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2025 DIGILAW 1298 (ALL)

Aditya v. State of U. P.

2025-11-10

CHAWAN PRAKASH

body2025
JUDGMENT : CHAWAN PRAKASH, J. 1. Heard Shri Surendra Singh, learned counsel for the revisionists, Shri Sanjay Mishra, learned counsel for opposite party No.2 and learned A.G.A for the State. 2. The present revision has been filed challenging the order dated 01.09.2021 passed by learned Additional District and Sessions Judge/ Fast Track Court No.2, Etawah in Session Trial No. 310 of 2021 (State v. Ajay and others) arising out of Case Crime No. 385 of 2019 under Sections 147, 148, 323, 304, 352, 336, 504, 506 IPC Police Station Jaswant Nagar District Etawah. 3. It is submitted by learned counsel for the revisionists that FIR as Case Crime No. 385 of 2019 under Sections 147, 148, 323, 336, 452, 504, 506, 352, 307 IPC Police Station Jaswant Nagar District Etawa was lodged against ten persons including the present revisionists. After the death of injured Section 304 IPC was inserted and Section 307 was omitted. The investigating officer did not record the statement of public witnesses under Section 161 Cr.P.C and did not assign any role to the present revisionist Aditya and Arpit in the commission of offence. No charge sheet was filed against the revisionists. During trial charges against other accused persons were framed and examination-in-chief of P.W-1 Ravindra Singh, brother of deceased was recorded. After recording of the examination-in-chief and without completing its cross-examination, application under Section 319 Cr.P.C was filed to summon the present revisionists. It is submitted that the said application was allowed by the learned trial court vide impugned order dated 01.09.2021. It is submitted that the learned trial court while passing the impugned order has only opined that the prima facie case is made out against the accused revisionist whereas considering the principles of law laid down he must form an opinion that more than prima facie case is made out. It is further submitted that other prosecution witnesses have not supported the prosecution version and they are turning hostile. The said order has not been passed in compliance with the settled principles of law and also the facts of the present case and the said order is liable to be set aside. 4. Per contra it is submitted by learned A.G.A and learned counsel for opposite party No.2 that the trial court has not committed any illegality in passing the impugned order because the name of accused were mentioned in the First Information Report. 4. Per contra it is submitted by learned A.G.A and learned counsel for opposite party No.2 that the trial court has not committed any illegality in passing the impugned order because the name of accused were mentioned in the First Information Report. The investigating officer has not conducted fair investigation and not not filed charge sheet against the revisionist. During trial the examination-in-chief of P.W-1 (Ravindra Singh) was recorded and thereafter the present application under Section 319 Cr.P.C was filed. It is also submitted that the court has not committed any illegality in allowing the said application because the application under Section 319 Cr.P.C could be filed even on the basis of examination-in-chief without recording cross- examination. Thus, the trial court has not committed any illegality in passing the impugned order. 5. Having heard learned counsel for respective parties and having perused the record it transpires that in the instant revision, revisionists challenged the order dated 01.09.2021 passed by the trial court by which they have been summoned under Section 319 Cr.P.C. 6. Section 319 Cr.P.C. read as under:- "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 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." 7. (a) the proceedings in respect of such person shall be commenced afresh, and 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." 7. Therefore, from Section 319 Cr.P.C., it is apparent that trial court is empowered to summon a person to face trial, who is not the accused in the case on the basis of the evidence. The word 'evidence' used in Section 319 Cr.P.C. is significant. The Constitution Bench of the Apex Court in case of Hardeep Singh Vs. State of Punjab & Others (2014) 3 SCC 92 held that the word 'evidence' used in Section 319(1) Cr.P.C. indicates, the word 'evidence' is limited to the evidence recorded during trial. 8. The Apex Court in case of Omi @ Omkar Rathore v. State of Madhya Pradesh and Another ( 2025 INSC 27 ) also held that trial court can add an individual as accused only on the basis of the evidence adduced before it and not on the basis of the materials available in the charge-sheet or the case diary because such materials contained in the charge-sheet or the case diary do not constitute evidence. 9. The Apex Court in the case of Shiv Baran v. State of U.P. and another 2025 INSC 860 also held that trial court can exercise power to summon an additional accused under Section 319 Cr.P.C. only on the basis of the evidence adduced before it and not any other material collected during investigation. 10. Therefore, from the above dictum of the Apex Court, it is apparent that while invoking power under Section 319 Cr.P.C. trial court should consider the statements of the witnesses adduced before it and it should not place reliance upon the material available in the charge-sheet or the case diary. 11. The law with regard to the summoning of an accused under Section 319 Cr.P.C. is settled that this power is an extraordinary power, which should be used sparingly with circumspection and while passing the summoning order under Section 319 Cr.P.C. court must consider whether more than prima- facie case is made out, or not. For summoning an additional accused under Section 319 Cr.P.C. mere prima-facie case is not sufficient. For summoning an additional accused under Section 319 Cr.P.C. mere prima-facie case is not sufficient. [See: Constitution Bench judgment of Apex Court Hardeep Singh (surpa) ]. Therefore, in light of the above principles, it is to analyze, whether before the trial court material was sufficient to summon the revisionists under Section 319 Cr.P.C. or not. 12. From the above discussions, it is clear that the application under Section 319 Cr.P.C has been filed by the prosecution after recording examination-in- chief by the P.W.-1. The learned court has allowed the said application by the impugned order. 13. It is settled principle of law that an application under Section 319 Cr.P.C can be filed even after recording the examination-in-chief of any witnesses and the same can be decided without waiting for cross-examination. 14. Hon'ble Apex Court in the case of Hardeep Singh v. State of Punjab and others (2014) 3 SCC 92 has also held that the law with regard to the summoning of the accused under Section 319 Cr.P.C is an extraordinary power, which should be used sparingly and while passing summoning order under Section 319 Cr.P.C, the court must consider whether more than prima facie case is made out. For summoning under Section 319 Cr.P.C mere prima facie case is not sufficient. In the present case, learned trial court has formed an opinion that prima facie case is made out against the accused persons but has not formed an opinion that more than prima facie case is made out. Hence the impugned order dated 01.09.2021 is liable to be set aside. 15. Accordingly the impugned order dated 01.09.2021 passed by learned Additional District and Sessions Judge/ Fast Track Court No.2, Etawah in Session Trial No. 310 of 2021 (State v. Ajay and others) arising out of Case Crime No. 385 of 2019 under Sections 147, 148, 323, 304, 352, 336, 504, 506 IPC Police Station Jaswant Nagar District Etawah is set aside. The instant revision is allowed. 16. The matter is remitted to the learned trial court concerned who will pass order afresh on the application after considering the provisions of law, within a period of two months from the production of certified copy of this order.