Holding

The trial court correctly exercised its power under Section 319 CrPC to summon the respondents, and the High Court erred in overturning that order.

Summary

The appellant filed an FIR alleging that four persons shot his father dead over a boundary dispute. While the chargesheet named only two of the alleged shooters, the trial court, relying on the testimonies of two prosecution witnesses, summoned the other two persons under Section 319 of the CrPC. The High Court set aside this summoning order, giving weight to contradictory Section 161 statements of some witnesses. The Supreme Court held that the trial court’s power under Section 319 is wide and can be exercised based on evidence presented during trial, even if the persons were not charge-sheeted. It further observed that doubts about witness credibility are matters for trial, not for interfering with the summoning order. Consequently, the High Court’s decision was reversed and the trial court’s order restored.

Issues considered

Whether the High Court was justified in setting aside the trial court’s order summoning respondents under Section 319 CrPC.
Whether a person named in the FIR but not in the charge-sheet can be summoned under Section 319 CrPC.
Whether the credibility of prosecution witnesses can be evaluated at the stage of a summoning order.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 319
Indian Penal Code, 1860s. 302, s. 504, s. 506

Headnote

Issue for Consideration Whether the High Court was justified in setting aside the trial court’s summoning order. Headnotes† Code of Criminal Procedure, 1973 – s.319 – Summoning of the assailants to face trial – Dispute over the boundary of agricultural field between no.2 and 3, shot dead the victim – FIR filed by the appellant-victim’s son – Respondent no.2 and 3 named in the FIR but not named in the chargesheet as accused – Chargesheet was filed u/ss.302, 504 and 506 IPC against the other two, while a final report was filed in

Subjects

Summoning orderDispute over the boundary of agricultural fieldChargesheetFinal reportTrial or inquiryTestimonies of prosecution witnessesCredibility of the prosecution witnessesUndue weightage to s.161 CrPC statements of witnesses

Judgment

[2025] 3 S.C.R. 1431 : 2025 INSC 431

Akhilesh
v.
State of Uttar Pradesh & Ors.
(Criminal Appeal No. 1758 of 2025)
28 March 2025
[Sudhanshu Dhulia and K. Vinod Chandran, JJ.]

Issue for Consideration
Whether the High Court was justified in setting aside the trial
court’s summoning order.

Headnotes†
Code of Criminal Procedure, 1973 – s.319 – Summoning of
the assailants to face trial – Dispute over the boundary of
agricultural field between the parties – Four persons, including
respondent no.2 and 3, shot dead the victim – FIR filed by
the appellant-victim’s son – Respondent no.2 and 3 named
in the FIR but not named in the chargesheet as accused –
Chargesheet was filed u/ss.302, 504 and 506 IPC against the
other two, while a final report was filed in relation to respondent
nos.2 and 3 – Trial court, on basis of the testimonies of the
prosecution witnesses, summoned respondent nos.2 and 3
to face trial – Challenge to – High Court setting aside the trial
court’s summoning order – Correctness:
Held: Powers u/s.319 are wide and if, during the trial or inquiry,
any person, who appears to be involved in the commission of a
crime but not brought before the Court as an accused, can be
summoned by the Court to face the trial and such a person can be
tried together with the other accused being tried before the Court –
Respondent nos.2 and 3 were named in the FIR but were not named
in the chargesheet as accused – After recording the depositions
of prosecution witnesses which inspired the confidence of the trial
court, these respondents were summoned to face trial u/s.319 –
Doubts raised on the credibility of the prosecution witnesses, should
not be gone into at this stage – High Court erred in setting aside
the well reasoned order of trial court by giving undue weightage
to the s.161 statements of some witnesses – When the trial court,
on the strength of the testimonies of prosecution witnesses, has
summoned respondent nos.2 and 3 to face trial, then the decision
of the trial court does not merit interference in the light of the
1432 [2025] 3 S.C.R.

Supreme Court Reports

evidence before the Court – Thus, the impugned order set aside
and that of the trial court is restored – s.161. [Paras 8-13]

Case Law Cited
Rajesh v. State of Haryana [2019] 8 SCR 187 : (2019) 6 SCC 368;
S. Mohammed Ispahani v. Yogendra Chandak [2017] 10 SCR 29 :
(2017) 16 SCC 226 – referred to.

List of Acts
Code of Criminal Procedure, 1973; Penal Code, 1860.

List of Keywords
Summoning order; Dispute over the boundary of agricultural
field; Chargesheet; Final report; Trial or inquiry; Testimonies of
prosecution witnesses; Credibility of the prosecution witnesses;
Undue weightage to s.161 CrPC statements of witnesses.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1758 of 2025
From the Judgment and Order dated 08.07.2024 of the High Court
of Judicature at Allahabad in CRLR No. 4486 of 2023

Appearances for Parties
Advs. for the Appellant:
Divyesh Pratap Singh, Ms. Shivangi Singh, Amit Sangwan, Jay Veer
Yadav, Ashu Bhindwar, Suraj Prakash Singh, Vikram Pratap Singh.
Advs. for the Respondents:
Ms. Sakshi Kakkar, Mrs. Phsephalika Srivastava, Ms. Pratiksha
Tripathi, Chand Qureshi, Roshan Lal, Ashish Dixit, Keshav Dev,
Ms. Monika Sharma, Vijay Kumar.

Judgment / Order of the Supreme Court

Order

1. Leave granted.
2. The appellant before this Court has challenged the order dated
08.07.2024 passed by the High Court of Judicature at Allahabad
[2025] 3 S.C.R. 1433

Akhilesh v. State of Uttar Pradesh & Ors.

where criminal revision filed by respondent no.2 (Krishna Pal Singh)
and respondent no.3 (Sanju @ Sanjay) was allowed and the Trial
Court’s order dated 07.07.2023, summoning the above respondents
under Section 319 of Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘CrPC’), was set aside.
3. The brief facts of the case are as follows:
(a) On 15.11.2021, the appellant filed an FIR (No.349/2021) at P.S
Dataganj, Badaun (Uttar Pradesh) under Sections 302, 504
and 506 of IPC, alleging that four persons, namely Gajendra,
Mahendrapal, Krishnapal (respondent no. 2) and Sanju
(respondent no. 3) shot his father (deceased) dead due to a
dispute over the boundary of an agricultural field.
(b) The chargesheet was filed under Sections 302, 504 and 506
of IPC against Gajendra and Mahendrapal, while a final report
was filed in relation to Respondent nos. 2 and 3.
(c) Based on the depositions of PW-1 and PW-2, who stated that
respondent nos.2 and 3 were amongst the assailants, the Trial
Court, by its order dated 07.07.2023, exercised its powers under
S.319 CrPC and summoned respondent nos.2 and 3 to face
the trial. This order of the Trial court was challenged before the
High Court in revision.
(d) Vide impugned order dated 08.07.2024, the High Court has
allowed the criminal revision filed by respondent nos.2 and 3,
setting aside the Trial Court’s order dated 07.07.2023. Aggrieved
by the same, the appellant-complainant is before us.
4. We heard both sides and perused the material on record.
5. The Post-Mortem of the deceased was conducted on 16.11.2021 i.e.
the day after the incident. In the Post-Mortem report, there is mention
of three gunshot entry wounds corresponding to three gunshot exit
wounds. There is no doubt that the deceased was shot dead in
broad daylight on 15.11.2021. The FIR, which was lodged based on
information given by appellant, mentions that four persons, including
respondent nos.2 and 3, fired upon the deceased, and ran away
when one Santosh Kumar and Prithviraj raised an alarm.
6. During the trial, the appellant was examined as PW-1. He deposed
that the deceased and one of the accused (Gajendra) had some
1434 [2025] 3 S.C.R.

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quarrel over the boundary of their agricultural field. He further
deposed that when the deceased was returning from the field on
his motorcycle, the four accused, including respondent nos.2 and
3, surrounded and opened fire on the deceased. As per PW-1, he
had seen the incident from a distance.
7. PW-2 (Prithviraj), who is a cousin of the deceased, was mentioned
as an eyewitness in the FIR. He too deposed that on that fateful day
he was at his field which is near the spot of the incident and saw the
four accused, including respondent nos.2 and 3, fire on the deceased.
8. Based on the above depositions, it is our considered opinion that the
Trial Court rightly summoned respondent nos.2 and 3 under Section
319 CrPC to face the trial. In its summoning order, Trial Court further
noted that one Santosh, who was also named in the FIR as an
eyewitness, had stated in his Section 161 CrPC statement that all
four persons named in the FIR were present at the spot. The Trial
Court observed that the police erred in exonerating Krishnapal and
Sanju @ Sanjay (respondent nos.2 and 3, respectively) because
some witnesses in their Section 161 CrPC statements said that these
two were present at the Shiv temple of the village in connection with
a funeral of another villager, on the day of the incident.
9. Within a few hours of the incident, the FIR was lodged in which
respondent nos.2 and 3 have been named as accused and the
eyewitnesses have also deposed before the Court, regarding
the presence of these two persons at the spot. Under these
circumstances, we see no reason why respondent nos.2 and 3
should not face the trial.
10. This Court in Rajesh v. State of Haryana, (2019) 6 SCC 368 in
regard to Section 319 CrPC had noted that:
“(i) the Court can exercise the power under Section 319
CrPC even on the basis of the statement made in the
examination-in-chief of the witness concerned and the
Court need not wait till the cross-examination of such
a witness and the Court need not wait for the evidence
against the accused proposed to be summoned to be tested
by cross-examination; and (ii) 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
[2025] 3 S.C.R. 1435

Akhilesh v. State of Uttar Pradesh & Ors.

be summoned under Section 319 CrPC, provided from the
evidence (may be on the basis of the evidence collected
in the form of statement made in the examination-in-chief
of the witness concerned), it appears that such person
can be tried along with the accused already facing trial.”
(emphasis supplied)

Further, Rajesh (Supra) took note of this Court’s judgment in
S. Mohammed Ispahani v. Yogendra Chandak, (2017) 16 SCC
226, where this Court had observed 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 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.”
Thus, powers under Section 319 CrPC1 are wide and if, during the trial
or inquiry, any person, who appears to be involved in the commission

1 319. Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any
person not being the accused has committed any offence for which such person could be tried together
with the accused, the Court may proceed against such person for the offence which he appears to have
committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances
of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by
such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then-
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses
re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an
accused person when the Court took cognizance of the offence upon which the inquiry or
trial was commenced.
1436 [2025] 3 S.C.R.

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of a crime but not brought before the Court as an accused, can be
summoned by the Court to face the trial and such a person can be
tried together with the other accused being tried before the Court.
11. In the present case, respondent nos.2 and 3 were named in the
FIR but they were not named in the chargesheet as accused. After
recording the depositions of PW-1 and PW-2 which inspired the
confidence of the Trial Court, these respondents were summoned
to face trial under Section 319 CrPC. The learned counsel for
respondent nos. 2 and 3 would argue that credibility of PW-1 is in
doubt since PW-1 was not present at the spot at all and thus, was
not an eyewitness to the incident. Further, doubts have been raised
on the credibility of PW-2 stating that he is a close relative of the
deceased. However, we are of the view that this Court, at this stage,
cannot go into these details as these are the issues that would be
determined during the trial.
12. In our considered view, the High Court erred in setting aside the
well reasoned order of Trial Court by giving undue weightage to the
Section 161 CrPC statements of some witnesses. When the Trial
Court, on the strength of the testimonies of PW-1 and PW-2, has
summoned respondent nos.2 and 3 to face Trial, then this decision
of the Trial Court does not merit interference in the light of the
evidence before the Court.
13. Considering all the facts and circumstances of the case, we allow this
appeal and hereby set aside the impugned order dated 08.07.2024
and consequently, the Trial Court’s order dated 07.07.2023 is restored.
14. We also make it clear that any observations made hereinabove shall
not have any bearing on the trial, as these are only for the disposal
of the present limited issue.
15. Pending application(s), if any, stand(s) disposed of.
16. Interim order(s), if any, stand(s) vacated.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Nidhi Jain