Evidence Recorded Before Summoning Under Section 319 CrPC Cannot Form the Basis of Conviction — Allahabad HC

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Evidence Recorded Before Summoning Cannot Convict — Allahabad HC in Pramod Kumar Singh alias Guddu Singh v. State of UP

Citation: 2026 LiveLaw (AB) 304 Court: Allahabad High Court Bench: Justice Rajesh Singh Chauhan and Justice Subhash Vidyarthi Date: May 31, 2026 Appellant: Pramod Kumar Singh alias Guddu Singh Respondent: State of Uttar Pradesh

Facts

The case arose out of a 2008 murder in Uttar Pradesh. The appellant, Pramod Kumar Singh alias Guddu Singh, was not named in the police charge-sheet — the investigation could not establish his involvement. Mid-trial, the trial court summoned him as an additional accused under Section 319 CrPC on the strength of testimony already recorded against the original co-accused.

After summoning, the prosecution’s principal witnesses — the injured complainant and the deceased’s uncle — were re-examined in the appellant’s presence. Both resiled; the complainant said he had falsely implicated the appellant in his first version under pressure.

Despite the retraction, the trial court convicted the appellant under Sections 302/149, 307/149, 148, and 506(2) IPC and sentenced him to life imprisonment. The conviction rested substantially on the pre-summoning testimony.

The appellant appealed to the Allahabad High Court.

Holding

The Division Bench of Justice Rajesh Singh Chauhan and Justice Subhash Vidyarthi acquitted the appellant. The Court held:

“The evidence recorded in absence of an accused person, which is relied upon for summoning him under Section 319 Cr.P.C., cannot form the basis of his conviction.”

Two reasons were given:

Fair trial and the right to cross-examine. Article 21 guarantees a fair trial, which includes the right of the accused to be present when evidence is recorded against him and to test that evidence then and there. Evidence recorded behind his back — even if “strong and cogent” enough to summon — cannot be elevated into substantive evidence of guilt without that opportunity.
Sections 273 and 311 CrPC. Section 273 requires evidence to be taken in the presence of the accused. The protective mechanism after Section 319 summoning is re-examination of the witnesses in the additional accused’s presence. If that re-examination demolishes the prosecution case — as it did here — the original deposition cannot be revived to convict.

The appeal was allowed; the conviction and life sentence were set aside; the appellant was acquitted.

Principle

A Section 319 CrPC / 358 BNSS summoning order is a threshold order. The Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 standard — “more than prima facie but less than the standard of conviction” — fits that threshold. It cannot be carried over to the post-summoning stage to dispense with re-examination.

Once a person is on the array under Section 319, the trial against him begins afresh. The witnesses whose deposition triggered the summoning must be re-tendered in his presence; conviction must rest on the evidence he had a chance to confront, not on the testimony that triggered his summoning.

The decision reinforces the procedural safeguards in Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC 289 — the power must be exercised before the order on sentence — and the structural premise that the additional accused gets a full trial, not an abbreviated one piggy-backing on his co-accused’s.

Relevant Provisions

Section 319, Code of Criminal Procedure, 1973 / Section 358, Bharatiya Nagarik Suraksha Sanhita, 2023 — Power of court to proceed against other persons appearing to be guilty of offence.
Section 273, CrPC / Section 308, BNSS — Evidence to be taken in the presence of the accused.
Section 311, CrPC / Section 348, BNSS — Power to summon material witness, or examine person present.
Article 21, Constitution of India — Right to fair trial as part of personal liberty.
Section 302, Section 149, Section 307, Section 148, Section 506(2), IPC 1860 — Provisions under which the trial court had convicted.

Precedents Relied On

Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 — Constitution Bench on the scope of Section 319: persons not named in the FIR, named but not charge-sheeted, or discharged can be summoned where evidence indicates they could be tried together; the test is “more than prima facie.”
Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC 289 — Constitution Bench on the stage at which Section 319 may be invoked: before pronouncement of the order on sentence (in cases of conviction) or before the order of acquittal; the summoning order must precede the conclusion of trial.

Practical Takeaways

Defence, post-summoning. Insist on re-summoning and re-examination of material witnesses under Section 273 CrPC / 308 BNSS and, if needed, Section 311 / 348 BNSS. Waiver should only follow a considered strategic call.
Prosecution. A conviction wholly resting on pre-summoning testimony untested in the additional accused’s presence will not hold. The case must be led afresh qua the newly summoned accused.
Trial courts. Separate the threshold enquiry under Section 319 (does the pre-summoning evidence justify cognizance?) from the substantive enquiry on guilt (which must rest on evidence the additional accused has confronted).

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