IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.3978 of 2019 Arising Out of PS. Case No.-106 Year-2015 Thana- HATHUA District- Gopalganj ====================================================== Sharvan Kumar Pandey Sri Kant Pandey Resident of Mohalla-A- 276, Block-A North Vinod Nagar, P.S.- Mandawali, New Delhi. ... ... Petitioner Versus 1. The State of Bihar 2. Surendra Nath Pandey Late Mahadev Pandey Resident of Village- Gilwaniya, P.S.- Kutaiya, Distt.- Gopalganj. ... ... Opposite Party ====================================================== Appearance : For the Petitioner/s : Mr.Mukesh Kumar No1. Advocate For the Opposite Party/s : Mr.Ashok Kumar Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT Date : 20-07-2026 Heard learned counsel for the petitioner and learned A.P.P. for the State. 2. The present quashing petition has been filed for quashing the impugned order dated 13.07.2018 passed by learned Chief Judicial Magistrate, Gopalganj in connection with Tr. No. 1640/18 arising out of Hathua P.S. Case No. 106 of 2015 registered for the offences punishable under Sections 420 & 379 of the I.P.C. and Section 66(C) of the Information Technology Act, whereby and whereunder on application of accused Rahul Kumar Jha, learned C.J.M. issued summon against the petitioner to face the trial under Section 319 of the Code of Criminal Procedure. Patna High Court CR. MISC. No.3978 of 2019 dt.20-07-2026 2/8 3. The brief facts of the case is that as per FIR, informant alleged that Rs. 11,00,000/- has been withdrawn in between 30.04.2015 to 22.06.2015 by the IRCTC from his Bank Account No. 11453719697, of State Bank of India, Hathua Branch. It is alleged that informant is a retired teacher and when he came to the Bank and verify his account, then, he came to know that fraud which has been committed with his account. 4. On the basis of aforesaid written report, above- mentioned First Information Report has been lodged with Hathua Police Station. After lodging the FIR, police started investigation and submitted charge-sheet only against co- accused Rahul Kumar Jha for the offences punishable under Sections 420 & 379 of the I.P.C. and section 66(C) of the I.T. Act and investigation was kept pending to verify the I.P. address and on other points. Thereafter, learned trial court took cognizance only against accused Rahul Kumar Jha for the offences under sections 420 & 379 of the I.P.C. and Section 66(C) of the I.T. Act. 5. Learned counsel appearing on behalf of the petitioner submitted that after taking cognizance the trial of Patna High Court CR. MISC. No.3978 of 2019 dt.20-07-2026 3/8 this case begins with Tr. No. 1640/18 before the court of learned CJM, Gopalganj, where altogether seven (7) prosecution witnesses were examined and out of seven prosecution witnesses, this petitioner was also examined as PW-7 on 03.04.2018. 6. It is pointed out that none of the prosecution witnesses, PW-1 to PW-6 named this petitioner qua his any involvement with the crime in question during the trial and this petitioner was examined as prosecution witness No.7, for the reason that he was the distributor of Cable Internet Connection through his company namely, M/s ANI Network Pvt. Ltd. to co-accused Rahul Kumar Jha, who alleged to misappropriate the amount of Rs. 11 Lakhs from the account of the informant for purchasing railway tickets and, thereafter, transferring the amount to his own account after cancellation of purchased railway tickets. It is submitted that co-accused Rahul Kumar Jha was not examined before the learned trial court in view of section 315 of the Cr.P.C., rather he made one application before the court of learned CJM, Gopalganj on 03.04.2018, stating therein that this petitioner may be summoned as an accused, Patna High Court CR. MISC. No.3978 of 2019 dt.20-07-2026 4/8 which was allowed by the impugned order dated 13.07.2018. 7. At this stage, it would be apposite to reproduce the impugned order dated 13.07.2018, which are as under: “U;k;ky; eq[; U;kf;d n.Mkf/kdkjh xksikyxat fopkj.k la0 1640@2018 jkT; cuke jkgqy dqekj >k th0vkj0 1864@15 ch0 1640@18 U;k;ky; eq[; U;kf;d n.Mkf/kdkjh xksikyxat fopkj.k okn la0 1640@18 13-07-18 dkjk/khu vfHk;qDr dks dkjk ls izLrqr fd;k x;k gSA izLrqr vkosnu dkjk/khu vfHk;qDr jkgqy dqekj >k dh vksj ls vUrxZr /kkjk 319 na-iz-la- bl vk”k; dk izLrqr fd;k x;k gS fd Mk;jh ds iSjk ua-51 oks 70 ds voyksdu ls Li’V gS fd bl dsl ds eq[; vfHk;qDr Jo.k dqekj ik.Ms; gS] tSlk fd dkaM nSfudh ds iSjk 70 esa vijk/k bdkbZ] iVuk ds Kkikad 299@”kk- dk Kkikad vijk/k bdkbZ ¼lkbcj lsy½ dk dk;kZy;] fcgkj iVuk ds fnukad 09-06-16 ls ,l-ih- xksikyxat ds uke dk izfrosnu izkIr gqvk Fkk fd fVdVksa dh cqfdax voS/k :i ls oknh ds [kkrk ls dh xbZ Fkh rFkk VªkatsD”ku fMVsy esa mfYyf[kr Vh-ih-,M ds fy, ;wtj fMVsy gsrq ,vjVsy] cksMkQksu ,oa vkbZfM;k dks Hkstk x;k gS ftlesa bZ&esy ds eksckbZy fMVsy miyC/k djk;k x;k gSA ftlesa ,usDLpj 3 ist la- 151 ls 153 esa uke Jo.k dqekj irk& ,- 276,- CykWd ukFkZ fouksn uxj ik;k x;k gSA dsl Mk;jh ds iSjk&51 esa gh Jo.k dqekj ik.Ms; ,oa [kxsUnz izlkn dh lafyIRrk gksus dk Ik;kZIr lk{; gSA bl vk/kkj ij vfHk;qDr ds }kjk vuqjks/k fd;k x;k gS fd mijksDr dkaM esa xgjkbZ ls tkap dj nksuksa vfHk;qDr Jo.k dqekj ik.Ms; rFkk [kxsUnz izlkn dks /kkjk 319 na-iz-la- ds vkyksd esa vfHk;qDr cukus dh d`ik dh tk,A vkosnu dh dkWih ftyk vfHk;kstu inkf/kdkjh dks izkIr djk;k x;k gS ftlesa ftyk vfHk;kstu inkf/kdkjh ds }kjk vfHk;qDr ds vkosnu dk dksbZ fojks/k ugha fd;k x;k gS rFkk U;k;ky; dks crk;k x;k gS fd lg vfHk;qDr ds fo:) vuqla/kku yfEcr gS rFkk dkjk/khu vfHk;qDr jkgqy dqekj >k ds fo:) izLrqr dsl Mk;jh Fulty funtory rFkk iw.kZ ugha gSA le; lhek ls cpus ds fy, iqfyl ds }kjk vuku&Qkuu esa tYnhcknh djrs gq, fcuk oSKkfud rFkk rkfdZd <ax ls vuqla/kku dks iw.kZ fn[kkrs gq, vkjksi i= dkjk/khu vfHk;qDr ds fo:) lefiZr fd;k x;k gSA ,slh fLFkfr esa vU; vfHk;qDRkx.k tks dkjk/khu vfHk;qDr ds lg;ksxh gS tks dze”k% Jo.k dqekj ik.Ms; rFkk [kxsUnz izlkn dks Hkh vfHk;qDr cukuk tkuk vko”;d gS D;ksafd nksuks vfHk;qDrksa ds fo:) i;kZIr lk{; miyC/k gSA mHk;i{kksa ds fo}ku vf/koDrkvksa ds rdksZa dks lquk x;k rFkk vfHkys[k dk voyksdu fd;kA ftlls Li’V gksrk gS fd dkjk/khu vfHk;qDr jkgqy dqekj >k ds fo:) fnukad 30-10-16 dks vkjksi i= lefiZr fd;k x;k gS rFkk vU; vfHk;qDrksa dks vkbZ-ih-,-Mh-th- ds lR;kiu ds fy, iqjd vuqla/kku tkjh j[kk x;k gSA vfHkys[k ij miyC/k ekSf[kd rFkk nLrkosth lk{; ds voyksdu ls Li’V gS fd bl dsl esa Jo.k dqekj ik.Ms; rFkk [kxsUnz izlkn ds fo:) Hkh izcy lk{; miyC/k gSA ftlds vkyksd esa bu vfHk;qDrksa dk fopkj.k fd;k tkuk U;k;fgr esa vko”;d gSA mijksDr rF;ksa ,oa ifjfLFfr;ksa ds vkyksd esa dkjk/khu vfHk;qDr jkgqy dqekj >k dh vksj ls izLrqr vkosnu /kkjk 319 na-iz-la- Lohd`r fd;k tkrk gSA dk;kZy; vfHk;qDRkksa dh mifLFkfr gsrq lEeu fuxZr djsaA vfHkys[k fnukad 27-7-18 dks izLrqr djsaA ys[kkfir Patna High Court CR. MISC. No.3978 of 2019 dt.20-07-2026 5/8 g0@& eq[; U;kf;d n.Mkf/kdkjh ” 8. It would further be apposite to reproduce Section 319 of the Cr.P.C., which reads as under: “319. Power to proceed against other persons appearing to be guilty of offence.— (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub- section (1), then— (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 9. Learned counsel also relied upon ‘Para 7’ of the legal report of Hon’ble Supreme Court as available through Neeraj Kumar @ Neeraj Yadav Vs. State of U.P. & Ors. reported in 2025 SCC OnLine SC 2639, which reads as under for better appreciation of the legal position in connection with issuance of summon under section 319 Cr.P.C. :- Patna High Court CR. MISC. No.3978 of 2019 dt.20-07-2026 6/8 “7. It is no longer res integra that the power conferred under this Section is extraordinary and discretionary in nature, intended to be exercised sparingly and with due circumspection. While invoking it, the Court must be satisfied that the evidence appearing against the person sought to be summoned is such that it prima facie necessitates bringing such person to face trial. The degree of satisfaction required is higher than that warranted at the stage of framing of charge, yet short of the satisfaction necessary to record a conviction. Such satisfaction must rest on cogent and credible material brought on record during the trial, and not based on conjectures or speculations. In this regard, reference to a few judicial pronouncements of this Court would be apposite. 7.1. The Constitution Bench of this Court in Hardeep Singh v. State of Punjab [(2014) 3 SCC 92] extensively discussed the power conferred under Section 319 CrPC. Relevant part is extracted hereunder: “90. … all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words “such person could be tried” instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence. xxx 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 Patna High Court CR. MISC. No.3978 of 2019 dt.20-07-2026 7/8 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. … xxx 110. In Lal Suraj [Lal Suraj v. State of Jharkhand, (2009) 2 SCC 696 : (2009) 1 SCC (Cri) 844], a two-Judge Bench held that there is no dispute with the legal proposition that even if a person had not been chargesheeted, he may come within the purview of the description of such a person as contained in Section 319 CrPC. A similar view had been taken in Lok Ram [Lok Ram v. Nihal Singh, (2006) 10 SCC 192 : (2006) 3 SCC (Cri) 532 : AIR 2006 SC 1892], wherein it was held that a person, though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial. …. …… ……” 10. In view of aforesaid, it is clear that only on the basis of evidences as surfaced during any inquiry or trial of an offence, a summon can be issued to any person not being accused has committed any offence for which such person could be tried together with the accused. 11. In the present case, summon was not issued against petitioner on the basis of evidences surfaced during the trial. None of the prosecution witnesses have said anything incriminating during the trial against this petitioner, rather petitioner himself examined as PW-7. Interestingly, on the basis of petition of accused only, otherwise having all opportunity to examine himself on oath under section 315 of the Cr.P.C., this petitioner was Patna High Court CR. MISC. No.3978 of 2019 dt.20-07-2026 8/8 summoned as an accused through impugned order, which is a perverse finding contrary to the settled position of law. 12. In view of aforesaid and by taking legal report of Hon’ble Apex Court in Neeraj Kumar’ case (supra), the impugned order dated 13.07.2018 as passed by learned Chief Judicial Magistrate, Gopalganj in connection with T.R. No. 1640/2018 arising out of Hathua P.S. Case No. 106 of 2015, is hereby quashed and set-aside qua petitioner. 13. Accordingly, this quashing petition stands allowed. 14. Let a copy of this judgment alongwith TCR, if any, be sent to the learned trial court. Rajeev/- (Chandra Shekhar Jha, J.) AFR/NAFR AFR CAV DATE NA Uploading Date 20.07.2026 Transmission Date 20.07.2026