Arpit Rai vs State of U.P. and Another

The present criminal revision has been filed against the order dated 27.01.2026 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Azamgarh, in Session Trial No. 158 of 2021.

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Learned counsel for the revisionist has submitted that the name of the revisionist was mentioned in the F.I.R.; however, during the investigation he was exonerated and no charge sheet was filed against him. Charges were framed against the other accused, and thereafter an application under Section 319 Cr.P.C. was filed.

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It has further been submitted that no specific role has been assigned to the revisionist in the alleged offence and they have been falsely implicated in the present case. It is also contended that no finding has been recorded by the learned trial court in the impugned order dated 27.01.2026.

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It is held by Hon'ble Supreme Court in Asim Akhtar Versus The State of West Bengal and another, 2024 INSC 794 that complicity of any person sought to be arrayed as an accused can be decided with or without conducting cross-examination of the complainant and other prosecution witnesses and there is no mandate to decide the application under section 319 Cr.P.C. before cross examination of other witnesses. It is held by the Hon'ble Supreme Court in Hardeep Singh Versus State of Punjab, (2014) 3 SCC 92 , that the word "evidence" used in section 319 Cr.P.C. indicates, the word "evidence" is limited to the evidence recorded during trial. The summoning of accused under section 319 Cr.P.C. is settled, that this power is an extraordinary power, which should be used sparingly with circumspection and while passing the summoning order under section 319 Cr.P.C. court must consider whether more than prima facie case made out, or not; mere prima facie case is not sufficient. It is held by Hon'ble Supreme court in Omi Versus State of M.P. (2025) 2 SCC 621 , that trial court can add an individual as accused only on the basis of the evidence adduced

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CRLR No. 1393 of 2026

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2

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before it and not on the basis of the materials available in the charge sheet or the case diary because such materials contained in the charge sheet or the case diary do not constitute evidence. It is held by the Hon'ble Supreme Court in Shiv Baran Versus State of U.P., 2025 SCC OnLine SC 1457 that trial court can exercise power to summon an additional accused under section 319 Cr.P.C. only on the basis of the evidence adduced before it and not any other material collected during investigation.

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Learned counsel for opposite party no. 2 submitted that the revisionist was named in the F.I.R., had come to the spot, and committed the offence with common intention. It is settled law that the evidence recorded before the trial court is to be considered at the time of summoning an accused under Section 319 Cr.P.C. It is also settled that the evidence must be more than a mere prima facie case and, if left uncontroverted, should be such as may lead to conviction.

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The learned trial court has recorded a finding that accused Rajesh Rai, Prashant Rai, and Arpit Rai were named in the F.I.R. In the statements of P.W.-1 Avanish Rai and P.W.-2 Praveen Kumar Rai recorded under Section 161 Cr.P.C., the names of the three accused were mentioned, and during their examination before the trial court, their names also surfaced.

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Learned counsel for the revisionist submits that, while considering an application under Section 319 Cr.P.C., only the evidence produced before the trial court can be taken into account, as that constitutes substantive evidence. The learned trial court is required to record a specific finding that the evidence recorded before it is of such a nature that it is more than a prima facie case and is sufficient to lead to conviction if unrebutted.

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There is no reasoning in the impugned order passed by the learned trial court. Accordingly, the impugned order dated 27.01.2026 is liable to be set aside and is hereby set aside. The learned trial court is directed to decide the application under Section 319 Cr.P.C. afresh in accordance with the law laid down in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92; Asim Akhtar v. State of West Bengal and Another, 2024 INSC 794; Omi v. State of M.P., (2025) 2 SCC 621; and Shiv Baran v. State of U.P., 2025 SCC OnLine SC 1457 .

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With these observations, the criminal revision stands disposed of.

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February 24, 2026 K.K. Maurya

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(Abdul Shahid,J.)

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Digitally signed by :- KAMLESH KUMAR MAURYA High Court of Judicature at Allahabad

Arpit Rai v. State of U.P. and Another

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Arpit Rai v. State of U.P. and Another

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