Holding

The High Court was right to set aside the trial court’s order, and its revisional order under Sections 397 and 401 relates back to replace the original order, rendering the later summoning order valid despite being passed after the trial concluded.

Summary

The appellants Jamin and Akil were summoned as accused under Section 319 of the CrPC after the original murder trial had concluded and the co‑accused were convicted. They challenged the summoning order, arguing that the trial court could not entertain a Section 319 application after the trial and that the High Court had exercised its revisional jurisdiction without giving them a hearing. The Supreme Court held that the High Court was justified in setting aside the trial court’s earlier order rejecting the Section 319 application, and that a revisional order under Sections 397 and 401 relates back to replace the original order, making the later summoning order effective even though it was passed after the trial. The Court further clarified that a summons under Section 319 does not require a prior hearing, though a hearing is required if a revisional order prejudices a right that has already accrued. Consequently, the appeal was dismissed and the summoning order was upheld.

Issues considered

Whether the High Court was justified in exercising its revisional jurisdiction to set aside the trial court's order rejecting the second application under Section 319 CrPC.
Whether the order dated 21.02.2024 of the trial court, issued to give effect to the High Court's revisional order, relates back and replaces the earlier order dated 19.07.2010.
Whether a trial court can entertain an application under Section 319 after the conclusion of the main trial without a stay of the trial.
Whether the High Court was required to give the proposed accused an opportunity of hearing before deciding the revision petition.

Legislation cited

Code of Criminal Procedure, 1898s. 351
Code of Criminal Procedure, 1973s. 319, s. 397, s. 401, s. 433-A, s. 482

Headnote

Issue for Consideration (i) Whether the High Court was right in exercising its revisional jurisdiction for the purpose of setting aside the order of the Trial Court rejecting the second application preferred by the respondent no.2 u/s.319 of the CrPC; (ii) Whether the order dated 21.02.2024 passed effect to the order passed by the High Court directing it to reconsider the application u/s.319 of CrPC would relate back and replace its earlier order dated 19.07.2010 rejecting the s.319 application; (iii) Whether the Trial Court could have entertained an application filed u/s.319 of the CrPC

Subjects

Section 319 CrPCRevisional jurisdictionRelating back doctrineSummoning orderRight of hearingDe novo trialCriminal procedure

Judgment

[2025] 3 S.C.R. 638 : 2025 INSC 330

Jamin & Anr.
v.
State of Uttar Pradesh & Anr.
(Criminal Appeal No. 1184 of 2025)
06 March 2025
[J.B. Pardiwala* and Manoj Misra, JJ.]

Issue for Consideration
(i) Whether the High Court was right in exercising its revisional
jurisdiction for the purpose of setting aside the order of the Trial
Court rejecting the second application preferred by the respondent
no.2 u/s.319 of the CrPC; (ii) Whether the order dated 21.02.2024
passed by the Trial Court to give effect to the order passed by the
High Court directing it to reconsider the application u/s.319 of CrPC
would relate back and replace its earlier order dated 19.07.2010
rejecting the s.319 application; (iii) Whether the Trial Court could
have entertained an application filed u/s.319 of the CrPC after the
conclusion of the trial, more particularly when no stay on trial had
been granted by the High Court; (iv) Whether the High Court should
have given an opportunity of hearing to the proposed accused
before deciding the revision petition filed against the rejection of
application u/s.319 of the CrPC by the Trial Court. If yes, whether
the order dated 14.09.2021 passed by the High Court in exercise
of its revisional jurisdiction was passed without issuing notice to
the appellants and providing them an opportunity of hearing.

Headnotes†
Code of Criminal Procedure, 1973 – ss.319, 397, 401 – Whether
the High Court was right in exercising its revisional jurisdiction
for the purpose of setting aside the order of the Trial Court
rejecting the second application preferred by the respondent
no.2 u/s.319 of the CrPC:
Held: The High Court in exercise of its revisional jurisdiction was
justified in setting aside the order passed by the Trial Court rejecting
the second application preferred by respondent no.2 u/s.319 of
the CrPC as the same was found to have been passed contrary

* Author
[2025] 3 S.C.R. 639

Jamin & Anr. v. State of Uttar Pradesh & Anr.

to the settled position of law, suffering from a patent illegality,
thus, leading to serious miscarriage of justice – Once a superior
court deems fit to interfere with an order passed by a subordinate
court, then any rectifications to such order passed in exercise of
revisional powers u/s.401 r/w. s.397 of the CrPC must be treated
on the same footing as rectifications made by an appellate court
and as a result would relate back to the time the original order
was passed – By virtue of relating back of the order passed by
the High Court in a revision petition, the summoning order passed
by the Trial Court in compliance with the order of the High Court
would also relate back to the initial order rejecting the second
application u/s.319, and therefore could be said to have been
passed before the conclusion of the trial – Unlike cases where
an application u/s.319 is being decided in the first instance by
the Trial Court, the conclusion of trial will have no bearing on the
adjudication of an application u/s.319 in terms of the directions
of the High Court passed in exercise of revisional jurisdiction.
[Paras 115(a),115(b), 115(c), 115(d)]

Code of Criminal Procedure, 1973 – s.319 – Whether the order
dated 21.02.2024 passed by the Trial Court to give effect to the
order passed by the High Court directing it to reconsider the
application u/s.319 of CrPC would relate back and replace its
earlier order dated 19.07.2010 rejecting the s.319 application:
Held: The summoning order dated 21.02.2024 was passed by
the Trial Court in pursuance of the directions issued by the High
Court vide the revisional order dated 14.09.2021 – Therefore,
the same should be construed as an extension of the revisional
order passed by the High Court – The combined effect of the
revisional order passed by the High Court and the summoning
order passed by the Trial Court dated 21.02.2024 would be that
the order of the Trial Court dated 19.07.2010 rejecting the second
s.319 application stood replaced and substituted by the summoning
order dated 21.02.2024 – Thus, although the summoning order
in the present case came to be passed on 21.02.2024, that is,
after the conclusion of the trial, yet, it would be deemed to have
been passed on 19.07.2010 by virtue of the law expounded by
this Court in Maru Ram case and Krishnaji Dattatreya Bapat case.
[Para 115(f)]

Code of Criminal Procedure, 1973 – s.319 – Whether the Trial
Court could have entertained an application filed u/s.319 of
640 [2025] 3 S.C.R.

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the CrPC after the conclusion of the trial, more particularly
when no stay on trial had been granted by the High Court:
Held: The High Court in exercise of its revisional jurisdiction
directed the Trial Court to reconsider the application u/s.319 of
CrPC – The revisional jurisdiction of the High Court cannot be
rendered nugatory solely because the trial was not stayed by the
High Court and stood concluded before the High Court could pass
the order in exercise of its revisional jurisdiction – Therefore, unlike
cases where an application u/s.319 is being decided in the first
instance by the Trial Court, the conclusion of trial will not have a
bearing on the adjudication of an application u/s.319 in terms of the
directions of the High Court passed by way of a revisional order.
[Paras 100, 101]

Code of Criminal Procedure, 1973 – s.319 – Whether the High
Court should have given an opportunity of hearing to the
proposed accused before deciding the revision petition filed
against the rejection of application u/s.319 of the CrPC by the
Trial Court – If yes, whether the order dated 14.09.2021 passed
by the High Court in exercise of its revisional jurisdiction was
passed without issuing notice to the appellants and providing
them an opportunity of hearing:
Held: s.319 does not contemplate that a summoned person must
be given an opportunity of being heard before being added as an
accused to face the trial – A right of hearing would accrue only to
a person who is already discharged in the very same proceeding
prior to the commencement of the trial – This is different from
holding that a person who has been summoned as per s.319
CrPC has a right of being heard in accordance with the principles
of natural justice before being added as an accused to be tried
along with the other accused – However, after the rejection of
an application u/s.319, a right enures in favour of the proposed
accused – Thereafter, if in exercise of revisional jurisdiction, the
High Court is to pass an order which is prejudicial to the benefit
which had already enured in favour of the proposed accused,
then the High Court is obligated in law to provide an opportunity
of hearing to the proposed accused – This is also the mandate as
contained in sub-section (2) of s.401 of the CrPC – In the instant
case, a perusal of the order dated 14.09.2021 passed in Revision
Petition No. 400/2010 clearly indicates that the appellants were
respondent nos.2 and 4, respectively, before the High Court –
[2025] 3 S.C.R. 641

Jamin & Anr. v. State of Uttar Pradesh & Anr.

Hence, there is no merit in the submission of the appellants that
the order rejecting the 2nd application u/s.319 of the CrPC was
set aside by the High Court without providing any opportunity of
hearing to them. [Paras 114, 115(g)]

Code of Criminal Procedure, 1973 – s.319 – Object, Purpose
and Scope:
Held: s.319 has been included in the statute book with the object
of ensuring effective administration of justice – The legislature
enacted s.319 to eliminate any situation wherein the courts would
feel helpless in proceeding against any person who appears to be
guilty of committing an offence, more particularly, in cases where
the investigating agency or prosecution files chargesheet only
against a few persons in relation to an offence and leaves out a
few others either intentionally or unintentionally – The said section
empowers the courts to proceed with persons who are not the
accused before it, upon satisfaction of the conditions prescribed
in the provision – The intention behind giving a wide interpretation
to s.319 is to ensure that the perpetrator of a crime does not get
away unpunished – The legislature incorporated the provision with
the purpose of empowering the courts to find out the real culprits
without getting hindered by procedural impediments so that the
guilty does not go unpunished. [Paras 34, 37]

Code of Criminal Procedure, 1973 – Sub-section (1) to s.319 –
Essential requirements:
Held: A bare perusal of sub-section (1) of s.319 brings out three
essential requirements that must be fulfilled for invoking the powers
thereunder: a. First, there must be an ongoing inquiry or trial in
respect of the original accused person(s); and b. Secondly, in
the course of such proceedings, evidence must have come on
record to show that any person other than the original accused
has committed any offence; and c. Thirdly, the person sought to
be summoned could be tried together with the original accused
for such offence. [Para 39]

Code of Criminal Procedure, 1973 – s.319 – Summoning order
u/s.319 of CrPC – When a person was not chargesheeted by
the investigating agency:
Held: A summoning order issued u/s.319 of the CrPC cannot be
quashed only on the ground that even though the proposed accused
642 [2025] 3 S.C.R.

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were named in the FIR or complaint, the police did not include
their names in the chargesheet – In other words, if the evidence
tendered in the course of any inquiry or trial shows that any person
not being the accused has committed any offence for which he
could be tried together with the accused, he can be summoned
to face trial even though he may not have been chargesheeted
by the investigating agency or may have been discharged at an
earlier stage. [Para 44]

Code of Criminal Procedure, 1973 – Sub-section (4) of s.319:
Held: Sub-section (4) of s.319 mandates that a fresh trial or a de
novo trial is to be conducted in respect of the persons summoned
under sub-section (1) so as to ensure that such persons are not
deprived of the opportunity to present their case and examine
the witnesses properly – The requirement of a de novo trial in
sub-section (4)(a) is quite different from the notion of a split up or
separate trial as provided u/s.317 of the CrPC – The provision of
a de novo trial is to safeguard the right of fair trial to be provided
to the new persons summoned u/s.319(1). [Para 45]
Code of Criminal Procedure, 1973 – s.319 – Stage at which
power u/s.319 of the CrPC can be exercised – Discussed.
[Paras 47-60]
Code of Criminal Procedure, 1973 – s.319 – Meaning of the
expression “could be tried together with the accused” –
Discussed. [Paras 61-68]

Code of Criminal Procedure, 1973 – s.319 – Mechanism for
exercise of powers u/s.319 in cases where the trial is over but
the revisional order relates back to the date of the rejection
of an application under the said section by the Trial Court:
Held: In cases where the trial is over but the revisional order
relates back to the date of the rejection of an application under
the said section by the Trial Court – It is axiomatic that in such a
case there is no occasion for a joint trial to be conducted with the
original accused persons – Therefore, when the order of the High
Court passed in revision after the conclusion of trial relates back to
the order of the Trial Court passed before the conclusion of trial, it
must be taken to mean that the new accused would be proceeded
against in a separate trial – Such a situation shall be governed by
[2025] 3 S.C.R. 643

Jamin & Anr. v. State of Uttar Pradesh & Anr.

the guidelines provided in Sukhpal Singh Khaira case – There is
no requirement for a decision by the Trial Court on the question
of separation of trial in cases like the present one since the trial
has already concluded in respect of the original accused and the
only manner in which the order of the High Court can be given
effect to is by proceeding in a separate trial qua the new accused
persons. [Para 96]

Case Law Cited
Sukhpal Singh Khaira v. State of Punjab [2022] 10 SCR 156 :
(2023) 1 SCC 289 – followed.
Municipal Corpn. of Delhi v. Ram Kishan Rohtagi [1983] 1 SCR
884 : (1983) 1 SCC 1; Kishun Singh v. State of Bihar [1993] 1 SCR
31 : (1993) 2 SCC 16; Hardeep Singh v. State of Punjab [2014]
2 SCR 1 : (2014) 3 SCC 92; R. Dineshkumar @ Deena v. State
represented by Inspector of Police & Ors. [2015] 5 SCR 605 :
(2015) 7 SCC 497; Amit Kapoor v. Ramesh Chander [2012] 7 SCR
988 : (2012) 9 SCC 460; Maru Ram v. Union of India [1981] 1
SCR 1196 : (1981) 1 SCC 107; Shankar Ramchandra Abhyankar v.
Krishnaji Dattatreya Bapat [1970] 1 SCR 322 : (1969) 2 SCC 74;
Pasupuleti Venkateswarlu v. Motor and General Traders [1975] 3
SCR 958 : (1975) 1 SCC 770; Uday Mohanlal Acharya v. State of
Maharashtra [2001] 2 SCR 878 : (2001) 5 SCC 453; Yashodhan
Singh v. State of U.P. [2023] 10 SCR 1196 : (2023) 9 SCC 108;
Manharbhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel
[2012] 8 SCR 1015 : (2012) 10 SCC 517 – relied on.
Shashikant Singh v. Tarkeshwar Singh & Anr. [2002] 3 SCR
400 : (2002) 5 SCC 738; Subhash Sahebrao Deshmukh v.
Satish Atmaraman Talekar & Ors. (2020) 6 SCC 625; Sarojben
Ashwinkumar Shah v. State of Gujarat [2011] 9 SCR 1138 : (2011)
13 SCC 316; Devendra Kumar Pal v. State of Uttar Pradesh &
Anr., 2024 SCC OnLine SC 2487; Raj Kishore Prasad v. State
of Bihar [1996] Supp. 2 SCR 125 : (1996) 4 SCC 495; Suman v.
State of Rajasthan (2010) 1 SCC 250; U.J.S. Chopra v. State of
Bombay [1955] 2 SCR 94 : 1955 SCC OnLine SC 57; Ramesh
Kumar v. Kesho Ram (1992) Supp. 2 SCC 623 – referred to.

Books and Periodicals Cited
Law Commission of India, 41st Report.
644 [2025] 3 S.C.R.

Supreme Court Reports

List of Acts
Code of Criminal Procedure, 1973; Code of Criminal Procedure,
1898.
List of Keywords
Section 319 of CrPC; Revisional jurisdiction of High Court;
Expression “could be tried together with the accused; Stage of
summoning u/s.319 of CrPC; Opportunity of hearing; Stay of trial;
De novo trial; Right of fair trial; Stay on trial.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1184 of 2025
From the Judgment and Order dated 01.04.2024 of the High Court of
Judicature at Allahabad, Lucknow Bench in A482 no. 2399 of 2024

Appearances for Parties
Advs. for the Appellants:
Siddharth Aggarwal, Sr. Adv., Anshuman, Shaantanu Devansh,
Ms. Rudrali Patil, Ayush Shrivastava.
Advs. for the Respondents:
Shaurya Sahay, Aditya Kumar.
Judgment / Order of the Supreme Court

Judgment

J.B. Pardiwala, J.

For the convenience of exposition, this judgment is divided into the
following parts: -

INDEX*

A. FACTUAL MATRIX ............................................................................... 3

B. SUBMISSIONS ON BEHALF OF THE APPELLANTS ........................ 11

C. SUBMISSIONS ON BEHALF OF THE RESPONDENT ...................... 20

* Ed. Note: Pagination as per the original Judgment.
[2025] 3 S.C.R. 645

Jamin & Anr. v. State of Uttar Pradesh & Anr.

D. ISSUES FOR DETERMINATION .......................................................... 25

E. ANALYSIS ............................................................................................. 26

(i) Legislative history, ingredients and scope of Section 319
of the CrPC ................................................................................. 26

(ii) Stage at which power under Section 319 of the CrPC can
be exercised ............................................................................... 39

(iii) Meaning of the expression “could be tried together with the
accused” ..................................................................................... 54

(iv) Peculiar facts of the present case not fully covered by the
guidelines issued by this Court in its decisions in Sukhpal
Singh Khaira and Hardeep Singh ............................................. 59

(v) Whether the High Court was right in exercising its revision
jurisdiction to set aside the order of the Trial Court rejecting
the second application preferred by the respondent no. 2
under section 319 of the CrPC? ............................................... 61

(vi) The order passed by the High Court in exercise of its revision
jurisdiction would relate back to and replace the order passed
by the Trial Court rejecting the application under Section
319 of the CrPC .......................................................................... 65

(vii) Right of the proposed accused to be heard at the stage of
summoning under Section 319 of CrPC .................................. 87

F. CONCLUSION ....................................................................................... 93

1. Leave granted.
2. This appeal arises from the judgment and order passed by the High
Court of Judicature at Allahabad, Lucknow Bench dated 01.04.2024
in Criminal Application No. 2399 of 2024 filed by the appellants
herein under Section 482 of the Code of Criminal Procedure, 1973
(the “CrPC”) by which the High Court rejected the application and
thereby affirmed the order passed by the Sessions Court summoning
the appellants herein as accused under Section 319 of the CrPC in
the Session Trial No. 582 of 2009.
646 [2025] 3 S.C.R.

Supreme Court Reports

A. FACTUAL MATRIX
3. On 14.04.2009, the respondent no. 2 herein lodged a First Information
Report (“FIR”) No. 99/2009 in the Police Station Bilgram, Hardoi,
Uttar Pradesh for the offence punishable under Sections 147, 148,
149 and 302 of the Indian Penal Code, 1860 (hereinafter referred to
as the “IPC”) respectively against five persons namely Irshad, Irfan,
Abdul, Jamin and Akil in connection with the murder of his brother.
The FIR alleged that the appellants herein namely, Jamin and Akil
exhorted the other co-accused to kill the deceased and as a result
of such instigation, the said co-accused fired at the deceased using
their pistols resulting into his death.
4. On conclusion of the investigation, the police filed chargesheet no.
07/2009 dated 14.07.2009 against two accused persons, namely
Irshad and Irfan for the alleged offence. The police by way of Parcha
No. CD 16 dated 14.07.2009 informed the court concerned that the
investigation qua the remaining accused persons, namely Abdul,
Jamin and Akil was ongoing. The chargesheet contained a list of
18 witnesses which the State proposed to examine in support of
the charges.
5. On 27.10.2009, the Trial Court framed charge for the offence under
Sections 147, 148, 149 and 302 of the IPC respectively against the
accused persons who were named in the chargesheet who in turn
pleaded not guilty and claimed to be tried.
6. While the trial against the chargesheeted accused persons namely
Irshad and Irfan was in progress, the respondent no. 2 filed an
application under Section 319 of the CrPC praying to summon the
other three persons named in the FIR to face the trial along with the
chargesheeted accused persons.
7. On 29.01.2010, the Trial Court rejected the aforesaid application on
the ground that a person could be summoned by the trial court in
exercise of its powers under Section 319 of the CrPC provided that
there is cogent and reliable evidence indicating towards the complicity
of such person in the commission of an offence for which he could
be tried together with the accused persons already put to trial. The
Trial Court noted that PW-1 and PW-2 respectively had yet not been
cross-examined and it was not clear whether the I.O. intended to file
chargesheet against the persons sought to be summoned, therefore
[2025] 3 S.C.R. 647

Jamin & Anr. v. State of Uttar Pradesh & Anr.

it declined the prayer to summon under Section 319 of the CrPC. The
relevant extracts from the said order are reproduced hereinbelow:
“Hence, from the aforesaid principles it is cleared that till
date, cross examination of Pw-1 & Pw-2 has not been done
and it is also not cleared that the chargesheet against the
application by the accused u/s 319 CrPC is being filed or
not Investigation have been completed or not and if final
report have been filed then is it pending in Add District
Court or till now investigation is going on? Whenever it
would not be cleared and until and unless such evidence
has not been filed by prosecution that such evidence
against proposed accused is enough to punished the
them until then summoned to accused is not justifiable.
Hence, application not accepted and is deserved to be
dismissed/rejected.”
8. A revision petition bearing no. 203 of 2010 was filed by the respondent
no. 2 before the High Court against the order of the Trial Court dated
29.01.2010 referred to above. The High Court vide order dated
14.05.2010 directed the Trial Court to reconsider the prayer of the
respondent no. 2 for summoning the proposed accused persons
under Section 319 of the CrPC after the cross-examination of PW-1
and PW-2 respectively was over. In the meantime, the evidence
of PW-1 and PW-2 was recorded on 01.12.2009, 02.04.2010 and
15.05.2010 respectively. The relevant extracts from the said order
are reproduced hereinbelow:
“It appears that the revisionist is the complainant and his
petition under section 319 CrPC for summoning additional
accused has been rejected by the court concerned on
the ground that cross-examination of PW-1 and 2 had
not taken place.
The learned trial court is expected to consider the
revisionist’s prayer after the cross-examination is over.
With the aforesaid observation, the revision is finally
disposed of.”
9. Thereafter, on 10.06.2010, the respondent no. 2 filed a second
application under Section 319 of the CrPC before the Trial Court
with a prayer to summon the three persons named in the FIR as
648 [2025] 3 S.C.R.

Supreme Court Reports

accused in addition to the accused persons named in the chargesheet.
The Additional District & Sessions Judge, Hardoi vide order dated
19.07.2010 rejected the said application on the ground that the
evidence recorded in the course of the trial did not warrant the
summoning of the said three persons as accused. The Trial Court
noted that that while exercising jurisdiction under Section 319 of the
CrPC, it is necessary to see whether there is sufficient and cogent
evidence to take cognizance and if not, then the persons sought to be
summoned as accused cannot be asked to face the trial. The Court
observed that the complainant had no idea as regards the identity
of the proposed accused persons, namely, Abdul, Jamin and Akil
and no explanation was forthcoming as to how their names came
to be included in the FIR.
10. In such circumstances referred to above, the respondent no. 2
preferred revision petition bearing no. 400/2010 before the High
Court seeking to challenge the order dated 19.07.2010.
11. During the pendency of the revision petition, the Additional District
& Sessions Judge, Hardoi vide the judgment and order dated
19.10.2011, held Irshad and Irfan guilty of the offence of murder and
sentenced them to life imprisonment and fine. The trial accordingly
stood concluded.
12. Long after the conclusion of the trial, the High Court, though aware
of conclusion of the trial of the co-accused, set aside the order of the
Trial Court dated 19.07.2010, vide order dated 14.09.2021 passed
in criminal revision petition no. 400/2010, while observing as under:
a. First, merely on the basis of a statement made by a prosecution
witness that not a single person in the village was known to
him, the Trial Court could not have concluded that the proposed
accused were not present at the scene of the crime; and
b. Secondly, no final report was submitted by the police against
the proposed accused, exonerating them from the alleged
crime. The High Court held that a person not named in the
FIR or if named in the FIR but not chargesheeted, could be
summoned under Section 319 of the CrPC if the court was
prima facie satisfied that such person had also committed the
offence and he could be tried along with the other accused for
the alleged offence on the basis of the evidence recorded in
[2025] 3 S.C.R. 649

Jamin & Anr. v. State of Uttar Pradesh & Anr.

the course of inquiry into or trial of an offence. In light of the
aforesaid observations, the High Court allowed the revision
petition and directed the Trial Court to reconsider the application
under Section 319 of the CrPC submitted by the complainant
(the respondent no. 2 herein) within three months from the
date of its order.
The relevant observations made by the High Court are
reproduced herein below:
“8 The proposed accused are named in the FIR.
The plaintiff has been examined as PW-1, he has
confirmed the statements in his FIR. Just because
he said that he did not know anyone by name in that
village, it cannot be assumed that he did not know
the proposed accused. In the cross-examination he
was not specifically asked to identify the proposed
accused, in such a situation it cannot be justified to
conclude that he did not know the proposed accused.
It is noteworthy here that the original trial has been
completed and the accused have been found guilty.
Annexure-1, submitted along with the supplementary
affidavit dated 24.11.2020 submitted by the reviewer,
is reflected in the copy of the decision.
[…]
In the light of the legal principles propounded by the
Honorable Supreme Court and the above analysis, it
is clear that the impugned order passed by the trial
court is erroneous, because on the basis of mere
statement of PW that he did not know any person in
the village by name before the incident. Considering
that he did not even know the proposed accused and
the investigation against the proposed accused seems
to be prevalent, neither the final report was given
against them nor the rejection of the chargesheet
application cannot be called legal and justified, as a
result deserves to be set aside.
9 This revision is accepted. The impugned order dated
19.07.2010 passed by the trial court is set aside. The
650 [2025] 3 S.C.R.

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trial court is ordered to again consider the application
submitted by the plaintiff under Section 319 CrPC in
the light of all the evidence and well-established legal
principles and pass an order as per law within three
months of receiving the copy of the order.”
13. On the strength of the order passed by the High Court referred
to above, the respondent no. 2 filed another application dated
22.09.2021 under Section 319 of the CrPC before the Additional
District and Session Judge and prayed to summon the proposed
accused in the trial. The Additional District and Sessions Judge vide
order dated 21.02.2024 allowed the said application on the ground
that the oral evidence of the witnesses recorded by the Trial Court
clearly revealed the involvement of the proposed accused, viz.,
Abdul, Jamin and Akil along with the accused who stood convicted.
Since one of the proposed accused namely, Abdul had passed away,
the court summoned Jamin and Akil to face the trial.
14. The appellants being dissatisfied with the summoning order,
challenged the same by filing an application under Section 482 of
the CrPC and prayed that the order be quashed and set aside. The
challenge to the summoning order was essentially on the ground that
the appellants had been summoned in a trial which stood concluded
on 19.10.2011 that is, almost 13 years before the summoning order
was passed.
15. The High Court vide the impugned order dated 01.04.2024, rejected
the aforesaid application of the appellants filed under Section 482
of the CrPC and thereby affirmed the summoning order passed by
the Additional District and Sessions Judge. The High Court held
that Section 319(4) of the CrPC provides that where the court
proceeds against any person under sub-section (1) of Section 319,
the proceedings in respect of such person is supposed to commence
afresh and the witnesses are to be re-heard with respect to the
proposed accused so summoned. The conclusion of trial against the
other accused persons would not cause any prejudice to the appellants
as they would be afforded an opportunity to defend themselves in a
fresh trial. In view of the aforesaid, the High Court found no illegality
in the order summoning the appellants herein under Section 319 of
the CrPC. The relevant observations made by the High Court are
reproduced hereinbelow:
[2025] 3 S.C.R. 651

Jamin & Anr. v. State of Uttar Pradesh & Anr.

“27.⁠ ⁠ln the present case, the witnesses PW-1 and PW-2
have stated about that the previously tried accused had
shot at the victim at the exhortation of the applicant. The
trial stands concluded by the judgment and order dated
19.10.2011 wherein it was held that the accused persons
Irshad and Irfan created an unlawful assembly with the
other accused persons and they killed the deceased Arif
by shooting at him with a firearm. In case the aforesaid
evidence remains unrebutted, the same would lead to
conviction of the applicant.
28.⁠ ⁠Therefore, there is no illegality in the order summoning
the applicant under Section 319 CrPC.
29.⁠ S
⁠ ection 482 CrPC saves the inherent powers of the High
Court to make such orders as may be necessary to secure
the ends of justice. Non-summoning of accused persons
against whom there was ample evidence warranting their
trial, would defeat the ends of justice. The order rejecting
the application under Section 319 CrPC was set aside by
this Court in exercise of its revisional jurisdiction and it
is only thereafter, that the trial Court has summoned the
applicants under Section 319 CrPC. Any interference with
the order summoning the applicants to face trial would in
fact defeat the ends of justice, which would be contrary
to the object for which the inherent powers of this Court
are meant to be exercised.
30.⁠ ⁠In view of the foregoing discussion, the application
filed under Section 482 CrPC lacks merit and the same
is hereby dismissed.”

B. SUBMISSIONS ON BEHALF OF THE APPELLANTS
16. Mr. Siddharth Aggarwal, the learned Senior Counsel appearing for
the appellants addressed himself on the following questions:
(i) Whether the Trial Court could have entertained an application
filed under Section 319 of the CrPC almost twelve years after
the conclusion of the main trial and in the absence of any
proceedings pending before it?
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(ii) Whether the application under Section 319 of the CrPC dated
22.09.2021 could have been filed by the respondent no. 2 on
the strength of the order of the High Court dated 14.09.2021?
(iii) Whether the order dated 14.09.2021 could have been passed
by the High Court without issuing notice to the appellants?
(iv) What is the effect of the conclusion of the trial on the revision
petition pending before the High Court, more particularly when
the proceedings of trial were not stayed by the High Court?
(v) Whether there was sufficient material on record to summon the
appellants under Section 319 of the CrPC?
17. As regards the question whether the Trial Court could have entertained
the application filed under Section 319 of the CrPC after the conclusion
of the trial, the learned counsel made the following submissions:
a) The conditions for the exercise of power by the Trial Court
under Section 319(1) of the CrPC are:
(i) that there must be any inquiry into, or trial of, an offence;
(ii) that in course of that inquiry or trial, it must appear from
the evidence that any person, who is not the accused,
has committed any offence for which he could be tried
together with the accused.
If the aforesaid conditions are satisfied, the person sought
to be summoned can be asked to appear “in the course of
any inquiry into, or trial of, an offence”. In other words, the
summoning order should be passed at a stage anterior to the
date of pronouncement of the judgment, in the trial.
b) However, in the present matter, the application under
Section 319 of the CrPC, which was allowed vide order
dated 21.02.2024, was made 13 years after the judgment &
order of conviction of the chargesheeted accused persons.
Therefore, the Additional Sessions Judge, Hardoi could not
have exercised its powers under Section 319 of the CrPC as
he became functus officio with the passing of the order of
conviction and sentence.
c) The High Court failed to take into consideration the law laid
down by a Constitution Bench of this Court in Singh Khaira v.
[2025] 3 S.C.R. 653

Jamin & Anr. v. State of Uttar Pradesh & Anr.

State of Punjab reported in (2023) 1 SCC 289 wherein it was
held that the summoning order under Section 319 of the CrPC
had to be necessarily passed before the order of sentence is
passed where a finding of conviction was returned. Accordingly,
the appellants could not have been summoned by the Trial
Court in 2024, long after the conclusion of the proceedings of
Sessions Trial No. 582 of 2009 resulting into conviction and
sentence of life imprisonment being passed against the original
accused, namely Irshad and Irfan. Therefore, the order dated
21.02.2024 passed by the Additional District and Sessions
Judge, Hardoi was not merely a procedural lapse but rather a
violation of the substantive rights of the appellants.
d) The respondent no. 2 also failed to inform the Trial Court about
the pendency of the Revision Petition no. 400/2010 before the
High Court and the High Court was also not informed about
the conclusion of trial qua the chargesheeted accused persons.
e) The decision of this Court in Shashikant Singh v. Tarkeshwar
Singh & Anr. reported in (2002) 5 SCC 738 is distinguishable
from the present case as having been passed in a very
different set of facts and thus would not come to the aid of the
respondents. The facts in Shashikant Singh (supra) were
that a revision petition was preferred against the order of the
Trial Court allowing the application under Section 319 of the
CrPC and summoning the proposed accused. Thereafter, the
trial came to be concluded during the pendency of the revision
petition. In Shashikant Singh (supra), the application under
Section 319 was allowed at a time when the Trial Court still
had the jurisdiction and therefore, the matter was remanded
by this Court to the High Court for fresh consideration on
merits. However, contrary to the facts in Shashikant Singh
(supra), in the present matter, the Revision Petition no. 400
of 2010 was preferred by the respondent no. 2 against the
order of the Trial Court rejecting the application under Section
319 on merits. Thus, while in Shashikant Singh (supra) the
summoning order was issued during the pendency of the trial,
in the present case the summoning order came to be issued
long after the conclusion of the trial and is, thus, bad in law
as the Trial Court became functus officio with the conclusion
of the trial and could not have passed the summoning order.
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f) Further, this Court in Hardeep Singh v. State of Punjab reported
in (2014) 3 SCC 92 has held that the powers under Section
319 of the CrPC should be exercised sparingly. The evidence
on record warranting exercise of this power must be such that
if it goes unrebutted then it would lead to a conviction. In the
present case, the appellants were named in the FIR and were
subjected to investigation and yet were not arrayed as accused
in the chargesheet dated 14.07.2009.
g) The record of the Trial Court indicates that the investigation
qua the appellants was closed for want of sufficient material
against them and therefore the investigating officer decided not
to file chargesheet against the appellants.
h) The oral evidence of PW-1 and PW-2, respectively, before the
Trial Court also failed to inspire any confidence for the purpose
of summoning the appellants as the testimony of PW-1 was not
believable. It was pointed out that PW-1 himself had deposed
that he did not know anyone from the village to which the
appellants belonged and the testimony of PW-2 by itself could
not have been relied upon as the respondent no. 2 did not name
himself as an eye-witness in his complaint or in his statement
recorded under Section 161 of the CrPC or in his substantive
evidence before the court.
18. As regards the question whether the High Court could have passed
the order dated 14.09.2021 without issuing notice and granting an
opportunity of being heard to the appellants, the counsel made the
following submissions:
a) Upon rejection of the application under Section 319 of the
CrPC dated 10.06.2010 by the Trial Court, the respondent no.
2 preferred Revision Petition no. 400 of 2010 before the High
Court. However, contrary to the settled position of law, the
appellants were not joined as parties to the said revision petition.
b) Further, the said revision petition remained pending for 11 years
before the High Court and in the interregnum, the appellants
were not heard at any stage. Therefore, the order directing the
Trial Court to reconsider the application under Section 319 came
to be passed on 14.09.2021 without affording the appellants
any opportunity to be heard.
[2025] 3 S.C.R. 655

Jamin & Anr. v. State of Uttar Pradesh & Anr.

c) The order dated 14.09.2021 could be said to be contrary to
the law laid down by this Court in Manharbhai Muljibhai
Kakadia v. Shaileshbhai Mohanbhai Patel reported in (2012)
10 SCC 517 and Subhash Sahebrao Deshmukh v. Satish
Atmaraman Talekar & Ors. reported in (2020) 6 SCC 625
wherein the right to be heard has been recognised and it was
held that an opportunity of hearing is to be mandatorily granted
to a proposed accused in revisional proceedings.
19. As regards the question pertaining to the legal effect of the conclusion
of trial on the revision proceedings pending before the High Court,
more particularly when the High Court had not stayed the proceedings
of the trial, the counsel submitted the following:
a) Upon conclusion of trial, as a natural corollary, any interim
proceedings arising therefrom would come to an end as the
Trial Court becomes functus officio unless a specific stay on
such trial proceeding has been granted by a higher court.
b) In the present matter, the Trial Court became functus officio on
19.10.2011 i.e., the date on which it pronounced the judgment
of conviction and sentence against the original accused persons
namely, Irshad and Irfan, and was thereafter shorn of the
jurisdiction to entertain a subsequent application under Section
319 of the CrPC as no proceedings were pending before it.
As such, no order for summoning the appellants could have
been passed by the Trial Court, especially because the High
Court in its revisional jurisdiction had not passed any order
for staying the trial proceedings or restraining the Trial Court
from pronouncing the final judgment against the other accused
persons during the pendency of the revision petition
c) The principle that the Trial Court cannot exercise its powers
under Section 319 of the CrPC after conclusion of the trial has
been duly recognized by this Court in its decision in Sukhpal
Singh Khaira (supra).
20. As regards the question whether there was sufficient material on
record to summon the appellants to face trial, the counsel submitted
as follows:
a) No chargesheet had been filed against the appellants nor was
any evidence adduced to point towards the involvement of the
appellants in the alleged offence.
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b) The application under Section 319 of the CrPC was not preferred
by the prosecution but by the complainant.
c) The Case Diary No. 19 dated 05.09.2009 also recorded that
action against Abdul, Jamin and Akil was not required as their
presence at the spot of the crime had not been confirmed.
d) The second application under Section 319 of the CrPC dated
10.06.2010 was rejected by the Trial Court inter alia on the
ground that upon examination of PW-1, it became evident
that the complainant did not know the appellants herein and
no explanation had been offered as to how the complainant
mentioned their names in the FIR. Further, it was observed
that investigation against the proposed accused persons was
ongoing and no final report against them had been submitted
by the police.
e) After due consideration of all the materials and evidence
collected during investigation, the prosecution arrived at a
decision that no case was made out against the appellants
herein and accordingly decided not to file a supplementary
chargesheet against them. Similarly, after considering the oral
evidence on record, the Trial Court recorded a finding that no
prima facie case was made out against the appellants and
accordingly rejected the application filed under Section 319 of
the CrPC.
f) Even after the filing of the criminal revision petition before
the High Court against the rejection of the application under
Section 319, no stay on the trial proceedings was granted by
the High Court and the respondent no. 2 also did not seek an
early hearing of the revision petition despite being aware of the
fact that the trial was about to conclude.
g) The impugned order of the High Court also noted that the
counsel for the complainant did not apprise the Trial Court of
the pendency of the revision petition.

C. SUBMISSIONS ON BEHALF OF THE RESPONDENT
21. Mr. Shaurya Sahay, the learned counsel appearing for the State
of Uttar Pradesh, addressed himself primarily on the following two
aspects:
[2025] 3 S.C.R. 657

Jamin & Anr. v. State of Uttar Pradesh & Anr.

(i) The issue of summoning of proposed accused under Section
319 of the CrPC after conclusion of trial is well settled in law
and in light of the said settled position the summoning order
issued in the present case cannot be said to be erroneous in law.
(ii) The impact and purport of Section 319(4) to the extent
it contemplates re-hearing of the witnesses and fresh
commencement of trial had been correctly considered by the
High Court while passing the impugned order.
22. As regards the first proposition, the counsel submitted as follows:
a) This Court in its decision in Sukhpal Singh Khaira (supra), inter
alia, laid down the following guidelines to be followed by a court
while deciding an application under Section 319 of the CrPC:
i. If the competent court finds cogent evidence or if an
application is made under Section 319 of the CrPC showing
involvement of any other person in the commission of the
offence based on evidence recorded at any stage in the
trial before passing of the order on acquittal or sentence,
the court shall stop the proceedings of the trial at that
stage and proceed to decide the application filed under
Section 319 of the CrPC first before proceeding further
with the trial.
ii. If the court decides to summon an accused under Section
319 of the CrPC, such summoning order shall be passed
before proceeding further with the trial in the main case and
depending upon the stage at which the order is passed,
the court shall apply its mind to the fact as to whether
such summoned accused is to be tried along with the
other accused or separately.
iii. If the power under Section 319 of the CrPC is not invoked
or exercised in the main trial till its conclusion and if there
is a split-up case, such power can be invoked or exercised
only if there is evidence to that effect, pointing to the
involvement of the additional accused to be summoned
in the split-up (bifurcated trial).
b) In the present matter, the High Court in its impugned order has
recorded that as per Section 319(4), the trial against the accused
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sought to be summoned has to be commenced afresh and the
witnesses have to be re-heard. Therefore, the conclusion of the
trial against the original accused persons would not cause any
prejudice to the appellants.
c) The aforesaid finding of the High Court falls squarely within the
ambit of paragraphs 41.3 and 41.6 of Sukhpal Singh Khaira
(supra). The relevant guidelines laid down in Sukhpal Singh
Khaira (supra) and relied upon by the counsel are reproduced
below:
“41.3. If the decision of the court is to exercise the
power under Section 319 CrPC and summon the
accused, such summoning order shall be passed
before proceeding further with the trial in the main case.
……….
41.6. If the decision is that the summoned accused
can be tried separately, on such order being made,
there will be no impediment for the Court to continue
and conclude the trial against the accused who were
being proceeded with.”
d) The impugned order also finds sustenance from the decision
of this Court in Sarojben Ashwinkumar Shah v. State of
Gujarat reported in (2011) 13 SCC 316 wherein while laying
down the principles applicable to Section 319 of the CrPC, it
was held that regard must be had to the constraints imposed by
sub-Section (4) of Section 319 that the proceedings in respect
of newly added persons shall be commenced afresh from the
beginning of the trial.
e) The decision of this Court in Devendra Kumar Pal v. State of
Uttar Pradesh & Anr. reported in 2024 SCC OnLine SC 2487
has referred to the Constitution Bench judgment in Sukhpal
Singh Khaira (supra) and held that if a summoning order is
passed after the passing of order of acquittal in the case of
acquittal or after the passing of order on sentence in the case
of conviction, the same may not be sustainable.
23. As regards the impact and purport of Section 319(4) with respect to
re-hearing of the witnesses and fresh commencement of trial, the
counsel made the following submissions:
[2025] 3 S.C.R. 659

Jamin & Anr. v. State of Uttar Pradesh & Anr.

a) The High Court in the impugned order has observed that the
revisional power of the High Court under Sections 397 and 401
of the CrPC respectively is plenary and there are no limitations
to reverse an order rejecting the Section 319 application in
order to ensure that actual perpetrators of the crime are rightly
brought before the court to face trial.
b) The High Court has further recorded in the impugned order that
merely because the trial against the original accused persons
stood concluded during the pendency of the revision, the power
of revision cannot be limited, more particularly when the Trial
Court had recorded that the murder was committed by the
original accused due to the exhortation of the persons sought
to be summoned under Section 319 of the CrPC.
c) The principles governing the exercise of jurisdiction under
Section 319 were laid down by this Court in Hardeep Singh
(supra) wherein it was observed that it is the duty of the court
to do justice by punishing the real culprit.
d) As regards the satisfaction of the court before it proceeds
to exercise its power under Section 319 of the CrPC, the
Constitution Bench in Hardeep Singh (supra) has held as
follows:
“105. Power under Section 319 CrPC is a discretionary
and an extraordinary 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
660 [2025] 3 S.C.R.

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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. In Section
319 CrPC 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 for the court acting under Section 319 CrPC
to form any opinion as to the guilt of the accused.”
e) In the present case, both the Trial Court and High Court
concurrently held that the summoning of the appellants was
warranted in view of the evidence that had come on record
during the course of the trial. The appellants were accused of
having exhorted the original accused persons and therefore
prima facie could be said to have abetted the commission of
the offence of murder.
24. In such circumstances referred to above, the counsel appearing for
the respondent State submitted that the Trial Court was justified
in summoning the appellants as accused in exercise of its powers
under Section 319 CrPC.

D. ISSUES FOR DETERMINATION
25. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the following questions
fall for our consideration:
(i) Whether the High Court was right in exercising its revisional
jurisdiction for the purpose of setting aside the order of the
Trial Court rejecting the second application preferred by the
respondent no. 2 under section 319 of the CrPC?
(ii) Whether the order dated 21.02.2024 passed by the Trial Court
to give effect to the order passed by the High Court directing it
to reconsider the application under Section 319 of CrPC would
relate back and replace its earlier order dated 19.07.2010
rejecting the Section 319 application?
[2025] 3 S.C.R. 661

Jamin & Anr. v. State of Uttar Pradesh & Anr.

(iii) Whether the Trial Court could have entertained an application
filed under Section 319 of the CrPC after the conclusion of the
trial, more particularly when no stay on trial had been granted
by the High Court?
(iv) Whether the High Court should have given an opportunity of
hearing to the proposed accused before deciding the revision
petition filed against the rejection of application under Section
319 of the CrPC by the Trial Court? If yes, whether the order
dated 14.09.2021 passed by the High Court in exercise of its
revisional jurisdiction was passed without issuing notice to the
appellants and providing them an opportunity of hearing?

E. ANALYSIS

(i) Legislative history, ingredients and scope of Section 319
of the CrPC
26. Section 319 of the CrPC empowers the court to proceed against
other persons appearing to be guilty of offence. The section is
reproduced below:
“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
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(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.”
27. Before the enactment of CrPC in 1973, Section 351 of the Code
of Criminal Procedure, 1898 (hereinafter referred to as “the Code,
1898”) was the provision corresponding to Section 319 of the CrPC.
Section 351 of the Code, 1898 is reproduced hereinbelow:
“351. Detention of offenders attending court.
(1) Any person attending a Criminal Court, although not
under arrest or upon a summons, may be detained by such
Court for the purpose of inquiry into or trial of any offence
of which such Court can take cognizance and which,
from the evidence, may appear to have been committed,
and may be proceeded against as though he had been
arrested or summoned.
(2) When the detention takes place in the course of
an inquiry under Chapter XVIII or after a trial has been
begun the proceedings in respect of such person shall be
commenced afresh, and the witnesses re-heard.”
28. A perusal of Section 351 of the Code, 1898 indicates that under
the old provision the court was empowered to proceed only against
a person who was attending the Court and who also appeared to
have committed the offence from the evidence adduced before the
Court, of which such Court can take cognizance, by detaining such
a person for the purpose of enquiry or trial. Sub-section (2) provided
that in respect of such person, the proceedings shall have to be
commenced afresh and the witnesses re-heard.
29. The expression “any offence of which such Court can take cognizance
and which, from the evidence, may appear to have been committed”
used in Section 351 clearly indicates two aspects, namely:
a. First, that it must appear from the evidence that a person who
is attending the Court has committed an offence; and
[2025] 3 S.C.R. 663

Jamin & Anr. v. State of Uttar Pradesh & Anr.

b. Secondly, that the offence is such that the Court can take
cognizance.
30. Therefore, what becomes clear from the aforesaid is that there was
a lacuna in Section 351 of the Code, 1898 as it did not cover two
important situations:
a. First, the situation where the person who appears to have
committed an offence during the course of the enquiry into or
trial was not attending the Court; and
b. Secondly, the manner in which the cognizance will be taken
as against that person.
31. In order to make Section 351 comprehensive, the Law Commission,
realizing the above two grey areas, in its 41st report, recommended
for suitable amendment of the said provision. The relevant
recommendation of the Law Commission is reproduced hereinbelow:
“24.80. It happens sometimes, though not very often,
that a Magistrate hearing a case against certain accused
finds from the evidence that some person, other than
the accused before him, is also concerned in that very
offence or in a connected offence. It is only proper that
a Magistrate should have the power to call and join him
in the proceedings. Section 351 provides for such
a situation, but only if that person happens to be
attending the Court. He can then be detained and
proceeded against. There is no express provision in
Section 351 for summoning such a person if he is
not present in Court. Such a provision would make
Section 351 fairly comprehensive, and we think it
proper to expressly provide for that situation.
24.81. Section 351 assumes that the Magistrate
proceeding under it has the power of taking cognizance
of the new case. It does not, however, say in what
manner cognizance is taken by the Magistrate. The
modes of taking cognizance are mentioned in Section
190, and are apparently exhaustive. The question is,
whether against the newly added accused, cognizance
will be supposed to have been taken on the Magistrate’s
own information under Section 190(1)(c), or only in
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the manner in which cognizance was first taken of the
offence against the accused. The question is important,
because the methods of inquiry and trial in the two
cases differ. About the true position under the existing
law, there has been difference of opinion, and we think
it should be made clear. It seems to us that the main
purpose of this particular provision is, that the whole
case against all known suspects should be proceeded
with expeditiously and convenience requires, that
cognizance against the newly added accused should
be taken in the same manner as against the other
accused We, therefore, propose to recast Section 351
making it comprehensive and providing that there will
be no difference in the mode of taking cognizance
of a new person is added as an accused during the
proceedings.”
(Emphasis supplied)

32. The aforesaid indicates that the Law Commission made two
recommendations:
a. First, to add an accused who is not before the Court but
connected with that offence; and
b. Secondly, the mode of taking cognizance as against the newly
added accused shall be the same as against the other accused.
33. Pursuant to the above recommendation, Section 319 was enacted in
CrPC with suitable modifications. A perusal of Section 319 of CrPC
makes it manifest that any person, not being the accused before
the court, who also appears to have committed an offence from the
evidence adduced before the court during the course of any enquiry
into or trial of an offence for which cognizance has already been
taken, regardless of whether such person is attending the court or
not, can be summoned. If he is added as an accused pursuant to
the said decision of the court, the mode of taking cognizance in
respect of such person would the same as in the case of the already
arraigned accused. In other words, he is deemed to have been an
accused when the Court originally took cognizance of the offence
earlier. For this purpose, a legal fiction is created in Clause (b) of
sub-section (4) of Section 319 of CrPC.
[2025] 3 S.C.R. 665

Jamin & Anr. v. State of Uttar Pradesh & Anr.

34. Section 319 has been included in the statute book with the object of
ensuring effective administration of justice. The legislature enacted
Section 319 to eliminate any situation wherein the courts would
feel helpless in proceeding against any person who appears to be
guilty of committing an offence, more particularly, in cases where the
investigating agency or prosecution files chargesheet only against
a few persons in relation to an offence and leaves out a few others
either intentionally or unintentionally. The said section empowers
the courts to proceed with persons who are not the accused before
it, upon satisfaction of the conditions prescribed in the provision.
35. The scope of power under Section 319 CrPC was explained by
this Court in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi
reported in (1983) 1 SCC 1 wherein it was held that cognizance
against a proposed accused can be taken under Section 319 even if
the proceedings against him have been quashed earlier. The relevant
observations are reproduced as under:
“19. In these circumstances, therefore, if the prosecution
can at any stage produce evidence which satisfies the
court that the other accused or those who have not been
arrayed as accused against whom proceedings have been
quashed have also committed the offence the Court can
take cognizance against them and try them along with the
other accused. But, we would hasten to add that this
is really an extraordinary power which is conferred
on the court and should be used very sparingly and
only if compelling reasons exist for taking cognizance
against the other person against whom action has
not been taken. More than this we would not like to
say anything further at this stage. We leave the entire
matter to the discretion of the court concerned so that it
may act according to law. We would, however, make
it plain that the mere fact that the proceedings have
been quashed against Respondents 2 to 5 will not
prevent the court from exercising its discretion if it
is fully satisfied that a case for taking cognizance
against them has been made out on the additional
evidence led before it.”
(Emphasis supplied)
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36. Further, this Court, in Kishun Singh v. State of Bihar reported
in (1993) 2 SCC 16, observed that even a person who has been
discharged earlier would fall within the sweep of Section 319 of
the CrPC subject to other requirements for applicability of the
provision being satisfied. The relevant observations are reproduced
hereinbelow:
“11. On a plain reading of sub-section (1) of Section 319
there can be no doubt that it must appear from the evidence
tendered in the course of any inquiry or trial that any
person not being the accused has committed any offence
for which he could be tried together with the accused. This
power, it seems clear to us, can be exercised only if it so
appears from the evidence at the trial and not otherwise.
Therefore, this sub-section contemplates existence of
some evidence appearing in the course of trial wherefrom
the court can prima facie conclude that the person not
arraigned before it is also involved in the commission of
the crime for which he can be tried with those already
named by the police. Even a person who has earlier
been discharged would fall within the sweep of the
power conferred by Section 319 of the Code.”
(Emphasis supplied)

37. A perusal of the aforesaid decisions of this Court indicates that the
intention behind giving a wide interpretation to Section 319 is to ensure
that the perpetrator of a crime does not get away unpunished. The
legislature incorporated the provision with the purpose of empowering
the courts to find out the real culprits without getting hindered by
procedural impediments so that the guilty does not go unpunished.
38. While discussing the spirit underlying Section 319 of the CrPC, this
Court in Hardeep Singh (supra) observed that the provision is based
on the doctrine judex damnatur cum nocens absolvitur which means
that “the Judge is condemned when guilty is acquitted”. The Court
further observed that this doctrine must be used as a beacon light
while explaining the ambit and the spirit underlying the enactment
of Section 319 CrPC. The relevant portions from the said decision
discussing the spirit of the provision and the approach which the
courts must adopt while interpreting the provision are reproduced
hereinbelow:
[2025] 3 S.C.R. 667

Jamin & Anr. v. State of Uttar Pradesh & Anr.

“8. The constitutional mandate under Articles 20 and 21
of the Constitution of India provides a protective umbrella
for the smooth administration of justice making adequate
provisions to ensure a fair and efficacious trial so that the
accused does not get prejudiced after the law has been
put into motion to try him for the offence but at the same
time also gives equal protection to victims and to society
at large to ensure that the guilty does not get away from
the clutches of law. For the empowerment of the courts
to ensure that the criminal administration of justice
works properly, the law was appropriately codified and
modified by the legislature under CrPC indicating as to
how the courts should proceed in order to ultimately
find out the truth so that an innocent does not get
punished but at the same time, the guilty are brought
to book under the law. It is these ideals as enshrined
under the Constitution and our laws that have led to
several decisions, whereby innovating methods and
progressive tools have been forged to find out the
real truth and to ensure that the guilty does not go
unpunished.
9. The presumption of innocence is the general law
of the land as every man is presumed to be innocent
unless proven to be guilty. Alternatively, certain statutory
presumptions in relation to certain class of offences have
been raised against the accused whereby the presumption
of guilt prevails till the accused discharges his burden upon
an onus being cast upon him under the law to prove himself
to be innocent. These competing theories have been kept
in mind by the legislature. The entire effort, therefore, is
not to allow the real perpetrator of an offence to get
away unpunished. This is also a part of fair trial and
in our opinion, in order to achieve this very end that
the legislature thought of incorporating provisions of
Section 319 CrPC. It is with the said object in mind that
a constructive and purposive interpretation should be
adopted that advances the cause of justice and does
not dilute the intention of the statute conferring powers
on the court to carry out the abovementioned avowed
668 [2025] 3 S.C.R.

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object and purpose to try the person to the satisfaction
of the court as an accomplice in the commission of
the offence that is the subject-matter of trial.
--xxx--
12. Section 319 CrPC 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 CrPC.
13. 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 CrPC?”
(Emphasis supplied)

39. A bare perusal of sub-section (1) of Section 319 brings out three
essential requirements that must be fulfilled for invoking the powers
thereunder:
a. First, there must be an ongoing inquiry or trial in respect of the
original accused person(s); and
b. Secondly, in the course of such proceedings, evidence must
have come on record to show that any person other than the
original accused has committed any offence; and
c. Thirdly, the person sought to be summoned could be tried
together with the original accused for such offence.
40. This Court in Raj Kishore Prasad v. State of Bihar reported in
(1996) 4 SCC 495 held that Section 319 deals only with a situation
in which the complicity of the persons sought to be arrayed as
accused comes to light from the evidence taken and recorded in
the course of an inquiry or trial. This Court in its decision in Suman
v. State of Rajasthan reported in (2010) 1 SCC 250 held that a
case can be proceeded with under Section 319 if, based upon
[2025] 3 S.C.R. 669

Jamin & Anr. v. State of Uttar Pradesh & Anr.

the evidence brought on record in the course of any inquiry into,
or trial of an offence, the court is prima facie satisfied that such
person has committed any offence for which he can be tried with
other accused.
41. The standard of such prima facie satisfaction to be formed from the
evidence produced during the course of trial or inquiry has been
explained by this court in Hardeep Singh (supra). The relevant
observations from the said decision are reproduced below:
“105. Power under Section 319 CrPC is a discretionary
and an extraordinary 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 CrPC. In Section 319 CrPC 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 for the court acting under
Section 319 CrPC to form any opinion as to the guilt of
the accused.”
(Emphasis supplied)
670 [2025] 3 S.C.R.

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42. As regards the requirement of evidence and the standard for testing
such evidence, Hardeep Singh (supra) indicates as follows:
a. First, it is not necessary for the evidence tendered to be tested
by way of cross-examination for establishing the involvement
of an additional accused; and
b. Secondly, the threshold for establishing the involvement of an
additional accused is more than that of a prima facie case as
exercised at the time of framing of charge, but less than such
a satisfaction that the evidence, if goes unrebutted, would lead
to conviction.
43. Further, the exercise of powers under Section 319 is not inhibited with
respect to who can be summoned as an accused. This Court in Hardeep
Singh (supra) has clarified in express terms that Section 319 CrPC
can be exercised against a person not subjected to investigation, or
a person placed in Column 2 of the chargesheet and against whom
cognizance had not been taken, or even a person who has been
discharged. However, as regards a person who has been discharged,
no proceedings can be commenced against him directly under Section
319 CrPC without taking recourse to provisions of Section 300(5) read
with Section 398 CrPC. Such a person can be proceeded against
under Section 319 only if during or after an inquiry under Section
300(5) read with Section 398, there appears to be evidence against
such person which may indicate that they committed any offence for
which they could be tried together with the accused.
44. Therefore, a summoning order issued under Section 319 of the
CrPC cannot be quashed only on the ground that even though the
proposed accused were named in the FIR or complaint, the police
did not include their names in the chargesheet. In other words, if the
evidence tendered in the course of any inquiry or trial shows that any
person not being the accused has committed any offence for which
he could be tried together with the accused, he can be summoned to
face trial even though he may not have been chargesheeted by the
investigating agency or may have been discharged at an earlier stage.
45. Sub-section (4) of Section 319 mandates that a fresh trial or a de
novo trial is to be conducted in respect of the persons summoned
under sub-section (1) so as to ensure that such persons are not
deprived of the opportunity to present their case and examine the
witnesses properly. The requirement of a de novo trial in sub-section
[2025] 3 S.C.R. 671

Jamin & Anr. v. State of Uttar Pradesh & Anr.

(4)(a) is quite different from the notion of a split-up or separate trial
as provided under Section 317 of the CrPC. The provision of a de
novo trial is to safeguard the right of fair trial to be provided to the
new persons summoned under Section 319(1).
46. However, while the provision of de novo or fresh trial under Section
319(4) is mandatory, the said sub-section is applicable only in cases
where the court proceeds against any person under sub-section (1).
Thus, a de novo trial can be commenced in respect of the proposed
accused only if the power under sub-section (1) has been validly
exercised by the court. In other words, sub-section (4) is subject
to sub-section (1) and thus also to the expression “could be tried
together with the accused” mentioned in sub-section (1).

(ii) Stage at which power under Section 319 of the CrPC can
be exercised
47. The principal contention of the appellants is that the Trial Court could
not have allowed the application under Section 319 of the CrPC after
the conclusion of the trial of the original accused. In other words, the
appellants have contended that once the stage of trial was over by
virtue of pronouncement of judgment of conviction and sentence, it
was not open anymore to the Trial Court to issue summons against
the appellants.
48. To better appreciate and address the aforesaid contention of the
appellants, it is important to understand the stage at which the power
under Section 319 of the CrPC can be exercised. A bare perusal
of the sub-section (1) of Section 319 of the CrPC indicates that the
power thereunder can be exercised “in the course of an inquiry into,
or trial of, an offence”.
49. A Constitution Bench of this Court in Hardeep Singh (supra) was
called upon to resolve, inter alia, the issue of the stage at which an
order under Section 319 could be passed. This Court considered
the meaning and scope of the words “course”, “inquiry” and “trial”
appearing in sub-section (1) in detail and inter alia made the following
observations:
a. The stage of committal can neither be said to fall under the
meaning of the expression “inquiry” or “trial” and thus the
powers under Section 319 cannot be exercised at the stage
of committal of proceedings.
672 [2025] 3 S.C.R.

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b. The stage of trial commences upon the framing of charges.
c. Inquiry does not include the stage of investigation by the
investigating authorities and refers to the stage which
commences upon the case being brought to the notice of the
court upon filing of the chargesheet.
d. The power under Section 319(1) CrPC can be exercised at any
time after the charge-sheet is filed and before the pronouncement
of judgment, except during the stage of Sections 207/208 CrPC,
committal, etc. which is only a pre-trial stage, intended to put
the process into motion.
e. The application of the provisions of Section 319 CrPC, at the
stage of inquiry remains limited to adding a person as an
accused, whose name has been mentioned in Column 2 of the
charge-sheet or any other person who might be an accomplice.
f. The word “course” appearing in sub-section (1) signifies that
the power under Section 319 can be exercised when either the
inquiry, or trial, has been commenced and is going on.
50. The relevant observations made by this Court in Hardeep Singh
(supra) in the context of the stage at which the powers under Section
319 can be exercised by the courts are reproduced hereinbelow:
“38. In view of the above, the law can be summarised
to the effect that as “trial” means determination of
issues adjudging the guilt or the innocence of a
person, the person has to be aware of what is the case
against him and it is only at the stage of framing of
the charges that the court informs him of the same,
the “trial” commences only on charges being framed.
Thus, we do not approve the view taken by the courts
that in a criminal case, trial commences on cognizance
being taken.
39. Section 2(g) CrPC and the case laws referred to
above, therefore, clearly envisage inquiry before the
actual commencement of the trial, and is an act conducted
under CrPC by the Magistrate or the court. The word
“inquiry” is, therefore, not any inquiry relating to the
investigation of the case by the investigating agency
[2025] 3 S.C.R. 673

Jamin & Anr. v. State of Uttar Pradesh & Anr.

but is an inquiry after the case is brought to the notice
of the court on the filing of the charge-sheet. The court
can thereafter proceed to make inquiries and it is for
this reason that an inquiry has been given to mean
something other than the actual trial.
40. Even the word “course” occurring in Section
319 CrPC, 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 up to 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. […]
--xxx--
42. To say that powers under Section 319 CrPC 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
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.
--xxx--
47. Since after the filing of the charge-sheet, the
court reaches the stage of inquiry and as soon as the
court frames the charges, the trial commences, and
therefore, the power under Section 319(1) CrPC can
be exercised at any time after the charge-sheet is filed
and before the pronouncement of judgment, except
during the stage of Sections 207/208 CrPC, committal,
674 [2025] 3 S.C.R.

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etc. which is only a pre-trial stage, intended to put the
process into motion. […]
--xxx--
53. It is thus aptly clear that until and unless the case
reaches the stage of inquiry or trial by the court, the
power under Section 319 CrPC cannot be exercised.
In fact, this proposition does not seem to have been
disturbed by the Constitution Bench in Dharam Pal
(CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC
306 : AIR 2013 SC 3018]. […]
54. In our opinion, the stage of inquiry does not
contemplate any evidence in its strict legal sense, nor
could the legislature have contemplated this inasmuch
as the stage for evidence has not yet arrived. The only
material that the court has before it is the material
collected by the prosecution and the court at this
stage prima facie can apply its mind to find out as to
whether a person, who can be an accused, has been
erroneously omitted from being arraigned or has been
deliberately excluded by the prosecuting agencies.
This is all the more necessary in order to ensure that
the investigating and the prosecuting agencies have
acted fairly in bringing before the court those persons
who deserve to be tried and to prevent any person
from being deliberately shielded when they ought
to have been tried. This is necessary to usher faith
in the judicial system whereby the court should be
empowered to exercise such powers even at the stage
of inquiry and it is for this reason that the legislature
has consciously used separate terms, namely, inquiry
or trial in Section 319 CrPC.
55. Accordingly, we hold that the court can exercise
the power under Section 319 CrPC only after the trial
proceeds and commences with the recording of the
evidence and also in exceptional circumstances as
explained hereinabove.
--xxx--
[2025] 3 S.C.R. 675

Jamin & Anr. v. State of Uttar Pradesh & Anr.

57. Thus, the application of the provisions of Section
319 CrPC, at the stage of inquiry is to be understood
in its correct perspective. The power under Section
319 CrPC can be exercised only on the basis of
the evidence adduced before the court during a
trial. So far as its application during the course of
inquiry is concerned, it remains limited as referred
to hereinabove, adding a person as an accused,
whose name has been mentioned in Column 2 of the
charge-sheet or any other person who might be an
accomplice.”
(Emphasis supplied)

51. In Sukhpal Singh Khaira (supra), a Constitution Bench of this Court
was called upon to authoritatively consider the stage at which a trial
could be said to have been concluded for the purposes of Section 319
of the CrPC. The Court, inter alia, framed the following two questions:
a. Whether the trial court has the power under Section 319 CrPC
for summoning additional accused when the trial with respect
to other co-accused has ended and the judgment of conviction
rendered on the same date before pronouncing the summoning
order?
b. Whether the trial court has the power under Section 319 CrPC for
summoning additional accused when the trial in respect of certain
other absconding accused (whose presence is subsequently
secured) is ongoing/pending, having been bifurcated from the
main trial?
52. Answering the first question, the Court observed that where there
is a judgment of conviction the power under Section 319 CrPC is to
be invoked and exercised before the pronouncement of the order of
sentence. In the case of acquittal, the power should be exercised
before the order of acquittal is pronounced. As regards cases where
the summoning order and order of conviction/acquittal are passed
on the same day, the Court held that it will have to be examined on
the facts and circumstances of each case and if such summoning
order is found to have been passed either after the order of acquittal
or imposing sentence in the case of conviction, the same would not
be sustainable.
676 [2025] 3 S.C.R.

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53. With the regard to the second question, the Court observed that the
trial court has the power to summon additional accused during the
proceeding of split-up trial (i.e., trial of the accused which had been
separated or bifurcated from the main trial), subject to the evidence
recorded in the split-up (bifurcated) trial pointing to the involvement
of the accused sought to be summoned. The Court clarified that the
evidence recorded in the main concluded trial cannot be the basis
of the summoning order if such power has not been exercised in
the main trial till its conclusion.
54. The Court also approved its earlier decision in Shashikant Singh
(supra) wherein it was held that the expression “could be tried
together with the accused” used in Section 319 does not mandate
that the proposed accused has to be jointly tried with the original
accused. It was held by this Court that at the time of deciding to
proceed against the proposed accused under Section 319, the court
is also required to apply its mind and take a decision as to whether
the proceedings shall continue jointly with the original accused or
separately for the proposed accused.
55. The relevant portions from the reasoning assigned by the Court in
arriving at the aforesaid conclusions are reproduced hereinbelow:
“23. […] Therefore, it would be open for the court to
summon such a person so that he could be tried together
with the accused and such power is exclusively of the
court. Obviously, when such power is to summon
the additional accused and try such a person with
the already charged accused against whom the trial
is proceeding, it will have to be exercised before
the conclusion of trial. The connotation “conclusion
of trial” in the present case cannot be reckoned as
the stage till the evidence is recorded, but, is to be
understood as the stage before pronouncement of the
judgment as already held in Hardeep Singh [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2
SCC (Cri) 86] since on judgment being pronounced
the trial comes to a conclusion since until such time
the accused is being tried by the court.
--xxx--
[2025] 3 S.C.R. 677

Jamin & Anr. v. State of Uttar Pradesh & Anr.

27. From a perusal of the provisions extracted above,
it is seen that if the Sessions Court while analysing the
evidence recorded finds that there is no evidence to hold
the accused for having committed the offence, the Judge
is required to record an order of acquittal. In that case,
there is nothing further to be done by the learned Judge
and therefore the trial concludes at that stage. In such
cases where it arises under Section 232 CrPC and
an order of acquittal is recorded and when there are
more than one accused or the sole accused, have/
has been acquitted, in such cases, that being the end
of the trial by drawing the curtain, the power of the
court to summon an accused based on the evidence
as contemplated under Section 319 CrPC will have to
be invoked and exercised before pronouncement of
judgment of acquittal. There shall be application of
mind also, as to whether separate trial or joint trial is
to be held while trying him afresh. After such order it
will be open to pronounce the judgment of acquittal
of the accused who was tried earlier.
--xxx--
29. The above aspects would indicate that even after
the pronouncement of the judgment of conviction,
the trial is not complete since the learned Sessions
Judge is required to apply her/his mind to the
evidence which is available on record to determine
the gravity of the charge for which the accused is
found guilty; the role of the particular accused when
there is more than one accused involved in an offence
and in that light, to award an appropriate sentence.
Therefore, it cannot be said that the trial is complete
on the pronouncement of the judgment of conviction
alone, though it may be so in the case of acquittal
as contemplated under Section 232 CrPC, since in
that case there is nothing further to be done by the
learned Judge except to record an order of acquittal
which results in conclusion of trial.
--xxx--
678 [2025] 3 S.C.R.

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32. Therefore, from a perusal of the provisions and
decisions of this Court, it is clear that the conclusion
of the trial in a criminal prosecution if it ends in
conviction, a judgment is considered to be complete
in all respects only when the sentence is imposed
on the convict, if the convict is not given the benefit
of Section 360 CrPC. Similarly, in a case where there
are more than one accused and if one or more among
them are acquitted and the others are convicted, the trial
would stand concluded as against the accused who are
acquitted and the trial will have to be concluded against
the convicted accused with the imposition of sentence.
When considered in the context of Section 319 CrPC,
there would be no dichotomy as argued, since what
becomes relevant here is only the decision to summon a
new accused based on the evidence available on record
which would not prejudice the existing accused since in
any event they are convicted.
--xxx--
34. Though Section 319 CrPC provides that such
person summoned as per sub-section (1) thereto
could be jointly tried together with the other accused,
keeping in view the power available to the court under
Section 223 CrPC to hold a joint trial, it would also be
open to the learned Sessions Judge at the point of
considering the application under Section 319 CrPC
and deciding to summon the additional accused, to
also take a decision as to whether a joint trial is to
be held after summoning such accused by deferring
the judgment being passed against the tried accused.
If a conclusion is reached that the fresh trial to be
conducted against the newly added accused could
be separately tried, in such event it would be open
for the learned Sessions Judge to order so and
proceed to pass the judgment and conclude the trial
insofar as the accused against whom it had originally
proceeded and thereafter proceed in the case of the
newly added accused. However, what is important is
that the decision to summon an additional accused
[2025] 3 S.C.R. 679

Jamin & Anr. v. State of Uttar Pradesh & Anr.

either suo motu by the court or on an application
under Section 319 CrPC shall in all eventuality be
considered and disposed of before the judgment of
conviction and sentence is pronounced, as otherwise,
the trial would get concluded and the court will get
divested of the power under Section 319 CrPC. Since
a power is available to the court to decide as to whether
a joint trial is required to be held or not, this Court was
justified in holding the phrase, “could be tried together with
the accused” as contained in Section 319(1)CrPC, to be
directory as held in Shashikant Singh [Shashikant Singh v.
Tarkeshwar Singh, (2002) 5 SCC 738 : 2002 SCC (Cri)
1203] which in our opinion is the correct view.
35. One other aspect which is necessary to be clarified
is that if the trial against the absconding accused
is split up (bifurcated) and is pending, that by itself
will not provide validity to an application filed under
Section 319CrPC or the order of court to summon
an additional accused in the earlier main trial if such
summoning order is made in the earlier concluded trial
against the other accused. This is so, since such power
is to be exercised by the court based on the evidence
recorded in that case pointing to the involvement of the
accused who is sought to be summoned. If in the split
up (bifurcated) case, on securing the presence of
the absconding accused the trial is commenced and
if in the evidence recorded therein it points to the
involvement of any other person as contemplated in
Section 319CrPC, such power to summon the accused
can certainly be invoked in the split up (bifurcated)
case before conclusion of the trial therein.”
(Emphasis supplied)

56. Further, this Court in Sukhpal Singh Khaira (supra) also laid down
certain guidelines for the exercise of power by the courts under
Section 319 of the CrPC. These guidelines are reproduced below:
“41.(III) What are the guidelines that the competent
court must follow while exercising power under Section
319CrPC?
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41.1. If the competent court finds evidence or if application
under Section 319 CrPC is filed regarding involvement
of any other person in committing the offence based on
evidence recorded at any stage in the trial before passing
of the order on acquittal or sentence, it shall pause the
trial at that stage.
41.2. The court shall thereupon first decide the need or
otherwise to summon the additional accused and pass
orders thereon.
41.3. If the decision of the court is to exercise the
power under Section 319 CrPC and summon the
accused, such summoning order shall be passed
before proceeding further with the trial in the main
case.
41.4. If the summoning order of additional accused is
passed, depending on the stage at which it is passed,
the court shall also apply its mind to the fact as to
whether such summoned accused is to be tried along
with the other accused or separately.
41.5. If the decision is for joint trial, the fresh trial shall
be commenced only after securing the presence of the
summoned accused.
41.6. If the decision is that the summoned accused can be
tried separately, on such order being made, there will be
no impediment for the court to continue and conclude the
trial against the accused who were being proceeded with.
41.7. If the proceeding paused as in para 41.1 above, is
in a case where the accused who were tried are to be
acquitted, and the decision is that the summoned accused
can be tried afresh separately, there will be no impediment
to pass the judgment of acquittal in the main case.
41.8. If the power is not invoked or exercised in the
main trial till its conclusion and if there is a split-up
(bifurcated) case, the power under Section 319 CrPC
can be invoked or exercised only if there is evidence
to that effect, pointing to the involvement of the
additional accused to be summoned in the split-up
[2025] 3 S.C.R. 681

Jamin & Anr. v. State of Uttar Pradesh & Anr.

(bifurcated) trial.
41.9. If, after arguments are heard and the case is reserved
for judgment the occasion arises for the Court to invoke
and exercise the power under Section 319 CrPC, the
appropriate course for the court is to set it down for re-
hearing.
41.10. On setting it down for re-hearing, the above laid
down procedure to decide about summoning; holding of
joint trial or otherwise shall be decided and proceeded
with accordingly.
41.11. Even in such a case, at that stage, if the decision
is to summon additional accused and hold a joint trial the
trial shall be conducted afresh and de novo proceedings
be held.
41.12. If, in that circumstance, the decision is to hold
a separate trial in case of the summoned accused as
indicated earlier:
(a) The main case may be decided by pronouncing
the conviction and sentence and then proceed
afresh against summoned accused.
(b) In the case of acquittal the order shall be passed
to that effect in the main case and then proceed
afresh against summoned accused.”
(Emphasis supplied)

57. The guidelines laid down by this Court contemplate several situations
as to how the trial of the accused summoned under Section 319
should take place. Paragraph nos. 41.1 to 41.4 lay down the
chronology of steps to be taken while deciding an application under
Section 319 that is:
a. First, the court has to decide the need for summoning an
accused under Section 319;
b. Secondly, if the court reaches the conclusion that a person is
required to be arrayed as an accused under Section 319, then
the summoning order in respect thereof must be passed before
the conclusion of the trial of the original accused;
682 [2025] 3 S.C.R.

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c. Thirdly, depending on the stage of the trial at which the
summoning order under Section 319 is passed, the court also
has to decide whether the newly arrayed accused will be jointly
or separately tried with the original accused.
58. Paragraph 41.8 of the guidelines clarifies that the power under
Section 319 can be invoked only during the pendency of trial of the
original accused person(s). To illustrate, say in a case with accused
‘A’ and accused ‘B’ the trial was split-up by the court in respect of
accused ‘B’ because he was found to be absconding, then the main
trial in respect of the accused ‘A’ can continue separately without
any hindrance or delay. In a situation where the main trial in respect
of accused ‘A’ has already concluded and only the split-up trial in
respect of accused ‘B’ remains pending, the power under Section
319 can be invoked even in such split-up proceedings provided
that it appears from the evidence recorded in such split-up trial
proceedings that a person not being the accused has committed
any offence which could be tried together with accused ‘B’ whose
culpability is being adjudicated in the split-up trial. It is apposite to
mention here that if the evidence recorded during the course of the
main trial in respect of accused ‘A’ indicates towards the complicity of
an additional accused person, but the same has already concluded,
then, by using such evidence, the power under Section 319 cannot
be invoked during the split-up trial in respect of accused ‘B’. For a
person to be summoned under Section 319 in the split-up trial, the
condition precedent is that the evidence taken in the split-up trial
by itself should indicate towards the involvement of the proposed
accused in the offence.
59. Further, it is clear from Paragraph nos. 41.5, 41.6, 41.7, 41.9, 41.10,
41.11 and 41.12, respectively, that a de novo or a fresh trial is
mandatory upon summoning of an accused person under Section
319. If upon such summoning, the court decides to conduct a joint
trial of the proposed accused with the original accused, then the
trial will be conducted afresh for the newly arrayed accused. On the
other hand, if the decision of the court is to conduct a separate trial
for the newly arrayed accused, then the main trial in respect of the
original accused can be concluded without any impediment and the
fresh trial of the new accused persons can be conducted separately.
60. Therefore, conducting a fresh trial in respect of the proposed
accused after the conclusion of the main trial is not permissible
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unless an order separating the trial of the original accused with that
of the proposed accused is passed by the court before the original
trial stands concluded. This stage is reached after the summoning
order has been made during the pendency of the trial in respect of
the original accused. From the above exposition of law, it is clear
that passing of a summoning order before the conclusion of trial
is a requirement that flows from sub-section (1) of Section 319.
This requirement is in no way qualified by the provision of a fresh
trial under sub-section (4) and thus, cannot be the basis to allow a
summoning order to be passed after the conclusion of trial in the
absence of a decision by the court to proceed against the proposed
accused under sub-section (1) of Section 319 of the CrPC during
the pendency of the trial.

(iii) Meaning of the expression “could be tried together with
the accused”
61. In our considered view, the expression “could be tried together with
the accused” lays down a necessary requirement that the persons
sought to be arrayed as accused under Section 319 should be
capable of being jointly tried with the original accused irrespective
of whether they are actually tried together or not. This Court in its
decision in R. Dineshkumar @ Deena v. State represented by
Inspector of Police & Ors. reported in (2015) 7 SCC 497 observed
that the expression “could be tried together” as appearing in Section
319 of the CrPC is to be construed in the context of Section 223 of
the CrPC which provides for circumstances under which different
persons may be tried together. The relevant observations are
reproduced below:
“8. […] The section authorises the court making any inquiry
into or conducting the trial of an offence to “proceed”
against any person (other than the accused facing trial)
subject to two conditions (i) that from the “evidence” it
appears to the court that such a person “has committed
any offence”, and (ii) that such a person “could be tried
together with the accused”.
9. We shall first consider the question as to when could a
person appearing to have committed an offence “be tried
together with the accused” already facing trial?
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10. Section 223 CrPC provides for the joint trial
of different accused in certain circumstances. It
enumerates different contingencies in which different
persons may be charged and tried together. As rightly
noticed by the High Court, the only clause if at all relevant
for the purpose of the present case is Section 223(d)
which stipulates that persons accused of different offences
committed in the course of the same transaction could be
charged and tried together.”
(Emphasis supplied)

62. Section 223 of the CrPC provides for certain situations and
contingencies in which different persons may be charged and tried
together. This Court in R. Dineshkumar (supra) had the occasion to
consider the meaning of the expression “same transaction” and held
that joint trial of persons accused of different offences committed
in the course of same transaction is permissible under Section 319
where the offences are not wholly unconnected.
63. What is discernible from the principles expounded in R. Dineshkumar
(supra) is that for offences committed in the same transaction, the
court should ideally arraign all the concerned persons as accused at
the same time. Even if a person is not arraigned as an accused, he
could be arraigned as an accused under Section 319 provided, inter
alia, he “could be tried together” with the originally chargesheeted
accused. Therefore, what follows is that a person must be arraigned
as an accused under Section 319 when the persons originally
chargesheeted are still accused persons and their culpability is yet
to be decided.
64. The power under Section 319 can only be exercised in a situation
where the Trial Court is seized of the offence committed in the “same
transaction”. When the trial is concluded, such court becomes functus
officio and the power to summon persons under Section 319 for the
offences alleged to have been committed in the same transaction
no longer vests with the said court as the new persons sought to
be summoned cannot be tried together with the original accused.
65. While it is mandatory for the court to arrive at an objective satisfaction,
on the basis of the evidence adduced in the course of inquiry or trial,
that the proposed accused appears to have committed an offence,
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the court is also duty bound in law to ascertain whether the proposed
accused could be tried with the original accused for the commission
of the offence which he appears to have committed. Undoubtedly, it
is open for the court to take a decision as to whether it wishes to try
the proposed accused jointly with the original accused or proceed
against him in a separate trial, however, the stage for exercise of such
a discretion can only arise if the aforesaid two obligatory conditions
are satisfied. By implication, both the aforesaid conditions can only
be satisfied if the court proceeds against the proposed accused
before the conclusion of the trial as with the conclusion of trial the
possibility of fulfilment of the twin conditions of “in the course of trial”
and “could be tried together” ceases to exist.
66. We may clarify with a view to obviate any confusion that the
requirement placed by the expression “could be tried together with the
accused” for exercise of power under sub-section (1) of Section 319
is mandatory in the sense that a joint trial of the original accused and
proposed accused must be possible. However, whether a joint trial,
or a separate trial, is held is left to the discretion of the Trial Court.
As a result, passing of the summoning order before the conclusion
of trial is mandatory. It cannot be said for a moment that passing
of the summoning order before the conclusion of trial is directory
merely because sub-section (4) provides for conduct of a fresh trial
in respect of the additional accused.
67. This Court in its decisions in Shashikant Singh (supra) and Sukhpal
Singh Khaira (supra) has clarified that the expression “could be”
tried together with the accused is only directory i.e., an expression
of possibility and should not be construed to mean “must be”. The
dictum laid in the aforesaid cases is that conclusion of the trial qua
the original accused would not act as an impediment for the court to
proceed with the trial of the proposed accused who were summoned
under Section 319 of the CrPC before the conclusion of the original
trial. In other words, if a summoning order under Section 319 of the
CrPC is passed against the proposed accused during the pendency
of the trial in respect of the original accused, then even if such trial
concludes before the court is able to proceed with the proposed
accused, that would not prevent the court from proceeding in a
separate trial against the proposed accused.
68. Thus, what has been emphasised by this Court in the aforesaid
decisions is that if the Trial Court, after applying its mind as regards
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the fulfilment of the twin conditions under sub-section (1) of Section
319, decides to summon the proposed accused for facing trial, then
the mere fact that the main trial stands concluded during the pendency
of a revision petition against the summoning order before the High
Court, would not incapacitate the Trial Court from proceeding with
the summoned proposed accused in a separate trial even after
conclusion of the main trial. In other words, the summoning order
would not become ineffective and inoperative so as to nullify the
opinion earlier formed by the court on the basis of evidence before it
that the newly added person appears to have committed the offence
if the trial against the additional accused does not commence before
the conclusion of the main trial in respect of the original accused.
The expression “could be tried together with the accused” does not
fetter the power of the Trial Court under Section 319 to conduct
trial of the proposed accused persons even after the conclusion of
the main trial provided the summoning order is passed before such
conclusion. It is in this context that this Court stated that the said
expression is to be construed as directory and not mandatory.

(iv) Peculiar facts of the present case not fully covered by the
guidelines issued by this Court in its decisions in Sukhpal
Singh Khaira and Hardeep Singh
69. The dictum that flows from the aforesaid discussion is that the power
under Section 319 of the CrPC must be exercised by the court against
the proposed accused before the conclusion of the trial in respect
of the original accused. However, the factual matrix of the case at
hand is one of its kind and requires us to take a step forward into a
territory which this Court has not had the occasion to tread in any
of its earlier decisions including those in Sukhpal Singh Khaira
(supra), Hardeep Singh (supra) and Shashikant Singh (supra) all
of which have been discussed in detail by us.
70. The facts in the present case compared to those in Shashikant
Singh (supra) are distinguishable to the extent that the summoning
order in the latter case was passed before the conclusion of trial
and the same was overturned by the High Court in exercise of its
revisional powers on the sole ground that the trial in respect of the
original accused had concluded during the pendency of the revision.
However, this Court gave a purposive interpretation to Section 319
and set aside the order of the High Court and remanded the matter
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back for a fresh consideration. The decision in Shashikant Singh
(supra) was later approved by the Constitution Bench in Sukhpal
Singh Khaira (supra) as the summoning order in Shashikant Singh
(supra) was passed by the Trial Court before the conclusion of the trial.
71. In Sukhpal Singh Khaira (supra), the question to be decided was
limited to the extent whether the summoning order could have been
passed by the Trial Court after the passing of the order of conviction
and sentence.
72. The peculiarity of the present case lies in the fact that although
the application under Section 319 of the CrPC was rejected before
the conclusion of the trial, the same came to be allowed after the
conclusion of the trial, and the case was remanded by the High
Court for a fresh consideration due to a patent illegality in the order
of rejection passed by the Trial Court.
73. The facts in detail are that the Trial Court had rejected the second
application filed under Section 319 by the respondent no. 2 whilst
the trial was pending. The respondent no. 2 preferred a revision
before the High Court against the rejection of his application. This
rejection order came to be set aside by the High Court subsequent
to the conclusion of the trial by the Sessions Court. The High Court
directed the Trial Court to consider the application afresh and in
compliance with the same, the respondent no. 2, though not required
as per the High Court’s order, moved a third application under
Section 319 of the CrPC almost 10 years after the conclusion of
trial. The 3rd application under Section 319 of the CrPC came to be
allowed by the Sessions Court and challenge to the same by the
appellants under Section 482 of the CrPC came to be rejected vide
the impugned order passed by the High Court.
74. The fundamental difference between the case at hand and
Shashikant Singh (supra) is that although the application under
Section 319 was considered by the Trial Court before the conclusion
of the trial, yet the summoning order could not be passed before the
conclusion of trial as the trial stood concluded during the pendency
of the revision petition before the High Court. Thus, what falls for our
consideration is the legal effect of the order of the High Court setting
aside the rejection of the second application by the Trial Court long
after the conclusion of the trial. More particularly, what needs to be
determined is the interplay between power of courts under Section
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319 vis-à-vis the revisional power of the High Court under Sections
397 to 401 of the CrPC.

(v) Whether the High Court was right in exercising its revisional
jurisdiction for the purpose of setting aside the order of
the Trial Court rejecting the second application preferred
by the respondent no. 2 under section 319 of the CrPC?
75. We are in seisin of the fact that the order dated 14.09.2021 passed
by the High Court in Revision Petition No. 400/2010, before it was
acted upon, was not challenged by the appellants before any forum
and thus could be said to have attained finality. What is impugned
before us is the order passed by the High Court rejecting the Section
482 petition filed against the order of the Trial Court allowing the
application under Section 319 of the CrPC and summoning the
appellants as accused to face trial. However, to have a comprehensive
overview of the matter and considering the peculiar circumstances
in which the order in Revision Petition 400/2010 came to be passed,
we deem it appropriate to examine whether the High Court was right
in exercising its revisional jurisdiction to set aside the order of the
Trial Court rejecting the application under Section 319 and directing
it to consider the same afresh.
76. Explaining the scope of revisional jurisdiction under Section 397 of
the CrPC, this Court in Amit Kapoor v. Ramesh Chander reported
in (2012) 9 SCC 460 made the following observations:
“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the legality
and regularity of any proceedings or order made in a case.
The object of this provision is to set right a patent
defect or an error of jurisdiction or law. There has to
be a well-founded error and it may not be appropriate
for the court to scrutinise the orders, which upon
the face of it bears a token of careful consideration
and appear to be in accordance with law. If one looks
into the various judgments of this Court, it emerges that
the revisional jurisdiction can be invoked where the
decisions under challenge are grossly erroneous, there
is no compliance with the provisions of law, the finding
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Jamin & Anr. v. State of Uttar Pradesh & Anr.

recorded is based on no evidence, material evidence
is ignored or judicial discretion is exercised arbitrarily
or perversely. These are not exhaustive classes, but
are merely indicative. Each case would have to be
determined on its own merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one
and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to
keep in mind that the exercise of revisional jurisdiction
itself should not lead to injustice ex facie. Where the
Court is dealing with the question as to whether the charge
has been framed properly and in accordance with law in
a given case, it may be reluctant to interfere in exercise
of its revisional jurisdiction unless the case substantially
falls within the categories aforestated. Even framing of
charge is a much advanced stage in the proceedings
under the CrPC.
18. It may also be noticed that the revisional jurisdiction
exercised by the High Court is in a way final and
no inter court remedy is available in such cases. Of
course, it may be subject to jurisdiction of this Court
under Article 136 of the Constitution of India. Normally,
a revisional jurisdiction should be exercised on a
question of law. However, when factual appreciation is
involved, then it must find place in the class of cases
resulting in a perverse finding. Basically, the power
is required to be exercised so that justice is done
and there is no abuse of power by the court. Merely
an apprehension or suspicion of the same would not
be a sufficient ground for interference in such cases.
--xxx--
20. The jurisdiction of the court under Section 397
can be exercised so as to examine the correctness,
legality or propriety of an order passed by the trial
court or the inferior court, as the case may be. Though
the section does not specifically use the expression
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“prevent abuse of process of any court or otherwise
to secure the ends of justice”, the jurisdiction under
Section 397 is a very limited one. The legality, propriety
or correctness of an order passed by a court is the very
foundation of exercise of jurisdiction under Section
397 but ultimately it also requires justice to be done.
The jurisdiction could be exercised where there is
palpable error, non-compliance with the provisions of
law, the decision is completely erroneous or where the
judicial discretion is exercised arbitrarily. […]”
(Emphasis supplied)

77. A perusal of the aforesaid decision indicates that the scope of
revisional jurisdiction is limited and is to set right a patent illegality
or defect of law in the order of a subordinate court. The power of
revision is not as extensive as that under Section 482 of the CrPC
and should not be exercised lightly.
78. The High Court passed the order dated 14.09.2021 setting aside
the order of the Trial Court on two grounds:
a. First, the mere fact that chargesheet had not been filed against
the proposed accused despite there being a FIR against them
cannot be a ground for not proceeding against them under
Section 319 of the CrPC.
b. Secondly, the Trial Court wrongly assumed that as the first
informant/ respondent no. 2 didn’t know the proposed accused
persons by name and hence their presence at the time of the
commission of the offence was not established.
79. The High Court observed that the settled position of law was that the
filing or non-filing of a chargesheet would not have any effect on the
power of the court to proceed against the proposed accused under
Section 319 of the CrPC. Thus, we are of the view that the High
Court was right in exercising its revisional jurisdiction as the order
was passed to set aside the order of a subordinate court which was
based on a misapplication of the settled position of law and thus
could be said to have been suffering from a patent illegality.
80. In such circumstances, the High Court set aside the order of the Trial
Court and directed it to reconsider the application under Section 319
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within a period of three months. The question that now arises is
whether any meaningful effect can be given to the order of the High
Court for a fresh consideration of the application under Section 319
of the CrPC after the conclusion of the main trial.

(vi) Whether the order passed by the High Court in exercise
of its revisional jurisdiction would relate back to the order
passed by the Trial Court rejecting the application under
Section 319 of the CrPC
81. This Court in Hardeep Singh (supra) observed that Section 319
casts a duty upon the courts to give full effect to the words used by
the legislature to ensure that no person who deserves to be tried is
able to go scot-free. The relevant paragraphs are reproduced below:
“18. The legislature cannot be presumed to have imagined
all the circumstances and, therefore, it is the duty of the
court to give full effect to the words used by the legislature
so as to encompass any situation which the court may
have to tackle while proceeding to try an offence and not
allow a person who deserves to be tried to go scot-free by
being not arraigned in the trial in spite of the possibility of
his complicity which can be gathered from the documents
presented by the prosecution.
19. 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. The desire to avoid trial is so strong that an
accused makes efforts at times to get himself absolved
even at the stage of investigation or inquiry even though
he may be connected with the commission of the offence.”
82. In Shashikant Singh (supra), this Court emphasised on the duty of
the courts to give a meaningful or rather a purposeful interpretation
to Section 319 so as to fulfil its avowed objective of ensuring that
no person who is guilty of an offence goes unpunished. The Court
observed thus:
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“8. When a statute is passed for the purpose of enabling
something to be done, and prescribes the way in which
it is to be done, it may be either an absolute enactment
or a directory enactment. The difference being that an
absolute enactment must be obeyed or fulfilled exactly,
but it is sufficient if a directory enactment be obeyed or
fulfilled substantially. No universal rule can be laid down
as to whether mandatory enactments shall be considered
directory only or obligatory with an implied nullification for
disobedience. It is the duty of courts of justice to try to get
at the real intention of the legislature by carefully attending
to the whole scope of the statute to be construed. (Craies
on Statute Law, 7th Edn., pp. 260-62.)
9. The intention of the provision here is that where in
the course of any enquiry into, or trial of, an offence, it
appears to the court from the evidence that any person
not being the accused has committed any offence, the
court may proceed against him for the offence which he
appears to have committed. At that stage, the court would
consider that such a person could be tried together with
the accused who is already before the court facing the
trial. The safeguard provided in respect of such person
is that, the proceedings right from the beginning have
mandatorily to be commenced afresh and the witnesses
reheard. In short, there has to be a de novo trial against
him. The provision of de novo trial is mandatory. It vitally
affects the rights of a person so brought before the court.
It would not be sufficient to only tender the witnesses
for the cross-examination of such a person. They have
to be examined afresh. Fresh examination-in-chief and
not only their presentation for the purpose of the cross-
examination of the newly added accused is the mandate
of Section 319(4). The words “could be tried together
with the accused” in Section 319(1), appear to be only
directory. “Could be” cannot under these circumstances be
held to be “must be”. The provision cannot be interpreted
to mean that since the trial in respect of a person who
was before the court has concluded with the result that
the newly added person cannot be tried together with
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the accused who was before the court when order under
Section 319(1) was passed, the order would become
ineffective and inoperative, nullifying the opinion earlier
formed by the court on the basis of the evidence before it
that the newly added person appears to have committed
the offence resulting in an order for his being brought
before the court.”
83. A strict application of the dictum as laid in Sukhpal Singh Khaira
(supra) as regards the stage of passing of summoning order under
Section 319 of the CrPC to the peculiar facts in the present case may
be antithetical to the very object of Section 319 and would render the
order of the High Court nugatory and incapable of being given effect
to despite having been passed to rectify a patent mistake committed
by the Trial Court. In our considered view, the aforesaid would lead
to a serious miscarriage of justice. Such a result is also contrary to
the principle enshrined in the legal maxim nullum tempus aut locus
occurrit regi which means that “crime never dies”.
84. The facts of the case on hand are peculiar and require us to go one
step ahead of our present understanding of Section 319. We are of
the view that the answer to present conundrum lies in determining
the legal effect of the order passed by the High Court in exercise of
its revisional jurisdiction and whether it operates from the date on
which it came to be passed or would it relate back to the date of the
order of the Trial Court against which it was passed.
85. This Court in Maru Ram v. Union of India, reported in (1981) 1
SCC 107 held that:
“56. We are mindful of one anomaly and must provide for
its elimination. If the Trial Court acquits and the higher
Court convicts and it so happens that the acquittal is before
Section 433-A came into force and the conviction after it,
could it be that the convicted person would be denied the
benefit of prospectivity and consequential non-application
of Section 433-A merely because he had the bad luck to
be initially acquitted? We think not. When a person is
convicted in appeal, it follows that the appellate Court
has exercised its power in the place of the original
court and the guilt, conviction and sentence must be
substituted for and shall have retroactive effect from
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the date of judgment of the Trial Court. The appellate
conviction must relate back to the date of the Trial
Court’s verdict and substitute it. In this view, even if
the appellate Court reverses an earlier acquittal rendered
before Section 433-A came into force but allows the appeal
and convicts the accused, after Section 433-A came into
force, such persons will also be entitled to the benefit of
the remission system prevailing prior to Section 433-A on
the basis we have explained. An appeal is a continuation
of an appellate judgment as a replacement of the
original judgment. [Freedom Behind Bars — Criminology
and Consciousness, Series I, 1979, Maharshi European
Research University Press Publication, p. 73]”
(Emphasis supplied)

86. The judgment in Maru Ram (supra) is relevant to the extent that
the order of the appellate court relates back to the order of the Trial
Court on the premise that an appeal is a continuation of trial and
an appellate judgment is a replacement of the original judgment.
87. Once the High Court i.e., a superior court deems fit to interfere with
an order of a subordinate court, then any rectifications made to the
order passed by the subordinate court by such superior court in
exercise of revisional powers under Section 401 read with Section
397 of the CrPC must be treated on the same footing as rectifications
made by an appellate court and relate back to the original order.
88. This Court in Shankar Ramchandra Abhyankar v. Krishnaji
Dattatreya Bapat reported in (1969) 2 SCC 74 observed thus:
“6. Now when the aid of the High Court is invoked on
the revisional side it is done because it is a superior
court and it can interfere for the purpose of rectifying
the error of the court below. Section 115 of the Code of
Civil Procedure circumscribes the limits of that jurisdiction
but the jurisdiction which is being exercised is a part of the
general appellate jurisdiction of the High Court as a superior
court. It is only one of the modes of exercising power
conferred by the statute; basically and fundamentally
it is the appellate jurisdiction of the High Court which
is being invoked and exercised in a wider and larger
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sense. We do not, therefore, consider that the principle
of merger of orders of inferior courts in those of
superior Courts would be affected or would become
inapplicable by making a distinction between a petition
for revision and an appeal.
7. It may be useful to refer to certain other decisions which
by analogy can be of some assistance in deciding the point
before us. In U.J.S. Chopra v. State of Bombay [1955
SCC OnLine SC 57 : AIR 1955 SC 633], the principle
of merger was considered with reference to Section
439 of the Criminal Procedure Code which confers
revisional jurisdiction on the High Court. In the majority
judgment it was held, inter alia, that a judgment
pronounced by the High Court in the exercise of its
appellate or revisional jurisdiction after issue of a
notice and a full hearing, in the presence of both the
parties would replace the judgment of the lower court
thus constituting the judgment of the High Court—the
only final judgment to be executed in accordance with
law by the Court below. […] ”
(Emphasis supplied)

89. The reasoning assigned by this Court in Krishnaji Dattatreya Bapat
(supra) and U.J.S. Chopra v. State of Bombay reported in 1955
SCC OnLine SC 57 when read with the reasoning in Maru Ram
(supra) would indicate that the order of the High Court in exercise
of its revisional jurisdiction relates back to and replaces the order of
the Trial Court. It is of no consequence that the exercise of revisional
jurisdiction is discretionary as opposed to appellate jurisdiction. It is
settled law that an appellate court exercises its power in the place
of the original court and the order passed by such court shall have
retroactive effect from the date of judgment of the Trial Court. Similarly,
once the High Court, being the superior court, decides to interfere
with the order of the Trial Court and passes an order in exercise of
its revisional jurisdiction with the purpose of rectifying any errors in
the same, such order will replace the order of the Trial Court.
90. What can be discerned from the aforesaid is that if the High Court
passes an order in exercise of its revisional jurisdiction either setting
aside or modifying the order of the Trial Court for the purpose of
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Section 319, the same would relate back to the original order passed
by the Trial Court and substitute it to the extent of modification.
91. Besides above, the normal rule is that in any litigation the rights
and obligations of the parties are adjudicated upon as they obtain
at the commencement of the lis. But this is subject to an exception.
Wherever subsequent events of facts or law which have a material
bearing on the entitlement of the parties to the relief or on aspects
which bear on the moulding of the relief occur, the court is not
precluded from taking a ‘cautious cognizance of the subsequent
changes of fact and law to mould the relief (See: Ramesh Kumar v.
Kesho Ram reported in 1992 Supp (2) SCC 623). Justice Krishna
Iyer in Pasupuleti Venkateswarlu v. Motor and General Traders,
reported in (1975) 1 SCC 770 has observed thus:
“4. … It is basic to our processual jurisprudence that the
right to relief must be judged to exist as on the date a suitor
institutes the legal proceeding. Equally clear is the principle
that procedure is the handmaid and not the mistress of the
judicial process. If a fact, arising after the lis has come to
court and has a fundamental impact on the right to or the
manner of moulding it, is brought diligently to the notice
of the tribunal, it cannot blink at it or be blind to events
which stultify or render inept the decretal remedy. Equity
justifies bending the rules of procedure, where no specific
provision or fair play is violated, with a view to promote
substantial justice - subject, of course, to the absence
of other disentitling factors or just circumstances. Nor
can we contemplate any limitation on this power to take
note of updated facts to confine it to the trial court. If the
litigation pends, the power exists, absent other special
circumstances repelling resort to that course in law or
justice. Rulings in this point are legion, even as situations
for applications of this equitable rule are myriad.”
Though the aforesaid observations are in the context of civil
proceedings, the legal principle enshrined therein is based on a
well-known latin maxim “actus curaie neminen gravabit” – “an act of
court shall prejudice no man”, which is of universal application. As
a sequitur, no man should suffer because of the fault of the court
or delay in the procedure.
[2025] 3 S.C.R. 697

Jamin & Anr. v. State of Uttar Pradesh & Anr.

92. In the present case, the High Court, in exercise of its revisional
jurisdiction, set aside the order of the Trial Court rejecting the second
application under Section 319 of the CrPC and directed the Trial
Court to reconsider the application under Section 319. At the stage
of issuing the aforesaid direction, the High Court was conscious that
the trial had concluded, yet to do substantial justice, it deemed it
necessary to issue such a direction. In doing so, the High Court’s
order, which relates back to the date of the Trial Court’s order, did not
mandate the Trial Court to do something which was barred by law
because, as already noticed above, holding a joint trial is directory.
Therefore, in complying with the said direction of the High Court, the
Trial Court committed no act which was prohibited by law.
93. There is not an iota of doubt that if the Trial Court would have
proceeded against the appellants under Section 319 of the CrPC in
the absence of the order passed by the High Court in the revision
petition, the same would have been illegal for having being done
after the conclusion of the trial of the original accused in light of
the clear guidelines laid down in Sukhpal Singh Khaira (supra).
However, by virtue of relating back of the order passed by the High
Court in the revision petition, the summoning order passed by the
Trial Court in compliance with the order of the High Court would
also relate back to the initial order rejecting the second application
under Section 319, and for this reason could be said to have been
passed before the conclusion of the trial.
94. This Court in Sukhpal Singh Khaira (supra) had no occasion
to consider a factual situation like the one at hand, and thus the
guidelines laid down by the Constitution Bench did not prescribe
anything as regards the application of Section 319 of the CrPC
in the context of revisional jurisdiction of the High Court. In such
circumstances, the spirit underlying Section 319 requires us to adopt
an approach which furthers and fulfils the object of the provision
rather than rendering it nugatory.
95. If the order of the High Court passed in its revisional jurisdiction
is not related back, the consequence would be that although from
the evidence, it appears that there are some other persons who
might be involved in the offence, yet those persons will go scot-free
solely because the Trial Court erred in not exercising its powers
under Section 319 which it ought to have. Relating back the High
698 [2025] 3 S.C.R.

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Court’s revisional order to the date of the Trial Court’s order strikes
a balance between the interests of the newly summoned persons
and the general public/victims without causing prejudice to either.
96. While we have clarified the position of the effect of an order passed
in exercise of revisional jurisdiction on an order passed under Section
319, we deem it equally necessary to address the mechanism for
exercise of powers under Section 319 in cases where the trial is
over but the revisional order relates back to the date of the rejection
of an application under the said section by the Trial Court. It is
axiomatic that in such a case there is no occasion for a joint trial to
be conducted with the original accused persons. Therefore, when
the order of the High Court passed in revision after the conclusion
of trial relates back to the order of the Trial Court passed before the
conclusion of trial, it must be taken to mean that the new accused
would be proceeded against in a separate trial. Such a situation shall
be governed by the guidelines provided in Sukhpal Singh Khaira
(supra), more particularly, by the guideline in para 41.6 thereof which
states that “if the decision is that the summoned accused can be tried
separately, on such order being made, there will be no impediment
for the court to continue and conclude the trial against the accused
who were being proceeded with.” We clarify with a view to obviate
any confusion that there is no requirement for a decision by the Trial
Court on the question of separation of trial in cases like the present
one since the trial has already concluded in respect of the original
accused and the only manner in which the order of the High Court
can be given effect to is by proceeding in a separate trial qua the
new accused persons.
97. We deem it appropriate to refer to the decision of this Court in Uday
Mohanlal Acharya v. State of Maharashtra reported in (2001) 5
SCC 453. In the said case, the appellant before this Court was an
accused in relation to certain offences for which he was remanded
to judicial custody. Upon expiry of sixty days, the accused-appellant
moved an application for the grant of default bail as no chargesheet
was filed by the investigating agency. However, the application came
to be rejected by the Magistrate who took the view that provisions
of Section 167(2) would not be applicable to the offence committed
under the Maharashtra Protection of Interest of Depositors (in
Financial Establishments) Act, 1999 (“MPID Act”). The appellant filed
a revision before the High Court against the order passed by the
[2025] 3 S.C.R. 699

Jamin & Anr. v. State of Uttar Pradesh & Anr.

Magistrate. During the pendency of the revision, chargesheet was
filed by the investigating authorities. In such circumstances, although
the High Court set aside the order of the Magistrate on the ground
that Section 167(2) of the CrPC would apply to offences under the
MPID Act yet it held that the accused-appellant was not entitled to
be released on bail as chargesheet had come to be filed during
the pendency of the revision thereby rendering the right accrued in
favour of the appellant unenforceable. The matter travelled to this
Court, wherein G.B. Pattanaik, J. speaking for himself and U.C.
Banerjee, J. took the view that a purposive interpretation had to be
given to the proviso to sub-section (2) of Section 167 of the CrPC
and the object of the proviso to curb the mischief of indefinite and
prolonged investigation had to be kept in mind while interpreting
the provision. The relevant paragraphs from the said decision are
reproduced hereinbelow:
“10. In Bipin Shantilal Panchal (Dr) v. State of Gujarat
[(1996) 1 SCC 718 : 1996 SCC (Cri) 200] , a three-Judge
Bench decision, this Court referred to the proviso to sub-
section (2) of Section 167 of the Code of Criminal Procedure
and held that though the aforesaid provisions would apply
to an accused under the NDPS Act, but since the charge-
sheet had already been filed and the accused is in custody
on the basis of orders of remand passed under other
provisions of the Code the so-called indefeasible right of
the accused must be held to have been extinguished, as
was held by the Constitution Bench in Sanjay Dutt [(1994)
5 SCC 410 : 1994 SCC (Cri) 1433] . The Court observed
thus: (SCC p. 720, para 4)
“Therefore, if an accused person fails to exercise
his right to be released on bail for the failure of
the prosecution to file the charge-sheet within the
maximum time allowed by law, he cannot contend
that he had an indefeasible right to exercise it
at any time notwithstanding the fact that in the
meantime the charge-sheet is filed. But on the
other hand if he exercises the right within the
time allowed by law and is released on bail under
such circumstances, he cannot be rearrested on
the mere filing of the charge-sheet, as pointed
700 [2025] 3 S.C.R.

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out in Aslam Babalal Desai v. State of Maharashtra
[(1992) 4 SCC 272 : 1992 SCC (Cri) 870].”
--xxx--
13. […] In such a case, therefore, even if the application
for consideration of an order of being released on
bail is posted before the court after some length of
time, or even if the Magistrate refuses the application
erroneously and the accused moves the higher forum
for getting a formal order of being released on bail
in enforcement of his indefeasible right, then filing of
challan at that stage will not take away the right of
the accused. […]
With the aforesaid interpretation of the expression “availed
of” if the charge-sheet is filed subsequent to the availing
of the indefeasible right by the accused then that right
would not stand frustrated or extinguished, necessarily
therefore, if an accused entitled to be released on
bail by application of the proviso to sub-section (2)
of Section 167, makes the application before the
Magistrate, but the Magistrate erroneously refuses
the same and rejects the application and then the
accused moves the higher forum and while the
matter remains pending before the higher forum for
consideration a charge-sheet is filed, the so-called
indefeasible right of the accused would not stand
extinguished thereby, and on the other hand, the
accused has to be released on bail. Such an accused,
who thus is entitled to be released on bail in enforcement
of his indefeasible right will, however, have to be produced
before the Magistrate on a charge-sheet being filed in
accordance with Section 209 and the Magistrate must
deal with him in the matter of remand to custody subject
to the provisions of the Code relating to bail and subject
to the provisions of cancellation of bail, already granted
in accordance with the law laid down by this Court in the
case of Mohd. Iqbal v. State of Maharashtra [(1996) 1
SCC 722 : 1996 SCC (Cri) 202].”
(Emphasis supplied)
[2025] 3 S.C.R. 701

Jamin & Anr. v. State of Uttar Pradesh & Anr.

98. We are conscious of the fact that unlike Section 167(2), where an
indefeasible right accrues in favour of the accused upon the expiry
of the period of sixty/ninety days, Section 319 is a discretionary
provision and no right can be said to accrue in the applicant upon
making of the application under Section 319. However, as held by
this Court in a number of its decisions, Section 319 casts a duty on
the court to ensure that any person who appears to have committed
the crime must be brought before the court and tried along with other
accused. In the present case, the application under Section 319 was
made by the respondent no. 2 during the pendency of the trial. As
per the guidelines laid down in Sukhpal Singh Khaira (supra), if
an application under Section 319 is made before a trial court, the
court must stop the trial and proceed to determine the application
first before proceeding further with the trial. In the present case, the
Trial Court considered the application under Section 319 of the CrPC
and after rejecting the same proceeded with the trial and concluded
the same. The High Court, in exercise of its revisional jurisdiction,
held that the rejection of the application under Section 319 by the
Trial Court suffered from a patent illegality and thus directed the Trial
Court to reconsider the application. In such circumstances, more
particularly, keeping in mind the avowed objective of Section 319
of the CrPC, it cannot be held that the order passed by the High
Court in revision cannot be given effect to merely because the trial
came to be concluded before an order could be passed by the
High Court. The present, unlike the facts in Sukhpal Singh Khaira
(supra), is not a case wherein the application under Section 319
came to be filed or decided by the Trial Court after the conclusion
of the trial. Instead, the case at hand is one wherein the application
under Section 319 though decided at the correct stage, came to
be decided wrongly owing to a patent illegality committed by the
Trial Court. In such circumstances, an approach which gives full
effect to the legislative intention behind Section 319 of the CrPC
must be adopted.
99. Having discussed the position of law on the exercise of power under
Section 319 of the CrPC, we shall now proceed to apply them to the
facts of the present case. The sequence of applications under Section
319 of the CrPC and the consequential High Court proceedings
arising therefrom are tabulated below:
702 [2025] 3 S.C.R.

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Application Court Date of Remarks
under the Order
Section 319

Trial Court 29.01.2010 The first application was rejected.

Grounds:
• Investigation against the
proposed accused was ongoing
and remained pending.
• The cross-examination of PW-1
& PW-2 was incomplete.
First
Application High Court 14.05.2010 The revision application against
the order dated 29.01.2010 was
allowed.

Direction:
• To the Trial Court to consider
application under Section 319
after the cross-examination of
PW-1 & PW-2.

Trial Court 19.07.2010 The second application was
rejected on merits.

Trial was concluded on 19.10.2011 – Original accused were
convicted and, inter alia, sentenced to life imprisonment.

High Court 14.09.2021 The revision application against
the order dated 19.07.2010 was
allowed on merits.
Second
Application Direction:
dated • To the Trial Court to reconsider
10.06.2010 the application under Section
319 within three months from
the date of the order.

Note:
• It was noted by the High Court
that the trial in respect of the
original accused had already
concluded.
[2025] 3 S.C.R. 703

Jamin & Anr. v. State of Uttar Pradesh & Anr.

Trial Court 21.02.2024 The third application was allowed
on merits.

Direction:
• To summon the appellants
herein as accused.

Note:
• It was recorded that the Trial
Court had been authorized by
Third
the order dated 14.09.2021
Application
of the High Court to allow the
dated
application under Section 319.
22.09.2021
(the High Court 01.04.2024 The application preferred by the
complainant appellants herein under Section
renewed 482 of the CrPC was dismissed
the prayer and the order dated 21.02.2024
under was upheld.
Section
319) Note:
• It was recorded that as per
Section 319(4), the trial against
the summoned accused has to
be commenced afresh and the
witnesses re-heard. Therefore,
the conclusion of trial in respect
of the accused summoned
originally would not cause any
prejudice to the appellants
herein.

100. What is clear from the above is that as the Trial Court rejected the
application under Section 319, no summoning order could be passed
before the conclusion of trial. However, the High Court in exercise
of its revisional jurisdiction set aside the said order and directed the
Trial Court to reconsider the application under Section 319.
101. We have discussed in the preceding parts of this judgment that
the revisional jurisdiction of the High Court cannot be rendered
nugatory solely because the trial was not stayed by the High Court
and stood concluded before the High Court could pass the order in
704 [2025] 3 S.C.R.

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exercise of its revisional jurisdiction. Therefore, unlike cases where
an application under Section 319 is being decided in the first instance
by the Trial Court, the conclusion of trial will not have a bearing on
the adjudication of an application under Section 319 in terms of the
directions of the High Court passed by way of a revisional order.
102. As discussed hereinabove, an order passed by the High Court in
exercise of its revisional jurisdiction would relate back to the order of
the Trial Court. In the present case, the Trial Court in its discretion
rejected the second application filed under Section 319 before the
conclusion of trial vide order dated 19.07.2010. The High Court,
more than ten years after the conclusion of trial, set aside the said
order and directed the Trial Court to reconsider the application under
Section 319 afresh. In our considered view, such order passed by
the High Court on the second application under Section 319 travels
back to 19.07.2010 i.e., the date when the Trial Court rejected the
said application. The effect of the order of the High Court relating
back to the original order of the Trial Court is that the Trial Court
cannot be considered functus officio as regards considering the
application under Section 319 after the conclusion of the trial. We
say so because the Trial Court, in considering the application under
Section 319 after the conclusion of the trial, is merely giving effect
to a revisionary order directing it to freshly consider the application
which it had originally rejected.
103. Ordinarily, an application under the Section 319 cannot be moved
after the conclusion of trial as a necessary corollary of the dictum laid
down in Sukhpal Singh Khaira (supra). However, the peculiar facts
and circumstances presented by the case on hand indicate that an
application under Section 319 dated 10.06.2010 was directed to be
considered afresh by the High Court vide order dated 14.09.2021 and,
therefore, the third application dated 22.09.2021 was not even required,
though moved by the respondent no. 2 in pursuance of the order of
the High Court order dated 14.09.2021 allowing the revision petition.
Accordingly, the summoning order, in exercise of the powers under
Section 319, came to be passed by the Trial Court on 21.02.2024.
104. The summoning order dated 21.02.2024 was passed by the Trial
Court in pursuance of the direction issued by the High Court vide its
revisional order dated 14.09.2021. Therefore, it has to been seen as
an extension of the revisional order passed by the High Court. The
combined effect of the revisional order passed by the High Court and
[2025] 3 S.C.R. 705

Jamin & Anr. v. State of Uttar Pradesh & Anr.

the summoning order passed by the Trial Court on 21.02.2024 is that
the order of the Trial Court dated 19.07.2010 rejecting the second
Section 319 application is replaced and substituted by the summoning
order dated 21.02.2024. Thus, although the summoning order in the
present case came to be passed on 21.02.2024, that is, after the
conclusion of the trial, yet it would be deemed to have been passed
on 19.07.2010 by virtue of the law expounded by this Court in Maru
Ram (supra) and Krishnaji Dattatreya Bapat (supra). Thus, as the
summoning order can be deemed to have been passed before the
conclusion of the trial, there is no impediment for the Trial Court to
proceed with the appellants in the manner envisaged under Section 319
of the CrPC. As the summoning order passed in compliance with the
order passed by High Court in revision takes effect from the date of
the original order, this ensures that there is compliance with the dictum
laid in Sukhpal Singh Khaira (supra) that the summoning order has
to be necessarily passed before the conclusion of the trial.
105. We are also of the view that the relating back of the order of the
High Court is not going to cause any prejudice to the appellants.
Considering that the original trial has already concluded, there will
have to be a separate trial so far as the appellants are concerned.
Section 319(4)(a) takes care of the rights of the newly summoned
persons by providing that “the proceedings in respect of such person
shall be commenced afresh, and the witnesses re-heard”.
106. In view of the aforesaid, we have arrived at the conclusion that
the order passed in revision by the High Court cannot be rendered
ineffective merely on procedural grounds especially when it involves
substantive rights of the parties and seeks to cure a patent illegality.
However, it is apposite to clarify in the same breath that although the
law allows for travelling back of the revisional order of the High Court,
yet it is far from ideal to do so after the passage of a substantial
period of time, in this case, ten years after the conclusion of trial.
The correct approach to be adopted in cases like this is that the
High Court should direct the Trial Court to stay its proceedings till
the revision proceedings in respect of Section 319 are disposed of.
At the same time, the High Court must also expedite the revision
proceedings so as to ensure that unreasonable delay is not caused
in the conclusion of trial.
107. The High Court in its impugned order has rightly observed that the
summoning order dated 21.02.2024 was passed in compliance
706 [2025] 3 S.C.R.

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with the order passed by the High Court in exercise of its revisional
jurisdiction. It further correctly observed that the order passed by the
High Court in exercise of its revisional jurisdiction was in furtherance
of the object of Section 319 of the CrPC which is to ensure that
the actual perpetrators of a crime are arraigned as accused to face
trial. The High Court was also right in observing that the conclusion
of the trial qua the original accused would not prejudice the
appellants in any manner and their interest would be safeguarded by
sub-section (4) of Section 319 of the CrPC. The High Court also
noted that the summoning order, though having been passed after
the conclusion of the trial, cannot be said to be vitiated in the peculiar
facts and circumstances of the case. For all the reasons that we have
assigned in the preceding parts of this judgment, we do not see any
reason to interfere with the impugned order passed by the High Court.

(vii) Right of the proposed accused to be heard at the stage of
summoning under Section 319 of CrPC
108. Before we part with the matter, we deem it necessary to address
the submissions of the appellants as regards the violation of their
right to be heard before the passing of the order in Revision Petition
400/2010 by the High Court.
109. As regards the right of the proposed accused to be heard before
an application under Section 319 is allowed by the court, we are in
respectful agreement with a recent pronouncement of this Court in
Yashodhan Singh v. State of U.P. reported in (2023) 9 SCC 108
wherein it has been held that Section 319 does not contemplate that
a summoned person must be given an opportunity of being heard
before being added as an accused to face the trial. The relevant
observations from the said decision are reproduced hereinbelow:
“23. From the aforesaid observations of the Constitution
Bench of this Court in Hardeep Singh [Hardeep Singh v.
State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC
(Cri) 86] , it is noted that an inquiry is contemplated as
against a person who has been discharged prior to the
commencement of the trial in terms of Section 227 CrPC
as extracted above but on an inquiry, if it appears that there
is evidence against such a discharged person, then power
under Section 319 CrPC can be exercised against such
a discharged person. This clearly would mean that when
[2025] 3 S.C.R. 707

Jamin & Anr. v. State of Uttar Pradesh & Anr.

a person who is not discharged but is to be summoned
as per Section 319 CrPC on the basis of satisfaction
derived by the court on the evidence on record, no inquiry
or hearing is contemplated. This would clearly indicate
that principle of natural justice and an opportunity of
hearing a person summoned under 319 CrPC are not at
all contemplated. Such a right of inquiry would accrue
only to a person who is already discharged in the very
same proceeding prior to the commencement of the
trial. This is different from holding that a person who
has been summoned as per Section 319 CrPC has a
right of being heard in accordance with the principles
of natural justice before being added as an accused
to be tried along with other accused.
--xxx--
35. This Court in the subsequent paragraphs of Jogendra
Yadav [Jogendra Yadav v. State of Bihar, (2015) 9 SCC
244 : (2015) 3 SCC (Cri) 756] has also not stated that if a
person is to be summoned under Section 319 CrPC to be
added as an accused, then an opportunity must be given
to such a person and only after hearing him, he could
be added as an accused in the trial. We do not find that
the ratio of Jogendra Yadav [Jogendra Yadav v. State of
Bihar, (2015) 9 SCC 244 : (2015) 3 SCC (Cri) 756] turns
on the said aspect.
36. However, it is contented by the learned Senior Counsel
Shri Nagamuthu that what has been observed in para 9
of Jogendra Yadav [Jogendra Yadav v. State of Bihar,
(2015) 9 SCC 244 : (2015) 3 SCC (Cri) 756] will make it
a necessary mandate or a rule that a person who is to be
summoned under Section 319 CrPC to be added as an
accused will necessarily be heard before being so added.
Para 9 cannot be considered to be the ratio of Jogendra
Yadav [Jogendra Yadav v. State of Bihar, (2015) 9 SCC
244 : (2015) 3 SCC (Cri) 756] . Further, the context in
which the observations are made in the paragraph must
relate to the facts of the said case where an opportunity
was in fact provided to the persons summoned therein.
708 [2025] 3 S.C.R.

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37. Similarly, in Ram Janam Yadav [Ram Janam Yadav v.
State of U.P., (2023) 9 SCC 130] , on facts, it was noticed
that the person summoned was, in fact, provided an
opportunity of hearing.
38. Merely because in certain proceedings the persons
summoned had been provided an opportunity of being
heard cannot be the same thing as stating that it is a
mandatory requirement or a precondition that at the
time of summoning a person under Section 319 CrPC,
he should be given an opportunity of being heard.
That is not the mandate of law inasmuch as Section
319 clearly uses the expression “to proceed” which
means to proceed with the trial and not to jeopardise
the trial at the instance of the person(s) summoned by
conducting a mini trial or a trial within a trial thereby
derailing the main trial of the case and particularly
against the accused who are already facing trial and
who may be in custody.
39. A person who is summoned in exercise of the power
under Section 319 CrPC cannot hijack the trial so to say
and deviate from its focus and take it to a tangent in order
to bolster his own case in a bid to escape trial. All that is
contemplated when a person is summoned to appear is to
ascertain that he is the very person who was summoned
and if any summoned person fails to appear on the given
date. On the appearance of the summoned person, no
procedure of an inquiry or opportunity of being heard is
envisaged before been added as an accused to the list
of accused already facing trial unless such a summoned
person had already been discharged, in which event,
an inquiry is contemplated as discussed above.
40. Thus, the contention that a summoned person
must be given an opportunity of being heard before
being added as an accused to face the trial is clearly
not contemplated under Section 319 CrPC. It is also
observed by this Court in Hardeep Singh [Hardeep Singh v.
State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86]
that such a summoned person can assail a summoning
order before a superior Court and will also have the right
[2025] 3 S.C.R. 709

Jamin & Anr. v. State of Uttar Pradesh & Anr.

of cross-examining the witnesses as well as can let in his
defence evidence, if any.”
(Emphasis supplied)

110. However, in the facts of the present case, the application under
Section 319 was rejected by the Trial Court but the revision against
such rejection was entertained by the High Court without allegedly
putting the proposed accused to notice. Upon a careful perusal of
the decision in Yashodhan Singh (supra), we are of the view that
the right of hearing is not available to the proposed accused only
in the first instance, that is only at the stage when the application is
being heard for the first time.
111. However, after the rejection of an application under Section 319,
a right enures in favour of the proposed accused. Thereafter, if in
exercise of revisional jurisdiction, the High Court is to pass an order
which is prejudicial to the benefit which has enured in favour of the
proposed accused, then the High Court is required to provide an
opportunity of hearing to the proposed accused. This is also the
mandate as contained in sub-section (2) of Section 401 of the CrPC.
The said provision is reproduced hereinbelow:
“401. High Court’s powers of revision.
(1) In the case of any proceeding the record of which
has been called for by itself or which otherwise comes
to its knowledge, the High Court may, in its discretion,
exercise any of the powers conferred on a Court of
Appeal by sections 386, 389, 390 and 391 or on a
Court of Session by section 307, and, when the Judges
composing the Court of Revision are equally divided in
opinion, the case shall be disposed of in the manner
provided by section 392.
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has
had an opportunity of being heard either personally
or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise
a High Court to convert a finding of acquittal into one
conviction.
710 [2025] 3 S.C.R.

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(4) Where under this Code an appeal lies and no appeal
is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.
(5) Where under this Code an appeal lies but an application
for revision has been made to the High Court by any person
and the High Court is satisfied that such application was
made under the erroneous belief that no appeal lies thereto
and that it is necessary in the interests of Justice so to do,
the High Court may treat the application for revision as
a petition of appeal and deal with the same accordingly.”
(Emphasis supplied)

112. The aforesaid principle was also recognised by this Court in
Manharbhai Muljibhai Kakadia (supra). The relevant portion of the
said decision is reproduced below:
“48. In a case where the complaint has been dismissed
by the Magistrate under Section 203 of the Code either
at the stage of Section 200 itself or on completion of
inquiry by the Magistrate under Section 202 or on receipt
of the report from the police or from any person to whom
the direction was issued by the Magistrate to investigate
into the allegations in the complaint, the effect of such
dismissal is termination of complaint proceedings. On a
plain reading of sub-section (2) of Section 401, it cannot
be said that the person against whom the allegations of
having committed the offence have been made in the
complaint and the complaint has been dismissed by the
Magistrate under Section 203, has no right to be heard
because no process has been issued. The dismissal
of complaint by the Magistrate under Section 203—
although it is at preliminary stage—nevertheless
results in termination of proceedings in a complaint
against the persons who are alleged to have committed
the crime. Once a challenge is laid to such order at
the instance of the complainant in a revision petition
before the High Court or the Sessions Judge, by virtue
of Section 401(2) of the Code, the suspects get the
[2025] 3 S.C.R. 711

Jamin & Anr. v. State of Uttar Pradesh & Anr.

right of hearing before the Revisional Court although
such order was passed without their participation. The
right given to “accused” or “the other person” under
Section 401(2) of being heard before the Revisional
Court to defend an order which operates in his favour
should not be confused with the proceedings before
a Magistrate under Sections 200, 202, 203 and 204.
In the revision petition before the High Court or the
Sessions Judge at the instance of the complainant
challenging the order of dismissal of complaint, one
of the things that could happen is reversal of the order
of the Magistrate and revival of the complaint. It is
in this view of the matter that the accused or other
person cannot be deprived of hearing on the face of
the express provision contained in Section 401(2) of
the Code. The stage is not important whether it is
pre-process stage or post process stage.”
(Emphasis supplied)

113. In view of the principles explained in Manharbhai Muljibhai
Kakadia (supra), the right of hearing is available to the proposed
accused at the stage of revision as the High Court by setting aside
the order rejecting the application under Section 319 may revive
the proceedings against the proposed accused under Section 319.
Providing the proposed accused with a mandatory right of hearing
allows him to defend himself against a prejudicial order that may be
passed in the course of the hearing of the revision petition.
114. However, a perusal of the order dated 14.09.2021 passed in Revision
Petition No. 400/2010 clearly indicates that the appellants were
respondent nos. 2 and 4, respectively, before the High Court. Hence,
we do not find any merit in the submission of the appellants that the
order rejecting the 2nd application under Section 319 of the CrPC
was set aside by the High Court without providing any opportunity
of hearing to them.

F. CONCLUSION
115. We summarise our findings on the issues framed for consideration
as follows:
712 [2025] 3 S.C.R.

Supreme Court Reports

a. The High Court in exercise of its revisional jurisdiction was
justified in setting aside the order passed by the Trial Court
rejecting the second application preferred by respondent no. 2
under Section 319 of the CrPC as the same was found to have
been passed contrary to the settled position of law, suffering from
a patent illegality, thus, leading to serious miscarriage of justice.
b. Once a superior court deems fit to interfere with an order
passed by a subordinate court, then any rectifications to such
order passed in exercise of revisional powers under Section
401 read with Section 397 of the CrPC must be treated on
the same footing as rectifications made by an appellate court
and as a result would relate back to the time the original order
was passed.
c. By virtue of relating back of the order passed by the High Court
in a revision petition, the summoning order passed by the Trial
Court in compliance with the order of the High Court would also
relate back to the initial order rejecting the second application
under Section 319, and therefore could be said to have been
passed before the conclusion of the trial.
d. Unlike cases where an application under Section 319 is being
decided in the first instance by the Trial Court, the conclusion
of trial will have no bearing on the adjudication of an application
under Section 319 in terms of the directions of the High Court
passed in exercise of revisional jurisdiction.
e. The legal effect of the order passed by the High Court relating
back to the original order of the Trial Court is that the Trial
Court would not be rendered functus officio for the purpose of
considering the application under Section 319 after the conclusion
of the trial. We say so because the Trial Court, in considering the
application under Section 319 after the conclusion of the trial,
merely gave effect to a revisional order directing it to consider
the application afresh which it had originally rejected.
f. The summoning order dated 21.02.2024 was passed by the
Trial Court in pursuance of the directions issued by the High
Court vide the revisional order dated 14.09.2021. Therefore,
the same should be construed as an extension of the revisional
order passed by the High Court. The combined effect of the
revisional order passed by the High Court and the summoning
[2025] 3 S.C.R. 713

Jamin & Anr. v. State of Uttar Pradesh & Anr.

order passed by the Trial Court dated 21.02.2024 would be
that the order of the Trial Court dated 19.07.2010 rejecting the
second Section 319 application stood replaced and substituted
by the summoning order dated 21.02.2024. Thus, although the
summoning order in the present case came to be passed on
21.02.2024, that is, after the conclusion of the trial, yet, it would
be deemed to have been passed on 19.07.2010 by virtue of
the law expounded by this Court in Maru Ram (supra) and
Krishnaji Dattatreya Bapat (supra).
g. Section 319 does not contemplate that a summoned person
must be given an opportunity of being heard before being
added as an accused to face the trial. A right of hearing would
accrue only to a person who is already discharged in the very
same proceeding prior to the commencement of the trial. This is
different from holding that a person who has been summoned as
per Section 319 CrPC has a right of being heard in accordance
with the principles of natural justice before being added as an
accused to be tried along with the other accused. However,
after the rejection of an application under Section 319, a right
enures in favour of the proposed accused. Thereafter, if in
exercise of revisional jurisdiction, the High Court is to pass
an order which is prejudicial to the benefit which had already
enured in favour of the proposed accused, then the High Court
is obligated in law to provide an opportunity of hearing to the
proposed accused. This is also the mandate as contained in
sub-section (2) of Section 401 of the CrPC.
116. For all the foregoing reasons, the appeal fails and is hereby dismissed.
117. The Trial Court is directed to take necessary steps in furtherance of
the summoning order dated 21.02.2024 to ensure that the appellants
are produced before the court to face the trial.
118. Pending application(s), if any, shall stand disposed of.

Result of the case: Appeal dismissed.

†
Headnotes prepared by: Ankit Gyan