March 11, 2023 In Uncategorized


A two Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Rajesh Bindal passed a Judgment dated 01.03.2023 in the case of Vikas Rathi vs State of U.P. and Anr, Criminal Appeal No. 644 of 2023 and observed that the courts while exercising the power under Section 319 of the Code of Criminal Procedure,1973 (CrPC) (Power to proceed against other persons appearing to be guilty of offence), an additional accused may be summoned, detained and/or arrested, only when there is strong material evidence on record.

Facts of the Case:

The Appellant, Vikas Rathi was engaged in a Partnership Business with one, Bachchu Prasad. As per Bachchu Prasad’s family and colleagues, there were disputes between the Appellant and Bachchu Prasad with regard to accounting statements of the business. On a certain day, Bachchu Prasad was murdered (Deceased). The Respondent No 2, Ram Sajan, who was the Brother of the Deceased, filed a Complaint in respect of the Deceased’s murder at the Police Station. The Police registered an FIR No.480/2013 against unknown persons and framed charges against two accused persons namely Pannelal @ Panna Lal and Ombeer Singh.

During the trial proceedings before the Ld. Special Judge (Essential Commodities Act, 1955) / Additional Sessions Judge, Ghaziabad (Trial Court), the Appellant was examined as a Prosecution Witness (PW6). As per various statements of the Prosecution Witnesses, it was said that on the date of the incident, when the other family members of the Deceased had gone to their parental house at Gorakhpur, he was murdered, but nothing in specific was pointed towards the Appellant’s involvement in the act. Simultaneously, the statements of other witnesses were recorded by the Trial Court including the oral statements by Ram Sajan (PW1), Ram Karan (PW2) and Smt Rajpati Devi (PW3) who stated that the Appellant had knowledge of the Deceased being alone on the day of the incident.

The Ld. Trial Court acquitted the Accused persons in the Trial Court owing to the absence of eye witnesses and lack of proper evidence.

Thereafter, the Respondent No 2- Ram Sajan filed an Application under Section 319 of CrPC (Power to proceed against other persons appearing to be guilty of offence) to summon the Appellant as an Additional Accused in the murder of his Deceased- Brother.

The Ld. Trial Court dismissed the said Application vide Order dated 15.03.2017 on the ground that the matter was before the High Court and it seemed that the Application had been filed to delay the trial.

Aggrieved by the Trial Court Order dated 15.03.2017, the Respondent No 2- Ram Sajan filed Criminal Revision No. 1564 of 2017 in the High Court of Judicature at Allahabad. The High Court found the reasoning given by the Ld. Trial Court for the rejection of the Application insufficient and thereby, allowed the Revision. The matter was remitted back to the Ld. Trial Court for fresh examination under Section 319 CrPC, vide Order dated 16.5.2017.

Aggrieved by the High Court Order dated 16.5.2017, the Appellant- Vikas Rathi filed Criminal Appeal No. 644 of 2023 before the Supreme Court.

Supreme Court Observations:

The Apex Court on hearing both the Parties, recalled the Constitutional Bench’s opinion in Hardeep Singh and Ors.  (2014) 3 SCC 92 emphasizing the circumstances under which Section 319 of CrPC is to be exercised. The Hon’ble Supreme Court observed that this power to summon an additional accused is discretionary in nature and thus, has to be used only where strong and cogent evidence is produced against such person and that a near probability of a person’s involvement is not enough.

In the present case, the Apex Court observed that no strong evidence was brought on record to establish that the Appellant was connected with the murder of the Deceased and hence, the Appellant cannot be summoned as an additional accused under Section 319 CrPC.


Thus, based on the aforesaid observations, the Supreme Court dismissed the Application filed by the Respondent No. 2 seeking summoning of the Appellant as an additional accused under Section 319 of CrPC and further, set aside the High Court Order dated 16.05.2017. As a result, the Appeal filed before the Apex Court was allowed.


Shalini Donthi

Legal Associate

The Indian Lawyer

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