[Cites 40, Cited by 0]
Gujarat High Court
Ashokbhai Kevalram Thakkar vs State Of Gujarat on 1 May, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 612 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
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ASHOKBHAI KEVALRAM THAKKAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DHARMESH DEVNANI for MS. VISHWA M SHAH(15460) for the Applicant(s)
No. 1
MR JAL UNWALLA LD. SENIOR ADVOCATE with DHRUV TOLIYA(9249), MS
TEJAL VASHI (2704), NIMIT SHUKLA (8338) & ADIT PANCHOLI (14657) for the
Respondent(s) No. 2
MR AMIT S SHUKLA(13499) for the Respondent(s) No. 2
MR KM ANTANI ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No.
1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 01/05/2026
ORAL JUDGMENT
1. RULE. Learned Additional Public Prosecutor Mr. K.M.
Antani waives service of notice of rule on behalf of the
respondent no. 1 - State and learned advocate Mr. Dhruv Toliya
waives service of notice of rule on behalf of the respondent no.
2. With the consent of the parties, the matter is taken up for
hearing today itself.
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2.1. The present Revision Application preferred under Section
397 read with Section 401 of the Code of Criminal Procedure
(for short "Code") assails the correctness and validity of the
order dated 01.03.2024 passed by the learned 6 th Additional
District Sessions Judge, Rajkot (hereinafter referred to as the
"Sessions Court") in Sessions Case No. 104 of 2016 below
Exhibit-386 wherein the application preferred by the revisionist
applicant - Complainant to arraign the respondent no. 2
(hereinafter referred to as the "respondent" ) as one accused in
the Sessions Case No. 104 of 2016 came to be rejected.
3. The facts leading to filing of the present revision
application is that the present revisionist - applicant is the
original complainant who lodged First Information Report being
C.R. No. I-66 of 2010 with Rajkot 'B' Division Police Station,
Rajkot for the offences punishable under Sections 302, 365, 342,
120B of the Indian Penal Code (for short "IPC") which inter alia
alleged that one Samir Ishwarbhai Gandhi who was working as
Manager with with Rajmoti Industries came over to the
residence of the sister of the complainant and forcibly took his
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brother-in-law - Dinesh Madhukant Daxini from their residence.
This incident took place in presence of his sister and another
witness on 28.02.2016.
3.1. It was further alleged by the revisionist - applicant that
subsequent to abduction of his brother-in-law, he was brought
to the premises of Rajmoti Industries, Rajkot at around 04:00
pm on 28.02.2016 and was kept in the room in the building
owned by Rajmoti Industries. It was further alleged that on
instructions of the co-accused Samir Madhukant Shah, accused -
Samir Gandhi gave fatal injuries to the victim - Dinesh
Madhukant Daxini, which resulted into his death. In view of the
information given by the present revisionist - applicant, First
Information Report being C.R. No. I-66 of 2010 came to be
registered with the Rajkot 'B' Division Police Station, Rajkot.
Subsequent to the filing of First Information Report, the
Investigating Officer conducted investigation and charge sheet
came to be filed. Subsequent to the filing of the charge sheet,
criminal case came to be numbered as Criminal Case no. 104 of
2016.
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3.2. During the course of trial, one of the accused Samir
Gandhi preferred an application to turn approver and the same
was granted by the Sessions court. Once the application of the
accused Samir Gandhi was granted, he gave his statement as an
approver and supported the case of the prosecution vide his
deposition below Exhibit-290. It is the case of the revisionist -
applicant that during the course of deposition, Samir Gandhi
has pointed out the very particular role of the respondent being
the one who instructed about the course of action that led to
death of the deceased Dinesh Daxini. It is alleged that Shyam
Madhukant Shah i.e. the present revisionist along with his
brother accused Samir Madhukant Shah had instructed Samir
Gandhi i.e. approver to assault the victim on account of alleged
dues to the company. Despite the role demonstrated by Samir
Gandhi, according to the revisionist applicant, the police
authorities had chosen not to arraign the respondent as an
accused in the case. It was in this context the present revisionist
application has filed application under Section 319 of the Code
below Exhibit-386 in Sessions Case No. 104 of 2016 to arraign
the respondent as accused. The Sessions Court vide impugned
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order dated 01.03.2024 was pleased to reject the application
preferred by the revisionist - applicant which has resulted into
filing of the present revision application.
3.3. Subsequent to the filing of the present revision
application, this Court vide order dated 13.09.2024 issued
notice and during the pendency of this application, the trial in
Sessions Case No. 104 of 2016 was concluded which resulted
into conviction against the accused - Samir Madhukant Shah.
All the persons who are convicted have preferred an appeal
which are pending before this Court.
4. Heard learned advocate Mr. Dharmesh Devnani assisted
by Ms. Vishwa M Shah appearing for the revisionist - applicant,
learned Additional Public Prosecutor Mr. K.M. Antani appearing
for the respondent no. 1 - State and learned Senior Advocate
Mr. Jal Unwalla assisted by learned advocate Mr. Dhruv Toliya
appearing for the respondent no. 2.
5. Learned advocate Mr. Dharmesh Devnani appearing for
the revisionist - applicant has submitted that the applicant
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being original complainant has rightly preferred an application
under Section 319 of the Code after the deposition of Samir
Gandhi and the deposition clearly buttresses the claim of the
active role played by the respondent herein in the whole
incident that led to the death of the deceased Dinesh Daxini. It
was sough to be submitted that the offence is clearly made out
against the respondent in the deposition of Samir Gandhi and
therefore, the Sessions Court has erred in rejecting the
application below Exhibit-386. Further emphasis was laid that it
would be inconsequential if there is an absence of statement of
any other person as once the deposition of the approver was
recorded and the role of respondent was demonstrated then
there was definitely a cause under Section 319 of the Code and
the respondent has to face trial.
5.1. It was further submitted by learned advocate Mr.
Dharmesh Devnani, placing reliance on the provisions of Section
319 of the Code that during the course any inquiry or the trial, if
it appears from any evidence that the person not being the
accused has committed an offence then such person has to be
treated together with the accused. In view of the categorical
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provision of Section 319 of the Code as well as categorical
evidence of approver i.e. deposition of Samir Gandhi, the
learned Sessions Court has erred in rejecting the application
preferred by the present revisionist applicant. It was further
pointed out that the Sessions Court has erred in observing that
the complainant has not followed the arrest of the proposed
respondent. If during the course of trial if any role is attributed
to the respondent on additional evidence than he has to face the
trial.
5.2. It was further submitted by learned advocate Mr.
Dharmesh Devnani that the Sessions Court has erred in
observing that proposed accused has not been named in the
Police Statement by approver Samir Gandhi. If one peruses the
statement under Section 161 of the Code of approver Samir
Gandhi recorded on 02.03.2016, it clearly attributes that role of
both the owners and therefore, the role of Samirbhai Shah as
well as Shyambhai Madhukant Shah i.e. present respondent is
clearly demonstrated. Therefore, when there is a clear
deposition against the proposed accused and the role is
admitted and not rebutted then the learned Sessions Court
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ought not to have rejected the application of the revisionist -
applicant and ought to have proceeded to allow the application
under Section 319 of the Code to arraign the respondent as
proposed accused. According to learned advocate Mr. Devnani
in view of the evidence demonstrated herein-above the
impugned order is improper and warrants interference of this
Court.
6. Per contra, learned Senior Advocate Mr. Jal Unwalla
assisted by learned advocate Mr. Dhruv Toliya appearing for the
respondent no. 2 has raised a technical objection before
venturing into merits of the matter. It was submitted that this
Court in revisional power cannot decide on merits the
application under Section 319 of the Code as trial has
concluded. It was submitted that the order under Section 319 of
the Code has to be necessarily passed prior to the order of
sentence is passed. In the instant case, during the pendency of
this revision application, the trial is concluded and the Sessions
Court has convicted the co-accused. Therefore, once the trial is
concluded, the Sessions Court becomes functus officio on
conclusion of the trial and the Sessions Court cannot pass the
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order of summoning the accused. Once Sessions Court become
functus officio, even this Court would becomes functus officio
and would not have power to direct Sessions Court to issue
summons under Section 319 of the Code. Therefore, according
to Mr. Unwalla, on recording of the evidence and conclusion of
the trial, this Court does not have power to revive the
application preferred under Section 319 of the Code. Upon
conclusion of the trial, the trial court becomes functus officio
unless specific trial proceeding has been initiated by the higher
forum. In the instant case, there was no stay during the
pendency of the present application. Therefore, the Sessions
Court had become functus officio on 01.03.2024 i.e. the date on
which it pronounced the order of conviction and the sentence
against original accused came to be passed. In view of the
same, application under Section 319 of the Code would be
without jurisdiction and it would percolate to be second
application as no proceedings are pending before the Sessions
Court.
6.1. Mr. Unwalla has further emphasized that no order
summoning the respondent can be passed by the trial court
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especially because this Court in its revisional jurisdiction has
not passed any order staying the proceedings before the
Sessions Court or restraining the Sessions Court from
pronouncing the final judgment against the other accused
persons during the pendency of the revision application. To
support his argument reliance was placed on the decision of the
Hon'ble Apex Court in case of Sukhpal Singh Khaira v. State
of Punjab reported in (2023) 1 SCC 289. Placing reliance on
the said decision of the Hon'ble Apex Court it was sought to be
submitted that the order passed by this Court in exercise of this
revisional jurisdiction under Section 397 and Section 319 of the
Code would not relate back the order to the date of the order by
the trial court rejecting the application under Section 319 of the
Code. Therefore, there cannot be any meaningful impact to any
order passed by the court for fresh consideration of the
application under Section 319 of the Code subsequent to
culmination of the sessions case. It is further submitted that in
the present case that the application under Section 319 of the
Code is concerned, the principle of merger will apply. The
application under Section 319 of the Code was preferred during
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the pendency of the trial which has now concluded. Therefore,
the application under Section 319 of the Code gets merged and
disposed of on conclusion of trial. Once the application has
merged, the only way to the revisionist - applicant is to prefer a
fresh application. It was further submitted that even if fresh
application cannot be preferred due to conclusion of the trial,
the revisionist cannot be said to have been rendered remediless
as he can always prefer an acquittal appeal. To support his
submissions reliance was placed upon the decision of the
Hon'ble Apex Court in case of Asim Akhtar v. West Bengal -
reported in 2024 INSC 794.
6.2. On a query being raised to learned Senior Advocate Mr.
Unwalla that the argument canvassed by him are contrary to the
recent decision of the Hon'ble Apex Court in case of Jamin &
Anr. v. State of Uttar Pradesh reported in 2025 SCC Online
SC 506, it was submitted by learned Senior Advocate Mr.
Unwalla that the said decision in case of Jamin (supra) is per
incuriam. Learned Senior Advocate Mr. Jal Unwalla has
referred to the decision of the Hon'ble Apex Court in case of
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Sukhpal Singh Khaira (supra). Relying on paragraph 39 of
the said decision, it was pointed out that Hon'ble Apex Court
has observed that summoning order has to precede the
conclusion of the trial. Therefore, on conclusion of the trial,
there cannot be a summon to the proposed accused. This ratio
laid down by the Hon'ble Apex Court in case of Sukhpal Singh
Khaira (supra) was also followed in the subsequent order of
Hon'ble Apex Court in case of Deen Mohammad v. State of
Haryana & Ors.,. rendered in Special Leave to Appeal
(Criminal) No. 3058 of 2018 dated 19.05.2023. Relying on the
decision of Sukhpal Singh Khaira (supra), the Hon'ble Apex
Court in case of Deen Mohammad (supra) has observed that
nothing further can be done insofar as the application under
Section 319 of the Code is concerned as the trial is already
concluded. It was further submitted by learned Senior Advocate
Mr. Jal Unwalla that the subsequent decision of Hon'ble Apex
Court in case of Jamin (supra) has not taken into consideration
the observation made by the order passed by the equal strength
Bench of the Hon'ble Apex Court in case of Deen Mohammad
(supra) and, therefore, the decision in the case of Jamin
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(supra) is per incuriam.
6.3. It was submitted by learned Senior Advocate Mr. Unwalla
that a situation may arise before the High Court where two or
more mutually irreconcilable decisions of the Hon'ble Apex
Court are cited at the Bar. In such a situation, inviolable
recourse is to apply in earliest view, as the succeeding would
fall in the category of per incuriam. Relying on the decision of
the Hon'ble Apex Court in the case of Sundeep Kumar Bafna
v. State of Maharashstra & Anr. reported (2014) 16 SCC
623, more particularly paragraph 19, it was submitted that the
decision in case of Jamin (supra) would fall in the category of
per incuriam.
6.4. On a query being raised to learned Senior Advocate Mr.
Unwalla that the submission rendered by him on the issue of
two inconsistent decisions, the rationale therefore would be
inconsistent to the observation made by the Hon'ble Apex Court
in the case of M/s. A.P. Electrical Equipment Corporation v.
The Tahsildar & Ors., rendered in Civil Appeal Nos. 4526-
4527 of 2024. It was pointed out that the Hon'ble Apex Court
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has categorically observed that when two decisions of Hon'ble
Apex Court appear to be inconsistent with each other, the High
Court are not to follow one and overlook the other, but should
try to reconcile and respect them both. To this query, learned
Senior Advocate Mr. Unwalla has submitted that even the
decision in case of A.P. Electrical Equipment Corporation
(supra) is per incuriam. It was submitted by learned Senior
Advocate Mr. Unwalla that the Hon'ble Apex Court in the case
of Union Territory of Ladakh v. Jammu & Kashmir National
Conference & Anr., rendered in Civil Appeal No. 5707 of 2023
= (2023 LiveLaw (SC) 749 has observed that if there are two
conflicting decisions by the Benches of equal strength, the
earlier decision has to be followed. The decision of Hon'ble Apex
Court in case of Union Territory of Ladakh (supra) has
adopted the observations made by the 5 Judge Bench of the
Hon'ble Apex Court in the case of National Insurance
Company Limited v. Pranay Sethi reported in (2017 16 SCC
680. It was therefore submitted by learned Senior Advocate Mr.
Unwalla that the decision in the case of A.P. Electrical
Equipment Corporation (supra) does not take into
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consideration the earlier decision in case of Union Territory of
Ladakh (supra) and, therefore, the decision in case of A.P.
Electrical Equipment Corporation (supra) would be per
incuriam. In wake of such fact, learned Senior Advocate Mr.
Unwalla has submitted that the ratio laid down by the Hon'ble
Apex Court in the aforesaid decision in case of A.P. Electrical
Equipment Corporation (supra) would not apply to the facts
of the present case and it would be permissible for the
respondent to contend that the decision in the case of Jamin
(supra) is per incuriam.
7. Apart from the serious technical objection taken by
learned Senior Advocate Mr. Unwalla, it was contended that the
revisionist - applicant does not have case even on aspects of
merits of the matter. Emphasis was made that the learned
Session Court has rightly observed that the statement of the
approver cannot be the sole evidence to arraign the present
respondent as proposed accused. The evidence should not be
acted unless corroborated in the same material or if the
evidence is uncorroborated the guilt of the accused may not be
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established only on the approver's statement. To support his
submissions, learned Senior Advocate Mr. Unwalla has placed
on the following decisions :
(i) In the case of Mrinal Das & Ors. v. State of Tripura reported in
(2011) 9 SCC 479.
(ii) In the case of Ravinder Singh v. State of Haryana reported in
(1975) 3 SCC 742.
(iii) In the case of Periyasami & Ors., v. S. Nallasamy reported in
(2019) 4 SCC 342.
(iv) In the case of Sarabjit Singh v. State of Punjab reported in
2009 (0) AIJEL (SC) 43590.
8. On the basis of such submissions, learned Senior Advocate
Mr. Unwalla has prayed that the present revision application
deserves to be dismissed since the same is not maintainable on
the technical ground as well as on the merits of the case.
9. Analysis & Reasons :
9.1. Having heard the learned advocates appearing for the
respective parties and having perused the material on record,
the first issue for consideration is with regard to the stage at
which power under Section 319 of the Code can be exercised.
The first issue for discussion and deliberation is with regards to
serious technical objection raised by learned Senior Advocate
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Mr. Unwalla urging to refrain to decide the application on
merits owing to conclusion of trial and thereby the Sessions
Court having become functus officio to issue summons to any
propose accused. The fact is not disputed that the application
under Section 319 of the Code was made by the complainant
during the course of trial and upon statement of approver. Upon
dismissal of the application and during the pendency of the
present revision application, trial qua other co-accused
concluded and resulted into conviction of the co-accused. In the
case of Sukhpal Singh Khaira (supra) the Hon'ble Apex
Court has framed the issue as to whether trial court has the
power under Section 319 of the Code for summoning the
additional accused when the trial with respect to the other co-
accused has ended and the judgment of the conviction is
rendered. Both aspects had concluded on the same date and
before pronouncement of summoning order under Section 319
of the Code. The Hon'ble Apex Court has also raised another
question in the case of Sukhpal Singh Khaira (supra) that
whether the trial Court has power under Section 319 of the
Code for summoning the additional accused when the trial in
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respect of certain other absconding accused is going on/pending
having been bifurcated from the main trial. However, the facts
of this case would be relevant only with regard to the
completion of the trial i.e. on aspect of first instance. Answering
this question, the Hon'ble Apex Court in case of Sukhpal Singh
Khaira (supra) observed that when there is judgment of
conviction, power under Section 319 of the Code is to be
invoked and exercised before pronouncement of the order of
sentence and in case of acquittal, the power should be exercised
before the order of the acquittal is pronounced. The Hon'ble
Apex Court in case of Sukhpal Singh Khaira (supra) has
observed thus :-
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
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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.
33. In that view of the matter, if the court finds from the
evidence recorded in the process of trial that any other
person is involved, such power to summon the
accused under Section 319 CrPC can be exercised
by passing an order to that effect before the
sentence is imposed and the judgment is complete
in all respects bringing the trial to a conclusion.
While arriving at such conclusion what is also to be kept
in view is the requirement of sub-section (4) to Section
319 CrPC. From the said provision it is clear that if the
learned Sessions Judge exercises the power to summon
the additional accused, the proceedings in respect of
such person shall be commenced afresh and the
witnesses will have to be re-examined in the presence of
the additional accused. In a case where the learned
Sessions Judge exercises the power under Section 319 a
CrPC after recording the evidence of the witnesses or
after pronouncing the judgment of conviction but before
sentence being imposed, the very same evidence which
is available on record cannot be used against the newly
added accused in view of Section 273 CrPC. As against
the accused who has been summoned subsequently a
fresh trial is to be held. However while considering the
application under Section 319 CrPC, if the decision by
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the learned Sessions Judge is to summon the additional
accused before passing the judgment of conviction or
passing an order on sentence, the conclusion of the trial
by pronouncing the judgment is required to be withheld
and the application under Section 319 CrPC is required
to be disposed of and only then the conclusion of the
judgment, either to convict the other accused who were
before the Court and to sentence them can be
proceeded with. This is so since the power under
Section 319 CrPC can be exercised only before the
conclusion of the trial by passing the judgment of
conviction and sentence.
39. (I) 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?
The power under Section 319 CrPC is to be invoked
and exercised before the pronouncement of the
order of sentence where there is a judgment of
conviction of the accused. In the case of acquittal, the
power should be exercised before the order of acquittal
is pronounced. Hence, the summoning order has to
precede the conclusion of trial by imposition of sentence
in the case of conviction. If the order is passed on the
same day. it will have to be examined on the facts and
circumstances of each case and if such summoning
order is passed either after the order of acquittal or
imposing sentence in the case of conviction, the same
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will not be sustainable.
40. (II) 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?
The trial court has the power to summon additional
accused when the trial is proceeded in respect of the
absconding accused after securing his presence, subject
to the evidence recorded in the split-up (bifurcated) trial
pointing to the involvement of the accused sought to be
summoned. But 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.
41. (III) What are the guidelines that the competent
court must follow while exercising power under Section
319 CrPC?
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
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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 g 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.
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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 (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-b 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 C 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.
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(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."
9.2. Therefore, the Hon'ble Apex Court in the case of Sukhpal
Singh Khaira (supra) has observed that power under Section
319 of the Code are to be invoked and exercised before
pronouncement of order of sentence when there is judgment of
conviction. The situation with regard to the conclusion of trial
during pendency of revision application under Section 397 of
the Code was not a point of deliberation in case of Sukhpal
Singh Khaira (supra). In view of this situation, in the case of
Jamin (supra), Hon'ble Apex Court has observed that
guidelines given in case of Sukhpal Singh Khaira (supra) was
not covering peculiar facts of certain cases. It has to be noted
that the facts that are subject matter of consideration in case of
Jamin (supra) are also the same facts which are subject matter
of consideration in the present revision application and there
cannot be further debate on that. The point discussed and
deliberated in case of Sukhpal Singh Khaira (supra) was
that power under Section 319 of the Code must be exercised by
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the Court against the proposed accused before conclusion of the
trial. However, the situation in case of Jamin (supra) was that
the trial court had rejected the application filed under Section
319 of the Code and the same was set aside by the High Court.
The point for consideration in case of Jamin (supra) was the
legal effect of the order passed by the High Court in setting side
the rejection order of the trial court under Section 319 of the
Code despite the conclusion of trial during pendency of revision
petition. Therefore, the Apex Court observed that whether the
High Court was right in exercise of its revisional jurisdiction for
the purpose of setting aside the order of trial court rejecting the
application preferred by the respondent under Section 319 of
the Code.
10. A similar situation arises in the facts of present case which
is akin to the case of Jamin (supra). In such facts a question
was raised that 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 Code. On this issue the Hon'ble Apex Court in
the case of Jamin (supra) has observed that if the revisional
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order of High Court would not relate back than the very object
of Section 319 of the Code will be negated and would be
rendered incapable despite the fact that the High Court
rectified the patent mistake committed by the trial court. It was
further observed that 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 would appear that
the there are some other persons who might be involved in the
offences, yet those persons will go scot-free solely because trial
court erred in exercising powers under Section 319 of the Code
which it ought to have exercised. Therefore, it was observed by
the Hon'ble Apex Court that relating back the High Court's
revisional order to the date of the trial court's order strikes a
balance between the interests of newly summoned persons and
the general public/victims without causing prejudice to either.
This issue discussed in the case of Jamin (supra) is reflected as
below :-
"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 within a period of three months. The
question that now arises is whether any meaningful effect
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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
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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 fulfill its
avowed objective of ensuring that no person who is guilty of an
offence goes unpunished. The Court observed thus:
"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.)
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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 the accused who
was before the court when order under Section
319(1) was passed, the order would become
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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:
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"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
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
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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 sense.
We do not, therefore, consider that the principle of
merger of orders of inferior courts in those of
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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
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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 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
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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.
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
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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
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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 fulfills 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 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.
11. In the facts of the present case when the Sessions Court
has rejected the application under Section 319 of the Code and
the trial has concluded during the pendency of the present
revision application, powers of this Court under Section 397 of
the Code would not be rendered nugatory on the basis of the
observations made by the Hon'ble Apex Court in case of Jamin
(supra). Therefore, the submissions canvassed by learned
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Senior Advocate Mr. Unwalla that once the application under
Section 319 of the Code is rejected and once the trial is
concluded, revisional power cannot be exercised by High Court
is contrary to the ratio laid down by the Hon'ble Apex Court in
case of Jamin (supra). Therefore the argument canvassed by
learned Senior Advocate Mr. Unwalla on technical ground of not
deciding the issue on merits cannot be accepted.
12. The second issue raised by learned Senior Advocate Mr.
Unwalla emphasis that decision rendered by the Hon'ble Apex
court in case of Jamin (supra) is per incuriam. This argument
of learned Senior Advocate Mr. Unwalla cannot be accepted. To
support of his argument reference is made by Mr. Unwalla to
the decision of the Hon'ble Apex Court in case of Deen
Mohammad (supra). One fact to be noted before countering
the argument of Mr. Unwalla is that the order passed by the
Apex Court in case of Deen Mohammad (supra) is in Special
Leave Petition (Criminal), whereas the order passed in case of
Jamin (supra) has dealt the decision in criminal appeal.
Nonetheless, the rationale of the case has to be deduced from
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the facts involved in the case and the particular provision of law
applied or interpreted or issue discerned in the context of the
question involved in the case. It would not be open for this
Court to come to conclusion or make an observation that two
judgment of Hon'ble Apex Court are per incuriam. It would not
be open or not permissible for this Court to fill in shoes of
Hon'ble Apex Court and decide as to which of its decision is per
incuriam. If at all the applicant is desirous to have adjudication
on this issue the proper recourse would be to approach Hon'ble
Apex Court. Therefore, this Court would not be able to accept
the submissions made by learned Senior Advocate Mr. Unwalla
that the decision in the case of Jamin (supra) and in case of
A.P. Electrical Equipment Corporation (supra) are per
incuriam and the ratio in Jamin (supra) would not be
applicable. On the basis of observation made herein-above, both
the technical objection taken by learned Senior Advocate Mr.
Unwalla are devoid of any merits and this Court would proceed
to decide the issue on merits and facts of the case.
13. On going through the merits of the matter, the fact is not
in dispute that the name of the proposed accused was not
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arraigned either in the First Information Report or the charge
sheet. During the deposition of the approver statement, the
name of the proposed accused i.e. the present respondent came
into picture. Pursuant to the deposition of the approver i.e.
Samir Gandhi, the present revisionist - applicant preferred an
application under Section 319 of the Code to summon the
respondent herein to face trial. In this background, the legality
of the impugned order under Section 319 of the Code needs to
be examined. The provision of Section 319 of the Code reads as
under :-
"319. Power to proceed against other persons appearing to be
guilty of offence
(1) Where, in the course of any inquiry into, or trial of, an
offence, it appears from the evidence that any person not
being the accused has committed any offence for which
such person could be tried together with the accused, the
Court may proceed against such person for the offence
which he appears to have committed."
14. Thus, the power under Section 319 of the Code is
discretionary and an extraordinary power. It has to be exercised
sparingly and only in those cases where the circumstances of
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the case so warrant. Only where strong and cogent evidence
occurs against a person from the evidence led before the court
then such power are to be exercised which should not be in a
casual or cavalier manner. For exercise of such power
requirement is of strong evidence than mere probability. The
test to be applied to issue a summon under Section 319 of the
Code is that the evidence has to be strong to an extent that if it
goes unrebutted, it would lead to conviction. In the absence of
such satisfaction, the court should refrain from exercising
power under Section 319 of the Code. In the instant case, the
only evidence that has been relied upon by the revisionist
applicant before the trial court or before this Court is only the
deposition of the approver - Samir Gandhi. Even in the
statement of the approver - Samir Gandhi under Section 161 of
the Code, he has not named the present respondent. Learned
advocate Mr. Devnani has not relied upon on any evidence apart
from the statement of the approver. He has also not produced
any judicial pronouncement which confirms that merely the
approver statement can lead to conviction. In such factual
aspect, it would not be possible to overturn the observations
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that are made in the impugned order. The principles that are
laid down by the Constitutional Bench of Hon'ble Apex Court in
the case of Hardeep Singh v. State of Punjab reported in
(2014) 3 SCC 92, for courts to follow while exercising power
under Section 319 of the code are as under :
"94. In Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC
1094, a four-Judge Bench of this Court was concerned with the
meaning of the word "appear". The Court held that the
appropriate meaning of the word "appears" is "seems". It
imports a lesser degree of probability than proof. In Ram Singh
v. Ram Niwas, (2009) 14 SCC 25 , a two-Judge Bench of this
Court was again required to examine the importance of the word
"appear" as appearing in the section. The Court held that for the
fulfillment of the condition that it appears to the court that a
person had committed an offence, the court must satisfy itself
about the existence of an exceptional circumstance enabling it to
exercise an extraordinary jurisdiction. What is, therefore,
necessary for the court is to arrive at a satisfaction that the
evidence adduced on behalf of the prosecution, if unrebutted,
may lead to conviction of the persons sought to be added as the
accused in the case.
95. At the time of taking cognizance, the court has to see
whether a prima facie case is made out to proceed against the
accused. Under Section 319 CrPC, though the test of prima facie
case is the same, the degree of satisfaction that is required is
much stricter...
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.
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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."
15. Therefore, on the basis of the facts of the present matter
as well as on the basis of guidelines given by Hon'ble Apex
Court in case of Hardeep Singh (supra) to exercise power
under Section 319 of the Code, no infirmity can be attached to
the impugned order passed by the Sessions court. Over and
above that the revisional jurisdiction under Section 397 of the
Code is a limited jurisdiction exercisable if the court below has
committed a manifest illegality or the findings are perverse and
based on misreading of evidence resulting into miscarriage of
justice. The principles under for Section exercise 397 of the
Code revisional were jurisdiction highlighted in D.Stnbens Vs
Nosibolla [1951 SCR 284] as also in K.C. Reddy Vs State of
Andhra Pradesh [1963 SCR 412]. In State of Maharashtra
Vs Jag Mohan Sing Kuldip Sing Anand and others [(2004)
7 SCC 659], the Apex Court reiterated that the revisional
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power of the High Court under Sections 397 and 401, Cr.P.C.
cannot be exercised as a second appellate power and that the
High Court cannot, while exercising the revisonal power,
undertake in-depth and minute re-examination of entire
evidence. This Court has definitely gone through the records
and proceedings of the case. However, it has refrain to make
any observation as the Criminal Appeal of the convict is at large
pending before this Court. Nonetheless the fact is that the only
evidence demonstrated by the applicant against the proposed
accused is only the statement of the approver.
16. In view of the same, this Court does not find any evidence
relied upon by the revisionist applicant which can become
necessary for the Court to arrive at a satisfaction that the
evidence adduced on behalf of the prosecution, if unrebutted,
may lead to conviction of the person sought to be added as
accused in the case. In that view of the matter, this Court does
not find any infirmity in the order passed by the trial court. It is
however observed that technical objection taken by learned
Senior Advocate Mr. Unwalla, in the matter are not acceptable.
This Court is of the definite opinion on the basis of ratio laid
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down by Hon'ble Apex Court in case of Jamin (supra) that
High Court can exercise power under Section 397 of the Code to
decide the order passed by Sessions court in application
preferred under Section 319 of the Code despite the fact that
the trial has concluded during the pendency of revision
application. However, on merits and on facts of the present
matter, this Court does not find any infirmity with the order
passed by the trial court and therefore, in such a situation, the
present revision application being devoid of merits, is hereby
rejected.
17. Accordingly, the present Revision Application stands
rejected. Rule is discharged.
Registry is directed to send back the Records and
Proceedings forthwith.
(PRANAV TRIVEDI,J)
phalguni/
