Shiv Baran vs. State Of U.P

2025 INSC 860
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3008 OF 2025
(Arising out of SLP(Crl.)No.3993 of 2025)
SHIV BARAN …APPELLANT(S)
VERSUS
STATE OF U.P. & ANR. .…RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
Leave Granted
2. The instant appeal preferred by the appellant-
rd
complainant, arises out of judgment and order dated 23 July
2024 passed by the High Court of Judicature at Allahabad in
Criminal Revision No.5517 of 2023, quashing the summons
issued against Rajendra Prasad Yadav, Respondent No.2 herein,
1
under Section 319 of the Code of Criminal Procedure, 1973
Signature Not Verified
th
vide order dated 28 September 2023 passed by the Additional
Digitally signed by
RAJNI MUKHI
Date: 2025.07.16
17:30:28 IST
Reason:
1 Hereinafter ‘CrPC
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2
Sessions Judge, Kaushambi in Sessions Trial No.109 of 2018,
arising out of Case Crime No.303 of 2017.
3. Brief facts giving rise to the present appeal are :
(i) Two FIRs were lodged in respect of an incident which
th
allegedly took place on 29 November 2017. First
3
FIR was registered by the appellant-complainant,
4
namely, Shiv Baran , under Sections 302, 307, 504
5
and 506 of the Indian Penal Code, 1860 against four
persons, namely, Rahul, Dinesh, Rajendra and Shiv
6
Moorat , alleging the said accused of having, with the
common intention, entered his house and assaulted his
brother, who, when taken to the Hospital, succumbed
to the injuries.
7
(ii) Second FIR was lodged by one Suresh Kumar under
Sections 452, 323, 504, 506 and 325 of IPC, alleging
that the accused persons entered his house, hurled
abuses, and assaulted the first informant and his wife.
Here, we may clarify that the matter pertains only to
the first FIR.
2 Hereinafter “Trial Court”
3 Case Crime No. 303 of 2017
4 The first informant
5 Hereinafter ‘IPC’
6 Moorat and Murat are referred for the same person in the record.
7 Case Crime No.315 of 2017
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(iii) The Investigating Officer, based on the material
collected during the course of investigation,
concluded that the accused, Rajendra Prasad, not to
have played any role in the alleged crime and, as
such, in connection with the first FIR, submitted a
th
chargesheet dated 24 February 2018 only with
respect to accused persons, viz. , Dinesh Yadav and
Shiv Murat Yadav, in relation to offences committed
under Sections 302, 307, 504 and 506 read with
Section 34 of the IPC.
(iv) During the course of the said trial, finding witnesses
PW1 - Shiv Baran Yadav, PW2 - Raj Baran and PW3
- Subhash Yadav, to have deposed about the role of
accused Rajendra Prasad Yadav, the complainant
moved an application under Section 319 CrPC
praying therein to add his name as co-accused, which
application, though initially stood rejected by the
st
Sessions Court vide order dated 31 January 2022 but
on remand by the High Court, was eventually allowed
by the Trial Court vide order dated 28th September
2023.
(v)
In a petition preferred by Rajendra Prasad Yadav, the
High Court while setting aside the said order of
summoning passed by the Trial Court, inter alia
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observed that PW-1 had not ascribed any role to the
accused and that the testimonies of PWs 2 and 3 could
not be said to be implicating the said accused, for
there being no specific reference with regard to the
description and the manner of occurrence of the
incident. Further, they had not ascribed any motive to
the crime. Unless and until there is evidence of a
strong motive, a person cannot be summoned as an
accused. In the absence of any cogent material prima
facie indicating complicity of the said accused, the
Trial Court committed an error in passing the order
impugned.
(vi) Challenging this order of the High Court, the
complainant/first informant is before us.
4. Heard learned counsel for the parties and perused the
record.
5. Here only, it would be pertinent to extract the relevant
provision of CrPC :
“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.
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6. A perusal of the said section would reveal it to be an
enabling provision, empowering the Court to proceed against
any person, even if not cited as an accused, based on the
evidence collected during the inquiry or trial, revealing the
complicity of such a person to be arrayed as an accused. The
object is to ensure that no guilty person should be allowed to
escape the process of law, which is based on the doctrine of
judex damnatur cum nocens absolviture (Judge is condemned
when guilty is acquitted). The provision casts duty upon the
Court to ensure that the real culprit does not get away
unpunished, for the same to be part of a fair trial. However, the
power under the said Section has to be invoked only upon the
satisfaction of cogent material brought on record, necessitating
such impleadment. The power to be exercised, needless to add,
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is to be with utmost caution and not in a casual, callous or
cavalier manner – for the same is only to advance the cause of
justice and not be a tool to harass the individual or result into an
abuse of the process of law.
7. The question whether the word 'evidence' used in Section
319(1) CrPC means only evidence tested by cross-examination
or the statements made in the examination-in-chief would be
sufficient for exercising the power under this Section, has been
answered by the Constitution Bench of this Court in Hardeep
8
Singh v. State of Punjab in the following manner :
“89. … Once examination-in-chief is conducted, the
statement becomes part of the record. It is evidence as
per law and in the true sense, for at best, it may be
rebuttable. An evidence being rebutted or controverted
becomes a matter of consideration, relevance and
belief, which is the stage of judgment by the court. Yet
it is evidence and it is material on the basis whereof the
court can come to a prima facie opinion as to
complicity of some other person who may be connected
with the offence.
90. As held in Mohd. Shafi [ Mohd. Shafi v. Mohd.
Rafiq , (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 :
AIR 2007 SC 1899] and Harbhajan Singh [(2009) 13
SCC 608 : (2010) 1 SCC (Cri) 1135] , all that is
required for the exercise of the power under Section
319 CrPC is that, it must appear to the court that some
other person also who is not facing the trial, may also
have been involved in the offence. The prerequisite for
the exercise of this power is similar to the prima facie
view which the Magistrate must come to in order to
take cognizance of the offence. Therefore, no
8 (2014) 3 SCC 92
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straitjacket formula can and should be laid with respect
to conditions precedent for arriving at such an opinion
and, if the Magistrate/court is convinced even on the
basis of evidence appearing in examination-in-chief, it
can exercise the power under Section 319 CrPC and can
proceed against such other person(s). It is essential to
note that the section also uses the words “such
person could be tried” instead of should be tried.
Hence, what is required is not to have a mini-trial at
this stage by having examination and cross-examination
and thereafter rendering a decision on the overt act of
such person sought to be added. In fact, it is this mini-
trial that would affect the right of the person sought to
be arraigned as an accused rather than not having any
cross-examination at all, for in light of sub-section (4)
of Section 319 CrPC, the person would be entitled to a
fresh trial where he would have all the rights including
the right to cross-examine prosecution witnesses and
examine defence witnesses and advance his arguments
upon the same. Therefore, even on the basis of
examination-in-chief, the court or the Magistrate can
proceed against a person as long as the court is
satisfied that the evidence appearing against such
person is such that it prima facie necessitates bringing
such person to face trial. In fact, examination-in-chief
untested by cross-examination, undoubtedly in itself, is
an evidence.
…
92. Thus, in view of the above, we hold that power
under Section 319 CrPC can be exercised at the stage of
completion of examination-in-chief and the court does
not need to wait till the said evidence is tested on cross-
examination for 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 the trial in the offence.
…
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Hardeep Singh (supra) to be the one that is more than a prima
facie case required at the time of framing of charges, but less
than the satisfaction that would warrant conviction :
“9. Answering Issue (iv) as noticed above in Hardeep
Singh [ Hardeep Singh v. State of Punjab, (2014) 3
SCC 92 : (2014) 2 SCC (Cri) 86 ], in paras 105 and
106 of the judgment, the following was laid down by
the Constitution Bench:
“105...
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

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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 supplied)
9. This Court, in Ramesh Chandra Srivastava v. State of
10
U.P. reiterated that the power under Section 319 CrPC should
only be exercised when strong and cogent evidence is presented
against a person and the test to be applied is one that is more
than a prima facie case, as applied at the time of framing of
charges.
10. The Court, under this Section, can also proceed against a
person who, though named in FIR, is not implicated by the
Investigating Officer in the chargesheet, provided the statutory

11
Chandak , it was observed :
“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
10 (2021) 12 SCC 608
11 (2017) 16 SCC 226
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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.”
(Emphasis supplied)

12
11. Most recently, this Court in Omi v. State of M.P. ,
summarized the principles that need to be kept in mind for the
summoning of additional accused :
“ 19. The principles of law as regards Section 319CrPC
may be summarised as under:
19.1. On a careful reading of Section 319CrPC as well
as the aforesaid two decisions, it becomes clear that the
trial court has undoubted jurisdiction to add any person
not being the accused before it to face the trial along
with other accused persons, if the Court is satisfied at
any stage of the proceedings on the evidence adduced
that the persons who have not been arrayed as accused
should face the trial. It is further evident that such
person even though had initially been named in the FIR
as an accused, but not charge-sheeted, can also be
added to face the trial.
19.2. 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.
12 (2025) 2 SCC 621
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before the Court has to be considered, and statements recorded
under 161 CrPC could only be treated as corroborative material
and not as independent evidence.
13
13. In Brijendra Singh v. State of Rajasthan , this Court
observed that 'evidence' recorded during the trial was nothing
13 (2017) 7 SCC 706
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more than the statements which were already there under
Section 161 CrPC; the Trial Court ought to have looked into the
evidence collected during the investigation which suggested
otherwise and to see whether much stronger evidence than the
mere possibility of complicity of accused person has come on
record.
OUR VIEW
14. The foregoing discussion would reveal the following
statutory requisites for summoning any person not being the
accused:
(a) such person has committed an offence; (b) his
complicity is revealed from the evidence collected during
inquiry or trial; and (c) for such offence, he can be tried
together with the accused already facing trial.
15. The principles that the Trial Court ought to follow while
exercising power under this Section are :
(a) This provision is a facet of that area of law which
gives protection to victims and society at large, ensuring
that the perpetrators of crime should not escape the force
of law;
(b) It is the duty cast upon the Court not to let the guilty
get away unpunished;
(c) The Trial Court has broad but not unbridled power as
this power can be exercised only on the basis of evidence
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adduced before it and not any other material collected
during investigation;
(d) The Trial Court is not powerless to summon a person
who is not named in the FIR or Chargesheet; they can be
impleaded if the evidence adduced inculpates him;
(e) This power is not to be exercised in a regular or
cavalier manner, but only when strong or cogent evidence
is available than the mere probability of complicity;
(f) The degree of satisfaction required is much stricter
than the prima facie case, which is needed at the time of
framing of charge(s);
(g) The Court should not conduct a mini-trial at this stage
as the expression used is 'such person could be tried’ and
not ‘ should be tried’.
16. Reverting to the facts of the case, it is pertinent to
reproduce the relevant extract of the FIR, wherein the name of
Respondent No.2 was referred :
“....I was sitting with my brother Yadunath at my
doorstep taking sun bath when Rahul and Dinesh, sons
of Hurbalal Rajendra, son of Lallu, Shivamust, son of
Kamta, from my own village, came to my door with
sticks, batons and axes in their hands with the intention
of killing me and started abusing me....”
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17. PW1, in his statement recorded before the Trial Court on
st
21 August 2018, deposed :
“…I and my brother Yadunath were at the door, we
were sitting and taking sunlight. Rahul, Dinesh, Rajesh,
Shivmurat of my own village came with sticks and axes
and started abusing us…”
th
18. PW1’s statement was again recorded on 10 March 2021
14
after the consolidation of Case No.146/2018 and Session Trial
No.109/2018, where he deposed :
“..I and my brother Yadunath were sitting at the door
taking sun. Rajendra, Dinesh, Rahul and Shivmurti of
my own village were carrying axes. Dinesh and Rahul
were carrying sticks... Rajendra had a baton. They

came together and started abusing us…”
19. A perusal of the three extracted statements would reveal
four persons being consistently named by this witness; it is only
st
in the statement dated 21 August 2018 that Rajesh, instead of
Rajendra, is mentioned. The remaining three names remained
the same. Not only is he named, but a specific role is assigned
to him, i.e., carrying a baton (weapon of offence).
20. Here, we may clarify, as is evident from our order dated
rd
3 March 2025, that Rajesh and Rajendra are the same person.
21. PW2 also deposed that when his father and uncle were
basking under the sun, ' Rajendra armed with stick’ came to the
14 Against accused-Rahul
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door of his house with a common objective and started
assaulting him and his family members. PW3 also deposed to
the effect that Rajendra , who had a stick, started assaulting both
his father and grandfather.
22. The evidence from all three alleged eyewitnesses,
although prima facie, suggests the complicity of Rajendra
(Respondent No. 2); a specific role being assigned to him,
indicating that he was present at the scene of the occurrence,
armed with a stick. The High Court tried to apply the same
standard in deciding this application as is ordinarily used at the
end of the trial in determining the conviction or otherwise of the
accused. Whereas it ought to have considered that the standard
of satisfaction required is short of the standard necessary for
passing a final judgment after trial.
23. Rajendra, although not charge sheeted, was named in the
FIR, and the evidence thus far, leads, prima facie, to reveal his
role. Therefore, at this stage, there is sufficient material to put
him on trial; whether he will ultimately be convicted or not is
left to be determined by a full-fledged inquiry at the end of the
trial. It would be premature to comment anything on his
conviction. The first informant categorically mentioned him as
the one who came along with the others, with a common intent,
abusing and beating, causing the death of his brother, apart from
causing serious injuries to the others.
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24. In our considered view, the High Court proceeded to
conduct a mini trial solely relying upon the affidavits submitted
before the Superintendent of Police qua the innocence of
Respondent No.2. It erred in giving a categorical finding on the
merits of PW1, the injured eyewitness not to have named
Respondent No.2, which we find is based on erroneous
assumption and contrary to the factual position emerging from
the record. The High Court erred in observing that witnesses
have stated nothing about the motive of the crime; that the
depositions are silent on the aspect of common intention;
absence of the manner or sequence of occurrence of the
incident; or that it cannot be inferred who is the aggressor. All
these questions, amongst others, are relevant or not is a matter
to be considered at the stage of final adjudication.
25. It is a settled law that the power under Section 319 CrPC
must be exercised sparingly. However, where the evidence
reveals the complicity of the prospective accused, it becomes
obligatory for the authority to exercise the power provided
under the said Section.
26. With the aforesaid observations, the appeal is accordingly
rd
allowed. The impugned order dated 23 July 2024 is set aside,
th
and the summoning order dated 28 September 2023, passed by
the Trial Court in Sessions Trial No.109/2018, is restored.
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27. Parties are directed to appear before the Trial Court on
th
28 August, 2025. We direct them to fully co-operate and not
take any unnecessary adjournments. The trial is expedited to be
positively completed within a period of 18 months.
28. Pending application(s), if any, are disposed of.
…………………………J.
(SANJAY KAROL)
………………………….J.
(JOYMALYA BAGCHI )
New Delhi;
July 16, 2025.
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