Allahabad High Court
Adarsh vs State Of U.P. And Another on 8 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:110540 Reserved on: 19.04.2024 Delivered on: 08.07.2024 Court No. - 64 Case :- CRIMINAL REVISION No. - 3839 of 2023 Revisionist :- Adarsh Opposite Party :- State of U.P. and Another Hon'ble Rajeev Misra,J.
1. Challenge in this criminal revision is to the order dated 10.05.2023 passed by Additional Sessions Judge, Court No.-5, Shahjahanpur in Sessions Trial No. 171 of 2021 (State Vs. Nikhil Mishra and Others), under Sections 147, 148, 149, 279, 302, 504, 506, 34 IPC IPC, Police Station-Sadar Bazar, District-Shahjahanpur, whereby the application, under Section 319 Cr.P.C. (Paper No.- 19-Ka) filed by the prosecution/first informant, has been allowed and consequently, the revisionist, who is a prospective accused, has been summoned by Court below to face trial in aforementioned Sessions Trial.
2. I have heard Mr. Mangala Rai, the learned Senior Counsel assisted by Mr. Pawan Kumar Pandey, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Suresh Dhar Dubey, the learned counsel representing first informant-opposite party-2.
3. Perused the record.
4. Record shows that in respect of an incident, which is alleged to have occurred on 24.05.2020, a delayed F.I.R. dated 25.05.2020 was lodged by first informant Smt. Geeta Devi and was registered as Case Crime No. 0259 of 2020, under Sections 147, 148, 149, 279, 302, 504, 506, 34 IPC IPC, Police Station-Sadar Bazar, District-Shahjahanpur. In the aforesaid F.I.R., 6 persons namely - (1) Nikhil, (2) Adarsh, (3) Prabhat, (4) Vinod Kumar, (5) Ganga Prasad and (6) Rohit have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Ganga Prasad armed with rifle, named accused Rohit armed with double barrel gun, whereas Prabhat snatched rifle from his father and fired at the husband of first informant and her son Akash,on account of which, both sustained gun shot injuries. They were taken to the hospital for treatment but ultimately, they succumbed to the injuries sustained by them.
6. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. Investigating Officer undertook the preliminary exercise i.e. recovering the dead bodies of deceased, conducting the inquest proceedings of the bodies of deceased, post mortem of the bodies of deceased, visiting the place of occurrence and preparation of the site plan. Considering the nature and gravity of offence as disclosed in the FIR, it is necessary to refer to the post mortem reports of the deceased;-
"1- Ante Mortem Injury of the deceased Akash Verma Son of Kailash Verma;-
(1) Firearm wound of entry 07.00 cm x 04.00 cm on right lateral side of abdomen x cavity deep about 03.00 cm above right iliac crest. Margins inverted gun powder marking & blackening present.
(2) Multiple abrasions present on medial border of right abdomen longest is 04.00 cm x 0.80 cm smallest 0.50 cm x 0.50 cm, Total No. (10), about 06.00 cm proximal to right wrist joint.
(3) Multiple abrasions present on right foot on dorsal surface, largest is 02.00 cm x 01.00 cm, smallest 0.80 cm x 0.50 cm Total No. 11."
Cause of death of deceased Akash Verma - Shock & Haemorrhage 2- Ante Mortem Injury of the deceased Kailash Verma;-
(1) Firearm entry wound 05.00 cm x 01.00 cm x chest cavity deep on left side of chest about 11 cm below left nipple. Position 7 O' clock. Margins inverted 6 x 29 - 15.00 cm x 10.00 cm. Direction: Inward downward & on right side. (2) L/W over dorsal surface of distal phalanx of great toe & Ist, IInd and 3rd digit of left foot. (3) L/W of size 01.00 cm x 0.50 cm present on right great toe."
Cause of death of deceased Kailash Verma - Shock & Haemorrhage"
7. Having undertaken the aforesaid preliminary exercise, Investigating Officer proceeded to examine the first informant and other witnesses under Section 161 Cr.P.C. to find out the veracity of the allegations made in the FIR and also the complicity of named accused in the crime in question. On the basis of above and other material collected by the Investigating Officer, during course of investigation as well as the mitigating circumstances that emerged during course of investigation, he came to the conclusion that complicity of only 5 named accused i.e. (1) Nikhil, (2) Prabhat, (3) Vinod Kumar, (4) Ganga Prasad and (5) Rohit is established in the crime in question. He, accordingly, submitted the police report dated 21.08.2020 in terms of Section 173(2) Cr.P.C. (i.e. charge sheet), whereby aforementioned named accused have been charge sheeted under Sections 147, 148, 149, 279, 302, 504, 506, 34 IPC, whereas one of the named accused Adarsh Yadav was exculpated.
8. Upon submission of aforementioned police report, cognizance was taken upon same by the concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. However, as offence complained of is traible exclusively by the Court of Sessions, therefore, concerned Magistrate, in accordance with the mandate of Section 209 Cr.P.C., committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 171 of 2021 (State Vs. Nikhil Mishra and Others), under Sections 147, 148, 149, 279, 302, 504, 506, 34 IPC IPC, Police Station-Sadar Bazar, District-Shahjahanpur came to be registered and is now said to be pending in the Court of Additional Sessions Judge, Court No.-5, Shahjahanpur.
9. The concerned Sessions Judge proceeded with the trial. He, accordingly, in compliance of the provisions contained in Section 211 Cr.P.C. framed charges against the charge sheeted accused. The same were denied by the charge sheeted accused. They pleaded innocence and demanded trial. Accordingly, the trial procedure commenced.
10. Prosecution, in discharge of it's burden to bring home the charges so framed against charge sheeted accused, adduced PW-1 Geeta Devi (first informant/wife/mother of deceased), PW-2 Prakash (eye witness) and PW-3 Sonu (eye witness).
11. After the statement-in-chief/examination-in-chief of aforementioned witnesses was recorded, prosecution/first informant filed an application under Section 319 Cr.P.C. praying therein that since as per the depositions of aforementioned prosecution witnesses examined up to this stage, complicity of named but not charge sheeted accused Adarsh Yadav also stands established in the crime in question, therefore, he be also summoned to face trial in aforementioned Sessions Trial. This application came to be registered as Paper No. 19-Ka.
12. Charge sheeted accused Rohit and Prabhat filed their objections (Paper No. 22-Ka) to the aforementioned application under Section 319 Cr.P.C.
13. The application under Section 319 Cr.P.C. filed by the prosecution/first informant thus became a contested one. Court below, consequently, proceeded to consider the merits of the application under Section 319 Cr.P.C. filed by the prosecution/first informant. It, accordingly, evaluated and examined the allegations made in the aforementioned application in the light of the material on record as well as the depositions of three prosecution witnesses i.e. PW-1, PW-2 and PW-3, who have deposed up to this stage. On the basis of above, Court below came to the conclusion that prima-facie the complicity of prospective accused namely Adarsh Yadav who is named in the FIR but not charge sheeted, is also established in the crime in question. Accordingly, Court below, vide order dated 10.05.2023 allowed the application under Section 319 Cr.P.C. (Paper No. 19-Ka) filed by the prosecution/first informant and consequently, summoned the prospective accused i.e. the revisionist Adarsh Yadav to face trial in aforementioned Sessions Trial.
14. Thus feeling aggrieved by the above order dated 10.05.2023 passed by Court below, revisionist has now approached this Court by means of present criminal revision.
15. Mr. Mangala Rai, the learned Senior Counsel assisted by Mr. Pawan Kumar Pandey, the learned counsel for revisionist submits that the order impugned in present criminal revision is manifestly illegal and therefore, liable to be set aside by this Court. According to the learned Senior Counsel, the revisionist is named in the FIR. However, during course of investigation, no such material could be gathered by the Investigating Officer on the basis of which, even his complicity in the crime in question could be said to be established. In view of above, Investigating Officer had rightly exculpated the revisionist in the crime in question. Apart from above, as per the depositions of PW-1, PW-2 and PW-3, it is only the complicity of present revisionist that has emerged in the crime in question. It is well settled that a prospective accused cannot be summoned to face trial simply on the basis of his complicity in the crime in question. As nothing more than mere complicity of the revisionist in the crime in question has emerged as per the depositions of PW-1, PW-2 and PW-3, therefore, Court below has thus erred in law in passing the order impugned. He, therefore, concludes that since the order impugned is manifestly illegal, therefore, the same is liable to be set aside by this Court.
16. It is also contended by the learned Senior Counsel that the trial has already come to an end, vide judgment and order dated 10.07.2023 passed by Additional Sessions Judge, Court No.-5, Shahjahanpur, whereby the charge sheeted accused (1) Nikhil, (2) Prabhat, (3) Vinod Kumar, (4) Ganga Prasad and (5) Rohit have been convicted under Sections 147, 148, 302, 149, 504 IPC. He, therefore, submits that since the trial of the charge sheeted accused has already concluded, therefore, the revisionist now cannot be tried along with the charge sheeted accused. As such, the order impugned is liable to be set aside by this Court.
17. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Suresh Dhar Dubey, the learned counsel representing first informant-opposite party-2 have vehemently opposed the present criminal revision. They submit that order impugned in present criminal revision is perfectly just and legal. The learned A.G.A. invited the attention of Court to the FIR and on basis thereof, he submits that the FIR was lodged under Section 149 IPC also. There are 6 named accused named in the FIR, out of which, 5 have been charge sheeted. Court below has convicted the charge sheeted accused under Section 149 IPC also. As per the prosecution witnesses examined up to this stage i.e. PW-1, PW-2 and PW-3, the presence of revisionist Adarsh Yadav at the time and place of occurrence is fully established. Therefore, the issue as to whether any active or passive role was played by the revisionist in the commission of crime in question is wholly irrelevant. In view of above, it was not necessarily required by the Court below before summoning the prospective accused to find out as to whether strong and cogent evidence has emerged against the revisionist i.e. the prospective accused in the crime in question. As such, no illegality can be attached to the order impugned. Consequently, the present criminal revision is liable to be dismissed by this Court.
18. Mr. Suresh Dhar Dubey, the learned counsel representing first informant-opposite party-2 has also opposed this criminal revision. He has, however, adopted the arguments raised by the learned A.G.A.
19. Having heard Mr. Mangala Rai, the learned Senior Counsel assisted by Mr. Pawan Kumar Pandey, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1, Mr. Suresh Dhar Dubey, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that the primary issue, which arises for determination in present criminal revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C.? As a corollary to above, Court will also have to consider:-Whether the order impugned is within the established parameters or not?
20. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by the Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Five Judges Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Five Judges Bench) Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 Paragraphs 7, 8, 9, 15, 20, 21 and 22.
(iv) Jogendra Yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 Paragraph 13.
(v). Amrutbhai Shambhubhai Patel Vs. Suman Bhai Kantibhai Patel and Others, (2017) 4 SCC 177,
(vi) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vii) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(viii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(ix) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(x) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(xi) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xii) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xiii) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xiv) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xv) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17 (xvi) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xvi) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xviii) Saeeda Khatoon Arshi vs. State of Uttar Pradesh and Another, (2020) 2 SCC 323, (xix). Ajay Kumar @ Bittu and Another Vs. State of Uttarakhand and Another, (2021) 4 SCC 301 (xx) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xxi) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xxii) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741 Supreme Court remanded the matter before Sessions Judge for decision afresh. (xxiii). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxiv). Naveen Vs. State of Haryana and Others, (2022) 10 SCC 537 (xxv). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (Five Judges Bench), Paragraphs 7, 37, 38 and 41.
(xxvi). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxvii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxviii). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxix) Yashodhan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxx) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxxi). Aarif and Others Vs. State of Rajasthan and Another, 2023 SCC OnLine SC 1375 (xxxii). Gurdev Singh Bhalla Vs. State of Punjab and Others, (2024) 3 SCC 172 (xxxiii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174 (xxxiv). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.
21. With the aid of above, the Court now proceeds to examine the veracity of impugned order dated 10.05.2023 passed by Additional Sessions Judge, Court No.-5, Shahjahanpur in Sessions Trial No. 171 of 2021 (State Vs. Nikhil Mishra and Others), under Sections 147, 148, 149, 279, 302, 504, 506, 34 IPC IPC, Police Station-Sadar Bazar, District-Shahjahanpur, whereby revisionist, who is a prospective accused (named in the FIR but not charge sheeted), has been summoned under Section 319 Cr.P.C. to face trial in above-mentioned Sessions Trial.
22. Before proceeding to do so, it must be noticed that following issues stand settled as per judgements mentioned herein above and, therefore, they are not required to be dealt with.
23. A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the witnesses to be recorded so that non-charge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench Judgment in Dharam Pal (Supra).
24. Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra).
25. A prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness without getting his examination-in-chief recorded, vide Five Judges Bench judgment in Hardeep Singh (Supra).
26. The Court while summoning a prospective accused must come to the conclusion that a prima-facie case for summoning of a prospective accused is made out and in this regard, the Court must record it's satisfaction in consonance with the observation made in paragraph 106 of the Five Judges Bench judgment in Hardeep Singh (Supra).
27. Though in view of the law laid down by the Five Judges Bench in Hardeep Singh (Supra) that a prospective accused can be summoned on the basis of statement-in-chief of one prosecution witness but in case, if the statement of the witness, who has deposed before Court below was also recorded under Section 161 Cr.P.C. then in such a circumstance, the Court must draw a parallel in between the deposition of the witness as well as his statement under Section 161 Cr.P.C. to find out whether something new has emerged in the deposition or not, vide Brijendra Singh (Supra).
28. The Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as it is a relevant material, vide Brijendra Singh (Supra).
29. A prospective accused can be summoned only if, an inference of guilt of the accused can be drawn as per the material on record, vide Brijendra Singh (Supra).
30. The power under Section 319 Cr.P.C. is an extraordinary discretionary power, which should be exercised sparingly, vide S Mohammad Ishpahani (Supra).
31. A prospective accused should not be summoned by a Court by exercising it's jurisdiction in a casual and cavalier fashion but diligently, vide S Mohammad Ishpahani (Supra).
32. Court can summon a prospective accused by exercising power under Section 319 Cr.P.C. only when some strong and cogent evidence had emerged against a prospective accused and not merely on the basis of his complicity in the crime in question, vide S Mohammad Ishpahani (Supra).
33. In the judgments referred to above, there is a common thread that the Court can scrutinize the evidence/material on record while exercising power under Section 319 Cr.P.C.
34. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly, vide paragraph 37 of judgement in Manjeet Singh (Supra).
35. An accused, who has been summoned by the Court in exercise of power under section 319 Cr.P.C., cannot claim discharge, vide S. Mohammaed Ispahani (Supra) and Vikas Rathi (Supra).
36. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's (Supra) case requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
37. In Rajesh and Others (Supra), it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.
38. The reference made by a Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289. The Court held that "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 will not be sustainable.". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.
39. A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him, vide Yashodhan Singh and Others (Supra).
40. In Sandeep Kumar (Supra), the Court after noticing paragraphs 95 to 106 of the Five Judges Bench judgment in Hardeep Singh (Supra), considered the ingredients of Section 149 IPC and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into at the stage of deciding an application under Section 319 Cr.P.C.
41. Having noted the settled position, the Court is now required to consider whether on the basis of depositions of PW-1, Geeta Devi (first informant/wife/mother of deceased), PW-2 Prakash and PW-2 Sonu, the revisionist could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier fashion."
42. On account of the manner in which, the occurrence giving rise to present criminal proceedings has occurred, this Court is not necessarily required to go into the entire gamut of the facts and circumstances of the case and analyse the same in the light of the law laid down by the Apex Court as noted herein above. The controversy involved in the present case now stands crystallized and has to be judged in the light of the law laid down by Apex Court in the case of Sandeep Kumar (Supra).
43. The Bench in aforementioned judgment has clearly held that in case, a prospective accused has been summoned in exercise of jurisdiction under Section 319 Cr.P.C. for an offence under Section 149 IPC then the only requirement is whether as per the statements of the witnesses examined up to this stage, the presence of the prospective accused at the time and place of occurrence stands established or not.
44. Admittedly, as per the depositions of PW-1, PW-2 and PW-3, it is not only the presence of the prospective accused namely Adarsh, which has emerged but also the role of firing has been assigned to him. The aforementioned prosecution witnesses have also been cross-examined. As such, their depositions now fall in the realm of legal evidence. The charge sheeted accused have been convicted on the basis of same also. In view of above, this Court has no hesitation to hold that since the presence of the prospective accused i.e. the revisionist at the time and place of occurrence stands established as per the deposition of PW-1, therefore, the necessary ingredient for an offence under Section 149 IPC is fulfilled.
45. In view of above, the parameters laid down by the Apex Court in the case of Brijendra Singh (Supra) and S. Mohammad Ishpahani (Supra) are not required to be looked into.
46. One issue, which has been vehemently urged by Mr. Mangala Rai, the learned Senior Counsel for revisionist that since the trial of charge sheeted accused is already over and therefore, the prospective accused i.e. revisionist herein cannot be tried along with other accused, therefore, the impugned order is incapable of being effect to. At the first flush, above arguments appears to be attractive to his devoid of substance. The issue so raised is no longer re-integra and stands settled by the Five Judges Bench judgment of Supreme Court in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289, wherein the Court has laid down the guidelines required to be followed while exercising jurisdiction under Section 319 Cr.P.C. The same is reproduced herein under:-
"41.(III) What are the guidelines that the competent court must follow while exercising power under Section 319CrPC? 41.1. If the competent court finds evidence or if application under Section 319CrPC 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 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 319CrPC 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 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. 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 319CrPC 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 319CrPC, the appropriate course for the court is to set it down for re-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 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.
(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."
47. The case in hand is clearly covered under the direction contained in paragraph 41.6 of the aforementioned report.
48. In view of above, this Court finds that Court below while passing the order impugned has neither committed a jurisdictional error nor has it exercised it's jurisdiction with material irregularity so as to vitiate the order impugned, warranting interference by this Court.
49. As a result, the present criminal revision fails and is liable to be dismissed.
50. It is, accordingly, dismissed.
Order Date :- 08.07.2024 Vinay