# Bhura & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 677
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-18
- **Case number:** Criminal Revision No. 4894 of 2022
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhura-ors-revisionists-v-state-of-u-p-anr-49728
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 319 - Indian Penal
Code, 1860 - Sections 34, 302 & 452 -
Criminal Revision - against, order impugned by
which - trial court on an application moved on
behalf of the prosecution, summoned the
revisionists to face the trial - Offences of Murder -
present revision, filed against, the order of
conviction - Whether revision is maintainable - the
scope and ambit of section 319 CrPC has been well
settled by the Hon'ble Apex court vide Constitution
Bench judgment in Hardeep Singh' Case - court
finds that, arguments made on behalf of
revisionists does not mention any reason why the
informant instead of accusing the real accused
involved in the murder of his brother, will name
revisionists for his murder - in the light of law laid
down by the Hon'ble Apex Court (supra),
regarding the summoning of persons who have
not been named in the Charge-sheet - present
Revision is rejected with liberty - if the revisionists
will apply for Bail within 30 days, no coercive
action shall be taken against them till then -
directions accordingly. (Para - 14, 19, 20)

Revision Rejected. (E-11)

List of Cases cited: -

## Text

2 All. Bhura & Ors. Vs. State of U.P. & Anr.
677
has committed illegality in allowing the
application filed by the prosecution under
Section 319 Cr.P.C. The standard of
evidence required for exercising the powers
under Section 319 Cr.P.C. is lacking. The
trial court while deciding the application
under Section 319 Cr.P.C. has completely
ignored the material available on record. It
is on account of above that trial court has
failed to record some degree of satisfaction
which is required to summon an accused
under Section 319 Cr.P.C. Resultantly,
court below has recorded an erroneous
finding and has failed to exercise its
jurisdiction
in
accordance
with
the
parameters laid down by the Apex Court.
The impugned order is not sustainable in
the eye of law and, therefore, the impugned
order is liable to be set aside.

12. Accordingly, this criminal revision
is allowed. The impugned order dated
15.09.2022 passed by Additional Session
Judge/Fast Track Court No.1, Allahabad in
Sessions Trial No.132 of 2020 (State Vs.
Mahfooz) arising out of Case Crime No.
331 of 2018 under Sections 354, 452, 376D
and
506
I.P.C.,
Police
Station
Nawabganj, District Allahabad is hereby
set aside.
----------
(2023) 2 ILRA 677
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 4894 of 2022

Bhura & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri MJ Akhtar, Sri Mohd. Akbar Shah Alam
Khan, Sri Satya Dheer Singh Jadaun, Sri
Uma Shankar Tiwari, Sri V.M. Zaidi (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A., Sri Jitendra Prasad Mishra

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 319 - Indian Penal
Code, 1860 - Sections 34, 302 & 452 -
Criminal Revision - against, order impugned by
which - trial court on an application moved on
behalf of the prosecution, summoned the
revisionists to face the trial - Offences of Murder -
present revision, filed against, the order of
conviction - Whether revision is maintainable - the
scope and ambit of section 319 CrPC has been well
settled by the Hon'ble Apex court vide Constitution
Bench judgment in Hardeep Singh' Case - court
finds that, arguments made on behalf of
revisionists does not mention any reason why the
informant instead of accusing the real accused
involved in the murder of his brother, will name
revisionists for his murder - in the light of law laid
down by the Hon'ble Apex Court (supra),
regarding the summoning of persons who have
not been named in the Charge-sheet - present
Revision is rejected with liberty - if the revisionists
will apply for Bail within 30 days, no coercive
action shall be taken against them till then -
directions accordingly. (Para - 14, 19, 20)

Revision Rejected. (E-11)

List of Cases cited: -

1. Sagar Vs St. of U.P. & anr., Criminal Appeal
No. 397 of 2022, arising out of SLP (Crl.) No.
7373 of 2021, dated 10.03.2022,

2. Ramesh Chandra Srivastava Vs St. of U.P. & anr.,
Criminal Appeal No. 290 of 2021, arising out of SLP
(Crl.) No. 6381 of 2020, dated 13.09.2021,

3. Manjeet Singh Vs St. of U.P., Criminal Appeal
No. 825 of 2021, decided on 24.08.2021,

4. Bholu Ram Vs St. of Pun. & anr., Criminal
Appeal No. 1366 of 2008, arising out of SLP
(Crl.) No. 39 of 2001,
678 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Rajindra Singh Vs St. of U.P. & anr., AIR 2007
SC 2786,

6. Hardeep Singh Vs St. of Pun. & ors., (2014) 3
SCC 92,

7.
S.
Mohammad
Ispahani
Vs
Yogendra
Chandak, (2017) 16 SCC 226,

8. Rajesh Vs St. Of Har., (2019) 6 SCC 368.

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri V.M. Zaidi, learned Senior
Advocate, assisted by Sri Satya Dheer
Singh Jadaun, Sri Mohd. Akbar Shah Alam
Khan and Sri Uma Shankar Tiwari, learned
counsels for the revisionists, Sri Sunil
Kumar Tripathi, learned A.G.A. for the
State and Sri Jitendra Prasad Mishra,
learned counsel for the opposite party no. 2.

2. The instant revision has been filed
against the order dated 09.11.2022 passed
by the Additional Sessions Judge, Deoband,
District- Saharanpur in Sessions Trial No.
20 of 2022 (Old S.T. No. 1402 of 2022),
"State of U.P. Vs. Rakib and others" arising
out of Case Crime No. 14 of 2022, under
Sections 302/34, 452/34 I.P.C., Police
Station- Badgaon, District- Saharanpur.

3. By the impugned order, the trial
court allowed Application No. 9Kha, under
Section
319
Cr.P.C.
presented
by
prosecution and summoned the revisionist
no. 1, Bhura, revisionist no. 2, Lilla alias
Mobin, both sons of Salamu, revisionist no.
3, Usman s/o Bhura, revisionist no. 4,
Saleem s/o Lilla and revisionist no. 5, Inam
s/o Khalil to face trial under Section
302/34, 452/34 I.P.C. along with other coaccused.

4. The revisionists have stated in their
ground
of
revision
that
during
investigation, the Investigating Officer
found that due to village enmity, informant
had named revisionists as accused in the
FIR but since no evidence was available
against them, the Investigating Officer did
not submit charge sheet against them.

5. The Investigating Officer recorded
the statement of eye-witnesses, Mursaleen,
Ehsan and Arshe Alam on 05.03.2022.
These eye witnesses specifically stated that
accused, Rakib, Zulfequar Rana and
Mobeen had committed the murder of Asif
s/o Aas Mohammad. These accused also
made confessional statements and recovery
of weapon was made. The Investigating
Officer charge-sheeted Rakib, Zulfequar
Rana and Mobeen regarding involvement
in the murder of Asif s/o Aas Mohammad.
The
learned
Trial
Court
without
considering the statement under Section
161 Cr.P.C. of eye-witnesses, Mursaleen,
Ehsan and Arshe Alam, merely on the basis
of
examination-in-chief
recorded
on
08.09.2022 of PW-1 Rashid, summoned the
revisionists for facing trial.

6. It has also been submitted by the
revisionists that as per the law laid down by
the Hon'ble Apex Court, the trial court
should sparingly exercise its power under
Section 319 Cr.P.C. for summoning an
accused under Section 319 Cr.P.C. Higher
quality of evidence is required than that of
framing charge against accused but the trial
court merely on the basis of examination of
PW-1, Rashid, finding prima facie case,
illegally summoned the accused.

7. It has been submitted that prior to
the said incident, revisionist no. 1, Bhura,
had lodged first information report against
Rakib and others who happens to be the
relative of present informant Rashid. That
case is being tried by the learned trial court.
2 All. Bhura & Ors. Vs. State of U.P. & Anr.
679
Revisionist nos. 2 to 5 are witnesses of the
said incident, therefore, they have been
falsely implicated in the present case.

8. The revisionist has relied on the
following judgments of the Supreme Court
in support of his contention:

1. Sagar vs. State of U.P. and
another, Criminal Appeal No. 397 of 2022,
arising out of SLP (Crl.) No. 7373 of 2021,
date of decision 10.03.2022.

2. Ramesh Chandra Srivastava
vs. State of U.P. and another, Criminal
Appeal No. 290 of 2021, arising out of SLP
(Crl.) No. 6381 of 2020, date of decision
13.09.2021.

9. Per contra, opposite party no.
2/informant, Rashid has opposed the
revision and supported the impugned order
stating that the trial court relying on the
decisions of the Hon'ble Apex Court and on
the basis of the evidence on record, has
rightly summoned the revisionists to face
trial in the case.

10. It has also been submitted that the
informant, Rashid and witness, Wasim has
named the revisionists in the FIR but due to
extraneous consideration, the Investigating
Officer did not rely on the statements of them
and on the basis of the statements of
Mursaleen, Ehsan and Arshe Alam, dropped
the names of the accused in the FIR and
illegally
submitted
charge-sheet
against
Rakib, Zulfequar Rana and Mobeen.

11. It has also been submitted that
informant and eye-witness, PW-1 Rashid
has supported the prosecution case as
mentioned in the FIR in his statement in the
Court and the trial court, relying on the
evidence,
has
rightly
summoned
the
revisionists to face trial.

12. The opposite party no. 2 has relied
on the following decisions of the Hon'ble
Supreme Court :

1. Manjeet Singh vs. State of U.P.,
Criminal Appeal No. 825 of 2021, decided
on 24.08.2021.

2. Bholu Ram vs. State of Punjab
and another, Criminal Appeal No. 1366 of
2008 , arising out of SLP (Crl.) No. 39 of
2001.

3. Rajindra Singh vs. state of U.P.
and another, reported in AIR 2007 SC 2786

13. According to the prosecution case
as mentioned in the FIR lodged by
informant Rashid s/o Aas Mohammad r/o
village-
Nuna
Badi,
Police
Station-
Badgaon, District- Saharanpur, is to the
effect that he had enmity due to litigation
with Farrukh s/o Khalil. Accused, Bhura
and Mobin alias Lilla sons of Salamu,
Usman s/o Bhura, Saleem s/o Lilla and
Inam s/o Khalil used to threaten him and
his family members to take revenge due
to enmity. On 02.02.2022 at about 4-5
a.m., informant Rashid along with Wasim
s/o Tahir and Idrish was returning to his
house after chasing out wild animals from
the jungle. They saw Bhura and Mobin
alias Lilla sons of Salamu, Usman s/o
Bhura, Saleem s/o Lilla and Inam s/o
Khalil who had blood-stained swords and
knives in their hands, were talking
amongst themselves that today they had
taken the revenge for the murder of their
brother. They have killed Asif. They
threatened
the
informant
and
his
companions that they would kill them
also. Thereafter, the accused ran away
from that place. When informant and his
companion reached the compound (Gher)
of his house, he saw his brother, Asif,
lying dead in a pool of blood. The door of
the compound was open.
680 INDIAN LAW REPORTS ALLAHABAD SERIES

14. The scope and ambit of Section
319 Cr.P.C. has been well-settled by the
pronouncement of Constitution Bench of
the Hon'ble Apex Court in Hardeep Singh
Vs. State of Punjab and others, (2014) 3
SCC 92 and paras 105 and 106 which are
relevant for the purpose are reproduced
hereunder :

"105. Power under Section 319
Cr.P.C, 1973 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., 1973. In Section 319 Cr.P.C., 1973,
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., 1973 to
form any opinion as to the guilt of the
accused."

15. In S. Mohammad Ispahani Vs.
Yogendra Chandak (2017) 16 SCC 226,
this Court has observed and held as under :

"35. It needs to be highlighted
that when a person is named in the FIR by
the
complainant,
but
police,
after
investigation,
finds
no
role
of
that
particular person and files the charge-sheet
without implicating him, the Court is not
powerless, and at the stage of summoning,
if the trial court finds that a particular
person should be summoned as accused,
even though not named in the charge-sheet,
it can do so. At that stage, chance is given
to the complainant also to file a protest
petition urging upon the trial court to
summon other persons as well who were
named in the FIR but not implicated in the
charge sheet. Once that stage has gone, the
Court is still not powerless by virtue of
Section 319 of the Cr.P.C. However, this
section gets triggered when during the trial
some
evidence
surfaces
against
the
proposed accused."

16. In the case of Rajesh Vs. State of
Haryana
(2019)
6
SCC 368,
after
considering the observations made by this
Court in Hardeep Singh (supra) referred to
hereinabove,
this
Court
has
further
observed and held that even in a case where
the stage of giving opportunity to the
complainant to file a protest petition urging
upon the trial court to summon other
persons as well who were named in F.I.R.
but not implicated in the charge-sheet has
gone, in that case also, the Court is still not
powerless by virtue of Section 319 Cr.P.c.
and even those persons named in the F.I.R.
but not implicated in charge-sheet can be
2 All. Prem Narayan Pandey Vs. State of U.P. & Anr.
681
summoned to face the trial provided during
the trial some evidence surfaces against the
proposed accused.

17. Heard learned counsels for the
parties and perused the impugned order
dated 09.11.2022 passed by the trial court,
copy of the first information report,
statement of informant PW-1 Rashid dated
08.09.2022 and other material relied upon
by the appellant in this appeal.

18. From the above rulings of Hon'ble
Supreme Court, it can be concluded that the
trial court can summon persons who have
been charge-sheeted as accused on the basis
of examination-in-chief of a witness. It is not
necessary that the witness should be crossexamined before such person can be
summoned under Section 319 Cr.P.C. The
evidence required for summoning such
persons under Section 319 Cr.P.C. is more
than prima facie case but it is short of such
evidence which if not rebutted will result in
conviction of the persons summoned for trial.

19. The informant, Rashid, had lodged
the first information report against the
revisionists on 02.02.2022 for the murder of
his brother, Asif s/o Aas Mohammad. The
Investigating Officer during the investigation
on the basis of statement recorded under
Section 161 Cr.P.C. of Mursaleen which was
recorded on 05.03.2022, exonerated the
revisionists/accused named in the first
information report of the offence and on the
basis of statement of Mursaleen, filed chargesheet against Rakib, Zulfequar Rana and
Mobeen for committing the murder of Asif
whereas in their statement recorded under
Section 161 Cr.P.C., informant Rashid and
Wasim have supported the allegations made
against the accused/revisionists mentioned in
the first information report. The statement of
Mursaleen was recorded after a delay of 1
month 2 days after the date of incident. The
arguments made on behalf of revisionists
does not mention any reason why the
informant instead of accusing the real
accused involved in the murder of his brother,
will name revisionists for his murder.

20. Considering the impugned order in
light of the statement of Rashid recorded in
the court in the light of law laid down by the
Hon'ble
Apex
Court
regarding
the
summoning of persons who have not been
named in the charge-sheet as accused under
Section 319 Cr.P.C., I find no illegality,
irregularity or jurisdictional error in the
impugned order passed by the trial court.

21. The criminal revision is rejected,
accordingly.

22. In case the revisionists, Bhura and
Mobin alias Lilla sons of Salamu, Usman s/o
Bhura, Saleem s/o Lilla and Inam s/o Khalil,
surrender before the court concerned and
apply for bail within 30 days from today, no
coercive action shall be taken against them
till then.

23. Let a copy of this order be sent to
the court concerned for necessary action.
----------
(2023) 2 ILRA 681
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.02.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482 No. 666 of 2023

Prem Narayan Pandey ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant: