The High Court's revisional order allowing summoning of additional accused under Section 319 relates back to the original rejection date, permitting a fresh trial despite the main trial's conclusion.

JUDGMENT :

J.B. PARDIWALA, J. :

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

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.

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 i