DEEPAK KUMAR @ DEEPAK SAH vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.56895 of 2019
Arising Out of PS. Case No.-305 Year-2012 Thana- BHAGALPUR KOTWALI District-
Bhagalpur
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DEEPAK KUMAR @ DEEPAK SAH S/o Late Surendra Prasad Sah R/o
Lohapatti, P.S.- Kotwali, Distt.- Bhagalpur
... ... Petitioner/s
Versus
The State of Bihar Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.---------------
For the Opposite Party/s : Mr.Mohammed Arif, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ANSUL
CAV JUDGMENT
Date : 27-05-2026
Heard learned counsel for the petitioner as well as
learned APP for the Opposite parties.
2. The petitioner has challenged order dated 22.08.2019
passed in Sessions Trial Case No. 492 of 2015 arising out of
Kotwali P.S. Case No. 305 of 2012 registered for the offences
punishable under Section 302/34 IPC and under Section 27 of the
Arms Act by learned A.D.J.-7, Bhagalpur whereby the petitioner
has been summoned to face trial under Section 319 of the Indian
Penal Code.
3. The case of the prosecution is that one Manoj Kumar
Gupta lodged FIR on 03.06.2012 at 02:40 PM before the Sub
Inspector of Barai Police Station alleging therein that on
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02.06.2012 at around 05:45AM his younger brother Bishwanath
Kumar Gupta had gone to fruit shop. He went to take tea at Bhariti
Chauk. While returning after taking tea two unknown persons fired
upon him. He sustained gun shot in his stomach and on 03.06.2012
he was declared dead.
4. Information reached police station on 02.06.2012 at
07:30PM but the FIR seems to have been lodged at 09:45 PM on
03.06.2012 and it reached the learned Magistrate on 06.06.2012.
5. The counsel for the petitioner submits that the murder
was committed due to business rivalry. The deceased were munsi-
cum-care taker in the partnership firm as his brother Manoj Kumar
Gupta and one Md. Nasim. This firm was situated in the tenancy
of joint family of the petitioner. Bishwanath Gupta while working
as member in his brother’s partnership firm started his own
independent business of fruit. His growing business invited the
rivalry of his brother’s partner Md. Nasim and probably he got
murdered him.
6. Counsel for the petitioner further submits that this
misfortune of Bishwanath Gupta was lapped by the then Senior
Superintendent of Police, Bhagalpur K.S. Anupam, who was
related to the petitioner and was having serious financial and
property disputes with the petitioner. On his instruction the SHO,
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Kotwali namely Kumod Kumar acted quickly to implicate the
petitioner.
7. The counsel further submits that the Kotwali police
arrested Md. Saddam and Md. Rustam. Md. Saddam took the
name of Md. Rustam who gave him money to kill. Md. Rustam
stated that he was financed by the petitioner. Immediately after
their arrest on a court holiday they were taken by the police to the
house of a judicial magistrate where they were forced to make
confessional statement under Section 164 Cr.P.C. As per the
counsel the motive assigned was preposterous. The police claimed
that the petitioner had directed all his tenants to vote for a
particular candidate in the municipal election of a ward of which
the petitioner was not a resident. The said candidate lost by a
margin of ten votes and the petitioner suspected that the deceased
did not vote for him and he got him killed.
8. The petitioner moved before the Director General of
Police, Bihar with detailed facts who took away the supervision of
this case from the control of the then SSP, Bhagalpur and handed it
over to a DIG Rank IPC Officer posted in the police Headquarters
Dr.Kamal Kishore Singh who was then DIG CID (AD) Patna. In
the meantime, the SSP in his henchmen proceeded to implicate the
petitioner in a number of criminal cases. The supervision of which
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was taken away and handed over to the same officer. On the
complaint of the petitioner, the SHO Kumod Kumar had to face
the proceedings before National Human Rights Commission where
a fine of Rs. 50,000/- was imposed on him. Departmental
proceeding 50/2013 was held against Kumod in which he was
awarded a major punishment of three black marks and stoppage of
three incriminates for wrongly investigating the Kotwali Police
Station Case No. 305/2012 i.e. the instant case.
9. As per petitioner in the meanwhile Md. Rustam filed a
complaint against the SHO Kotwali and two other SHOs claiming
that he was forced to give his statement under Section 164 of the
Cr.P.C.
10. The petitioner counsel further submits that on the
investigation carried out on the orders of DGP, Bihar final form in
all cases including Kotwali P.S. Case No. 305 of 2012 was
submitted against the petitioner by Bhagalpur Police all of which
were accepted by the competent court.
11. Subsequently, Trial No. 492 of 2015 arising out of
Kotwali P.S. Case No. 305 of 2012 was initiated in the court of
Rakesh Malviya, ADJ-VI, Bhagalpur. Subsequently, the case was
transferred to the court of A.D.J.-VII, Vinay Kumar Mishra on
20.06.2017.
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12. The case of the petitioner is that Vinay Kumar
Mishra in late 2017 sent one APP namely Sri Pawan Thakur who
told the petitioner that the learned judge has asked him to add the
petitioner as an accused under Section 319 Cr.P.C. during Sessions
Trial No. 492 of 2013. He also told that something must be paid as
Kumod Kumar has managed several witnesses for the purposes.
The petitioner was taken to the APP on one evening and he was
told by the learned Magistrate himself to pay attention to the APP
under Eurus on extreme mental pressure the petitioner kept on
paying money. Details of which has given in Para-19.
13. The petitioner further asserts that during the course
of a conversation with the judge himself one to one it was revealed
by the judge he has only received Rs. 2 lacs out of 4.5 lacs paid on
his behalf to the APP. The petitioner recorded this conversation in
which he has found to be accepting Rs. 2 lacs. The petitioner had
also videographed the APP Pawan Thakur stating that he had
called Rs. 4.5 lacs as advance on behalf of ADJ-VII Vinay Kumar
Mishra. The petitioner was also forced to spend for the family of
the judge.
14. However, in Sessions Trial No. 549 of 2013 where
Md. Rustam was the complainant and three S.H.Os. were accused
the complainant came to know that the learned judge has been
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gained over by the accused persons leading to filing of transfer
petition No. 46 of 2019 on 28.06.2019 in the court of District and
Sessions Judge, Bhagalpur. The same was transferred to the court
of A.D.J.-V, Bhagalpur. The learned A.D.J.-VII then called the
petitioner at Patna and demanded Rs. 35 lacs as he suspected that
the petitioner ____ the file of Transfer Petition No. 46 of 2019 and
he has suffered a loss of Rs. 20 lacs.
15. The petitioner further states that the petitioner was
unable to meet the demand and thus, on 09.08.2019 the learned
Sessions judge started prompting the witnesses against the
petitioner and started adding text in the deposition which they have
not stated.
16. Fade up with all this, the petitioner on 19.08.2019
represented and met the Inspecting Judge of Patna High Court of
Bhagalpur. He handed over a petition on affidavit explaining in
brief how large sum of money was extracted from him by A.D.J.-
VII through his A.P.P. He also played the video before the court
and handed over the video in a pan drive to the Hon’ble Judge.
The petition dated 19.08.2019 has been brought on record. The
learned sessions judge, however, unaware of these developments
passed order on 22.08.2019 adding him as an accused in the case
No. 492 of 2015 and thereafter attempted to proceed very
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expeditiously. The petitioner was forced to file Cr. Misc. No.
40242 of 2012 before the Hon’ble Patna High Court. It was
mentioned on the date it was filed and it was notified on the same
date and taken up. It is relevant to state that the learned counsel
representing the informant in this case has tried to make much of
this by stating that the petitioner was a very influential person and
he managed to do so to file the case and get it heard on the same
date.
17. In the opinion of this Court this borders on
contempt. There are number of occasions where a case is
mentioned on the date of filing and is taken up by notifying the
same and imputing motive to the Hon’ble Court in such situation
is the postorus and border on contempt.
18. The petitioner by filing a supplementary affidavit has
stated upon his compliant and enquiry was conducted and the
concerned judge was found guilty by the Hon’ble High Court. He
submits that though the details of proceeding was many time
requested by the petitioner but such details of the proceeding was
refused to be provided by the Hon’ble Patna High Court and
prayed before this Court to call for the records of the proceeding.
The counsel for the informant states that this too is an example of
over reach and control of the petitioner. This again seems to this
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Court to be a statement bordering on contempt. The O.P. No. 2
seems to be imputing motives on the Court again. The Court
considered the requirement of calling for the records of the
disciplinary proceedings. In the considered opinion of this Court
calling for the proceeding in which a judicial officer has been
punished would only amount to washing the dirty linon in public.
This is a case which has the look of malafide written all over it.
19. The petitioner was not named in the FIR. His name
transpires three months after the occurrence. A person who
confessed his involvement files a compliant case in which
cognizance was taken that he was forced to make such statements.
The investigation of the case was taken away from a senior official
like SSP. The police submitted final form in all the cases. The
Investigating Officer of the case was penalized by National Human
Rights Commission as well as Departmently. The judicial officer
who passed the instant order was punished in a proceeding before
the Hon’ble Patna High Court as per the statement on affidavit
made by the petitioner.
20. These materials may be extraneous to the instant
proceeding and thus, the Court is more interested in paying
attention to the statement which laid to summoning of the
petitioner under Section 319 and the law on the subject. The only
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material that can be looked into at this stage by the Court is
statement of witnesses based on which the petitioner was
summoned. When a matter has come up before this Court for final
disposal complete copy of trial court records had already been
called for and the court has the opportunity of going through all
the depositions. They are being reproduced here:-
I. P.W.-1 Md. Mujamin deposed on 29.09.2016. He has
not stated anything relevant. He has tried to create some sort of
alibi for Md. Rustam.
II. P.W.-2 Md. Gulam Shabbit deposed on 27.01.2017
and was declared hostile.
III. P.W.-3 Md. Sikandar deposed on 28.02.2017. He
was also declared hostile.
IV. P.W.-4 Md. Aftab Warsi deposed on 08.03.2017 and
was declared hostile.
V. P.W.-5 Mukesh Kumar Gupta deposed on 04.04.2017
and was declared hostile.
VI. P.W.-6 Ramawatar Prasad Singh deposed on
12.04.2017. In his chief examination he states that they had a fight
with one Pratap Sah after election. The election was of Ward
Commissioner and he filed a case against one Pratap Sah.
Thereafter, he compromised with Pratap Sah and the case was
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ended. He states that in that case his statement was recorded under
Section 164 by ASI Kumod and he asked him to take the name of
Deepak Sah (petitioner) though he had no acquaintance with
Deepak Kumar Sah. Thereafter, he was declared hostile. He stated
that he was not aware regarding death or killing of Bishwanath
Gupta in any manner.
VII. P.W.-7 Tirath Prasad Gupta deposed on 17.04.2017
and was declared hostile.
VIII. P.W. 8 Radhe Prasad Sah deposed on 20.05.2017
and was declared hostile.
IX. P.W.-9 Shankar Prasad Gupta deposed on
15.06.2017. He was declared hostile on 15.06.2017.
X. P.W.-10 Md. Sahabuddin deposed on 09.08.2019. His
evidence also relates to alibi of Md. Rustam.
XI. P.W.-11 Manjula Devi (mother of the deceased)
deposed in the case. She stated that Deepak Sah (the petitioner)
had given Rs. 50,000/- to Minu Miya. In her cross-examination
she stated that she did not know Minu Miya alias Rustam. In para
5 of her deposition that the fact of giving Rs. 50,000/- by Deepak
Sah to Minu Miya was not told to her by some persons but it was
there in the newspaper.
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21. The depositions upto P.W. 11 was before the court.
The learned sessions judge apart from dealing with a host of other
matter like transfer petitioner of Rustam Sah and all other details
in para 4 of the Order states that when P.W. 11 the mother of the
deceased namely Manjula Devi deposed in her chief that it was
Deepak Kumar Sah who gave Rs. 50,000/- to Minu Miya to get
her son killed. He failed to refer to or look at para 5 where she
states that this information come to her through newspaper.
22. Thereafter, the court in the exercise of complete
illegality starts refering to the statement of five witnesses under
Section 164 Cr.P.C. and he has extensively refered to the same. He
states that this is the statement which is very specific and there is a
good ground to invoke Section 319 IPC.
23. The law with regard to Section 319 IPC is well
settled. First of all it has to be clarified that the Hon’ble Supreme
Court constitutional bench in the case of Hardeep Singh Vs. State
of Punjab reported in (2014) 3 SCC 92 have held that materials
which have come before the Court in the course of inquiry can
be used only for corroboration and settled that the word
evidence under Section 319 Cr.P.C. means the oral or
documentary evidence brought before the court during the trial. To
the understanding of this Court Section 164 is not a substantive
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evidence. They are recorded during investigation and they can
only be used after the witnesses testified during trial to corroborate
or contradict their statement and nothing more. The foundational
trigger for Section 319 must be the evidence produced on oath in
the trial itself. It has also been made clear that the decree of
specific for invoking Section 319 should be of more than a prima
facie case as exercised at the time of framing of charge but short of
satisfaction to an extent that evidence if not rebutted may lead to
conviction of a person shought to be added as accused.
24. In this framework the order, the facts of this case and
the judgment on this issue are to be analyzed.
I. Kailash v. State of Rajasthan , (2008) 14 SCC 51 :
(2009) 1 SCC (Cri) 1006 : 2008 SCC OnLine SC 414 at page 56
“9. The powers under Section 319 CrPC to
proceed against any person who is not the accused are
couched in the following words:
“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
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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.”
A glance at these provisions would suggest
that during the trial it has to appear from the evidence
that a person not being an accused has committed any
offence for which such person could be tried together
with the accused who are also being tried. The key
words in this section are “it appears from the
evidence” … “any person” … “has committed any
offence”. It is not, therefore, that merely because some
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witnesses have mentioned the name of such person or
that there is some material against that person, the
discretion under Section 319 CrPC would be used by
the court. This is apart from the fact that such person
against whom such discretion is used, should be a
person who could be tried together with the accused
against whom the trial is already going on. This Court
has, time and again, declared that the discretion under
Section 319 CrPC has to be exercised very sparingly
and with caution and only when the court concerned is
satisfied that some offence has been committed by such
person. This power has to be essentially exercised only
on the basis of the evidence. It could, therefore, be
used only after the legal evidence comes on record and
from that evidence it appears that the person
concerned has committed an offence. The words “it
appears” are not to be read lightly. In that the court
would have to be circumspect while exercising this
power and would have to apply the caution which the
language of the section demands.
10. In Mohd. Shafi v. Mohd. Rafiq [(2007)
14 SCC 544 : JT (2007) 5 SC 562] to which one of us
(Sinha, J.) was a party, this Court had observed in
para 7 as under: (SCC p. 546)
“7. Before, thus, a trial court seeks to take
recourse to the said provision, the requisite
ingredients therefor must be fulfilled. Commission of
an offence by a person not facing trial, must,
therefore, appear to the court concerned. It cannot
be ipse dixit on the part of the court. Discretion in
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this behalf must be judicially exercised. It is
incumbent that the court must arrive at its
satisfaction in this behalf.”
In the above case this Court referred to the
decision in MCD v. Ram Krishan Rohtagi [(1983) 1 SCC
1 : 1983 SCC (Cri) 115] and highlighted the following
remarks made in SCC para 19 therein which are to the
following effect: (Ram Kishan Rohtagi case [(1983) 1
SCC 1 : 1983 SCC (Cri) 115] , SCC p. 8)
“19. … But, we would hasten to add
that this is really an extraordinary power which
is conferred on the court and should be used
very sparingly and only if compelling reasons
exist for taking cognizance against the other
person against whom action has not been
taken.”
It was further stated in para 12: (Mohd.
Rafiq case [(2007) 14 SCC 544 : JT (2007) 5 SC 562] ,
SCC p. 547)
“12. … it is evident that before a court
exercises its discretionary jurisdiction in terms of
Section 319 of the Code of Criminal Procedure, it
must arrive at the satisfaction that there exists a
possibility that the accused so summoned is in all
likelihood would be convicted. Such satisfaction
can be arrived at inter alia upon completion of
the cross-examination of the said witness. For the
said purpose, the court concerned may also like
to consider other evidence.”
(emphasis supplied)
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11. In Krishnappa v. State of Karnataka
[(2004) 7 SCC 792 : 2004 SCC (Cri) 2093] this Court,
while relying on another decision in Michael Machado
v. CBI [(2000) 3 SCC 262 : 2000 SCC (Cri) 609] went
on to hold that the power under Section 319 CrPC is
discretionary and should be exercised only to achieve
criminal justice and that the court should not turn
against another person whenever it comes across
evidence connecting that other person also with the
offence. The Court further observed: (Krishnappa
case [(2004) 7 SCC 792 : 2004 SCC (Cri) 2093] , SCC
p. 795, para 9)
“9. … a judicial exercise is called
for, keeping a conspectus of the case, including
the stage at which the trial has already
proceeded and the quantum of evidence
collected till then, and also the amount of time
which the court had spent for collecting such
evidence.”
The Court further observed: (Krishnappa
case [(2004) 7 SCC 792 : 2004 SCC (Cri) 2093] , SCC
p. 795, para 9)
“9. The court, while examining an
application under Section 319 CrPC, has also
to bear in mind that there is no compelling duty
on the court to proceed against other persons.
In a nutshell, it means that for exercise of
discretion under Section 319 CrPC, all relevant
factors, including the one noticed above, have
to be kept in view and an order is not required
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to be made mechanically merely on the ground
that some evidence had come on record
implicating the person sought to be added as
an accused.”
II. Brindaban Das v. State of W.B. , (2009) 3 SCC 329 :
(2009) 2 SCC (Cri) 79 : 2009 SCC OnLine SC 99 at page 335
“24. It was further observed in Bholu Ram
case [(2008) 9 SCC 140 : (2008) 3 SCC (Cri) 710]
that the primary object of Section 319 CrPC is that the
whole case against all the accused should be tried and
disposed of not only expeditiously, but also
simultaneously. The power under Section 319 CrPC
must be regarded and considered as incidental and
ancillary to the main power to take cognizance as part
of the normal process in the administration of justice
and that the same could be exercised either on an
application made to the court or by the court suo motu
and it was in the discretion of the court to take action
under the said section having regard to the facts and
circumstances of each case. Mr Puri also urged that
the decision of the High Court could not be faulted and
the appeal was liable to be dismissed.
25. The common thread in most matters
where the use of discretion is in issue is that in the
exercise of such discretion each case has to be
considered on its own set of facts and circumstances.
In matters relating to invocation of powers under
Section 319, the court is not merely required to take
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note of the fact that the name of a person who has not
been named as an accused in the FIR has surfaced
during the trial, but the court is also required to
consider whether such evidence would be sufficient to
convict the person being summoned. Since issuance of
summons under Section 319 CrPC 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.
27. The fulcrum on which the invocation of
Section 319 CrPC rests is whether the summoning of
persons other than the named accused would make
such a difference to the prosecution as would enable it
not only to prove its case but to also secure the
conviction of the persons summoned.
29. Section 319 CrPC contemplates a
situation where the evidence adduced by the
prosecution not only implicates a person other than the
named accused but is sufficient for the purpose of
convicting the person to whom summons is issued. The
law in this regard was explained in Ram Kishan
Rohtagi case [(1983) 1 SCC 1 : 1983 SCC (Cri) 115]
and as pointed out by Mr Ghosh, consistently followed
thereafter, except for the note of discord struck in
Rajendra Singh case [(2007) 7 SCC 378 : (2007) 3
SCC (Cri) 375] . It is only logical that there must be
substantive evidence against a person in order to
summon him for trial, although, he is not named in the
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charge-sheet or he has been discharged from the case,
which would warrant his prosecution thereafter with a
good chance of his conviction.”
III. Sarojben Ashwinkumar Shah v. State of Gujarat ,
(2011) 13 SCC 316 : (2012) 3 SCC (Civ) 546 : (2012) 1 SCC
(Cri) 867 : 2011 SCC OnLine SC 1076 at page 320
“ 12. In Shashikant Singh v. Tarkeshwar
Singh [(2002) 5 SCC 738 : 2002 SCC (Cri) 1203] this
Court considered the scope of Section 319 of the Code
at p. 743 of the Report in the following words: (SCC
para 9)
“9. The intention of the provision
here is that where in the course of any enquiry
into, or trial of, an offence, it appears to the
court from the evidence that any person not
being the accused has committed any offence,
the court may proceed against him for the
offence which he appears to have committed. At
that stage, the court would consider that such a
person could be tried together with the accused
who is already before the court facing the trial.
The safeguard provided in respect of such
person is that, the proceedings right from the
beginning have mandatorily to be commenced
afresh and the witnesses reheard. In short,
there has to be a de novo trial against him. The
provision of de novo trial is mandatory. It
vitally affects the rights of a person so brought
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before the court. It would not be sufficient to
only tender the witnesses for the cross-
examination of such a person. They have to be
examined afresh. Fresh examination-in-chief
and not only their presentation for the purpose
of the cross-examination of the newly added
accused is the mandate of Section 319(4). The
words ‘could be tried together with the
accused’ in Section 319(1), appear to be only
directory. ‘Could be’ cannot under these
circumstances be held to be ‘must be’. The
provision cannot be interpreted to mean that
since the trial in respect of a person who was
before the court has concluded with the result
that the newly added person cannot be tried
together with the accused who was before the
court when order under Section 319(1) was
passed, the order would become ineffective and
inoperative, nullifying the opinion earlier
formed by the court on the basis of the evidence
before it that the newly added person appears
to have committed the offence resulting in an
order for his being brought before the court.”
13. In Krishnappa v. State of Karnataka
[(2004) 7 SCC 792 : 2004 SCC (Cri) 2093] this Court
reiterated what has been repeatedly stated that: (SCC
p. 794, para 6)
“6. … the power to summon an
accused is an extraordinary power conferred
on the court and should be used very sparingly
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and only if compelling reasons exist for taking
cognizance against the other person against
whom action has not been taken.”
14. In Palanisamy Gounder v. State [(2005)
12 SCC 327 : (2006) 1 SCC (Cri) 568] this Court
referred to two earlier decisions of this Court in
Michael Machado [(2000) 3 SCC 262 : 2000 SCC
(Cri) 609] and Krishnappa [(2004) 7 SCC 792 : 2004
SCC (Cri) 2093] and observed that power under
Section 319 of the Code cannot be exercised so as to
conduct a fishing inquiry.
15. In Guriya v. State of Bihar [(2007) 8
SCC 224 : (2007) 3 SCC (Cri) 521] most of the above
decisions were referred to and it was observed that the
parameters for dealing with an application under
Section 319 of the Code have been laid down in these
cases.
16. The legal position that can be culled out
from the material provisions of Section 319 of the Code
and the decided cases of this Court is this:
(i) The court can exercise the power
conferred on it under Section 319 of the Code
suo motu or on an application by someone.
(ii) The power conferred under
Section 319(1) applies to all courts including
the Sessions Court.
(iii) The phrase “any person not
being the accused” occurring in Section 319
does not exclude from its operation an accused
who has been released by the police under
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Section 169 of the Code and has been shown in
Column 2 of the charge-sheet. In other words,
the said expression covers any person who is
not being tried already by the court and would
include person or persons who have been
dropped by the police during investigation but
against whom evidence showing their
involvement in the offence comes before the
court.
(iv) The power to proceed against
any person, not being the accused before the
court, must be exercised only where there
appears during inquiry or trial sufficient
evidence indicating his involvement in the
offence as an accused and not otherwise. The
word “evidence” in Section 319 contemplates
the evidence of witnesses given in court in the
inquiry or trial. The court cannot add persons
as accused on the basis of materials available
in the charge-sheet or the case diary but must
be based on the evidence adduced before it. In
other words, the court must be satisfied that a
case for addition of persons as accused, not
being the accused before it, has been made out
on the additional evidence let in before it.
(v) The power conferred upon the
court is although discretionary but is not to be
exercised in a routine manner. In a sense, it is
an extraordinary power which should be used
very sparingly and only if evidence has come
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on record which sufficiently establishes that the
other person has committed an offence. A mere
doubt about involvement of the other person on
the basis of the evidence let in before the court
is not enough. The court must also be satisfied
that circumstances justify and warrant that the
other person be tried with the already
arraigned accused.
(vi) The court while exercising its
power under Section 319 of the Code must keep
in view full conspectus of the case including the
stage at which the trial has proceeded already
and the quantum of evidence collected till then.
(vii) Regard must also be had by the
court to the constraints imposed in Section
319(4) that proceedings in respect of newly
added persons shall be commenced afresh from
the beginning of the trial.
(viii) The court must, therefore,
appropriately consider the above aspects and
then exercise its judicial discretion.”
IV. Periyasami v. S. Nallasamy , (2019) 4 SCC 342 :
(2019) 3 SCC (Cri) 230 : 2019 SCC On Line SC 379 at page
346
“ 14. In the first information report or in the
statements recorded under Section 161 of the Code, the
names of the appellants or any other description has
not been given so as to identify them. The allegations
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in the FIR are vague and can be used any time to
include any person in the absence of description in the
first information report to identify such person. There
is no assertion in respect of the villages to which the
additional accused belong. Therefore, there is no
strong or cogent evidence to make the appellants stand
the trial for the offences under Sections 147, 448,
294(b) and 506 IPC in view of the judgment in
Hardeep Singh case [Hardeep Singh v. State of Punjab,
(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] . The
additional accused cannot be summoned under Section
319 of the Code in casual and cavalier manner in the
absence of strong and cogent evidence. Under Section
319 of the Code additional accused can be summoned
only if there is more than prima facie case as is
required at the time of framing of charge but which is
less than the satisfaction required at the time of
conclusion of the trial convicting the accused.”
V. S. Mohammed Ispahani v. Yogendra Chandak ,
(2017) 16 SCC 226 : (2018) 2 SCC (Cri) 138 : 2017 SCC
OnLine SC 1230 at page 242
“ 34. The aforesaid reasons given by the
High Court do not stand the judicial scrutiny. The
High Court has not dealt with the subject-matter
properly and even in the absence of strong and cogent
evidence against the appellant, it has set aside the
order of the Chief Metropolitan Magistrate and
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exercised its discretion in summoning the appellants as
accused persons. No doubt, at one place the
Constitution Bench observed in Hardeep Singh case
[Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 :
(2014) 2 SCC (Cri) 86] that the word “evidence” has
to be understood in its wider sense, both at the stage of
trial and even at the stage of inquiry. In para 105 of
the judgment, however, it is observed that “only where
strong and cogent evidence occurs against a person
from the evidence led before the court that such power
should be exercised and not in a casual and cavalier
manner”. This sentence gives an impression that only
that evidence which has been led before the Court is to
be seen and not the evidence which was collected at
the stage of inquiry. However there is no contradiction
between the two observations as the Court also
clarified that the “evidence”, on the basis of which an
accused is to be summoned to face the trial in an
ongoing case, has to be the material that is brought
before the Court during trial. The material/evidence
collected by the investigating officer at the stage of
inquiry can only be utilised for corroboration and to
support the evidence recorded by the Court to invoke
the power under Section 319 CrPC.
35. In Raj Kishore Prasad [Raj Kishore
Prasad v. State of Bihar, (1996) 4 SCC 495 : 1996 SCC
(Cri) 772 : AIR 1996 SC 1931] , this Court said that as
soon as the Prosecutor is present before the court and
that court hears the parties on framing of charges and
discharge, trial is said to have commenced and that
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there is no intermediate stage between committal of
case and framing of charge.
36. In view of the above, it was not open to
the High Court to rely upon the statements recorded
under Section 161 CrPC as independent evidence. It
could only be corroborative material. In the first
instance, “evidence” led before the Court had to be
taken into consideration. As far as deposition of PW 1
which was given in the Court is concerned, on going
through the said statement, it becomes clear that he
has not alleged any conspiracy on the part of the
appellant landlords. In fact, none of the witness has
said so. In the absence thereof, along with the
important fact that these appellant landlords were
admittedly not present at the site when the alleged
incident took place, we do not find any “evidence”
within the meaning of Section 319 CrPC on the basis
of which they could be summoned as accused persons.
PW 1 and PW 4 have deposed about the incident that
took place at the site and the manner in which the
persons who are present allegedly behaved. In the
statement of PW 4, he has alleged that “Subsequently I
came to know the said people is not police officials the
people was sent by landlords of the building…”. That
statement may not be enough for roping in the
appellants/landlords to face the charge under those
provisions of IPC with which others are charged. The
standard of evidence mentioned in Hardeep Singh case
[Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 :
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(2014) 2 SCC (Cri) 86] , namely, “strong and cogent
evidence”, is lacking.”
VI. Hardeep Singh v. State of Punjab , (2014) 3 SCC
92 : (2014) 2 SCC (Cri) 86 : 2014 SCC OnLine SC 26 at page
138
“ 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
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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 CrPC to form any opinion as to the guilt of the
accused.
115. Power under Section 398 CrPC 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) CrPC, a
person discharged under Section 258 CrPC 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 CrPC provides that
the High Court or the Sessions Judge may direct the
Chief Judicial Magistrate by himself or by any of the
Magistrates 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 CrPC can also be invoked at the stage of
inquiry. We do not see any reason why inquiry as
contemplated by Section 300(5) CrPC and Section 398
CrPC cannot be an inquiry under Section 319 CrPC.
Accordingly, a person discharged can also be
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arraigned again as an accused but only after an
inquiry as contemplated by Sections 300(5) and 398
CrPC. If during or after such inquiry, there appears to
be an evidence against such person, power under
Section 319 CrPC can be exercised. We may clarify
that the word “trial” under Section 319 CrPC 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 CrPC can be exercised against a person
not subjected to investigation, or a person placed in
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
CrPC without taking recourse to provisions of Section
300(5) read with Section 398 CrPC.
117. We accordingly sum up our conclusions
as follows:
Questions (i) and (iii)
— What is the stage at which power under
Section 319 CrPC can be exercised?
And
— Whether the word “evidence” used in
Section 319(1) CrPC has been used in a
comprehensive sense and includes the evidence
collected during investigation or the word “evidence”
is limited to the evidence recorded during trial?”
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VII. Rajesh v. State of Haryana , (2019) 6 SCC 368 :
(2019) 2 SCC (Cri) 801 : 2019 SCC OnLine SC 638 at page 385
“ 6.9. In S. Mohammed Ispahani v.
Yogendra Chandak [S. Mohammed Ispahani v.
Yogendra Chandak, (2017) 16 SCC 226 :
(2018) 2 SCC (Cri) 138] , SCC para 35, this
Court has observed and held as under: (SCC p.
243)
“35. It needs to be highlighted
that when a person is named in the FIR by
the complainant, but police, after
investigation, finds no role of that
particular person and files the charge-
sheet without implicating him, the Court is
not powerless, and at the stage of
summoning, if the trial court finds that a
particular person should be summoned as
accused, even though not named in the
charge-sheet, it can do so. At that stage,
chance is given to the complainant also to
file a protest petition urging upon the trial
court to summon other persons as well
who were named in the FIR but not
implicated in the charge-sheet. Once that
stage has gone, the Court is still not
powerless by virtue of Section 319 CrPC.
However, this section gets triggered when
during the trial some evidence surfaces
against the proposed accused.”
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6.10. Thus, even in a case where the
stage of giving opportunity to the complainant
to file a protest petition urging upon the trial
court to summon other persons as well who
were named in the FIR but not implicated in
the charge-sheet has gone, in that case also,
the Court is still not powerless by virtue of
Section 319 CrPC and even those persons
named in the FIR but not implicated in the
charge-sheet can be summoned to face the trial
provided during the trial some evidence
surfaces against the proposed accused.
7 . Applying the law laid down by this Court
in the aforesaid decisions to the facts of the case on
hand, we are of the opinion that, in the facts and
circumstances of the case, neither the learned trial
court nor the High Court have committed any error in
summoning the appellants herein to face the trial along
with other co-accused. As observed hereinabove, the
appellants herein were also named in the FIR.
However, they were not shown as accused in the
challan/charge-sheet. As observed hereinabove,
nothing is on record whether at any point of time the
complainant was given an opportunity to submit the
protest application against non-filing of the charge-
sheet against the appellants. In the deposition before
the Court, PW 1 and PW 2 have specifically stated
against the appellants herein and the specific role is
attributed to the appellant-accused herein. Thus, the
statement of PW 1 and PW 2 before the Court can be
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said to be “evidence” during the trial and, therefore,
on the basis of the same and as held by this Court in
Hardeep Singh [Hardeep Singh v. State of Punjab,
(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , the
persons against whom no charge-sheet is filed can be
summoned to face the trial. Therefore, we are of the
opinion that no error has been committed by the courts
below to summon the appellants herein to face the trial
in exercise of power under Section 319 CrPC.
8 . Now, so far as the submissions made on
behalf of the appellants herein relying upon the orders
passed by the learned Magistrate dated 1-9-2016 and
28-10-2016 that once the appellants herein were
discharged by the learned Magistrate on an
application submitted by the investigating officer/SHO
and, therefore, thereafter it was not open to the learned
Magistrate to summon the accused to face the trial in
exercise of power under Section 319 CrPC is
concerned, it appears that there is some misconception
on the part of the appellants. At the outset, it is
required to be noted that the orders dated 1-9-2016
and 28-10-2016 cannot be said to be the orders
discharging the accused. If the applications submitted
by the investigating officer/SHO and the orders passed
thereon are considered, those were the applications to
discharge/release the appellants herein from custody
as at that stage the appellants were in judicial custody.
Therefore, as such, those orders cannot be said to be
the orders of discharge in stricto sensu. Those are the
orders discharging the appellants from custody. Under
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the circumstances, the submission on behalf of the
accused that as they were discharged by the learned
Magistrate and therefore it was not open to the learned
Magistrate to exercise the power under Section 319
CrPC and to summon the appellants to face the trial,
cannot be accepted.
9 . In view of the above and for the reasons
stated above, we see no reason to interfere with the
impugned judgment and order [Rajesh v. State of
Haryana, 2018 SCC OnLine P&H 5035] passed by the
High Court confirming the order passed by the learned
Magistrate summoning the appellant-accused herein to
face the trial in exercise of the power under Section
319 CrPC. We are in complete agreement with the view
taken by the High Court. No interference is called for
by this Court.”
VIII. Juhru v. Karim , (2023) 5 SCC 406 : 2023
SCC OnLine SC 171 at page 412
“ 16. It is, thus, manifested from a conjoint
reading of the cited decisions that power of summoning
under Section 319CrPC is not to be exercised routinely
and the existence of more than a prima facie case is
sine qua non to summon an additional accused. We
may hasten to add that with a view to prevent the
frequent misuse of power to summon additional
accused under Section 319CrPC, and in conformity
with the binding judicial dictums referred to above, the
procedural safeguard can be that ordinarily the
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summoning of a person at the very threshold of the
trial may be discouraged and the trial court must
evaluate the evidence against the persons sought to be
summoned and then adjudge whether such material,
more or less, carry the same weightage and value as
has been testified against those who are already facing
trial. In the absence of any credible evidence, the
power under Section 319CrPC ought not to be
invoked.
This extract is taken from Juhru v. Karim,
(2023) 5 SCC 406 : 2023 SCC OnLine SC 171 at page
413
22 . The information available on record
suggests that the trial is at the stage of defence
evidence. The guidelines that the trial court must
follow, while commencing the trial against Appellant 1
have been extensively iterated by the Constitution
Bench in Sukhpal Singh Khaira [Sukhpal Singh Khaira
v. State of Punjab, (2023) 1 SCC 289 : (2023) 1 SCC
(Cri) 454] , in the following terms : (SCC p. 312, para
41)
“ 41 . (III) What are the guidelines
that the competent court must follow while
exercising power under Section 319CrPC
41.1 . If the competent court finds
evidence or if application under Section
319CrPC is filed regarding involvement of any
other person in committing the offence based
on evidence recorded at any stage in the trial
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before passing of the order on acquittal or
sentence, it shall pause the trial at that stage.
41.2 . The Court shall thereupon first
decide the need or otherwise to summon the
additional accused and pass orders thereon.
41.3. If the decision of the court is to
exercise the power under Section 319CrPC and
summon the accused, such summoning order
shall be passed before proceeding further with
the trial in the main case.
41.4. If the summoning order of
additional accused is passed, depending on the
stage at which it is passed, the Court shall also
apply its mind to the fact as to whether such
summoned accused is to be tried along with the
other accused or separately.
41.5. If the decision is for joint trial,
the fresh trial shall be commenced only after
securing the presence of the summoned
accused.
41.6 . If the decision is that the
summoned accused can be tried separately, on
such order being made, there will be no
impediment for the Court to continue and
conclude the trial against the accused who
were being proceeded with.”
IX. Ajay Kumar v. State of Uttarakhand , (2021) 4
SCC 301 : 2021 SCC OnLine SC 48 at page 304
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“ 4 . The principles for exercise of power
under Section 319 CrPC by the criminal court are well
settled. The Constitution Bench of this Court in
Hardeep Singh v. State of Punjab [Hardeep Singh v.
State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri)
86], has elaborately considered all contours of Section
319 CrPC. This Court has held that power under
Section 319 CrPC is a discretionary and extraordinary
power which has to be exercised sparingly. This Court
further held that 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 paras 105 and 106, the following
has been laid down : (SCC p. 138)
“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
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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 un-rebutted, 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 ‘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 CrPC to form any opinion as to the
guilt of the accused.”
(emphasis in original)”
25. The learned counsel for the petitioner submits that
from beginning to end in this case smacks of malafide and
malafide. A person is killed. Nobody is named in the FIR. One
SHO gets the statement of witnesses under Section 164 recorded in
which the petitioner is implicated. This happens after three
months. The S.H.O. pays the penalty before National Human
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Rights Commission and faces major departmental proceeding for
wrongly investigating the case. The investigation of the case is
taken away from Senior Superintendent of Police on materials
presented by the petitioner and handed over to another officer. The
A.D.J., issuing summons, is proceeded against by the Hon’ble
High Court for his alleged corruption.
26. If these facts are not enough a simple look at the
depositions would show that out of eleven witnesses ten have not
stated anything against the petitioner. Eleventh witness states that
it was the petitioner who paid the killer to kill her son. Learned
Sessions Judge took this into consideration without even looking
at para-5 of the deposition where the lady states that this
information came to her through newspaper.
27. If her deposition is tested on the angle of the law laid
down by the Hon’ble Supreme Court then it will be found that this
may not even constitute the prima facie case. Whereas the Hon’ble
Supreme Court has raised level of satisfaction of the court. Above
the materials sufficient to frame charge and below a satisfaction
that the allegation if uncontested would result in conviction.
28. The allegation that from a newspaper report one
witness come to know that a person has paid someone to kill her
son is a material which in any case is not going to get even the
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charges framed. Thus, the materials, the crux of the allegation is
wholly insufficient for issuance of a summon under Section 319 to
face the trial. The counsel for the informant apart from raising
questions on the Hon’ble Patna High Court has tried to argue that
the petitioner is a very rich person and a very influential person
and submission of final form, transfer of investigation, punishment
of SHO and punishment of judicial officer by the Hon’ble High
Court clearly point towards his high reach and influence. He has
also argued that the materials i.e. the allegation of mother
gathering from newspaper regarding the petitioner paying the
money to kill her son is sufficient to attract Section 319 IPC. The
Court presumes that the learned counsel must be addressing the
court on the instruction of his client and thus, resists from making
any further comment on the issue.
29. Apart from complete absence of materials, this Court
finds that the case is attended and actuated by malafide from the
very beginning and the petitioner has been implicated in this case
in the mode and manner which apparently seems malafide . Thus,
the court has no hesitation in quashing the order of Section 319
dated 22.08.2019 summoning the petitioner under Section 319 by
holding that the action is actuated by malafide at many levels and
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the materials over which the summons have been issued are, to say
the least, are extremely insufficient to exercise the power.
(Ansul, J)
amitkr/-
AFR/NAFR AFR
CAV DATE 24.03.2026
Uploading Date
Transmission Date