JUDGMENT :

(Shree Prakash Singh, J.)

1. Heard Sri Sudhir Kumar Singh, learned counsel for the revisionist, Sri Girijesh Dwivedi, learned A.G.A. for the State and perused the material placed on record.

2. By means of the present application, prayer has been made to quash the impugned order dated 31.03.2023, passed by Additional Session Judge, court no. 4, Barabanki, Session Trial No. 273/2012, State of U.P. versus Rakesh, up to the extent of summoning of revisionist under section 319 of Criminal Procedure Code and to stay the operation and implementation of impugned order dated 31.03.2023, passed by the Kamal Kant Srivastava, Additional Session Judge, court no. 4, Barabanki, Session Trial No. 273/2012, State of U.P. versus Rakesh up to the extent of summoning of revisionist under section 319 of Criminal Procedure Code.

3. Since, pure legal question is involved in this matter, thus, notice to the opposite party no. 2 is hereby dispensed with.

4. Learned counsel appearing for the revisionist submits that initially the first information report was lodged against the present revisionist, including the other co-accused persons, wherein, after the investigation, the present revisionist was not found involved in committing offence and thus, his name has been expunged. He next added that thereafter, the trial commenced and at the time of conclusion of trial, on the date of the pronouncement of the judgment, the learned trial court while invoking its jurisdiction under section 319 of Cr.P.C. has summoned the present revisionist though, there was no substantial material against the revisionist to summon him under section 319 of Cr.P.C.

5. Adding his arguments, he submits that during the course of the trial in the year only P.W.-1, P.W.-2 and P.W.-5 have named the present revisionist. He next added that in a very hurriedly manner and without recording the degree of satisfaction, the present revisionist has been summoned though, he was never involved in committing any offence and there is no material, which could show that there was more than prima facie or much stronger case is available against the revisionist.

6. In support of his submission, he has drawn attention towards judgment reported in 2023 (1) Supreme Court Cases 289 Sukhpal Singh Khaira v. State of Punjab and has referred paragraph 39(1) and added that the constitutional bench of the Apex Court while answering a reference has held that power under section 319 of Cr.P.C. is to be invoked and exercised before the pronouncement of the order of sentence, where there is a judgment of conviction of the accused. It has further been held that 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 will not be sustainable.

7. Paragraph 39 (1) is quoted herein under:-

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 will not be sustainable.

8. Referring the aforesaid, he submits that since there is no substantial evidence against the revisionist and the facts and circumstances for invoki