Allahabad High Court
Sonu @ Shiv Kumar Bind vs State Of U.P. And 2 Others on 23 July, 2026
Author: Santosh Rai
Bench: Santosh Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:152675
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 6456 of 2024
Sonu @ Shiv Kumar Bind
.....Appellant(s)
Versus
State Of U.P. And 2 Others
.....Respondent(s)
Counsel for Appellant(s)
:
Amit Daga, Umesh Chandra Shukla
Counsel for Respondent(s)
:
G.A., Kripa Shankar Pandey
Court No. - 93
HON'BLE SANTOSH RAI, J.
1. Case called out. None appears on behalf of respondent nos.2 and 3.
2. Heard Sri Amit Daga, learned counsel for the appellant and learned A.G.A. for the State and perused the record.3.
3. This criminal appeal under Section 14 A (1) of S.C.& S.T. Act has been filed for quashing the summoning order dated 29.03.2024, passed by Special Judge (S.C.&S.T.), Act, Bhadohi at Gyanpur in Sessions Trial No. 238 of 2020, (State of U.P. Vs. Deepak Singh & Others) arising out of Case Crime No. 133 of 2020, under Sections 376-D, 506 I.P.C. and Section 3(2)(v) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station-Gopiganj, District-Bhadohi.
4. Tersely, as per the prosecution case, an F.I.R. has been lodged by the husband of the victim against four known and one unknown accused persons alleging that on 10.05.2020 at about 2:30 p.m., the informant’s wife had gone to a mango orchard near Gyanpur-Gopiganj Road for collecting wood, where the accused persons allegedly confined her within the orchard walls and committed gang rape. It is further alleged that the accused made a video of the incident and threatened her with dire consequences if she disclosed the same.
5. Learned counsel for the appellant submitted that FIR has been registered at the very belated stage at about 19 days after the incident. No plausible explanation has been furnished by the prosecution. In the first information report, four accused persons namely Sonu Bind son of Abhilakh Bind, Deepak, Achhelal alias Chumma, Madhav Yadav and one unknown person are named. During course of investigation, though no specific and distinct role has been clearly assigned to the accused appellant Sonu alias Shiv Kumar Bind, hence, charge-sheet has not been filed against him. He further submitted that though the name of father of the accused appellant is also quite different as per prosecution evidence. He further submitted that during course of trial proceeding, statements of P.W.1 the victim and P.W.2 her husband have been recorded. On the basis of application moved under Section 319 Cr.P.C., appellant was summoned in this case under Sections 376-D, 506 I.P.C. and Section 3(2)(v) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Trial court has not applied judicial discretion properly by passing the impugned order.
6. Learned AGA vehemently opposed the above submission and submitted that only confusion, which the appellant raised, is relativity in the name of Sonu Bind alias Shiv Kumar. In the first information report, Sonu Bind is named. Father of the accused appellant is Abhilakh Bind. There is no material contradiction in the statement of victim who has been examined before the trial court as P.W.1. She has clearly stated the specific and distinct role regarding committing rape in connivance with other accused persons. This matter relates gang rape. Thus, the appellant has been summoned under Section 319 Cr.P.C. on the basis of evidence recorded during the course of trial proceeding. There is no material illegality.
7. Admittedly, in this case, four accused persons are named along with one unknown person. In the F.I.R., accused no.1 is named as Sonu Bind s/o Abhilakh Bind. In the statement recorded under section 164 Cr.P.C., the victim stated before the concerned magistrate regarding committing rape by 4-5 persons. One of the accused was unknown. The accused persons are identified by her and stated their names in the statement before the court. Though investigating officer has exonerated the accused Sonu Bind son of Abhilakh, on the ground that he was not identified due to ‘incorrect address’. Thereafter, charges were framed and victim has been examined as P.W.1 and her husband as PW2 before the trial court. In the examination-in-chief and cross-examination, she categorically stated about the involvement of accused Sonu alias Shiv Kumar Bind. In the cross-examination, she also stated the same and a specific and distinct role has been assigned to the appellant. So far as summoning the accused appellant is concerned, the material substantive evidence appears to be available on the basis of statement of the victim, P.W.1 and P.W2.
8. Having bestowed anxious consideration to the rival submissions and having carefully examined the material available on record, this Court finds no illegality, perversity or jurisdictional error in the impugned order whereby the learned Special Judge has summoned the appellant Sonu @ Shiv Kumar Bind in exercise of powers under Section 319 CrPC. It is true that in her statements recorded under Sections 161 and 164 CrPC, the prosecutrix did not assign any specific role to the present appellant. However, the legal position is now well settled that the Court while exercising jurisdiction under Section 319 Cr.P.C. is not confined to the police papers or the statements recorded during investigation. The Court is empowered to act upon the evidence that emerges before it during the course of trial, if such evidence is strong and cogent and indicates the involvement of a person not facing trial. The object of Section 319 Cr.P.C. is to ensure that the real offender does not escape merely because the investigating agency omitted to array him as an accused.
9.The Constitution Bench of the Supreme Court in Hardeep Singh v. State of Punjab & Ors. (2014) 3 SCC 92, has held as under : “93.Section 319(1) CrPC empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court. The word “appear” means “clear to the comprehension”, or a phrase near to, if not synonymous with “proved”. It imparts a lesser degree of probability than proof. 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. A two-Judge Bench of this Court in Vikas v. State of Rajasthan [(2014) 3 SCC 321 : (2013) 11 Scale 23] , held that on the objective satisfaction of the court a person may be “arrested” or “summoned”, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. 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.
Thus, the expression “evidence” occurring in Section 319 CrPC means evidence adduced before the Court during trial and that the degree of satisfaction required is more than that necessary for framing of charge though short of proof beyond reasonable doubt.
10. The said principle has consistently been reiterated by the Hon’ble Supreme Court in Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC 289, wherein it has been held that the power under Section 319 CrPC is extraordinary and discretionary but, where the evidence recorded before the Court clearly discloses the involvement of a person, such power ought to be exercised to advance the cause of justice.
11. Paras 36 and 37 of Sukhpal Singh Khaira (supra) reads as under:- “36. In analysing the issue and making the above conclusion on all aspects, we are also persuaded by the view taken by this Court, among others, in Rajendra Singh v. State of U.P. [Rajendra Singh v. State of U.P., (2007) 7 SCC 378 : (2007) 3 SCC (Cri) 375] wherein it is concluded with regard to the object of Section 319CrPC as hereunder : (SCC p. 390, paras 20-21).
“20. The power under Section 319 of the Code is conferred on the court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred a power on the court to proceed against others not arrayed as accused in the circumstances set out by this section. It is a salutary power enabling the discharge of a court’s obligation to the society to bring to book all those guilty of a crime.
21. Exercise of power under Section 319 of the Code, in my view, is left to the court trying the offence based on the evidence that comes before it. The court must be satisfied of the condition precedent for the exercise of power under Section 319 of the Code. There is no reason to assume that a court trained in law would not exercise the power within the confines of the provision and decide whether it may proceed against such person or not. There is no rationale in fettering that power and the discretion, either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. It is intended to be used when the occasion envisaged by the section arises.
37. We have also kept in view the point by point analysis of the object and power to be exercised under Section 319CrPC, as has been indicated in SCC para 15 : SCC OnLine SC para 34 of Manjeet Singh v. State of Haryana [Manjeet Singh v. State of Haryana, (2021) 18 SCC 321 : 2021 SCC OnLine SC 632] .”
12. Para 15 of Manjeet Singh (supra) reads as under:-
15. The ratio of the aforesaid decisions on the scope and ambit of the powers of the court under Section 319 CrPC can be summarised as under: 15.1. That while exercising the powers under Section 319 Cr.P.C. and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished.
15.2. For the empowerment of the courts to ensure that the criminal administration of justice works properly.
15.3. The law has been properly codified and modified by the legislature under Cr.P.C. indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law.
15.4. To discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished.
15.5. 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.
15.6. Section 319 Cr.P.C. allows the court to proceed against any person who is not an accused in a case before it.
15.7. 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.
15.8. Section 319 Cr.P.C. is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial.
15.9. The power under Section 319(1) Cr.P.C. can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 Cr.P.C., committal, etc. which is only a pre-trial stage intended to put the process into motion.
15.10. The court can exercise the power under Section 319 Cr.P.C. only after the trial proceeds and commences with the recording of the evidence.
15.11. The word “evidence” in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents.
15.12. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during the investigation.
15.13. If the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 Cr.P.C. and can proceed against such other person(s).
15.14. That if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 Cr.P.C. can be exercised.
15.15. That power under Section 319 Cr.P.C. can be exercised even at the stage of completion of examination-in-chief and the court need not to wait till the said evidence is tested on cross-examination.
15.16. Even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the court is still not powerless by virtue of Section 319 Cr.P.C. and even those persons named in FIR but not implicated in the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses).
15.17. While exercising the powers under Section 319 Cr.P.C. the court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial.
13. In the present case, the prosecutrix, while deposing before the trial Court, has categorically implicated the present appellant Sonu @ Shiv Kumar Bind as one of the 4-5 persons who committed rape upon her. Her testimony in examination-in-chief has remained consistent regarding the participation of the present appellant and the same has not been demolished in the cross-examination. Though certain inconsistencies have surfaced in respect of the role attributed to co-accused Sandeep during cross-examination, no such material contradiction has emerged regarding the involvement of the present appellant at this stage. It is a settled principle that at the stage of invoking Section 319 Cr.P.C., the Court is not expected to conduct a meticulous appreciation of evidence or adjudicate upon its ultimate reliability as would be done at the conclusion of trial. The existence of omissions or inconsistencies in the statements recorded under Sections 161 or 164 Cr.P.C. cannot, by themselves, outweigh a clear and categorical deposition made on oath before the Court, particularly when such testimony specifically implicates the appellant and inspires confidence at this stage. Therefore, the learned Special Judge rightly formed the requisite satisfaction on the basis of evidence recorded during trial for summoning the appellant.
14. Consequently, no ground is made out for interference with the impugned summoning order in the present appeal under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. The appeal, being devoid of merit, is accordingly liable to be dismissed.
15. The instant appeal, being devoid of merit, stands dismissed.
16. Let a copy of this judgment be transmitted forthwith to the trial court concerned along with trial court record for compliance. The office is directed to comply on priority basis.
(Santosh Rai,J.)
July 23, 2026
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