# Smt. Rekha & Ors v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-07
- **Case number:** Application U/S 482 No. 418 of 2008
- **Bench:** Manoj Baja
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rekha-ors-v-state-of-u-p-ors-52897
- **Pages:** 6

## Headnote

Law
-
Summoning
of
Additional Accused - Indian Penal Code,
1860 - Sections 147, 302 & 406 - Code of
Criminal Procedure, 1973 - Section 319 -
Power to proceed against other persons
appearing to be guilty of offence - Degree
of satisfaction required for invoking the
power
under
Section
319
Cr.P.C.
-
discretionary and an extraordinary power
- to be exercised sparingly and only in
those cases where the circumstances of
the case so warrant - 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. (Para
-12,14,15)
(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 319 - Process
under Section 319 Cr.P.C. cannot be
issued by the trial court in a casual
manner - Court has to consider substance
of the evidence, which has come before it
- Test to apply - "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."
(Para - 14)
Applicants aggrieved by impugned order - trial
court summoned them as additional accused
under Section 319 Cr.P.C. - case arose from an
FIR registered on the complaint PW-1 - alleging
that his son was administered poison on
14.07.2000, leading to his death - initially
applicants were declared innocent - based on
testimony of prosecution witnesses during trial -
an application under Section 319 Cr.P.C. was
filed - leading to impugned order summoning
applicants - hence this application.(Para - 1 to
5)
HELD: - Trial court erred in summoning the
applicants as additional accused without strong
and cogent evidence. Impugned order suffers
from grave illegality and impropriety and
warrants
interference
by
Court.
Petition
succeeds.

Impugned
order
set
aside.
1 All. Smt. Rekha & Ors. Vs. State of U.P. & Ors.
571
Application under Section 319 Cr.P.C. dismissed.
(Para - 15,16)

Petition allowed. (E-7)

List of Cases cited:

## Text

570 INDIAN LAW REPORTS ALLAHABAD SERIES

17. I have considered the submission
advanced by learned counsel for the
parties at length and I am of the opinion
that the Board of Revenue has committed
manifest error of law in passing the
impugned order. The Board of Revenue
has not taken care of the record placed
before it while making reference by the
Additional
Commissioner,
Faizabad
Division
Faizabad,
therefore,
the
impugned order is hereby set aside.

18. The writ petition succeeds and is
allowed.

19. The Board of Revenue is directed
to pass a fresh order after going through the
documents laid before it alongwith the
record in reference within a period of four
months from the date of production of a
certified copy of the order.

20. It is however made clear that the
record of the trial court, if not before the
Board of Revenue, it shall be summoned
from the trial court for perusal of the
record.
----------
(2025) 1 ILRA 570
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.01.2025

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Application U/S 482 No. 418 of 2008

Smt. Rekha & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicants:
Tung Nath Tewari, Ravindra Bajpai

Counsel for the Respondents:
Govt. Advocate, R.C. Gupta, S. Misra

(A)
Criminal
Law
-
Summoning
of
Additional Accused - Indian Penal Code,
1860 - Sections 147, 302 & 406 - Code of
Criminal Procedure, 1973 - Section 319 -
Power to proceed against other persons
appearing to be guilty of offence - Degree
of satisfaction required for invoking the
power
under
Section
319
Cr.P.C.
-
discretionary and an extraordinary power
- to be exercised sparingly and only in
those cases where the circumstances of
the case so warrant - 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. (Para
-12,14,15)
(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 319 - Process
under Section 319 Cr.P.C. cannot be
issued by the trial court in a casual
manner - Court has to consider substance
of the evidence, which has come before it
- Test to apply - "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."
(Para - 14)
Applicants aggrieved by impugned order - trial
court summoned them as additional accused
under Section 319 Cr.P.C. - case arose from an
FIR registered on the complaint PW-1 - alleging
that his son was administered poison on
14.07.2000, leading to his death - initially
applicants were declared innocent - based on
testimony of prosecution witnesses during trial -
an application under Section 319 Cr.P.C. was
filed - leading to impugned order summoning
applicants - hence this application.(Para - 1 to
5)
HELD: - Trial court erred in summoning the
applicants as additional accused without strong
and cogent evidence. Impugned order suffers
from grave illegality and impropriety and
warrants
interference
by
Court.
Petition
succeeds.

Impugned
order
set
aside.
1 All. Smt. Rekha & Ors. Vs. State of U.P. & Ors.
571
Application under Section 319 Cr.P.C. dismissed.
(Para - 15,16)

Petition allowed. (E-7)

List of Cases cited:

1. Hardeep Singh Vs St. of Punj. & ors. , (2014)
3 SCC 92
2. Labhuji Amratji Thakor & ors. Vs St. of Guj. &
anr. , (2019) 12 SCC 644

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

1. Applicants-Accused are aggrieved
against the order dated 14th September,
2007 passed by Additional Sessions Judge,
Court No. 1, Lakhimpur Kheri in Sessions
Trial No. 659 of 2004; titled State vs. Ram
Narain alias Sukhdeo and others, arising
out of Case Crime No. C-3 of 2001, under
Sections 147, 302, 406 IPC, Police Station
Gola, District Lakhimpur Kheri, whereby
the trial court has summoned them as an
additional
accused
by
exercising
jurisdiction under Section 319 Code of
Criminal Procedure.

2. Briefly the facts of the case are
that on the basis of a complaint by Kanshi
Ram (PW-1), the above noticed Case Crime
No. C-3 of 2001 was registered pursuant to
the order passed by the Magistrate under
Section
156(3)
Code
of
Criminal
Procedure, and as per allegations by
complainant, his son Shyam Prakash left
the house on 12th July, 2000 to visit his
brother-in-law
Rambilas
Mishra.
The
complainant's son was wearing three gold
rings, a chain, and was also carrying cash
of Rs. 1,55,000/- as well as a mobile phone.
The complainant's son was residing with
his second wife Rekha, who in order to
grab his house at Lucknow was illegally
occupying it. The complainant further
alleged that the accused persons in
connivance with each other administered
poison to his son on 14th July, 2000, which
resulted in his death. Broadly on these
allegations, the above FIR was registered
for
alleged
commission
of
offences
punishable under Sections 302, 147 and
406 IPC against eight accused persons
including the applicants namely Smt.
Rekha, Anant Ram Awasthi, Smt. Ram Boli
and Barkan.

3. Thereafter, the investigation in
the case was conducted, and through the
final report under Section 173(2) Cr.P.C.,
only five accused persons were sent to face
trial, and during investigation, accused
namely Virendra Kumar (son-in-law of
Ram Narain Mishra) was also arraigned,
whereas the applicants were declared
innocent.

4. After considering the final
report under Section 173(2) Cr.P.C., the
trial against the five accused persons
commenced and in order to discharge the
onus, prosecution had examined three
witnesses namely Kanshi Ram (PW-1), Om
Prakash
(PW-2)
(another
son
of
complainant) and Putti Ram (PW-3), and at
that stage, an application under Section 319
Code of Criminal Procedure was moved for
summoning the applicants as an additional
accused.

5. The trial court vide impugned
order dated 14.09.2007 proceeded to allow
the said application and summoned the
applicants as additional accused. Hence,
this application.

6. Learned counsel for the
applicants has argued that the trial court has
committed an error of law in exercising
jurisdiction under Section 319 Cr.P.C. in a
casual manner, as the facts, circumstances
and the evidence on record do not suggest
572 INDIAN LAW REPORTS ALLAHABAD SERIES
the involvement of the applicants in the
alleged commission of crime. Learned
counsel has drawn the attention of the
Court to the impugned order to point out
that the trial court has noticed the testimony
of three witnesses examined by the
prosecution and proceeded to observe that a
prima facie case regarding involvement of
the applicants-accused is also made out,
and the court has not examined the nature
of the evidence adduced and the case set up
by prosecution. Learned counsel submits
that pursuant to the interim protection
granted by this Court, the proceedings
against the newly added accused made no
progress, whereas the trial regarding other
five accused continued, which finally
ended in their acquittal through the
judgment dated 11th September, 2009.
Learned counsel prays that the impugned
order is not based upon the correct
appreciation
of
material
on
record,
therefore, it calls for interference by this
Court. He prays that the impugned order be
set aside and the application be dismissed.

7. Learned State Counsel while
opposing the prayer has argued that the
complainant from the very beginning had
set up a common case against all the
accused persons and name of the applicants
was also mentioned in the statements of
prosecution
witnesses
recorded
under
Section 161 Cr.P.C. Learned State Counsel
submits that in their depositions recorded
before the trial court, the witnesses have
narrated about the involvement of the
accused-applicants, therefore, considering
the material on record, the trial court has
rightly exercised the jurisdiction under
Section 319 Cr.P.C. According to him, at
the stage of considering the prosecution
case for summoning additional accused, the
Court
is not
required
to
record
a
satisfaction that the evidence adduced
during trial would certainly lead to the
conviction of the said accused and even
prima facie involvement in commission of
crime
is
sufficient
to
summon
the
additional accused.

8. Mr. Rajiv Kumar Verma,
learned State Counsel submits that the
impugned order is based upon proper
appreciation
of
material
on
record,
therefore, no interference is warranted by
this Court. He prays that the application be
dismissed.

9. Upon hearing the learned
counsel for the parties and considering their
submissions, this Court finds that the entire
case of the prosecution hinges upon
circumstantial evidence, and according to
the complainant, his son had visited the
house of his brother-in-law Rambilas
Mishra, where he was administered poison
and the motive behind this occurrence is
that the accused wanted to take away cash
and gold ornaments worn by the victim.
Though, the complainant has alleged
conspiracy
amongst
all
the
accused
persons, but in the FIR or in the final
charge sheet, Section 120-B IPC or any
other section, much less showing the
common intention/object has not been
incorporated. The death of the victim is
stated to be because of poison, which was
administered at the house of the accused
persons, who had faced the trial, but there
is nothing on record to indicate that all
these accused-applicants, who have been
summoned as an additional accused either
resided or visited the said place, when the
alleged
crime
was
committed.
The
allegations by complainant in the beginning
relating to the involvement of the accusedapplicants is vague and was disbelieved by
the investigating officer while declaring
them innocent.
1 All. Smt. Rekha & Ors. Vs. State of U.P. & Ors.
573
10. Time and again, the Hon'ble
Supreme Court as well as various High
Courts have consistently examined the
scope of Section 319 Cr.P.C., which
empowers the trial court to summon any
other person as an accused in a pending
trial, where the evidence recorded during
trial suggests the involvement of such
person in commission of the alleged crime.
The said provision 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
afresh,
and
the
witnesses re-heard;
(b) subject to the provisions
of clause (a), the case may proceed
as if such person had been an
accused person when the Court
took cognizance of the offence upon
which the inquiry or trial was
commenced."

11. A reading of the above would
show that this Section vests extraordinary
power with the trial court to summon any
other person as an accused to face trial
along with other accused, who are before
the trial court, but invariably the Hon'ble
Supreme Court as well as different High
Courts have held that this discretionary
power should be exercised sparingly and
with circumspection. At this juncture, when
the trial has already commenced, the degree
of satisfaction required to be recorded by
the trial court while summoning any other
person as additional accused, should be
more than the standards required at the
stage of framing of charges. In other words,
the evidence on record must strongly
suggest more than a "prima facie" case
against such a person and his involvement
in commission of the crime.

12. Reference in this regard can be
made to the decision of larger Bench of
Hon'ble
Supreme
Court
rendered
in
Hardeep Singh Vs. State of Punjab and
others reported in (2014) 3 SCC 92,
wherein the Question (iv), was answered in
the following manner:-

"Question (iv)- What is the
degree of satisfaction required for
invoking the power under Section
319 Cr.P.C.?
Ans.-105.
Power
under
Section
319
Cr.P.C.
is
a
discretionary and an extraordinary
power. It is to be exercised
574 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

13. Though, according to the
learned State Counsel, the deposition of
complainant-PW-1 recorded during the trial
proceedings is enough for summoning the
applicants as an additional accused. But,
this Court does not find any force in the
arguments advanced by the learned State
Counsel as the deposition of complainantPW-1 before the court cannot be construed
as a new piece of evidence, which emerged
for the first time and was not previously
available when either the first information
report was registered or the investigation
was carried out. The expression "Evidence"
as contained in Section 319 Cr.P.C. would
not include a vague statement, and
essentially the deposition of prosecution
witness has to be tested in its substance.

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

"13. The High Court does
not even record any satisfaction
that the evidence on record as
revealed by the statement of victim
and her mother even makes out a
prima facie case of offence against
the appellants. The mere fact that
the Court has power under Section
319 Cr.P.C. to proceed against any
person who is not named in the
F.I.R. or in the Charge Sheet does
not mean that whenever in a
statement
recorded
before
the
Court, name of any person is taken,
the Court has to mechanically issue
process
under
Section
319
Cr.P.C.The Court has to consider
substance of the evidence, which
has come before it and as laid
down by the Constitution Bench in
Hardeep Singh's (supra) has to
apply the test, i.e. "more than
prima facie case as exercised at the
time of framing of charge, but short
of satisfaction to an extent that the
evidence, if goes unrebutted, would
lead to conviction."

15. Further, a reading of the
impugned order dated 14th September,
2007 would show that the trial court has
failed to analyze the substance of the
prosecution witnesses while exercising the
powers under Section 319 Cr.P.C. Thus,
this Court has no hesitation in holding that
the impugned order dated 14th September,
2007 suffers from grave illegality and
impropriety and warrants interference by
this Court.

16. Resultantly, the petition
succeeds and the impugned order dated
1 All. Dr. Rajesh Kumar Singh & Anr. Vs. The State of U.P. & Anr.
575
14th September, 2007 is hereby set
aside. The application under Section 319
Cr.P.C.
filed
by
the
prosecution
is
dismissed.

17. The petition is allowed.
----------
(2025) 1 ILRA 575
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.01.2025

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Application U/S 482 No. 724 of 2012
Alongwith
Application U/S 482 No. 2966 of 2017

Dr. Rajesh Kumar Singh & Anr.
 ...Applicants
Versus
The State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Sushil Kumar Singh

Counsel for the Respondents:
Govt.
Advocate,
Mandeep
Kumar
Mishra,
Prabhat, S.M. Royekwar

Criminal Law - Indian Penal Code,1860Sections 406, 504 & 506-No specific threats
amounting
to
criminal
intimidation-alleged
offences u/s 504 and 506 not prima facie made
out-ingredients to constitute the offence u/s 406
IPC are also absent, no voluntary entrustment
by complainant to the accused persons-merely
pendency of civil suit and non-payment of the
amount would not constitute the offence u/s
406 IPC.

Application allowed. (E-9)

List of Cases cited:

Vesa Holdings Pvt. Ltd. & anr. Vs St. of Kerala &
ors. reported in 2015 (8) SCC 293
(Delivered by Hon'ble Manoj Bajaj, J.)
1. The above two applications
have been filed by the respective accused
persons under Section 482 Code of
Criminal Procedure for quashing of the
charge sheet bearing No. 160/2010 dated
11th May, 2010, arising out of Case Crime
No. 241 of 2010, under Sections 406, 504
and 506 IPC, Police Station Ghazipur,
District Lucknow, and the charge sheet
bearing No. 160A/2014 dated 14th July,
2014, arising out of Case Crime No. 241A
of 2010, under Sections 147, 148, 323, 504
and 506 IPC, Police Station Ghazipur,
District Lucknow, which were registered by
the rival parties against each others.
Besides,
the
applicants
have
also
challenged
the
respective
cognizance
orders dated 24th June, 2010 and 4th
September, 2014, whereby they have been
summoned
in
the
pending
criminal
proceedings.

2. Briefly the facts leading to the
applications are that two work orders for
setting up Sewerage Treatment Plants (STP)
and Effluent Treatment Plants (ETP) was
placed by M/s Sawen Consultancy Services
(hereinafter referred to as "Party No. I") to
M/s Eco Water Solutions Technologies
Private Limited (hereinafter referred to as
"Party No. II") vide letters dated 23.06.2008
and 04.07.2008, and relating to the said
works, dispute between the two companies
arose and litigation also commenced. Apart
from the civil litigation instituted by both
sides against each other, the respective parties
lodged criminal cases against each other for
their prosecution through the above noticed
two FIR(s). The applicants in Application u/s
482 No. 724 of 2012; titled Dr. Rajesh Kumar
Singh and another vs. the State of U.P and
another, are the Director and Joint Director,
respectively of "Party No. I", whereas
Sachchidanand Rai and Guna Kesh Rai are
Director(s) of "Party No. II".