# Chandra Shekhar Singh Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-24
- **Case number:** Criminal Revision No. 3523 of 2019
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-shekhar-singh-revisionist-v-state-of-u-p-anr-46925
- **Pages:** 5

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 397-calling for
recrods to exercise powers of revision,
Section
401-High
Court's
power
of
revision, Section 319-Power to proceed
against other persons appearing to be
guilty of offence, Indian Penal Code,
1860-Section 306, 120 -B-for the exercise
of power under Section 319 Cr. P.C.-use of
word "evidence" means material that has
come before the Court during an inquiry or
trial by it and not otherwise-If from the
evidence led in the trial court has also
committed the offence, it may summon
such person under Section 319 Cr.P.C.(Para
10)

Trial Court on the basis of oral statement of
witness-summoned the revisionist under section
319 Cr.P.C. to face trial-being aggrieved with
the said order this revisio has been filed by the
revisionist. (Para 3)
248 INDIAN LAW REPORTS ALLAHABAD SERIES
Held:-Oral statement of the witness does not
come into purview of the evidence. So only on
ths basis of oral examination of the witness, trial
court hypothetically only on the basis of
assumption and presumption summon the
revisionist under section 319 Cr.P.C..Since
neither the Chief trial court, so only on the basis
of query by trial court or only on the basis of
oral submission of witness wrongly summoned
the revisionist under trial court is totally based
on surmises and conjectures. Learned trial court
has committed irregularity and illegality. (Para11)

Criminal Revision allowed. (E-6)

List of Cases cited:-

## Text

3 All. Chandra Shekhar Singh Vs. State of U.P. & Anr.
247
in substituting its own view for that of the
learned Magistrate on a question of fact".

12. If the instant case is examined in
view
of
the
aforesaid
settled
legal
propositions, it is not permissible for the
Court to reappreciate the evidence. More
so, there is nothing on record to show that
the findings of facts recorded by the Family
Court are perverse, based on no evidence or
have been arrived contrary to the evidence
on record.

13.

Maintenance
underSection
125includes expenses for food, clothing,
residence, medical and other expenses
relating to normal persuit of life and it has
certainly
no
bearing
from
starvation
maintenance so that the person maintained
is forced to lead an indignified life.
However,
Court
must
consider
that
awarding such amount should not render
the person liable to maintain a pauper.

14. It is admitted fact that there is no
source of income of her wife / respondent
no. 2, so she is unable to maintain herself.
She is living at her parental house due to
continuous harassment and demand of
dowry by the revisionist and his family
members.
Learned
trial
court
after
appreciating each and every fact awarded
the maintenance allowance of Rs. 15,000/-
(Rs. 10,000/- to opposite party no. 2 and
Rs. 5000/- to opposite party no. 3) in
favour of opposite party no. 2. Judgment of
the learned family court is well reasoned
and well discussed. There is no illegality or
irregularity in the assessment of the
maintenance allowance so there is no
interference warranted in the order dated
3.7.2018 passed by learned family court.

15. Revision is devoid of merit and
is accordingly dismissed with no cost.

16. Interim order, if any, stands
vacated.

17. A copy of this order be
communicated to the lower court for
necessary compliance.
----------
(2021)03ILR A247
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Revision No. 3523 of 2019

Chandra Shekhar Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Kameshwar Singh

Counsel for the Opposite Parties:
A.G.A.

(A)
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 397-calling for
recrods to exercise powers of revision,
Section
401-High
Court's
power
of
revision, Section 319-Power to proceed
against other persons appearing to be
guilty of offence, Indian Penal Code,
1860-Section 306, 120 -B-for the exercise
of power under Section 319 Cr. P.C.-use of
word "evidence" means material that has
come before the Court during an inquiry or
trial by it and not otherwise-If from the
evidence led in the trial court has also
committed the offence, it may summon
such person under Section 319 Cr.P.C.(Para
10)

Trial Court on the basis of oral statement of
witness-summoned the revisionist under section
319 Cr.P.C. to face trial-being aggrieved with
the said order this revisio has been filed by the
revisionist. (Para 3)
248 INDIAN LAW REPORTS ALLAHABAD SERIES
Held:-Oral statement of the witness does not
come into purview of the evidence. So only on
ths basis of oral examination of the witness, trial
court hypothetically only on the basis of
assumption and presumption summon the
revisionist under section 319 Cr.P.C..Since
neither the Chief trial court, so only on the basis
of query by trial court or only on the basis of
oral submission of witness wrongly summoned
the revisionist under trial court is totally based
on surmises and conjectures. Learned trial court
has committed irregularity and illegality. (Para11)

Criminal Revision allowed. (E-6)

List of Cases cited:-

1. Labhu Jee Amrat Jee Thako & ors. Vs St. of
Guj., Crl. Appl. No. 1348/2018, SLP No.
6392/2018

2. Vijendra & ors. Vs St. of Raj., Crl. Appl. No.
763/2017.

(Delivered by Hon'ble Suresh Kumar Gupta, J.)

1. This criminal revision has been
filed under section 397/ 401 of Cr.P.C.
against the interim order dated 28.8.2019
passed by Additional Session's Judge,
Court No. 3, Ballia, by which the
revisionist was summoned under section
319 Cr.P.C. to face trial under sections 306,
120-B I.P.C., Police Station Sikandarpur,
District Ballia.

2. Brief facts of this case as such that
on 25.9.2017 father of deceased namely,
Rajendra Singh, lodged an F.I.R. with
allegation that her daughter namely, Renu
Singh, was married about 22 years ago with
Rajesh Singh. Out of the said wedlock a
daughter Sonali aged about 18 years and a
son Aditya aged about 16 years born. Due
to harassment of husband, Rajesh Singh,
and father-in-law, Chandra Shekhar Singh,
daughter of the first informant, Renu Singh,
committed suicide. So F.I.R. was lodged by
the first informant, Rajendra Singh, against
the revisionist, Chandra Shekhar Singh, as
well as his son namely, Rajesh Singh,
under section 306 I.P.C. at police station
Sikandarapur, District Ballia as Case Crime
No. 703 of 2017.

3. After lodging the F.I.R. post
mortem of the body of deceased, Renu
Singh, was conducted on 25.9.2017 and
doctor opined cause of death due to ante
mortem hanging. During investigation,
Investigating Officer recorded statements
of the first informant, Rajendra Singh, and
his wife, Shiv Kumari Singh, under section
161 Cr.P.C. They clearly deposed in their
statements
that
revisionist,
Chandra
Shekhar Singh, was residing separately
from Rajesh Singh (husband of deceased)
and during investigation statement of
villagers also recorded. Villagers also
deposed that Chandra Shekhar Singh was
living apart from main accused, Rajesh
Singh, so the revisionist, Chandra Shekhar
Singh, was exonerated from this matter and
charge-sheet was submitted only against
Rajesh Singh (husband of deceased).
During trial three witnesses, PW-1 /
Rajendra Singh, PW-2 / Sonali Singh and
PW-3 / Smt. Shiv Kumari Singh have been
examined before the trial court and all these
witnesses
never
mentioned
in
their
statements name of the revisionist, Chandra
Shekhar Singh. Learned trial court on the
basis of oral statement of witness, Om
Prakash Singh, summoned the revisionist
under section 319 Cr.P.C. to face above
mentioned trial. Being aggrieved with the
said order this revision has been filed by
the revisionist.

4. Learned counsel for the revisionist
submitted that learned trial court without
any cogent and credible evidence available
3 All. Chandra Shekhar Singh Vs. State of U.P. & Anr.
249
on record only on the basis of oral
submission of witness, Om Prakash Singh,
summoned the revisionist under section
319 Cr.P.C. to face trial under section 306
I.P.C and 120-B I.P.C. So in these
circumstances, order passed by learned
Additional Sessions Judge, Ballia is wholly
illegal and improper and is only based on
surmises and conjectures.

5. Learned counsel for the revisionist
rely upon the judgments of Hon'ble
Supreme Court in Labhu Jee Amrat Jee
Thako and Others Vs. State of Gujrat,
Criminal Appeal No. 1348/2018, SLP No.
6392/2018, Vijendra and Others Vs. State
of
Rajasthan, Criminal
Appeal
No.
763/2017, Hardip Singh Vs. State of
Punjab 2014(3) S.C. Cases 92, Sunil
Kumar Gupta and Others Vs. State of U.P.
2019 (108) ACC. In Sunil Kumar Gupta
(supra) Hon'ble Supreme Court held that:-

9.Section
319(1)Cr.P.C.
empowers the Court to proceed against any
person not shown as an accused if it
appears from the evidence that such person
has committed any offence for which such
person could be tried together along with
the accused. It is fairly well settled that
before the court exercises its jurisdiction in
terms ofSection 319Cr.P.C., it must arrive
at satisfaction that the evidence adduced by
the prosecution, if unrebutted, would lead
to conviction of the persons sought to be
added as the accused in the case. In
Hardeep Singh, the Constitution Bench
held as under:-

"105.
Power
underSection
319Cr.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
underSection
319CrPC. InSection 319CrPC 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 underSection 319CrPC to form any
opinion as to the guilt of the accused."
[underlining added]

6. Learned counsel for the revisionist
submits that order passed by learned A.D.J.
Ballia is perverse and bad in the eye of law,
hence order dated 28.8.2019 is liable to be
quashed and revision is liable to be
allowed.

7. Learned A.G.A. opposed the prayer
of the revisionist by submitting that order
dated
28.8.2019
passed
by
learned
Additional
Sessions
Judge,
Ballia
is
perfectly just and legal and there is no
250 INDIAN LAW REPORTS ALLAHABAD SERIES
illegality or irregularity in the impugned
order and after recording the sufficient
reasons, trial court has passed this order so
no interference warranted against the order
of learned trial court. Hence, revision is
liable to be dismissed.

8. I have considered the rival
submissions made by the learned counsel
for the revisionist and the learned A.G.A.
and also perused the record.

Section 319 Cr.P.C.

"319. Power to proceed against
other persons appearing to be guilty of
offence

1. Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence which he appears to have
committed.

2. Where such person is not
attending the Court he may be arrested or
summoned, as the circumstances of the
case may require, for the purpose
aforesaid.

3. Any person attending the
Court although not under arrest or upon a
summons, may be detained by such Court
for the purpose of the inquiry into, or trial
of, the offence which he appears to have
committed.

4. Where the Court proceeds
against any person under Sub- Section (1)
then-

(a) the proceedings in respect of
such person shall be commenced afresh,
and witnesses re-heard;

(b).subject to the provisions of
clause (a), the case may proceed as if such
person had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced."

9. Learned counsel for the revisionist
also rely upon judgment of hon'ble Supreme
Court:- "In Hardeep Singh (supra) Hon'ble
Apex Court has also examined scope and
meaning of the word 'evidence' used in
section 319 Cr.P.C. i.e. Whether it is
examination in chief only or also together
with cross-examination? The Court relying
upon the decisions in the cases of Rakesh
Vs. State of Haryana [2001 (43) ACC 392
(SC)]; Ranjit Singh Vs. State of Punjab
[AIR 1998 SC 3148]; Mohd. Shafi Vs.
Mohd. Rafiq and Another [AIR 2007 SC
1899]; Harbhajan Singh and Another Vs.
State of Punjab and Another [(2009) 13
SCC 608] and held in paragraph 85 of the
judgment as under :

"85. Thus, in view of the above,
we hold that power under section 319,
Cr.P.C. can be exercised at the stage of
completion of examination in chief and
Court does not need to wait till the said
evidence is tested on cross-examination for
it is the satisfaction of the Court recorded by
the Court, in respect of complicity of some
other person(s), not facing the trial in the
offence."

10. The word "evidence" in section 319
Cr.P.C. contemplates the evidence of the
witnesses given in the court. Therefore, for
the exercise of power under section 319
Cr.P.C. the use of word "evidence" means
material that has come before the court
during an inquiry or trial by it and not
otherwise. If from the evidence led in the trial
court the court is of the opinion that a person
not an accused before it has also committed
the offence, it may summon such person
under section 319 Cr.P.C. In Hardeep Singh
3 All. Rinku @ Brijendra Vs. State of U.P. & Ors.
251
Vs. State of Punjab and Others [2014 (85)
ACC 313] Hon'ble Apex Court has also
examined the scope and meaning of word
"evidence". In which Hon'ble Apex Court
held that:-

"99. 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 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."

11. It is pertinent to mention that in this
case neither the complainant nor the public
prosecutor has moved the application under
section 319 Cr.P.C. regarding summoning of
the revisionist. Learned trial court suo motu
summon the revisionist to face the trial under
sections 306, 120-B I.P.C. Now the question
arises that whether without recording the
evidence and only by putting two questions to
the alleged witness, Om Prakash, and after
recording the oral reply, learned trial court is
competent to summon the revisionist to face
trial. Under Section 165 of Evidence Act, the
trial court have ample power to put question in
order to discover relevant fact. But power under
section 165 of Evidence Act is permissible only
when the evidence as deposed by witness
recorded in the court. Oral statement of the
witness does not come into purview of the
evidence. So only on the basis of oral
examination of the witness, learned trial court
hypothetically only on the basis of assumption
and presumption summon the revisionist under
section 319 Cr.P.C. Since neither the chiefexamination nor the cross-examination of the
witness was recorded by the learned trial court,
so only on the basis of query by learned trial
court or only on the basis of oral submission of
witness wrongly summoned the revisionist
under section 319 Cr.P.C., which is not
permissible in the eye of law. Order of the
learned trial court is totally based on surmises
and conjectures. Learned trial court has
committed irregularity and illegality, so in these
circumstances, revision is hereby allowed and
impugned order dated 28.8.2019 passed by
learned Additional District Judge, Court No. 3,
Ballia is hereby quashed.

12. Revision is allowed.

13. A copy of this order be
communicated to the lower court for necessary
compliance.
----------
(2021)03ILR A251
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Writ Petition No. 812 of 2021

Rinku @ Brijendra ...Petitioner (In Jail)
Versus
State of U.P. & Ors. ...Respondents