State v. Dinesh and others), arising out of Case Crime No
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 30180 of 2025 Ramesh Yadav State Of U.P. And 2 Others Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) : Mukul Yadav, Rajesh Yadav : G.A. Court No. - 71 HON'BLE RAJ BEER SINGH, J.
Legal Reasoning
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." 11. The above view was followed in Brijendra Singh as under:- "13. In order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92 may be recapitulated: ?.. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity." 8. Thus, the extra-ordinary power provided under Section 319 Cr.P.C. has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. In the instant matter the applicant is informant of the case and as per prosecution version in the alleged incident his brother namely Dinesh Yadav has sustained injuries. The opposite party nos.2 & 3 were named in the first information report but they were exonerated by the police during investigation. During trial, the applicant / informant has moved an application under Section 319 Cr.P.C. for summoning of opposite party nos.2 & 3, which has been rejected by impugned order dated 18.04.2025. Learned trial Court has considered statements of PW1 Ramesh Yadav, PW 2 Harivansh Yadav as well as PW 3 Ram Janam Yadav and all relevant facts of the matter and concluded that there was no credible evidence to show the involvement of the opposite party nos.2 & 3 in the incident. After perusing the record as well as the impugned order, it can not be said that conclusion drawn by learned trial Court is against facts and law. The legal position regarding summoning of persons as accused under Section 319 Cr.P.C. has also been considered by the trial Court. No material illegality or perversity 4 NA528 No. 30180 of 2025 could be shown in the impugned order. Here, it would be relevant to mention that instead of challenging the impugned order by way of revision, the same is being challenged in this application under Section 528 BNSS. It is well settled that provisions under Section 528 BNSS have to be invoked to prevent abuse of process of court or other to secure ends of justice. In the instant matter after considering entire facts, no case for invoking powers under Section 528 BNSS is made out. The application under Section 528 BNSS lacks merits and thus, liable to be dismissed. 9. Accordingly, the application u/s 528 BNSS is dismissed. September 16, 2025 'SP'/- (Raj Beer Singh,J.) Digitally signed by :- SANDEEP PAL High Court of Judicature at Allahabad
Arguments
1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita ( hereinafter referred to as 'BNSS') has been preferred against order dated 18.04.2025, passed by learned Sessions Judge, Mau in S.T. No.1169 of 2022 (State Vs. Dinesh and others), arising out of Case Crime No.39 of 2020, under Sections 147, 148, 308 I.P.C., Police Station- Ranipur, District- Mau, whereby the application filed by applicant / informant under Section 319 Cr.P.C. has been rejected. 3. It has been submitted by learned counsel for the applicant that the applicant is informant of the aforesaid case and first information report was lodged against seven named accused persons, including opposite party no.2 Indal and opposite party no.3 Rekha, for offence under Sections 147, 148, 308 IPC. During investigation, the opposite party nos.2 & 3 were exonerated and charge-sheet was submitted against other named persons. It was stated that during trial, the applicant has moved an application under Section 319 Cr.P.C. on the basis of statements of PWs- 1, 2 & 3 for summoning of opposite party nos.2 & 3 but the same has been rejected in an arbitrary manner. In view of statements of said witnesses, a case for summoning of opposite party nos.2 & 3 under Section 319 Cr.P.C. is made out. Referring to facts of the matter, it was submitted that impugned order is against facts and 2 NA528 No. 30180 of 2025 law and thus liable to be quashed. 4. Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned order. 5. I have considered the rival submissions and perused the record. 6. By the impugned order, application under Section 319 Cr.P.C. has been rejected. Before considering the merits of the contention, it would be relevant to refer Section 319 Cr.P.C., which reads as under:- "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. .... (4) Where the Court proceeds against any person under sub- section (1), then- (a) the proceedings in respect of such person shall be commenced a fresh, 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.? By reading of Section 319 Cr.P.C., it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused." 7. In case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and another AIR 2019 SC 3477, the Apex Court held as under:- "9. The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51, the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are "it appears from the evidence"...."any person"...."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. 10. As held by the Constitution Bench in para (105) in Hardeep Singh, the power under Section 319 Cr.P.C. is discretionary and is to be exercised sparingly which reads as under:- "105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in 3 NA528 No. 30180 of 2025 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