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Court No. - 66
Case :- CRIMINAL REVISION No. - 2173 of 2022
Revisionist :- Rameshwar And Another
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Ravi Sahu,Ram Chandra
Counsel for Opposite Party :- G.A.

Hon'ble Vikas Budhwar,J.

1. Heard Sri Ravi Sahu, learned counsel for the revisionists as well as Sri
Munne Lal, learned A.G.A.
2. This is a revision under Sections 397/401 CrPC filed by the
revisionists herein, wherein challenge has been raised to the order dated
2.11.2020 passed by the Court of Sessions Judge, Mahoba in Sessions Trial
No. 16 of 2019, I.A. No.01/2019, (State of U.P. Versus Khem Chandra @
Phullu & others), arising out of Case Crime no. 249 of 2018, under Sections
304, 201 IPC, P.S. Panwari, District Mahoba.
3. Learned counsel for the revisionist has argued that a FIR has been
lodged on 16.11.2018 by O.P. no.2 / Complainant before P.S. Panwari,
Mohaba, being FIR no. 0249 under Section 302 IPC, relatable to the
commission of the offence on 14.11.2018 against the revisionist, who are
two in number with an allegation that the brother of the complainant being
Dharmendra Sen son of Lakhan Lal aged about 32 years was working under
the revisionists herein, who happened to be the contractor. Certain dispute
arose regarding payment of the remuneration, which occasioned in
commission of alleged offence, pursuant whereto the dead body of the
brother of the complainant was found. Learned counsel for the revisionists
has drawn the attention towards Annexure-2 which happens to be post
mortem report as well as statement of the complainant, which is at page-62
of the paper-book as well as of Smt. Poonam, wife of the deceased, so as to
contend that the revisionists have been falsely implicated in the case in
question. Learned counsel for the revisionists has further drawn the attention
of this Court towards the fact that the police report, which is in the shape of
final report has been submitted in favour of the revisionists, whereby their
names have been expunged. However, according to the revisionist, an
application under Section 319 CrPC has been filed for summoning of the
revisionists, which even infact is nothing but the grossest misuse of the
process of the law at the behest of O.P. no.2/ complainant. Learned counsel
for the revisionist in the confessional statement of one of the accused,
though he was not named in the FIR against whom charge sheet has been
submitted, linkage of the revisionists vis-a-vis commission of the crime does
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not surface at all. According to learned counsel for the revisionists the entire
exercise so undertaken is illegal, revisionists have not committed the
aforesaid offence, and even otherwise, the law laid down by the Hon'ble
Apex Court in the case of Hardeep Puri as followed in subsequent judgment,
has suitably mandated that while exercising the powers under Section 319
CrPC, there should be sufficient evidence that should be more than the prima
facie in order to summon the so called accused and the said exercise cannot
be taken in a routine, mechanical and light manner.
4. Sri Munne Lal, the learned A.G.A, on the other hand, argued that from
the narration of the allegation contained in the FIR vis-a-vis, the statement of
PW Nos. 1 Arvind Sen, 2-Smt. Poonam, and 3- Moorat Dhwaj, the name of
the revisionists have been pin pointed and further there was sufficient
evidence on record to exercise power under Section 319 CrPC and he has
been rightly did so.
5. 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.”

6. 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:-
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“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 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
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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 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.”
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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 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
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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.”

7. 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.”
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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 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
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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 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
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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)

8. 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.

9. 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:-
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“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.
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 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 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.
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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
(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 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 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)
 12

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. Prafulla Kumar Samal & Anr., AIR 1979 SC 366 and
held that while considering the question of framing the charges, the court
may weigh the evidence for the limited purpose of finding out whether or
not a prima facie case against the accused has been made out and
whether the materials placed before this Court disclose grave suspicion
against the accused which has not been properly explained. In such an
eventuality, the court is justified in framing the charges and proceeding
with the trial. The court has to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced before
the court but court should not make a roving enquiry into the pros and
cons of the matter and weigh evidence as if it is conducting a trial.
102 In Suresh v. State of Maharashtra, AIR 2001 SC 1375, this Court after
taking note of the earlier judgments in Niranjan Singh Karam Singh
Punjabi v. Jitendra Bhimraj Bijjaya, AIR 1990 SC 1962 and State of
Maharashtra v. Priya Sharan Maharaj, AIR 1997 SC 2041, held as under:
“9.……at the stage of Sections 227 and 228 the Court is
required to evaluate the material and documents on record
with a view to finding out if the facts emerging therefrom
taken at their face value disclose the existence of all the
ingredients constituting the alleged offence. The Court
may, for this limited purpose, sift the evidence as it cannot
be expected even at that initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to
common sense or the broad probabilities of the case.
Therefore, at the stage of framing of the charge the Court
has to consider the material with a view to find out if there
is ground for presuming that the accused has committed
the offence or that there is not sufficient ground for
proceeding against him and not for the purpose of
arriving at the conclusion that it is not likely to lead to a
conviction.” (Emphasis supplied)

103. Similarly in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018,

while dealing with the issue, this Court held:
“……If the evidence which the Prosecutor proposes to
adduce to prove the guilt of the accused even if fully
accepted before it is challenged in cross-examination or
rebutted by the defence evidence, if any, cannot show that
the accused committed the offence, then there will be no
sufficient ground for proceeding with the trial…..”

104. In Palanisamy Gounder & Anr. v. State, represented by Inspector of

Police, (2005) 12 SCC 327, this Court deprecated the practice of invoking
the power under Section 319 Cr.P.C. just to conduct a fishing inquiry, as
in that case, the trial court exercised that power just to find out the real
 13

truth, though there was no valid ground to proceed against the person
summoned by the court.
105. Power under Section 319 Cr.P.C. is a discretionary and an extra-
ordinary 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 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 Cr.P.C. In Section 319 Cr.P.C. 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 “for which such person
could be tried together with the accused.” The words used are not ‘for
which such person could be convicted’. There is, therefore, no scope for
the Court acting under Section 319 Cr.P.C. to form any opinion as to the
guilt of the accused.”

10. The Hon’ble Apex court in the case of Hardeep Singh

(Supra) has also analysed the contingencies in what situation can
the power u/s 319 Cr.P.C. be exercised in the cases when a persons
is not named in the FIR though named in the FIR but not charge
sheeted or has been discharged. The Hon’ble Apex Court has
observed as under:-
“107. In Joginder Singh & Anr. v. State of Punjab & Anr., AIR 1979 SC
339, a three-Judge Bench of this Court held that as regards the
contention that the phrase “any person not being the accused” occurring
in Section 319 Cr.P.C. excludes from its operation an accused who has
been released by the police under Section 169 Cr.P.C. and has been
shown in Column 2 of the charge-sheet, the contention has merely to be
rejected. The said expression clearly covers any person who is not being
tried already by the Court and the very purpose of enacting such a
provision like Section 319 (1) Cr.P.C. clearly shows that even persons
who have been dropped by the police during investigation but against
whom evidence showing their involvement in the offence comes before
the criminal court, are included in the said expression.
108. In Anju Chaudhary v. Sate of U.P. & Anr., (2013) 6 SCC 384, a two-
Judge Bench of this Court held that even in the cases where report under
 14

Section 173(2) Cr.P.C. is filed in the court and investigation records the
name of a person in Column 2, or even does not name the person as an
accused at all, the court in exercise of its powers vested under Section
319 Cr.P.C. can summon the person as an accused and even at that stage
of summoning, no hearing is contemplated under the law.
109. In Suman v. State of Rajasthan & Anr., AIR 2010 SC 518, a two-
Judge Bench of this Court observed that there is nothing in the language
of this sub-section from which it can be inferred that a person who is
named in the FIR or complaint, but against whom charge- sheet is not
filed by the police, cannot be proceeded against even though in the course
of any inquiry into or trial of any offence, the court finds that such person
has committed an offence for which he could be tried together with the
other accused.
110.In Lal Suraj (supra), a two-Judge Bench held that there is no dispute
with the legal proposition that even if a person had not been charge-
sheeted, he may come within the purview of the description of such a
person as contained in Section 319 Cr.P.C. A similar view had been taken
in Lok Ram (Supra), wherein it was held that a person, though had
initially been named in the FIR as an accused, but not charge-sheeted, can
also be added to face the trial.
111. Even the Constitution Bench in Dharam Pal (CB) has held that the
Sessions Court can also exercise its original jurisdiction and summon a
person as an accused in case his name appears in Column 2 of the
chargesheet, once the case had been committed to it. It means that a
person whose name does not appear even in the FIR or in the chargesheet
or whose name appears in the FIR and not in the main part of the
chargesheet but in Column 2 and has not been summoned as an accused
in exercise of the powers under Section 319 Cr.P.C. can still be summoned
by the court, provided the court is satisfied that the conditions provided in
the said statutory provisions stand fulfilled.
112. However, there is a great difference with regard to a person who has
been discharged. A person who has been discharged stands on a different
footing than a person who was never subjected to investigation or if
subjected to, but not charge-sheeted. Such a person has stood the stage of
inquiry before the court and upon judicial examination of the material
collected during investigation; the court had come to the conclusion that
there is not even a prima facie case to proceed against such person.
Generally, the stage of evidence in trial is merely proving the material
collected during investigation and therefore, there is not much change as
regards the material existing against the person so discharged. Therefore,
there must exist compelling circumstances to exercise such power. The
Court should keep in mind that the witness when giving evidence against
the person so discharged, is not doing so merely to seek revenge or is
naming him at the behest of someone or for such other extraneous
considerations. The court has to be circumspect in treating such evidence
and try to separate the chaff from the grain. If after such careful
examination of the evidence, the court is of the opinion that there does
 15

exist evidence to proceed against the person so discharged, it may take

steps but only in accordance with section 398 Cr.P.C. without resorting to
the provision of Section 319 Cr.P.C. directly.
113. In Sohan Lal & Ors. v. State of Rajasthan, (1990) 4 SCC 580, a two-
Judge Bench of this Court held that once an accused has been
discharged, the procedure for enquiry envisaged under Section 398
Cr.P.C. cannot be circumvented by prescribing to procedure under
Section 319 Cr.P.C.
114. In Municipal Corporation of Dehli v. Ram Kishan Rohtagi & Ors.,
AIR 1983 SC 67, this Court held that if the prosecution can at any stage
produce evidence which satisfies the court that those who have not been
arraigned as accused or against whom proceedings have been quashed,
have also committed the offence, the Court can take cognizance against
them under Section 319 Cr.P.C. and try them along with the other
accused.
115. Power under Section 398 Cr.P.C. is in the nature of revisional power
which can be exercised only by the High Court or the Sessions Judge, as
the case may be. According to Section 300 (5) Cr.P.C., a person
discharged under Section 258 Cr.P.C. shall not be tried again for the
same offence except with the consent of the Court by which he was
discharged or of any other Court to which the first-mentioned Court is
subordinate. Further, Section 398 Cr.P.C. provides that the High Court or
the Sessions Judge may direct the Chief Judicial Magistrate by himself or
by any of the Magistrate subordinate to him to make an inquiry into the
case against any person who has already been discharged. Both these
provisions contemplate an inquiry to be conducted before any person,
who has already been discharged, is asked to again face trial if some
evidence appears against him. As held earlier, Section 319 Cr.P.C. can
also be invoked at the stage of inquiry. We do not see any reason why
inquiry as contemplated by Section 300(5) Cr.P.C. and Section 398
Cr.P.C. cannot be an inquiry under Section 319 Cr.P.C. Accordingly, a
person discharged can also be arraigned again as an accused but only
after an inquiry as contemplated by Section 300(5) and 398 Cr.P.C. If
during or after such inquiry, there appears to be an evidence against
such person, power under Section 319Cr.P.C. can be exercised. We may
clarify that the word ‘trial’ under Section 319 Cr.P.C. would be eclipsed
by virtue of above provisions and the same cannot be invoked so far as a
person discharged is concerned, but no more.
116. Thus, it is evident that power under Section 319 Cr.P.C. can be
exercised against a person not subjected to investigation, or a person
placed in the Column 2 of the Charge-Sheet and against whom
cognizance had not been taken, or a person who has been discharged.
However, concerning a person who has been discharged, no proceedings
can be commenced against him directly under Section 319 Cr.P.C.
without taking recourse to provisions of Section 300(5) read with Section
398 Cr.P.C.”
 16

11. The Constitutional Bench in the matter of Hardeep Singh

(Supra) has also considered the scope, ambit and the importance
of the word evidence and had analysed the same and held as
under:-
“58. To answer the questions and to resolve the impediment that is being
faced by the trial courts in exercising of powers under Section 319
Cr.P.C., the issue has to be investigated by examining the circumstances
which give rise to a situation for the court to invoke such powers. The
circumstances that lead to such inference being drawn up by the court for
summoning a person arise out of the availability of the facts and material
that comes up before the court and are made the basis for summoning
such a person as an accomplice to the offence alleged to have been
committed. The material should disclose the complicity of the person in
the commission of the offence which has to be the material that appears
from the evidence during the course of any inquiry into or trial of
offence. The words as used in Section 319 Cr.P.C. indicate that the
material has to be “where ….it appears from the evidence” before the
court.
59. Before we answer this issue, let us examine the meaning of the word
‘evidence’. According to Section 3 of the Evidence Act, ‘evidence’ means
and includes:
(1) all statements which the Court permits or requires to
be made before it by witnesses, in relation to matters of
fact under inquiry; such statements are called oral
evidence;

(2) all documents including electronic records produced

for the inspection of the Court, such statements are called
documentary evidence;

60. According to Tomlin’s Law Dictionary, Evidence is “the means from

which an inference may logically be drawn as to the existence of a fact. It
consists of proof by testimony of witnesses, on oath; or by writing or
records.”
61. Bentham defines ‘evidence’ as “any matter of fact, the effect, tendency
or design of which presented to mind, is to produce in the mind a
persuasion concerning the existence of some other matter of fact- a
persuasion either affirmative or disaffirmative of its existence. Of the two
facts so connected, the latter may be distinguished as the principal fact,
and the former as the evidentiary fact.”
62. According to Wigmore on Evidence, evidence represents “any
knowable fact or group of facts, not a legal or a logical principle,
considered with a view to its being offered before a legal tribunal for the
purpose of producing a persuasion, positive or negative, on the part of the
tribunal, as to the truth of a proposition, not of law, or of logic, on which
the determination of the tribunal is to be asked.”
 17

63. The provision and the above-mentioned definitions clearly suggest that
it is an exhaustive definition. Wherever the words “means and include”
are used, it is an indication of the fact that the definition ‘is a hard and
fast definition’, and no other meaning can be assigned to the expression
that is put down in the definition. It indicates an exhaustive explanation of
the meaning which, for the purposes of the Act, must invariably be
attached to these words or expression. (Vide: M/S. Mahalakshmi Oil
Mills v. Stare of A.P. AIR 1989 SC 335; Punjab Land Development and
Reclamation Corporation Ltd. Chandigarh v. Presiding Officer, Labour
Court, Chandigarh & Ors., (1990) 3 SCC 682; P. Kasilingam & Ors. v.
P.S.G. collage of Technology & Ors, AIR 1995 SC 1395; Hamdard
(Wakf) Laboratories v. Dy. Labour Commissioner & Ors., AIR 2008 SC
968; and Ponds India Ltd. (merged with H.L. Limited) v. Commissioner
of Trade Tax, Lucknow, (2008) 8 SCC 369).
64. In Feroze N. Dotivala v. P.M. Wadhwani & Ors, (2003) 1 SCC 433,
dealing with a similar issue, this Court observed as under:
“Generally, ordinary meaning is to be assigned to any
word or phrase used or defined in a statute. Therefore,
unless there is any vagueness or ambiguity, no occasion
will arise to interpret the term in a manner which may add
something to the meaning of the word which ordinarily
does not so mean by the definition itself, more particularly,
where it is a restrictive definition. Unless there are
compelling reasons to do so, meaning of a restrictive and
exhaustive definition would not be expanded or made
extensive to embrace things which are strictly not within
the meaning of the word as defined.

65. We, therefore proceed to examine the matter further on the premise
that the definition of word “evidence” under the Evidence Act is
exhaustive.

66. In Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr., AIR 2011 SC
760, while dealing with the issue this Court held :
“18. The word “evidence” is used in common parlance in
three different senses: (a) as equivalent to relevant, (b) as
equivalent to proof, and (c) as equivalent to the material,
on the basis of which courts come to a conclusion about
the existence or non-existence of disputed facts. Though, in
the definition of the word “evidence” given in Section 3 of
the Evidence Act one finds only oral and documentary
evidence, this word is also used in phrases such as best
evidence, circumstantial evidence, corroborative evidence,
derivative evidence, direct evidence, documentary
evidence, hearsay evidence, indirect evidence, oral
evidence, original evidence, presumptive evidence, primary
evidence, real evidence, secondary evidence, substantive
evidence, testimonial evidence, etc.”

67. In relation to a Civil Case, this court in Ameer Trading Corporation

Ltd. v. Shapoorji Data Processing Ltd., AIR 2004 SC 355, held that the
 18

examination of a witness would include evidence-in- chief, cross-

examination or re-examination. In Omkar Namdeo Jadhao & Ors v.
Second Additional Sessions Judge Buldana & Anr., AIR 1997 SC 331; and
Ram Swaroop & Ors. v. State of Rajasthan, AIR 2004 SC 2943, this Court
held that statements recorded under Section 161 Cr.P.C. during the
investigation are not evidence. Such statements can be used at the trial
only for contradictions or omissions when the witness is examined in the
court.
(See also: Podda Narayana & Ors. v. State of A.P., AIR 1975 SC 1252;
Sat Paul v. Delhi Administration, AIR 1976 SC 294; and State (Delhi
Administration) v. Laxman Kumar & Ors., AIR 1986 SC 250).
68. In Lok Ram v. Nihal Singh & Anr., AIR 2006 SC 1892, it was held that
it is evident that a person, even though had initially been named in the
FIR as an accused, but not charge-sheeted, can also be added as an
accused to face the trial. The trial court can take such a step to add such
persons as accused only on the basis of evidence adduced before it and
not on the basis of 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.
69. The majority view of the Constitution Bench in Ramnarayan Mor &
Anr. v. The State of Maharashtra, AIR 1964 SC 949 has been as under:
“9. It was urged in the alternative by counsel for the
appellants that even if the expression “evidence” may
include documents, such documents would only be those
which are duly proved at the enquiry for commitment,
because what may be used in a trial, civil or criminal, to
support the judgment of a Court is evidence duly proved
according to law. But by the Evidence Act which applies to
the trial of all criminal cases, the expression “evidence” is
defined in Section 3 as meaning and including all
statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under
enquiry and documents produced for the inspection of the
Court. There is no restriction in this definition to
documents which are duly proved by evidence.” (Emphasis
added)

70. Similarly, this Court in Sunil Mehta & Anr. v. State of Gujarat & Anr.,
JT 2013 (3) SC 328, held that “It is trite that evidence within the meaning
of the Evidence Act and so also within the meaning of Section 244 of the
Cr.P.C. is what is recorded in the manner stipulated under Section 138 in
the case of oral evidence. Documentary evidence would similarly be
evidence only if the documents are proved in the manner recognised and
provided for under the Evidence Act unless of course a statutory provision
makes the document admissible as evidence without any formal proof
thereof.”
71. In Guriya @ Tabassum Tauquir & Ors. v. State of Bihar & Anr., AIR
2008 SC 95, this Court held that in exercise of the powers under Section
319 Cr.P.C., the court can add a new accused only on the basis of
 19

evidence adduced before it and not on the basis of materials available in

the charge sheet or the case diary.
72. In Kishun Singh (Supra), this Court held :
“11. On a plain reading of sub-section (1) of Section 319
there can be no doubt that it must appear from the
evidence tendered in the course of any inquiry or trial that
any person not being the accused has committed any
offence for which he could be tried together with the
accused. This power (under Section 319(1)), it seems
clear to us, can be exercised only if it so appears from the
evidence at the trial and not otherwise. Therefore, this
sub-section contemplates existence of some evidence
appearing in the course of trial wherefrom the court can
prima facie conclude that the person not arraigned before
it is also involved in the commission of the crime for
which he can be tried with those already named by the
police. Even a person who has earlier been discharged
would fall within the sweep of the power conferred by S.
319 of the Code. Therefore, stricto sensu, Section 319 of
the Code cannot be invoked in a case like the present one
where no evidence has been led at a trial wherefrom it can
be said that the appellants appear to have been involved
in the commission of the crime along with those already
sent up for trial by the prosecution.

12. But then it must be conceded that Section 319 covers

the post-cognizance stage where in the course of an
inquiry or trial the involvement or complicity of a person
or persons not named by the investigating agency has
surfaced which necessitates the exercise of the
discretionary power conferred by the said provision…..”

73. A similar view has been taken by this Court in Raj Kishore Prasad
(Supra), wherein it was held that in order to apply Section 319 Cr.P.C., it
is essential that the need to proceed against the person other than the
accused appearing to be guilty of offence arises only on evidence
recorded in the course of an inquiry or trial.
74. In Lal Suraj @ Suraj Singh & Anr. v. State of Jharkhand, (2009) 2
SCC 696, a two-Judge Bench of this Court held that “a court framing a
charge would have before it all the materials on record which were
required to be proved by the prosecution. In a case where, however, the
court exercises its jurisdiction under Section 319 Cr.P.C., the power has to
be exercised on the basis of the fresh evidence brought before the court.
There lies a fine but clear distinction.”
75. A similar view has been reiterated by this Court in Rajendra Singh v.
State of U.P. & Anr., AIR 2007 SC 2786, observing that court should not
exercise the power under Section 319 Cr.P.C. on the basis of 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.
The word ‘evidence’ in Section 319 Cr.P.C. contemplates the evidence of
witnesses given in the court.
 20

76. Ordinarily, it is only after the charges are framed that the stage of
recording of evidence is reached. A bare perusal of Section 227 Cr.P.C.
would show that the legislature has used the terms “record of the case”
and the “documents submitted therewith”. It is in this context that the
word ‘evidence’ as appearing in Section 319 Cr.P.C. has to be read and
understood. The material collected at the stage of investigation can at best
be used for a limited purpose as provided under Section 157 of the
Evidence Act i.e. to corroborate or contradict the statements of the
witnesses recorded before the court. Therefore, for the exercise of power
under Section 319 Cr.P.C., the use of word `evidence’ means material that
has come before the court during an inquiry or trial by it and not
otherwise. If from the evidence led in the trial the court is of the opinion
that a person not accused before it has also committed the offence, it may
summon such person under Section 319 Cr.P.C.
77. With respect to documentary evidence, it is sufficient, as can be seen
from a bare perusal of Section 3 of the Evidence Act as well as the
decision of the Constitution Bench, that a document is required to be
produced and proved according to law to be called evidence. Whether
such evidence is relevant, irrelevant, admissible or inadmissible, is a
matter of trial.
78. It is, therefore, clear that the word “evidence” in Section 319 Cr.P.C.
means only such evidence as is made before the court, in relation to
statements, and as produced before the court, in relation to documents. It
is only such evidence that can be taken into account by the Magistrate or
the Court to decide whether power under Section 319 Cr.P.C. is to be
exercised and not on the basis of material collected during investigation.
79. The inquiry by the court is neither attributable to the investigation nor
the prosecution, but by the court itself for collecting information to draw
back a curtain that hides something material. It is the duty of the court to
do so and therefore the power to perform this duty is provided under the
Cr.P.C.
80. The unveiling of facts other than the material collected during
investigation before the magistrate or court before trial actually
commences is part of the process of inquiry. Such facts when recorded
during trial are evidence. It is evidence only on the basis whereof trial can
be held, but can the same definition be extended for any other material
collected during inquiry by the magistrate or court for the purpose of
Section 319 Cr.P.C.?
81. An inquiry can be conducted by the magistrate or court at any stage
during the proceedings before the court. This power is preserved with the
court and has to be read and understood accordingly. The outcome of
any such exercise should not be an impediment in the speedy trial of the
case. Though the facts so received by the magistrate or the court may not
be evidence, yet it is some material that makes things clear and unfolds
concealed or deliberately suppressed material that may facilitate the
trial. In the context of Section 319 Cr.P.C. it is an information of
complicity. Such material therefore, can be used even though not an
 21

evidence in stricto sensuo, but an information on record collected by the

court during inquiry itself, as a prima facie satisfaction for exercising the
powers as presently involved.
82. This pre-trial stage is a stage where no adjudication on the evidence
of the offences involved takes place and therefore, after the material
alongwith the charge-sheet has been brought before the court, the same
can be inquired into in order to effectively proceed with framing of
charges. After the charges are framed, the prosecution is asked to lead
evidence and till that is done, there is no evidence available in the strict
legal sense of Section 3 of the Evidence Act. The actual trial of the
offence by bringing the accused before the court has still not begun.
What is available is the material that has been submitted before the court
along with the charge-sheet. In such situation, the court only has the
preparatory material that has been placed before the court for its
consideration in order to proceed with the trial by framing of charges.
83. It is, therefore, not any material that can be utilised, rather it is that
material after cognizance is taken by a court, that is available to it while
making an inquiry into or trying an offence, that the court can utilize or
take into consideration for supporting reasons to summon any person on
the basis of evidence adduced before the Court, who may be on the basis
of such material, treated to be an accomplice in the commission of the
offence. The inference that can be drawn is that material which is not
exactly evidence recorded before the court, but is a material collected by
the court, can be utilised to corroborate evidence already recorded for the
purpose of summoning any other person, other than the accused. This
would harmonise such material with the word ‘evidence’ as material that
would be supportive in nature to facilitate the exposition of any other
accomplice whose complicity in the offence may have either been
suppressed or escaped the notice of the court.
84. The word “evidence” therefore has to be understood in its wider sense
both at the stage of trial and, as discussed earlier, even at the stage of
inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be
understood to have the power to proceed against any person after
summoning him on the basis of any such material as brought forth before
it. The duty and obligation of the court becomes more onerous to invoke
such powers cautiously on such material after evidence has been led
during trial.
85. In view of the discussion made and the conclusion drawn hereinabove,
the answer to the aforesaid question posed is that apart from evidence
recorded during trial, any material that has been received by the court
after cognizance is taken and before the trial commences, can be utilised
only for corroboration and to support the evidence recorded by the court
to invoke the power under Section 319 Cr.P.C. The ‘evidence’ is thus,
limited to the evidence recorded during trial.”

12. The proposition of law culled out by the Hon’ble Apex Court itself
makes it clear that u/s 319 Cr.P.C. discretion has been bestowed upon the
 22

Magistrate to exercise the powers while looking into the facts and the
circumstances of a particular case before it while according degree of
satisfaction so imperative for invocation of the powers u/s 319 Cr.P.C. The
Hon’ble Apex Court has repeatedly cautioned the Courts to exercise the
powers under section 319 Cr.P.C. in such a manner that it does not permit an
accused to walk away free on the strength of any lacuna attributed by the
Investigating Officer. In nutshell, it can be very well said that 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.
13. Nonetheless, the powers under section 319 Cr.P.C. to summon those
persons who are not named in the charge sheet to appear and face trial is
unquestionable as the very object of engrafting section 319 Cr.P.C. is that to
allow a person who deserves to be tried not to go scot-free.
14. The stage which is contemplated under section 319 Cr.P.C. 1973 is a
stage before the conclusion of the trial and thus, only one conclusion can be
drawn that the 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.
15. The issue can also be seen from another point of angle that during the
course of the inquiry into, or trial of, an offence, it appears from the
evidence that any person not being accused has committed the offence or he
has not been charge sheeted but there are sufficient material available on
record which has not been taken into consideration by the Investigating
Officer then the Magistrate in exercise of powers can always summon him in
that regard. Sub section (1) of section 319 Cr.P.C. has consciously used the
word “during the course of any inquiry into, or trial of” meaning thereby that
the powers can be exercised under section 319 Cr.P.C. when there are certain
material available on record during the course of inquiry or trial.
16. I have heard the submission of learned counsel for the parties, as well
as perused the records. The issue with regard to the exercise of the powers
under Section 319 of CrPC are no more res integra, as in view of the
judgment so cited hereinabove in the body of the present revision, an
irresistible conclusion stands drawn that while exercising the powers under
Section 319 CrPC, the courts have to not only form a subjective opinion in
order to initiate proceedings, but it should be satisfied that the evidence
available to it is more than prima facie. Applying the said principles of law,
as culled out in the present judgment, the present case is to be decided.
17. This Court finds that in the FIR so sought to be lodged by the
complainant, who happens to be the brother of the deceased, revisionists
 23

herein arrayed as accused and more so, in the statement so recorded under
Section 161 and 164 CrPC, names of the revisionists find its presence.
Nonetheless, in the statement of PW’s- 1, 2 and 3, the name of the
revisionists also finds place and thus the Court was within its jurisdiction
and powers to have summoned the revisionist. So far as the argument so
sought to be raised by learned counsel for the revisionists with regard to the
fact that they have not committed the offence and the confessional statement
of one of the co-accused, who was though not named in the FIR, but against
whom, charge sheet was submitted is a matter of defence, which will be
available to the revisionists at the time, when the trial gets commence.
Accordingly with the net analysis of the factual and legal proposition, this
Court finds its inability to subscribe with the argument so raised by the
revisionist.
18. Learned counsel for the revisionists has argued that a suitable
direction be issued for consideration of the claim of the revisionists for grant
of bail.
19. This Court finds that an appropriate remedy is always available to the
revisionists which they can take recourse to and raise all contentions in that
regard.
20. This Court has no reason to disbelieve that the same will be decided
with most expedition after considering each and every aspect of the matter.
21. Resultantly, the present revision is dismissed and consigned to record.
22. No order as to costs.
Order date:- 03.6.2022
N.S.Rathour

Digitally signed by NIPENDRA

SINGH RATHOUR
Date: 2022.06.03 17:44:42 IST
Reason:
Location: High Court of Judicature at
Allahabad