# Sanju & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 107
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-23
- **Case number:** Criminal Revision No. 2076 of 2019
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanju-ors-revisionists-v-state-of-u-p-anr-51526
- **Pages:** 15

## Headnote

Criminal Law -Code of Criminal Procedure,
1973 - Sections 319, 397, 190 & 193 -
Indian Penal Code, 1860 - Sections 147,
148, 149 & 302 - Summoning of Additional
Accused - Scope of Revisional Jurisdiction -
Evidence
under
Section
319
Cr.P.C.
-
Consideration of Investigation Materials
The revisionists, Sanju and others, challenged
the order dated 02.05.2019 passed by the
Additional
District
and
Session
Judge,
Farukhabad, in Sessions Trial No. 192 of 2012,
summoning them under Section 319 Cr.P.C. to
face trial for offences under Sections 147, 148,
149, and 302 IPC, based on the testimony of
PW1 (Munni Devi, informant) and PW9 (Dinesh),
despite their exclusion from the chargesheet.
The FIR, lodged on 03.02.2012, alleged that the
revisionists, linked to Dalganjan Singh, killed the
informant's husband, Amar Singh, and his
friend, Man Singh, due to prior enmity. The
Investigating Officer (IO) found no complicity of
the revisionists, citing mobile location data and
witness St.ments, and instead chargesheeted
seven others. During trial, PW1 and PW9
supported the FIR version, leading to the
summoning order. The informant later disowned
the Section 319 application via an affidavit
dated 17.08.2019, claiming it was filed without
her instructions. Held: The court, relying on
Hardeep Singh Vs St. of Punj. ((2014) 3 SCC 92)
and Brijendra Singh Vs St. of Rajasthan, set
aside the summoning order, finding that the trial
court erred by ignoring the IO's findings, which
exonerated the revisionists based on mobile
data and witness St.ments, and failed to
establish "much stronger evidence" of complicity
as required under Section 319 Cr.P.C. The court
emphasized that investigation materials can
corroborate trial evidence, and the trial court
should have considered these to assess the
prima facie case. The revision was allowed, and
the matter was remitted for fresh consideration
of the Section 319 application, ensuring
compliance with legal standards.

Case Law Cited:

## Text

_Characters 0–39,981 of 51,187. This is a partial read: ask again with offset=39981 for what follows._

3 All. Sanju & Ors. Vs. State of U.P. & Anr.
107

23. There is no merit in the criminal
revision and the same is liable to be
dismissed.

24.

The
criminal
revision
is
dismissed, accordingly.

25. Let a copy of this order be sent to
the concerned trial court for necessary
action.
----------
(2024) 3 ILRA 107
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2024
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 2076 of 2019

Sanju & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Hari Prakash Mishra, Sri Dharmendra
Kumar Srivastava

Counsel for the Opposite Party:
G.A., Sri Chandra Prakash Pandey, Sri Dur
Vijay Singh

Criminal Law -Code of Criminal Procedure,
1973 - Sections 319, 397, 190 & 193 -
Indian Penal Code, 1860 - Sections 147,
148, 149 & 302 - Summoning of Additional
Accused - Scope of Revisional Jurisdiction -
Evidence
under
Section
319
Cr.P.C.
-
Consideration of Investigation Materials
The revisionists, Sanju and others, challenged
the order dated 02.05.2019 passed by the
Additional
District
and
Session
Judge,
Farukhabad, in Sessions Trial No. 192 of 2012,
summoning them under Section 319 Cr.P.C. to
face trial for offences under Sections 147, 148,
149, and 302 IPC, based on the testimony of
PW1 (Munni Devi, informant) and PW9 (Dinesh),
despite their exclusion from the chargesheet.
The FIR, lodged on 03.02.2012, alleged that the
revisionists, linked to Dalganjan Singh, killed the
informant's husband, Amar Singh, and his
friend, Man Singh, due to prior enmity. The
Investigating Officer (IO) found no complicity of
the revisionists, citing mobile location data and
witness St.ments, and instead chargesheeted
seven others. During trial, PW1 and PW9
supported the FIR version, leading to the
summoning order. The informant later disowned
the Section 319 application via an affidavit
dated 17.08.2019, claiming it was filed without
her instructions. Held: The court, relying on
Hardeep Singh Vs St. of Punj. ((2014) 3 SCC 92)
and Brijendra Singh Vs St. of Rajasthan, set
aside the summoning order, finding that the trial
court erred by ignoring the IO's findings, which
exonerated the revisionists based on mobile
data and witness St.ments, and failed to
establish "much stronger evidence" of complicity
as required under Section 319 Cr.P.C. The court
emphasized that investigation materials can
corroborate trial evidence, and the trial court
should have considered these to assess the
prima facie case. The revision was allowed, and
the matter was remitted for fresh consideration
of the Section 319 application, ensuring
compliance with legal standards.

Case Law Cited:
1. Hardeep Singh Vs St. of Punj., (2014) 3 SCC
92

2. Brijendra Singh Vs St. of Rajasthan

3. Dharam Pal Vs St. of Har., (2014) 3 SCC 306

4. Suresh Vs St. of Maharashtra, AIR 2001 SC
1375

5. Niranjan Singh Karam Singh Punj.i Vs Jitendra
Bhimraj Bijjaya, AIR 1990 SC 1962

6. St. of Maharashtra Vs Priya Sharan Maharaj,
AIR 1997 SC 2041

7. Manjeet Singh (specific citation not provided
in text)

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)
108 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard learned counsel for the
revisionists,
learned
counsel
for
the
respondent No.2 as well as Sri Deepak
Kapoor learned A.G.A. for the State and
perused the record.

2. Learned counsel for the revisionist
submitted that report has been filed by trial
judge on dated 06.10.2023, pursuant to
order dated 19.09.2023 passed by this
Court reads as under:-

"Learned counsel for the opposite
party referred to the affidavit enclosed in
the counter affidavit that on 17.08.2019, an
application was moved on behalf of the
informant, Munni Devi, before the Court
concern in S.T. 192A of 2012 (State of U.P.
Vs. Sanju and others) that no such
application under Section 319 Cr.P.C., to
summon the revisionist to face the trial,
was moved by her. This application was
supported by the affidavit.

Learned trial court be directed to
submit a report with regard to the status of
the aforesaid application moved by the
informant within three weeks.

List on 11.10.2023.

Interim
order,
if
any,
shall
continue till the next date of listing".

3. Learned trial judge has reported
that informant Smt. Munni Devi has moved
an application on 17.08.2019 in S.T.
No.192A of 2012 (State of U.P. Vs. Sanju
and others), photo copy of which is placed
on record. The order is endorsed thereon to
the effect that in S.T. No.192 A of 2012 the
proceedings remain stayed by the order of
Hon'ble High Court. Therefore, the said
application cannot be placed on record and
same is returned to the applicant.

4. The informant has stated in the said
application that she is filing an affidavit
with regard to true facts of the case, and
said affidavit is placed on record alongwith
application. It is stated therein that
informant had not instructed her counsel
Sri
Satyendra
Pathak to move
this
application on 03.04.2019 for summoning
Sanju and others, if any application has
been moved for summoning Sanju and
others, the same is false.

5. Smt. Munni Devi was summoned
before the Court in compliance of order
dated 19.09.2023 and she has admitted to
have filed an application to the effect that
application and affidavit filed by her on
17.08.2019
before
court
below
was
submitted by her.

6. Instant Criminal Revision has been
preferred
against
the
order
dated
02.05.2019 passed by Additional District
and Session Judge, Court No.7, Farukhabad
in Session Trial No.192 of 2012, State Vs.
Kashmi Singh, under Section 319 of
Cr.P.C. whereby revisionist are summoned
to face trial under Sections 147, 148, 149
and 302 of I.P.C. together with the accused
who are already facing trial.

7. The facts leading to filing of
present
revision
are
that
the
informant/defacto complainant Munni Devi
had lodged an FIR on the basis of a written
report at Police Station Mohammadabad,
District Farukhabad with averments that on
03.02.2012 her husband Amar Singh had
gone to Mohammadabad market by riding a
Hero
Honda
Motorcycle,
bearing
Registration No.UP76J8360 alongwith his
friend Man Singh who was sitting on
pillion of the motorcycle. She also went to
market sitting on pillion of the motorcycle
ridden by Tejram. Her husband was coming
back from the market alongwith Man Singh
and she was also coming back from the
3 All. Sanju & Ors. Vs. State of U.P. & Anr.
109
market on motorcycle ridden by her
relative Dinesh. They came near Shekhpur
village at around 06:30 PM, suddenly a
white four wheeler came from behind of
them, in which Sanju, Raju @ Raje, Ramu
@ Ahab Pratap, Manjit Singh @ Bablu,
Chandra Mohan, Sarvesh @ Pappu, Anil @
Karu were sitting, these persons stepped
out from the car having armed with
weapons, and stated that they were waiting
for them for long period. One Dalganjan
Singh had visited at her home one week
ago and stated that he would kill her
husband to take revenge of the murder of
his brother. These persons killed her
husband Amar Singh and his friend Man
Singh acting under conspiracy on getting
opportunity on said date and time in the
presence of the informant and said Dinesh.
Accused Sanju fired a shot at her husband
by country made pistol and Raju alias Raje
fired a shot at Man Singh by his fire arm,
other persons assaulted the injured by butt
of
their
guns.
The
injured
became
unconscious. On hearing the screams, covillagers Shersingh, son of Ram Krishna,
Vipin son of Rameshwar Singh reached
there and had seen the incident. The
assailants belonged to the same family, they
escaped from the place after committing
murder towards Mohammadabad . She
could not visit the police station in the
night, being scared by this incident. FIR
was lodged against seven named accused
persons under Sections 147, 148, 149 and
302 of IPC. Police investigated the case
and recorded the statements of informant
Smt. Munni Devi, Shersingh, Vipin Yadav,
Dinesh and other witnesses.

8. The informant Munni Devi and
Dinesh her said companion/eye witnesses
at the time of incident supported the FIR
version in their statement under Section
161 Cr.P.C. The Investigating Officer on
15.03.2012 recorded in Case Diary Parcha
No.14 that CDR and tower location of
Mobile No. 09554166555 of witness
Dinesh has been collected, and on its
analysis it is found that on 02.02.2012 at
09:34:25 hours its location was at Phakna
and thereafter from 13:50:11 to 15:03:53
hours,
it
was
within
area
of
Mohammadabad
tower
and
between
17:47:06
to
03.:02:12
hours
from
17.04.2006 to next day up to 09:57:36
hours its location was detected at Pakhina
Sirauli tower. Whereas the place of incident
is lying within Mohammadabad tower, as
probable time of incident is stated to be
18:30 hours on 02.02.2012.

9. According to Investigating Officer,
the location of the witness Dinesh was not
found at the place of incident at relevant
date and time. Another witness Shersingh,
who is named in FIR stated to him that he
was not present on relevant time and place
of incident, and next day he heard that two
dead bodies are lying on the corner of
railway line and then he visited the place at
of occurrence around 08:00 AM and saw
that dead body of co-villager Amar Singh,
who was his relative was lying alongwith
dead body of Man Singh, resident of
Malwa Dhani. He and other villagers
informed Smt. Munni Devi about the
incident telephonically, who was at that
time present at her parental place in village
Shankarpur and she was called there, he
had not seen any such incident. He could
not know as to why his name is shown as
witness in FIR, Smt. Munni Devi herself
was not present at the time of the incident,
as she had gone to her parental place, ten to
fifteen days prior to the incident. He is not
willing to depose falsely, the other
witnesses Vipin Yadav has also not
supported the FIR version and nor he was
present on the spot at the time of incident,
110 INDIAN LAW REPORTS ALLAHABAD SERIES
he heard next day on 03.03.2012 that his
co-villagers Sanju, Raju @ Raje and others
had killed Amar Singh and Man Singh, but
he did not see the occurrence. He admitted
that he had gone to Mohammadabad
market at around 6:30 pm on 02.02.2012
alongwith Shersingh riding a motorcycle;
he operates a milk dairy and ice-cream
factory at village Nadaura. However, he
could not explain as to why Shersingh
stated in his statement that he did not visit
Mohammadabad on 02.02.2012 and did not
hear
anything
about
the
occurrence.
Witness Vipin Yadav also stated that he
neither saw the incident nor firing, he also
stated that he visited the place of incident
on next day, where the dead body was lying
at the corner or railway track. He admitted
that there is a old enmity between family
members and the witnesses of the accused
persons.

10.

The
Investigating
Officer
collected further facts during investigation
on the basis of evidence of witness Brijesh
Yadav, Lekhpal Khateriya, Satyapal Singh
Yadav and others. The deceased were shot
at the temple by miscreants and informant
Munni Devi was present at that time at her
parental
place
village
Shankarpur
Bishnupur, District Kannauj. There was
old family enmity between the deceased
Amar Singh and Dalganjan Singh, the
head of the family of accused persons.
Deceased Amar Singh was accused in
murder of Ramchander who was the
brother of Dalganjan Singh. Deceased
Amar
Singh
was
awarded
life
imprisonment in said murder case by
court and was released on bail during
the pendency of appeal five years ago
the incident. The mobile phones of
deceased were also taken away by the
killers;
deceased
were
persons
of
criminal antecedents.

11. According to the observation of
Investigating Officer Dalganjan Singh
visited the dead bodies alongwith a nephew
after knowing the incident. The FIR was
lodged against son and nephews of
Dalganjan Singh due to old enmities and
litigations. The Investigating Officer came
to the conclusion, after investigation that
the complicity of named accused persons
was not found in double murder case and
the informant and her relative Dinesh were
not found to have witnessed the incident as
their present was found else where on date
and time of incident. The informant falsely
named the present accused persons in FIR
in view of old family dispute with
Dalganjan Singh, while the mobile phone
of deceased Amar Singh was recovered on
08.04.2012 from possession of one Rajpal
@ Manishpal son of Kannaujiapal resident
of
Khimsepur
Police
Station
Mohammadabad
District
Farukhabad,
robbed by miscreants after committing
murder of Amar Singh on 02.02.2012.

12. The complicity of Kashmir Pal,
Nagendra Yadav, Kuldeep, Rahis Pal,
Shekhar Pal, Rajpal and Sukhveer Yadav
was found during investigation in the
murder of deceased Man Singh and Amar
Singh on account of their mobile phone
location, statement of the witnesses and
CDR
and
involvement
of
present
revisionists who were named in the FIR
was found false. Nagendra Yadav was
inimical to deceased Amar Singh and
Sukhvir Singh and wanted to kill Man
Singh and all these chargesheeted accused
hatched a conspiracy and killed the two to
fulfill that.

13. Thus, the Investigating Officer
dropped the name of all the seven named
accused
persons,
and
instead
filed
chargesheet against seven other persons
3 All. Sanju & Ors. Vs. State of U.P. & Anr.
111
whose complicity was found in the offence
during investigation.

14. The court below recorded the
evidence of as many as nine witnesses at
the stage of trial, and thereafter an
application under Section 319 Cr.P.C. was
filed by the informant (PW1) in ST
No.1927 of 20112 State Vs. Kashmir Pal to
summon all the named accused persons in
FIR as accused, who faced trial together
with the accused persons who are already
facing trial. Nine witnesses are examined
during trial out of whom PW1 Munni Devi,
PW9 Dinesh are witnesses of fact. PW5
Ram Chandra is scriber of written report
Ex.Ka.1.

15. Learned trial court after hearing
the submissions of both the sides and
taking into consideration the evidence on
record during trial placed reliance on
version of PW1 Munni Devi and PW9
Dinesh summoned the revisionists as
accused in exercise of powers under
Section 319 Cr.P.C. The newly added
accused persons, being aggrieved by the
impugned
order
dated
02.05.2019,
preferred present revision before this Court.
Two counter affidavits were filed by
respondent
No.2
one
on
26.08.2019
through Advocate Sri Chandra Prakash
Pandey and the other through Advocate Sri
Durvijay Singh on 13.11.2019. In first
affidavit respondent No.2 has countered the
affidavit filed in support of the Revision
and the other is supportive of the
revisionists version. The respondent No.2
appeared before this Court and disowned
first counter affidavit as well as application
under Section 319 Cr.P.C. purportedly filed
by her before the court below.

16.

Learned
counsel
for
the
revisionists submitted that though it is true
that P.W.1 Smt. Munni Devi, PW 9 Dinesh
have testified in support of FIR version,
they are only two witnesses examined
during trial. The other witnesses of
chargesheet have not been examined by
prosecution during trial and on the basis of
whose statement during investigation the
complicity of the revisionists was not found
in the offence and instead complicity of
accused Kashmir Singh and others have
been found, who are facing trial before the
court below.

17. Learned counsel for revisionists
further submitted that in the present case
although strong motive as been attributed
to revisionists who belonged to family of
Dalganjan Singh in whose brother's murder
case deceased Amar Pal was tried and
convicted by the court and was on bail
during appeal. However, this fact is
noticeable that causing fire arm injury to
deceased persons is specifically attributed
in FIR as well as in statement of witnesses
namely Munni Devi and Dinesh Singh to
accused Sanju and Raju @ Rajey. The other
named accused persons are said to have
assaulted the deceased persons by kicks,
fists and butts of riffle, according to version
of
these
witnesses.
However,
in
postmortem report both the deceased are
found to have suffered incised wound also
apart from fire arm and other injuries, and
these witnesses have no where stated that
the named accused persons were armed
with any sharp edged weapon. Their
presence was not found by the investigating
officer on the place of incident, whereas
they have stated in their sworn testimony
before the court that they had seen the
incident.

18. The trial itself has reached at the
advance stage of recording of statements of
the accused persons under Section 313
112 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. Therefore, during trial only those
witnesses were produced in support of
prosecution case who have testified against
the revisionists during investigation as well
as during trial. Thus, in the entirety, it is
submitted that there can be no strong
satisfaction recorded by the learned trial
court to summon the revisionists as
additional accused to face trial in exercise
of powers under Section 319 Cr.P.C.
alongwith accused persons who are already
facing trial. He further submitted that no
strong satisfaction has been recorded by the
learned court below with regard to primafacie case against the revisionists as
envisaged under Section 319 Cr.P.C. before
passing
the
impugned
order.
The
independent witnesses named in FIR are
not
examined
during trial.
PW1
is
complainant and PW9 is a partisan and
entrusted witnesses and is on inimical
terms with accused side long before the
incident.

19.

Learned
counsel
for
the
respondent No.2 made request irrespective
of the new stand of the informant Smt.
Munni Devi at this stage, the revision may
be decided on merits of the case in light of
law laid down by Hon'ble Apex Court in
various recent judgments.

20. Learned A.G.A. for the State -
respondent submitted that the name of
actual assailants who are named in the FIR
has been dropped by the Investigating
Officer in chargesheet due to allurement
and political pressure. The investigation
was faulty and partial, it was not fair
investigation, otherwise there was no
reason that family members of the deceased
would have named wrong persons in FIR
and
concealed
the
name
of
actual
assailants. It is further submitted that
strangely, the names of all seven accused
persons were dropped in the chargesheet
with a view to screen the actual offenders
and new set of accused were chargesheeted.
The subsequent application and affidavit of
the complainant after passing of impugned
order is insignificant. It is her "evidence"
and not her affidavit which will be read in
the matter in hand.

21. On the cumulative strength of
above
contentions,
learned
A.G.A.
appearing
on
behalf
of
respondents
vehemently contended that the present
criminal revision is liable to be dismissed.

22. In the present case two persons
Amar Singh, the husband of the informant
and his friend Man Singh were killed on
02.02.2012 at around 06:30 pm, when they
were coming from Mohammadabad market
riding a motorcycle. In the FIR as many as
seven accused persons are named as
assailants and specific role of firing a shot
at the deceased is attributed to accused
Sanju and Raju alias Raje in the FIR as
well as in the statements of the informant
and her witness Dinesh in the statements
under Section 161 Cr.P.C. and in their
sworn testimony before the Court of PW 1
and PW9 respectively.

23. In the FIR it is stated that
appellant No.1 Sanju had fired a shot at
Amar Singh and Raju @ Raje appellant
No.2 fired a shot at Man Singh and
remaining persons assaulted the injured
persons by butt of their guns badly till
arrival of the witnesses. In the statement
dated 04.02.2012 made under Section 161
Cr.P.C. the informant i.e. the next day of
lodging the FIR has stated that after
opening of fire on deceased persons by
Sanju and Raju @ Raje the remaining
accused persons assaulted these two injured
persons by kicks, fits and butts of their
3 All. Sanju & Ors. Vs. State of U.P. & Anr.
113
guns badly, who died by fatal injuries
suffered in their incident. The other two
witnesses Sher Singh and Vipin who were
named as eyewitness in the FIR have not
supported
the
FIR
version
in
their
statement under Section 161 Cr.P.C..
However,
the
witness
Dinesh
has
corroborated the FIR version and statement
of the informant in his statement under
Section 161 Cr.P.C. recorded at belated
stage on 29.06.2012 by the Investigating
Officer as well as in his sworn testimony
before the court as PW9. PW1 and PW9 the
witnesses of facts have categorically stated
in
their
evidence
during
the
cross
examination that accused persons Nagendra
and others who are facing trial at present
were not assailants and the accused persons
named in the FIR are real assailants. The
new
set
seven
accused
have
been
introduced by Investigating Officer during
investigation and chargesheeted namely
Nagendra Yadav, Kuldeep, Rahish Pal,
Shekhar Pal, Raja and Kashmir Pal. The
witness Dinesh Singh has already stated in
his statement under Section 161 Cr.P.C. and
before the Court as PW9 that Sanju fired a
shot at Amar Singh and Raju @ Raje fired
a shot at Man Singh and remaining accused
persons named in the FIR assaulted the
injured by butts of their guns, kicks and
fits. He fled from the place of incident
taking Smt. Munni Devi his sister-in-law
(bhabi) with him at village Nadaura, the
parental place of Munni Devi where they
stayed in the night, as stated in his evidence
that he identified the accused in the light of
their four wheeler and his motorcycle. The
witness Dinesh Singh is named as accused
in FIR lodged as Crime No.Nil of 2002
under Sections 147, 148, 149, 307 and 504
I.P.C. alongwith his father and other
accused for attempting to commit murder
of the nephew of Dalganjan Singh on
18.02.2002 the present revisionists include
sons, nephew and family members of
Dalganjan Singh.

24. The postmortem report of
deceased Amar Singh and Man Singh dated
03.02.2012 revealed that deceased Amar
Singh received fire arm wound of entry on
right temporal region. One incised wound
11cm x2.5 cm x bone deep over right side
of mandible under-lying bone fractured,
abraded contusion 12 cm x 7cm over right
side of face, ligature mark 32 cm x 4 cm
around the neck, on cut haematoma was
present. Tracheal ring depressed, multiple
contusion over front of right shoulder and
upper part of chest. Linear abrasion 6 cm
over right side of upper part buttuck. Thus
six entries were found on his person.

25. In postmortem report of injured
Man Singh also one fire arm wound of
entry 2 cm x 5 cm on right temporal region
and one wound on exit over left side of ear
was found. Apart from that one lacerated
wound 3 cm x 1 cm bonedeep over left
eyebrow, one incised wound 3.5 cm x 0.5
cm over the right shear involving lower
eyelid and abraded contusion 11 cm x 1 cm
on front of neck, middle part were found.

26. Thus, from the postmortem report
of Amar Singh it appears that he received
fire arm injuries, lacerated and abraded
wounds as well as incised wounds. He also
received injuries on his neck and on cut
tracheal ring was depressed and haematoma
was present beneath the injury, this shows
that he was attributed to be strangulated.
Some what similar nature of wounds were
found in postmortem report of deceased
Man Singh.

27. It needs to be highlighted that
when a person is named in the FIR by the
complainant, but police after investigation
114 INDIAN LAW REPORTS ALLAHABAD SERIES
finds no role of that particular person and
files a chargesheet without implicating him,
the court is not powerless, and may
exercise its jurisdiction to summon any
person as accused whose complicity has
been found in the offence on the basis of
material collected during investigation at
pre trial stage in exercise of powers under
Sections 190 and 193 Cr.P.C. as recognized
by the Apex Court in Dharam Pal and
Others Vs. State of Haryana and Another,
(2014) 3 SCC 306 (Constitution Bench)
and the trial court need not wait for
evidence to be recorded so that non
chargesheeted accused could be summoned
under Section 319 of Cr.P.C. Even on
commencement of trial and recording of
some evidence the court is empowered to
exercise its powers under Section 319
Cr.P.C. to summon any other person who
has not been chargesheeted by police
officer
after
investigation,
yet
his
complicity in the offence prima facie
established during trial, and as such the
newly added accused will be tried together
with the accused persons who are already
facing trial in the case.

28. Section 319 Cr.P.C. 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-

(5) (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."

29. The Hon'ble Supreme Court
in Constitutional Bench Judgment in
Hardeep Singh Vs. State of Punjab and
Others, (2014) 3 SCC 92 held as under:-

"55. Accordingly, we hold that
the court can exercise the power under
Section 319 Cr.P.C. only after the trial
proceeds
and
commences
with
the
recording of the evidence and also in
exceptional circumstances as explained
herein above."

85. In view of the discussion
made and the conclusion drawn herein
above, 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 utilized 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.

92. Thus, in view of the above, we
hold that power under Section 319 Cr.P.C.
3 All. Sanju & Ors. Vs. State of U.P. & Anr.
115
can be exercised at the stage of completion
of examination in chief and court 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.

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

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

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
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.

116. Thus, it is evident that power
under Section 319 Cr.P.C. can be exercised
against
a
person
not
subjected
to
investigation, or a person placed in the
Column 2 of the Charge-Sheet and against
whom cognizance had not been taken, or a
person who has been discharged. However,
concerning a person who has been
discharged,
no
proceedings
can
be
commenced against him directly under
Section 319 Cr.P.C. without taking recourse
to provisions of Section 300(5) read with
Section 398 Cr.P.C.
116 INDIAN LAW REPORTS ALLAHABAD SERIES

117.2.
Section
319
Cr.P.C.,
significantly, uses two expressions that
have to be taken note of i.e. (1) Inquiry (2)
Trial. As a trial commences after framing of
charge, an inquiry can only be understood
to be a pre-trial inquiry. Inquiries under
Sections 200, 201, 202 Cr.P.C.; and under
Section 398 Cr.P.C. are species of the
inquiry contemplated by Section 319
Cr.P.C. Materials coming before the Court
in course of such enquiries can be used for
corroboration of the evidence recorded in
the court after the trial commences, for the
exercise of power under Section 319
Cr.P.C., and also to add an accused whose
name has been shown in Column 2 of the
charge-sheet.

117.3. In view of the above
position the word 'evidence' in Section 319
Cr.P.C. has to be broadly understood and
not literally i.e. as evidence brought during
a trial.

The word evidence used in
Section 319 of Cr.P.C. has been used in a
comprehensive sense respondent does not
include the evidence collected during
investigation.

30. Inspite of above noted judgment,
issue did not come to rest, but again
cropped up for consideration in Brijendra
Singh (supra) wherein Court considered the
observations made in paragraphs 8, 12, 13,
19, 105 and 106 of Constitution Bench
judgment in Hardeep Singh (Supra) and
applying the ratio as mentioned in aforesaid
paragraphs
widened
the
scope
of
parameters
regarding
exercise
of
jurisdiction under section 319 Cr.P.C. In
this case, Court was examining the
summoning
of
a
non-charge-sheeted
accused in a Sessions Trial under Sections-
147, 148, 149, 323, 448, 302/149 I.P.C. and
Section- 3 and 3(2)(v) of the Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989. Court
went a step further. Having done so, Court
summed up as follows in paragraphs 13,
14, 15:-

"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 I.O. 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 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
3 All. Sanju & Ors. Vs. State of U.P. & Anr.
117
facie opinion which is to be formed
requires stronger evidence than mere
probability of his complicity.

14. When we translate the
aforesaid principles with their application
to the facts of this case, we gather an
impression that the trial court acted in a
casual and cavalier manner in passing the
summoning order against the appellants.
The appellants were named in the FIR.
Investigation was carried out by the
police. On the basis of material collected
during investigation, which has been
referred to by us above, the IO found that
these appellants were in Jaipur city when
the incident took place in Kanaur, at a
distance of 175 kms. The complainant and
others who supported the version in the
FIR regarding alleged presence of the
appellants at the place of incident had also
made statements under Section 161
Cr.P.C.
to
the
same
effect.
Notwithstanding the same, the police
investigation revealed that the statements
of these persons regarding the presence of
the appellants at the place of occurrence
was
doubtful
and
did
not
inspire
confidence, in view of the documentary
and other evidence collected during the
investigation, which depicted another
story
and
clinchingly
showed
that
appellants plea of alibi was correct.

15. This record was before the
trial court. Notwithstanding the same, the
trial court went by the deposition of
complainant and some other persons in
their examination-in-chief, with no other
material to support their so- called
verbal/ocular version. Thus, the 'evidence'
recorded during trial was nothing more
than the statements which was already
there under Section 161 Cr.P.C. recorded
at the time of investigation of the case. No
doubt, the trial court would be competent
to exercise its power even on the basis of
such statements recorded before it in
examination-in-chief. However, in a case
like the present where plethora of
evidence was collected by the IO during
investigation which suggested otherwise,
the trial court was at least duty bound to
look into the same while forming prima
facie opinion and to see as to whether
'much stronger evidence than mere
possibility
of
their
(i.e.
appellants)
complicity has come on record. There is
no satisfaction of this nature. Even if we
presume that the trial court was not
apprised of the same at the time when it
passed the order (as the appellants were
not on the scene at that time), what is
more troubling is that even when this
material
on
record
was
specifically
brought to the notice of the High Court in
the
Revision
Petition
filed
by
the
appellants, the High Court too blissfully
ignored
the
said
material.
Except
reproducing the discussion contained in
the order of the trial court and expressing
agreement therewith, nothing more has
been done. Such orders cannot stand
judicial scrutiny."

31. In Manjeet Singh (Supra), Court
was considering the correctness of an order
passed by High Court dismissing the
revision preferred against an order passed
by Sessions Judge allowing the application
under Section 319 Cr.P.C. filed in a case
under Sections 363, 366, 376 IPC and
Sections 3/4 Protection of Children From
Sexual Offences, (POCSO) Act, 2012
Court again examined the issue relating to
parameters for exercise of jurisdiction
under section 319 Cr.P.C. Court took notice
of the constitution Bench judgement in
Hardeep Singh (Supra) and S. Mohammed
Ispahani (Supra) and on basis of ratio laid
down therein evolved the ambit and scope
of powers of Court under section 319
118 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. in paragraphs 34 of judgement.
Having done so, Court examined the
testimony of P.W.1 Manjeet who is an
injured witness and on basis thereof tested
the veracity of orders passed by High Court
as well as trial court whereby summoning
of non charge sheeted accused was
declined. Hon'ble Supreme Court upon
evaluation of evidence on record disagreed
with the view taken by High Court as well
as trial court. Following disagreement was
expressed by court in paragraphs 34, 35,
36, 37 and 38 of the judgement:

"34. The ratio of the aforesaid
decisions on the scope and ambit of the
powers of the Court under Section 319
CrPC can be summarized as under:

(i) That while exercising the
powers under Section 319 CrPC and to
summon the persons not charge-sheeted,
the entire effort is not to allow the real
perpetrator of an offence to get away
unpunished;

(ii) for the empowerment of the
courts
to
ensure
that
the
criminal
administration of justice works properly;

(iii) the law has been properly
codified and modified by the legislature
under the CrPC indicating as to how the
courts should proceed to ultimately find out
the truth so that the innocent does not get
punished but at the same time, the guilty
are brought to book under the law;

(iv) to discharge duty of the court
to find out the real truth and to ensure that
the guilty does not go unpunished;

(v)
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;

(vi) Section 319 CrPC allows the
court to proceed against any person who is
not an accused in a case before it;

(vii) the court is the 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;

(viii) Section 319 CrPC is an
enabling provision empowering the court to
take appropriate steps for proceeding
against any person not being an accused
for also having committed the offence
under trial;