Supreme Court of India
SHIV BARANversusSTATE OF U.P. & ANR.
- Citation
- 2025 INSC 860
- Decided
- 16 July 2025
- Disposal
- Appeal(s) allowed
- Bench
- SANJAY KAROL
Holding
A court may summon a non‑accused person under Section 319 CrPC when the evidence, though not yet cross‑examined, creates a satisfaction stronger than a mere prima facie case but short of conviction, indicating the person's complicity.
Summary
The appellant Shiv Baran filed a criminal appeal against the High Court's order quashing a summons issued under Section 319 of the CrPC against Rajendra Prasad Yadav, who was not charge-sheeted but named in the FIR. The trial court had earlier summoned Rajendra based on eyewitness statements that he was present at the scene armed with a baton, while the High Court held that the evidence was insufficient to implicate him. The Supreme Court examined the statutory requirements for exercising Section 319, emphasizing that the power must be exercised sparingly but can be invoked when evidence shows a person's complicity, even if the evidence has not been tested by cross‑examination. Relying on precedents such as Hardeep Singh and Labhuji Amratji Thakor, the Court held that a satisfaction stronger than a mere prima facie case, yet short of conviction, is required. It found that the eyewitness testimonies sufficiently indicated Rajendra's involvement, and that the High Court erred by conducting a mini‑trial and applying the standard for conviction. Consequently, the Supreme Court set aside the High Court order, restored the trial court's summoning order, and directed the trial to proceed expeditiously.
Issues considered
- What is the appropriate standard of satisfaction required for a court to exercise power under Section 319 CrPC to summon a non‑accused person?
- Whether the evidence on record, primarily eyewitness statements, is sufficient to justify summoning Rajendra Prasad Yadav under Section 319?
- Whether the High Court erred in treating the summoning application as a mini‑trial and applying the conviction standard.
Legislation cited
Headnote
Issue for Consideration Matter pertains to the correctness of the order passed by the High Court quashing the summons issued against respondent u/s.319 CrPC by the trial court. Headnotes† Code of Criminal Procedure, 1973 – s.319 – Power to proceed against other persons appearing – High Court quashed the summons issued against respondent u/s.319 by the trial court – Challenge to: Held: Summoning order passed by the trial court restored and the impugned order set aside – Power u/s.319 must be exercised sparingly – However, where the evidence
Subjects
Quashing the summons issued u/s.319 CrPCExercise of power u/s.319 CrPCMotiveCommon intentionAggressorStage of final adjudicationSummoning order
Judgment
[2025] 8 S.C.R. 229 : 2025 INSC 860
Shiv Baran
v.
State of U.P. & Anr.
(Criminal Appeal No. 3008 of 2025)
16 July 2025
[Sanjay Karol* and Joymalya Bagchi, JJ.]
Issue for Consideration
Matter pertains to the correctness of the order passed by the High
Court quashing the summons issued against respondent u/s.319
CrPC by the trial court.
Headnotes†
Code of Criminal Procedure, 1973 – s.319 – Power to proceed
against other persons appearing to be guilty of offence –
Exercise of power u/s.319 – High Court quashed the summons
issued against respondent u/s.319 by the trial court – Challenge
to:
Held: Summoning order passed by the trial court restored and
the impugned order set aside – Power u/s.319 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 u/s.319 – High Court proceeded to
conduct a mini trial solely relying upon the affidavits submitted before
the Superintendent of Police qua the innocence of respondent – It
erred in giving a categorical finding on the merits of the injured
eyewitness not to have named respondent, which is based on
erroneous assumption and contrary to the factual position – 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 – Respondent, although not charge sheeted, was
named in the FIR, and the evidence of the alleged eyewitnesses,
although prima facie, suggests the complicity of respondent,
specific role being assigned to him, indicating that he was present
at the scene of the occurrence, armed with a stick – High Court
tried to apply the same standard in deciding this application as is
* Author
230 [2025] 8 S.C.R.
Supreme Court Reports
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 final judgment after trial. [Paras 22-26]
Code of Criminal Procedure, 1973 – s.319 – Power to proceed
against other persons appearing to be guilty of offence –
Exercise of power u/s.319 – Statutory requisites for summoning
person not being the accused – Principles to be followed by the
trial court while exercising power u/s.319 – Stated. [Paras 14, 15]
Case Law Cited
Hardeep Singh v. State of Punjab [2014] 2 SCR 1 : (2014) 3 SCC
92; Labhuji Amratji Thakor v. State of Gujarat [2018] 13 SCR
822 : (2019) 12 SCC 644; Ramesh Chandra Srivastava v. State
of U.P. [2021] 6 SCR 219 : (2021) 12 SCC 608; S. Mohammed
Ispahani v. Yogendra Chandak [2017] 10 SCR 29 : (2017) 16 SCC
226; Omi v. State of M.P. [2025] 1 SCR 266 : (2025) 2 SCC 621;
Brijendra Singh v. State of Rajasthan [2017] 3 SCR 374 : (2017)
7 SCC 706 – referred to.
List of Acts
Code of Criminal Procedure, 1973.
List of Keywords
Quashing the summons issued u/s.319 CrPC; Exercise of power
u/s.319 CrPC; Motive; Common intention; Aggressor; Stage of
final adjudication; Summoning order.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
3008 of 2025
From the Judgment and Order dated 23.07.2024 of the High Court
of Judicature at Allahabad in CRR No. 5517 of 2023
Appearances for Parties
Advs. for the Appellant:
Gaurav, Shaurya Krishna, Shivendra Vikram Singh, Ravi Bhushan,
Gaurav Srivastava.
[2025] 8 S.C.R. 231
Shiv Baran v. State of U.P. & Anr.
Advs. for the Respondents:
Adarsh Upadhyay, Jitendra Kumar Tripathi, Ms. Pallavi Kumari,
Shashank Pachauri, Ansar Ahmad Chaudhary, Shoaib Ahmad
Khan, Sandeep Garausa, Md. Anas Chaudhary, Mohd. Sharyab
Ali, Ms. Shehla Chaudhary, Ms. Alia Bano Zaidi.
Judgment / Order of the Supreme Court
Judgment
Sanjay Karol, J.
Leave Granted
2. The instant appeal preferred by the appellant-complainant, arises
out of judgment and order dated 23rd 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, under Section 319 of the Code of Criminal
Procedure, 19731 vide order dated 28th September 2023 passed by
the Additional Sessions Judge, Kaushambi2 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 allegedly
took place on 29th November 2017. First FIR3 was registered
by the appellant-complainant, namely, Shiv Baran4, under
Sections 302, 307, 504 and 506 of the Indian Penal Code,
18605 against four persons, namely, Rahul, Dinesh, Rajendra
and Shiv Moorat6, 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.
(ii) Second FIR7 was lodged by one Suresh Kumar under Sections
452, 323, 504, 506 and 325 of IPC, alleging that the accused
1 Hereinafter ‘CrPC
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
232 [2025] 8 S.C.R.
Supreme Court Reports
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.
(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 chargesheet dated 24th 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 Sessions
Court vide order dated 31st 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 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 :
[2025] 8 S.C.R. 233
Shiv Baran v. State of U.P. & Anr.
“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.”
(Emphasis supplied)
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
234 [2025] 8 S.C.R.
Supreme Court Reports
such impleadment. The power to be exercised, needless to add, 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 Singh v. State of
Punjab8 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 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
8 (2014) 3 SCC 92
[2025] 8 S.C.R. 235
Shiv Baran v. State of U.P. & Anr.
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.
…
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.”
(Emphasis supplied)
236 [2025] 8 S.C.R.
Supreme Court Reports
8. This Court in Labhuji Amratji Thakor v. State of Gujarat9 reiterated
the test of satisfaction laid down in 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 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 (2019) 12 SCC 644
[2025] 8 S.C.R. 237
Shiv Baran v. State of U.P. & Anr.
9. This Court, in Ramesh Chandra Srivastava v. State of U.P.10
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 mandates are fulfilled. In
S. Mohammed Ispahani v. Yogendra Chandak11, 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 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)
[See also Hardeep Singh (supra); and Labhuji Amratji
Thakor (supra)]
11. Most recently, this Court in Omi v. State of M.P.12, 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:
10 (2021) 12 SCC 608
11 (2017) 16 SCC 226
12 (2025) 2 SCC 621
238 [2025] 8 S.C.R.
Supreme Court Reports
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.
19.3. The power of the court under Section 319CrPC 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 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 a provision like Section 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.
19.4. 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
[2025] 8 S.C.R. 239
Shiv Baran v. State of U.P. & Anr.
the satisfaction of the investigating officer hardly matters.
If satisfaction of investigating officer is to be treated as
determinative then the purpose of Section 319 would be
frustrated.”
(Emphasis supplied)
12. We may emphasize that this Court in S. Mohammed Ispahani (supra)
has already observed that the ‘evidence’ led 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. In Brijendra Singh v. State of Rajasthan13, this Court observed
that ‘evidence’ recorded during the trial was nothing 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;
13 (2017) 7 SCC 706
240 [2025] 8 S.C.R.
Supreme Court Reports
(c) The Trial Court has broad but not unbridled power as this power
can be exercised only on the basis of evidence 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....”
17. PW1, in his statement recorded before the Trial Court on 21st 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…”
18. PW1’s statement was again recorded on 10th March 2021 after the
consolidation of Case No.146/201814 and Session Trial No.109/2018,
where he deposed :
14 Against accused-Rahul
[2025] 8 S.C.R. 241
Shiv Baran v. State of U.P. & Anr.
“..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 in the
statement dated 21st 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 3rd 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 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.
242 [2025] 8 S.C.R.
Supreme Court Reports
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 allowed.
The impugned order dated 23rd July 2024 is set aside, and the
summoning order dated 28th September 2023, passed by the Trial
Court in Sessions Trial No.109/2018, is restored.
27. Parties are directed to appear before the Trial Court on 28th 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.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Nidhi Jain
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