up
(bifurcated) case, the power under Section
319 of CrPC can be invoked or exercised
only if there is evidence to that effect,
pointing
to
the
involvement
of
the
additional accused to be summoned in the
split up (bifurcated) trial.

(ix) If, after arguments are heard
and the case is reserved for judgment the
occasion arises for the Court to invoke and
exercise the power under Section 319 of
CrPC, the appropriate course for the court
is to set it down for re-hearing.

(x) On setting it down for rehearing, the above laid down procedure to
decide about summoning; holding of joint
trial or otherwise shall be decided and
proceeded with accordingly.

(xi) Even in such a case, at that
stage, if the decision is to summon
additional accused and hold a joint trial
the trial shall be conducted afresh and de
novo proceedings be held.

(xii) If, in that circumstance, the
decision is to hold a separate trial in case
of the summoned accused as indicated
earlier;

(a) The main case may be decided
by
pronouncing
the
conviction
and
sentence and then proceed afresh against
summoned accused.

(b) In the case of acquittal the
order shall be passed to that effect in the
main case and then proceed afresh against
summoned accused.

19. The facts of present case are
squarely covered with the land mark
judgment of the Hon'ble Supreme Court in
Sukhpal Singh Khaira (supra) and in view
of foregoing discussion, the summoning
order passed by learned court below against
the revisionist in exercise of powers under
2 All. Nagendra Sirohi Vs. State of U.P. & Anr.
415
Section 319 Cr.P.C. after conclusion of
trial, resulting in conviction and sentencing
of accused persons who had already faced
trial in main S.T. No. 84 of 2006, is not
sustainable and thus cannot affirmed, the
impugned summoning order is in conflict
with law laid down by Hon'ble Supreme
Court in Sukhpal Singh Khaira (supra) as
discussed above and thus vitiated by law,
consequently the impugned order deserves
to be set-aside.

20. The impugned summoning order
passed against the revisionist under Section
319 Cr.P.C. is set-aside. The revision is
accordingly allowed.
----------
(2025) 2 ILRA 415
REVISIONALJURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2025

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 3040 of 2023

Nagendra Sirohi ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Chandan Sharma, Rahul Agarwal

Counsel for the Opposite Parties:
G.A., Sanjeev Kumar

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 307- Criminal Procedure
Code, 1973, Section 439-Bail - Second
Bail
Application
-
Prolonged
Incarceration - Delay in Trial - Article 21
of the Constitution of India - Accused in
custody for over 7 years and 9 months -
Trial remained stalled due to pendency of
challenge to summoning order under
Section 319 Cr.P.C. before Supreme Court
- Only 3 of 16 prosecution witnesses
examined - No likelihood of conclusion of
trial in near future - Held, prolonged
detention without progress in trial is
violative of right to speedy trial under
Article 21 - Bail not to be withheld as
punishment - Bail granted. (Paras 16,17,
and 18)

HELD:
Hon'ble
Supreme
Court
in
Kalyan
Dey
Chowdhury Vs Rita Dey Chowdhury Nee Nandy
AIR (2017) SC 2383 placing reliance on a earlier
judgment in Dr. Kulbhushan Kumar Vs Raj
Kumari & anr.(1970) 3 SCC 129, in this case, it
was held that 25% of the husband's net salary
would be just and proper to be awarded as
maintenance to the respondent-wife. The
amount of permanent alimony awarded to the
wife must be befitting the status of the parties
and the capacity of the spouse to pay
maintenance.
Maintenance
is
always
dependent on the factual situation of the case
and the court would be justified in moulding
the claim for maintenance passed on various
factors. Therefore, without disturbing the
broad findings of fact given by learned court
below, the amount of maintenance awarded to
the applicant is being modified as below. (Para
16)

Considering the rival submissions of the learned
counsel for the parties, totality of the facts and
circumstances of the case, it cannot be held that
due to non-compliance of mandatory directions
of Hon'ble Supreme Court in Rajnesh Vs Neha &
anr.(supra)
before
the
court
below,
the
impugned judgment and gets vitiated under law.
This court in revisional stage has assured
compliance of mandatory directions of Hon'ble
Supreme
Court
in
Rajnesh
Vs
Neha
&
anr.(supra) to avoid any further delay in final
disposal of the matter. The purpose of filing
affidavit of disclosure of assets and liabilities is
to clarify the stand of the parties in maintenance
case, their assets, liabilities and economic
condition show that the court may be in a
position to out the truth and come to just
decision in the case. (Para 17)

Revision application dismissed. (E-14)

List of Cases cited: