# Deepak Singh & Anr v. State of U.P. & Anr

- **Citation:** (2021) 2 ILRA 531
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** U/S 482/378/407 No. 6256 of 2019
- **Bench:** Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-singh-anr-v-state-of-u-p-anr-46849
- **Pages:** 3

## Headnote

Criminal Law-Name of the Petitioners
were dropped from the chargesheet-on
account of separate living-summoned in
Application u/s 319 Cr.P.C.- on the basis
of Pws cross-examined by defence-no
illegality in summoning order.

Application rejected. (E-7)

List of Cases cited: -

## Text

2 All. Deepak Singh & Anr. Vs. State of U.P. & Anr.
531

21. The application under Section 482
Cr.P.C. stands dismissed accordingly.
----------
(2021)02ILR A531
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.02.2021

BEFORE

THE HON'BLE MRS. SAROJ YADAV, J.

U/S 482/378/407 No. 6256 of 2019

Deepak Singh & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Ajai Kumar Singh, Shobhit Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law-Name of the Petitioners
were dropped from the chargesheet-on
account of separate living-summoned in
Application u/s 319 Cr.P.C.- on the basis
of Pws cross-examined by defence-no
illegality in summoning order.

Application rejected. (E-7)

List of Cases cited: -

1. Brijendra Singh & ors. Vs St. of Raj. (2017)
SC 2839

2.Hardeep Singh Vs St. of Punj. & ors. 2014(3)
SCC 92

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This petition has been filed by the
petitioners praying to quash/set aside the
order dated 10.05.2019 passed by learned
Additional Sessions Judge, Court No. 11,
Hardoi in Sessions Trial No. 47/18 (State
Vs. Dharamveer Singh and Others) and
Crime No. 203/17.

2. Heard learned counsel for the
petitioners, learned counsel for the opposite
party no. 2 and learned Additional
Government Advocate appearing on behalf
of the State.

3.

Learned
counsel
for
the
petitioners submitted that the petitioners
were named in the first information report
but after investigation, the Investigating
Officer found that the petitioners were
not present in the Village at the time of
incident and the location of the petitioner
no. 1 was in Delhi and Haryana since
01.10.2017 till 15.10.2017, whereas the
alleged
incident
took
place
on
12.10.2017. The petitioner no. 2 is the
wife of the petitioner no. 1 and she is
residing with him. Both the petitioners
are residing separately since 2015, the
petitioner no. 1 is doing a private job in
Delhi. On the basis of the evidence
collected
during
investigation,
the
Investigating Officer did not find any
involvement of the petitioners in the
alleged crime, as such, he dropped the
names of the petitioners but during trial,
the informant moved an application under
Section 319 Cr.P.C. for summoning the
petitioners as accused and learned Trial
Court
allowed
the
same
without
considering the material available on
record i.e. call details of the petitioner no.
1, availed by the Investigating Officer.
Learned counsel for the petitioners
further submitted that learned Trial Court
has
passed
the
impugned
order
summoning the petitioners as accused
persons only on the basis of the evidence
of P.W. 1 to 4, which is not justified, so
the impugned order should be quashed.
532 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Learned counsel for the petitioners
has relied upon the judgment of the Apex
Court in the case of Brijendra Singh &
Others Vs. State of Rajasthan (2017) SC
2839 decided on 27.04.2017.

5. Contrary to it, learned counsel for
the informant as well as learned A.G.A.
appearing on behalf of the State opposed
the arguments advanced by the learned
counsel for the petitioners and submitted
that while deciding the application moved
under Section 319 Cr.P.C., learned Trial
Court has to take into consideration only
that evidence and material which is
available on record. In this matter, learned
Trial Court considered the evidence of the
witnesses of facts examined in the Court
and on the basis of that evidence has passed
the order, which is legally correct because
in the case of Hardeep Singh Versus State
of Punjab and Others 2014(3) SCC 92, the
Hon'ble Apex Court has made it clear that
only that evidence will be considered
which is produced before the Court, hence,
the order passed by the learned Trial Court
on the basis of the statements of witnesses
P.W. 1 to 4 is perfectly correct and this
petition deserves rejection.

6. Considered the submissions of both
the sides and perused the case laws cited
above.

7. Learned counsel for the petitioners
relied upon the following extract of the
case of Brijendra Singh & Others Vs.
State of Rajasthan (Supra).

"In Hardeep Singh's case, the
Constitution Bench has also settled the
controversy on the issue as to whether the
word ''evidence' used in Section 319(1)
Cr.P.C. has been used in a comprehensive
sense and indicates the evidence collected
during investigation or the word ''evidence'
is limited to the evidence recorded during
trial. It is held that it is that material, after
cognizance is taken by the Court, that is
available to it while making an inquiry into
or trying an offence, which the court can
utilise or take into consideration for
supporting reasons to summon any person
on the basis of evidence adduced before the
Court. The word ''evidence' has to be
understood in its wider sense, both at the
stage of trial and even at the stage of
inquiry. It means that the power to proceed
against any person after summoning him
can be exercised on the basis of any such
material as brought forth before it. At the
same time, this Court cautioned that the
duty and obligation of the Court becomes
more onerous to invoke such powers
consciously on such material after evidence
has been led during trial. The Court also
clarified that ''evidence' under Section 319
Cr.P.C. could even be examination-in-chief
and the Court is not required to wait till
such
evidence
is
tested
on
crossexamination, as it is the satisfaction of the
Court which can be gathered from the
reasons recorded by the Court in respect of
complicity of some other person(s) not
facing trial in the offence.

8. In Hardeep Singh Vs State of
Punjab (Supra) the Constitution Bench of
Hon'ble Apex Court has held that "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 the court is of the opinion that a
person not accused before it has also
committed the offence, it may summon such
person under Section 319 Cr.P.C. With
respect to documentary evidence, it is
sufficient, as can be seen from a bare
2 All. Satish Kumar Vs. State of U.P. & Ors.
533
perusal of Section 3 of the Evidence Act as
well as the decision of the Constitution
Bench, that a document is required to be
produced and proved according to law to
be called evidence. Whether such evidence
is relevant, irrelevant, admissible or
inadmissible, is a matter of trial. It is,
therefore, clear that the word "evidence" in
Section 319 Cr.P.C. means only such
evidence as is made before the court, in
relation to statements, and as produced
before the court, in relation to documents.
It is only such evidence that can be taken
into account by the Magistrate or the Court
to decide whether power under Section 319
Cr.P.C. is to be exercised and not on the
basis
of
material
collected
during
investigation."

9. Perusal of the impugned order
shows that the learned Trial Court has
passed the impugned order summoning the
accused persons on the basis of evidence of
P.W. 1 to 4. All these witnesses were crossexamined by the counsel of the defence.
The
statements
of
above-mentioned
witnesses are available on the record. They
all have stated that the petitioners along
with other accused persons used to demand
dowry and used to torture and harass the
deceased and the petitioners were also
involved in the crime. As far as the call
details are concerned, those can be
considered only when these are duly
proved at proper stage.

10. Hence, in the light of the
discussions made herein above and the law
laid down by the Apex court, there appears
no illegality or infirmity in the impugned
order, therefore, the petition deserves
rejection.

11. The petition under Section 482
Cr.P.C. is, accordingly, dismissed.
----------
(2021)02ILR A533
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2020

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 Cr.P.C. No. 12047 of 2020

Satish Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Shashi Kant Pandey

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

(A) Criminal Law - Indian Penal Code,
1860 - Section 363 - punishment for
kidnapping, Section 376 - punishment for
rape , Protection of Children from Sexual
Offence (POCSO) Act - Section 3 -
Penetrative sexual assault , Section 4 -
Punishment for penetrative sexual assault
- victim may at best be a witness - no law,
where under the Magistrate may direct
the detention of a witness simply because
he does not like him to go to any
particular place, and as such the petitioner
has been sent to Nari Niketan pursuant to
a judicial order which per-se appears to be
without jurisdiction - detention can not be
said to be a "legal" just because it carries
the thrust of a judicial order which is
patently tangent to a established norm in
this regard - child marriage is voidable at
the instance of minor, otherwise the
marriage is not void ipso-facto. (Para -
24,26)

Applicant and victim (girl) were undergoing in
their teens, as a natural outcome - developed
tender affinity towards each other which
ultimately turned into a torrid and dense love
affair between them - Eventually on 25.01.2019
she on her own free will and accord, decided to