NASIR AND ANOTHERversusSTATE OF U.P. AND ANOTHER

              HIGH COURT OF JUDICATURE AT ALLAHABAD

                    CRIMINAL APPEAL No. - 3031 of 2026

Nasir And Another
                                                                .....Appellant(s)
                                     Versus
State of U.P. and Another
                                                              .....Respondent(s)

Counsel for Appellant(s)                        :   Ehtesham Afsar Khan
Counsel for Respondent(s)                       :   G.A.

Court No. - 51
                      HON'BLE MADAN PAL SINGH, J.

1. Heard learned counsel for the appellant and learned A.G.A. for the State
and perused the record. Despite the fact that notice has been served
personally upon opposite party no.2 but no one appears for the opposite party
no.2 even in the revised reading of the list.

2. This Criminal Appeal under Section 14A (1) of the Scheduled
Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as the S.C./S.T. Act” has been filed with a prayer to quash the 30th
January, 2026 passed by the learned Special Judge (SC/ST Act), Bareilly in
Sessions Trial No. 1884 of 2023 (State Vs. Maqsood Ali & Others), under
Sections 323, 325, 504, 427 I.P.C. and Sections 3 (1) (da), 3 (1) (dha) and 3
(2) (Va) of of S.C./S.T. Act, Police Station-Sheeshgarh, District-Bareilly,
arising out of Case Crime No. 358 of 2022, whereby the learned Trial Court on
an application filed by opposite party no.2 under Sections under Section 319
Cr.P.C. has summoned the appellant to face trial along with other accused
persons.

3. The contention of the learned counsel for the appellant is that initially the
first information report was lodged by opposite party no.2 on 20th November,
2022 against four accused persons, namely, Nanhe, Guddu (appellant no.2),
Maqsood and Nasir (appellant no.1). Thereafter, in the statement recorded
under 161 Cr.P.C. on 22nd November, 2022, the opposite party no.2 has
again made allegations against the appellants along with Nanhe and
Maqsood. However, in the re-statement (majid vyan) recorded under Section
161 Cr.P.C. on 26th November, 2022, the opposite party no.2 has no made
any allegations against the appellants. After investigation, the Police on the
basis of re-statement of the opposite party no.2 recorded on 26th November,
2022, has exonerated both the appellants while submitting charge-sheet
against Nanhe and Maqsood. On the submission of the charge-sheet
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cognizance was taken and after summoning of accused Nanhe and Maqsood,
the charges were framed by the trial court. Whereafter on 22nd April, 2025 i.e.
after two years and four months, opposite party no.2 has been examined as
prosecution witness no.1, wherein her examination-in-chief and cross-
examination has been recorded has been recorded by the trial court, wherein
again this time, the opposite party no.2 has made allegations against the
appellants qua commission of beating up the opposite party no.2 by them
along with other accused. After six months, the opposite party no.2 has filed
an application under Section 319 Cr.P.C. for summoning of the appellants on
which the impugned order has been passed. Hence the present criminal
appeal.

4. Further the contention of the learned counsel for the appellants is that in the
case of Hardeep Singh Vs. State of Punjab, reported in (2014) 3 SCC 92,
the Hon'ble Supreme Court of India has held that before summoning the
accused under Section 319 Cr.P.C., it is mandatory for the trial court to record
its satisfaction to an extent that the evidence, if goes unrebutted, would lead
to conviction but the trial court in passing the impugned judgment has not
recorded its satisfaction.

5. It is highlighted by the learned counsel for the appellant that though in the
first information report the appellants have been named as accused along with
Nanhe and Maqsood but after recording re-statement of the opposite party
no.2 under Section 161 Cr.P.C. on 26th November, 2022, names of the
appellants have been exonerated by the Investigating Officer while submitting
the charge-sheet against accused Nanhe and Maqsood and thereafter no
protest petition has been filed by the informant against the charge-sheet
whereby the names of appellants have been exonerated. It is after long time
i.e. two years and four months to be precise on 22nd April, 2025, when the
examination-in-chief and cross-examination of informant/opposite party no.2
has been P.W.-1 during the course of trial, again allegations of beating up the
opposite party no.2 by the appellants along with other accused have been
made against the appellants and then after nearly six months, an application
has been filed by the informant praying that the appellants may be summoned
under Section 219 Cr.P.C. On the said application the learned Trial Court, on
an application under Section 319 Cr.P.C., summoned the appellant by the
impugned order without there being any new or strong evidence against him.

6.So far as the summoning of the appellants under the Sections 3 (1) (da), 3
(1) (dha) and 3 (2) (Va) of of S.C./S.T. Act is concerned, learned counsel for
the appellants submits that from the perusal of version of the first information
report, statement and re-statement of the informant/opposite party no.2 and
her statement as P.W.1 it transpires that the allegation of abusing the
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informant/opposite party no.2 by using caste indicated words has been
assigned to only co-accused Maqsood (reference page no. 84 of the paper
book). Therefore, no case is made out against the appellants under Sections 3
(1) (da), 3 (1) (dha) and 3 (2) (Va) of of S.C./S.T. Act. However, the trial court
has also not considered the said aspect of the matter while passing the
impugend summoning order, which is per se illegal.

7. Learned counsel for the appellants submits that the impugned summoning
order dated 30th January, 2026 is wholly illegal, arbitrary and has been
passed in a mechanical manner without proper appreciation of evidence on
record. He submitted that the appellant was exonerated during investigation
after a thorough and fair inquiry, wherein it was found that he was not present
at the place of occurrence and his presence at another place was duly
established by Call Detail Records as well as statements of independent
witnesses. Despite such categorical findings, the learned Trial Court has
summoned the appellant without there being any fresh or incriminating
evidence against him.

8. In support of his contention, he has again drawn attention of the Court to
the case of the Hon'ble Supreme Court of India in the case of Hardeep Singh
(Supra), whereby in paragraphs 105 and 106 of the judgement the Hon'ble
Supreme Court of India has opined as follows:

"105. Power under Section 319 Cr.P.C. is a discretionary and an extra-
ordinary power. It is to be exercised sparingly and only in those cases where
the circumstances of the case so warrant. It is not to be exercised because the
Magistrate or the Sessions Judge is of the opinion that some other person
may also be guilty of committing that offence. Only where strong and cogent
evidence occurs against a person from the evidence led before the court that
such power should be exercised and not in a casual and cavalier manner.

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 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 such person could be convicted'. There is, therefore, no scope
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for the Court acting under Section 319 Cr.P.C. to form any opinion as to the
guilt of the accused. "

9. Referring the aforesaid, he submits that Hon. Apex Court has held that the
power under Section 319 CrPC is discretionary and an extraordinary power
and thus the same should be used sparingly and it has further been held that
much stronger evidences than mere probability of complicity is the rule, where
the trial court exercises power under Section 319 of CrPC.

10. He has further drawn attention towards the case reported in the case of
Brijendra Singh Vs. State of Rajasthan reported in (2017) 7 SCC 706 and
referred paragraph 14 and 15 of the judgement. Paragraph 14 and 15 of the
judgment are quoted hereinunder:-

"14. When we translate the aforesaid principles with their application to the
facts of this case, we gather an impression that the trial court acted in a casual
and cavalier manner in passing the summoning order against the appellants.
The appellants were named in the FIR. Investigation was carried out by the
police. On the basis of material collected during investigation, which has been
referred to by us above, the IO found that these appellants were in Jaipur city
when the incident took place in Kanaur, at a distance of 175 kms. The
complainant and others who supported the version in the FIR regarding
alleged presence of the appellants at the place of incident had also made
statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the
same, the police investigation revealed that the statements of these persons
regarding the presence of the appellants at the place of occurrence was
doubtful and did not 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.

This record was before the trial court. Notwithstanding the same, the trial court
went by the deposition of complainant and some other persons in their
examination-in-chief, with no other material to support their so- called
verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing
more than the statements which was already there under Section 161 Cr.P.C.
recorded at the time of investigation of the case. No doubt, the trial court
would be competent to exercise its power even on the basis of such
statements recorded before it in examination-in-chief. However, in a case like
the present where plethora of evidence was collected by the IO 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 (i.e. appellants)
complicity has come on record. There is no satisfaction of this nature. Even if
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we presume that the trial court was not apprised of the same at the time when
it passed the order (as the appellants were not on the scene at that time),
what is more troubling is that even when this material on record was
specifically brought to the notice of the High Court in the Revision Petition filed
by the appellants, the High Court too blissfully ignored the said material.
Except reproducing the discussion contained in the order of the trial court and
expressing agreement therewith, nothing more has been done. Such orders
cannot stand judicial scrutiny. "

11. On the above premise, learned counsel for the appellants urges that since
the trial court while passing the impugned order has committed gross error
and has not considered the appreciation of evidence in its true manner,
therefore, the same is liable to be quashed.

12. Per contra, learned counsel appearing for the opposite party no. 2 has
opposed the aforesaid contentions and submitted that a detailed and
reasoned order dated 30th January, 2026 has been passed by the learned
Trial Court after due consideration of the material available on record. He
further submits that informant/opposite party no. has specifically named the
present appellants and have clearly stated in her statement recorded under
Section 161 Cr.P.C. and her testimony as P.W.-1 regarding their involvement
in the alleged incident of murder, which carries great evidentiary value and
cannot be disbelieved in the absence of exceptional circumstances. It is
further argued that the learned Trial Court has thoroughly discussed all
relevant aspects of the matter in the impugned order, and therefore, the said
order does not suffer from any illegality or infirmity. Hence, the present appeal
is liable to be dismissed.

13. Having considered the facts and circumstances of the case, the
submissions made by the learned counsel for the appellants and the learned
A.G.A. and perused the record including the impugned order, this Court finds
that the appellants were admittedly not charge-sheeted and were exonerated
by the Investigating Officer after a thorough investigation specifically the re-
statement of informant/opposite party no.2, wherein their presence at the
place of occurrence was not found. Neither the appellants have been arrested
nor anything incriminating has been recovered from the possession of the
appellants or their pointing out. This Court further finds that no new, strong or
cogent evidence has emerged during the course of trial so as to justify
invocation of powers under Section 319 Cr.P.C. The versions of the
informant/opposite party no.2 as unfolded in the first information report, in the
statement recorded under Section 161 Cr.P.C., in the re-statement recorded
under Section 161 Cr.P.C. and further in her examination-in-chief and cross-
examination as P.W.1, are contradictory. It is only the basis of such
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contradictory version of the informant/opposite party no.2 that the appellants
have been summoned under Section 319 Cr.P.C. by means of the order
impugned.

14. Further Section 319 of Cr.P.C envisages an extraordinary power conferred
upon a Court to do substantial justice and thus should be exercised cautiously
as the investigating agency found no evidence against such allegedly accused
person during course of the investigation. The very purpose of Section 319 of
Cr.P.C is to avoid any escape of a guilty person from the trial and therefore
discovery of the further evidence must disclose more than prima facie case.
The settled law is that the Courts should not exercise its power under Section
319 of Cr.P.C in a supine and cavalier manner but if the Court is on a material
conclusion that there are more than prima facie evidence against an accused,
certainly this power can be exercised.

15. In case of Hardeep Singh Vs. State of Punjab (Supra), it has
categorically been held that Section 319 of CrPC is a discretionary and
extraordinary power which is to be exercised when there is a strong and
cogent piece of evidence against an accused person and thus it should be
exercised sparingly. The apex Court has very cautiously interpreted the
abovesaid provision and held that for exercising of power under Section 319
Cr.P.C, it requires much stronger evidence than mere probability of complicity.

16. The Apex Court later on, in case of Brijendra Singh and Others (Supra)
has also discussed the law enunciated in Hardeep Singh's case and has held
that power under Section 319 CrPC can be exercised by the trial Court at any
stage during the trial and any person can be summoned as an accused for
facing the trial. The Apex Court has very clearly held that the word 'evidence'
means    the   material    brought    before      the   Court    during   trial.   The
material/evidence collected by the Investigating Officer at the stage of enquiry
can only be utilised for corroboration thereof.

17. No satisfaction has been recorded by the Court below with respect to the
fact that the prosecution succeeded to establish that there are more than
prima facie or much stronger case against the appellant and if such an
evidence are adduced, there are chances of conviction of the appellant.
Further, the learned trial Court has also skipped the law enunciated by the
Apex Court.

18. With regard to offence under Sections 3 (1) (da), 3 (1) (dha) and 3 (2) (Va)
of of S.C./S.T. Act, this Court is of the firm opinion that no case is made out
against the appellants, as from the from the perusal of first information report,
statement and re-statement of the informant/opposite party no.2 and her
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                                    statement as P.W.1, this Court finds that the allegation of abusing the
                                    informant/opposite party no.2 by using caste indicated words has been
                                    assigned to only co-accused Maqsood (reference page no. 84 of the paper
                                    book). In that regard also, the trial court has failed to record its satisfaction.

                                    19. In view of the aforesaid, this Court is of the considered opinion that the
                                    impugned the 30th January, 2026 passed by the learned Special Judge
                                    (SC/ST Act), Bareilly in Sessions Trial No. 1884 of 2023 (State Vs. Maqsood
                                    Ali & Others), under Sections 323, 325, 504, 427 I.P.C. and Sections 3 (1)
                                    (da), 3 (1) (dha) and 3 (2) (Va) of of S.C./S.T. Act, Police Station-Sheeshgarh,
                                    District-Bareilly, arising out of Case Crime No. 358 of 2022, suffers from
                                    illegality and perversity and is not sustainable in the eyes of law. The
                                    impugned order dated 30th January, 2026 is, therefore, is set aside.

                                    20. The trial court is directed to consider and decide the application filed by
                                    opposite party no.2 under Section 319 Cr.P.C. afresh on merits, in accordance
                                    with the observations and law laid down by the Apex Court referred to above,
                                    by means of a reasoned and speaking order, preferably within a period of two
                                    months from the date of production of a certified copy of this order, after
                                    affording opportunity of hearing to the parties concerned without granting any
                                    unnecessary adjournments to either of the parties, if there is no other legal
                                    impediment.

                                    21. Accordingly, the present criminal appeal is allowed subject to the
                                    observations/directions made above.

                                    May 7, 2026
                                    Sushil/-
                                                                                                 (Madan Pal Singh,J.)




Digitally signed by :-
SUSHIL KUMAR SINGH
High Court of Judicature at Allahabad