# Bablu @ Dinesh Singh & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 627
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-13
- **Case number:** Criminal Revision No. 4176 of 2022
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bablu-dinesh-singh-ors-revisionists-v-state-of-u-p-anr-50257
- **Pages:** 7

## Headnote

G.A.,
Sri
Abhishek
Kumar,
Sri
Udai
Chandani

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 302/149, 307/149,
323/149, 504 & 506 - Against summoning
order - FIR was lodged against 16 named
and several unnamed persons, alleging
they attacked the complainant and his
companions with weapons causing serious
injuries - Charge-sheet submitted only
against six accused persons, exonerating
the revisionists-accused on the basis of
independent witnesses - Prosecution filed
application
u/s
319
Cr.P.C.
with
averments that co-accused are involved in
incident
but
they
are
not
tried
-
Application
allowed
-
Held,
specific
allegations against accused showing their
complicity in incident - One person has
died while several others (11 in number)
received
injuries
-
Complainant
corroborated allegations of FIR in his
St.ment
u/s
161,
Cr.P.C
-
Injured
witnesses
corroborated
St.ment
of
complainant - Three eye witnesses St.d
presence of revisionists-accused at place
of occurrence - St.ment of injured witness
should
be
given
due
weightage
in
comparison
to
St.ment
of
other
independent
eye
witnesses
-
Cogent
evidence in form of testimony of injured
witness - Trial court narrated entire facts,
analysed all materials - No illegality in
impugned order. (Para 2, 3, 8, 13)

Criminal Revision dismissed. (E-13)

List of Cases cited:

## Text

5 All. Bablu @ Dinesh Singh & Ors. Vs. State of U.P. & Anr.
627

10. The revision lacks merit and is
hereby dismissed.
----------
(2023) 5 ILRA 627
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 4176 of 2022

Bablu @ Dinesh Singh & Ors.
 ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Anurag Vajpeyi, Sri Atharva Dixit, Sri
Aushim Luthra, Sri Manish Tiwari (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A.,
Sri
Abhishek
Kumar,
Sri
Udai
Chandani

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 302/149, 307/149,
323/149, 504 & 506 - Against summoning
order - FIR was lodged against 16 named
and several unnamed persons, alleging
they attacked the complainant and his
companions with weapons causing serious
injuries - Charge-sheet submitted only
against six accused persons, exonerating
the revisionists-accused on the basis of
independent witnesses - Prosecution filed
application
u/s
319
Cr.P.C.
with
averments that co-accused are involved in
incident
but
they
are
not
tried
-
Application
allowed
-
Held,
specific
allegations against accused showing their
complicity in incident - One person has
died while several others (11 in number)
received
injuries
-
Complainant
corroborated allegations of FIR in his
St.ment
u/s
161,
Cr.P.C
-
Injured
witnesses
corroborated
St.ment
of
complainant - Three eye witnesses St.d
presence of revisionists-accused at place
of occurrence - St.ment of injured witness
should
be
given
due
weightage
in
comparison
to
St.ment
of
other
independent
eye
witnesses
-
Cogent
evidence in form of testimony of injured
witness - Trial court narrated entire facts,
analysed all materials - No illegality in
impugned order. (Para 2, 3, 8, 13)

Criminal Revision dismissed. (E-13)

List of Cases cited:

1. Hardeep Singh Vs St. of Pun., AIR (1998) SC
3148

2. Brijendra Singh Vs St. of Raj., AIR (2019) SC
2839

3. Periya Sami Vs S. Nalla Samy, (2019) 4 SCC
342

4. Sagar Vs St. of U.P., (2022) 6 SCC 389

5. S. Mohd. Ispahani Vs Yogendra Chaudhary &
ors., (2017) 16 SCC page 226

6. Manjeet Singh Vs St. of Har. & ors., (2021) 0
AIR (SC) 4274

7. Kukhpal Singh Khaira Vs St. of Punjab
(Criminal Appeal No. 885 of 2019 decided on
5.12.2022)

8. Sambhaji & ors. Vs St. of Maharashtra & anr.,
2008 Crl.L.J. 1123

9. Rajindra Singh Vs St. of U.P. & anr., AIR 2007
Supreme Court 2786

10. Hardeep Singh Vs St. of Punjab, AIR 2014
Supreme Court page 1400, (Para 98, 99)

11. Brijendra Singh & ors. Vs St. of Raj., (2017)
7 SCC page 706, (Para 13)

12. Rajesh and ors Vs St. of Har., (2019) 6 SCC
368

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)
628 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Manish Tiwari, learned
Senior Counsel assisted by Sri Aushim
Luthra, learned counsel for the revisionists,
Sri Udai Chandani, learned counsel for the
O.P. No. 2 and learned A.G.A. for the
State.

2. This criminal revision is directed
against the order dated 6.9.2022 passed by
Additional Sessions Judge/Special Judge
(Gangster Act) F.T.C. (1st) Gautam Budh
Nagar in S.T. No. 675 of 2015 under
section
147, 148,
302/149, 307/149,
323/149, 504, 506 IPC (State of U.P. and
another Vs. Gyani and others), P.S.
Knowledge Park, District Gautam Budh
Nagar. By the impugned order the learned
trial court on application of prosecution
under section 319 Cr.P.C. has summoned
the revisionists-accused to face trial for
offence under section 147, 148, 302/149,
307/149, 323/149, 504 and 506 IPC.

3. An FIR was lodged on 10.5.2015 at
15:20 hours by Mahesh Chandra against 16
named and several unnamed persons
alleging therein that on 10.5.2015 the
complainant with his brother Vijendra,
uncle Ishwar Singh, Sonu @ Pushkar,
Mahendra, Ramesh, Suresh, Karme @
Karam Singh, Naveen @ Kale, Sonu S/o
Ramesh, Mintu @ Shyama Singh was
ploughing his field situated at Hamlet
Gulawali. At about 10:30 a.m. 50-60
persons in 15-16 vehicles and four tractors
holding lathi, farsa, iron rod etc. came there
and asked the complainant why they are
working in their field. The complainant
said that the field belongs to him. On this
Lekhraj, Kanwar Singh, Shyam Singh,
Anniraj, Komal, Nauraj, Ghanshyam, Jag
Pravesh, Billoo, Gajraj, Malkhan, Pawan,
Sukhpal,
Mukesh
Bindal
and
other
unknown persons attacked the complainant
and his companions with the weapons in
their hands causing serious injuries to them.
Ishwar Singh, uncle of the complainant was
attacked by Lekhraj, Sonu and Babloo with
iron rod and farsa on his head and
thereafter run over by the tractor. Receiving
injuries he fell down and died in the
hospital. All the accused persons weilding
the weapons and opening fire went away
from the spot in vehicles and tractors. The
complainant and all other injured were
taken to the hospital where they are under
treatment. After investigation charge-sheet
was submitted exonerating the revisionistsaccused. During course of trial three
witnesses
were
examined
by
the
prosecution. Thereafter, an application
under section 319 Cr.P.C. was moved by
the prosecution with averments that FIR
was lodged by Mahesh Chandra against 16
accused persons including Babloo @
Dinesh Singh, Ghanshyam, Shyam Singh,
Malkhan Singh, Pawan Kumar and Kanwar
Singh. They are also involved in the
incident but they are not being tried. The
prosecution witness Mahesh, P.W. 1 and
Mahendra Singh, P.W. 2 in their statements
under section 161 Cr.P.C. and also in their
deposition before the court have stated
about the complicity of the aforesaid
accused in the incident and there is
sufficient evidence against them. A prayer
was made to summon them under section
319 Cr.P.C. The learned trial court after
hearing the parties by the impugned order
has allowed the aforesaid application and
has summoned the revisionists-accused.

4. Learned counsel for the revisionists
contended that initially 16 accused persons
were implicated by name in the FIR.
During investigation the name of another
accused Gyani was introduced as the main
accused and the role of running over Ishwar
Singh by tractor was assigned to him while
in the FIR Gyani was not named and no
5 All. Bablu @ Dinesh Singh & Ors. Vs. State of U.P. & Anr.
629
role was assigned to him. No crush injury
has been found on the body of Ishwar
Singh in the postmortem. In the FIR it is
alleged that Ishwar Singh was taken to
hospital
where
he
died
but
during
investigation the prosecution changed this
version and alleged that Ishwar Singh died
on the spot which is major deviation,
changing the place of occurrence. During
trial the prosecution witnesses have omitted
the name of co-accused Jag Prakash,
Billoo, Navraj, Sukhpal and Mukesh while
their names are specifically mentioned in
the FIR as well as in the statements under
section 161 Cr.P.C. of the witnesses and
even the affidavits filed by them. Learned
counsel submitted that the above facts
show that prosecution has changed his
version time to time and has come-forth
with a pick and choose move. It also
reflects that the entire prosecution case is
nothing but a sham. It is further contended
that the Investigating Officer has recorded
the statements of number of independent
eye witnesses and they have not implicated
the revisionists-accused, rather they have
stated about their false implication by the
prosecution due to enmity and land dispute.
Even the injured witnesses Dhan Singh and
Karan Singh in their statements under
section 161 Cr.P.C. have not supported the
prosecution version in respect of the
revisionists-accused. They have stated that
they have not seen the revisionists-accused,
they did not identify them, they have heard
about their presence. On the basis of the
statements as well as other material on
record the Investigating Officer submitted
the charge-sheet only against six accused
persons namely Sonu, Lekhraj, Abhiraj,
Komal,
Gajraj
and
Gyani.
The
Investigating Officer came to conclusion
that there is no conclusive evidence against
the revisionists and exonerated them.
However, investigation was transferred to
the
crime
branch
but
no
evidence
whatsoever was brought forth against the
revisionists in particular. It is further
submitted that sufficient eye witness
testimony has been collected by the
Investigating Officer, which establishes
that revisionists were not present at the
place of occurrence and were not part of
the alleged incident. Their names have been
brought forth only due to rivalry and in
order to wreck vengeance. The version of
the FIR is highly improbable. The first
informant himself has changed his version
from time to time. P.W. 3 Investigating
Officer has explained as to on what basis
the revisionists were exonerated. After
recording testimony of P.W. 2 the first
informant with malafide intention to harass
and
humiliate
the
revisionists
filed
application U/s 319 Cr.P.C. The co-accused
have filed a detailed objection against it.
Learned trial court without considering the
grounds of objection in perfunctory manner
passed the impugned order. Learned
counsel further submitted that the trial
court has failed to consider the guidelines
of the Apex Court while summoning an
accused under section 319 Cr.P.C. as laid
down in the case of Hardeep Singh Vs.
State of Punjab AIR (1998) SC 3148,
Brijendra Singh Vs. State of Rajasthan
AIR (2019) SC 2839 and Periya Sami Vs.
S. Nalla Samy (2019) 4 SCC 342 and has
passed the impugned order in a very
lackadaisical manner. The impugned order
has been passed only on the basis of
reiterated version of the statements under
section 161 Cr.P.C. The learned trial court
has failed to give reasons as to why
exoneration by the Investigating Officer
should be denied. The Apex Court has held
that to summon an accused under section
319 Cr.P.C. the evidence which has been
tested
once
during
the
course
of
investigation should not be the same. There
630 INDIAN LAW REPORTS ALLAHABAD SERIES
need to be something more, and only then
powers under section 319 Cr.P.C. should be
exercised. Learned court below has failed
to appreciate the settled legal position and
in a cursory manner has summoned the
revisionists
even
though
no
cogent
evidence was available. The learned trial
court has failed to record the degree of
satisfaction required, rather it has observed
that a prima facie case is made out which is
against the settled principle of law. The
impugned order is absolutely illegal. The
learned counsel in addition also placed
reliance on the following case laws:

1. Sagar Vs. State of U.P. (2022)
6 SCC 389

2.
S.
Mohd.
Ispahani
Vs.
Yogendra Chaudhary and others (2017)
16 SCC page 226

5. Learned counsel for the O.P. No. 2
and learned A.G.A. submitted that accused
are named in the FIR. There are clear and
specific allegations against them showing
their complicity in the incident. One person
has lost his life while 11 others have
suffered injuries. The complainant himself
is an injured. He and other injured
witnesses
have
constantly
in
their
statements under section 161 Cr.P.C. have
implicated
the
revisionists
accused
describing their role in the incident. The
Investigating Officer without any cogent
reason has exonerated them only on the
basis of statement of some so called
independent witnesses. It is also contended
that Investigating Officer has also collected
mobile detail calls which further confirms
the presence of the revisionists-accused at
the place of occurrence at the relevant point
of time but despite of this in collusion with
the revisionists-accused the Investigating
Officer
exonerated
them.
The
two
witnesses Mahesh, P.W. 1 and Mahendra,
P.W. 2 produced before the trial court are
injured
witnesses.
They
have
again
corroborated the allegations of the FIR and
previous statements recorded under section
161
Cr.P.C.
They
have
stated
that
revisionists-accused were present at the
place of occurrence and have participated
in the incident. So there is strong and
cogent evidence on record on the basis of
which the learned trial court has passed the
impugned order. Learned counsel also
placed reliance on the following case laws:

(i) Manjeet Singh Vs. State of
Haryana and others (2021) 0 AIR (SC)
4274

(ii) Kukhpal Singh Khaira Vs.
State of Punjab in Criminal Appeal No.
885 of 2019 decided on 5.12.2022

(iii) Sambhaji and others Vs.
State of Maharashtra and another 2008
Crl.L.J. 1123

(iv) Rajindra Singh Vs. State of
U.P. and another AIR 2007 Supreme
Court 2786

6. The Apex Court in the case of
Hardeep Singh Vs. State of Punjab AIR
2014 Supreme Court page 1400 has
prescribed
the
standard
of
evidence
required for exercising powers under
section 319 Cr.P.C. The relevant paras 98
and 99 are as follows:

"98. 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
5 All. Bablu @ Dinesh Singh & Ors. Vs. State of U.P. & Anr.
631
court that such power should be exercised
and not in a casual and cavalier manner."

"99. Thus, we hold that though
only a prima face 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."

7. In the case of Brijendra Singh
and others Vs. State of Rajasthan (2017)
7 SCC page 706 the Apex Court has
reiterated the principles laid down in
Hardeep Singh's case. The relevant para no.
13 is quoted below:

"13. In order to answer the
question, some of the principles enunciated
in
Hardeep
Singh's
case
may
be
recapitulated: 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 charge-sheet 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."

8. It is undisputed that the revisionists
are named in the FIR. There are specific
allegations against them showing their
complicity in the incident. On person has
died while several others (11 in number)
have received injuries in the incident.
According
to
prosecution
case
the
complainant is himself as an eye witness of
the incident. He has corroborated the
allegations of the FIR in his statement
recorded by Investigating Officer during
investigation. Injured witnesses have also
corroborated the statement of complainant
632 INDIAN LAW REPORTS ALLAHABAD SERIES
and allegations of FIR implicating the
revisionists-accused. Three eye witnesses
are also named in the FIR. They have also
stated about the presence of revisionistsaccused at the place of occurrence. The
Investigating Officer has exonerated the
revisionists-accused
on
the
basis
of
statements of other eye witnesses. During
trial the complainant and another injured
witness have been examined. They have
again corroborated the allegations of the
FIR showing the complicity of the
revisionists-accused in the incident. It is
settled law that the testimony of an injured
witness is on a high pedestal and can not be
ignored or discarded lightly but for cogent
reasons. Therefore, the statement of injured
witness should be given due weightage in
comparison to the statement of other
independent eye witnesses recorded by the
Investigating Officer and on the basis of
which he has exonerated the revisionistsaccused. So there is cogent evidence in
form of testimony of injured witness. It is
made clear that this observation will not
influence the trial court in appreciation of
evidence
at
final
stage.
The
other
arguments assailed by the learned counsel
for
the
revisionists
in
respect
of
contradictions and discrepancies are matter
of trial.

9. The test as laid down by the Apex
Court for invoking powers under section
319 Cr.P.C. inter alia includes the principle
that only when strong and cogent evidence
occurs against a person the power under
section 319 Cr.P.C. should be exercised.
The test to be applied is one which is more
than prima facie case, which is applied at
the time of framing of charge.

10. In Rajesh and ors vs.State of
Haryana, (2019) 6 SCC 368 wherein
informant named 10 persons for attempt to
murder of his son and another with specific
allegations against all the accused. The
Investigating Officer submitted his report
U/s 173 (2) Cr.P.C. against four accused
only, no challan filed against six accused
(appellants). The trial proceeded against
four accused only. During trial, P.W.-1
(complainant) and P.W.-2 (injured witness)
specifically stated about the overacts by the
accused appellants and role played by
them. An application for proceeding
against them under section 319 Cr.P.C. was
allowed by the trial court. The High Court
dismissed the revision. The Apex Court
held that, "the appellants herein are also
named in the FIR, in the deposition before
court, P.W. 1 & 2 have specifically stated
against
appellants
and
specific
roles
attributed to them, on the basis of the same,
the persons against whom, no charge-sheet
is filed can be summoned to face the trial,
no error has been committed by the courts
below to summon the appellants therein to
face the trial in exercise of power U/s 319
Cr.P.C.

11. So applying the test laid down by
the Apex Court on the present set of facts,
it is clear that there is strong evidence, than
mere probability of the complicity of the
accused in the form of testimony of injured
witnesses and it pass the test as laid down
by the Apex Court 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 led to conviction.

12. It is correct that the learned court
below has used the words prima facie but
that can not be a ground to set-aside the
impugned order. The learned trial court
may not have used the appropriate words
but it is clear that it has analysed the
evidence and other material on record. It
5 All. Shivbodh Kumar Mishra @ Shiv Bodh Mishra Vs. Union of India & Ors.
633
has also considered the legal proposition
and thereafter has exercised its power
under section 319 Cr.P.C. This court has to
judge the correctness, legality and propriety
of the impugned order.

13. The learned trial court has
narrated the entire facts, analysed all the
materials.
Being
satisfied
about
the
complicity
of
the
revisionists
has
summoned them. There is no illegality or
infirmity in the impugned order. it needs no
interference.

14. Accordingly, the revision is
devoid of merits and is hereby dismissed.
----------
(2023) 5 ILRA 633
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE GAJENDRA KUMAR, J.

Habeas Corpus No. 729 of 2022

Shivbodh Kumar Mishra @ Shiv Bodh
Mishra ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vimlendu Tripathi

Counsel for the Respondents:
A.S.G.I., G.A., Sri Krishna Agarawal

Criminal Law - Prevention of Illegal Traffic
in
Narcotic
Drug
and
Psychotropic
Substance Act, 1988 - Section 3(1) -
Against detention order dated 04.03.22 -
Constitution of India, 1950 - Articles 22(2)
- On 25.4.22, petitioner had gone to
attend date fixed in trial case in District
Court, illegally arrested - The police
brought
him
to
Police
Station
and
thereafter admitted him to District Jail on
27.4.22, in compliance of detention order
passed - No other case was registered
except two cases in which he was arrested
but bailed out - Argument, report of
sponsoring authority was never shared
with him as to when and on what date the
detaining authority took a decision of
preventive detention - Held, non supply of
material
by
sponsoring
authority,
petitioner was not in a position to give
representation
- No direct 'live and
proximate
link'
between
action
of
petitioner and detention order - Not a
single
word
has
been
whispered
in
detention order that even after being
bailed out was regularly in touch with his
sources or mobilising them -Impugned
order set-aside.

Writ Petition Allowed. (E-13)

List of Cases cited:

1. Sushanta Kumar Banik Vs St. of Tripura &
ors., 2022 LiveLaw (SC) 813

2. Ashok Kumar Vs Delhi Administrative and ors,
(1982) 2 SCC 403

3. Ahmedhussain Shaikhhussain @ Ahmed Kalio
Vs Commissioner of Police, Ahmedabad & anr.,
(1989) 4 Supreme Court Cases 751

4. Heisnam Chaoba Singh Vs The U.O.I.& ors.,
2021 SCC Online Cal 2691

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Shri Vimlendu Tripathi,
learned counsel for the petitioner; Shri
Krishna Agarawal, learned counsel for
respondent nos.1, 2 & 3 and also learned
Additional
Government
Advocate
for
respondent nos.4 and 5. We have gone
through the entire materials brought before
us.

2. Pleadings have been exchanged
between the parties and the matter is ripe