HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL REVISION No. - 5283 of 2024 Court No. - 45 HON'BLE LAKSHMI KANT SHUKLA, J. 1. The instant Criminal Revision has been preferred by the revisionist challenging the validity and propriety of the impugned order dated 24.09.2024 passed by the Additional Sessions Judge, F.T.C.-II, Bijnor (hereinafter referred to as 'the Trial Court') whereby the Trial Court has summoned the revisionist under Section 319 Cr.P.C. to face trial in Sessions Trial No. 486 of 2023, State v. Shareef etc. arising out of Case Crime No. 479 of 2022, under Sections 323/34, 504/34,506/34,304/34 I.P.C., Police Station Nazibabad, District Bijnor along with co-accused. 2. Feeling aggrieved from the aforesaid order, the present Criminal Revision has been filed inter alia on the grounds that the impugned order is arbitrary, illegal and contrary to the facts and evidence on record. It is contended that the Trial Court has failed to exercise the jurisdiction vested in it in accordance with law and has committed material irregularity while passing the impugned order. 3. Heard Mr. Mohd. Khalil, learned counsel for the revisionist, learned A.G.A. appearing on behalf of the State and perused the material available on record. Versus Counsel for Revisionist(s) : Mohd. Khalil, Mohd. Afzal Ansari, Punita Pandey, Shweta Pandey Counsel for Opposite Party(s) : Amit Rai, G.A., Vikas Tiwari Asif .....Revisionist(s) State of U.P. and Another .....Opposite Party(s) 4. Learned counsel for the revisionist submits that while allowing an application under Section 319 Cr.P.C., the Court is required to record its satisfaction that the evidence available on record is cogent, credible and of such quality that it gives rise to a strong possibility of the accused sought to be summoned having committed the offence. However, the learned Trial Court has not recorded such reasons in the impugned order. 5. Elaborating his submissions, learned counsel for the revisionist further submits that although the revisionist was named in the FIR as accused no. 2, but upon conclusion of the statutory investigation, the Investigating Officer found the allegations against him to be false and accordingly exonerated him from the case. It is contended that the conclusion of exonerating the revisionist was arrived at on the basis of the statements of the prosecutrix recorded under Section 161 and 164 Cr.P.C. as well as the statements of other witnesses, medical evidence, CCTV footage and other material collected during the course of investigation. 6. To buttress his submissions, the learned counsel for the revisionist has placed reliance upon the judgement of this Court in Sanju and others v. State of U.P. and another, [2024 (127) ACC 791] and the judgement of Supreme Court in Aarif and others v. The State of Rajasthan and another, 2024 0 AIR (SC) (Cri) 34. In Sanju (supra) in paragraph nos. 36, 37, 38 and 39, it has been held: "36. Whereas Hon'ble Supreme Court in Brijendra Singh Meena v. State of Rajasthan and others (supra) held in paragraph 13 of the judgement that the 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the I.O. at the stage of inquiry is concerned, it can be utilized for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. 37. Hon'ble Supreme Court also held in Brijendra Singh's CRLR No. 5283 of 2024 2 case that powers of the Court to proceed under Section 319 Cr.P.C. even against those persons who are not arraigned as accused, cannot be disputed. This provision is meant to achieve the objective that real culprit should not get away unpunished. As Section 319 Cr.P.C. springs out of a legal maxim "judge is condemned when guilty is acquitted" and this doctrine must be used as a beacon light while explaining the ambit and spirit underlying the enactment of Section 319 Cr.P.C. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one the real culprits as an accused, the Court is not powerless in calling the said accused to face trial. 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 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. 38. The Hon'ble Apex Court observed that in a case like the present where plethora of evidence was collected by the Investigating Officer during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their (appellants), complicity has come on record. There is no satisfaction of this nature. The police on investigation revealed that the statement of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did no inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct. 39. With foregoing submissions at Bar and discussion, this Court is of the considered opinion that the learned court CRLR No. 5283 of 2024 3 below has committed legal error while ignoring all together the course of investigation, the reason behind exoneration of the revisionists and filing of charge-sheet against a new set of accused persons on the basis of evidence collected during investigation. Although the evidence adduced during inquiry or trial is envisaged as "evidence" under Section 319 Cr.P.C. as settled in Constitutional Bench Judgement the Hon'ble Apex Court in Hardeep Singh v. State of Punjab and others (supra) but in subsequent judgement in Brijendra Singh and others v. State of Rajasthan (supra) the Hon'ble Apex Court held that the evidence collected by I.O. at the stage of investigation should also be looked into as the same may be utilized for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. The impugned order is not sustainable under law and deserves to be set-aside." 7. The Supreme Court in Aarif (supra) in paragraph no. 6 of the report it has been held: "6. Regarding the extent and degree of inquiry required for deciding an application under Section 319 of Cr.P.C. the decision of the Constitution Bench of this Court in the case of Hardeep Singh v. State of Punjab, (2014 3 SCC 92 will be relevant. In para 95 of the said judgment, it is stated thus: "95. At the time of taking congnizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C. though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two judge Bench of this Court in Vikas vs. State of Rajasthan, (2014) 3 SCC 321: (2013) 11 Scale 23, held that on the objective satisfaction of the Court a person may be "arrested" or "summoned" as the circumstances of the case CRLR No. 5283 of 2024 4 may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons." (emphasis supplied) 8. In light of the judgements referred above, it has been argued that the Trial Court was duty bound to consider not only the evidence adduced before it but also the material collected by the Investigating Officer during investigation. However, the Trial Court failed to take into account such material and proceeded to pass the impugned order. Therefore, the impugned order is liable to be set aside. 9. Per contra, the learned A.G.A. vehemently opposed the submissions of the learned counsel for revisionist but could not dislodge the factual and legal arguments of the learned counsel for the revisionist. 10. Having heard the learned counsel for parties and upon consideration of the rival submissions as noted herein-above and the material available on record, this Court is of the view that the Trial Court was obliged to consider the entire evidence, whether produced before it or collected during investigation while adjudicating the application under Section 319 Cr.P.C. The failure to do so amounts to a material irregularity. Accordingly, the impugned order cannot be sustained and is liable to be set aside. The present revision, therefore, deserves to be allowed. 11. Accordingly, the present Criminal Revision is allowed. The impugned order dated 24.09.2024 passed in Sessions Trial No. 486 of 2023, State v. Shareef etc. (arising out of Case Crime No. 479 of 2022), under Sections 323/34, 504/34,506/34,304/34 I.P.C., Police Station Nazibabad, District Bijnor is hereby set aside. CRLR No. 5283 of 2024 5 12. The Trial Court concerned is directed to pass a fresh order, in accordance with law and after affording due opportunity of hearing to the parties and in view of the observations made herein-above. 13. Let a copy of this order be communicated to the Trial Court concerned by the Registrar (Compliance). April 16, 2026 Brijesh Maurya CRLR No. 5283 of 2024 6 (Lakshmi Kant Shukla,J.) Digitally signed by :- BRIJESH KUMAR High Court of Judicature at Allahabad