# Sandeep Kumar & Ors v. State of U.P. & Anr

- **Citation:** (2024) 12 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-05
- **Case number:** Criminal Appeal No. 8105 of 2023
- **Bench:** Manoj Baja
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-kumar-ors-v-state-of-u-p-anr-54534
- **Pages:** 6

## Headnote

A. Criminal Law-Indian Penal Code,1860Sectiions
147,148,452,323,504,506
&354kha-The Scheduled Castes and the
Scheduled
Tribes
(Prevention
of
Atrocities) Act,1989-Sections 3(2)(5) &
14-A(1)-Criminal Procedure Code,1973Section 319-the appellants challenged
order passed by ADJ, summoning them as
additional accused u/s 319 Crpc -Held,
the court noted that complainant had not
filed any protest petition against the
investigation's findings, the court held
that mere mention of names in testimony
without
corroborative
evidence
is
insufficient-the court set aside the trial
court's order ruling that the complainant's
deposition did not constitute "strong and
cogent evidence" required for invoking
section 319 Crpc.(Para 1 to 16)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

12 All. Sandeep Kumar & Ors. Vs. State of U.P. & Anr.
437
court. The findings and conclusions drawn
by
the
trial
court
are,
accordingly,
modified.

40. These appeals are, accordingly,
allowed in part. The conviction of accused
appellant Malkhan is converted from
Section 302 IPC to Section 304 (Part-I)
IPC, whereas for three other accused,
namely Natthu Singh, Ramveer and Raju
their conviction is substituted as that under
Section 325 IPC. Since these three accused
have already served incarceration of more
than six years, therefore, they are released
on the sentence already undergone by them,
unless they are wanted in any other case,
subject to compliance of Section 437-A
Cr.P.C.

41. So far as accused Malkhan is
concerned, we find that the act on his part
of causing fatal injury on the head would
qualify to be an offence under Section 304
(Part-I) IPC. This is, however, first offence
of accused Malkhan and we have already
seen the context in which the incident
occurred.
In
such
circumstances
we
sentence him to seven years rigorous
imprisonment and enhance the fine to Rs.1
lakh, failing which he will undergo default
sentence of one year.

42. Let a copy of this order be sent to
the concerned Chief Judicial Magistrate for
necessary compliance.
----------
(2024) 12 ILRA 437
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.12.2024

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Criminal Appeal No. 8105 of 2023
Sandeep Kumar & Ors. ...Appellant
Versus
State of U.P. & Anr. ...Respondent

Counsel for the Appellant:
Deepak Sigh Yadav, Rajiv Lochan Shukla

Counsel for the Respondent:
Abhishek Tandon, Ashima Goel, G.A., Manu
Srivastava

A. Criminal Law-Indian Penal Code,1860Sectiions
147,148,452,323,504,506
&354kha-The Scheduled Castes and the
Scheduled
Tribes
(Prevention
of
Atrocities) Act,1989-Sections 3(2)(5) &
14-A(1)-Criminal Procedure Code,1973Section 319-the appellants challenged
order passed by ADJ, summoning them as
additional accused u/s 319 Crpc -Held,
the court noted that complainant had not
filed any protest petition against the
investigation's findings, the court held
that mere mention of names in testimony
without
corroborative
evidence
is
insufficient-the court set aside the trial
court's order ruling that the complainant's
deposition did not constitute "strong and
cogent evidence" required for invoking
section 319 Crpc.(Para 1 to 16)

The appeal is allowed. (E-6)

List of Cases cited:

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

2. Labhuji Amratji Thakor & ors.Vs St. of Guj. &
anr.(2019) 12 SCC 644

(Delivered by Hon'ble Manoj Bajaj, J.)

1. Appellants have filed this appeal
under Section 14-A(1) Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 to challenge the
impugned order dated 28.07.2023 passed
by the Additional Session Judge, Court
No.15, Allahabad in Sessions Trial No. 164
438 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2020, arising out of Case Crime No. 550
of 2020, under Sections 147, 148, 452, 323,
504, 506, 354-Kha I.P.C. and Section
3(2)(5)Ka Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989,
Police Station Jhunsi, District Allahabad,
whereby in exercise of power under
Section 319 Cr.P.C., the appellants have
been summoned as additional accused.

2. Briefly, the facts leading to the
appeal are that on the basis of written
complaint by Dharma Devi-opposite party
no.2, the first information report bearing
Case Crime No. 550 of 2020, ( Annexure
No.1), was registered, wherein it is alleged
that complainant's father-in-law, namely,
Bhawani Deen under the influence of
liquor in a deceitful manner was made to
execute a sale deed in favour of Sunil
Kumar son of Bhalli Lal Yadav, and the
ancestral property was transferred in favour
of the purchaser without the consent of the
others, which also included the ancestral
house. For the last two years, Sunil Kumar
had been harassing complainant and her
family members, who every day is forcing
them to vacate the property. About six
months back, Sunil Kumar along with his
accomplices had given beatings to the
complainant and her husband, and in this
regard, an information was given to the
police, but no case was registered. For the
last one week, Sunil Kumar along with his
associates and family members has been
intimidating the complainant. Today, on
14.09.2020 at around 7.00 a.m., Sunil
Kumar along with Rajendra Prasad Yadav,
Vijay Kumar and Kapil Yadav came to her
house and dragged the complainant out on
the road, and it turned her partially
unclothed,
and
the
assailants
also
committed
obscenity,
whereupon
complainant's husband and son came to
rescue her, but the accused persons abused
and threatened them all. When the
neighbours
arrived
at
the
spot,
the
assailants fled away. On these broad
allegations, the first information report was
registered against four named and one
unknown
persons
for
the
alleged
commission of offences punishable under
Sections 147, 148, 425,323, 504, 506 354
(Kha) IPC and Section 3(2)(va) of the
Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.

3. After registration of the case, the
investigation was carried out and upon
conclusion of the same charge sheet under
Section 173(2) Cr.P.C. was filed on
11.11.2020 only against Sunil Kumar,
whereas the appellants were declared
innocent.

4. Thereafter, the trial court analyzed
the final report and proceeded to frame
charges against the sole accused Sunil
Kumar.
During
trial
the
complainant/opposite
party
no.2
was
examined as P.W.-1 on 10.05.2023, and
thereafter an application under Section 319
Cr.P.C. dated 25.07.2023 was moved by
complainant for summoning appellants as
additional accused, which has been allowed
vide impugned order dated 28.07.2023.
Hence this appeal.

5. Learned counsel for the appellants
has argued that the allegations made in the
FIR itself would show that the complainant
has set up a false case to question the action
of her father-in-law, who had disposed of
his immovable property in favour of coaccused Sunil Kumar. The appellants were
unnecessarily dragged in the said case
through the FIR, and during investigation
no incriminating evidence was collected by
the Investigating Officer to show the
involvement of the appellants, therefore,
12 All. Sandeep Kumar & Ors. Vs. State of U.P. & Anr.
439
they were declared innocent in the final
charge sheet under Section 173(2) Cr.P.C.
dated 11.11.2020.

6. Mr. Rajiv Lochan Shukla, learned
counsel for the appellants has argued that
the evidence on record is not enough for
exercise of power under Section 319
Cr.P.C., but the trial court has erroneously
exercised the jurisdiction under Section 319
Cr.P.C. while summoning the appellants as
additional accused. Mr. Shukla, learned
counsel for the appellants relies upon the
decision of Hon'ble Supreme Court in the
case of Hardeep Singh Vs. State of Punjab
and others reported in (2014) 3 SCC 92,
and urged that the principles and guidelines
laid down by Hon'ble Supreme Court in the
context of exercise of power under Section
319 Cr.P.C. have not been strictly followed
by the trial court, while passing the
impugned order. He submits that the
impugned order is not based upon proper
appreciation
of
material
on
record,
therefore, the interference is warranted by
this Court in exercise of appellate powers.
He prays that the impugned order be set
aside and the application under Section 319
Cr.P.C. filed by prosecution be dismissed,
in the interest of justice.

7. The prayer is opposed by Mr.
Tandon, learned counsel for the opposite
party no.2, who has argued that the
complainant
had
been
maintaining
consistent stand from the very beginning,
who had specifically named the appellants
as an accused in the FIR also. He further
submits that the case of the complainant is
also supported by other witnesses, who are
independent, but the Investigating Officer
had wrongly exonerated the appellants, and
filed charge sheet only against co-accused
Sunil Kumar. Learned counsel for the
opposite party no.2 relies upon the decision
of Hon'ble Supreme Court in the case of
Hardeep Singh Vs. State of Punjab and
others reported in (2014) 3 SCC 92 to
contend that the expression "evidence" as
appearing in Section 319 Cr.P.C. is to be
construed liberally and at this stage the
statement of complainant would alone be
enough for exercising the power under
Section 319 Cr.P.C., if, it suggests
involvement of other accused persons in
alleged commission of crime. According to
Mr. Tandon, learned counsel for the
complainant, the trial court has carefully
analyzed the prosecution case and the
evidence adduced during trial, therefore,
the impugned order dated 28.07.2023 does
not call for any interference. He prays
that the appeal be dismissed.

8. Learned State Counsel has also
argued on the similar lines, who while
opposing the prayer submitted that in
evidence
P.W.-1/complainant
has
specifically
named
the
appellants
in
commission of the alleged crime, and the
trial court has justifiably exercised the
jurisdiction under Section 319 Cr.P.C. to
summon the appellants as additional
accused. According to the learned State
counsel, the impugned order is validly
passed, who further prays that the appeal be
dismissed.

9. Learned counsel for the parties have
been heard and with their assistance the
case file has been perused carefully.

10. Time and again, the Hon'ble
Supreme Court as well as various High
Courts have consistently examined the
scope of Section 319 Cr.P.C., which
empowers the trial court to summon any
other person as an accused in a pending
trial, where the evidence recorded during
trial suggests the involvement of such
440 INDIAN LAW REPORTS ALLAHABAD SERIES
person in commission of the alleged crime.
The said provision 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.

(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.'

11. A reading of the above would
show that this Section vests extraordinary
power with the trial court to summon any
other person as an accused to face trial
along with other accused, who are before
the trial court, but invariably the Hon'ble
Supreme Court as well as different High
Courts have held that this discretionary
power should be exercised sparingly and
with circumspection. At this juncture, when
the trial has already commenced, the degree
of satisfaction required to be recorded by
the trial court while summoning any other
person as additional accused, should be
more than the standards required at the
stage of framing of charges. In other words,
the evidence on record must strongly
suggest more than a "prima facie" case
against such a person and his involvement
in commission of the crime. Reference in
this regard can be made to the decision of
larger Bench of Hon'ble Supreme Court
rendered in Hardeep Singh Vs. State of
Punjab and others reported in (2014) 3
SCC 92, wherein the Question (iv), was
answered in the following manner:-

"Question (iv)- What is the
degree
of
satisfaction
required
for
invoking the power under Section 319
Cr.P.C.'

Ans.-105. Power under Section
319 Cr.P.C. 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."

12. Now, while reverting back to the
facts and circumstances of the case in hand,
this Court finds that no doubt the
complainant/opposite party no.2 (P.W.-1)
had indeed mentioned the names of the
12 All. Sandeep Kumar & Ors. Vs. State of U.P. & Anr.
441
appellants in the first information report,
but after completion of investigation the
said
stand
of
the
complainant
was
disbelieved by the Investigating Officer for
lack of support/corroboration. During the
course of hearing, the stand of Mr. Shukla,
learned counsel for the appellants that ten
independent witnesses who allegedly came
to rescue P.W.-1 never mentioned the
presence
of
the
appellants
in
their
respective statements under Section 161
Cr.P.C., has not been refuted by Mr.
Tandon,
learned
counsel
for
the
complainant. Though, according to Mr.
Tandon, learned counsel the deposition of
P.W.-1
recorded
during
the
trial
proceedings is enough for summoning the
appellants as an additional accused.

13. But, this Court does not find any
force in the arguments advanced by Mr.
Tandon,
learned
counsel
for
the
complainant
as
the
deposition
of
complainant before the court cannot be
construed as a new piece of evidence,
which emerged for the first time and was
not previously available when either the
first information report was registered or
the investigation was carried out. The
expression "Evidence" as contained in
Section 319 Cr.P.C. would not include a
vague
statement,
and
essentially
the
deposition of prosecution witness has to be
tested in its substance.

14. The decision in Hardeep Singh
(supra) was again followed by Hon'ble
Supreme Court in Labhuji Amratji Thakor
and others Vs. State of Gujrat and another
reported in (2019) 12 SCC 644, wherein it
was held that the process under Section 319
Cr.P.C. cannot be issued by the trial court
in a casual manner, as in view of the
decision in Hardeep Singh's case (supra),
the trial court is required to analyze the
substance of the evidence recorded during
trial.
The
relevant
observations
are
reproduced below:

"13.The High Court does not
even record any satisfaction that the
evidence on record as revealed by the
statement of victim and her mother even
makes out a prima facie case of offence
against the appellantss. The mere fact that
the Court has power under Section319
Cr.P.C. to proceed against any person who
is not named in the F.I.R. or in the
Charge
Sheet does
not
mean
that
whenever in a statement recorded before
the Court, name of any person is taken,
the Court has to mechanically issue
process under Section319 Cr.P.C.The
Court has to consider substance of the
evidence, which has come before it and as
laid down by the Constitution Bench in
Hardeep Singh (supra) has to apply the
test, i.e. "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."

15. During the course of hearing, it has
also not been disputed by Mr. Tandon,
learned counsel for the complainant that
after submission of final report, whereby
the appellants were declared innocent, the
complainant did not take any steps, as
neither any complaint nor protest petition
was filed by the complainant. A perusal of
the impugned order dated 28.07.2023
reveals that the trial court has not at all
considered the facts and circumstances of
the case, and has also ignored the law on
the subject while exercising extraordinary
jurisdiction to summon the appellants. The
impugned order does not refer to any new
evidence, its nature, much less any valid
reasoning for exercise of this discretionary
442 INDIAN LAW REPORTS ALLAHABAD SERIES
power. Thus, the impugned order dated
28.07.2023 suffers from grave illegality
and warrants interference by this Court.

16. Resultantly, the appeal succeeds
and the impugned order dated 28.07.2023
is hereby set-aside. The application filed
under
Section
319
Cr.P.C.
by
the
prosecution is hereby dismissed.
----------
(2024) 12 ILRA 442
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2024

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 1989 of 2024

Bharat Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Chandra Pal Singh, Pankaj Kumar Gupta

Counsel for the Opposite Parties:
G.A.

Criminal
Law-
Criminal
Procedure
Code,1973 - Section 319- Power to
summon additional accused - Timing of
exercise of the power vested under
Section 319- Summoning order passed
prior to recording conviction and sentence
of co-accused - Permissibility - Held,
Court not functus officio - Separate trial
of summoned accused permissible -
Summoning order valid. (Paras 10, 21, 23,
24, and 25)

HELD:
The Hon'ble Court observed that once the
learned trial judge passes an order on sentence,
the Court becomes functus officio and it is not
within its jurisdiction to pass an order under
Section 319 Cr.P.C. (Para 10)
After giving a thoughtful and respectable
consideration to judgments cited above, I am of
the considered opinion that the summoning of
revisionist by trial court in suo motu exercise of
powers under Section 319 Cr.P.C. is not contrary
to law and is based on evidence on record. The
impugned order is not hit by judgment of
Hon'ble Supreme Court in Devendra Kumar Pal
Vs St. of U.P. & anr. in SLP (Crl.) No.6960 of
2021 and Criminal Appeal No.885 of 2019 and
Criminal Appeal No.886 of 2019 in Sukhpal
Singh Khaira Vs The St. of Punjab as the facts of
those cases were slightly different from the facts
of the present case. In those cases summoning
of additional accused was done after recording
of conviction and passing of sentences to
accuses persons who were already facing trial.
Whereas in the present case the revisionist has
been summoned under Section 319 Cr.P.C. in
judgment dated 17.01.2024, prior to recording
of conviction of chargesheeted accused persons.
In paragraph No.50 of impugned judgment,
wherein the court below has observed that on
the basis of evidence of PW-2 Hariom, PW-3 Brij
Mohan and PW-5 Manoj Singh complicity of
Bharat Singh is also established alongwith other
accused persons, they have also filed affidavit in
support of this version during the course of
investigation which is part of case diary. There
are cogent and strong evidence on record
regarding complicity of accused Bharat Singh in
the offence, which if remains unrebutted his
conviction may be fully probable, therefore
cognizance has been taken for charge under
Section 302/34 I.P.C. against accused Bharat
Singh and he is being summoned under Section
319 Cr.P.C. for trial. (Para 21)

Hon'ble Supreme Court in Sukhpal Singh Khaira
(supra) held that 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. (Para 23)

The Hon'ble Court also held that the power
under Section 319 Cr.P.C. can be exercised
before
the
pronouncement
of
order
on
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