# Smt. Suman Revisionist v. State of U.P. & Anr - **Citation:** (2021) 11 ILRA 178 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-12-13 - **Case number:** Criminal Misc. Application No.9297 of 2007 - **Bench:** Vikas Budhwar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-suman-revisionist-v-state-of-u-p-anr-46468 - **Pages:** 20 ## Headnote (A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 397/401 - Revision - Indian Penal Code, 1860 - Sections 363 & 376 (2) (I) - The Protection of Children From Sexual Offences Act, 2012 - Section 3/4 - The Scheduled Castes/Scheduled Tribes (Prevention from Atrocities) Act, 1989 - Section 3(2)(5) - stage contemplated under section 319 Cr.P.C. - stage before conclusion of trial - Magistrate must be prima facie of the opinion that there are sufficient material and cause for summoning the culprit who is either not named in the FIR or if named, he has not been charge sheeted or discharged. (Para - 18) (B) Criminal Law - The Code of criminal procedure, 1973 - Section 319 - Power to proceed against other persons appearing to be guilty of offence - once the Magistrate finds that there was sufficient material available on record before it to summon a person in the trial which is proposed to be undertaken then the powers u/s 319 Cr.P.C. are to be invoked.(Para -16 ) FIR lodged by father (opposite party no. 2) of victim (minor) - victim forcibly taken away by co-accused - commit rape - Statements of victim recorded u/s 161 and 164 Cr.P.C - charge sheet submitted against coaccused only - not against applicant - sufficient material available on record - applicant also indulged in criminality - application preferred by opposite party no. 2 - came into light in exercise of power contained u/s 319 Cr.P.C. while summoning applicant - revisionist summoned by court below - hence revision . HELD:-This Court under revisional jurisdiction cannot substitute its own views particularly when there was ample evidence available on record before the court below in exercising the jurisdiction as conferred u/s 319 Cr.P.C. . No material on record to show the findings recorded by the court below while summoning the revisionist suffers, from perversity or manifest illegality.(Para - 24,27) Criminal Revision dismissed. (E-7) List of Cases cited:- ## Text _Characters 0–39,905 of 76,847. This is a partial read: ask again with offset=39905 for what follows._ 178 INDIAN LAW REPORTS ALLAHABAD SERIES also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR." 26. The Full Bench of this Hon'ble Court in Criminal Misc. Writ Petition No.3672 of 2000 decided on 27.4.2001, Rambabu Gupta Vs. State of U.P. in para 17 observed as under:- "17. In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate's order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter XV of Cr P.C. The first question stands answered thus." 27. Yet a Division Bench of this Court in Criminal Misc. Application No.9297 of 2007 decided on 18.9.2007. A Division Bench of this Court in the case of Sukhbali Vs. State of Uttar Pradesh reported in 2007 (59) ACC 739 in para 22 has observed as under:- "22. Applications under Section 156(3) Cr. P.C. are now coming in torrents. Provisions under Section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice, which warrants a direction to the Police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) Cr.P.C." 28. A judicial notice has been taken by this Court in the case of Sukhbali (Supra) that applications under Section 156(3) Cr.P.C. are now coming in torrent and thus exercise of the powers under Section 156(3) Cr.P.C. should be used sparingly and not in routine manner. 29. The Court finds that pure findings of fact has been recorded which has not been disputed by the revisionist either by means of arguments or by pleading. 30. No other point has been raised by learned counsel for the applicant. 31. Accordingly, the application is dismissed. ---------- (2021)12ILR A178 REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 13.12.2021 BEFORE THE HON'BLE VIKAS BUDHWAR, J. Criminal Revision No. 2992 of 2021 Smt. Suman ...Revisionist Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Revisionist: Sri Manoj Kumar Tripathi Counsel for the Opposite Parties: A.G.A. 11 All. Smt. Suman Vs. State of U.P. & Anr. 179 (A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 397/401 - Revision - Indian Penal Code, 1860 - Sections 363 & 376 (2) (I) - The Protection of Children From Sexual Offences Act, 2012 - Section 3/4 - The Scheduled Castes/Scheduled Tribes (Prevention from Atrocities) Act, 1989 - Section 3(2)(5) - stage contemplated under section 319 Cr.P.C. - stage before conclusion of trial - Magistrate must be prima facie of the opinion that there are sufficient material and cause for summoning the culprit who is either not named in the FIR or if named, he has not been charge sheeted or discharged. (Para - 18) (B) Criminal Law - The Code of criminal procedure, 1973 - Section 319 - Power to proceed against other persons appearing to be guilty of offence - once the Magistrate finds that there was sufficient material available on record before it to summon a person in the trial which is proposed to be undertaken then the powers u/s 319 Cr.P.C. are to be invoked.(Para -16 ) FIR lodged by father (opposite party no. 2) of victim (minor) - victim forcibly taken away by co-accused - commit rape - Statements of victim recorded u/s 161 and 164 Cr.P.C - charge sheet submitted against coaccused only - not against applicant - sufficient material available on record - applicant also indulged in criminality - application preferred by opposite party no. 2 - came into light in exercise of power contained u/s 319 Cr.P.C. while summoning applicant - revisionist summoned by court below - hence revision . HELD:-This Court under revisional jurisdiction cannot substitute its own views particularly when there was ample evidence available on record before the court below in exercising the jurisdiction as conferred u/s 319 Cr.P.C. . No material on record to show the findings recorded by the court below while summoning the revisionist suffers, from perversity or manifest illegality.(Para - 24,27) Criminal Revision dismissed. (E-7) List of Cases cited:- 1. Hardeep Singh Vs St.of Punj. , 2014 (3) SCC 92 S. 2. Mohammad Ispahani Vs Yogendra Chandak & ors. , (2017) 16 SCC 226 3. M/S. Mahalakshmi Oil Mills Vs St.of A.P. , AIR 1989 SC 335 4. Punjab Land Development & Reclamation Corporation Ltd. Chandigarh Vs Presiding Officer, Labour Court, Chandigarh & ors. , (1990) 3 SCC 682 5. P. Kasilingam & ors. Vs P.S.G. collage of Technology & Ors, AIR 1995 SC 1395 6. Hamdard (Wakf) Laboratories Vs Dy. Labour Commissioner & ors., AIR 2008 SC 968 7. Ponds India Ltd. (merged with H.L. Limited) Vs Commissioner of Trade Tax, Lucknow, (2008) 8 SCC 369) 8. Feroze N. Dotivala Vs P.M. Wadhwani & ors, (2003) 1 SCC 433 9. Ameer Trading Corporation Ltd. Vs Shapoorji Data Processing Ltd., AIR 2004 SC 355 10. Omkar Namdeo Jadhao & ors Vs Second Additional Sessions Judge Buldana & anr., AIR 1997 SC 331 11. Ram Swaroop & ors. Vs St.of Raj., AIR 2004 SC 2943 12. Podda Narayana & ors. Vs St.of A.P., AIR 1975 SC 1252 13. Sat Paul Vs Delhi Administration, AIR 1976 SC 294 14. St.(Delhi Administration) Vs Laxman Kumar & ors., AIR 1986 SC 250 15. Lok Ram Vs Nihal Singh & anr., AIR 2006 SC 1892 16. Ramnarayan Mor & anr. Vs The St.of Maharashtra, AIR 1964 SC 949 17. Sunil Mehta & anr. Vs St.of Guj. & anr., JT 2013 (3) SC 328 18. Guriya @ Tabassum Tauquir & ors. Vs St.of Bihar & anr., AIR 2008 SC 95 180 INDIAN LAW REPORTS ALLAHABAD SERIES 19. Lal Suraj @ Suraj Singh & anr. Vs St.of Jharkhand, (2009) 2 SCC 696 20. Rajendra Singh Vs St.of U.P. & anr., AIR 2007 SC 2786 (Delivered by Hon'ble Vikas Budhwar, J.) 1. Heard Sri Manoj Kumar Tripathi, learned counsel for the revisionist and learned A.G.A. for the State. 2. The present criminal revision purported to be u/s 397/401 of Cr.P.C. has been instituted challenging the summoning order dated 21.11.2020 passed by learned Additional District and Sessions Judge/Special Judge, POCSO Act, Hapur in Application u/s 319 Cr.P.C. arising out of Special Sessions Trial No. 35 of 2016 as well as case crime no. 218 of 2016, u/s 363, 376 (2) (I) IPC and section 4 of POCSO Act and section 3(2)(5) SC/ST Act, P.S. Hapur Nagar, District Hapur (Sate Vs. Rahul and others) whereby the revisionist has been summoned by the court below in exercise of powers u/s 319 Cr.P.C. 1973. 3. Record reveals that the FIR was lodged by the opposite party no. 2 reporting that the incident took place on 17.01.2016 at 08:35 p.m. wherein the minor daughter being Ms. Chanchal aged about 15 years had gone out of her house to bring sugar and when she did not return after lapsing of sufficient time then the opposite party no. 2 being father of the victim along with other relatives who remain present started searching the victim and after a period of about two months i.e. on 17.03.2016 the victim being Ms. Chanchal herself came back and on making inquiry from her she informed that on 17.01.2016 when she had gone to buy sugar from the nearby shop then Rahul S/o Darshan,R/o Village Achchheja, Hapur Nagar, District Hapur was present there and exerted pressure and force upon the victim and he took her to Keshav Nagar in a house in the Footi Line where the victim was kept in confinement and Rahul S/o Darshan kept on committing rape with her and one day the wife of Rahul being Suman (the applicant) herein came and when the victim requested her that she may be allow to go to her house as she wanted to live with her parents but Suman W/o Rahul did not render any help and told the victim that she has to remain here and she cannot move from there. Thereafter, Suman left the place and Rahul thereafter, kept on committing rape against her wish. Accordingly, the opposite party no. 2, father of the victim had lodged the FIR on 17.03.2016 before the police station Hapur Nagar being case crime no. 218 of 2016 and on 17.03.2016 purported to be u/s 363, 376 (2) (I) , 120-B IPC and Section 3/4 POCSO Act. 4. The statement of the victim (Ms. Chanchal) purported to be under section 161 Cr.P.C. was recorded which was conformity and consonance with the allegation contained in the FIR dated 17.03.2016. Subsequently, on 18.03.2016 the statement of the victim was also recorded u/s 164 Cr. P.C. It has also come on record that the statement of opposite party no. 2 being father of the victim was also recorded. Further this Court finds that during investigation, the Investigating Officer also recorded statements of the witnesses being Satish, Smt. Pooja, Smt. Malti Devi and Shivbaran Singh u/s 161 Cr.P.C. and they have also supported the statement of the victim. 5. Thereafter, on 02.05.2016 a charge sheet was submitted by the Investigating Officer in case crime no. 218 of 2016 bearing no. 196 of 2016, u/s 363, 376 (2) (I) IPC and Section 3/4 POCSO Act and section 3(2)(5) SC/ST Act against the husband of the applicant, namely, Rahul only. However, subsequently, on 20.11.2020 an application was preferred by the opposite party no. 2 that the charge sheet has only been submitted against Rahul not against the applicant being Smt. Suman, Layak Ram and 11 All. Smt. Suman Vs. State of U.P. & Anr. 181 Raja Ram who were also named in the FIR dated 17.03.2016 and they have been exonerated despite the fact that they had also committed the offence as sought to be revealed in pursuance of lodging of the FIR. 6. The court of Additional District and Sessions Judge/ Special Judge, POCSO Act, Hapur has now exercised its power u/s 319 Cr.P.C. 1973 while summoning the applicants. 7. The applicant being aggrieved against the order dated 21.11.2020 passed by the court u/s 319 Cr.P.C. in the proceedings in Special Sessions Trial No. 35 of 2016, has instituted the present revision. 8. The moot question which falls for consideration before this Court in the proceedings u/s 397/401 of Cr.P.C. is as to whether the order passed by the court below along with the application u/s 319 Cr.P.C. is within the parameters as set out in the said provisions. 9. For the ready reference section 319 of the Cr.P.C. 1973 is quoted hereinunder. "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." 10. The issue with respect to the scope and ambit of the powers so conferred upon the Magistrate u/s 319 Cr.P.C. 1973 is no more res integra as the Constitutional Bench of the Hon'ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab reported in 2014 (3) SCC 92 has observed as under:- "8. The Constitutional mandate under Articles 20 and 21 of the Constitution of India, 1950 (hereinafter referred to as the ''Constitution') provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to the society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under the Cr.P.C. indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating 182 INDIAN LAW REPORTS ALLAHABAD SERIES methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. 9. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 Cr.P.C. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the above mentioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is subject matter of trial. 10. In order to answer the aforesaid questions posed, it will be appropriate to refer to Section 351 of the Criminal Procedure Code, 1898 (hereinafter referred to as `Old Code'), where an analogous provision existed, empowering the court to summon any person other than the accused if he is found to be connected with the commission of the offence. However, when the new Cr.P.C. was being drafted, regard was had to 41st Report of the Law Commission where in the paragraphs 24.80 and 24.81 recommendations were made to make this provision more comprehensive. The said recommendations read: "24.80 It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is proper that Magistrate should have the power to call and join him in proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in Section 351 for summoning such a person if he is not present in court. Such a provision would make Section 351 fairly comprehensive, and we think it proper to expressly provide for that situation. 24.81 Section 351 assumes that the Magistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in Section 190, and are apparently exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrates own information under Section 190(1), or only in the manner in which cognizance was first taken of the offence against the accused. The question is important, because the methods of inquiry and trial in the two cases differ. About the true position under the existing law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of this particular provision is that the whole case against all known suspects should be proceeded with expeditiously and convenience requires that cognizance against the newly added accused should be taken in the same manner against the other accused. We, therefore, propose to recast Section 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings. It is, of course, necessary (as is already provided) that in such a situation the evidence must he 11 All. Smt. Suman Vs. State of U.P. & Anr. 183 reheard in the presence of the newly added accused." 11. Section 319 Cr.P.C. as it exists today, 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- (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." 12. Section 319 Cr.P.C. 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.P.C. 13. 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. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.? 14. The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of Cr.P.C. and the judgments that have been relied on for the said purpose. The controversy centers around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised. 15. It would be necessary to put on record that the power conferred under Section 319 Cr.P.C. is only on the court. This has to be understood in the context that Section 319 Cr.P.C. empowers only the court to proceed against such person. The word "court" in our hierarchy of criminal courts has been defined under Section 6 Cr.P.C., which includes the Courts of Sessions, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Sessions is defined in Section 9 Cr.P.C. and the Courts of Judicial Magistrates has been defined under Section 11 thereof. The Courts of Metropolitan Magistrates has been defined under Section 16 Cr.P.C. The courts which can try offences committed under the Indian Penal Code, 1860 or any offence under any other law, have been specified under Section 26 Cr.P.C. read with First Schedule. The explanatory note (2) under the heading of "Classification of Offences" under the First Schedule specifies the expression ''magistrate of first class' and ''any magistrate' to include Metropolitan Magistrates who are empowered to try the offences under the said Schedule but excludes Executive Magistrates. 16. It is at this stage the comparison of the words used under Section 319 Cr.P.C. has to be understood distinctively from the word used under Section 2(g) defining an inquiry other than the trial by a magistrate or a court. Here the legislature has used two words, namely the 184 INDIAN LAW REPORTS ALLAHABAD SERIES magistrate or court, whereas under Section 319 Cr.P.C., as indicated above, only the word "court" has been recited. This has been done by the legislature to emphasise that the power under Section 319 Cr.P.C. is exercisable only by the court and not by any officer not acting as a court. Thus, the magistrate not functioning or exercising powers as a court can make an inquiry in particular proceeding other than a trial but the material so collected would not be by a court during the course of an inquiry or a trial. The conclusion therefore, in short, is that in order to invoke the power under Section 319 Cr.P.C., it is only a Court of Sessions or a Court of Magistrate performing the duties as a court under the Cr.P.C. that can utilise the material before it for the purpose of the said Section. 17. 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 to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 Cr.P.C. or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence. 18. The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution." 11. The judgment in the case of Hardeep Singh (Supra) has also been considered and taken note in the judgment in the case of S. Mohammad Ispahani Vs. Yogendra Chandak and Others reported in (2017) 16 SCC 226 wherein paragraph nos. 28 and 29 the Hon'ble Apex Court has observed as under. "28) Insofar as power of the Court under Section 319 of the Cr.P.C. to summon even those persons who are not named in the charge sheet to appear and face trial is concerned, the same is unquestionable. Section 319 of the Cr.P.C. is meant to rope in even those persons who were not implicated when the charge sheet was filed but during the trial the Court finds that sufficient evidence has come on record to summon them and face the trial. In Hardeep Singh's case, the Constitution Bench of this Court has settled the law in this behalf with authoritative pronouncement, thereby removing the cobweb which had been created while interpreting this provision earlier. As far as object behind Section 319 of the Cr.P.C. is concerned, the Court had highlighted the same as under: "The court is 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. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence." 29) At the same time, the Constitution Bench has clarified that the power under Section 319 of the Cr.P.C. can only be exercised on ''evidence' recorded in the Court and not material gathered at the investigation stage, which has already been tested at the stage under Section 190 of the Cr.P.C. and issue of process under Section 204 of the Cr.P.C. This principle laid down in Hardeep Singh's case has been 11 All. Smt. Suman Vs. State of U.P. & Anr. 185 explained in Brjendra Singh and Others v. State of Rajasthan in the following manner: "10. It also goes without saying that Section 319 CrPC, which is an enabling provision empowering the Court to 6 (2017) 7 SCC 706 Criminal Appeal No. 1720 of 2017 & Ors. appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge-sheet is filed and before the pronouncement of the judgment, except during the stage of Sections 207/208 CrPC, the committal, etc. which is only a pre-trial stage intended to put the process into motion. 11. In Hardeep Singh case , the Constitution Bench has also settled the controversy on the issue as to whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and indicates the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court. The word "evidence" has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and obligation of the court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that " evidence" under Section 319 CrPC could even be examination-in-chief and the Court is not required to wait till such evidence is tested on cross-examination, as 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 trial in the offence. 12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 CrPC and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh case and answered in the following manner: (SCC pp. 135 & 138, paras 95 & 105-106) "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 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench Criminal Appeal No. 1720 of 2017 & Ors. this Court in Vikas v. State of Rajasthan [Vikas v. State of Rajasthan, (2014) 3 SCC 321 : (2014) 2 SCC (Cri) 172] , held that on the [Ed.: The words between two asterisks have been emphasised in original.] objective satisfaction [Ed.: The words between two asterisks have been emphasised in original.] 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. *** 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 186 INDIAN LAW REPORTS ALLAHABAD SERIES 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 cross-examination, 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 CrPC. In Section 319 CrPC 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 " [Ed.: The words between two asterisks have been emphasised in original.] for which such person could be tried together with the accused [Ed.: The words between two asterisks have been emphasised in original.] ". The words used are not "for which such person could be Criminal Appeal No. 1720 of 2017 & Ors. ". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused." 13. In order to answer the question, some of the principles enunciated in Hardeep Singh case may be recapitulated: power under Section 319 CrPC 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 the offence. The "evidence" herein means the material that is brought before the court during trial. Insofar as the material/evidence collected by the IO 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 CrPC. 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 CrPC 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 charge-sheet 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." (emphasis supplied) 12. The legislature was quite conscious while engrafting section 319 Cr.P.C. while employing the words "in the course of any inquiry into, or trial of, an offence, it appears from the evidence". The aforesaid words so employed under section 319 Cr.P.C. itself shows that degree of satisfaction has to be accorded by the Magistrate while exercising powers u/s 319 Cr.P.C. 13. Obviously, degree of satisfaction defers from case to case and according to the degree of satisfaction the test to be applied as one should be more than prima facie case at the stage of framing of charges. The Hon'ble Supreme Court in the case of Hardeep Singh (Supra) has observed as under:- "93. Section 319(1) 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 imparts a lesser degree of probability than proof. 11 All. Smt. Suman Vs. State of U.P. & Anr. 187 94. In Pyare Lal Bhargava v. 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. v. Ram Niwas & Anr., (2009) 14 SCC 25, a twoJudge 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 v. 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. v. 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 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 188 INDIAN LAW REPORTS ALLAHABAD SERIES (sic sparing) exercise of jurisdiction, would not be satisfied." (Emphasis added) 99. In Brindaban Das & Ors. v. State of West Bengal, AIR 2009 SC 1248, a twoJudge 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 reexamination 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 re-iterated by this Court in Michael Machado & Anr. v. Central Bureau of Investigation & Ors., AIR 2000 SC 1127. 100. However, there is a series of cases wherein this Court while dealing with the provisions of Section 227, 228, 239, 240, 241, 242 and 245 Cr.P.C., has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The Court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further. (Vide: State of Karnataka v. L. Munishwamy & Ors., AIR 1977 SC 1489; All India Bank Officers' Confederation etc. v. Union of India & Ors., AIR 1989 SC 2045; Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715; State of M.P. v. Dr. Krishna Chandra Saksena, (1996) 11 SCC 439; and State of M.P. v. Mohan Lal Soni. 101.In Dilawar Babu Kurane v. State of Maharashtra AIR 2002 SC 564, this Court while dealing with the provisions of Section 227 and 228 Cr.P.C., placed a very heavy reliance on the earlier judgment of this Court in Union of India v.