Neutral Citation No. - 2025:AHC:112810 Court No. - 79 Case :- APPLICATION U/S 482 No. - 13235 of 2007 Applicant :- Vineet Kumar Mishra @ Kukku Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Misra,A.B. Shukla,Viresh Mishra Counsel for Opposite Party :- Govt.Advocate Hon'ble Prashant Kumar,J. 1. Heard Sri Anil Babu, learned counsel for the applicant, Sri Shashi Dhar Pandey, learned A.G.A. for the State, and perused the record. 2. The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 05.04.2007 passed by the learned Additional Sessions Judge, Court No. 1, Kanpur Dehat, in Sessions Trial No.247 of 2004, (State vs. Manoj Kumar Dubey and others), under Section 302 IPC, Police Station Mangalpur, District Kanpur Dehat, whereby the applicant has been summoned under Section 319 Cr.P.C. as well as the entire proceedings of the aforesaid case. 3. The brief facts of the case are that an F.I.R. dated 09.05.2001 was lodged by opposite party no. 2 against unknown persons alleging that his son, Mridul Tripathi, was murdered in the intervening night of 8/9.05.2001. At the time of lodging the F.I.R., no person was named. However, on 11.05.2001, a supplementary application was filed by the informant naming seven individuals, including the present applicant, allegedly after deliberation and consultations. The Investigating Officer, after a thorough investigation, submitted a charge sheet dated 02.08.2002 only against four persons, excluding the applicant, having found the allegations against him to be false. 4. During the trial, the statement of PW-1 Ram Kumar Tripathi, father of the deceased, was recorded in Examination-in-Chief on 30.03.2007. Even before cross-examination could be conducted, an application under Section 319 Cr.P.C. was moved by the informant on the same day, which was allowed by the learned court below vide order dated 05.04.2007, summoning the applicant. The applicant by means of the instant application has challenged the summoning order as well as entire proceedings of the case. 5. Learned counsel for the applicant submitted that the applicant’s name did not appear in the original F.I.R. and was introduced two days later in an application filed as an afterthought. It is argued that after thorough investigation, the Investigating Officer rightly found no material against the applicant and did not charge sheet him. The trial court, despite this, summoned the applicant under Section 319 Cr.P.C. merely on the basis of untested Examination- in-Chief of PW-1 without waiting for his cross-examination to be completed. 6. It is further submitted that the trial court failed to appreciate the ratio laid down by the Hon’ble Supreme Court in Mohd. Shafi vs. Mohd. Rafiq, 2007 (58) ACC 254, wherein it has been clearly held that for exercising jurisdiction under Section 319 Cr.P.C., the court must form an opinion about the likelihood of conviction of the person sought to be summoned, and such opinion can only be formed after completion of cross-examination. 7. To buttress his arguments, he has further placed reliance upon the judgment of the Hon’ble Supreme Court in Brijendra Singh and others vs. State of Rajasthan, (2017) 7 SCC 706, to submit that where the Investigating Officer has collected cogent evidence that exonerates an individual, and the only basis for summoning is the deposition of the complainant without supporting material, the power under Section 319 Cr.P.C. should not be exercised. In that case also, the Supreme Court quashed the summoning order passed after years of trial, where the investigating agency had already exonerated the applicants. 8. Learned A.G.A. opposed the application by submitting that in the post-mortem report of the deceased, two entry wounds were found, and as per the subsequent statement of the informant and witnesses, all the accused including the applicant were alleged to be present on the spot and armed with firearms. He argued that the court below was justified in exercising its jurisdiction under Section 319 Cr.P.C. on the basis of such direct evidence appearing in the testimony of PW-1. 9. Heard learned counsel for the parties and perused the record. 10. From the record, it is evident that the applicant was not named in the original F.I.R. and was subsequently implicated through a delayed application dated 11.05.2001. After a detailed investigation, the Investigating Officer did not find any evidence against the applicant and, therefore, did not include him in the charge sheet. The trial court summoned the applicant merely on the basis of Examination-in-Chief of PW-1 Ram Kumar Tripathi, without waiting for completion of cross-examination. 11. The law laid down in Brijendra Singh (supra) and Mohd. Rafiq (supra) makes it clear that summoning under Section 319 Cr.P.C. is an extraordinary power and cannot be exercised in a mechanical manner. The court must reach a satisfaction that there is a strong possibility that the person sought to be summoned may be convicted. Such satisfaction must arise from tested evidence, not merely on the basis of uncorroborated Examination-in-Chief. 12. In the present case, the summoning order dated 05.04.2007 does not demonstrate such judicial satisfaction or consideration of the investigating record, which had already exonerated the applicant. The order has been passed mechanically and without application of mind to the material on record. 13. In view of the above, the application under Section 482 Cr.P.C. is allowed. The order dated 05.04.2007 passed by the Additional Sessions Judge, Court No. 1, Kanpur Dehat, as well as the entire proceedings against the applicant in Sessions Trial No. 247 of 2004 (State vs. Manoj Kumar Dubey and others), under Section 302 IPC, Police Station Mangalpur, District Kanpur Dehat, are hereby quashed. Order Date :- 14.7.2025 pks Digitally signed by :- PANKAJ KUMAR SRIVASTAVA High Court of Judicature at Allahabad Digitally signed by :- PANKAJ KUMAR SRIVASTAVA High Court of Judicature at Allahabad