The accused person has committed the said offence, then, the Court has the power to call such other person and to join him in the proceedings for the said offence: High Court of Allahabad

Court No. 85 Case : CRIMINAL REVISION No. 32621 Revisionist : Mishri Lal Opposite Party : State of U.P. and Another Counsel for Revisionist : Kamal Dev Rai Counsel for Opposite Party : G.A Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri Kamal Dev Rai learned counsel for the applicant and Sri Arvind Kumar learned Additional Government Advocate appearing for the State opposite party The present criminal revision has been filed seeking to set aside the judgement and order dated 17.11.2021 passed by Additional Sessions Judge Court No. 1 Mainpuri in Session Trial No. 3114under Sections 307 504 I.P.C. Police Station Kishni District Mainpuri arising out of Case Crime No. 2614 on the application of the opposite party no.2 filed under Section 319 of the Code of Criminal Procedure 19731 Learned counsel for the revisionist has sought to assail the order passed by the court below by referring to the factual aspects of the case to contend that the revisionist has been falsely implicated in the criminal case. He has submitted that the jurisdiction under Section 319 of the Code is to be exercised in an extra ordinary situation where there is a strong possibility of the conviction of the accused who is proposed to be summoned and the powers are not to be exercised in a routine manner. It is further pointed out that the Investigating Officer did not find any material against the revisionist and no charge sheet having been submitted 1 The Code against him there was no further material on the basis of which the trial court could have summoned the revisionist Learned Additional Government Advocate I has controverted the assertions made by the counsel for the revisionist by drawing attention to the fact that the revisionist herein was named in the FIR and as per the FIR version he was assigned a specific role. Attention has been drawn to the fact that the testimony of PW 1 and PW 2 during the course of trial have pointed to the complicity of the revisionist and his clear role in the incident. It is also contended that the testimony before the trial judge would have to be given more weight than the report submitted by the Investigating Officer pursuant to the The ambit and scope of the powers of the Magistrate under Section 319 of the Code were considered in the Constitution Bench judgment of the Supreme Court in Hardeep Singh and Others vs. State of Punjab2. Referring to the object of the provision it was held that the object of the provision is that the real culprit should not get away unpunished and in a situation 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. It was stated thus : “8.The constitutional mandate under Articles 20 and 21 of the Constitution of India 1950 provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time the guilty are brought to book under the law. It is these 2 3 SCC 92 ideals as enshrined under the Constitution and our laws that have led to several decisions whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. 9. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty Alternatively certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort therefore is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 Code of Criminal Procedure. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject matter of trial. 12. Section 319 Code of Criminal Procedure springs out of the doctrine judex damnatur cum nocens absolviturand this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC It is the duty of the court to do justice by punishing the real culprit Where the investigating agency for any reason does not array one of the real culprits as an accused the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC 17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus the person against whom summons are issued in exercise of such powers has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 Code of Criminal Procedure or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence. 18. The legislature cannot be presumed to have imagined all the circumstances and therefore it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by 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.” As regards the degree of satisfaction required for invoking the powers under Section 319 of the Code it was 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. It was observed as follows : “105. Power under Section 319 Code of Criminal Procedure is a discretionary and an extra ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross Examination it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction. In the absence of such satisfaction the court should refrain from exercising power under Section 319 Code of Criminal Procedure. In Section 319 Code of Criminal Procedure 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 Code of Criminal Procedure to form any opinion as to the guilt of the accused. The question as to in what situations the power under the section can be exercised in respect of persons not named in the FIR or named in the FIR but not charge sheeted or discharged was also considered and it was held 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 charge sheet can still be summoned by the court provided the conditions under the section stand fulfilled. It was observed as follows : “111. Even the Constitution Bench in Dharam Palhas held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the chargesheet or whose name appears in the FIR and not in the main part of the chargesheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 Code of Criminal Procedure can still be summoned by the court provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled. 117.6 A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Code of Criminal Procedure provided from the evidence it appears that such person can be tried along with the accused already facing trial. However in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Code of Criminal Procedure has to be complied with before he can be summoned afresh. ” The word evidence as used under Section 319(1) of the Code was also considered and it was held as follows : “84. The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and as discussed earlier even at the stage of inquiry as used under Section 319 Code of Criminal Procedure.The court therefore should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 85. In view of the discussion made and the conclusion drawn hereinabove the answer to the aforesaid question posed is that apart from evidence recorded during trial any material that has been received by the court after cognizance is taken and before the trial commences can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Code of Criminal Procedure. The “evidence” is thus limited to the evidence recorded during trial. ” The principles with regard to exercise of power by the court to summon an accused under Section 319 of the Code were reiterated in S. Mohammed Ispahani Vs. Yogendra Chandak and others3 and it was held that the power under Section 319 to summon even those persons who are not named in the charge sheet to appear and face trial is unquestionable. It was observed thus : “28.Insofar as power of the Court Under Section 319 of the Code of Criminal Procedure to summon even those persons who are not named in the charge sheet to appear and face trial is concerned the same is unquestionable. Section 319 of the Code of Criminal Procedure is meant to rope in even those persons who were not implicated when the charge sheet was filed but during the trial the Court finds that sufficient evidence has come on record to summon them and face the trial. In Hardeep Singh s case the Constitution Bench of this Court has settled the law in this behalf with authoritative pronouncement thereby removing the cobweb which had been created while interpreting this provision earlier. As far as object behind Section 319 of the Code of Criminal Procedure is concerned the Court had highlighted the same as under: 19.The court is sole repository of justice and a duty is cast upon it to uphold the Rule of law and therefore it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused at times get away by manipulating the investigating and or the prosecuting agency. The desire to avoid trial is so strong that an Accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence. The power to proceed against persons named in FIR with specific allegations against them but not charge sheeted was reiterated in Rajesh and others Vs. State of Haryana 4 and it was held that persons named in the FIR but not implicated in charge sheet can be summoned to face trial provided during the trial some evidence surfaces against the proposed accused The exercise of powers under Section 319 of the Code for summoning an additional accused again came up for consideration in Saeeda Khatoon Arshi Vs. State of Uttar Pradesh and another5 and it was held that it is the duty of the court to give full effect to the words used by the legislature so as to encompass any 3 16 SCC 226 4 6 SCC 368 2020) 2 SCC 323 situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial inspite of the possibility of his complicity which can be gathered from the documents presented by the prosecution In the facts of the present case the court below has taken note of the fact that the revisionist was not only named in the F.I.R. but he was also assigned a role in the incident. The testimony of P.W. 1 and P.W. 2 being indicative of the complicity of the revisionist have also been referred and in particular their statements that at the time of the incident the revisionist was present at the spot and it was the licensed weapon of the revisionist which was used by the principal accused for causing the firearm injuries. Upon considering the settled legal position with regard to exercise of powers under Section 319 the court below has passed the order summoning the revisionist The FIR version as also the evidence before the trial judge being indicative of the complicity of the revisionist though not arraigned as an accused in the charge sheet it was open to the trial court to form a view that the revisionist be tried together with the other accused and for the said purpose summon the revisionist in exercise of powers under Section 319 of the Code The broad principles which have been laid down for exercise of powers under Section 319 of the Code underline the object of the enactment that the real perpetrator of the offence should not get away unpunished and in a situation where the investigating agency for any reason does not array any culprit as an accused the court would not be powerless in calling the accused to face trial rather it would be duty of the court to do justice by punishing the real culprit The test which has been laid down with regard to the degree of satisfaction required for invoking the powers under Section 319 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 power to proceed under Section 319 has also been held to be exerciseable in respect of persons though named in the FIR but not charge sheeted provided the court is satisfied that the conditions provided under the section stand fulfilled. Section 319of the Code envisages that 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 The word evidence used under Section 319of the Code has been held to be understood to refer to the evidence recorded during trial and also any material that has been received by the court after cognizance is taken and before the trial commences to be utilized for corroboration and to support the evidence recorded by the court. The evidence recorded by the court during trial is thus to be accorded primacy and for the purpose of exercise of power under Section 319 of the Code would have to be given weight over the material which was collected during the course of investigation The contention which has been sought to be raised placing reliance upon the material collected by the investigating officer during the course of investigation for the purpose of exercise of powers under Section 319 of the Code thus cannot be accepted. The power under Section 319 of the Code to summon even those persons who are not named in the charge sheet to appear and face trial being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scot free by being not arraigned in the trial inspite of possibility of his complicity which can be gathered from the evidence during the course of trial the order passed under Section 319 of the Code summoning the revisionist does not contain any material error so as to warrant inference The aforementioned legal position has been considered in detail in recent decisions of this Court in Adesh Tyagi vs. State of U.P. and Another6 and Upendra @ Mohit vs. State of U.P. and 22. Counsel for the applicant at this stage submits that he does not dispute the aforementioned legal position with regard to the exercise of powers under Section 319 of the Code and states that the applicant would submit to the jurisdiction of the court below and seek bail It goes without saying that in case any such application is moved the court below would be expected to dispose it of in accordance with the settled principles of law Subject to the aforesaid observation the revision stands Order Date : 4.12.2021 Dr. Y.K. Srivastava J 2021ACC 484 7 Criminal Revision No. 19821 decided on 07.10.2021

Summary: At the time of inquiry or at the time of the trial of an offence, the evidence collected or recorded discloses that any person other than the accused has committed the said offence, then, the Court has the power to call such other person and join him in the proceedings for the said offence and the same issue was held in the judgement passed by a single bench judge Hon’ble Dr Yogendra Kumar Srivastava, J. In the matter, Mishri Lal V/s  State of U.P. and Another [CRIMINAL REVISION No. – 3260 of 202] dealt with an issue mentioned above. The present criminal revision has been filed seeking to set aside the judgement and order dated 17.11.2021 passed by Additional Sessions Judge, Court No. 1, Mainpuri in Session Trial No. 316 of 2014 (State vs. Anoj Kumar), under Sections 307, 504 I.P.C., Police Station-Kishni, District-Mainpuri, arising out of Case Crime No. 266 of 2014, on the application of the opposite party no.2 filed under Section 319 of the Code of Criminal Procedure, 19731. As regards the degree of satisfaction required for invoking the powers under Section 319 of the Code, it was 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 The power to proceed against persons named in FIR with specific allegations against them, but not charge-sheeted, was reiterated in Rajesh and others Vs. The state of Haryana,4 and it was held that persons named in the FIR but not implicated in charge sheet can be summoned to face trial, provided during the trial some evidence surfaces against the proposed accused. The FIR version as also the evidence before the trial judge being indicative of the complicity of the revisionist, though not arraigned as an accused in the charge-sheet, it was open to the trial court to form a view that the revisionist is tried together with the other accused, and for the said purpose summon the revisionist in the exercise of powers under Section 319 of the Code. The court perused the facts and arguments presented in the case  The power under Section 319 of the Code to summon even those persons who are not named in the charge-sheet to appear and face trial, being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scotfree by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the evidence during the course of the trial, the order passed under Section 319 of the Code summoning the revisionist does not contain any material error so as to warrant inference.