# Atul Kumar Singh v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 2 ILRA 1140
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-16
- **Case number:** Application u/s 482 No. 1010 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atul-kumar-singh-v-state-of-u-p-ors-opp-parties-51303
- **Pages:** 5

## Headnote

Law
-
The
Code
of
Criminal Procedure, 1973 - Section 482
- Inherent power - Trial court must
consider all allegations and evidence -
Power under Section 319 CrPC is
discretionary
and
extraordinary
-
Injured witness's evidence has greater
evidentiary value - Though the powers
under Section 319 Cr.P.C. are invoked
sparingly but at the same time, if there
is
any
cogent
material/
evidence
available on record, the powers should
be invoked so as to conclude the trial
to its logical conclusion. (Para - 6,8)

Petitioner (Informant), an injured witness -
moved application under Section 319 CrPC -
to summon additional accused - rejected -
no reason assigned - not recorded their
subjective satisfaction - quashing of -
claims assailants' names were omitted from
charge sheet - but indicated in the chiefexamination - request to summon. (Para -
4,11)

HELD: -Impugned order set aside due to
lack
of
reasoning
and
subjective
satisfaction. Matter remanded to trial court
to decide application afresh, considering
injured witness's evidence and allowing
petitioner to file application under Section 319
CrPC.(Para -11,13)

Petition allowed. (E-7)

List of Cases cited:

## Text

1140 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of law. Therefore, the averment
mandatory as per the answer to question (a)
in S.M.S. Pharmaceuticals Ltd. v. Neeta
Bhalla (Supra) is there in the present case.
Whether each of the partners of the
applicant is actually liable to be convicted
or sentenced or not, will be decided upon
conclusion of the trial and the averments
made in the complaint are sufficient for
their trial.

50. In view the aforesaid discussion, I
find no force in any of the submissions
made by the learned Counsel for the
applicant. There appears to be no illegality
in the impugned order dated 25.08.2022
passed by the Special Judicial Magistrate,
Pollution/CBI, Lucknow, taking cognizance
of the offence and summoning the
accused persons to face trial under
Section 37 of the Ari Act.

51. The application filed under
Section 482 Cr.P.C. lacks merit and the
same is accordingly dismissed.
----------
(2024) 2 ILRA 1140
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.02.2024

BEFORE

THE HON'BLE RAJESH SINGH
CHAUHAN, J.

Application u/s 482 No. 1010 of 2024

Atul Kumar Singh ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Anil Kumar Pandey, Vijay Kumar Singh

Counsel for the Opp. Parties:
G.A.

(A)
Criminal
Law
-
The
Code
of
Criminal Procedure, 1973 - Section 482
- Inherent power - Trial court must
consider all allegations and evidence -
Power under Section 319 CrPC is
discretionary
and
extraordinary
-
Injured witness's evidence has greater
evidentiary value - Though the powers
under Section 319 Cr.P.C. are invoked
sparingly but at the same time, if there
is
any
cogent
material/
evidence
available on record, the powers should
be invoked so as to conclude the trial
to its logical conclusion. (Para - 6,8)

Petitioner (Informant), an injured witness -
moved application under Section 319 CrPC -
to summon additional accused - rejected -
no reason assigned - not recorded their
subjective satisfaction - quashing of -
claims assailants' names were omitted from
charge sheet - but indicated in the chiefexamination - request to summon. (Para -
4,11)

HELD: -Impugned order set aside due to
lack
of
reasoning
and
subjective
satisfaction. Matter remanded to trial court
to decide application afresh, considering
injured witness's evidence and allowing
petitioner to file application under Section 319
CrPC.(Para -11,13)

Petition allowed. (E-7)

List of Cases cited:

1. Balu Sudam Khalde & anr. Vs St. of Maha.,
AIR 2023 SC 1736

2. Kanchhid Singh Vs St. of U.P. & ors., Appl.
U/S 482 No.12491 of 2020

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

4. Sartaj Singh Vs St. of Hary. & anr., (2021) 5
SCC 337

5. Yashodhan Singh & ors. Vs St. of U.P. & anr.,
(2023) 9 SCC 108
2 All. Atul Kumar Singh Vs. State of U.P. & Ors.
1141
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Awadhesh Kumar
Pandey, holding brief of Sri Anil Kumar
Pandey, learned counsel for the petitioner,
Ms. Nushrat Jahan, learned A.G.A. for the
State and Sri Surya Prakash Singh as well
as Sri Bipin Kumar Tiwari, who have filed
Vakalatnama on behalf of Ankit Verma &
Ranvijay Singh Patel, opposite parties no.2
& 3 respectively. Said Vakalatnamas are
taken on record.

2. In view of the proposed order,
notices to private opposite parties are
dispensed with.

3. By means of this petition filed
under Section 482 Cr.P.C., the petitioner
has prayed the following reliefs:-

"Wherefore, it is most respectfully
prayed that this Hon'ble Court may kindly
be pleased to quash the order dated
04.09.2023 passed by Additional District
and Sessions Judge/Special Judge E.C. Act,
Court No. 04, Faizabad in S.T. No.
212/2021 (State vs Ram Shankar and
Others) relating to Case Crime No.
223/2020, Police Station - Maharganj,
District-Faizabad
as
contained
as
Annexure No. 01 of the present petition.

It is further prayed that the trial
court may kindly be directed to summon the
opposite party No. 02 to 06 of this petition
under section 319 Cr.P.C. as accused in
S.T. No. 212/2021(State vs Ram Shankar
and Others) relating to Case Crime No.
223/2020,
Police
Station
Maharganj,
District-Faizabad.

It is also prayed that operation
and
implementation
of
order
dated
04.09.2023
passed
by
the
court
of
Additional
District
and
Sessions
Judge/Special Judge E.C. Act, Court No.
04, Faizabad vide S.T. No. 212/2021 (State
vs Ram Shankar and Others) relating to
Police Station - Maharganj, District -
Faizabad may kindly be stayed during
pendency of this petition.

Any other order or direction may
kindly be passed in favour of the Petitioner,
which this Hon'ble Court may deem fit and
proper under the circumstances of the
case."

4. At the very outset, learned counsel for
the petitioner has stated that the present
petitioner had sustained serious injuries at
the time of incident in question. He has
further submitted that one application under
Section 319 Cr.P.C. was filed (Annexure
No.4) by one Dharmendra Kumar Singh,
who had intimated the police on behalf of
the petitioner regarding the incident in
question as the petitioner was not in a
position to apprise the police about the
incident in question. In the aforesaid
application,
the
applicant
of
that
application, namely, Dharmendra Kumar
Singh has stated that though Ankit,
Ranvijay Patel, Ramsukh alias Sukhram,
Manish and Ajay were amongst the
assailants and in the FIR, their names have
been indicated, but by filing charge sheet,
their names have been deleted and charge
sheet has been filed against other accused
persons. It has been further stated in such
application that Dharmendra Kumar Singh
and two other witnesses have been
examined. He has further submitted that in
the chief-examination of those witnesses,
names of above named accused persons
have been indicated against whom the
charge sheet has not been filed, therefore,
the specific request has been made before
the court concerned that by invoking
powers
under
Section
319
Cr.P.C.
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
accusedAnkit, Ranvijay Patel, Ramsukh
alias Sukhram, Manish and Ajay be
summoned.

5. Learned counsel for the petitioner
has also stated that the present petitioner is
not only the informant but is an injured
person and he has not been examined by
the court concerned till date. In the chiefexamination
of
one
injured
witness
Shivam, names of above named accused
persons have been indicated, however,
during cross-examination, clear version has
not come. Learned counsel for the
petitioner has relied upon the judgment of
the Apex Court in re; Balu Sudam Khalde
and Another v. State of Maharashtra,
AIR 2023 SC 1736, wherein the Apex
Court in para-26 observed as under:-

"26. When the evidence of an
injured eye-witness is to be appreciated, the
under- noted legal principles enunciated by
the Courts are required to be kept in mind:

(a) The presence of an injured
eye-witness at the time and place of the
occurrence cannot be doubted unless there
are
material
contradictions
in
his
deposition.

(b)
Unless,
it
is
otherwise
established by the evidence, it must be
believed that an injured witness would not
allow the real culprits to escape and falsely
implicate the accused.

(c) The evidence of injured
witness has greater evidentiary value and
unless compelling reasons exist, their
statements are not to be discarded lightly.

(d) The evidence of injured
witness cannot be doubted on account of
some embellishment in natural conduct or
minor contradictions.

(e) If there be any exaggeration
or immaterial embellishments in the
evidence of an injured witness, then such
contradiction,
exaggeration
or
embellishment should be discarded from
the evidence of injured, but not the whole
evidence.

(f) The broad substratum of the
prosecution version must be taken into
consideration and discrepancies which
normally creep due to loss of memory with
passage of time should be discarded."

6. In the aforesaid para, the Apex
Court has observed that when the evidence
of an injured eye witness is to be
appreciated, some relevant facts should be
appreciated and if it is found that the
injuries sustained in the incident in
question, evidence of such injured witness
would have greater evidentiary value.
Therefore, the impugned order dated
04.09.2023 may be set aside and direction
may be issued to the court concerned to
summon the accused persons, namely,
Ankit, Ranvijay Patel, Ramsukh alias
Sukhram, Manish and Ajay.

7. Learned counsel for opposite party
no.2 has stated that the present petitioner
has got no locus to file this petition
inasmuch as he had not filed application
under Section 319 Cr.P.C. before the trial
court, rather such application was filed one
Dharmendra Kumar Singh. He has also
stated that the learned court concerned has
passed
speaking
and
reasoned
order
rejecting such application and powers
under Section 319 Cr.P.C. are invoked
sparingly, therefore, this petition may be
dismissed as there is no infirmity in the
impugned order dated 04.09.2023. Learned
counsels for opposite parties no.2 & 3 have
placed reliance upon the judgment of this
Court dated 19.11.2020 in re; Kanchhid
Singh v. State of U.P. and 2 Others,
Application U/S 482 No.12491 of 2020,
wherein this Court has held that for
2 All. Atul Kumar Singh Vs. State of U.P. & Ors.
1143
invoking powers under Section 319 Cr.P.C.,
the court concerned must be careful and
unless and until the specific material/
evidence is not available on the record/
pleadings, such power should not be
invoked inasmuch as power under Section
319 Cr.P.C. is on high pedestal.

8. Ms. Nushrat Jahan, learned A.G.A.
has stated that this is a settled law of the
Apex Court in re; Hardeep Singh v. State
of Punjab, (2014) 3 SCC 92, Sartaj Singh
v. State of Haryana and Another, (2021)
5 SCC 337 and Yashodhan Singh and
Others V. State of U.P. and Another,
(2023) 9 SCC 108, to the effect that while
considering
and
disposing
of
the
application filed under Section 319 Cr.P.C.,
learned trial court must consider all
allegations and evidences on record and
unless and until the court finds relevant
material/ evidence to summon the persons
under Section 319 Cr.P.C., those persons
should not be summoned in a cursory
manner inasmuch as the power under
Section 319 Cr.P.C. is on high pedestal.
Learned A.G.A. has stated that in view of
the aforesaid decisions of the Apex Court,
the impugned order dated 04.09.2023 does
not appear to be appropriate inasmuch as
the request of the injured person, who is
informant also, may not be turned down in
a cursory manner, though the powers under
Section 319 Cr.P.C. are invoked sparingly.

9. The Apex Court in re; Hardeep
Singh (supra) has held that if the trial
court is convinced on the basis of chiefexamination, it may summon the accused
persons without going into the aspects of
cross-examination.

10. In re; Yashodhan Singh (supra),
the Apex Court has held that if the learned
trial court finds relevant material/ evidence,
it can invoke powers under Section 319
Cr.P.C. even if such person/persons is/are
not named in the FIR or not named in the
charge sheet or has/ have been discharged
before framing of the charges.

11. Having heard learned counsel for
the parties and having perused the material
available on record, I find that while
rejecting the application under Section 319
Cr.P.C., the learned trial court has not
assigned specific reason and has not
recorded
their
subjective
satisfaction
inasmuch as after considering the facts and
circumstances, documents of the parties
and referring the various judgments of the
Constitutional Courts, such application has
been rejected only for the reason that
powers under Section 319 Cr.P.C are
invoked sparingly. This is a trite law that
while rejecting an application, the court
concerned must pass speaking and reasoned
order so that it could be understood that the
court concerned has applied its judicious
mind, therefore, for this reason alone, the
order dated 04.09.2023 is liable to be set
aside.

12. Further, the Apex Court in re;
Hardeep Singh (supra), Sartaj Singh
(supra), Yashodhan Singh (supra)and Balu
Sudam Khalde (supra) has clearly held
that though the powers under Section 319
Cr.P.C. are invoked sparingly but at the
same time, if there is any cogent material/
evidence available on record, the powers
should be invoked so as to conclude the
trial to its logical conclusion. In the present
case, the petitioner, who is an injured
witness, has not been examined by the
court concerned till date and on the basis of
chief-examination of injured witness and
other eye witnesses wherein the names of
above named accused persons have been
indicated,
the
court
concerned
must
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
evaluate
such
evidence.
Further,
the
evidentiary value of the injured witness is
on the high pedestal and the present
petitioner being inured witness and he is
stating on oath in this petition that accused
persons against whom the charge sheet has
not been filed were the assailants. Besides,
Dharmendra Kumar Singh and Shivam,
who are injured witnesses, have stated in
chief examination that the persons against
whom the allegations have been levelled in
the application filed under Section 319
C.P.C. have assaulted the victim, therefore,
such
application
should
have
been
considered properly.

13. In view of the above, the
impugned order dated 04.09.2023 is hereby
set aside/ quashed. The matter is remanded
back to the learned trial court to decide the
application dated 17.10.2022 filed by
Dharmendra Kumar Singh afresh. Liberty
is also given to the petitioner, who is
injured witness, to file such application
under Section 319 Cr.P.C. by providing
certified copy of this order before the court
concerned and that application shall also be
decided by the learned trial court, strictly in
accordance with law, by speaking and
reasoned order, by affording an opportunity
of hearing to the parties concerned, with
expedition, preferably within a period of
six weeks from the date of production of
certified copy of this order.

14. Accordingly, the instant petition is
allowed.
----------
(2024) 2 ILRA 1144
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.02.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
Application u/s 482 No. 1122 of 2024

Avdhesh @ Avdhesh Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Bhup Chandra Singh

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - Alteration of charge by
court - The Code of criminal procedure,
1973 - Sections 161, 164, 216, 221, 222,
397, 482 - Inherent power, Indian Penal
Code, 1860 -Sections 363, 366, 376 ,
Protection
of
Children
from
Sexual
Offences (POCSO) Act, Sections 3, 4, 16,
17 - Trial court has exclusive power to
alter or add charges under Section 216
CrPC at any time before the judgment is
pronounced - Court must apply judicious
mind
considering
evidence
and
circumstances - there is no right in any
party to seek for such addition or
alteration by filing any application as a
matter of right - if there was an omission
in the framing of the charge and if it
comes to the knowledge of the Court
trying the offence, the power is always
vested in the Court, as provided under
Section 216 CrPC to either alter or add the
charge.(Para - 5)

Petitioner seeks to quash order adding charges
under Sections 376 IPC and 3/4 POCSO Act -
Prosecution filed application based on prosecutrix's
testimony - Petitioner granted bail in initial case
under Sections 363 & 366 IPC and Sections 16/17
POCSO Act. (Para - 4)

HELD: - Trial court has rightly considered the
testimony of the prosecutrix whereby she has
stated on oath before the court during trial that
the petitioner has committed offence of rape when
she was below eighteen years. Trial court's order
adding charges upheld. Petitioner can raise
defenses and seek leniency in bail. (Para - 7, 9)

Petition disposed of finally. (admission
stage)
(E-7)