# Dipendra Kumar Singh @ Bittu Revisionist v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 829
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-09
- **Case number:** J. Criminal Revision No. 1101 of 2019
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dipendra-kumar-singh-bittu-revisionist-v-state-of-u-p-anr-45736
- **Pages:** 15

## Headnote

Law-Code
of
Criminal
Procedure,1973-Sections
397/401,319
&
Indian Penal Code,1860-Sections 147, 148,
149, 504,506, 307, 302- challenge tosummoning of proposed accused for trial u/s
319 Cr.P.C.-examination-in-chief is sufficient
if it satisfactorily proves the presence and
role of accused in the crime-complainant
himself got examined on oath as PW-1 and
his statement is in support of contents of the
FIR-revisionist actively participated in the
commission of crime by firing gun shot upon
the
deceased
persons-trial
judge
has
committed no error of law to summon the
revisionist for trial along with other coaccused-Hence, dismissed.(Para 4 to 32)

B. Criminal Law-Power u/s 319 Cr.P.C. can be
exercised by Court against a person in FIR r
no chargesheet is filed by Police against him
and the accused can be summoned only on
the basis of examination-in-chief of witness
and need not wait for cross-examination etc.
the degree of satisfaction that will be
required for summoning a person would be
the same as for framing a charge.(Para 29, 30)

C. A person not named in the FIR or a person
though named in the FIR but has not been
chargesheeted or a person who has been
discharged can be summoned under section
319 Cr.P.C., provided from the evidence it
appears that such person can be tried along
with the accused already facing
trial.
However, in so far as an accused who has
been
discharged
is
concerned
the
requirement of Section 300(5) and 398
Cr.P.C. has to be complied with before he can
be summoned afresh.(Para 29)

Criminal Revision dismissed.(E-6)

List of Cases Cited:-

## Text

_Characters 0–39,922 of 50,480. This is a partial read: ask again with offset=39922 for what follows._

2 All. Dipendra Kumar Singh @ Bittu Vs. State of U.P. & Anr.
829
Court. Thus, this Criminal Revision, being
devoid of merits, deserves dismissal and it
stands dismissed as such.
----------
(2020)02ILR A829

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.01.2020

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV,
J.

Criminal Revision No. 1101 of 2019

Dipendra Kumar Singh @ Bittu
 ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Revisionist:
Surendra Pratap Singh, Ajai Kumar Gupta

Counsel for the Opposite Party:
Govt. Adv.

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Sections
397/401,319
&
Indian Penal Code,1860-Sections 147, 148,
149, 504,506, 307, 302- challenge tosummoning of proposed accused for trial u/s
319 Cr.P.C.-examination-in-chief is sufficient
if it satisfactorily proves the presence and
role of accused in the crime-complainant
himself got examined on oath as PW-1 and
his statement is in support of contents of the
FIR-revisionist actively participated in the
commission of crime by firing gun shot upon
the
deceased
persons-trial
judge
has
committed no error of law to summon the
revisionist for trial along with other coaccused-Hence, dismissed.(Para 4 to 32)

B. Criminal Law-Power u/s 319 Cr.P.C. can be
exercised by Court against a person in FIR r
no chargesheet is filed by Police against him
and the accused can be summoned only on
the basis of examination-in-chief of witness
and need not wait for cross-examination etc.
the degree of satisfaction that will be
required for summoning a person would be
the same as for framing a charge.(Para 29, 30)

C. A person not named in the FIR or a person
though named in the FIR but has not been
chargesheeted or a person who has been
discharged can be summoned under section
319 Cr.P.C., provided from the evidence it
appears that such person can be tried along
with the accused already facing
trial.
However, in so far as an accused who has
been
discharged
is
concerned
the
requirement of Section 300(5) and 398
Cr.P.C. has to be complied with before he can
be summoned afresh.(Para 29)

Criminal Revision dismissed.(E-6)

List of Cases Cited:-

1. Sunil Kumar Gupta & Ors.Vs. St. Of U.P. &
Ors., (2019) 2 JIC 64 SC

2. Khushbu Gupta Vs. St. Of U.P. & Ors. (2019)
2 JIC 64 SC

3. Labhuji Amratji Thakor & Ors. Vs. St. Of Guj.
& Anr.,SLP (Crl.) No. 6392 of 2018

4. Hardeep Singh Vs. St. Of Punjab &
Ors.,(2014) 1 JIC 539 (SC)

5. Raja Ram@ Raj Kumar & Ors. Vs. St. Of U.P.
& Anr., (2019) 2 JIC 139 (All)

6. Rajol & Ors. Vs. St. Of U.P.& Anr., (2010) 2
JIC 920 (All)

7. Brijendra Singh Vs. St. Of Rajasthan, AIR
(2017) SC 2839

8. Sugreev Kumar Vs. St. Of Punjab

9. Municipal Corporation of Delhi Vs. Ram
Kishan Rohatgi & Ors.,AIR (1983) SC 67

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The present revision is moved to
seek interference of court in the impugned
830 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 31.7.2019 on the ground of
illegality, irregularity and arbitrariness
committed by the Trial Judge in S.T
No.467/2016, Crime Case No. 299/2016
registered under Sections 147, 148, 149,
504, 506, 307 and 302 I.P.C. in Police
Station-Jamo, District Amethi (State of
U.P. Vs. Shivendra Pratap Singh & Anr.)
allowing the application of informant of
the case under Section 319 Cr.P.C. By the
said
order
the
revisionist,
proposed
accused is summoned for trial along with
the other named accused in the First
Information Report of the incidence and
charge-sheeted
by
the
police
after
investigation.

2. Heard learned counsel Sri S.P.
Singh, Advocate appearing on behalf of
the revisionist (the proposed accused),
learned counsel Sri S.K. Singh, Advocate
appearing on behalf of the complainant
and for prosecution, learned A.G.A Sri
Abhay Kumar, Advocate.

3. The crux of the argument
delivered by learned counsel Sri S.P.
Singh are that-

i. The presence of accused at the
spot of the crime is not established
satisfactorily by cogent and material
evidence before the court.

ii. Though, the name of accused
was given in FIR but so far as the
materials and evidence collected by the
Investigating
Officer
during
the
investigation, there is no evidence on
record against the revisionist to show him
committing any offence.

iii. The Investigating Officer
dropped the name of revisionist and
submitted
the
charge
sheet
to
the
Magistrate for cognizance of offence
against remaining accused persons named
in the FIR.

iv. That even the evidence
recorded by the court is also not
satisfactory and sufficient to establish the
presence of the accused on the spot of the
crime when it was committed.

4. In support of above arguments,
learned counsel took reliance on the case
laws propounded in Sunil Kumar Gupta
& Ors. Vs. State of U.P. & Ors. with
Khusbu Gupta Vs. State of U.P. & Ors.
reported in 2019 (2) JIC 64 SC, Labhuji
Amratji Thakor & Ors. Vs. The State of
Gujarat & Anr. arising out of SLP (Crl.)
No. 6392 of 2018, Hardeep Singh Vs.
State of Punjab & Ors. with connected
matters reported in 2014 (1) JIC 539 (SC),
Raja Ram @ Raj Kumar & Ors. Vs. State
of U.P. & Anr. reported in 2019 (2) JIC
139 (All), Rajol & Ors. Vs. State of U.P.
& Anr. reported in 2010 (2) JIC 920 (All),
Brijendra Singh Vs. State of Rajasthan
reported in AIR 2017 SC 2839 and
Sugreev Kumar Vs. State of Punjab. He
argued that though a person may be called
upon by trial judge in the course of trial
and the court concerned is empowered by
the statute itself to do so but this power is
not arbitrary, it is to be governed by the
provisions of Section 319 of Cr.P.C.
strictly and under the guidelines laid down
by the superior courts. He submitted that
in the present case the learned trial judge
resiled from the principle and norms laid
down by the superior courts while
exercising it's power under Section 319
Cr.P.C. to call upon the revisionist for
participation in trial along with other
accused.

5. Learned counsel prays that the
impugned order under revision should be
2 All. Dipendra Kumar Singh @ Bittu Vs. State of U.P. & Anr.
831
examined in the light of the above
decisions and be set aside.

6. On the other hand, learned counsel
for the complainant - Sri S.K. Singh,
Advocate, drew the attention towards the
averment made into first information
report which clearly indicates not only the
presence but the role assigned by the
complainant
to
the
proposed
accused/revisionist. Secondly, so far as the
evidence to be taken into consideration by
the Court while exercising it's power under
Section 319 Cr.P.C., it is well defined not
only under Section 319 Cr.P.C. but also by
the decisions even cited by the revisionist,
that even the examination-in-chief is
sufficient if it satisfactorily proves the
presence and role of accused in the crime.
Complainant himself got examined on
oath as PW-1 and his statement recorded
by the court itself in support of contents of
the first information report along with the
materials brought by the Investigating
Officer is available on record. The said
evidence and material are satisfactory and
sufficient to show that the revisionist
actively participated in the commission of
crime by firing gun shot upon the deceased
persons Pawan Kumar and Anirudha
Singh.

7. Learned A.G.A. argued that in the
facts,
circumstances
and
evidences
available before the Court commission of
any irregularity, error or arbitrariness in
exercise of power under Section 319
Cr.P.C. is not obvious as the evidence
taken into consideration by the Court is
much more than necessary for framing of
charge and prima facie satisfactory for the
court that a conviction would lead in case
the said evidence remains un-rebutted.

Position of Law:-

8. Before discussing the arguments
of the parties for and against the impugned
order in revision it would be pertinent to
go through the case laws cited by learned
counsel for the revisionist in context of the
facts involved in respective case before the
Hon'ble Supreme Court. In the case of
Sunil Kumar Gupta Vs. State of U.P. &
Ors. along with Khusboo Gupta Vs. State
of U.P. & Ors. (Supra). The case was of
bride burning where the victim in her
dying declaration specifically mentioned
the name of only one accused and even the
prosecution witnesses could not deposed
about the role of proposed accused
summoned by the trial court in exercise of
power given to it under Section 319
Cr.P.C. in para 10 and 11 of the said
judgment the Hon'ble Court held as
under:-

"10.
Observing
that
for
exercising jurisdiction and its discretion in
terms of Section 319 Cr.P.C., the courts
are required to apply stringent tests, in
Sarabjit Singh and Another vs. State of
Punjab and Another (2009) 16 SCC 46, it
was held as under:-

"21. An order under Section 319
of the Code, therefore, should not be
passed only because the first informant or
one of the witnesses seeks to implicate
other persons(s). Sufficient and cogent
reasons are required to be assigned by the
court so as to satisfy the ingredients of the
provisions. Mere ipse dixit would not serve
the purpose. Such an evidence must be
convincing one at least for the purpose of
exercise of the extraordinary jurisdiction.
For the aforementioned purpose, the
courts are required to apply stringent
tests; one of the tests being whether
evidence on record is such which would
reasonably lead to conviction of the
person sought to be summoned.
832 INDIAN LAW REPORTS ALLAHABAD SERIES

22. ....... Whereas the test of
prima facie case may be sufficient for
taking cognizance of an offence at the
stage of framing of charge, the court must
be satisfied that there exists a strong
suspicion. While framing charge in terms
of Section 227 of the Code, the court must
consider the entire materials on record to
form an opinion that the evidence if
unrebutted would lead to a judgment of
conviction.

23. Whether a higher standard
be set up for the purpose of invoking the
jurisdiction under Section 319 of the Code
is the question. The answer to these
questions should be rendered in the
affirmative. Unless a higher standard for
the purpose of forming an opinion to
summon a person as an additional accused
is laid down, the ingredients thereof viz. (i)
an extraordinary case, and (ii) a case for
sparingly
(sic
sparing)
exercise
of
jurisdiction, would not be satisfied."

"11.
Applying
the
above
principles to the case in hand, in our
considered view, no prima facie case is
made out for summoning the appellants
and to proceed against the appellants for
the offence punishable under Section 302
IPC. As pointed out earlier, in the dying
declaration, deceased Shilpa has only
mentioned the name of Chanchal @
Babita; but she has not mentioned the
names of others. In his complaint lodged
before the police on the next day i.e.
20.08.2012, Sudhir Kumar Gupta-PW-1
has stated that his daughter Shilpa told
him that Chanchal @ Babita and all other
people set her on fire after pouring
kerosene. PW-1 has neither stated the
names of the appellants nor attributed any
overt act. Likewise, in their evidence
before the court, PWs 1 and 3 have only
stated that Shilpa told them that Chanchal
@ Babita and all others have set fire on
deceased Shilpa. Neither the complaint
nor the evidence of witnesses indicates as
to the role played by the appellants in the
commission of the offence and which
accused has committed what offence.
Under such circumstances, it cannot be
said that the prosecution has shown prima
facie material for summoning the accused
for the offence punishable under Section
302 IPC."

9. Learned counsel further relied on
the judgment of Hon'ble Supreme Court in
Brijendra Singh Vs. State of Rajasthan
reported in AIR 2017 SC 2839. Hon'ble
Supreme Court in this judgment has
elaborately discussed the power under
Section 319 Cr.P.C., its object and when
can such power be invoked by trial court.
Hon'ble
Supreme
Court
has
further
discussed about the degree of satisfaction
i.e., required for invoking it. The situation
under which power should be exercised in
respect of persons named. in the FIR but
not charge-sheeted. Hon'ble Supreme
Court in para 13 of the judgment observed
as under:-

"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
2 All. Dipendra Kumar Singh @ Bittu Vs. State of U.P. & Anr.
833
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
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."

10.

Learned
counsel
for
the
revisionist cited the case law in Labhuji
Amratji Thakor & Ors. Vs. State of
Gujarat & Anr., arising out of SLP (Crl.)
No.6392 of 2018, the facts before the court
was that the complainant of the case
lodged an F.I.R. on 27.5.2015 under
Sections 363 and 366 of the I.P.C. read
with Section 3/4 POCSO Act, 2012 that
her daughter aged about 14 years has been
abducted by one Natuji Bachaji Thakor
some time in the last night on 26.5.2015 in
morning hours of 27.5.2015. It was
however alleged that the aforesaid accused
used to visit the victim, the aforesaid 14
years old girl and has given a mobile
phone to her, when the complainant knew
about this fact he had warned Natuji. After
receiving F.I.R., the police investigated
into the matter and submitted a chargesheet under Sections 363, 366 of the I.P.C.
and Section 3/4 of the POCSO Act, 2012
against Natuji Bachchuji Thakor, the
accused. The statement of the victim was
recorded by the investigating officer, she
had taken the name of Natuji alone, trial
proceeded against the accused in special
court under POCSO Act. The statement of
mother of victim was recorded, she also
did not named any other person than
Natuji, the accused. It is only when the
statements were recorded by the Special
Court of POCSO Judge of the victim who
in her statement taken name of Labuji
Amratji Thakor, Shashikant and Jituji also,
who had taken the victim into 'morvi' in
Jeep.

In the light of the said statement the
prayer was made to proceed against the
appellant Labuji Amratji Thakor etc., also
by initiating appropriate legal proceedings.

11. Learned POCSO Judge after
considering the statements rejected the
application holding, prima facie it appears
that with malafide intention, the names of
the appellants have been disclosed. The
complainant filed a criminal revision
against the order dated 1.12.2016 aforesaid
rejecting the application which has been
allowed by the High Court. The order of
POCSO Judge rejecting the application
under Section 319 Cr.P.C. was reversed.

12. Before Hon'ble The Supreme
Court, the said order passed in revision
was challenged and it was submitted that
there was no evidence on record on the
basis of which it can even to be prima
facie found that appellants had also
committed the offence. Before Hon'ble
Supreme Court the appellant took reliance
on the judgment delivered by it earlier in
834 INDIAN LAW REPORTS ALLAHABAD SERIES
Hardeep Singh Vs. State of Punjab &
Ors. reported in 2014 (1) JIC 539 (SC)

13. Hon'ble The Supreme Court in
para-6,7,8,9,10,11
of
the
aforesaid
judgment
of
constitution
bench
in
Hardeep Singh (Supra) observed as
under:-

"6. Section 319 Cr.P.C. provides
that 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. The Court,
thus, during the trial on the basis of any
evidence is fully empowered to proceed
against any person, whose name was not
even included in the F.I.R. or the Charge
Sheet. The parameters of exercise of
power under Section 319 Cr.P.C has been
explained by this Court time and again. It
is sufficient to refer to Constitution Bench
judgment in Hardeep Singh (supra), where
this Court had considered the following
issue amongst others:-

"6.4. (iv) What is the nature of
the satisfaction required to invoke the
power under Section 319 CrPC to arraign
an accused? Whether the power under
Section 319(1) CrPC can be exercised
only if the court is satisfied that the
accused summoned will in all likelihood be
convicted?"

7.
The
Constitution
Bench
judgment in the above judgment has held
that under Section 319 Cr.P.C. Court can
proceed against any person, who is not an
accused in a case before it. The
Constitution Bench, however, has held that
the person against whom the Court
decides to proceed, "has to be a person
whose complicity may be indicated and
connected with the commission of the
offence".

8. Answering the Issue No.(iv) as
noticed above, in Paragraph Nos. 105 and
106 of the judgment, following was laid
down by the Constitution Bench:-

"105. Power under Section 319
CrPC
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 CrPC. In Section 319
CrPC 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
2 All. Dipendra Kumar Singh @ Bittu Vs. State of U.P. & Anr.
835
CrPC to form any opinion as to the guilt of
the accused."

9. The Constitution Bench has
given a caution that power under Section
319 Cr.P.C. is a discretionary and
extraordinary power, which should be
exercised sparingly and only in those
cases where the circumstances of the case
so warrant. The crucial test, which has
been laid down as noted above is "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." The present is a case, where
the trial court had rejected the application
filed by the prosecution under Section 319
Cr.P.C. Further, in the present case, the
complainant in the F.I.R. has not taken the
names of the appellants and after
investigation in which the statement of
victim was also recorded, the names of the
appellants did not figure.

After carrying investigation, the
Charge Sheet was submitted in which the
appellants names were also not mentioned
as accused. In the statement recorded
before the Police, the victim has named
only Natuji with whom she admitted
having physical relations and who took
her and with whom she went out of the
house in the night and lived with him on
several places. The mother of victim in her
statement before the Court herself has
stated that victim girl returned to the
house after one and a half months. In the
statement, before the Court, victim has
narrated the entire sequence of events. She
has stated in her statement that accused
Natuji used to visit her Uncle's house
Vishnuji, where she met Natuji. She,
however, stated that it was Natuji, who
had given her mobile phone. Her parents
came to know about she having been given
mobile phone by Natuji, then they went to
the house of Natuji and threatened Natuji.

After one month, Natuji gave
another mobile phone to the victim, who
had taken it. She stated that in the night at
12 'o' clock, Natuji alongwith his three
friends had taken her to Morbi in a jeep.
She further stated that she and Natuji
stayed for three days at the said place and
Natuji had intercourse with her at the said
place. When Natuji came to know about
lodging of complaint, he took her to
Modasa in the jeep. The jeep was given by
Labhuji and other two appellants were
also in the jeep. She further stated that
Labhuji, Shashikant and Jituji came in the
jeep and took her and Natuji to the Police
Station, where the police interrogated her
and she recorded her statement. Natuji
was charged with Sections 363 and 366
I.P.C. and Sections 3 and 4 of the POCSO
Act.

10. In the present case, there are
not even suggestion of any act done by
appellants
amounting
to
an
offence
referred to in Sections 3 and 4 of the
POCSO Act. Thus, there was no occasion
to proceed against the appellants under
POCSO Act.

11. Now, we come back to the
reasons given by the High Court in
allowing the Criminal Revision and setting
aside the order of the POCSO Judge. The
judgment of the High Court runs into four
paragraphs and the only reason given by
the High Court for allowing the revision is
contained in paragraph No.3, which is to
the following effect:-

"3.
On
going
through
the
depositions of the victim as well as her
mother, some overtact and participation
on the part of the respondent nos. 3 to 5
are clearly revealing. But, this Court is not
inclined to opine either way as the said
fact was not stated before the police at the
836 INDIAN LAW REPORTS ALLAHABAD SERIES
time of recording of their statements. But,
taking into consideration the provision of
Section 319 of the Criminal Procedure
Code, this Court deems it appropriate to
summon
them
and
put
them
to
trial.............................."

14. On the basis of above discussion,
the three Judges Bench of Hon'ble
Supreme Court in aforesaid case of
Labhuji (Supra) held that the mere fact
that court has power under Section 319
Cr.P.C. to proceed against any person who
is not named in the FIR or the charge sheet
does not mean that whenever in a
statement recorded before the court, name
of any person is taken, the court has to
consider substances of the evidence which
has come before it and as laid down by the
Constitution Bench in Hardeep Singh's
case, it should be more than prima facie
case which is needed at the time of
framing
of
charges,
but
short
of
satisfaction to an extent that evidence, if
goes unrebutted would lead to conviction.
Since, the High Court has not adverted to
test laid down by the Constitution Bench
nor has given any cogent reason in
exercise of power under Section 319
Cr.P.C., then also Hon'ble Supreme Court
for its own satisfaction examined evidence
came before the trial court and held that
the victim in her statement before POCSO
Judge has only stated that Natuji, the
accused had come along with his three
friends i.e., the appellants and she was
taken in the Jeep to 'morvi' she does not
even alleged complicity of the appellants
in the offence. Her further statement was
that she was taken to morvi in the Jeep
driven by Labuji and specifically was
taken to the Modasa from 'morvi' in the
Jeep. The mere facts of being in the Jeep
wherein the victim was taken into modasa
cannot be treated as to be any allegation of
complicity of the appellants in the offence.
For want of sufficient reason in the order
of High Court reversing the order of
POCSO Judge whereby application under
Section 319 Cr.P.C. was rejected. The
Hon'ble Supreme Court set aside the order
of the High Court holding the same
unsustainable and allowed the appeal.

15.

Learned
counsel
for
the
revisionist has relied on the case of Raja
Ram @ Raj Kumar & Ors. Vs. State of
U.P. & Anr. reported in 2019 (2) JIC 139
(All). The case before Hon'ble The
Supreme Court the case of bride burning
registered under Sections 498-A, 304-B
IPC and Section 3/4 D.P. Act against the
named accused persons. The additional
accused persons were summoned by the
court exercising the power under Section
319 Cr.P.C. whereas the investigating
officer concluded all materials with regard
to the facts of the case, had dropped the
name of revisionist holding that their
names were purposely dragged into the
offence without any credible evidence.
According to him it was established that
the revisionist were not present on the date
and time of the incident as alleged in the
F.I.R. and thus there is no question of their
participation in the commission of offence.
The High Court observed that during
investigation it was unearthed by the
investigating officer that on the date and
time of the incident the revisionist who is
uncle-in-law of the deceased were at
Aligarh in connection with the treatment
of their own daughter-in-law and this fact
is supported by the various CCTV footage,
relevant affidavits, relevant attendance
registered of revisionist no.3, the CCTV
footage coverage of the Librarian where
the revisionist no.3 is attend, statement
under Section 161 Cr.P.C. of Arvind
Kumar all these facts if taken together at
2 All. Dipendra Kumar Singh @ Bittu Vs. State of U.P. & Anr.
837
least prima facie indicates that there
possibility for participating in the offence
are very sketchy and remote. The court
further held that order of Sessions Judge
impugned in the revision was virtually a
mini trial instead of recording of his prima
facie
satisfaction
while
exercising
extraordinary powers under Section 319
Cr.P.C. he has ventured into that arena
which could be easily stated that he has
tried and held the Hon'ble accused persons
(the revisionist) guilty at the stage of 319
Cr.P.C., while discarding the defence of
the revisionist which is not permissible in
the ratio laid down in the Hardeep Singh's
Case.

16. The underlying concept of
Section 319 Cr.P.C. is there must be more
than a prima facie case that is required at
the time of framing of charge but short of
satisfaction to an extent that evidence
which if remains un-rebutted would lead to
conviction.

17. In the light of the principle
underlying the provision of Section 319 of
the Cr.P.C. which confers power to a court
in criminal jurisdiction, while in the course
of any enquiry into, or trial of, an offence,
when it appears to it 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, may proceed against such person
for the offences which he appears to be
committed, it could be relevant to examine
the proceeding of investigation, trial and
impugned order of the court below and
impugned order involved in this revision.

18. As emerging out from the First
Information Report made Annexure-1 to
the
revision
petition,
the
incidence
reported and registered in P.S. Jamo,
District Amethi on 28 July 2018 Case
Crime No.0299 of 2018 under Sections
147, 148, 149, 504, 506, 307 and 302
I.P.C., the accused persons are named
therein namely Shivendra Pratap Singh @
Guddu, Dipendra Kumar Singh @ Bittu,
Alok Pratap Singh @ Golu, Narsingh, Hari
Bhan Singh and Ramnath Singh total six
in number. The fact in brief is that on 28
July 2018 at about 8 a.m. in morning the
complainant/informant, Rajkumar Yadav
along with his brother Anirudh Kumar
Yadav @ Daddan and a friend Pawan
Kumar Singh @ Pappu were standing by
the road, the accused persons Shivendra
Pratap Singh, Dipendra Kumar Singh @
Bittu, Alok Pratap Singh, Narsingh, Hari
Bhan Singh Fauji and Ramnath Singh,
respondents of the same village appeared
on the spot armed with fire arms began to
abuse and threatened them either to ran
away from the spot otherwise they will be
killed. When the complainant and his
companions refused to do so all the
accused persons ran them, complainant
and his companions ran away from the
spot but when they reached in a field,
Shivendra Pratap, Dipendra Kumar Singh
@ Bittu, Alok Pratap Singh @ Golu fired
from the rifle and Narsingh from a gun,
the friend of the complainant namely
Pawan Kumar Singh and brother Aniruddh
Yadav got injured therein, thereafter
accused persons fled away. When the
victims were carried on to the hospital,
Pawan Kumar Singh @ Pappu was
declared
dead.
The brother
of
the
complainant was referred to Trauma
Center, Lucknow, when he reached to
Trauma Center, he too died. The said
incidence was seen by the Pradhan of the
village Ravindra Pratap Singh @ Baby,
Abhay Pratap Singh and Rajat Singh. This
would be pertinent here to mention that the
revisionist, Dipendra Kumar Singh @
838 INDIAN LAW REPORTS ALLAHABAD SERIES
Bittu had also been named in the aforesaid
F.I.R. The investigation was done. While
recording the statement under Section 161
Cr.P.C., Ravindra Pratap Singh one of the
eyewitness though he named Dipendra
Kumar Singh @ Bittu to be on spot but
added he came after the commission of
offence on the spot. Even the second
eyewitness named by the informant Abhay
Pratap Singh in his statement under section
161 Cr.P.C. did not state Dipendra Kumar
Singh @ Bittu, the revisionist participating
in the commission of offence. He named
all the co-accused. When specific question
was asked by investigating officer as to
whether anyone else except 5 named by
him was there, he answered after the
incident Dipendra Kumar Singh @ Bittu
was seen on the spot however he did
nothing. One Rajat Singh whose statement
was recorded under section 161 of the
Cr.P.C. by the investigating officer had
also named five out of six named accused
committing the offence but stated that
during his presence on the spot Dipendra
Kumar Singh @ Bittu was not seen by him
in the course of commission of offence,
but he appeared on the spot thereafter. The
charge
sheet
was
prepared
after
completing the investigation which is
made Annexure-2 to the petition. On
perusal whereof it appears that the name of
one of six named accused in the FIR,
Dipendra Kumar Singh @ Bittu was
omitted and same was submitted in the
Court against the other five accused named
in the FIR. A police report was submitted
separately under Section 169 Cr.P.C. with
regard to accused Dipendra Kumar Singh
@ Bittu that he was wrongly named in the
FIR as no evidence of his involvement was
found.

19. During trial the complainant,
Rajkumar when was examined on oath,
during examination-in-chief he narrated
the incidence happened on 28 July 2018 in
between 7 to 8 a.m. morning. He named in
his statement along with the charge
sheeted five accused, Dipendra Kumar
Singh @ Bittu also. The statement by trial
court was recorded on 4.9.2018, he
disclosed in his statement that the reason
of dispute is with regard to land purchased
by his grandfather and father in the year
1984, and the complainant continued in
possession
of
the
said
land.
The
coparcener of the vendor was litigating
with the complainant's family, wherein the
decree was passed in his favour starting
from C.O., S.O.C. and D.D.C. Litigation
went
up
to
the
High
Court
and
complainants' party was succeeded. Still
civil suit and revenue suit are pending,
since opponents in the said case wanted to
dispossess them forcibly and accused
persons are from their family, therefore,
they had enmity and bitterness with the
complainant's family which led them to
commit the offence reported.

20. On 27 September 2019 an
application under Section 319 Cr.P.C., was
moved before the court with the prayer to
summon the accused (not charge sheeted
by the police) Dipendra Kumar Singh @
Bittu, the present revisionist for trial along
with the other accused persons. The
revisionist preferred objection against the
said application on 10th September, 2018
alleging that there is no evidence on record
with regard to his participation in the
crime and even a plea that that while the
police submitted a final report to this
effect, no protest petition was filed,
therefore, at the stage of trial or reason of
police report under section 169 Cr.P.C.
submitted before the court with regard to
no evidences of participation in crime by
Dipendra
Kumar
Singh
@
Bittu.
2 All. Dipendra Kumar Singh @ Bittu Vs. State of U.P. & Anr.
839
Application under section 319 CrPC is not
maintainable. The court heard the parties
in detail.

21. On perusal of impugned order
dated 31.7.2019 the matter is found
discussed quoting various decisions of the
Honourable Supreme Court with regard to
the power under Section 319 Cr.P.C. of the
Court for the summoning of accused
during trial under the circumstances given
in the Section. The trial judge has
observed that in the F.I.R. in unambiguous
words the information has reported that
"while the accused persons were abusing
and threatening the complainant and his
companions to run away from the spot
otherwise they will be killed and when the
complainant refused to do so, Shivendra
Singh @ Guddu, Dipendra Kumar @ Bittu
and Alok @ Golu from their rifle and
Narsingh from his gun began firing
wherein Pawan Kumar Singh, friend of the
complainant had died on the spot and
brother of the complainant to Trauma on
reference from the local hospital and too
died there".

22. The trial judge observed that the
name of Dipendra Kumar Singh @ Bittu
was given in the FIR assigning specific
role of firing on the deceased and even
stated in examination-in-chief before the
court as PW-1. As such in the totality and
circumstances, the proposed accused,
Dipendra Kumar Singh @ Bittu whose
presence at the time of incident is even
established from the other material and
statement taken prior to trial, should be
summoned for trial.

23. So far as the observation made by
the learned trial judge with regard to the
motive is concerned. It is established by
law that the FIR is not an encyclopedia
mere information as to the incident the
accused and the mode of committing
offence is sufficient to start the machinery
of investigation by the police after
registering the report. So far as the police
report under Section 169 of the Cr.P.C. by
the investigating officer is concerned. It
does not bar the court during trial to
exercise power under Section 319 Cr.P.C.,
when it appears to it by evidences coming
before it someone else not charge sheeted
or not made accused has also role in
commission of the offence and should be
tried along with the accused persons.
Section 319 Cr.P.C. reads as under:-

"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 a fresh,
and the witnesses re- heard;
840 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

24. The name of the revisionist,
Dipendra Kumar Singh @ Bittu is reported
in the F.I.R., even then disbelieving the
FIR contents without trial and believing on
the statement under Section 161 Cr.P.C.
which is untestified the investigating
officer
submitted
the
report of
no
evidences under Section 169 Cr.P.C.
However, the PW-1 when supported the
F.I.R. lodged by him instantly after the
incidence and named again the revisionist
accused Dipendra Kumar Singh @ Bittu.
The question is whether the trial judge was
bound by the police report or had to satisfy
itself from the evidences before it.

25. From the discussions made
hereinabove with regard to fact in the FIR
and
materials
collected
by
the
investigating officer, it is undoubted that
the complainant named categorically 6
accused persons namely Shivendra Pratap
Singh @ Guddu, Dipendra Kumar Singh
@ Bittu, Alok Pratap Singh @ Golu,
Narsingh, Hari Bhan Singh and Ramnath
Singh.

26. The trial judge recorded its
satisfaction on the basis of evidence during
the trial of PW-1 to summon the
revisionist for trial along with the other
accused, therefore, question arises whether
the nature of his satisfaction was that as
required to invoke the power under
Section 319 Cr.P.C. to arraign the accused
and whether it is necessary for exercise of
power under Section 319 (1) Cr.P.C. when
the court is satisfied that the proposed
accused in all likelihood be convicted. In
this context, it would be relevant here to
quote para 82-86 of the judgment of
Hon'ble Supreme Court Hardeep Singh
(Supra):-

"82.
Though
the
facts
so
received by the magistrate or the court
may not be evidence, yet it is some
material that makes things clear and
unfolds
concealed
or
deliberately
suppressed material that may facilitate the
trial. In the context of Section 319 Cr.P.C.
it is an information of complicity. Such
material therefore, can be used even
though not an evidence in stricto sensuo,
but an information on record collected by
the court during inquiry itself, as a prima
facie satisfaction for exercising the powers
as presently involved.

83. This pre-trial stage is a stage
where no adjudication on the evidence of
the offences involved takes place and
therefore, after the material alongwith the
charge-sheet has been brought before the
court, the same can be inquired into in
order to effectively proceed with framing
of charges.