The Allahabad High Court has held that if the Magistrate finds that there was sufficient material available on record before it to summon a person in the trial which is proposed to be undertaken, then the powers u/s 319 Cr.P.C. are to be invoked.

The Bench of Justice Vikas Budhwar observed that the powers under section 319 Cr.P.C. to summon those who are not named in the charge sheet to appear and face trial is unquestionable. "The very object of engrafting section 319 Cr.P.C. is that to allow a person who deserves to be tried not to go scot-free," the Court noted.

In this case, a revision of the order passed by the trial court was sought. It was submitted that an FIR under Section 302 of the Indian Penal Code was lodged against the revisionists who were two in number. However, Ravi Sahu, Advocate for the revisionist, argued that the police report was submitted in favor of the revisionists, whereby their names were expunged.

It was further submitted that an application under Section 319 CrPC was filed for summoning the revisionists. The Counsel for revisionist argued that it was a gross misuse of the process of the law at the behest of the complainant.

He further submitted that the entire exercise was illegal and that the revisionists had not committed the offence.

On the other hand, AGA, Munne Lal, argued that there was sufficient evidence on record to exercise power under Section 319 CrPC.

The Court noted that the issue with respect to the scope and ambit of the powers so conferred upon the Magistrate u/s 319 Cr.P.C. 1973 was no more res Integra.

The Court observed that while exercising powers u/s 319 Cr.P.C., degree of satisfaction has to be accorded by the Magistrate.

And to that end held that "The legislature was quite conscious while engrafting section 319 Cr.P.C. while employing the words "in the course of any inquiry into, or trial of, an offence, it appears from the evidence". The aforesaid words so employed under section 319 Cr.P.C. itself shows that degree of satisfaction has to be accorded by the Magistrate while exercising powers u/s 319 Cr.P.C."

The Court relied on the judgment of the Supreme Court in the case of Hardeep Singh Vs. State of Punjab and held that degree of satisfaction defers from case to case and according to the degree of satisfaction the test to be applied as one should be more than a prima facie case at the stage of framing of charges.

The Court also observed that the proposition of law culled out by the Apex Court itself made it clear that u/s 319 Cr.P.C. discretion was bestowed upon the Magistrate to exercise the powers while looking into the facts and the circumstances of a particular case before it while according degree of satisfaction so imperative for invocation of the powers u/s 319 Cr.P.C.

"…it can be very well said that once the Magistrate finds that there was sufficient material available on record before it to summon a person in the trial which is proposed to be undertaken then the powers u/s 319 Cr.P.C. are to be invoked. Nonetheless, the powers under section 319 Cr.P.C. to summon those persons who are not named in the charge sheet to appear and face trial is unquestionable as the very object of engrafting section 319 Cr.P.C. is that to allow a person who deserves to be tried not to go scot-free", the court held.

The Court further held that during the course of the inquiry into, or trial of, an offence, if it appears from the evidence that a person not being accused has committed the offence or he has not charge sheeted but sufficient material is available on record then the Magistrate can always summon him in that regard.

The Court noted that the names of the revisionists find its presence in the statement recorded under Section 161 and 164 CrPC and that in the statement of witnesses also the name of the revisionists finds a place. Therefore the Court held that the Court was within its jurisdiction and powers to have summoned the revisionist.

"So far as the argument so sought to be raised by learned counsel for the revisionists with regard to the fact that they have not committed the offence and the confessional statement of one of the co-accused, who was though not named in the FIR, but against whom, charge sheet was submitted is a matter of defence, which will be available to the revisionists at the time, when the trial gets commence", the Court held while dismissing the revision plea.


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Justice Vikas BudhwarAllahabad High CourtSection 319 CrPC

Ashish Shaji