# Smt. Khairunnisha Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 663
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-16
- **Case number:** Criminal Revision No. 3577 of 2023
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-khairunnisha-revisionist-v-state-of-u-p-anr-49387
- **Pages:** 16

## Headnote

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 323, 504, 506 & 302
- The Code of Criminal Procedure, 1973 -
Section 319 - Power to proceed against
other persons appearing to be guilty of
offence - "Judges condemned when guilty
is acquitted" - innocent should not be
punished, at the same time, real culprit
should not be allowed to escape -
Applicability /guidelines - for summoning
a person to face trial under Section 319
Cr.P.C.- discretionary and extra ordinary
power - should only be exercised sparingly
and in cases where the circumstances
warrant it, not because the Magistrate or
Sessions Judge believes another person
may be guilty - Only where strong and
cogent evidence occurs against the person
from the evidence led before the court
that such power should be exercised and
not in a casual or cavalier manner - test
under Section 319 - one which is more
than prima facie case as exercised at the
time of framing of the charge - but short
of satisfaction to an extent that the
evidence if goes unrebutted would lead to
conviction.
(Para -15, 16, 17, 36)

Revisionist indulged actively in murder of
deceased along with other co-accused persons -
an application made by informant under Section
319 Cr.P.C. - to face trial along with other two
co-accused -Trial judge summoned revisionist to
face trial - Whether recorded his prima facie
satisfaction - while passing impugned order
under Section 319 Cr.P.C.(Para - 8, 12, 37)

HELD:-Trial judge found that presence of
revisionist at the time and place of incident is
prima facie visible, as evidenced by the
statements of witnesses under Sections 161
Cr.P.C., P.W.-1 and P.W.2 in dock, and other
evidence.
Revisionist
has
been
rightly
summoned to face trial alongside other coaccused. No illegality or infirmity in the
impugned order. No interference by this
revisional Court under Section 397/401 Cr.P.C.
(Para - 37, 38)

Criminal Revision dismissed. (E-7)

LIST OF CASES CITED:-

## Text

_Characters 0–39,938 of 52,054. This is a partial read: ask again with offset=39938 for what follows._

11 All. Smt. Khairunnisha Vs. State of U.P. & Anr.
663
illegality, irregularity. Revision is devoid of
merit and deserves to be dismissed.

18. Revision stands dismissed,
accordingly.

19. Learned counsel for the applicant
submitted that in view of rejection of
discharge application by court below,
moved by applicant and filing of criminal
revision
before
this
Court,
present
application has lost its significance.

20. Consequently, Application u/s
482 Cr.P.C. also stands dismissed.
----------
(2023) 11 ILRA 663
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.10.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 3577 of 2023

Smt. Khairunnisha ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Bhuvnesh Kumar Singh

Counsel for the Respondents:
G.A.

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 323, 504, 506 & 302
- The Code of Criminal Procedure, 1973 -
Section 319 - Power to proceed against
other persons appearing to be guilty of
offence - "Judges condemned when guilty
is acquitted" - innocent should not be
punished, at the same time, real culprit
should not be allowed to escape -
Applicability /guidelines - for summoning
a person to face trial under Section 319
Cr.P.C.- discretionary and extra ordinary
power - should only be exercised sparingly
and in cases where the circumstances
warrant it, not because the Magistrate or
Sessions Judge believes another person
may be guilty - Only where strong and
cogent evidence occurs against the person
from the evidence led before the court
that such power should be exercised and
not in a casual or cavalier manner - test
under Section 319 - one which is more
than prima facie case as exercised at the
time of framing of the charge - but short
of satisfaction to an extent that the
evidence if goes unrebutted would lead to
conviction.
(Para -15, 16, 17, 36)

Revisionist indulged actively in murder of
deceased along with other co-accused persons -
an application made by informant under Section
319 Cr.P.C. - to face trial along with other two
co-accused -Trial judge summoned revisionist to
face trial - Whether recorded his prima facie
satisfaction - while passing impugned order
under Section 319 Cr.P.C.(Para - 8, 12, 37)

HELD:-Trial judge found that presence of
revisionist at the time and place of incident is
prima facie visible, as evidenced by the
statements of witnesses under Sections 161
Cr.P.C., P.W.-1 and P.W.2 in dock, and other
evidence.
Revisionist
has
been
rightly
summoned to face trial alongside other coaccused. No illegality or infirmity in the
impugned order. No interference by this
revisional Court under Section 397/401 Cr.P.C.
(Para - 37, 38)

Criminal Revision dismissed. (E-7)

LIST OF CASES CITED:-

1. Sukhpal Singh Khaira Vs St. of Punj., 2023
(1) SCC 289

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

3. Mohammad Espini Vs Yogendra Chandak &
ors., AIR 2017 SC 4804

4. Brijendra Singh & ors. Vs St. of Raj., (2017) 7
SCC 706
664 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Sugreev Kumar Vs St. of Punj. & Ant, 2020
14 SCC 472

6. Bholu Ram Vs St. of Punj. & anr. , (2008) 9
SCC 340

7. S. Mohd. Ispahani Vs Yogendra Chandak &
ors. , (2017) 16 SCC 226

8. Sandeep Kumar Vs The St. of Har. & anr. ,
2023 SCC OnLine SC 888

9. Manjeet Singh Vs St. of Har. & ors. , 2021
SCC OnLine SC 632

10. Sukhpal Singh Khaira Vs St. of Punj. ,
(2023) 1 SCC 289

11. Mohd. Shafi Vs Mohd. Rafiq & anr. , Appeal
(Crl.) No. 530 of 2007

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

Challenge to this revision

1. This criminal revision has been
preferred against order dated 19.05.2023
passed by learned Additional Sessions
Judge, Court No.2, Bijnor in Session Trial
No. 825 of 2020 (State Government Vs.
Mazid and others), arising out of Case
Crime No.71 of 2020, Police Station
Kiratpur,
District
Bijnor,
whereby
revisionist has been summoned under
section 319 Cr.P.C. to face trial in the
above stated case for offences under
sections 323, 504, 506, 302 I.P.C.

Genesis of the present case

2. Brief facts of the case as cropped
up from the records of the present criminal
revision are that on 18.4.2020, opposite
party no.2 namely, Musabbar lodged an
F.I.R. against the revisionist, her husband
and her son stating therein that rivalry of
her family was going on with the family of
one Mazid son of Jahid. Two days ago
Mazid and Jahid had threatened to kill
Danish. On 17.4.2020 at 5.30 P.M. when
Danish was going to Bhojpur to get
medicines, Mazid took Danish to his house
where his mother and father also came and
surrounded him. With the intention to kill
Danish, Mazid hit Danish with Tabal on his
head. Jahid had beaten Danish with a stick
and
his
wife
Khairunnisha
(present
revisionist) pushed Danish due to which he
fell on the ground unconsciously. Majid,
Jahid and Khairunnish (revisionist) were
abusing, beating and threatening to kill
Danish. After some time Danish was done
to death due to the injuries sustained by
him by the accused persons.

The case of the revisionist

3. The revisionist and opposite party
no.2 are resident of same village and a
strong political rivalry is going on between
their
families
since
long.
The
first
informant has malafide intention against
the revisionist and her family. Due to the
aforesaid reason, the first informant lodged
a first information report on 18.4.2020
against the revisionist, her husband and her
son under Section 323, 504, 506, 308 I.P.C.
Initially the first information report was
lodged under section 323, 308, 504, 506
I.P.C. but during the treatment when the
injured Danish has done to death, after that
Section 302 I.P.C. was added in the present
offence. Though the revisionist was named
in the F.I.R. but during investigation her
involvement was not found and thus, no
charge-sheet was filed against her.

4. Further it is the case of the
revisionist that PW 1 and PW 2 are
interested witnesses in the present offence
and are real brothers, therefore, they have
given totally false statement before the
11 All. Smt. Khairunnisha Vs. State of U.P. & Anr.
665
court below only for making false case
against the revisionist and other accused
persons. The statements made by the
witnesses that revisionist had pushed
Danish are false and baseless and that
revisionist is being falsely implicated just
to create undue pressure and that no prima
facie case for summoning the revisionist is
made out and therefore, the order impugned
is liable to be quashed by this Court.

5. Submission of the learned
counsel for the revisionist

(I)
The
learned
Additional
Session Judge has mechanically summoned
to the revisionist only on the basis of prima
facie case while the settled law clearly
provides that for exercising the powers
under section 319 Cr.P.C., the additional
accused can be summoned on the basis of
strong evidence more than prima facie case
but in the present matter, the Additional
Sessions Judge did not follow the settled
principle of law, therefore, the impugned
order is absolutely illegal.

(II) The Hon'ble Apex court as
well as this Court have categorically held in
the series of judicial precedents that the
categorical conclusion of investigating
agency should not be disbelieved by the
trial court at the time of exercising powers
under section 319 Cr.P.C. out in the present
matter the learned Additional Session
Judge has not considered the view of the
Hon'ble Apex Court and mechanically
summoned to the revisionist without
appreciating conclusion of investigating
agency and by doing so, the leaned
Additional Session Judge has committed
manifest error of law.

(III) The revisionist is innocent
and she has neither committed any offence
under section 302, 323, 504, 506 LP.C. nor
any offence under section 302, 323, 504,
506 I.P.C. is made out against the
revisionist.

(IV) The revisionist has neither
assaulted to the deceased in any manner nor
she was involved in the alleged offence,
therefore, no offence under section 302,
323, 504, 506 I.P.C. is made out against the
revisionist.

(V) The revisionist is old lady
and she is suffering from abdominal and
kidney disease. A photocopy of medical
prescription report of the revisionist is
being annexed herewith and marked as
Annexure No.10 to this affidavit.

(VI) The learned trial judge has
passed the impugned order clearly against
the
provisions
of
law
and
without
application of his judicial mind.

On the cumulative strength of the
aforesaid,
learned
counsel
for
the
revisionist submits that the order impugned
cannot be legally sustained and is liable to
be dismissed.

6. Per contra, learned counsel for
opposite party no.2 and the learned A.G.A.
for the State have disputed the submissions
made by the learned counsel for the
revisionists by contending that there is no
illegality or infirmity in the order passed by
the trial judge summoning the revisionist
under Section 319 Cr.P.C. for facing trial in
the case in hand.

7. Learned A.G.A. further submits
that the proposition of exercising the power
under
Section
319
Cr.P.C.
before
conclusion of trial or before pronouncing
the sentence has been justified and upheld
666 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Constitutional Bench of the Hon'ble
Supreme Court in the case of Sukhpal
Singh Khaira Vs State of Punjab reported
in 2023 (1) SCC 289.

8. Learned A.G.A. then submits that
the material/evidence on record against the
revisionist was found to be more than
prima facie to show that the revisionist
indulged actively in the murder of the
deceased Danish along with other coaccused persons, namely Majid and Zahir.

9. Learned A.G.A. then submits that
the trial judge, while passing the impugned
order, has taken all the precautions and did
not hurriedly summon the revisionist
exercising its powers under Section 319
Cr.P.C. While summoning the revisionist
the trial Judge has followed all the
precautions and guidelines as framed by the
Apex Court in the case of Hardeep Singh
Vs. State of Punjab, reported in (2014) 3
SCC 92.

10. The learned A.G.A. contends that
there is ample material on record collected
during the investigation as well as during
the trial against the revisionist which goes
to show that she was actively involved in
the commission of the alleged offence i.e.
murder of the deceased Danish. The trial
Judge has rightly considered the entire
material collected during the course of
investigation as well as the material
brought on record during the trial and
thereafter finding that there was more than
prima facie case against the revisionist,
summoned her by exercising the power
under section 319 Cr.P.C.

11. This Court has considered the
submissions made by the learned counsel
for the parties and gone through the records
of the present criminal revision specifically
the order impugned.

LEGAL ISSUES

12. The legal issue, which is cropped
up for consideration before this Court :

"Whether the trial judge has
recorded his prima facie satisfaction for
summoning the revisionist to face trial
while passing the impugned order under
Section 319 Cr.P.C.?"

13. Before considering the first issue,
it is necessary for this Court to reproduce
Section 319 Cr.P.C., which is being quoted
herein below:

"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.
11 All. Smt. Khairunnisha Vs. State of U.P. & Anr.
667

(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."

EXPLANATION OF SECTION 319
CR.P.C.

14. From bare reading of Section 319
Cr.P.C. this Court is of the view that the
language used in Sec. 319 Cr.P.C. is plain,
simple and unambiguous. However, there
are some grey areas which sometimes
deviate the Court for the established
principles of law.

15. Before going to analyze Section
319 Cr.P.C., it would be necessary to
understand the principles highlighting the
Section and the nature of power vested with
the Court including the court of sessions.
Section 319 Cr.P.C. springs out of the
doctrine "Judges condemned when guilty is
acquitted". This doctrine must be used as
beacon light while explaining the ambit and
spirit underlying the enactment of Section
319 Cr.P.C. It is also based on the principle
that innocent should not be punished, at the
same time, real culprit should not be
allowed to escape.

16. The power under Section 319
Cr.P.C. is the really an extraordinary power
which is conferred upon the court and it
should be used sparingly only if compelling
reasons/circumstances exist for taking
cognizance against other person against
whom action has not been taken. Section
319 Cr.P.C. is a special provision and it
seeks to meet an extraordinary situation. It
although confers of vide amplitude but is
required to be exercised sparingly.

17. Power under Section 319 Cr.P.C..
is a discretionary and an extra ordinary
power which 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 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 the
person from the evidence led before the
court that such power should be exercised
and not in a casual or cavalier manner.

18. A scrutiny of Section 319 Cr.P.C..
would show the Section has four parts from
sub-Sections (1) to (4). The first part deals
about when and how the power under the
section can be exercised. The second part
speaks about how to secure the presence of
the newly added accused, if he is not
attending the court. The third part depicts
how the presence of the newly added
accused can be secured if he is not
attending the court. The fourth part
speaks about how the court should
proceed and try against the said
accused.

19.

Section
319
Cr.P.C.
empowers only to the ' court' proceeds
against such person. The word court
includes court of Sessions (Sec.9
Cr.P.C.), Court of Judicial Magistrate
(11
Cr.P.C.)
and
Court
of
Metropolitan Magistrate (16 Cr.P.C.).
[Ref.: Hardeep Singh (Supra)].
668 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Power under section 319 of the
code can be exercised by the court suo
moto or on an application by someone
including accused already before it, if it is
satisfied that any person other than an
accused has committed an offence and he is
to be tried together with the accused.

21. 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 necessarily
not to be an accused already facing trial.
The very purpose invoking Section 319(1)
Cr.P.C. clearly shows that even persons
who have been dropped by police during
investigation, but against whom evidence
showing their involvement of the offence
comes before the court are included in the
expression 'any person not being accused'.

22. If a person had not been charge-
sheeted he may come within the purview of
the description of such a person has
contained in Section 319 Cr.P.C. of the
Court. Although, he is not named in the
charge sheet or he has been discharged
from the case, which would warrant in
prosecution thereafter with a good chance
of his conviction. However, concerning a
person who has been discharged no
proceedings can be commenced against
him directly under Section 319 Cr.P.C.
without recourse to provision of Section
300(5) read with Section 398 Cr.P.C. A
person not named in FIR and not charge
sheeted can be summoned under Section
319 Cr.P.C. Even though, any person
initially be named in the FIR as an accused,
but not charge sheeted can also be added to
face trial. Where a person was not
summoned by the Magistrate under Section
204 Cr.P.C. but his name surfaced in the
statement recorded under Section 244
Cr.P.C. a person can be summoned as
accused under Section 319 Cr.P.C. Power
under Section 319 Cr.PC can be exercised
against the person not to subjected to
investigation or a person placed in column
2 of charge sheet against whom cognizance
had not been taken or a person who has
been discharged. The accused against
whom proceeding has been quashed can
also be added under Section 319 Cr.P.C.

FINDINGS RECORDED BY THE
TRIAL COURT

23. This Court now comes to the
legality
or
otherwise
of
the
order
impugned. The court below by means of
the order impugned has recorded relevant
facts for coming to the conclusion to
summon the revisionist to face trial under
Section 319 Cr.P.C. that heard and
examined the records in light of Section
319 Cr.P.C. on the the application given by
the informant. As per the First Information
Report dated 18-04-2020, the prosecution
story is that the informant and the
informant's family were having a rivalry
with the family of Majid, son of Zahir. Two
days ago, Majid and his father Zaheer had
threatened to kill Danish. On 17-04-2020 at
5:30 pm, when Danish was going to
Bhojpur
to
get
medicines,
Majid
surrounded Danish in front of his house, his
parents also came, Majid threatened to kill
Danish. With intention to kill, Zahir beat
Danish with a stick and the revisionist
pushed Danish, then Danish became
unconscious and fell on the ground. Majid
and Zahir and the revisionist were beating
and abusing and threatening to kill Danish.
The incident was witnessed by the
informant, Afzal and Qayyum. Thereafter
the informant went to the police station
along with injured Danish. Danish was
referred from Kiratpur Hospital to Bijnor
11 All. Smt. Khairunnisha Vs. State of U.P. & Anr.
669
and after that he was referred from Bijnor
to Meerut. The condition of Danish was
serious and he was admitted in Meerut. On
the basis of the above written complaint,
the said FIR was registered on 18-04-2020
at 14:05 p.m. against Majid, Zaheer and the
revisionist
under
Sections
323,
504,
506,308 I.P.C. Thereafter, on behalf of the
informant, another complaint was given
alleging therein that on 17-04-2020 at
around
5:30
pm,
Majid,
Zahir and
revisionist Khairunisha had beaten Danish
brutally by Tabal, sticks and lathi with the
intention to kill him due to which he
seriously
sustained
injuries
and
in
connection
with
which
a
case
was
registered at the police station and for his
proper treatment he got treated by the
Doctor of District Hospital Bijnor, who
referred him to Meerut and during
treatment he has been done to death on
20th April, 2020 at 09:15 a.m. After
conclusion of the investigation in the
present case, the charge sheet under
Sections 323, 504, 506, 302 of the Indian
Penal Code has been submitted before the
concerned Court on 08.06.2020 by the
investigating Officer against the accused
Majid and Zaheer.

24. The trial judge has further
recorded that the witness PW-1 Musabbar
(plaintiff) has stated in his examination-inchief that at the corner of the east of the
house of Majid, he, Zahir and the
revisionist intercepted Danish and Majid hit
Danish by Tabal on his head with intention
to kill him and due to push of the
revisionist, Danish fell down from the
motorcycle and he became unconscious.
P.W.-1 has further stated that Danish died
during treatment. Witness PW-2 Muzaffar
has stated in his examination-in-chief that
"Majid hit Danish on his head by Tabal
with an intention to kill him and the
accused Zahir and the revisionist hit Danish
by sticks and also the revisionist pushed
Danish due to which he fell down and
became unconscious. It was further stated
that he died during treatment.

25. The trial judge has further
recorded that in the same context, the case
diary was also observed by the court and
from the perusal of the First Information
Report, the name of the proposed accused
Kherunisha is being shown. In this
perspective, the statements of witnesses
recorded under Section 161 CrPC were
examined. The informant Musabbar has
supported the prosecution's case under
Section 161 CrPC in his statement. Apart
from
the
above,
the
statements
of
independent
witnesses,
namely,
Kallu
Singh and Yakub recorded under Section
161 Cr.P.C. were examined. Independent
witness, namely, Kallu Singh has stated in
his statement that after hearing the
noise/scream, he along with other people
reached the spot of fight to intervene and
saw that blood was flowing from the head
of Danish and father of Majid, namely,
Zahir was standing there with a stick and
the Majid had a Tabal.

26. On the basis of statements of
independent witnesses and eye-witnesses
and
other
collected
evidence,
the
Investigating Officer has found that the
implication of the revisionist in the present
case is wrong and he has not submitted the
charge-sheet against her, whereas she was
named in the First Information Report. On
the basis of the aforesaid fact, the trial
judge was of the view that from perusal of
the statements of prosecution witnesses,
namely, P.W. 1 Musabbar (informant) and
P.W. 2 Muzaffar) and from the overall
observation of the above case, the presence
of the proposed accused-revisionist at the
670 INDIAN LAW REPORTS ALLAHABAD SERIES
place of incident and her prima facie
involvement in the crime are being shown.

27. The trial judge has also
considered and highlighted the law settled
by the Apex Court qua applicability of
Section 319 Cr.P.C. The trial judge has
referred the Constitution Bench judgment
of the Apex Court in the case of Hardeep
Singh (Supra), other judgment in the case
of Mohammad Espini Banan Yogendra
Chandak
and
others
Supreme
Court
reported in AIR 2017 SC 4804. The trial
judge has also referred the judgements of
the Apex Court in the case of Brijendra
Singh & Ors vs. State of Rajasthan reported
in (2017) 7 SCC 706 and in the case of
Sugreev Kumar v. State of Punjab. & Ant, (
reported in 2020) 14 SCC 472.

28. After referred the aforesaid law
settled by the Apex Court, the trial judge
has opined that from the evidence produced
by the prosecution and perusal of the First
Information Report, it is found from the
application filed by by the informant being
paper no. Kha-5 and the entire evidence
available on record that the presence of
accused-revisionist at the spot and her
involvement along with the main accused
Majid and Zaheer in causing injury to the
deceased Danish by pushing him from
motorcycle is prima facie visible. No such
oral or documentary evidence has been
brought on record by the investigator to
prove that the accused revisionist was not
present at the spot when the incident took
place but was present somewhere else.
Because it is clear from the entire evidence
that she was present at the spot and was
helping in committing the incident. It has
not been explained by the investigator why
her name was exonerated while filing the
charge-sheet.

29. On the basis of aforesaid finding,
the trial judge has come to the conclusion
that
the
evidence
produced
by
the
prosecution at this stage does not support
the case of the proposed accused i.e.
revisionist and in the present case there
appears to be involvement beyond the
prima facie level. In such a situation, in the
opinion of the court, it would be justified to
summon the proposed accused revisionist
Khairunisha for trial. The application of the
prosecution under Section 319 Code of
Criminal Procedure being paper No. 5-B is
acceptable in the interest of justice. It is
against this order that the present criminal
revision has been filed.

CASE LAWS ON THE SUBJECT

30. For arriving at a conclusion to
question framed by this Court herein above,
it is important for this Court to refer certain
case laws as settled by the Apex Court.
The Apex Court in the case of Bholu
Ram Vs. State of Punjab & Another
reported in (2008) 9 SCC 340 has
opined as follows:

"58. In our considered opinion,
the Revisional Court was not justified in
entering into correctness or otherwise of
the evidence at the stage of issuance of
summons to respondent No.2. Admittedly,
the Judicial Magistrate had considered a
limited question whether on the basis of
evidence of prosecution witnesses, prima
facie offence had been made out against
respondent No.2. He was, on the basis of
such evidence, was satisfied that the case
was required to be gone into and issued a
summons. To us, the Revisional Court was
not right in interfering with that order.
Hence, even on that ground, the order was
not in accordance with law."
11 All. Smt. Khairunnisha Vs. State of U.P. & Anr.
671

31. In the case of S. Mohammed
Ispahani Vs. Yogendra Chandak &
Others reported in (2017) 16 SCC 226 the
Apex Court has held as follows:

"33) As against the above, the
High Court, in the impugned judgment, has
been influenced by the fact that names of
the appellants were mentioned in the FIR
and even in the statement of witnesses
recorded under Section 161 of the Cr.P.C.
these appellants were named and such
statements under Section 161 Cr.P.C.
would constitute 'documents'. In this
context, the High Court has observed that
'evidence' within the meaning of Section
319 Cr.P.C. would include the aforesaid
statements and, therefore, the appellants
could be summoned.

34) The aforesaid reasons given
by the High Court do not stand the judicial
scrutiny. The High Court has not dealt with
the subject matter properly and even in the
absence of strong and cogent evidence
against the appellant, it has set aside the
order of the Chief Metropolitan Magistrate
and exercised its discretion in summoning
the appellants as accused persons. No
doubt, at one place the Constitution Bench
observed in Hardeep Singh's case that the
word 'evidence' has to be understood in its
wider sense, both at the stage of trial and
even at the stage of inquiry. In paragraph
105 of the judgment, Criminal Appeal No.
1720 of 2017 & Ors.

however, it is observed that '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. This sentence gives an impression
that only that evidence which has been led
before the Court is to be seen and not the
evidence which was collected at the stage
of
inquiry.
However
there
is
no
contradiction between the two observations
as the Court also clarified that the
'evidence', on the basis of which an
accused is to be summoned to face the trial
in an ongoing case, has to be the material
that is brought before the Court during
trial. The material/evidence collected by
the investigating officer at the stage of
inquiry
can
only
be
utilised
for
corroboration and to support the evidence
recorded by the Court to invoke the power
under Section 319 Cr.P.C.

35) It needs to be highlighted that
when a person is named in the FIR by the
complainant,
but
Police,
after
investigation, finds
no
role
of
that
particular person and files the charge sheet
without implicating him, the Court is not
powerless, and at the stage of summoning,
if the trial court finds that a particular
person should be summoned as accused,
even though not named in the charge sheet,
it can do so. At that stage, chance is
given to the Criminal Appeal No. 1720
of 2017 & Ors.

complainant also to file a
protest petition urging upon the trial
court to summon other persons as well
who were named in the FIR but not
implicated in the charge sheet. Once
that stage has gone, the Court is still
not powerless by virtue of Section 319
of the Cr.P.C. However, this section
gets triggered when during the trial
some evidence surfaces against the
proposed accused."

32. Again the Apex Court in the case
of Sandeep Kumar Vs. The State of
Haryana & Another reported in 2023
SCC OnLine SC 888 has opined as follows:
672 INDIAN LAW REPORTS ALLAHABAD SERIES

"12.The
entire
purpose
of
criminal trial is to go to the truth of the
matter. Once there is satisfaction of the
Court that there is evidence before it that
an accused has committed an offence, the
court can proceed against such a person.
At the stage of summoning an accused,
there has to be a prima facie satisfaction of
the Court. The evidence which was there
before the Court was of an eye witness who
has clearly stated before the Court that a
crime has been committed, inter alia, by the
revisionist. The Court need not crossexamine this witness. It can stop the trial at
that stage itself if such application had
been moved under Section 319. The detail
examination of the witness and other
witnesses is a subject matter of the trial
which has to begin afresh. The scope and
ambit of Section 319 CrPC has been
discussed and dealt with in detail in the
Constitution Bench judgment of Hardeep
Singh Vs. State of Punjab & Others
reported in (2014) 3 SCC 92 where it said:

"13. Section 319 CrPC springs
out of the doctrine judex damnatur cum
nocens absolvitur (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. PC.

14. 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."

33. In the case of Manjeet Singh Vs.
State of Haryana & Others reported in
2021 SCC OnLine SC 632 the Apex Court
has observed as follows:

"13. 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
11 All. Smt. Khairunnisha Vs. State of U.P. & Anr.
673
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;

(ix) the power under Section 319
(1) CrPC can be exercised at any stage
after the charge-sheet is filed and before
the pronouncement of judgment, except
during the stage of Sections 207/208 CrPC,
committal, etc. which is only a pre- trial
stage intended to put the process into
motion;

(x) the court can exercise the
power under Section 319 CrPC only after
the trial proceeds and commences with the
recording of the evidence;

(xi) the word "evidence" in Section
319 CrPC means only such evidence as is made
before the court, in relation to statements, and
as produced before the court, in relation to
documents;

(xii) it is only such evidence that can
be taken into account by the Magistrate or the
court to decide whether the power under
Section 319 CrPC is to be exercised and not on
the basis of material collected during the
investigation;

(xiii) if the Magistrate/court is
convinced even on the basis of evidence
appearing in examination-in-chief, it can
exercise the power under Section 319 CrPC
and can proceed against such other person(s);

(xiv) that the Magistrate/court is
convinced even on the basis of evidence
appearing in examination-in-chief, powers
under Section 319 CrPC can be exercised;

(xv) that power under Section 319
CrPC can be exercised even at the stage of
completion of examination-in-chief and the
court need not has to wait till the said evidence
is tested on cross-examination;

(xvi) even in a case where the stage
of giving opportunity to the complainant to file
a protest petition urging upon the trial court to
summon other persons as well who were named
in FIR but not implicated in the charge-sheet
has gone, in that case also, the Court is still not
powerless by virtue of Section 319 CrPC and
even those persons named in FIR but not
implicated in the charge-sheet can be
summoned to face the trial, provided during the
trial some evidence surfaces against the
proposed accused (may be in the form of
examination-in-chief
of
the
prosecution
witnesses);

(xvii) while exercising the powers
under Section 319 CrPC the Court is not
required and/or justified in appreciating the
deposition/evidence
of
the
prosecution
witnesses on merits which is required to be
done during the trial."

34. The Constitution Bench of Five
Judges' of this Court in the case of
Hardeep Singh (Supra), has observed as
follows:

"93
Section
319
Cr.P.C.
empowers the court to proceed against
other persons who appear to be guilty of
offence, though not an accused before the
court.

The word "appear" means "clear
to the comprehension", or a phrase near
to, if not synonymous with "proved". It
674 INDIAN LAW REPORTS ALLAHABAD SERIES
imparts a lesser degree of probability than
proof.

94. In Pyare Lal Bhargava Vs.
The State of Rajasthan, AIR 1963 SC 1094,
a four-Judge Bench of this Court was
concerned with the meaning of the word
'appear'.
The
court
held
that
the
appropriate meaning of the word 'appears'
is 'seems'. It imports a lesser degree of
probability than proof. In Ram Singh &
Ors. Vs. Ram Niwas & Anr., (2009) 14
SCC 25, a two-Judge Bench of this
Court was again required to examine
the importance of the word 'appear' as
appearing in the Section. The Court
held that for the fulfillment of the
condition that it appears to the court
that a person had committed an offence,
the court must satisfy itself about the
existence
of
an
exceptional
circumstance enabling it to exercise an
extraordinary jurisdiction. What is,
therefore, necessary for the court is to
arrive
at
a
satisfaction
that
the
evidence adduced on behalf of the
prosecution, if unrebutted, may lead to
conviction of the persons sought to be
added as an accused in the case.

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
Cr.P.C., 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 Vs. State of
Rajasthan, 2013 (11) SCALE 23, 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.

96. In Rajendra Singh (Supra),
the Court observed:

"Be it noted, the court need not
be satisfied that he has committed an
offence. It need only appear to it that he
has committed an offence. In other words,
from the evidence it need only appear to it
that someone else has committed an
offence, to exercise jurisdiction under
Section 319 of the Code. Even then, it has a
discretion not to proceed, since the
expression used is "may" and not "shall".
The legislature apparently wanted to leave
that discretion to the trial court so as to
enable it to exercise its jurisdiction under
this section. The expression "appears"
indicates an application of mind by the
court to the evidence that has come before
it and then taking a decision to proceed
under Section 319 of the Code or not."

97. In Mohd. Shafi (Supra), this
Court held that it is evident that before a
court
exercises
its
discretionary
jurisdiction in terms of Section 319
Cr.P.C., it must arrive at a satisfaction that
there exists a possibility that the accused so
summoned in all likelihood would be
convicted.

98. In Sarabjit Singh & Anr. Vs.
State of Punjab & Anr. , AIR 2009 SC
2792, while explaining the scope of Section
319 Cr.P.C., a two-Judge Bench of this
Court observed:

"....For
the
aforementioned
purpose, the courts are required to apply
stringent tests; one of the tests being
whether evidence on record is such which
would reasonably lead to conviction of the
11 All. Smt. Khairunnisha Vs. State of U.P. & Anr.
675
person
sought
to
be
summoned......Whereas the test of prima
facie case may be sufficient for taking
cognizance of an offence at the stage of
framing of charge, the court must be
satisfied
that
there
exists
a
strong
suspicion. While framing charge in terms of
Section 227 of the Code, the court must
consider the entire materials on record to
form an opinion that the evidence if
unrebutted would lead to a judgment of
conviction. Whether a higher standard be
set up for the purpose of invoking the
jurisdiction under Section 319 of the Code
is the question. The answer to these
questions should be rendered in the
affirmative. Unless a higher standard for
the purpose of forming an opinion to
summon a person as an additional accused
is laid down, the ingredients thereof viz. (i)
an extraordinary case, and (ii) a case for
sparingly
(sic
sparing)
exercise
of
jurisdiction, would not be satisfied."
(Emphasis added)

99. In Brindaban Das & Ors. Vs.
State of West Bengal, AIR 2009 SC 1248, a
two-Judge Bench of this Court took a
similar view observing that the court is
required to consider whether such
evidence would be sufficient to convict
the person being summoned. Since
issuance of summons under Section 319
Cr.P.C. entails a de novo trial and a
large number of witnesses may have
been examined and their re-examination
could prejudice the prosecution and
delay the trial, the trial court has to
exercise such discretion with great care
and perspicacity.

A similar view has been reiterated
by
this
Court
in
Michel
Machado & Anr. Vs. Central Bureau of
Investigation & Ors. , AIR 2000 SC 1127.

100.