Gujarat High Court
Ashokbhai Kevalram Thakkar vs State Of Gujarat on 1 May, 2026
NEUTRAL CITATION
R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 612 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
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ASHOKBHAI KEVALRAM THAKKAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DHARMESH DEVNANI for MS. VISHWA M SHAH(15460) for the Applicant(s)
No. 1
MR JAL UNWALLA LD. SENIOR ADVOCATE with DHRUV TOLIYA(9249), MS
TEJAL VASHI (2704), NIMIT SHUKLA (8338) & ADIT PANCHOLI (14657) for the
Respondent(s) No. 2
MR AMIT S SHUKLA(13499) for the Respondent(s) No. 2
MR KM ANTANI ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No.
1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 01/05/2026
ORAL JUDGMENT
1. RULE. Learned Additional Public Prosecutor Mr. K.M. Antani waives service of notice of rule on behalf of the respondent no. 1 - State and learned advocate Mr. Dhruv Toliya waives service of notice of rule on behalf of the respondent no.
2. With the consent of the parties, the matter is taken up for hearing today itself.
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NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined 2.1. The present Revision Application preferred under Section 397 read with Section 401 of the Code of Criminal Procedure (for short "Code") assails the correctness and validity of the order dated 01.03.2024 passed by the learned 6 th Additional District Sessions Judge, Rajkot (hereinafter referred to as the "Sessions Court") in Sessions Case No. 104 of 2016 below Exhibit-386 wherein the application preferred by the revisionist applicant - Complainant to arraign the respondent no. 2 (hereinafter referred to as the "respondent" ) as one accused in the Sessions Case No. 104 of 2016 came to be rejected.
3. The facts leading to filing of the present revision application is that the present revisionist - applicant is the original complainant who lodged First Information Report being C.R. No. I-66 of 2010 with Rajkot 'B' Division Police Station, Rajkot for the offences punishable under Sections 302, 365, 342, 120B of the Indian Penal Code (for short "IPC") which inter alia alleged that one Samir Ishwarbhai Gandhi who was working as Manager with with Rajmoti Industries came over to the residence of the sister of the complainant and forcibly took his Page 2 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined brother-in-law - Dinesh Madhukant Daxini from their residence. This incident took place in presence of his sister and another witness on 28.02.2016.
3.1. It was further alleged by the revisionist - applicant that subsequent to abduction of his brother-in-law, he was brought to the premises of Rajmoti Industries, Rajkot at around 04:00 pm on 28.02.2016 and was kept in the room in the building owned by Rajmoti Industries. It was further alleged that on instructions of the co-accused Samir Madhukant Shah, accused - Samir Gandhi gave fatal injuries to the victim - Dinesh Madhukant Daxini, which resulted into his death. In view of the information given by the present revisionist - applicant, First Information Report being C.R. No. I-66 of 2010 came to be registered with the Rajkot 'B' Division Police Station, Rajkot. Subsequent to the filing of First Information Report, the Investigating Officer conducted investigation and charge sheet came to be filed. Subsequent to the filing of the charge sheet, criminal case came to be numbered as Criminal Case no. 104 of 2016.
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NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined 3.2. During the course of trial, one of the accused Samir Gandhi preferred an application to turn approver and the same was granted by the Sessions court. Once the application of the accused Samir Gandhi was granted, he gave his statement as an approver and supported the case of the prosecution vide his deposition below Exhibit-290. It is the case of the revisionist - applicant that during the course of deposition, Samir Gandhi has pointed out the very particular role of the respondent being the one who instructed about the course of action that led to death of the deceased Dinesh Daxini. It is alleged that Shyam Madhukant Shah i.e. the present revisionist along with his brother accused Samir Madhukant Shah had instructed Samir Gandhi i.e. approver to assault the victim on account of alleged dues to the company. Despite the role demonstrated by Samir Gandhi, according to the revisionist applicant, the police authorities had chosen not to arraign the respondent as an accused in the case. It was in this context the present revisionist application has filed application under Section 319 of the Code below Exhibit-386 in Sessions Case No. 104 of 2016 to arraign the respondent as accused. The Sessions Court vide impugned Page 4 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined order dated 01.03.2024 was pleased to reject the application preferred by the revisionist - applicant which has resulted into filing of the present revision application. 3.3. Subsequent to the filing of the present revision application, this Court vide order dated 13.09.2024 issued notice and during the pendency of this application, the trial in Sessions Case No. 104 of 2016 was concluded which resulted into conviction against the accused - Samir Madhukant Shah. All the persons who are convicted have preferred an appeal which are pending before this Court.
4. Heard learned advocate Mr. Dharmesh Devnani assisted by Ms. Vishwa M Shah appearing for the revisionist - applicant, learned Additional Public Prosecutor Mr. K.M. Antani appearing for the respondent no. 1 - State and learned Senior Advocate Mr. Jal Unwalla assisted by learned advocate Mr. Dhruv Toliya appearing for the respondent no. 2.
5. Learned advocate Mr. Dharmesh Devnani appearing for the revisionist - applicant has submitted that the applicant Page 5 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined being original complainant has rightly preferred an application under Section 319 of the Code after the deposition of Samir Gandhi and the deposition clearly buttresses the claim of the active role played by the respondent herein in the whole incident that led to the death of the deceased Dinesh Daxini. It was sough to be submitted that the offence is clearly made out against the respondent in the deposition of Samir Gandhi and therefore, the Sessions Court has erred in rejecting the application below Exhibit-386. Further emphasis was laid that it would be inconsequential if there is an absence of statement of any other person as once the deposition of the approver was recorded and the role of respondent was demonstrated then there was definitely a cause under Section 319 of the Code and the respondent has to face trial.
5.1. It was further submitted by learned advocate Mr. Dharmesh Devnani, placing reliance on the provisions of Section 319 of the Code that during the course any inquiry or the trial, if it appears from any evidence that the person not being the accused has committed an offence then such person has to be treated together with the accused. In view of the categorical Page 6 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined provision of Section 319 of the Code as well as categorical evidence of approver i.e. deposition of Samir Gandhi, the learned Sessions Court has erred in rejecting the application preferred by the present revisionist applicant. It was further pointed out that the Sessions Court has erred in observing that the complainant has not followed the arrest of the proposed respondent. If during the course of trial if any role is attributed to the respondent on additional evidence than he has to face the trial.
5.2. It was further submitted by learned advocate Mr. Dharmesh Devnani that the Sessions Court has erred in observing that proposed accused has not been named in the Police Statement by approver Samir Gandhi. If one peruses the statement under Section 161 of the Code of approver Samir Gandhi recorded on 02.03.2016, it clearly attributes that role of both the owners and therefore, the role of Samirbhai Shah as well as Shyambhai Madhukant Shah i.e. present respondent is clearly demonstrated. Therefore, when there is a clear deposition against the proposed accused and the role is admitted and not rebutted then the learned Sessions Court Page 7 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined ought not to have rejected the application of the revisionist - applicant and ought to have proceeded to allow the application under Section 319 of the Code to arraign the respondent as proposed accused. According to learned advocate Mr. Devnani in view of the evidence demonstrated herein-above the impugned order is improper and warrants interference of this Court.
6. Per contra, learned Senior Advocate Mr. Jal Unwalla assisted by learned advocate Mr. Dhruv Toliya appearing for the respondent no. 2 has raised a technical objection before venturing into merits of the matter. It was submitted that this Court in revisional power cannot decide on merits the application under Section 319 of the Code as trial has concluded. It was submitted that the order under Section 319 of the Code has to be necessarily passed prior to the order of sentence is passed. In the instant case, during the pendency of this revision application, the trial is concluded and the Sessions Court has convicted the co-accused. Therefore, once the trial is concluded, the Sessions Court becomes functus officio on conclusion of the trial and the Sessions Court cannot pass the Page 8 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined order of summoning the accused. Once Sessions Court become functus officio, even this Court would becomes functus officio and would not have power to direct Sessions Court to issue summons under Section 319 of the Code. Therefore, according to Mr. Unwalla, on recording of the evidence and conclusion of the trial, this Court does not have power to revive the application preferred under Section 319 of the Code. Upon conclusion of the trial, the trial court becomes functus officio unless specific trial proceeding has been initiated by the higher forum. In the instant case, there was no stay during the pendency of the present application. Therefore, the Sessions Court had become functus officio on 01.03.2024 i.e. the date on which it pronounced the order of conviction and the sentence against original accused came to be passed. In view of the same, application under Section 319 of the Code would be without jurisdiction and it would percolate to be second application as no proceedings are pending before the Sessions Court.
6.1. Mr. Unwalla has further emphasized that no order summoning the respondent can be passed by the trial court Page 9 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined especially because this Court in its revisional jurisdiction has not passed any order staying the proceedings before the Sessions Court or restraining the Sessions Court from pronouncing the final judgment against the other accused persons during the pendency of the revision application. To support his argument reliance was placed on the decision of the Hon'ble Apex Court in case of Sukhpal Singh Khaira v. State of Punjab reported in (2023) 1 SCC 289. Placing reliance on the said decision of the Hon'ble Apex Court it was sought to be submitted that the order passed by this Court in exercise of this revisional jurisdiction under Section 397 and Section 319 of the Code would not relate back the order to the date of the order by the trial court rejecting the application under Section 319 of the Code. Therefore, there cannot be any meaningful impact to any order passed by the court for fresh consideration of the application under Section 319 of the Code subsequent to culmination of the sessions case. It is further submitted that in the present case that the application under Section 319 of the Code is concerned, the principle of merger will apply. The application under Section 319 of the Code was preferred during Page 10 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined the pendency of the trial which has now concluded. Therefore, the application under Section 319 of the Code gets merged and disposed of on conclusion of trial. Once the application has merged, the only way to the revisionist - applicant is to prefer a fresh application. It was further submitted that even if fresh application cannot be preferred due to conclusion of the trial, the revisionist cannot be said to have been rendered remediless as he can always prefer an acquittal appeal. To support his submissions reliance was placed upon the decision of the Hon'ble Apex Court in case of Asim Akhtar v. West Bengal - reported in 2024 INSC 794.
6.2. On a query being raised to learned Senior Advocate Mr. Unwalla that the argument canvassed by him are contrary to the recent decision of the Hon'ble Apex Court in case of Jamin & Anr. v. State of Uttar Pradesh reported in 2025 SCC Online SC 506, it was submitted by learned Senior Advocate Mr. Unwalla that the said decision in case of Jamin (supra) is per incuriam. Learned Senior Advocate Mr. Jal Unwalla has referred to the decision of the Hon'ble Apex Court in case of Page 11 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined Sukhpal Singh Khaira (supra). Relying on paragraph 39 of the said decision, it was pointed out that Hon'ble Apex Court has observed that summoning order has to precede the conclusion of the trial. Therefore, on conclusion of the trial, there cannot be a summon to the proposed accused. This ratio laid down by the Hon'ble Apex Court in case of Sukhpal Singh Khaira (supra) was also followed in the subsequent order of Hon'ble Apex Court in case of Deen Mohammad v. State of Haryana & Ors.,. rendered in Special Leave to Appeal (Criminal) No. 3058 of 2018 dated 19.05.2023. Relying on the decision of Sukhpal Singh Khaira (supra), the Hon'ble Apex Court in case of Deen Mohammad (supra) has observed that nothing further can be done insofar as the application under Section 319 of the Code is concerned as the trial is already concluded. It was further submitted by learned Senior Advocate Mr. Jal Unwalla that the subsequent decision of Hon'ble Apex Court in case of Jamin (supra) has not taken into consideration the observation made by the order passed by the equal strength Bench of the Hon'ble Apex Court in case of Deen Mohammad (supra) and, therefore, the decision in the case of Jamin Page 12 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined (supra) is per incuriam.
6.3. It was submitted by learned Senior Advocate Mr. Unwalla that a situation may arise before the High Court where two or more mutually irreconcilable decisions of the Hon'ble Apex Court are cited at the Bar. In such a situation, inviolable recourse is to apply in earliest view, as the succeeding would fall in the category of per incuriam. Relying on the decision of the Hon'ble Apex Court in the case of Sundeep Kumar Bafna v. State of Maharashstra & Anr. reported (2014) 16 SCC 623, more particularly paragraph 19, it was submitted that the decision in case of Jamin (supra) would fall in the category of per incuriam.
6.4. On a query being raised to learned Senior Advocate Mr. Unwalla that the submission rendered by him on the issue of two inconsistent decisions, the rationale therefore would be inconsistent to the observation made by the Hon'ble Apex Court in the case of M/s. A.P. Electrical Equipment Corporation v. The Tahsildar & Ors., rendered in Civil Appeal Nos. 4526- 4527 of 2024. It was pointed out that the Hon'ble Apex Court Page 13 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined has categorically observed that when two decisions of Hon'ble Apex Court appear to be inconsistent with each other, the High Court are not to follow one and overlook the other, but should try to reconcile and respect them both. To this query, learned Senior Advocate Mr. Unwalla has submitted that even the decision in case of A.P. Electrical Equipment Corporation (supra) is per incuriam. It was submitted by learned Senior Advocate Mr. Unwalla that the Hon'ble Apex Court in the case of Union Territory of Ladakh v. Jammu & Kashmir National Conference & Anr., rendered in Civil Appeal No. 5707 of 2023 = (2023 LiveLaw (SC) 749 has observed that if there are two conflicting decisions by the Benches of equal strength, the earlier decision has to be followed. The decision of Hon'ble Apex Court in case of Union Territory of Ladakh (supra) has adopted the observations made by the 5 Judge Bench of the Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi reported in (2017 16 SCC
680. It was therefore submitted by learned Senior Advocate Mr. Unwalla that the decision in the case of A.P. Electrical Equipment Corporation (supra) does not take into Page 14 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined consideration the earlier decision in case of Union Territory of Ladakh (supra) and, therefore, the decision in case of A.P. Electrical Equipment Corporation (supra) would be per incuriam. In wake of such fact, learned Senior Advocate Mr. Unwalla has submitted that the ratio laid down by the Hon'ble Apex Court in the aforesaid decision in case of A.P. Electrical Equipment Corporation (supra) would not apply to the facts of the present case and it would be permissible for the respondent to contend that the decision in the case of Jamin (supra) is per incuriam.
7. Apart from the serious technical objection taken by learned Senior Advocate Mr. Unwalla, it was contended that the revisionist - applicant does not have case even on aspects of merits of the matter. Emphasis was made that the learned Session Court has rightly observed that the statement of the approver cannot be the sole evidence to arraign the present respondent as proposed accused. The evidence should not be acted unless corroborated in the same material or if the evidence is uncorroborated the guilt of the accused may not be Page 15 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined established only on the approver's statement. To support his submissions, learned Senior Advocate Mr. Unwalla has placed on the following decisions :
(i) In the case of Mrinal Das & Ors. v. State of Tripura reported in (2011) 9 SCC 479.
(ii) In the case of Ravinder Singh v. State of Haryana reported in (1975) 3 SCC 742.
(iii) In the case of Periyasami & Ors., v. S. Nallasamy reported in (2019) 4 SCC 342.
(iv) In the case of Sarabjit Singh v. State of Punjab reported in 2009 (0) AIJEL (SC) 43590.
8. On the basis of such submissions, learned Senior Advocate Mr. Unwalla has prayed that the present revision application deserves to be dismissed since the same is not maintainable on the technical ground as well as on the merits of the case.
9. Analysis & Reasons :
9.1. Having heard the learned advocates appearing for the respective parties and having perused the material on record, the first issue for consideration is with regard to the stage at which power under Section 319 of the Code can be exercised.
The first issue for discussion and deliberation is with regards to serious technical objection raised by learned Senior Advocate Page 16 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined Mr. Unwalla urging to refrain to decide the application on merits owing to conclusion of trial and thereby the Sessions Court having become functus officio to issue summons to any propose accused. The fact is not disputed that the application under Section 319 of the Code was made by the complainant during the course of trial and upon statement of approver. Upon dismissal of the application and during the pendency of the present revision application, trial qua other co-accused concluded and resulted into conviction of the co-accused. In the case of Sukhpal Singh Khaira (supra) the Hon'ble Apex Court has framed the issue as to whether trial court has the power under Section 319 of the Code for summoning the additional accused when the trial with respect to the other co- accused has ended and the judgment of the conviction is rendered. Both aspects had concluded on the same date and before pronouncement of summoning order under Section 319 of the Code. The Hon'ble Apex Court has also raised another question in the case of Sukhpal Singh Khaira (supra) that whether the trial Court has power under Section 319 of the Code for summoning the additional accused when the trial in Page 17 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined respect of certain other absconding accused is going on/pending having been bifurcated from the main trial. However, the facts of this case would be relevant only with regard to the completion of the trial i.e. on aspect of first instance. Answering this question, the Hon'ble Apex Court in case of Sukhpal Singh Khaira (supra) observed that when there is judgment of conviction, power under Section 319 of the Code is to be invoked and exercised before pronouncement of the order of sentence and in case of acquittal, the power should be exercised before the order of the acquittal is pronounced. The Hon'ble Apex Court in case of Sukhpal Singh Khaira (supra) has observed thus :-
32. Therefore, from a perusal of the provisions and decisions of this Court, it is clear that the conclusion of the trial in a criminal prosecution if it ends in conviction, a judgment is considered to be complete in all respects only when the sentence is imposed on the convict, if the convict is not given the benefit of Section 360 CrPC. Similarly, in a case where there are more than one accused and if one or more among them are acquitted and the others are convicted, the trial would stand concluded as against the accused who are acquitted and the trial will have to be concluded against the convicted accused with the imposition Page 18 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined of sentence. When considered in the context of Section 319 CrPC, there would be no dichotomy as argued, since what becomes relevant here is only the decision to summon a new accused based on the evidence available on record which would not prejudice the existing accused since in any event they are convicted.
33. In that view of the matter, if the court finds from the evidence recorded in the process of trial that any other person is involved, such power to summon the accused under Section 319 CrPC can be exercised by passing an order to that effect before the sentence is imposed and the judgment is complete in all respects bringing the trial to a conclusion.
While arriving at such conclusion what is also to be kept in view is the requirement of sub-section (4) to Section 319 CrPC. From the said provision it is clear that if the learned Sessions Judge exercises the power to summon the additional accused, the proceedings in respect of such person shall be commenced afresh and the witnesses will have to be re-examined in the presence of the additional accused. In a case where the learned Sessions Judge exercises the power under Section 319 a CrPC after recording the evidence of the witnesses or after pronouncing the judgment of conviction but before sentence being imposed, the very same evidence which is available on record cannot be used against the newly added accused in view of Section 273 CrPC. As against the accused who has been summoned subsequently a fresh trial is to be held. However while considering the application under Section 319 CrPC, if the decision by Page 19 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined the learned Sessions Judge is to summon the additional accused before passing the judgment of conviction or passing an order on sentence, the conclusion of the trial by pronouncing the judgment is required to be withheld and the application under Section 319 CrPC is required to be disposed of and only then the conclusion of the judgment, either to convict the other accused who were before the Court and to sentence them can be proceeded with. This is so since the power under Section 319 CrPC can be exercised only before the conclusion of the trial by passing the judgment of conviction and sentence.
39. (I) Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order? The power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day. it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same Page 20 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined will not be sustainable.
40. (II) Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
The trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split-up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial till its conclusion.
41. (III) What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?
41.1. If the competent court finds evidence or if application under Section 319 CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. 41.2. The court shall thereupon first decide the need or Page 21 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined otherwise to summon the additional accused and pass orders thereon.
41.3. If the decision of the court is to exercise the power under Section 319 CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.
41.4. If the summoning order of additional accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.
41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
41.6. If the decision is that the summoned accused can be tried separately. on such order being made, there will be no impediment for the court to continue g and conclude the trial against the accused who were being proceeded with.
41.7. If the proceeding paused as in para 41.1 above, is in a case where the accused who were tried are to be acquitted, and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.
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NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined 41.8. If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split-up (bifurcated) trial.
41.9. If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 CrPC, the appropriate course for the court is to set it down for re-b hearing.
41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.
41.11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and C de novo proceedings be held.
41.12. If. in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier:
(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.Page 23 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026
NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined
(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused."
9.2. Therefore, the Hon'ble Apex Court in the case of Sukhpal Singh Khaira (supra) has observed that power under Section 319 of the Code are to be invoked and exercised before pronouncement of order of sentence when there is judgment of conviction. The situation with regard to the conclusion of trial during pendency of revision application under Section 397 of the Code was not a point of deliberation in case of Sukhpal Singh Khaira (supra). In view of this situation, in the case of Jamin (supra), Hon'ble Apex Court has observed that guidelines given in case of Sukhpal Singh Khaira (supra) was not covering peculiar facts of certain cases. It has to be noted that the facts that are subject matter of consideration in case of Jamin (supra) are also the same facts which are subject matter of consideration in the present revision application and there cannot be further debate on that. The point discussed and deliberated in case of Sukhpal Singh Khaira (supra) was that power under Section 319 of the Code must be exercised by Page 24 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined the Court against the proposed accused before conclusion of the trial. However, the situation in case of Jamin (supra) was that the trial court had rejected the application filed under Section 319 of the Code and the same was set aside by the High Court. The point for consideration in case of Jamin (supra) was the legal effect of the order passed by the High Court in setting side the rejection order of the trial court under Section 319 of the Code despite the conclusion of trial during pendency of revision petition. Therefore, the Apex Court observed that whether the High Court was right in exercise of its revisional jurisdiction for the purpose of setting aside the order of trial court rejecting the application preferred by the respondent under Section 319 of the Code.
10. A similar situation arises in the facts of present case which is akin to the case of Jamin (supra). In such facts a question was raised that whether the order passed by the High Court in exercise of its revisional jurisdiction would relate back to the order passed by the trial court rejecting the application under Section 319 of the Code. On this issue the Hon'ble Apex Court in the case of Jamin (supra) has observed that if the revisional Page 25 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined order of High Court would not relate back than the very object of Section 319 of the Code will be negated and would be rendered incapable despite the fact that the High Court rectified the patent mistake committed by the trial court. It was further observed that if the order of the High Court passed in its revisional jurisdiction is not related back, the consequence would be that although from the evidence, it would appear that the there are some other persons who might be involved in the offences, yet those persons will go scot-free solely because trial court erred in exercising powers under Section 319 of the Code which it ought to have exercised. Therefore, it was observed by the Hon'ble Apex Court that relating back the High Court's revisional order to the date of the trial court's order strikes a balance between the interests of newly summoned persons and the general public/victims without causing prejudice to either. This issue discussed in the case of Jamin (supra) is reflected as below :-
"80. In such circumstances, the High Court set aside the order of the Trial Court and directed it to reconsider the application under Section 319 within a period of three months. The question that now arises is whether any meaningful effect Page 26 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined can be given to the order of the High Court for a fresh consideration of the application under Section 319 of the CrPC after the conclusion of the main trial.
(vi) Whether the order passed by the High Court in exercise of its revisional jurisdiction would relate back to the order passed by the Trial Court rejecting the application under Section 319 of the CrPC
81. This Court in Hardeep Singh (supra) observed that Section 319 casts a duty upon the courts to give full effect to the words used by the legislature to ensure that no person who deserves to be tried is able to go scot-free. The relevant paragraphs are reproduced below:
"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 the possibility of his complicity which can be gathered from the documents presented by the prosecution.
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 Page 27 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined 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."
82. In Shashikant Singh (supra), this Court emphasised on the duty of the courts to give a meaningful or rather a purposeful interpretation to Section 319 so as to fulfill its avowed objective of ensuring that no person who is guilty of an offence goes unpunished. The Court observed thus:
"8. When a statute is passed for the purpose of enabling something to be done, and prescribes the way in which it is to be done, it may be either an absolute enactment or a directory enactment. The difference being that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. (Craies on Statute Law, 7th Edn., pp. 260-62.) Page 28 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined
9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319(1), appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become Page 29 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court."
83. A strict application of the dictum as laid in Sukhpal Singh Khaira (supra) as regards the stage of passing of summoning order under Section 319 of the CrPC to the peculiar facts in the present case may be antithetical to the very object of Section 319 and would render the order of the High Court nugatory and incapable of being given effect to despite having been passed to rectify a patent mistake committed by the Trial Court. In our considered view, the aforesaid would lead to a serious miscarriage of justice. Such a result is also contrary to the principle enshrined in the legal maxim nullum tempus aut locus occurrit regi which means that "crime never dies".
84. The facts of the case on hand are peculiar and require us to go one step ahead of our present understanding of Section 319. We are of the view that the answer to present conundrum lies in determining the legal effect of the order passed by the High Court in exercise of its revisional jurisdiction and whether it operates from the date on which it came to be passed or would it relate back to the date of the order of the Trial Court against which it was passed.
85. This Court in Maru Ram v. Union of India, reported in (1981) 1 SCC 107 held that:
Page 30 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026
NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined "56. We are mindful of one anomaly and must provide for its elimination. If the Trial Court acquits and the higher Court convicts and it so happens that the acquittal is before Section 433-A came into force and the conviction after it, could it be that the convicted person would be denied the benefit of prospectivity and consequential non-application of Section 433-A merely because he had the bad luck to be initially acquitted? We think not. When a person is convicted in appeal, it follows that the appellate Court has exercised its power in the place of the original court and the guilt, conviction and sentence must be substituted for and shall have retroactive effect from the date of judgment of the Trial Court. The appellate conviction must relate back to the date of the Trial Court's verdict and substitute it. In this view, even if the appellate Court reverses an earlier acquittal rendered before Section 433-A came into force but allows the appeal and convicts the accused, after Section 433-A came into force, such persons will also be entitled to the benefit of the remission system prevailing prior to Section 433-A on the basis we have explained. An appeal is a continuation of an appellate judgment as a replacement of the original judgment.
[Freedom Behind Bars -- Criminology and Consciousness, Series I, 1979, Maharshi European Research University Press Publication, p. 73]"
(Emphasis supplied)
86. The judgment in Maru Ram (supra) is relevant to the Page 31 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined extent that the order of the appellate court relates back to the order of the Trial Court on the premise that an appeal is a continuation of trial and an appellate judgment is a replacement of the original judgment.
87. Once the High Court i.e., a superior court deems fit to interfere with an order of a subordinate court, then any rectifications made to the order passed by the subordinate court by such superior court in exercise of revisional powers under Section 401 read with Section 397 of the CrPC must be treated on the same footing as rectifications made by an appellate court and relate back to the original order.
88. This Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat reported in (1969) 2 SCC 74 observed thus:
"6. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior courts in those of Page 32 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal.
7. It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. In U.J.S. Chopra v. State of Bombay [1955 SCC OnLine SC 57 : AIR 1955 SC 633], the principle of merger was considered with reference to Section 439 of the Criminal Procedure Code which confers revisional jurisdiction on the High Court. In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower court thus constituting the judgment of the High Court--the only final judgment to be executed in accordance with law by the Court below. [...] "
(Emphasis supplied)
89. The reasoning assigned by this Court in Krishnaji Dattatreya Bapat (supra) and U.J.S. Chopra v. State of Bombay reported in 1955 SCC OnLine SC 57 when read with the reasoning in Maru Ram (supra) would indicate that the order of the High Court in exercise of its revisional jurisdiction relates back to and replaces the order of the Trial Court. It is of no consequence that the exercise of revisional jurisdiction is discretionary as opposed to appellate jurisdiction. It is settled law that an appellate court exercises its power in the place of the original court Page 33 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined and the order passed by such court shall have retroactive effect from the date of judgment of the Trial Court. Similarly, once the High Court, being the superior court, decides to interfere with the order of the Trial Court and passes an order in exercise of its revisional jurisdiction with the purpose of rectifying any errors in the same, such order will replace the order of the Trial Court.
90. What can be discerned from the aforesaid is that if the High Court passes an order in exercise of its revisional jurisdiction either setting aside or modifying the order of the Trial Court for the purpose of Section 319, the same would relate back to the original order passed by the Trial Court and substitute it to the extent of modification.
91. Besides above, the normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of facts or law which have a material bearing on the entitlement of the parties to the relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance of the subsequent changes of fact and law to mould the relief (See: Ramesh Kumar v. Kesho Ram reported in 1992 Supp (2) SCC 623). Justice Krishna Iyer in Pasupuleti Venkateswarlu v. Motor and General Traders, reported in (1975) 1 SCC 770 has observed thus:
"4. ... It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally Page 34 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings in this point are legion, even as situations for applications of this equitable rule are myriad."
Though the aforesaid observations are in the context of civil proceedings, the legal principle enshrined therein is based on a well-known latin maxim "actus curaie neminen gravabit" -
"an act of court shall prejudice no man", which is of universal application. As a sequitur, no man should suffer because of the fault of the court or delay in the procedure.
92. In the present case, the High Court, in exercise of its revisional jurisdiction, set aside the order of the Trial Court rejecting the second application under Section 319 of the CrPC and directed the Trial Court to reconsider the application under Section 319. At the stage of issuing the aforesaid direction, the High Court Page 35 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined was conscious that the trial had concluded, yet to do substantial justice, it deemed it necessary to issue such a direction. In doing so, the High Court's order, which relates back to the date of the Trial Court's order, did not mandate the Trial Court to do something which was barred by law because, as already noticed above, holding a joint trial is directory. Therefore, in complying with the said direction of the High Court, the Trial Court committed no act which was prohibited by law.
93. There is not an iota of doubt that if the Trial Court would have proceeded against the appellants under Section 319 of the CrPC in the absence of the order passed by the High Court in the revision petition, the same would have been illegal for having being done after the conclusion of the trial of the original accused in light of the clear guidelines laid down in Sukhpal Singh Khaira (supra). However, by virtue of relating back of the order passed by the High Court in the revision petition, the summoning order passed by the Trial Court in compliance with the order of the High Court would also relate back to the initial order rejecting the second application under Section 319, and for this reason could be said to have been passed before the conclusion of the trial.
94. This Court in Sukhpal Singh Khaira (supra) had no occasion to consider a factual situation like the one at hand, and thus the guidelines laid down by the Constitution Bench did not prescribe anything as Page 36 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined regards the application of Section 319 of the CrPC in the context of revisional jurisdiction of the High Court. In such circumstances, the spirit underlying Section 319 requires us to adopt an approach which furthers and fulfills the object of the provision rather than rendering it nugatory.
95. If the order of the High Court passed in its revisional jurisdiction is not related back, the consequence would be that although from the evidence, it appears that there are some other persons who might be involved in the offence, yet those persons will go scot-free solely because the Trial Court erred in not exercising its powers under Section 319 which it ought to have. Relating back the High Court's revisional order to the date of the Trial Court's order strikes a balance between the interests of the newly summoned persons and the general public/victims without causing prejudice to either.
11. In the facts of the present case when the Sessions Court has rejected the application under Section 319 of the Code and the trial has concluded during the pendency of the present revision application, powers of this Court under Section 397 of the Code would not be rendered nugatory on the basis of the observations made by the Hon'ble Apex Court in case of Jamin (supra). Therefore, the submissions canvassed by learned Page 37 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined Senior Advocate Mr. Unwalla that once the application under Section 319 of the Code is rejected and once the trial is concluded, revisional power cannot be exercised by High Court is contrary to the ratio laid down by the Hon'ble Apex Court in case of Jamin (supra). Therefore the argument canvassed by learned Senior Advocate Mr. Unwalla on technical ground of not deciding the issue on merits cannot be accepted.
12. The second issue raised by learned Senior Advocate Mr. Unwalla emphasis that decision rendered by the Hon'ble Apex court in case of Jamin (supra) is per incuriam. This argument of learned Senior Advocate Mr. Unwalla cannot be accepted. To support of his argument reference is made by Mr. Unwalla to the decision of the Hon'ble Apex Court in case of Deen Mohammad (supra). One fact to be noted before countering the argument of Mr. Unwalla is that the order passed by the Apex Court in case of Deen Mohammad (supra) is in Special Leave Petition (Criminal), whereas the order passed in case of Jamin (supra) has dealt the decision in criminal appeal. Nonetheless, the rationale of the case has to be deduced from Page 38 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined the facts involved in the case and the particular provision of law applied or interpreted or issue discerned in the context of the question involved in the case. It would not be open for this Court to come to conclusion or make an observation that two judgment of Hon'ble Apex Court are per incuriam. It would not be open or not permissible for this Court to fill in shoes of Hon'ble Apex Court and decide as to which of its decision is per incuriam. If at all the applicant is desirous to have adjudication on this issue the proper recourse would be to approach Hon'ble Apex Court. Therefore, this Court would not be able to accept the submissions made by learned Senior Advocate Mr. Unwalla that the decision in the case of Jamin (supra) and in case of A.P. Electrical Equipment Corporation (supra) are per incuriam and the ratio in Jamin (supra) would not be applicable. On the basis of observation made herein-above, both the technical objection taken by learned Senior Advocate Mr. Unwalla are devoid of any merits and this Court would proceed to decide the issue on merits and facts of the case.
13. On going through the merits of the matter, the fact is not in dispute that the name of the proposed accused was not Page 39 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined arraigned either in the First Information Report or the charge sheet. During the deposition of the approver statement, the name of the proposed accused i.e. the present respondent came into picture. Pursuant to the deposition of the approver i.e. Samir Gandhi, the present revisionist - applicant preferred an application under Section 319 of the Code to summon the respondent herein to face trial. In this background, the legality of the impugned order under Section 319 of the Code needs to be examined. The provision of Section 319 of the Code 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."
14. Thus, the power under Section 319 of the Code is discretionary and an extraordinary power. It has to be exercised sparingly and only in those cases where the circumstances of Page 40 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined the case so warrant. Only where strong and cogent evidence occurs against a person from the evidence led before the court then such power are to be exercised which should not be in a casual or cavalier manner. For exercise of such power requirement is of strong evidence than mere probability. The test to be applied to issue a summon under Section 319 of the Code is that the evidence has to be strong to an extent that if it goes unrebutted, it would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 of the Code. In the instant case, the only evidence that has been relied upon by the revisionist applicant before the trial court or before this Court is only the deposition of the approver - Samir Gandhi. Even in the statement of the approver - Samir Gandhi under Section 161 of the Code, he has not named the present respondent. Learned advocate Mr. Devnani has not relied upon on any evidence apart from the statement of the approver. He has also not produced any judicial pronouncement which confirms that merely the approver statement can lead to conviction. In such factual aspect, it would not be possible to overturn the observations Page 41 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined that are made in the impugned order. The principles that are laid down by the Constitutional Bench of Hon'ble Apex Court in the case of Hardeep Singh v. State of Punjab reported in (2014) 3 SCC 92, for courts to follow while exercising power under Section 319 of the code are as under :
"94. In Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094, a four-Judge Bench of this Court was concerned with the meaning of the word "appear". The Court held that the appropriate meaning of the word "appears" is "seems". It imports a lesser degree of probability than proof. In Ram Singh v. Ram Niwas, (2009) 14 SCC 25 , a two-Judge Bench of this Court was again required to examine the importance of the word "appear" as appearing in the section. The Court held that for the fulfillment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as the accused in the case.
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...
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.Page 42 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026
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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."
15. Therefore, on the basis of the facts of the present matter as well as on the basis of guidelines given by Hon'ble Apex Court in case of Hardeep Singh (supra) to exercise power under Section 319 of the Code, no infirmity can be attached to the impugned order passed by the Sessions court. Over and above that the revisional jurisdiction under Section 397 of the Code is a limited jurisdiction exercisable if the court below has committed a manifest illegality or the findings are perverse and based on misreading of evidence resulting into miscarriage of justice. The principles under for Section exercise 397 of the Code revisional were jurisdiction highlighted in D.Stnbens Vs Nosibolla [1951 SCR 284] as also in K.C. Reddy Vs State of Andhra Pradesh [1963 SCR 412]. In State of Maharashtra Vs Jag Mohan Sing Kuldip Sing Anand and others [(2004) 7 SCC 659], the Apex Court reiterated that the revisional Page 43 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined power of the High Court under Sections 397 and 401, Cr.P.C. cannot be exercised as a second appellate power and that the High Court cannot, while exercising the revisonal power, undertake in-depth and minute re-examination of entire evidence. This Court has definitely gone through the records and proceedings of the case. However, it has refrain to make any observation as the Criminal Appeal of the convict is at large pending before this Court. Nonetheless the fact is that the only evidence demonstrated by the applicant against the proposed accused is only the statement of the approver.
16. In view of the same, this Court does not find any evidence relied upon by the revisionist applicant which can become necessary for the Court to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the person sought to be added as accused in the case. In that view of the matter, this Court does not find any infirmity in the order passed by the trial court. It is however observed that technical objection taken by learned Senior Advocate Mr. Unwalla, in the matter are not acceptable. This Court is of the definite opinion on the basis of ratio laid Page 44 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026 NEUTRAL CITATION R/CR.RA/612/2024 JUDGMENT DATED: 01/05/2026 undefined down by Hon'ble Apex Court in case of Jamin (supra) that High Court can exercise power under Section 397 of the Code to decide the order passed by Sessions court in application preferred under Section 319 of the Code despite the fact that the trial has concluded during the pendency of revision application. However, on merits and on facts of the present matter, this Court does not find any infirmity with the order passed by the trial court and therefore, in such a situation, the present revision application being devoid of merits, is hereby rejected.
17. Accordingly, the present Revision Application stands rejected. Rule is discharged.
Registry is directed to send back the Records and Proceedings forthwith.
(PRANAV TRIVEDI,J) phalguni/ Page 45 of 45 Uploaded by PHALGUNI PATEL(HC00175) on Sat May 02 2026 Downloaded on : Tue May 05 02:51:42 IST 2026