Patna High Court
Draupadi Kunwar @ Draupati Kunwar vs The State Of Bihar on 7 January, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.410 of 2021
Arising Out of PS. Case No.-44 Year-2009 Thana- BARHARIA District- Siwan
======================================================
1. Draupadi Kunwar @ Draupati Kunwar Wife Of Late Vijay Mishra @ Vijay
Kumar Resident Of Usari, P.S.- Barharia (G.B. Nagar), District - Siwan
(Bihar).
2. Anup Mishra Son of Late Vijay Mishra @ Vijay Kumar Resident of Usari,
P.S.- Barharia (G.B. Nagar), District - Siwan (Bihar).
3. Devendra Mishra Son of Late Ramayan Mishra Resident of Usari, P.S.-
Barharia (G.B. Nagar), District - Siwan (Bihar).
... ... Petitioners
Versus
1. The State of Bihar
2. Babunand Mishra Son of Late Ram Ramdadan Mishra Resident of Village -
... ... Respondents
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Appearance :
For the Petitioners : Mr. Vijay Kumar Mishra, Advocate
For the State : Mr. Upendra Kumar, APP
For the O.P. No.2 : None
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 07-01-2025
The present Criminal Revision petition has been
preferred by the petitioners against the impugned order dated
18.01.2020
, passed by learned Trial Court F.T.C-I, Siwan in
Sessions Trial No. 122 of 2012, whereby the petitioners have
been summoned under Section 319 Cr.PC for facing the trial.
2. The prosecution case as emerging from the written
report dated 04.04.2009 given by the informant to the Officer
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
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Incharge of G.B. Nagar, Police Station, Siwan, is that the
accused Keshav Mishra, Devendra Mishra, Drauptai Kunwar
and Anup Mishra set fire to the hut like house of the informant
where he was shifting his household items after demolishing his
old house. The house got burnt. At the time of burning of the
house, his brother and son were present. Four new cycles, big
boxes, hundred sacks of grains, paddy and wheat, sewing
machine, pumping sets, thrasher and other items worth Rs.4-5
lacs got destroyed. The accused persons fled away after setting
fire to his house.
3. On the basis of the written report, Barhariya P.S.
Case No. 44 of 2009 was lodged on 05.04.2009 against four
accused persons, namely, Keshav Mishra, Devendra Mishra,
Drauptai Kunwar and Anup Mishra for offence punishable
under Section 436 read with Section 34 of the Indian Penal
Code. After investigation, charge-sheet was submitted only
against one of the accused persons, namely, Keshav Mishra and
the rest accused persons were exonerated by the police.
4. During course of trial, three prosecution witnesses
viz., Shivnath Sah, Babunand Mishra and Lalbabu Mishra were
examined and after their examination, one application was
moved by the prosecution for summoning the rest accused
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persons, who are petitioners herein, the application was allowed
by learned Trial Court by the impugned order, summoning the
petitioners to stand trial along with the accused who was already
facing the trial. Being aggrieved, the petitioners have preferred
the present revision petition.
5. I heard learned counsel for the petitioners and
learned APP for the State. However, nobody is present on behalf
of O.P. No. 2.
6. Learned counsel for the petitioners submits that the
petitioners are innocent and have been falsely implicated in this
case. He further submits that the impugned order is not
sustainable in the eye of law.
7. To substantiate his submissions, he further submits
that the petitioners were named accused in the FIR, but after
investigation, they were found to be innocent and hence, no
charge-sheet was submitted against them and, as such, they are
beyond the reach of Section 319 Cr.PC because they were
already accused and, hence, Section 319 Cr.PC will not
applicable against them and they cannot be summoned. As such,
learned Trial Court has erroneously summoned the petitioners to
face the trial on the basis of evidence of the prosecution
witnesses recorded during trial. He refers to and relies upon the
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judgment dated 26.04.2024 passed by learned Single Judge of
this Court in Shivjee Singh Vs. State of Bihar and Anr.
(Cr.Misc. No. 31020 of 2016).
8. He also submits that even the standard of evidence
as required for summoning an accused under Section 319 Cr.PC
is not there in the evidence of the prosecution witnesses and,
hence, the impugned order is not sustainable in the eye of law.
9. However, learned APP for the State defends the
impugned order submitting that there is no illegality or infirmity
in the impugned order. He further submits that the petitioners
were not charge-sheeted and hence, they could be summoned
under Section 319 Cr.PC on the basis of the Prosecution
evidence which had come during trial.
10. I considered the submissions advanced by both the
parties and perused the materials on record.
11. Before I consider the rival submissions of the
parties, it would be pertinent to examine the scope and ambit of
the power of the Courts under Section 319 Cr.PC which reads as
follows:-
“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
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
5/23the offence which he appears to have committed.
(2) Where such person is not attending the Court he
may be arrested or summoned, as the circumstances of the
case may require, for the purpose aforesaid.
(3) Any person attending the Court although not
under arrest or upon a summons, may be detained by such
Court for the purpose of the inquiry into, or trial of, the
offence which he appears to have committed.
(4) Where the Court proceeds against any person
under Sub-Section (1) then–
(a) the proceedings in respect of such person
shall be commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the
case may proceed as if such person had been an accused
person when the Court took cognizance of the offence
upon which the inquiry or trial was commenced.”
12. In Hardeep Singh vs. State of Punjab and Ors,
(2014) 3 SCC 92, Hon’ble Constitution Bench of Apex Court
had occasion to consider in detail the scope and ambit of power
of the Courts under Section 319 Cr.PC and held as follows:
“19. The court is the 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.
………………………………………………………………………………….
22. In our opinion, Section 319 CrPC is an enabling
provision empowering the court to take appropriate steps
for proceeding against any person not being an accused
for also having committed the offence under trial. It is this
part which is under reference before this Court and
therefore in our opinion, while answering the question
referred to herein, we do not find any conflict so as to
delve upon the situation that was dealt with by this Court
in Dharam Pal v. State of Haryana, (2014) 3 SCC 306.
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6/23………………………………………………………………………………….
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 of this
Court in Vikas v. State of Rajasthan (2014) 3 SCC 321,
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.
………………………………………………………………………………….
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 “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.
Question (v)–In what situations can the power under this
section be exercised : not named in FIR; named in the FIR
but not charge-sheeted or has been discharged?
107. In Joginder Singh v. State of Punjab (1979) 1 SCC
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
7/23345, 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 CrPC excludes from its
operation an accused who has been released by the police
under Section 169 CrPC 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)
CrPC 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.
………………………………………………………………………………….
111. Even the Constitution Bench in Dharam Pal v. State
of Haryana, (2014) 3 SCC 306 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 charge-sheet, 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 charge-sheet or whose
name appears in the FIR and not in the main part of the
charge-sheet but in Column 2 and has not been summoned
as an accused in exercise of the powers under Section 193
CrPC 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
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
8/23try to separate the chaff from the grain. If after such
careful examination of the evidence, the court is of the
opinion that there does exist evidence to proceed against
the person so discharged, it may take steps but only in
accordance with Section 398 CrPC without resorting to
the provision of Section 319 CrPC directly.
113. In Sohan Lal 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 CrPC cannot be circumvented by
prescribing to procedure under Section 319 CrPC.
………………………………………………………………………………….
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 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,
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9/23concerning 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.”
(Emphasis Supplied)
13. After considering the relevant statutory provisions
and judicial precedents, the Hon’ble Apex Court in Hardeep
Singh case (supra) summarized the legal position regarding the
extent and scope of Section 319 Cr.PC in the following words:-
“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?
Answer
117.1. In Dharam Pal case [Dharam Pal v. State of
Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018] , the
Constitution Bench has already held that after committal,
cognizance of an offence can be taken against a person not
named as an accused but against whom materials are
available from the papers filed by the police after
completion of the investigation. Such cognizance can be
taken under Section 193 CrPC and the Sessions Judge
need not wait till “evidence” under Section 319 CrPC
becomes available for summoning an additional accused.
117.2. Section 319 CrPC, significantly, uses two
expressions that have to be taken note of i.e. (1) inquiry
(2) trial. As a trial commences after framing of charge, an
inquiry can only be understood to be a pre-trial inquiry.
Inquiries under Sections 200, 201, 202 CrPC, and under
Section 398 CrPC are species of the inquiry contemplated
by Section 319 CrPC. Materials coming before the court
in course of such inquiries can be used for corroboration
of the evidence recorded in the court after the trial
commences, for the exercise of power under Section 319
CrPC, and also to add an accused whose name has been
shown in Column 2 of the charge-sheet.
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117.3. In view of the above position the word
“evidence” in Section 319 CrPC has to be broadly
understood and not literally i.e. as evidence brought
during a trial.
Question (ii)–Whether the word “evidence” used
in Section 319(1) CrPC could only mean evidence
tested by cross-examination or the court can exercise
the power under the said provision even on the basis of
the statement made in the examination-in-chief of the
witness concerned?
Answer
117.4. Considering the fact that under Section 319
CrPC a person against whom material is disclosed is only
summoned to face the trial and in such an event under
Section 319(4) CrPC the proceeding against such person
is to commence from the stage of taking of cognizance,
the court need not wait for the evidence against the
accused proposed to be summoned to be tested by cross-
examination.
Question (iv)–What is the nature of the
satisfaction required to invoke the power under
Section 319 CrPC to arraign an accused? Whether the
power under Section 319(1) CrPC can be exercised
only if the court is satisfied that the accused summoned
will in all likelihood be convicted?
Answer
117.5. Though under Section 319(4)(b) CrPC the
accused subsequently impleaded is to be treated as if he
had been an accused when the court initially took
cognizance of the offence, the degree of satisfaction that
will be required for summoning a person under Section
319 CrPC would be the same as for framing a charge
[Ed. : The conclusion of law as stated in para 106, p.
138c-d, may be compared:”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”. See also
especially in para 100 at p. 136f-g.] . The difference in the
degree of satisfaction for summoning the original accused
and a subsequent accused is on account of the fact that the
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
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trial may have already commenced against the original
accused and it is in the course of such trial that materials
are disclosed against the newly summoned accused. Fresh
summoning of an accused will result in delay of the trial
therefore the degree of satisfaction for summoning the
accused (original and subsequent) has to be different.
Question (v)–Does the power under Section 319
CrPC extend to persons not named in the FIR or
named in the FIR but not charge-sheeted or who have
been discharged?
Answer
117.6. A person not named in the FIR or a person
though named in the FIR but has not been charge-sheeted
or a person who has been discharged can be summoned
under Section 319 CrPC provided from the evidence it
appears that such person can be tried along with the
accused already facing trial. However, insofar as an
accused who has been discharged is concerned the
requirement of Sections 300 and 398 CrPC has to be
complied with before he can be summoned afresh.”
(Emphasis supplied)
14. In S. Mohammad Ispahani Vs. Yogendra
Chandak and Others (2017) 16 SCC 226, Hon’ble Supreme
Court had again considered the summoning of accused who was
named in the FIR but not named in the charge sheet to face on-
going trial. In the judgment, the Hon’ble Supreme Court held
as follows:-
“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
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
12/23named 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)
15. Similar view was again expressed by Hon’ble
Supreme Court in Rajesh and Ors. Vs. State of Haryana
(2019) 6 SCC 368, holding as follows:-
“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.”
(Emphasis Supplied)
16. In Manjeet Singh Vs. State of Haryana and
Others (2021) 18 SCC 321, Hon’ble Supreme Court had again
considered the scope and ambit of Section 319 Cr.PC for
summoning of additional accused and summarized the legal
position, observing as follows:-
“15. The ratio of the aforesaid decisions on the scope
and ambit of the powers of the court under Section
319CrPC can be summarised as under:
15.1. That while exercising the powers under Section
319CrPC and to summon the persons not charge-sheeted,
the entire effort is not to allow the real perpetrator of an
offence to get away unpunished.
15.2. For the empowerment of the courts to ensure
that the criminal administration of justice works properly.
15.3. The law has been properly codified and
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
13/23modified by the legislature under CrPC indicating as to
how the courts should proceed to ultimately find out the
truth so that the innocent does not get punished but at the
same time, the guilty are brought to book under the law.
15.4. To discharge duty of the court to find out the
real truth and to ensure that the guilty does not go
unpunished.
15.5. 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.
15.6. Section 319CrPC allows the court to proceed
against any person who is not an accused in a case before
it.
15.7. The court is the 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.
15.8. Section 319CrPC is an enabling provision
empowering the court to take appropriate steps for
proceeding against any person not being an accused for
also having committed the offence under trial.
15.9. The power under Section 319(1)CrPC can be
exercised at any stage after the charge-sheet is filed and
before the pronouncement of judgment, except during the
stage of Sections 207/208CrPC, committal, etc. which is
only a pre-trial stage intended to put the process into
motion.
15.10. The court can exercise the power under
Section 319CrPC only after the trial proceeds and
commences with the recording of the evidence.
15.11. The word “evidence” in Section 319CrPC
means only such evidence as is made before the court, in
relation to statements, and as produced before the court, in
relation to documents.
15.12. It is only such evidence that can be taken into
account by the Magistrate or the court to decide whether
the power under Section 319CrPC is to be exercised and
not on the basis of material collected during the
investigation.
15.13. If the Magistrate/court is convinced even on
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14/23the basis of evidence appearing in examination-in-chief, it
can exercise the power under Section 319CrPC and can
proceed against such other person(s).
15.14. That if the Magistrate/court is convinced even
on the basis of evidence appearing in examination-in-
chief, powers under Section 319CrPC can be exercised.
15.15. That power under Section 319CrPC can be
exercised even at the stage of completion of examination-
in-chief and the court need not to wait till the said
evidence is tested on cross-examination.
15.16. 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 FIR but not implicated in the
charge-sheet has gone, in that case also, the court is still
not powerless by virtue of Section 319CrPC and even
those persons named in 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 (may be in the form of examination-in-
chief of the prosecution witnesses).”
(Emphasis Supplied)
17. In Jitendra Nath Mishra Vs. State of Uttar
Pradesh and Another, (2023) 7 SCC 344, the Hon’ble
Supreme Court has summarized the principles regarding
summoning of additional accused under Section 319 Cr.PC in
the following words:-
“10. Section 319 Cr.PC, which envisages a
discretionary power, empowers the court holding a trial to
proceed against any person not shown or mentioned as an
accused if it appears from the evidence that such person
has committed a crime for which he ought to be tried
together with the accused who is facing trial. Such power
can be exercised by the court qua a person who is not
named in the FIR, or named in the FIR but not shown as
an accused in the charge-sheet. Therefore, what is
essential for exercise of the power under Section 319CrPC
is that the evidence on record must show the involvement
of a person in the commission of a crime and that the said
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
15/23person, who has not been arraigned as an accused, should
face trial together with the accused already arraigned.
However, the court holding a trial, if it intends to exercise
power conferred by Section 319CrPC, must not act
mechanically merely on the ground that some evidence
has come on record implicating the person sought to be
summoned; its satisfaction preceding the order thereunder
must be more than prima facie as formed at the stage of a
charge being framed and short of satisfaction to an extent
that the evidence, if unrebutted, would lead to conviction.”
(Emphasis Supplied)
18. In Juhru and Others Vs. Karim and Another
(2023) 5 SCC 406, the Hon’ble Supreme Court has again
explained the extent and scope of Section 319 Cr.PC holding as
follows:-
“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 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
319 Cr.PC ought not to be invoked.”
19. Even in the latest judgment of OMI @ Omkar
Rathore & Anr. Vs. The State of Madhya Pradesh and Anr.
as decided on 3.01.2025 [SLP (Crim) No. 17781 of 2024],
Hon’ble Apex Court has summarized the Principles of law as
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
16/23
regard Section 319 Cr.PC in the following words:
” 21. The principles of law as regards Section 319 of
the CrPC may be summarised as under:
a. on a careful reading of Section 319 of the CrPC 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 F.I.R. as an
accused, but not charge sheeted, can also be added to face
the trial
b. 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.
c. The power of the court under Section 319 of the
CrPC is not controlled or governed by naming or not
naming of the person concerned in the FIR. Nor the same
is dependent upon submission of the charge-sheet by the
police against the person concerned. As regards the
contention that the phrase ‘any person not being the
accused’ occurred in Section 319 excludes from its
operation an accused who has been released by the police
under Section 169 of the Code and has been shown in
column No. 2 of the charge-sheet, the contention has
merely to be stated 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
provision like Section a 319 (1) 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.
c. It would not be proper for the trial court to reject
the application for addition of new accused by considering
records of the Investigating Officer. When the evidence of
complainant is found to be worthy of acceptance then the
satisfaction of the Investigating Officer hardly matters. If
satisfaction of Investigating Officer is to be treated as
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
17/23determinative then the purpose of Section 319 would be
frustrated.”
20. Hence, it clearly emerges from the statutory
provisions and binding judicial precedents that the Court is
empowered to summon any person to be tried together with the
accused if it appears to the Court, on the basis of the evidence
adduced during the ongoing trial, that he has committed the
offence. The rationale behind such provision is that the Court is
the sole repository of justice and a duty is cast upon it to uphold
the rule of law and to ensure that no guilty person escapes from
criminal justice system by manipulating the investigating and/or
the prosecuting agency.
21. Here, the expression ‘any person’ means any
person who is not being tried by the Court in the ongoing trial. It
includes even such persons who were named in the FIR but not
charge-sheeted after investigation. Even such persons who were
discharged at the stage of framing of charge are included in the
expression “any person” and may be summoned under Section
319 Cr.PC complying with the requirements of Section 300 and
398 Cr.PC.
22. In Joginder Singh Vs. State of Punjab (1979) 1
SCC 107 the full Bench of Hon’ble Apex Court had held that
persons who were named in the FIR but released by the police
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
18/23
under Section 169 Cr.PC and not charge-sheeted, are excluded
from the expression “any person”. But Hon’ble the Constitution
Bench in Hardeep Singh case (supra) did not agree with this
view and held that even such person who were named in the FIR
but were not charge-sheeted after investigation by the police,
come within the purview of Section 319 Cr.PC and they may be
summoned if the evidence shows their involvement in the
offence. Even in Dharam Pal case (supra), Hon’ble
Constitution Bench has held that the persons named in the FIR,
but not charge-sheeted by the police after investigation, may be
summoned by the Court, provided the Court is satisfied that the
conditions provided in the statutory provisions stand fulfilled.
23. It also emerges that power under Section 319
Cr.PC is a discretionary and extraordinary power and it is to be
exercised sparingly and only in those cases where the
circumstances of the case so warrant. It should not be exercised
in a casual and cavalier manner.
24. It also emerges that at the time of summoning
under Section 319 Cr.PC the Court has to see that there is a
strong and cogent evidence against such person laid before the
Court and not merely probability of his complicity. The degree
of satisfaction of the Court is much stricter. The test that has to
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
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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. The “evidence” is limited to the
evidence recorded during trial. The Court can exercise its power
under Section 319 Cr.PC even at the stage of completion of
examination-in-chief and it is not required to wait till the
completion of cross-examination. It is for the Court to be
satisfied regarding the complicity of other persons not facing the
trial in the offence, as per the evidence on record.
25. Coming to the case on hand, I find that the
Petitioners were named in the FIR and after investigation they
were not charge-sheeted. However, after examination of three
prosecution witnesses, learned Trial Court on application of the
prosecution, summoned the Petitioners under Section 319 Cr.PC
to stand trial along with the accused in the ongoing trial. In view
of the Constitution Bench judgment of Hardeep Singh case
(supra), it is well settled that persons named in the FIR but not
charge-sheeted after investigation can be summoned under
Section 319 Cr.PC if the Court finds that there is strong and
cogent evidence recorded during trial regarding their complicity
in the offence. Shivjee Singh case (supra) as decided by
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
20/23
learned Single Judge of this Court and relied upon by the
Petitioners is, in my humble opinion, per incurium, as it has
been passed by learned Single Judge ignoring the ratio
decidendi of Hardeep Singh case (supra) and hence this Court
is not bound by it. In Shivji Singh case the Petitioners were
named in the FIR but not charge-sheeted after investigation and
they were summoned under Section 319 Cr.PC on the basis of
the prosecution evidence recorded during the Trial. But learned
Single Judge relying upon the Sohan Lal and Others Vs. State
of Rajasthan (1990) 4 SCC 580 and ignoring the ratio
decidendi of Hardeep Singh case, allowed their petition setting
aside the summoning order passed against them.
26. From perusal of the Sohan Lal case (supra), it
transpires that it was decided by Hon’ble Division Bench of the
Apex Court in 1990 and in that case the question was- whether
the persons who were partially or fully discharged, could be
summoned under Section 319 Cr.PC. Here it was held as
follows:
“33. ………………the provisions of Section 319
had to be read in consonance with the provisions of
Section 398 of the Code. Once a person is found to
have been the accused in the case he goes out of the
reach of Section 319. Whether he can be dealt with
under any other provisions of the Code is a different
question. In the case of the accused who has been
discharged under the relevant provisions of the Code,
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
21/23the nature of finality to such order and the resultant
protection of the persons discharged subject to
revision under Section 398 of the Code may not be
lost sight of. This should be so because the
complainant’s desire for vengeance has to be tampered
(sic tempered) with though it may be, as Sir James
Stephen says: “The criminal law stands to the passion
of revenge in much the same relation as marriage to
the sexual appetite.” (General View of the Criminal
Law of England, p. 99). The APP’s application under
Section 216, insofar as the appellants 1 to 3 were
concerned, could be dealt with under Section 216.
Appellants 4 and 5 could be dealt with neither under
Section 216 nor under Section 319. In that view of the
matter the impugned order of the Magistrate as well as
that of the High Court insofar as the appellants 4 and
5, namely, Vijya Bai and Jiya Bai are concerned, have
to be set aside which we hereby do. The appeals are
allowed to that extent.”
27. But I find that in the Shivji Singh case (supra),
the Petitioners were not discharged. In fact, they were named in
the FIR but not charge-sheeted by the police after investigation.
Hence, the ratio of Sohan Lal Case (supra) was erroneously
applied, in my humble and respectful opinion, by learned Single
Judge in Shivji Singh case (supra) and binding precedent of
Hardeep Singh case (supra) was ignored.
28. As such, in the facts and circumstances of the case
on hand, it was legally permissible for the Court to summon the
Petitioners under Section 319 Cr.PC, if the evidence recorded
during the ongoing trial was strong and cogent.
29. As per the relevant material on record, I find that,
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
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allegedly, the Petitioners and co-accused had set fire to the hut
like house of the informant, resulting into destruction of his
house and household items. During trial, three witnesses,
Shivnath Shah, Babulal Mishra and Lalbabu Mishra were
examined. After perusal of their evidence as recorded during the
trial, I find that P.W.-1,Shivnath Shah is an eye witness to the
alleged occurrence and he has clearly deposed that the
Petitioners had set the house of the informant to fire resulting
into destruction of his house and household items. His evidence
does not appear to be demolished even after his cross-
examination. P.W.-2, Babulal Mishra is also an eye witness and
informant of the case and has supported the prosecution case
against the Petitioners. His evidence also appears to be intact
even after his cross-examination. P.W.-3- Lalbabu Mishra, is
also an eye witness to the alleged occurrence and has supported
the prosecution case against the Petitioners. His evidence
appears to be intact even after his cross-examination.
30. From the prosecution evidence, it also appears
that there is dispute between the accused-Petitioners and the
informant regarding land on which the hut like house of the
informant was standing and destroyed by fire. As such, there
appears to be a strong motive on the part of the Petitioners to
Patna High Court CR. REV. No.410 of 2021 dt.07-01-2025
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commit the offence.
31. Hence, I find that the evidence recorded against
the Petitioners in the ongoing trial is strong and cogent. It is
more than a prima facie case. As such, there is no illegality or
infirmity in the impugned order rendering the present petition
liable to be dismissed.
32. Accordingly, petition is dismissed.
(Jitendra Kumar, J.)
Shoaib/
S.Ali/Chandan –
AFR/NAFR AFR CAV DATE 09.12.2024 Uploading Date 07.01.2025 Transmission Date 07.01.2025