# Anil @ Anil Kumar v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 485
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-14
- **Case number:** Application U/S 482 Cr. P.C. No. 39546 of 2019
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-anil-kumar-v-state-of-u-p-anr-45089
- **Pages:** 7

## Headnote

A.G.A.,
Sri
Akhilesh
Srivastava,
Sri
Saksham Srivastava

A. Code of Criminal Procedure - Section
319
-
Summoning
order-The
Investigating Officer found the accused
-applicant not present at the place of
486 INDIAN LAW REPORTS ALLAHABAD SERIES
occurrence at the time of incidentIgnored
by
the
trial
court
while
summoning the accused-The trial court
went
by
the
depositions
of
the
complainant and some other persons
which was nothing more than reiteration
of the statements made under Section
161 Cr.P.C. - The trial court was at least
duty bound to look into the material
collected
during
investigation
while
forming prima facie opinion and to see as
to whether 'much stronger evidence than
mere
possibility
of
the
applicant's
complicity has come on record- No
satisfaction of this nature has been
recorded
by
the
trial
court
while
disposing of the application moved under
Section 319 Cr.P.C.

Application u/s 482 Cr.P.C allowed. (E-7)

List of cases cited: -

## Text

1 All. Anil @ Anil Kumar Vs. State of U.P. & Anr.
485
words, the High Court must consider whether it
would be unfair or contrary to the interest of
justice to continue with the criminal proceeding
or continuation of the criminal proceeding would
tantamount to abuse of process of law despite
settlement and compromise between the victim
and wrongdoer and whether to secure the ends of
justice, it is appropriate that criminal case is put
to an end and if the answer to the above
question(s) is in affirmative, the High Court shall
be well within its jurisdiction to quash the
criminal proceeding."

11. The benefit of Ashiq's case
(Supra), Freddy @ Antony Francis's
case (Supra) may not be given due to the
provisions of law cited above in Gian
Singh's case (Supra) and Independent
thought's case (Supra), which are the
judgments of Hon'ble Supreme Court.

12. In the present case, since the
allegation made against the accusedapplicant no. 1 is that of committing rape
upon the victim as she being a minor and
any physical relationship with the victim
would fall in the category of rape in view
of law cited above in Independent
thought case. At this stage, it cannot be
said that the offence alleged against the
accused-applicant no. 1 is not made out
prima-facie. The role of the other coaccused was also to the extent of having
cooperated in the commission of the said
offence. This Court does not deem it
proper to make any interference in this
case under inherent jurisdiction to quash
the proceedings.

13. In view of the above, the
application deserves to be dismissed and is
accordingly dismissed.

14. However, the applicant may
approach the trial court to seek discharge
at appropriate stage, if so advised, and
before the said forum, he may raise all the
pleas which have been taken by him here.
If such an application is moved, the same
shall be disposed of without being
influenced by the observation made by this
Court.

15. The applicant shall appear before
the court below within 30 days from today
and may move an application for bail. If
such an application is moved within the
said time limit, the same would be
disposed of in accordance with law. For a
period of 30 days, no coercive action shall
be taken against the accused-applicant in
the aforesaid case. But if the accused does
not appear before the court below, the
court below shall take coercive steps to
procure his attendance.
----------
(2020)1ILR 485

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.11.2019

BEFORE
THE HON'BLE AJIT SINGH, J.

Application U/S 482 Cr. P.C. No. 39546 of 2019

Anil @ Anil Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vijay Kumar Dwivedi, Sri Surendra
Tiwari

Counsel for the Opposite Parties:
A.G.A.,
Sri
Akhilesh
Srivastava,
Sri
Saksham Srivastava

A. Code of Criminal Procedure - Section
319
-
Summoning
order-The
Investigating Officer found the accused
-applicant not present at the place of
486 INDIAN LAW REPORTS ALLAHABAD SERIES
occurrence at the time of incidentIgnored
by
the
trial
court
while
summoning the accused-The trial court
went
by
the
depositions
of
the
complainant and some other persons
which was nothing more than reiteration
of the statements made under Section
161 Cr.P.C. - The trial court was at least
duty bound to look into the material
collected
during
investigation
while
forming prima facie opinion and to see as
to whether 'much stronger evidence than
mere
possibility
of
the
applicant's
complicity has come on record- No
satisfaction of this nature has been
recorded
by
the
trial
court
while
disposing of the application moved under
Section 319 Cr.P.C.

Application u/s 482 Cr.P.C allowed. (E-7)

List of cases cited: -

1. Hardeep Singh Vs. St. of Punj. & Ors.,
(2014) 3 SCC 92

2. Brijendra Singh & ors. Vs. St. of Raj.,(2017)
7 SCC 706

(Delivered by Hon'ble Ajit Singh, J.)

1. Heard Counsel for the applicant
and learned A.G.A. for the State.

2. The applicant by means of this
application under Section 482 Cr.P.C. has
invoked the inherent jurisdiction of this
Court with a prayer to quash the order
dated 25.9.2019 passed by the Addl.
Sessions Judge Court no. 6, Aligarh in
S.T. No. 191 of 2018 (State vs. Bhupendra
and others), arising out of Case Crime no.
618 of 2017, under Sections 302 and 120B
I.P.C.,
P.S.
Khair,
district-Aligarh,
pending in the Court of Addl. sessions
Judge Court no. 6, Aligarh.

3. The report of the incident was
lodged by the opposite party no. 2, who is
father of the deceased Sumit, alleging
therein that on 19.10.2017 at about 6:00
p.m. when he was sitting with his family in
his house, Govinda son of Jaipal Singh
came to his house and asked his son to go
to the field of Sukhbir near the canal.
Thereafter he went away along with
Sumit. Anil son of Jagdish Singh,
Bhupendra son of Omvir Singh and
Rupendra son of Rishi Om and two other
persons were present at the occurrence
site. Some hot talks were exchanged
between them as there was previous
enmity between them regarding litigations.
between them. It is also mentioned in the
FIR that when Sumit did not return to his
house, then opposite party no. 2 went
towards the field of Sukhbir along with
Shailesh son of Ravendra Singh and
Hariom son of Yogendra and when they
reached near the field of Sukhbir, they
heard noise of 'Bachao-Bachao' after
hearing the noise they reached at the place
of occurrence where accused persons were
beating Sumit. When the complainant tried
to save his son then accused persons fired
at the complainant. It was also alleged that
Anil caught hold his son Sumit and
Bhupendra fired at Sumit. It was also
mentioned in the FIR that after being hit
from the gun shot his son was saying that
Bhupendr, Anil along with Rupendra,
Govinda and others had fired at him with
firearm and when they were carrying the
injured to Aligarh for treatment, in the way
injured Sumit succumbed to injuries.

4. The police investigated the matter
and after completion of investigation, the
Investigating
Officer
has
submitted
chargesheet
against
co-accused
Bhupendra, Rupendra and Govinda and
present applicant along with two other
were exonerated. It was mentioned int the
chargesheet that Anil alias Anil Kumar
1 All. Anil @ Anil Kumar Vs. State of U.P. & Anr.
487
and two other persons were not found at
the place of occurrence at the time of
incident.

5. The prosecution has moved an
application under Section 193 Cr.P.C. with
a prayer that cognizance of the offence
against the applicant also be taken, which
was rejected by the trial court vide order
dated 27.7.2019. The evidence of the
prosecution was commenced in the session
trial and the evidence of PW1 Autesh
Kumar and PW2 Shailesh @ Shilendra
were recorded. Both the prosecution
witnesses in their statements recorded
during trial have stated that the complicity
of the present accused Anil @ Anil Kumar
in the murder of his son is apparent then
an application under Section 319 Cr.P.C.
was moved, in which it has been stated
that the present accused was named in the
first information report and there was
sufficient evidence against him but he was
not chargesheeted during trial.

6. The trial court after hearing both
the parties summoned the present accused
along with other co-accused to face the
trial vide impugned order dated 25.9.2019.
Aggrieved from the impugned orde, the
present application under Section 482
Cr.P.C. has been filed.

7. The contention of the counsel for
the applicant is that the incident is alleged
to have taken place on 19.10.2017 at about
6 p.m. and the FIR of the incident was
lodged on 20.10.2017 at about 11:45 a.m.
He next contended that there is no mention
the crime number and the name of the
accused persons in the panchayatnama.
The injured was admitted to the hospital
by driver Abdul Jabbar and it was
mentioned that he died due to gun shot
injuries. It is a blind murder, which was
not seen by anybody and the chargesheeted
accused persons have been falsely implicated.
The applicant has been summoned on the basis
of false evidence. The trial court has not
considered the evidence which was collected
by the police during investigation and on the
basis of which the present applicant was
exonerated and by not considering the
evidence recorded by the police as ought to
have been considered by the trial court. The
manifest illegality and abuse of process has
been committed by the trial court in
summoning the accused under Section 319
Cr.P.C.

8. The further contention is that the
evidence including the statements given
before the court and the evidence collected
by
the
Investigating
Officer
during
investigation and while summoning the
accused under Section 319 Cr.P.C., the
evidence which has been collected during
investigation also be considered.

9. On the other hand learned A.G.A.
has submitted that the accused was
summoned on the basis of the evidence
recorded by the trial court during trial and
the other material which is available
before the trial court.

The Hon'ble Apex Court has
observed that "The powers of the Court to
proceed under Section 319 Cr.P.C. even
against those persons who are not
arraigned as accused, cannot be disputed.
This provision is meant to achieve the
objective that real culprit should not get
away unpunished. A Constitution Bench of
this Court in Hardeep Singh v. State of
Punjab & Ors., (2014) 3 SCC 92,
explained the aforesaid purpose behind
this provision in the following manner:

"8.The constitutional mandate
under
Articles
20
and
21
of
the
488 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India provides a protective
umbrella for the smooth administration of
justice making adequate provisions to
ensure a fair and efficacious trial so that
the accused does not get prejudiced after
the law has been put into motion to try him
for the offence but at the same time also
gives equal protection to victims and to
society at large to ensure that the guilty
does not get away from the clutches of
law. For the empowerment of the courts to
ensure that the criminal administration of
justice works properly, the law was
appropriately codified and modified by the
legislature under CrPC indicating as to
how the courts should proceed in order to
ultimately find out the truth so that an
innocent does not get punished but at the
same time, the guilty are brought to book
under the law. It is these ideals as
enshrined under the Constitution and our
laws that have led to several decisions,
whereby
innovating
methods
and
progressive tools have been forged to find
out the real truth and to ensure that the
guilty does not go unpunished.

xx xx xx

12.Section 319 CrPC springs out
of the doctrinejudex damnatur cum nocens
absolvitur (Judge is condemned when
guilty is acquitted) and this doctrine must
be used as a beacon light while explaining
the ambit and the spirit underlying the
enactment of Section 319 CrPC.

13.It is the duty of the court to
do justice by punishing the real culprit.
Where the investigating agency for any
reason does not array one of the real
culprits as an accused, the court is not
powerless in calling the said accused to
face trial. The question remains under
what circumstances and at what stage
should the court exercise its power as
contemplated in Section 319 CrPC?

xx xx xx

19.The
court
is
the
sole
repository of justice and a duty is cast
upon it to uphold the rule of law and,
therefore, it will be inappropriate to deny
the existence of such powers with the
courts in our criminal justice system where
it is not uncommon that the real accused,
at times, get away by manipulating the
investigating
and/or
the
prosecuting
agency. The desire to avoid trial is so
strong that an accused makes efforts at
times to get himself absolved even at the
stage of investigation or inquiry even
though he may be connected with the
commission of the offence." It also goes
without saying that Section 319 Cr.P.C.,
which
is
an
enabling
provision
empowering the Court to take appropriate
steps for proceeding against any person,
not being an accused, can be exercised at
any time after the charge-sheet is filed and
before
the
pronouncement
of
the
judgment, except during the stage of
Section 207/208 Cr.P.C., the committal
etc., which is only a pre-trial stage
intended to put the process into motion."

In Hardeep Singh's case, the
Constitution Bench has also settled the
controversy on the issue as to whether the
word 'evidence' used in Section 319(1)
Cr.P.C. has been used in a comprehensive
sense and indicates the evidence collected
during investigation or the word 'evidence'
is limited to the evidence recorded during
trial. It is held that it is that material, after
cognizance is taken by the Court, that is
available to it while making an inquiry
into or trying an offence, which the court
can utilise or take into consideration for
supporting reasons to summon any person
on the basis of evidence adduced before
the Court. The word 'evidence' has to be
understood in its wider sense, both at the
stage of trial and even at the stage of
inquiry. It means that the power to proceed
1 All. Anil @ Anil Kumar Vs. State of U.P. & Anr.
489
against any person after summoning him
can be exercised on the basis of any such
material as brought forth before it. At the
same time, this Court cautioned that the duty
and obligation of the Court becomes more
onerous to invoke such powers consciously
on such material after evidence has been led
during trial. The Court also clarified that
'evidence' under Section 319 Cr.P.C. could
even be examination-in-chief and the Court
is not required to wait till such evidence is
tested on cross-examination, as it is the
satisfaction of the Court which can be
gathered from the reasons recorded by the
Court in respect of complicity of some other
person(s) not facing trial in the offence.

The moot question, however, is
the degree of satisfaction that is required
for invoking the powers under Section 319
Cr.P.C. and the related question is as to in
what situations this power should be
exercised in respect of a person named in
the FIR but not charge-sheeted. These two
aspects were also specifically dealt with by
the Constitution Bench in Hardeep Singh's
case and answered in the following
manner:

"95. At the time of taking
cognizance, the court has to see whether a
prima facie case is made out to proceed
against the accused. Under Section 319
CrPC, though the test of prima facie case
is the same, the degree of satisfaction that
is required is much stricter. A two-Judge
Bench of this Court inVikasv.State of
Rajasthan[(2014) 3 SCC 321] , held that
on theobjective satisfactionof the court a
person may be "arrested" or "summoned",
as the circumstances of the case may
require, if it appears from the evidence that
any such person not being the accused has
committed an offence for which such
person could be tried together with the
already arraigned accused persons.

xx xx xx

105. Power under Section 319
CrPC
is
a
discretionary
and
an
extraordinary power. It is to be exercised
sparingly and only in those cases where
the circumstances of the case so warrant. It
is not to be exercised because the
Magistrate or the Sessions Judge is of the
opinion that some other person may also
be guilty of committing that offence. Only
where strong and cogent evidence occurs
against a person from the evidence led
before the court that such power should be
exercised and not in a casual and cavalier
manner.

106.Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied
is one which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to an
extent
that
the
evidence,
if
goes
unrebutted, would lead to conviction. In
the absence of such satisfaction, the court
should refrain from exercising power
under Section 319 CrPC. In Section 319
CrPC the purpose of providing if "it
appears from the evidence that any person
not being the accused has committed any
offence" is clear from the words "for
which such person could be tried together
with the accused". The words used are not
"for
which
such
person
could
be
convicted". There is, therefore, no scope
for the court acting under Section 319
CrPC to form any opinion as to the guilt of
the accused."

In order to answer the question,
some of the principles enunciated in
Hardeep
Singh's
case
may
be
recapitulated:
490 INDIAN LAW REPORTS ALLAHABAD SERIES

Power under Section 319 Cr.P.C.
can be exercised by the trial court at any
stage during the trial, i.e., before the
conclusion of trial, to summon any person
as an accused and face the trial in the
ongoing case, once the trial court finds that
there is some 'evidence' against such a
person on the basis of which evidence it
can be gathered that he appears to be
guilty of offence. The 'evidence' herein
means the material that is brought before
the Court during trial. Insofar as the
material/evidence collected by the IO at
the stage of inquiry is concerned, it can be
utilised for corroboration and to support
the evidence recorded by the Court to
invoke the power under Section 319
Cr.P.C. No doubt, such evidence that has
surfaced in examination-in-chief, without
cross- examination of witnesses, can also
be taken into consideration. However,
since it is a discretionary power given to
the Court under Section 319 Cr.P.C. and is
also an extraordinary one, same has to be
exercised sparingly and only in those cases
where the circumstances of the case so
warrants. The degree of satisfaction is
more than the degree which is warranted at
the time of framing of the charges against
others in respect of whom chargesheet was
filed. Only where strong and cogent
evidence occurs against a person from the
evidence led before the Court that such
power should be exercised. It is not to be
exercised in a casual or a cavalier manner.
The prima facie opinion which is to be
formed requires stronger evidence than
mere probability of his complicity.

In para 14 and 15 of Brijendra
Singh and others v. State of Rajasthan
reported in (2017) 7 SCC 706, the Hon'ble
Apex Court has held that when we
translate the aforesaid principles with their
application to the facts of this case, we
gather an impression that the trial court
acted in a casual and cavalier manner in
passing the summoning order against the
appellants. The appellants were named in
the FIR. Investigation was carried out by
the police. On the basis of material
collected during investigation, which has
been referred to by us above, the IO found
that these appellants were in Jaipur city
when the incident took place in Kanaur, at
a distance of 175 kms. The complainant
and others who supported the version in
the FIR regarding alleged presence of the
appellants at the place of incident had also
made statements under Section 161
Cr.P.C.
to
the
same
effect.
Notwithstanding the same, the police
investigation revealed that the statements
of these persons regarding the presence of
the appellants at the place of occurrence
was
doubtful
and
did
not
inspire
confidence, in view of the documentary
and other evidence collected during the
investigation, which depicted another story
and clinchingly showed that appellants
plea of alibi was correct.

Notwithstanding the same, the
trial court went by the deposition of
complainant and some other persons in
their examination-in-chief, with no other
material to support their so- called
verbal/ocular version. Thus, the 'evidence'
recorded during trial was nothing more
than the statements which was already
there under Section 161 Cr.P.C. recorded
at the time of investigation of the case. No
doubt, the trial court would be competent
to exercise its power even on the basis of
such statements recorded before it in
examination-in-chief. However, in a case
like the present where plethora of evidence
was
collected
by
the
IO
during
investigation which suggested otherwise,
the trial court was at least duty bound to
look into the same while forming prima
facie opinion and to see as to whether
1 All. Amitabh Kumar Das Vs. State of U.P. & Anr.
491
'much
stronger
evidence
than
mere
possibility of their (i.e. appellants) complicity
has come on record. There is no satisfaction
of this nature. Even if we presume that the
trial court was not apprised of the same at the
time when it passed the order (as the
appellants were not on the scene at that time),
what is more troubling is that even when this
material on record was specifically brought to
the notice of the High Court in the Revision
Petition filed by the appellants, the High
Court too blissfully ignored the said material.
Except reproducing the discussion contained
in the order of the trial court and expressing
agreement therewith, nothing more has been
done. Such orders cannot stand judicial
scrutiny."

10. In this case the Investigating Officer
has found that the accused Anil @ Anil
Kumar was not present at the place of
occurrence at the time of incident and that
evidence has been ignored by the trial court
while summoning the present accused and the
trial court went by the depositions of the
complainant and some other persons and the
evidence recorded during trial was nothing
more than the statements which were already
there under Section 161 Cr.P.C. recorded at
the time of investigation of the case. No
doubt, the trial court would be competent to
exercise its power even on the basis of such
statements recorded before it in examinationin-chief. However, in a case like the present
where plethora of evidence was collected by
the IO during investigation which suggested
otherwise, the trial court was at least duty
bound to look into the same while forming
prima facie opinion and to see as to whether
'much stronger evidence than mere possibility
of their (i.e. appellants) complicity has come
on record. No satisfaction of this nature has
been recorded by the trial court while
disposing of the application moved under
Section 319 Cr.P.C.

11. The application is allowed and
the order of summoning of applicant under
Section 319 Cr.P.C. is set aside and in the
interest of justice it is directed that the trial
court shall pass order on the application
moved under Section 319 Cr.P.C. after
considering the evidence recorded by the
trial court and considering the evidence
which was collected by the Investigating
Officer during investigation afresh.
----------
(2020)1ILR 491

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 39796 of 2017

Amitabh Kumar Das ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ayush Khanna

Counsel for the Opposite Parties:
A.G.A., Sri Ankur Singh Kushwaha

A. Inherent Jurisdiction - Section 482 -
Cr.P.C. - Scope - the Trial Court and not
the High Court is expected to analytically
analyze the facts and factual matrix of
case.

Application u/s 482 rejected. (E-10)

List of cases cited: -
1. G. Sagar Suri and anr Vs. State of U.P. and
ors (2000) 2 SCC 636
2. Sunil Kumar Vs. Excorts Yamaha Motors Ltd.
and ors (1999) 8 SCC 468
3. Sangeetaben Mahendrabhai Patel Vs. State
of Gujrat and anr 2012 LawSuit (SC) 236