Patna HC Quashes Section 319 Summons Against Bhagalpur Businessman, Finds Mala Fide at Multiple Levels
Justice Ansul set aside a Sessions Court order summoning Deepak Kumar Sah as accused, holding that newspaper hearsay cannot satisfy the elevated evidentiary threshold for Section 319 CrPC.
The High Court of Judicature at Patna has quashed an order dated 22 August 2019 passed by the Additional District and Sessions Judge-VII, Bhagalpur, which had summoned Deepak Kumar Sah to face trial as an additional accused under Section 319 of the Code of Criminal Procedure in Sessions Trial Case No. 492 of 2015. Justice Ansul, sitting singly, found that ten of eleven prosecution witnesses had said nothing against the petitioner, and the sole witness who named him admitted in cross-examination that her information came from a newspaper. The court held that such material falls well below the “strong and cogent evidence” standard mandated by the Supreme Court for invoking Section 319, and that the entire prosecution of the petitioner bore the appearance of mala fide at multiple levels.
The Murder, the FIR, and the Petitioner’s Absence from the Charge-Sheet
On 2 June 2012, at around 5:45 AM, Bishwanath Kumar Gupta went to a fruit shop in Bhagalpur and stopped for tea at Bhariti Chowk. Two unknown persons fired at him. He sustained a gunshot wound to the stomach and died on 3 June 2012. His brother Manoj Kumar Gupta lodged an FIR on 3 June 2012 at Barai Police Station.
Deepak Kumar Sah was not named in the FIR. His name surfaced approximately three months after the incident. The police arrested two persons, Md. Saddam and Md. Rustam. Md. Rustam allegedly stated that he had been financed by the petitioner. The confessional statements under Section 164 CrPC were recorded on a court holiday, at the residence of a judicial magistrate, a circumstance the petitioner characterised as coerced.
The case was registered under Section 302 read with Section 34 IPC and Section 27 of the Arms Act. After investigation, the Bhagalpur police submitted a final form in the case. Sessions Trial No. 492 of 2015 was initiated before ADJ-VI, Bhagalpur, and subsequently transferred to the court of ADJ-VII, Vinay Kumar Mishra, on 20 June 2017.
Allegations of Corruption Against the Presiding Judge
The petitioner placed on record a series of allegations that went well beyond ordinary trial irregularity. He stated that in late 2017, ADJ-VII sent an Additional Public Prosecutor, Pawan Thakur, to convey that the judge intended to add the petitioner as an accused under Section 319 CrPC and that money would be required. The petitioner claimed he was taken to the APP and later met the judge one-to-one, during which the judge acknowledged receiving Rs. 2 lakh out of Rs. 4.5 lakh paid on his behalf. The petitioner stated he recorded this conversation and also videographed the APP confirming the demand.
When a transfer petition was filed in June 2019 and the case moved away from ADJ-VII, the petitioner alleged the judge called him to Patna and demanded Rs. 35 lakh, claiming he had suffered a loss of Rs. 20 lakh. The petitioner stated that when he could not meet this demand, the judge began prompting witnesses and adding text to depositions that the witnesses had not stated.
On 19 August 2019, the petitioner met the Inspecting Judge of the Patna High Court at Bhagalpur, handed over a petition on affidavit, and played the video recording before the court, also submitting the pen drive. Three days later, on 22 August 2019, ADJ-VII — apparently unaware of these developments — passed the impugned order summoning the petitioner under Section 319 CrPC.
The petitioner subsequently filed a supplementary affidavit stating that an inquiry was conducted by the High Court and the concerned judge was found guilty. The court noted this assertion but declined to call for the records of the disciplinary proceedings, observing that doing so “would only amount to washing the dirty linen in public.”
What the Eleven Prosecution Witnesses Actually Said
Justice Ansul called for the complete trial court records and went through all depositions before the court at the time the Section 319 order was passed. The picture that emerged was stark.
PW-1 Md. Mujamin deposed on 29 September 2016 and said nothing relevant to the petitioner’s alleged role; his evidence related to an alibi for Md. Rustam. PW-2 Md. Gulam Shabbit, PW-3 Md. Sikandar, PW-4 Md. Aftab Warsi, PW-5 Mukesh Kumar Gupta, PW-7 Tirath Prasad Gupta, PW-8 Radhe Prasad Sah, and PW-9 Shankar Prasad Gupta were all declared hostile. PW-10 Md. Sahabuddin’s evidence also related to Md. Rustam’s alibi.
PW-6 Ramawatar Prasad Singh deposed on 12 April 2017. In chief examination he stated that ASI Kumod had asked him to take the name of Deepak Sah during his Section 164 statement, even though he had no acquaintance with the petitioner. He was then declared hostile and stated he was unaware of the killing of Bishwanath Gupta.
The sole witness who named the petitioner in a manner the Sessions Judge relied upon was PW-11 Manjula Devi, the mother of the deceased. In her chief examination she stated that Deepak Sah had given Rs. 50,000 to Minu Miya to have her son killed. However, in paragraph 5 of her deposition, she stated that she did not know Minu Miya alias Rustam, and that the fact of Deepak Sah paying the money was not told to her by any person — it was something she had read in a newspaper.
The Sessions Judge, in his order, referred extensively to the paragraph in chief examination but failed to engage with paragraph 5 at all. He then proceeded to rely on the Section 164 statements of five witnesses as the primary basis for invoking Section 319, treating them as substantive evidence.
Why Section 164 Statements Cannot Ground a Section 319 Order
Justice Ansul identified two distinct legal errors in the Sessions Judge’s order. The first was the reliance on Section 164 CrPC statements as if they were substantive evidence. The second was the failure to apply the correct standard of satisfaction required before summoning a person under Section 319.
On the first point, the court held that Section 164 statements are recorded during investigation and are not substantive evidence. They can only be used after a witness has testified at trial, and only to corroborate or contradict that testimony. The Supreme Court’s Constitution Bench in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, had settled that the word “evidence” in Section 319 CrPC means oral or documentary evidence brought before the court during trial. The foundational trigger for Section 319 must be evidence produced on oath in the trial itself.
On the second point, the court applied the standard articulated in Hardeep Singh: the threshold for summoning an additional accused is more than a prima facie case as required at the time of framing of charge, but short of the satisfaction that the evidence, if unrebutted, would lead to conviction. A mere probability of complicity is not enough. The court also drew on Kailash v. State of Rajasthan, (2008) 14 SCC 51; Brindaban Das v. State of West Bengal, (2009) 3 SCC 329; Sarojben Ashwinkumar Shah v. State of Gujarat, (2011) 13 SCC 316; Periyasami v. S. Nallasamy, (2019) 4 SCC 342; S. Mohammed Ispahani v. Yogendra Chandak, (2017) 16 SCC 226; Rajesh v. State of Haryana, (2019) 6 SCC 368; and Ajay Kumar v. State of Uttarakhand, (2021) 4 SCC 301, all of which consistently hold that the power under Section 319 is extraordinary and must be exercised sparingly, only on strong and cogent evidence, and never in a casual or cavalier manner.
The Court’s Assessment of Mala Fide
Beyond the legal analysis of the depositions, Justice Ansul catalogued a series of facts that, taken together, pointed to a prosecution driven by mala fide at multiple levels. The petitioner was not named in the FIR. His name appeared only three months after the incident, through Section 164 statements obtained on a court holiday. The Investigating Officer, SHO Kumod Kumar, was penalised by the National Human Rights Commission with a fine of Rs. 50,000 and faced Departmental Proceeding No. 50/2013, in which he was awarded a major punishment of three black marks and stoppage of three increments for wrongly investigating Kotwali P.S. Case No. 305 of 2012. The investigation was taken away from the then Senior Superintendent of Police, K.S. Anupam, and handed to DIG CID (AD) Dr. Kamal Kishore Singh. Final forms were submitted against the petitioner in all cases. The judicial officer who passed the impugned Section 319 order was, according to the petitioner’s affidavit, subsequently found guilty in proceedings before the Patna High Court.
The court also addressed a submission made by counsel for the informant that the petitioner’s ability to have his criminal miscellaneous petition mentioned and heard on the day of filing demonstrated his influence and reach. Justice Ansul described this submission as bordering on contempt, observing that cases are mentioned on the date of filing and taken up by notification on numerous occasions, and that imputing motive to the court in such circumstances was “postorus and border on contempt.” A similar observation was made when counsel for the informant suggested that the punishment of the SHO and the judicial officer pointed to the petitioner’s high reach and influence rather than to genuine wrongdoing by those officials.
The court found that the sole piece of evidence on which the Sessions Judge had relied — PW-11’s statement that she read in a newspaper that the petitioner paid money to have her son killed — would not even suffice to frame a charge, let alone meet the elevated Section 319 threshold. Newspaper-sourced hearsay, the court held, is material that cannot ground even a prima facie case, much less the stronger satisfaction that Section 319 demands.
Outcome
Justice Ansul allowed Criminal Miscellaneous No. 56895 of 2019 and quashed the order dated 22 August 2019 passed by ADJ-VII, Bhagalpur in Sessions Trial Case No. 492 of 2015. The court held that the action was actuated by mala fide at many levels and that the materials on which the summons were issued were wholly insufficient to exercise the power under Section 319 CrPC. The judgment was pronounced on 27 May 2026 and was marked AFR.