# Satish & Anr v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-21
- **Case number:** Application U/S 482 No. 2984 of 2020
- **Bench:** Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-anr-v-state-of-u-p-anr-45521
- **Pages:** 7

## Headnote

Law-Code
of
Criminal
Procedure,1973- Section 319- In order to
summon a person under Section 319 Cr.P.C., mere
taking of name is not sufficient but there must be
something more to show implication of person who
has been sought to be summoned.

In view of the law settled by the Hon'ble Supreme
Court, the degree of satisfaction required for
summoning an accused u/s 319 Cr.Pc is
more than that required at the time of
framing of Charge.

B.
Criminal
Law-Code
of
Criminal
Procedure,1973- Section 482- At the
stage of summoning of the applicants on
the basis of statements for trial, probable
defence of accused-applicants summoned
under Section 319 Cr.P.C. cannot be
examined for the first time under the
jurisdiction of 482 Cr.P.C. by this Court-

Defence of the accused can only be
appreciated
in
the
trial
by
leading
evidence.
Disputed
questions
of
fact
cannot be considered by the Court u/s 482
Cr.Pc.

On facts, It cannot be said that there is no
material whatsoever and also that on mere
probability of complicity the applicants
have been summoned , rather there is
appropriate
material
and
evidence
to
justify summoning of applicants under
Section 319 Cr.P.C. (Para 15, 16, 18)

Application u/s 482 rejected.

Case law discussed:-

## Text

2 All. Satish & Anr. Vs. State of U.P. & Anr.
1475

19. However, it is provided that if
the applicants appear and surrender
before the court below within 30 days
from today and apply for bail, then the
bail application of the applicant be
considered and decided expeditiously in
view of the settled law laid by Hon'ble
Supreme Court. For a period of 30 days
from today or till the disposal of the
application for grant of bail whichever is
earlier, no coercive action shall be taken
against the applicants. However, in case,
the applicants do not appear before the
Court below within the aforesaid period,
coercive action shall be taken against
them.

20. With the aforesaid directions,
this application is finally disposed of.
----------
(2020)02ILR A1475

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE
THE HON'BLE RAJENDRA KUMAR-IV, J.

Application U/S 482 No. 2984 of 2020

Satish & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Shishir Kumar Tiwari

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

A.
Criminal
Law-Code
of
Criminal
Procedure,1973- Section 319- In order to
summon a person under Section 319 Cr.P.C., mere
taking of name is not sufficient but there must be
something more to show implication of person who
has been sought to be summoned.

In view of the law settled by the Hon'ble Supreme
Court, the degree of satisfaction required for
summoning an accused u/s 319 Cr.Pc is
more than that required at the time of
framing of Charge.

B.
Criminal
Law-Code
of
Criminal
Procedure,1973- Section 482- At the
stage of summoning of the applicants on
the basis of statements for trial, probable
defence of accused-applicants summoned
under Section 319 Cr.P.C. cannot be
examined for the first time under the
jurisdiction of 482 Cr.P.C. by this Court-

Defence of the accused can only be
appreciated
in
the
trial
by
leading
evidence.
Disputed
questions
of
fact
cannot be considered by the Court u/s 482
Cr.Pc.

On facts, It cannot be said that there is no
material whatsoever and also that on mere
probability of complicity the applicants
have been summoned , rather there is
appropriate
material
and
evidence
to
justify summoning of applicants under
Section 319 Cr.P.C. (Para 15, 16, 18)

Application u/s 482 rejected.

Case law discussed:-

1. Anil Arya Vs. St. of U.P. & ors., Crl.
Rev. No. 1216 of 2005, decided on
09.09.2016

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

3. Dharam Pal & ors. Vs. St. of Har. &
anr. (2004) 13 SCC 9

4. Brijendra Singh & ors. Vs. State of
Raj. (2017) 7 SCC 706

5. Shiv Prakash Mishra Vs. St. of U.P &
ors. (2019) 7 SCC 806

6. Kailash Vs. St. of Raj. & anr. (2008) 14
SCC 51
1476 INDIAN LAW REPORTS ALLAHABAD SERIES
7. St. of Har. & Ors Vs. Bhajan Lal & ors.,
(1992) Supp. (1) SCC 335

(Delivered by Hon'ble Rajendra KumarIV, J.)

1. Heard Sri S. K. Tiwari, learned
counsel for applicants, learned AGA for
State and perused the material available on
record.

2.

Applicants
have
invoked
jurisdiction of this Court under Section
482 of the Code of Criminal Procedure,
1973 (hereinafter referred to as "Cr.P.C.")
challenging the order dated 07.09.2017,
passed by Additional District Judge (FTC1), Gautam Budh Nagar, in Sessions Trial
No. 377 of 2016, Crime No. 791 of 2015,
State v. Titu and Another, under Sections
307, 325, 323 IPC, Police Station
Surajpur, District Gautam Budh Nagar,
whereby applicants have been summoned
to face the trial under the aforesaid
Sections and the order has been passed on
the application under Section 319 Cr.P.C.

3. Learned counsel for applicants
submits that applicants have been falsely
implicated in the present case, they have
committed no offence and prosecution
story is false and fake. It has been further
submitted that although applicants are
named in the FIR but during investigation,
Investigating
Officer
collected
the
evidence and found no offence against the
applicant and submitted charge sheet
against other accused exonerating the
applicants;
Trial
Court
wrongly
appreciated and summoned the accused
invoking jurisdiction under Section 319
Cr.P.C. without proper application of
mind. It has been further submitted that
one day prior to this incident Informant
teased the wife of the applicant, for which,
applicants lodged an FIR against him in
the Police Station concerned, therefore, in
reaction thereof present FIR was lodged
against the applicants. It has been further
submitted
that
CCTV
footage,
involvement of applicants of commission
of crime was not found only they were
found standing there at the time of incident
on
the
spot
and
without
active
participation in the crime is not an offence.
He showed some documents and statement
in support of his contention.

4. Learned AGA opposed the
submission made by learned counsel for
applicant and submitted that PW-1 and 2
supported the prosecution case during trial
and on the application of PW-1 made
under Section 319 Cr.P.C., Trial Court
considered the evidence of PW-1 and 2
and rightly passed the impugned order.

5. Brief facts giving rise to present
case are that: -

PW-1, Pinki, lodged an FIR in
Police Station concerned stating that on
19.11.2015 at about 9:30 pm, his husband
was returning after his duty when he
reached at the gate of .. accused Satish,
Mukesh, Titu and Dinesh assaulted him
with their respective weapons. Satish and
Mukesh having Iron Rod while Titu was
having Lathi and knife, Dinesh was also
having Lathi. They were also assaulting
with fits and kicks. On hearing the alarm
raised by one Hakim, she reached on the
spot at once and saw that her husband
Surendra was lying on the earth and all
those four persons were assaulting him; his
husband received serious head injury; his
leg and hand was also fractured; she called
Police making phone to 100 number; her
husband
was
taken
to
Government
Hospital, NOIDA by Police for treatment
2 All. Satish & Anr. Vs. State of U.P. & Anr.
1477
where he was admitted and remained
about 10 days in the hospital. Matter was
investigated by Investigating Officer who
filed charge sheet against Titu and Dinesh
exonerating the present applicants.

During trial, PW-1 and 2 were
examined in the Court. PW-1 and 2
supported the prosecution case as narrated
in FIR and told the involvement of present
applicants in the commission of crime.

Informant, PW-1, moved an
application No. 22-B before the Trial
Court to summon the present accusedapplicants under Section 319 Cr.P.C.

6. PW-1, Pinki, in his statement that
on 19.11.2015, at about 9:30 pm, on
hearing the alarm made by one Hakim, she
reached at once on the spot and saw that
his husband was lying on the earth and all
the four persons namely Satish, Mukesh,
Titu and Dinesh were assaulting his
husband with their respective weapons;
her husband received serious injury in his
head and leg with fracture; her husband
was taken to hospital by Police where he
remained admitted in the hospital about 10
days. She lodged the FIR. PW-2, Surendra
Singh, injured, stated in his statement that
on 19.11.2015 at about 9:00 pm, when he
entered in the gate of Colony, Satish,
Mukesh, Titu and Dinesh assaulted him
with their respective weapon like iron rods
and knives causing serious injuries on his
head and other parts of the body. He was
admitted to Government Hospital, NOIDA
where he was medically treated. Report of
incident was lodged by his wife.

7. Court below has summoned the
applicants to face the trial under the
aforesaid Sections, vide impugned order,
relying on FIR as well as statement of PW1 and 2.

8. Section 319 of The Code Of
Criminal Procedure, 1973 reads as under
:-

"Section 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 a fresh,
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."

9. In Anil Arya v. State of U.P. and
Others, Criminal Revision No. 1216 of
2005, decided on 09.09.2016, this Court
held as under :-
1478 INDIAN LAW REPORTS ALLAHABAD SERIES

"Whether evidence is correct or
not or credible enough or not to sustain
conviction and punishment is a matter
which would be seen after revisionist put
in
appearance,
lead
evidence
and
thereafter Trial Court examine the entire
evidence and record its finding thereon,
but at the stage of summoning of
revisionist on the basis of aforesaid
statement in Trial under Section 319
Cr.P.C., the probable defence of accused
summoned under Section 319 Cr.P.C.
cannot be examined for the first time in a
revisional jurisdiction by this Court."

10. In Hardeep Singh Vs. State of
Punjab and others 2014 (3) SCC 92,
Court examined following five questions:

"(i) What is the stage at which
power under Section 319 Cr.P.C. can be
exercised?

(ii) Whether the word "evidence"
used in Section 319 (1) Cr.P.C. could only
mean
evidence
tested
by
crossexamination or the court can exercise the
power under the said provision even on the
basis of the statement made in the
examination-in-chief
of
the
witness
concerned?

(iii) Whether the word "evidence"
used in Section 319(1) Cr.P.C. has been used in
a comprehensive sense and includes the
evidence collected during investigation or the
word "evidence" is limited to the evidence
recorded during trial?

(iv) What is the nature of the
satisfaction required to invoke the power under
Section 319 Cr.P.C. to arraign an accused?
Whether the power under Section 319(1)
Cr.P.C. can be exercised only if the court is
satisfied that the accused summoned will in all
likelihood be convicted?

(v) Does the power under Section
319 Cr.P.C. extend to persons not named in the
FIR or named in the FIR but not charged or
who have been discharged?"

11. The aforesaid questions have been
answered in para 117 of judgment as under :-

Question Nos. (i) and (iii)

A. In Dharam Pal and Ors. v. State
of Haryana and Anr. 2004 (13) SCC 9, the
Constitution Bench has already held that after
committal, cognizance of an offence can be
taken against a person not named as an
accused but against whom materials are
available from the papers filed by the police
after completion of investigation. Such
cognizance can be taken under Section 193
Cr.P.C. and the Sessions Judge need not wait
till 'evidence' under Section 319 Cr.P.C.
becomes
available
for
summoning
an
additional accused.

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.

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.

Question No. (ii)

A. Considering the fact that
under Section 319 Cr.P.C. a person
against whom material is disclosed is only
2 All. Satish & Anr. Vs. State of U.P. & Anr.
1479
summoned to face the trial and in such an
event under Section 319(4) Cr.P.C. the
proceeding against such person is to
commence from the stage of taking of
cognizance, the Court need not wait for
the evidence against the accused proposed
to be summoned to be tested by crossexamination.

Question No. (iv)

A. Though under Section 319(4)(b)
Cr.P.C. the accused subsequently impleaded is
to be treated as if he had been an accused
when the Court initially took cognizance of the
offence, the degree of satisfaction that will be
required for summoning a person under
Section 319 Cr.P.C. would be the same as for
framing a charge. The difference in the degree
of satisfaction for summoning the original
accused and a subsequent accused is on
account of the fact that the trial may have
already commenced against the original
accused and it is in the course of such trial that
materials are disclosed against the newly
summoned accused. Fresh summoning of an
accused will result in delay of the trial
therefore the degree of satisfaction for
summoning
the
accused
(original
and
subsequent) has to be different.

Question No. (v)

A. A person not named in the FIR or
a person though named in the FIR but has not
been charge-sheeted or a person who has been
discharged can be summoned under Section
319 Cr.P.C. provided from the evidence it
appears that such person can be tried along
with the accused already facing trial. However,
insofar as an accused who has been
discharged is concerned the requirement of
Sections 300 and 398 Cr.P.C. has to be
complied with before he can be summoned
afresh.

12. The aforesaid judgment in fact lay
down very clearly that power under Section
319 Cr.P.C. can be exercised by Court against a
person not named in First Information Report
or no charge-sheet is filed by Police against
him and the accused can be summoned only
on the basis of examination-in-chief of witness
and need not wait for cross-examination etc.
With regard to degree of satisfaction of Court
for summoning the accused under Section 319
Cr.P.C, Court has said that test are same as
applicable for framing charge.

13. The above view was followed in
Brijendra Singh and others Vs. State of
Rajasthan (2017) 7 SCC 706 holding:

" ... since it is a discretionary
power given to the court Under Section
319 Code of Criminal Procedure and is
also an extraordinary one, same has to be
exercised sparingly and only in those
cases where the circumstances of the case
so warrant. The degree of satisfaction is
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. Recently in Shiv Prakash
Mishra Vs. State of Uttar Pradesh and
others (2019) 7 SCC 806, Court relying
on the above authorities as also Kailash
Vs. State of Rajasthan and another
(2008) 14 SCC 51, held as under:

"The standard of proof employed
for summoning a person as an Accused
person under Section 319 Code of
Criminal Procedure is higher than the
standard of proof employed for framing a
1480 INDIAN LAW REPORTS ALLAHABAD SERIES
charge against the Accused person. The
power Under Section 319 Code of
Criminal Procedure should be exercised
sparingly. As held in Kailash Vs. State of
Rajasthan and another (2008) 14 SCC 51,
"the power of summoning an additional
Accused Under Section 319 Code of
Criminal Procedure should be exercised
sparingly. The key words in Section are "it
appears
from
the
evidence"."any
person"."has committed any offence". It is
not, therefore, that merely because some
witnesses have mentioned the name of
such person or that there is some material
against that person, the discretion Under
Section 319 Code of Criminal Procedure
would be used by the court." (emphasis
added)

15. In view of above, it is clear that
in order to summon a person under Section
319 Cr.P.C., mere taking of name is not
sufficient but there must be something
more to show implication of person who
has been sought to be summoned.

16. Aforesaid statement of Informant
and Injured clearly show that applicants
and other co-accused were involved in the
commission of crime and they also
participated in Marpeet. Whether evidence
of witnesses is correct or not, credible
enough or not to sustain conviction, is a
matter
which
would be
seen
after
applicants
put
in
appearance,
lead
evidence and thereafter, Trial Court
examines the entire evidence and records
its finding thereon. At the stage of
summoning of the applicants on the basis
of aforesaid statements for trial, probable
defence of accused-applicants summoned
under Section 319 Cr.P.C. cannot be
examined for the first time under the
jurisdiction of 482 Cr.P.C. by this Court.

17. Facts of the present case does not
fall under any circumstances mentioned in
Para No. 102 of State of Haryana, and
Others v. Bhajan Lal and Others, 1992
Supp. (1) SCC 335 which reads as under
:-

"In
the
backdrop
of
the
interpretation
of
the
various
relevant
provisions of the Code under Chapter XIV and
of the principles of law enunciated by this
Court in a series of decisions relating to the
exercise of the extraordinary power under
Article 226 or the inherent powers under
Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the process
of any court or otherwise to secure the ends of
justice, though it may not be possible to lay
down any precise, clearly defined and
sufficiently
channelised
and
inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases
wherein such power should be exercised.

(1) Where the allegations made in
the first information report or the complaint,
even if they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.

(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of
the same do not disclose the commission of
2 All. Omkeshwar Nath Verma & Anr. Vs. State of U.P.
1481
any offence and make out a case against
the accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made
in the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accused.

(6) Where there is an express
legal bar engrafted in any of the
provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted)
to
the
institution
and
continuance of the proceedings and/or
where there is a specific provision in the
Code or the concerned Act, providing
efficacious redress for the grievance of the
aggrieved party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or
where
the
proceeding
is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due
to private and personal grudge."

18. Looking to the facts of this case and
in the light of exposition of law, as discussed
above, I find that here is not a case where mere
name of applicants has been taken but details
of incident have been given showing the
manner in which applicants have acted and
committed crime. Hence, it cannot be said that
there is no material whatsoever and also that
on mere probability of complicity they have
been summoned but there is appropriate
material and evidence to justify summoning of
applicants under Section 319 Cr.P.C. and I find
no manifest error in the order passed by Court
below.

19. The application lacks merit and is
accordingly dismissed.
----------
(2020)02ILR A1481

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2020

BEFORE
THE HON'BLE MANISH KUMAR, J.

Application U/S 482 No. 4526 of 2009

Omkeshwar Nath Verma & Anr.
 ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Sri Atul Mehra

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

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 190(1) -
Section
41/411-
Basis
of
applying
Section 420 of I.P.C. is that the applicants
have acted in contravention of Section 28A of the U.P. Trade Tax Act therefore the
person is liable to be penalised under
Section
15A(1)(o)
of
the
Act-
The
applicants had preferred a Sales/ Trade
Tax Revision u/s 11 of the Act before the
High Court, against the order of the
Tribunal whereby the order confirming the
penalty u/s 15 A (1)(o) of the Act was
confirmed, and since the said Revision was
allowed by the High Court, the allegations
against the applicants stood negated and
nothing remained for which they would be
made
liable
to
face
the
criminal
proceedings and no offence of cheating
can be said to be made out against the
applicants under Section 420 I.P.C.