# Bhola Yadav Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 3 ILRA 7
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-24
- **Case number:** Criminal Revision No. 3576 of 2019
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhola-yadav-revisionist-v-state-of-u-p-anr-49805
- **Pages:** 6

## Headnote

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Section 302 -murder , The
Code of criminal procedure, 1973 - Section
161 - Examination of witnesses by police ,
Section 319 - power to proceed against
other persons appearing to be guilty of
offence - Power under Section 319, Cr.P.C.
is a discretionary and an extra-ordinary
power - to be exercised sparingly and only
in those cases where the circumstances of
the case so warrant - 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. (Para
- 9)

Father of complainant was killed due to old
enmity
-
Three
witnesses
corroborated
allegations of F.I.R. - application filed by
prosecution under Section 319 Cr.P.C. - trial
court summoned revisionist to face trial with coaccused
-
Investigating
Officer
collected
plethora of evidence regarding fact - revisionist
was not present at the time of occurrence - coaccused has already been acquitted disbelieving
prosecution evidence . (Para - 2,3,11)

HELD:- Impugned order failed to meet the test
laid down for exercising powers under Section
319 Cr.P.C. It has been passed in a cavalier
manner without taking into account all facts and
circumstances
of
the
case,
making
it
unsustainable. (Para -12 )

Criminal revision allowed. (E-7)

List of Cases cited:

## Text

3 All. Bhola Yadav Vs. State of U.P. & Anr.
7
(2023) 3 ILRA 7
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 3576 of 2019

Bhola Yadav ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Sharad Chand Rai, Sri Shri Krishna
Mishra

Counsel for the Respondents:
G.A., Sri Janardan Mishra, Sri Rajni Kant
Chaube

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Section 302 -murder , The
Code of criminal procedure, 1973 - Section
161 - Examination of witnesses by police ,
Section 319 - power to proceed against
other persons appearing to be guilty of
offence - Power under Section 319, Cr.P.C.
is a discretionary and an extra-ordinary
power - to be exercised sparingly and only
in those cases where the circumstances of
the case so warrant - 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. (Para
- 9)

Father of complainant was killed due to old
enmity
-
Three
witnesses
corroborated
allegations of F.I.R. - application filed by
prosecution under Section 319 Cr.P.C. - trial
court summoned revisionist to face trial with coaccused
-
Investigating
Officer
collected
plethora of evidence regarding fact - revisionist
was not present at the time of occurrence - coaccused has already been acquitted disbelieving
prosecution evidence . (Para - 2,3,11)

HELD:- Impugned order failed to meet the test
laid down for exercising powers under Section
319 Cr.P.C. It has been passed in a cavalier
manner without taking into account all facts and
circumstances
of
the
case,
making
it
unsustainable. (Para -12 )

Criminal revision allowed. (E-7)

List of Cases cited:

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

2. Soma Bhai Vs St. of Guj. , A.I.R. 1925 SC
1453

3. Brijendra Singh & anr. Vs St. of Raj. , (2017)
7 SCC 706

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
revisionist, learned counsel for opposite
party no.2 as well as the learned A.G.A.
and perused the material placed on
record.

2. The revisionist, by way of filing the
present revision, has sought to quash the
impugned judgement and order dated
15.05.2019 passed by Additional Session
Judge/Special Judge (POCSO Act), Court
No.8, Allahabad in Session Trial No.793 of
2015 (State Vs. Lallu Ram and others)
arising out of Case Crime No. 273 of 2015
under Section 302 I.P.C., Police Station
Handiya, District Prayagraj/Allahabad. By
the impugned order, learned trial court, on
an application filed by the prosecution
under Section 319 Cr.P.C., has summoned
the revisionist to face trial with co-accused,
Lallu Ram.
8 INDIAN LAW REPORTS ALLAHABAD SERIES

3. An F.I.R. was lodged on 22.06.2016
alleging therein that today father of
complainant, Jagmal Prasad was returning
from Allahabad,on the way, at 5.30 p.m.
when on his Vikki motorcycle, he reached
near Village Chaknandu Nahar Puliya,
Lallu Ram Yadav and Bhola Yadav due to
old enmity opened fire on the head of
Jagmal Prasad by a country-made pistol.
He died on spot. At the same time, Samar
Bahadur, brother and Ram Prasad, uncle of
the complainant, who were returning home,
hearing the sound of fire, reached at the
spot, then accused persons, waving the
country-made pistols ran away from the
spot. After investigation charge-sheet was
submitted only against one accused, Lallu
Ram Yadav. The other named accused,
Bhola Yadav was exonerated. During
course of trial three witnesses, Amar
Bahadur PW 1, Samar Bahadur PW 2 and
Ram Prasad PW 3 were examined.
Thereafter, an application under Section
319 Cr.P.C. was filed by the prosecution on
the grounds that the complainant in the
F.I.R., in his statement under Section 161
Cr.P.C. and in testimony before the court
has corroborated the allegations of the
F.I.R. that Lallu Ram Yadav on the
exhortation of Bola Yadav with intention to
kill has opened fire on Jagmal Prasad
causing his death. There are other eyewitnesses,Samar Bahadur PW 2 and Ram
Prasad PW 3, who also in their statement
under Section 161 Cr.P.C. and before the
trial
court,
have
fully
corroborated
aforesaid statement. The Investigating
Officer has submitted charge-sheet only
against Lallu Ram while it is clear that
Bhola Yadav is also involved in the
incident with co-accused Lallu Ram Yadav.
Prayer was made to summon the accused,
Bhola Yadav. Learned trial court has
allowed the application and summoned the
revisionist-accused.

4. It is contended by the learned
counsel for the revisionist that there is no
evidence against the revisionist fulfilling
conditions required for summoning under
Section 319 Cr.P.C., hence the impugned
order is not sustainable in the eye of law. It
is
further
contended
that
from
the
statements of Amar Bahadur PW 1, Samar
Bahadur PW 2 and Ram Prasad PW 3 who
are alleged to be eye-witnesses of the
incident, it is clear that they were not
present at the time of the incident, but they
came later on. It is next contended that
Investigating Officer during the course of
investigation has collected the evidence of
the fact that the revisionist-accused was
employed at Mumbai and at the relevant
time he was at Mumbai in relation to his
employment. The Investigating Officer has
collected reliable and cogent evidence in
this
respect
and
on
these
grounds
exonerated the revisionist-accused. Learned
trial court while passing the impugned
order has lost sight of the evidence
collected by the Investigating Officer that
revisionist-accused was not present in the
village at the time of occurrence. Learned
counsel has submitted that the Apex Court
in Hardeep Singh Versus State of Punjab,
2014(3) SCC 92 has held as follows:

"though only a prima face case is
to be established from the evidence led
before the court not necessarily tested on
the anvil of cross-examination, 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.
3 All. Bhola Yadav Vs. State of U.P. & Anr.
9
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."

5. He has further contended that trial
of Lallu Ram Yadav was completed which
culminated into his acquittal. The eyewitnesses
account
produced
by
the
prosecution was disbelieved by the trial
court, so there is no evidence against the
revisionist-accused on which he could be
tried. The fate of the trial is well-known
and it may be a futile exercise. The
impugned order suffers from material
illegality and is liable to be set aside.

6. Learned counsel for the opposite
party no.2 and learned A.G.A. appearing
for State contended that revisionist-accused
is named in the F.I.R. with specific
allegations of his complicity in the heinous
crime of murder in which father of the
complainant lost his life. The complainant,
Amar Bahadur himself is the eye-witness.
There are two other eye-witnesses, Samar
Bahadur and Ram Prasad. All of them in
their statements under Section 161 Cr.P.C.
has fully corroborated the allegations of the
F.I.R. establishing the complicity of the
revisionist-accused in the incident. They
have reiterated it before the trial court in
their testimony. It is further contended that
the plea of alibi is to be proved to the
satisfaction of the court. Learned counsel
has placed reliance on the case law of
Soma Bhai Versus State of Gujrat A.I.R.
1925 SC 1453. Relevant paragraph-17 is
quoted below:

"17. It was lastly contended by
the learned Counsel for the appellant that
as the accused was found at Surat at 9 P.M.
when he lodged the report against Ratilal
Deva and others regarding the concealment
of smuggled silver, hence the accused could
not have been present at the time of
occurrence. In other words, this was a sort
of plea of alibi which was sought to be
taken by the appellant. There is, however,
no evidence on the record to prove that the
accused was seen at Surat by the police
officer at 9 P.M. The evidence of Circle
Inspector Rijhsinghani clearly shows that
he saw the accused at about 10 P.M. The
occurrence took place at Dandi a little
before 9 P.M. There was ample time for the
accused to have gone to Surat by a jeep. It
may be mentioned that it is admitted case
of the appellant that he went to Surat in a
jeep and in fact he explained that he got the
injuries on his head because his jeep
suddenly came to a stop in view of the
crowded streets of Surat and his head
dashed against the window-screen of the
jeep. It is well settled that a plea of alibi
has got to be proved to the satisfaction of
the Court."

7. Learned counsels further contended
that trial court has analysed all the facts,
evidence and material on record and on its
basis has recorded the finding that there is
sufficient and cogent evidence against the
revisionist-accused
and
has
passed
summoning
order.
The
impugned
summoning order is reasoned one and there
is no illegality or irregularity in it.

8. It is not disputed that revisionistaccused was named in the F.I.R., but during
investigation the Investigating Officer
found that he was not present in the village
at the alleged time of the incident. The
Investigating Officer has collected evidence
10 INDIAN LAW REPORTS ALLAHABAD SERIES
in respect of it which is part of the case
diary. He has also visited Mumbai and has
recorded statement of his employer and
collected
other
documents
also. The
statement of Samar Bahadur PW 2 and
Ram Prasad PW 3 before the court are
reiteration of their statement as recorded
under Section 161 Cr.P.C.

9. The standard of evidence required
for exercising powers under Section 319
Cr.P.C. has been prescribed in the case of
Hardeep Singh Versus State of Punjab
(supra).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
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."

10. In Brijendra Singh and another
Versus State of Rajasthan (2017) 7 SCC
706, the Apex Court has made following
observations:

"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 ofwhich 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
3 All. Bhola Yadav Vs. State of U.P. & Anr.
11
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.

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."

11. The facts of present case are
almost identical to the facts of Brijendra
Singh and another Versus State of
Rajasthan (supra). In this case also the
Investigating Officer has collected a
plethora of evidence regarding the fact that
revisionist was not present at the time of
occurrence. His presence was at Mumbai
which is far away from the place of
occurrence. Further in this case one more
important factor is that co-accused, Lallu
12 INDIAN LAW REPORTS ALLAHABAD SERIES
Ram Yadav has already been acquitted
disbelieving the prosecution evidence. The
evidence against the revisionist-accused is
the same.

12. The impugned order reveals that
learned trial court has assessed only the
evidence recorded before it. It has not taken
into consideration every facts and material
available on record. The impugned order
has been passed in a cavalier manner
without appreciating entire facts and
circumstances of the case. It does not
satisfy the test laid down for exercising
powers under Section 319 Cr.P.C. So, the
impugned order is not sustainable in the
eye of law.

13. Accordingly, this criminal revision
is allowed. The impugned order dated
15.05.2019 passed by Additional Session
Judge/Special Judge (POCSO Act), Court
No.8, Allahabad in Session Trial No.793 of
2015 (State Vs. Lallu Ram and others)
arising out of Case Crime No. 273 of 2015
under Section 302 I.P.C., Police Station
Handiya, District Prayagraj/Allahabad is
hereby set aside.
----------
(2023) 3 ILRA 12
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 23 of 2021

Santosh Kumar & Ors. ...Appellants
Versus
Jagat Narayan & Ors. ...Respondents

Counsel for the Appellants:
Sri Anil Kumar Sharma, Sri Ajay Mishra, Sri
Kapil Kumar, Sri Krishna Mishra, Sri S.K.
Mishra

Counsel for the Respondents:
Sri Sangam Singh, Sri Krishan Mohan
Mishra

Civil Law - Civil Procedure Code - Order -
41 - Rule - 17, 19: - Appeal - challenging the
order passed by appellate court - whereby court
below dismissed the application proffered under
Order 41 Rule 17 of CPC moved by Plaintiff
Appellants - Suit for permanent injunction -
dismissed by trial court - Civil Appeal -
dismissed-in-default - Application for restoration
- rejected, by Appellate court, on the ground
that several dates were fixed by the court which
was
in
the
knowledge
of
counsel
of
plaintiffs/appellants
as
well
as
plaintiffs/appellants, but they were absent and
non-appearance was not bona-fide and genuine
- it is settled law that court should have taken
the sympathetic and liberal view to do
substantial justice while deciding application
instead of taking technical view in the matter
while disseminating substantial justice - court,
on the interpretation of the word "was
prevented
by
any
sufficient
cause
from
appearing" - held that, where any party does
not approach the court with the clean hand and
with true facts and files an application to get the
order of dismissal in the default set aside on a
ground which was not made out from the
record, and the ground has been set up with an
intention to befool or defraud the court, the
court should not come in aid to such a party to
allow him to reap the fruits of false and frivolous
explanation to get the order in favour, as done
in present case - in such view of the fact,
present appeal is dismissed. (Para - 29, 31, 32)

Appeal Dismissed. (E-11)

List of Cases cited:

Atar Singh & ors. Vs Lotan Singh & ors. AIR
1992 All. 59.

(Delivered by Hon'ble Saral Srivastava, J.)