# Asgar Ali Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 3 ILRA 994
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-23
- **Case number:** Crl. Revision No. 52 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asgar-ali-revisionist-v-state-of-u-p-anr-49897
- **Pages:** 6

## Headnote

Criminal Law- Code of Criminal Procedure,
1973-Section-319-FIR
lodged
u/s
498A,304B IPC and section 3/4 DP ActCharge-sheet was filed against the other
alleged co-accused persons and the final
report was submitted in respect with the
present revisionist-Trail court summoned
the revisionist under Section 319 CrPC-
Courts should not exercise its power
under Section 319 of CrPC in a supine and
cavalier manner but if the Court is on a
material conclusion that there are more
than prima facie evidence against an
accused-No satisfaction recorded by the
Court below with respect to the fact that
prosecution succeeded to establish more
than prima facie or much stronger case
against the revisionist and if such an
evidence are adduced, there are chances
of conviction of the revisionist.

Revision allowed, impugned summoning
order set-aside. (E-15)

List of Cases cited:

## Text

994 INDIAN LAW REPORTS ALLAHABAD SERIES
proved that the attack was pre-planned and
there was prior meeting of mind of the
appellants and they unitedly decided to cause
death of deceased Chhedi Lal by attacking him
with sickle, lathi and danda. There is no
allegation of exhortation by one accusedappellant to other, to attack and kill deceased,
Chhedi Lal. From the evidence on record, it is
clear that only appellant, Rajjan attacked
deceased, Chhedi Lal without pre-meditation in
a sudden quarrel. He did not go anywhere else
to procure the weapon of offence i.e. sickle, but
it was lying nearby, while he was cutting the
clump of bamboo trees.

44. From the above oral and documentary
evidence, the presence of appellants, Kallu and
Sushil at the place of occurrence and their
participation in the assault on Chhedi Lal,
Shivakant and Dayakant, becomes doubtful.
Thus, from the evidence on record, presence
and participation of appellants, Kallu and Sushil
in the crime is not proved.

45. Thus, from the evidence on record, it
is not proved that appellants, Sushil and Kallu,
attacked deceased (Chhedi Lal) but only
appellant, Rajjan attacked him with sickle.
From the evidence of P.W.3 and the
postmortem report, it is proved that the fatal
injuries due to which Chhedi died were caused
by sickle on his head and his back. Thus, from
the aforesaid evidence, it is proved that
appellant, Rajjan attacked Chhedi Lal with
sickle in his right to private defence with the
intention of causing death or with causing such
bodily injury as is likely to cause death. It is
clear that only appellant, Rajjan, attacked
deceased Chhedi Lal without pre-meditation in
sudden quarrel. He did not go anywhere else to
procure sickle, but it was lying nearby while he
was cutting the clump of bamboo trees
(banskot). There is no allegation of exhortation
by any accused-appellant to attack and kill the
deceased.

46. The prosecution has failed to prove
the charge under Section 302 I.P.C. r/w 34 I.P.C.
against appellants, Rajjan, Sushil and Kallu.
The prosecution is successful in proving
beyond reasonable doubt the charge u/s 304 (I)
I.P.C. against appellant, Rajjan and has failed to
prove the charge under Section 302 I.P.C. or
Section 304 I.P.C. against appellants, Kallu and
Sushil.

47. In view of above, the appeal is
allowed qua appellants, Kallu and Sushil. Their
conviction u/s 302 r/w 34 I.P.C. is set-aside. The
appellants are on bail. They need not surrender.
Their bail bonds are cancelled and sureties are
discharged.

48. So far as the appeal of appellant,
Rajjan, is concerned, the same is partly
allowed. His conviction and sentence u/s
302 r/w 34 I.P.C. is converted into
conviction u/s 304 (I) I.P.C. He is
sentenced
to
10
years
rigorous
imprisonment, with a fine of Rs.10,000/-
and in default in payment of fine, simple
imprisonment for six months. Appellant,
Rajjan is in jail. He will undergo the
sentence as imposed above.

49. Let a copy of this judgement and trial
court record be sent to the concerned Sessions
Judge for compliance.
----------
(2023) 3 ILRA 994
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.01.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Crl. Revision No. 52 of 2023

Asgar Ali ...Revisionist
Versus
State of U.P. & Anr. ...Respondent
3 All. Asgar Ali Vs. State of U.P. & Anr.
995
Counsel for the Revisionist:
Ramakar Shukla

Counsel for the Respondent:
G.A.

Criminal Law- Code of Criminal Procedure,
1973-Section-319-FIR
lodged
u/s
498A,304B IPC and section 3/4 DP ActCharge-sheet was filed against the other
alleged co-accused persons and the final
report was submitted in respect with the
present revisionist-Trail court summoned
the revisionist under Section 319 CrPC-
Courts should not exercise its power
under Section 319 of CrPC in a supine and
cavalier manner but if the Court is on a
material conclusion that there are more
than prima facie evidence against an
accused-No satisfaction recorded by the
Court below with respect to the fact that
prosecution succeeded to establish more
than prima facie or much stronger case
against the revisionist and if such an
evidence are adduced, there are chances
of conviction of the revisionist.

Revision allowed, impugned summoning
order set-aside. (E-15)

List of Cases cited:

1. Hardeep Singh Vs St. of Pun., (2014) 3 SCC 92

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

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Ramakar Shukla, learned
counsel for the revisionist, Sri Anirudh
Kumar Singh the learned AGA-I for the
State.

2. Notice to the the opposite party no.
2 is hereby dispensed with.

3. By means of the instant revision a
challenge has been made to the impugned
summoning order dated 09.12.2022 passed
by the learned Additional Sessions Judge,
Court No. 8, Sultanpur in Sessions Trial
No. 1249 of 2021 arising out of case crime
no. 484 of 2021, under Sections 498A,
304B of the IPC and Section 3/4 of the DP
Act, Police Station Gusaiganj, District
Sultanpur.

4. Contention of the learned counsel
for
the
revisionist
is
that
an
first
information report was lodged by the
opposite party no. 2, against the revisionist
and other family members on 07.08.2021 at
7:19 PM, showing the incident dated
05.08.2021 at 4:00 PM and while lodging
the first information report, the opposite
party no. 2 has made an allegation that on
05.08.2021 at about 04:00 PM, she
received a phone call from Jabir at Bombay
who informed that Rashida (deceased) is ill
and when she called on mobile phone of
Rashida, then father-in-law picked up the
phone and said that he is at work, far away
from house and immediately cutoff the
phone. Thereafter, five minutes later, Asgar
called on mobile phone and informed that
Rashida has hanged herself. He added that
allegation is that the marriage of the
deceased, namely, Rashida was performed,
two years ago, from the date of the incident
and she was having six years' child but
after the marriage, husband and other
family members started harassing the
deceased while taunting over her and due to
the same, she hanged herself.

5. He submits that it is an admitted
fact that the revisionist was not on the place
of occurance at the time of alleged incident
and thereafter when he came back, he
informed to the opposite party no. 2
regarding the incident and without knowing
the truthfulness of the incident, the
informant
lodged
the
instant
first
996 INDIAN LAW REPORTS ALLAHABAD SERIES
information report and the revisionist is
implicated. He next added that after
lodging of the first information report, a
thorough investigation was done and the
charge-sheet was filed against the other
alleged co-accused persons and the final
report was submitted in respect with the
present revisionist.

6. Adding his arguments, he submits
that no evidence was found by the
Investigating Officer during course of
investigation against the present revisionist,
so far as, the allegation of dowry death is
concerned and considering the statements
of the witnesses under Section 161 and
other evidences, the final report was
submitted by the Investigating Officer and
thus there was no occasion for the trial
Court to summon the revisionist under
Section 319 of CrPC.

7. During the course of his arguments,
he has also drawn attention towards the order
impugned, wherein, in the finding clause, the
trial court has taken the note of the statement
of the witnesses recorded under Section 161
of CrPC and the case diary. He submits that
the trial Court has erred to pass the impugned
order, as it has been a settled law that only on
the basis of the statement under Section 161
or the reiteration of the same by the PWs in
their statements, would have no ground to
summon an accused under the provisions of
Section 319 of CrPC.

8. In support of his contention, he has
drawn attention towards the case reported in
(2014) 3 SCC 92, Hardeep Singh Vs. State
of Punjab along with the other connected
petitions and has referred paragraphs 105 and
106 of the judgement.

9. Paragraph 105 and 106 of the
judgement are read as under:-

"105. Power under Section 319
Cr.P.C. 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
Cr.P.C. In Section 319 Cr.P.C. 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
Cr.P.C. to form any opinion as to the guilt
of the accused. "

10. Referring the aforesaid, he
submits that Hon. Apex Court has held that
the power under Section 319 CrPC is
discretionary and an extraordinary power
and thus the same should be used sparingly
and it has further been held that much
3 All. Asgar Ali Vs. State of U.P. & Anr.
997
stronger evidences than mere probability of
complicity is the rule, where the trial court
exercises power under Section 319 of
CrPC.

11. He has further drawn attention
towards the case reported in (2017) 7 SCC
706, Brijendra Singh Vs. State of Rajasthan
and referred paragraph 14 and 15 of the
judgement.

12. Paragraph 14 and 15 of the
judgment are quoted hereinunder:-

"14. 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.

15. This record was before the trial
court. 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
'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.
"

13. Relying upon the ratio of the
judgement aforesaid, he submits that it has
been settled by the Apex Court that mere
possibility of complicity is not sufficient
ground to issue summons under Section
319 of CrPC, but stronger evidences are
required to be there. He submits that from
998 INDIAN LAW REPORTS ALLAHABAD SERIES
bare perusal of the order-sheet it is evident
that learned Trial Court while passing the
order impugned dated 09.12.2022 has not
recorded its satisfaction with respect to the
fact that the case comes under the purview
of much stronger case and has only
considered the statements recorded under
Section 161 and statements of P.W. 1 and
there was no such material which could
substantiate that there is more than prima
facie case.

14. Concluding his arguments; he
submits that the order impugned vitiates in
the eyes of law as the same is not only
against the law propounded by the Apex
Court but it is against the object of the
provisions of law also and therefore, the
order impugned is liable to be set-aside.

15. Per contra, the learned counsel
appearing for the State has opposed the
contention aforesaid and submits that the
detailed order has been passed on 09.12.2022
while considering the material available
before the trial Court. He added that finding
in the order is evident that the trial Court has
gone through the statement of the witnesses
recorded under Section 161 CrPC as well as
the statement of PW1 and after application of
judicial mind, he has passed the order. He
submits that the statement of PW1 has been
recorded during the trial, wherein, the trial
Court found that the same will lead to the
conviction of the revisionist as much stronger
case was established. The statement of PW1
has been discussed by the learned trial Court
in the impugned order. Further argued that
everything has been discussed thoroughly in
the order and therefore the order impugned
do not assail any illegality or infirmity, hence
the revision is liable to be dismissed.

16. Having heard the learned counsel
for the parties and after perusal of material
placed on record, it emerges that the final
report was submitted by the Investigating
Officer in the case of present revisionist
and the charge-sheet was filed against the
other co-accused persons. Learned trial
Court while passing the summoning order
dated 09.12.2022 has considered the
statement of the witnesses under Section
161 and the statement of PW1 deposed
before the trial Court including the case
diary which indicates that those are the
foundation of the impugned order.

17. Further Section 319 of CrPC
envisages an extraordinary power conferred
upon a Court to do substantial justice and
thus should be exercised cautiously as the
investigating agency found no evidence
against such allegedly accused person
during course of the investigation. The very
purpose of Section 319 of CrPC is to avoid
any escape of a guilty person from the trial
and therefore discovery of the further
evidence must disclose more than prima
facie case.

18. The settled law is that the Courts
should not exercise its power under Section
319 of CrPC in a supine and cavalier
manner but if the Court is on a material
conclusion that there are more than prima
facie evidence against an accused, certainly
this power can be exercised.

19. In case of Hardeep Singh Vs.
State of Punjab (Supra), it has categorically
been held that Section 319 of CrPC is a
discretionary and extraordinary power
which is to be exercised when there is a
strong and cogent piece of evidence against
an accused person and thus it should be
exercised sparingly. The apex Court has
very cautiously interpreted the abovesaid
provision and held that for exercising of
power under Section 319 CrPC, it requires
3 All. Mujtaba Ali Khan Vs. Jud. Magistrate-III, Lko. & Ors.
999
much
stronger
evidence
than
mere
probability of complicity.

20. The Apex Court later on, in case of
Brijendra Singh and Others (Supra) has also
discussed the law enunciated in Hardeep
Singh's case and has held that power under
Section 319 CrPC can be exercised by the trial
Court at any stage during the trial and any
person can be summoned as an accused for
facing the trial. The Apex Court has very
clearly held that the word 'evidence' means the
material brought before the Court during trial.
The
material/evidence
collected
by
the
Investigating Officer at the stage of enquiry can
only be utilised for corroboration thereof.

21. When this Court examines the instant
matter in its facts and in the law propounded by
the Apex court, it borne out that the learned trial
Court while passing the impugned order has
considered the statement of the complainant
under Section 161 of CrPC and has also
perused the case diary. Much reliance has been
placed on the case diary though the case of the
revisionist is, that he is the father-in-law of the
deceased and the statement of the witnesses
which was recorded under Section 161 CrPC
and the other materials, are insufficient to file a
charge-sheet
against
the
revisionist
and
therefore the Investigating Officer has filed the
charge-sheet against all the accused persons
except the present revisionist.

22. It is settled law that the trial Court can
take step to add such persons as accused on the
basis of evidence adduced and not on the basis
of materials available in the charge-sheet or the
case diary as, such materials do not constitute
'evidence'. In the case in hand, it is, prima facie,
evident that the learned revisional Court has not
only gone through the case diary but has also
placed reliance on the first information report,
the statement of the witnesses recorded under
Section 161 CrPC and the statement of PW1
before the trial Court therefore there was no any
material evidence other than the aforesaid
before the trial Court while passing the
impugned summoning order.

23. Further no satisfaction has been
recorded by the Court below with respect to
the fact that the prosecution succeeded to
establish that there are more than prima facie
or much stronger case against the revisionist
and if such an evidence are adduced, there are
chances of conviction of the revisionist.
Further, the learned trial Court has also
skipped the law enunciated by the Apex
Court.

24. Resultantly, the revision is hereby
allowed and the impugned summoning order
dated 09.12.2022 is hereby set-aside.

25. The matter is remitted to the trial
Court concerned to pass a fresh order, after
considering the ratio of the judgements
passed by the Apex Court in Hardeep Singh
(Supra)
and
Brijendra
Singh
(Supra)
including the other materials available before
it, within period of 45 days from the date of
the certified copy of the order.

26. Office is also directed to inform this
order to the trial Court forthwith.
----------
(2023) 3 ILRA 999
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.03.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Crl. Revision No. 232 of 2023

Mujtaba Ali Khan ...Revisionist
Versus
Jud. Magistrate-III, Lko. & Ors.
 ...Opp. Parties