[2025:RJ-JP:49587] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 470/2008 1. Akhtar S/o Shri Rehmat; 2. Mushtaq S/o Shri Mehmood; R/o Village Gangora, District Bharatpur. ----Petitioners Versus 1. The State of Rajasthan. 2. Ameen S/o Shri Ibrahim, R/o Village Gangora, District Bharatpur. ----Respondents Connected With S.B. Criminal Revision Petition No. 238/2008 1. Khurshid S/o Hurmat 2. Rajuddin S/o Nizam Both R/o Gangora, Ps Pahadi, District Bharatpur. ----Petitioners Versus 1. State Of Rajasthan Through PP 2. Amin Khan S/o Ibrahim, R/o F-9, Rani Garden, Shastri Nagar, East Delhi 110 031. ----Respondents S.B. Criminal Revision Petition No. 496/2008 1. Akhtar S/o Shri Rehmat; 2. Mushtaq S/o Shri Mehmood; R/o Village Gangora, District Bharatpur. ----Petitioners Versus 1. The State of Rajasthan. 2. Amin S/o Shri Ibrahim, R/o Village Gangora, District Bharatpur. ----Respondents For Petitioner(s) : Mr. D.K. Dixit, Adv. Mr. Rinesh Gupta, Adv. (Revision No.238/2008) For Respondent(s) : Mr. MS Shekhawat, PP Mr. Azad Ahmed, Adv. for respondent No.2 HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 27/11/2025 1. These matters have been filed by the petitioners against the order dated 04.02.2008, the learned Additional Sessions Judge, [2025:RJ-JP:49587] (2 of 11) [CRLMP-470/2008] Fast Track No.2, Bharatpur Camp Kaman in Session Case No.9/2006 (Old Case No.58/2003) whereby the learned Trial Judge while allowing the application under Section 319 Cr.P.C. filed by the complainant/respondent No.2, summoned the present petitioners as additional accused to face the trial for offences under Sections 148, 341, 324, 307, 302 R/w Section 149 IPC and also issued arrest warrant against petitioners Akhtar & Mushtaq to ensure their presence. By Cr. Misc. Petition No.470/2008, the petitioners are challenging the order of issuing arrest warrant against them. 2. Since, these matters are related to same incident and are against the same order, they are being heard and decided together by this common order. 3. Succinctly stated, the facts of the case are that on 01.10.2001, complainant Amin Khan submitted a written report at Police Station Pahadi to the effect that due to an old animosity, at about 6:30 AM when his brother Haroon, his son Abbas and other family members were sitting on a cot in the house, at that time suddenly 35-40 accused persons including the present petitioners came armed with weapons like pistol, gun, stone, lathi etc and started beating the family members of the complainant. The accused persons also fired gunshot. On the said written report, Police registered FIR No.202/2001 for offences under Sections 147, 148, 149, 307, 452, 341, 323 IPC and started investigation. During investigation, injured Hussain died, therefore, offence under Section 302 IPC was also added. After thorough investigation, Police filed charge-sheet only against 37 accused persons while exonerating the present petitioners. [2025:RJ-JP:49587] (3 of 11) [CRLMP-470/2008] 4. During trial, an application under Section 319 Cr.P.C. was filed by the complainant for impleading the present petitioners as accused in the matter. The application was dismissed by the Trial Judge vide order dated 05.12.2003. The complainant filed a revision against the order dated 05.12.2003 before this Court, which was allowed on 13.07.2004 and the matter was remanded to the Trial Judge for deciding the application under Section 319 Cr.P.C. afresh. 5. Thereafter, the learned Trial Judge after hearing the parties summoned the petitioners as additional accused and also issued arrest warrant vide order dated 04.02.2008 to ensure their presence. Hence, these misc. petition and revision petitions against the order of summoning the petitioners as additional accused and issuing arrest warrant against them. 6. It is contended by the learned counsel for the petitioners that the learned Trial Judge has committed a grave error of facts and law in summoning the petitioners as additional accused vide impugned order dated 04.02.2008 as on 14.07.2004 all the other accused persons involved in the incident have already been acquitted by the trial court and this fact was well within the knowledge of the Trial Judge. After decision of acquittal, the matter was pending for adjudication of application under Section 319 Cr.P.C. Counsel submits that it is a well settled proposition of law that in the matter of Section 319 Cr.P.C., no person can be summoned as additional accused to face trial with other accused persons, when the case is at the fag-end. Thus, the order of summoning the petitioners as additional accused passed by the Trial Judge being illegal, deserves to be quashed and set aside. [2025:RJ-JP:49587] (4 of 11) [CRLMP-470/2008] Counsel further contends that the learned Trial Judge has summoned the present petitioner as additional accused only on the basis of the testimony of witnesses, who were examined earlier in Sessions Case No.8/2004, in which 34 accused persons have been acquitted. Moreover, the occurrence is alleged to have taken place in the year 2001 and after passing of seven years, impugned order was passed, which is per se illegal. 7. Per contra, learned State counsel fervently opposed the submissions made by the counsel for the petitioners and supported the impugned order of summoning the petitioners as additional accused. However, learned counsel appearing for the complainant/respondent No.2 does not oppose the prayer made by the counsel for the petitioners. 8. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and perused impugned order and scanned through the material placed before me during the course of arguments by learned counsel for the parties. 9. Summoning of additional accused under Section 319 of Cr.P.C. is a court's power to summon any person, not previously an accused, to face trial if the court finds sufficient evidence of their involvement in the offense. This power can be exercised even if a person was not named in the First Information Report (FIR) or charge-sheet and is based on evidence presented during the trial. The court must be satisfied that the evidence adduced shows that such a person has committed an offense. Power to summon an additional accused u/s 319 Cr.P.C. to face trial is discretionary and cannot be fettered either by calling it extraordinary or exercisable [2025:RJ-JP:49587] (5 of 11) [CRLMP-470/2008] only in exceptional circumstances. It is left to the judicial discretion of the court to decide whether to proceed or not to proceed against person in terms of Sec. 319 Cr.P.C. 10. Section 319 Cr.P.C. is a special provision 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. 11. The above provision seeks to meet an extraordinary situation. It although confers a power and wide amplitude, but is required to be exercised very sparingly before an order summoning an accused is passed. The Trial Court must form an opinion on the basis of the evidence brought before it that a case [2025:RJ-JP:49587] (6 of 11) [CRLMP-470/2008] has been made out that such person could be tried with the other accused persons. There is no dispute with the legal position that even if a person had not been charge-sheeted, he may come within the purview of the description of such a person as contained in Section 319 Cr.P.C. 12. In the case of Hardeep Singh versus State of Punjab reported in (2014) 3 SCC 92, a Constitutional Bench of 5 judges observed as under: “12. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the 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 of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.? 13. It would be necessary to put on record that the power conferred under Section 319 Cr.P.C. is only on the court. This has to be understood in the context that Section 319 Cr.P.C. empowers only the court to proceed against such person. The word “court” in our hierarchy of criminal courts has been defined under Section 6 Cr.P.C., which includes the Courts of Sessions, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Sessions is defined in Section 9 Cr.P.C. and the Courts of Judicial Magistrates has been defined [2025:RJ-JP:49587] (7 of 11) [CRLMP-470/2008] under Section 11 thereof. The Courts of Metropolitan Magistrates has been defined under Section 16 Cr.P.C. The courts which can try offences committed under the Indian Penal Code, 1860 or any offence under any other law, have been specified under Section 26 Cr.P.C. read with First Schedule. The explanatory note (2) under the heading of “Classification of Offences” under the First Schedule specifies the expression ‘magistrate of first class’ and ‘any magistrate’ to include Metropolitan Magistrates who are empowered to try the offences under the said Schedule but excludes Executive Magistrates. 37. Even the word “course” occurring in Section 319 Cr.P.C., clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. It covers the entire wide range of the process of the pre-trial and the trial stage. The word “course” therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry upto the stage of the conclusion of the trial. The court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. The word “course” ordinarily conveys a meaning of a continuous progress from one point to the next in time and conveys the idea of a period of time; duration and not a fixed point of time. 39. To say that powers under Section 319 Cr.P.C. can be exercised only during trial would be reducing the impact of the word ‘inquiry’ by the court. It is a settled principle of law that an interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided as the presumption is [2025:RJ-JP:49587] (8 of 11) [CRLMP-470/2008] that the legislature has deliberately and consciously used the words for carrying out the purpose of the Act. The legal maxim "A Verbis Legis Non Est Recedendum" which means, "from the words of law, there must be no departure" has to be kept in mind.” 13. The important question before this Court is that whether in this case it appears from the evidence that any person (petitioners), not being the accused, has committed any offence, for which such person (petitioners) could be tried together with the other accused persons. 14. It is evident from the record that on the very date when the matter was remitted to the trial court for reconsideration of the application under Section 319 Cr.P.C. for summoning the petitioners as additional accused, the trial court had already delivered the final judgment acquitting the co-accused. However, this fact could not be brought to the notice of the Court. 15. A perusal of the evidence adduced before the trial court clearly shows that the principal allegation of causing fatal injury to the deceased was attributed to co-accused Rahamat, who has since been acquitted by the learned trial court. While issuing process as additional accused to the petitioners, the trial court failed to appreciate the role attributed to them, and also failed to consider the evidence relating to the petitioners as well as the co- accused, who was alleged to have inflicted the fatal injury. It is also important to note that the judgment of acquittal has attained finality, as it was not challenged either by the State or by the complainant/victim. 16. Exact part of the testimony of relevant witnesses for the sake of reference is being reproduced as under : (PW-3) [2025:RJ-JP:49587] (9 of 11) [CRLMP-470/2008] (PW-3) vehu [kka && bruk dgrs gh jktqn~nhu us cUnwd pykbZ] ftlds NjsZ esjs yxsA [kq’khZn us cUnwd pykbZ ftlds NjsZ esjs HkkbZ gk:u ds yxsA jger vkSj v[rj us cUnwd pykbZ] ftlds NjsZ tkfdj ds yxsA eq’rkd us cUnwd pykbZ] ftlds NjsZ esjs yM+ds vCckl ds yxsA tkfdj mlh le; csgks’k gks x;kA ckdh eqyfteku iRFkj Qsadrs jgsA mu iRFkjksa dh pksV 'kkga: [k [kku ds Hkh yxhA eqn~nhu us Hkh cUnwd ls Qk;j fd;k FkkA jger ds ikl Vksihnkj cUnwd Fkh] tks ykbZlsUlh gSA v[rj ds ikl 12 oksj cUnwd FkhA dqy 6 eqyftekuksa ds ikl cUnwdsa FkhA jger] v[rj] eqn~nhu] [kq’khZn] jktqn~nhu o eq’rkd ds ikl cUnwdsa FkhA ckdh eqyftekuksa ds ikl ykBh M.Ms o iRFkj FksA (PW-4) ewjks [kka &&buesa ls jger] v[rj] jktqn~nhu] [kq’khZn] eq’rd] eqn~nhu ds gkFkksa esa cUndsa FkhA 'ks"k eqyftekuksa ds gkFkksa esa ykBh] iRFkj FksA jger us tks Qk;j cUnwd ls fd;k] mldh pksV tkfdj ds yxhA v[rj us tks cUnwd pykbZ mldh pksV Hkh tkfdj ds yxhA jktqn~nhu us cUnwd pykbZ] mldh pksV vkehu ds yxhA [kq’khZn us cUnwd pykbZ] ftldh pksV gk:u ds yxhA eq’rkd vkSj eqn~nhu us tks cUnwd pykbZ] mldh pksV vCckl ds yxhA eq’rkd us xkyh pykbZ] ftldh pksV tSde ds yxhA tkfdj ogka csgks’k gks x;kA tkfdj dks igkMk vLirky yk,] ;gka ls mls Hkjriqj jSQj dj fn;kA ogka ls t;iqj jSQj dj fn;k] tgka mldh e`R;q gks xbZA (PW-13) gk:u && bruk dgrs gh jktqn~nhu us cUnwd pykbZ] tks gesa tku ls ekjus ds fy, pykbZ Fkh] ftldk NjkZ vkehu ds yxkA vkehu ds eqag] Nkrh] isV ij NjsZ yxsA rqjUr gh [kq’khZn us cUnwd pykbZ] mlds NjsZ esjs yxsA esjh vka[k vkSj ekFks ij NjsZ yxsA fQj rqjUr gh jger us cUnwd pykbZ] ftldh xksyh tkfdj dh vka[k esa yxdj Hksts esa vUnj pyh xbZA fQj rqjUr gh v[rj us cUnwd pykbZ] mlds NjsZ tkfdj ds isV] lhuk] ckagksa ij yxsA fQj eq’rkd us cUnwd pykbZ tks tku ls ekjus ds fy, pykbZ Fkh] ftlds NjsZ vCckl dh xnZu vkSj ckag ij rFkk iSj esa yxsA fQj eq’rkd us nqckjk cUnwd pykbZ] ftldh xksyh tSde ds yxhA fQj cUnwd eqn~nhu us pykbZ] og gokbZ Qk;j djrk jgkA fQj ,d ne ls lc gekjs ?kj ij p<+ vk,A fQj gYyk lqudj ewlk] Qd:] vCnky] vTtw rqjUr gh vk x,A fQj 44 vkneh gekjs ? kj ij p<+ vk,A ogka Qjhnk us 'kkg:[k ds iRFkj ekjkA tc eqyfteku 44 vkneh gekjs ?kj ij p< vk, rks ewlk] Qd:] vCnky o vTtw us gesa cpk;kA (PW-14) vCckl&& fQj [kq’khZn us xksyh pykbZ] tks gk:u ds ekFks vkSj eqag ij yxhA jktqn~nhu us cUnwd pykbZ] tks esjs firk vkehu ds eqag] isV vkSj ekFks ij mlds NjsZ yxsA fQj jger us xksyh pykbZ] tks mlus viuh [2025:RJ-JP:49587] (10 of 11) [CRLMP-470/2008] cUnwd ls pykbZ Fkh] tks tkfdj ds vka[k esa yxh vkSj flj esa pyh xbZA v[rj us tkfdj dks tku ls ekjus ds fy, cUnwd pykbZ tks mldh Nkrh] cktw vkSj isV esa yxhA eq’rkd us cUnwd eq>s tku ls ekjus dh uh;r ls pykbZ] tks esjh xnZu] iSjksa esa rFkk dU/kksa ij yxh vFkkZr~ NjsZ yxsA eqn~nhu us vU/kk&/kqU/k Qk;j fd,A fQj gekjs pksV yxh vkSj djhc ,d ?kaVs ckn iqfyl ekSds ij vk xbZA 17. In these circumstances, this court is of the considered view that since the principal accused against whom the allegation of causing the fatal injury was leveled, has been acquitted and such acquittal has achieved finality, the summoning of the petitioners as additional accused is not justified. 18. In the aforesaid case of Hardeep Singh (supra), Hon'ble Supreme Court has also observed as under: “99. 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 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which [2025:RJ-JP:49587] (11 of 11) [CRLMP-470/2008] such person could be convicted’. There 6 Page 67 is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.” 19. In view of discussion made hereinabove, both the revision petitions are allowed. The impugned order of summoning the petitioners as additional accused dated 04.02.2008, passed by the learned Additional Sessions Judge, Fast Track No.2, Bharatpur Camp Kama in Session Case No.9/2006 (Old Case No.58/2003) is hereby quashed and set aside. The petitioners are discharged from the offences punishable under Sections 148, 341, 324, 307, 302 R/w Section 149 IPC. 20. Since, this Court has quashed the order of summoning the petitioners as additional accused dated 04.02.2008, the Cr. Misc. Petition No.470/2008 filed against the order of issuing arrest warrant has become infructuous and the same is dismissed as such. 21. Stay applications and pending applications, if any, also disposed of. (ANIL KUMAR UPMAN),J Manoj Solanki/73 to 75