# Gaurav Sharma v. State of U.P. & Anr

- **Citation:** (2023) 1 ILRA 796
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-29
- **Case number:** Application U/S 482 No. 25924 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-sharma-v-state-of-u-p-anr-49190
- **Pages:** 5

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 319 - Scope - Power
of issuing the process against person
appears to be guilty of offence - Power,
1 All. Gaurav Sharma Vs. State of U.P. & Anr.
797
how can be exercised - Investigating
Officer filed closure report in favour of
applicant - Duty of trial court to see the
material considered by the I.O. - Held,
power under section 319 Cr.P.C. is to be
exercised
primarily
for
providing
or
espousing the cause of criminal justice. At
the stage of section 319 CrPC, the trial
court is duty bound to at least look into
the
material
which
persuaded
the
investigating
officer
to
file
a
final
report/closure report against an accused
person - Hardeep Singh's case relied
upon. (Para 7)
Application allowed (E-1)
List of Cases cited:-

## Text

796 INDIAN LAW REPORTS ALLAHABAD SERIES

11. There is one more aspect of the
case that on the basis of lease executed in
favour of the petitioner in the year 1983,
the petitioner became bhumidhar with
transferable
rights
vide
order
dated
25.2.1997 and revision filed against the
order dated 25.2.1997 by stranger Gyan
Singh was dismissed vide order dated
18.4.2022, as such, initiation of summary
proceeding to expunge the petitioner's entry
on the basis of observation made in the
order dated 18.4.2022, dismissing the
revision of the stranger Gyan Singh is
wholly illegal and abuse of process of law.

12. This Court in Full Bench decision,
reported in 1977 RD 408, Similesh Kumar
vs. Gaon Sabha Uskar, Ghazipur and
Others, has held that in view of the
amendments made to Section 198 of the
Act that the power to cancel a lease or an
allotment of land lay only in the Collector
subject to a revision under Section 333 of
the Act and, therefore, the consolidation
authorities did not have jurisdiction to
decide the question of validity of the lease
or allotment.

13. In view of the ratio of law laid
down in Similesh Kumar (supra) the
exercise
of
summary
proceeding
to
expunge the petitioner's entry is wholly
illegal unless the lease exeucuted in favour
of the petitioner is cancelled in accordance
with law.

14. The Full Bench decision of
Similesh
Kumar
(supra)
has
been
distinguished by the Hon'ble Apex court in
the case of U.P. State Sugar Corporation
Limited
vs.
Deputy
Director
of
Consolidation and Others, reported in
2000 (91) RD 165, holding that if the lease
in question is void then the lease can be
ignored but the same is not the position in
the instant case as the lease was executed in
favour of petitioners which is very much
proved from the evidence on record and
petitioner
became
bhumidhar
with
transferable rights also on the basis of lease
in question, as such, there is no question
that lease in question is void.

15. Considering the entire facts and
circumstances of the case, the impugned
order
dated
7.12.2005,
passed
by
respondent no.2 / Board of Revenue and
the order dated 27.4.2002, passed by the
Sub-Divisional Officer are liable to be set
aside and the same are hereby set aside.

16. The writ petition stands
allowed. The lease granted in favour of the
petitioner is hereby affirmed.

17. No order as to costs.
----------
(2023) 1 ILRA 796
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.11.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Application U/S 482 No. 25924 of 2022

Gaurav Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Abhishek Tripathi, Sri Vibhu Rai

Counsel for the Opposite Parties:
G.A., Sri Sanjay Kumar Dubey

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 319 - Scope - Power
of issuing the process against person
appears to be guilty of offence - Power,
1 All. Gaurav Sharma Vs. State of U.P. & Anr.
797
how can be exercised - Investigating
Officer filed closure report in favour of
applicant - Duty of trial court to see the
material considered by the I.O. - Held,
power under section 319 Cr.P.C. is to be
exercised
primarily
for
providing
or
espousing the cause of criminal justice. At
the stage of section 319 CrPC, the trial
court is duty bound to at least look into
the
material
which
persuaded
the
investigating
officer
to
file
a
final
report/closure report against an accused
person - Hardeep Singh's case relied
upon. (Para 7)
Application allowed (E-1)
List of Cases cited:-
1. Hardeep Singh Vs St. of Punj.; (2014) 3 SCC
92
2. Brijendra Singh & ors. Vs St. of Raj.; (2017)7
SCC 706
(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The petition has been filed under
Section 482 CrPC for quashing order dated
28.7.2022 passed by Addl. district &
Sessions Judge, Court No.5, Hathras in S.T.
No.216 of 2019 State versus Yogesh
Baghel
and
others
and
the
further
proceedings thereof, arising out of Case
Crime No.126 of 2019 under sections 307,
147, 148, 149, 120-B I.P.C., P.S. Hathras
Kowali, district Hathras.

2. Heard Mr. Vibhu Rai, learned
counsel for the petitioner and learned
A.G.A. for the State as also Mr. Sanjay
Kumar
Dubey,
learned
counsel
for
respondent No.2 who has submitted that he
does not want to file any counter affidavit.
Both the parties' counsel state that the
matter may be finally decided.

3. Learned counsel for the petitioner
submits that the petitioner is presently
working as Assistant Clerk in Seth Harijan
Das Girls Inter College, Hathras (to be
hereafter referred to as 'college'). The
injured Madan Mohan Gautam was also
working as Clerk at that time in the college.

It is submitted that regarding
forgery committed by the injured in his two
appointment letters, a complaint was filed by
the applicant to the District Magistrate,
Hathras, on which a reply was called from the
Manager. Thereafter, the District Inspector of
Schools, Hathras directed the Manager on
31.8.2020 to submit a report regarding illegal
appointment of injured Madam Mohan
Gautam. In the meantime, Madam Mohan
Gautam, injured was also involved in
appointment of one Rajeshwari on class-IV
post on forged and fabricated papers and he
had also taken bribe to procure the said
appointment in the college. When the said
illegality was surfaced, Rajeshwari was
removed from service and Madan Mohan
Gautam was attached in the government
labrary by the District Inspector of Schools.
Since Rajeshwari has given huge amount of
money for appointment to the injured Madan
Mohan Gautam, hence her son Laltu alias
Lalit was having enmity against Madan
Mohan Gautam.

On the date of the incident, i.e. on
12.4.2019, the injured Madan Mohan
Gautam was transferred back to the college
and joined. On that day, he was attacked by
Laltu alias Lalit along with the two coaccused persons. One gun shot injury was
shown in the medical examination report.

It is submitted that in the first
information
report,
presence
of
the
applicant has not been shown on the spot,
although suspicion was raised upon the
applicant along with other co-accused
persons.

The
prosecution
witness
Yashomani Gautam (respondent No.2) who
798 INDIAN LAW REPORTS ALLAHABAD SERIES
is son of the injured in his statement has
alleged that three accused persons fired on
his father with an intent to kill, however,
presence of the present applicant was not
shown at the spot. Again, suspicion was
raised by him.

Another son of the injured
Rajatmani alias Rahul in his statement has
clearly mentioned the name of three
assailants, i.e. Vishal, Laltu and Kanha and
has alleged that all the three assailants were
on a Platina motorcycle and fired with an
intent to kill at his father Madan Mohan
Gautam. The
injured
Madan
Mohan
Gautam has also taken the name of
aforesaid three accused persons, i.e. Vishal,
Laltu and Kanha. He also did not show
presence of the applicant at the place of
occurrence. In fact, he has not even taken
the name of the applicant in any manner.
He even stated that he is not aware as to
who is behind this conspiracy and this fact
can be culled out by interrogation of Vishal,
Laltu and Kanha.

The co-accused Laltu in his
confessional statement has confessed the
guilt and has stated that the conspiracy was
hatched by him with other two co-accused
persons and one motorcycle Platina black
colour was also made available by Yogesh
Baghel and some cash was also given by
him. He has also not taken the name of the
applicant in the incident. After conclusion
of investigation, charge-sheet was filed by
the investigating officer against Yogesh
Kumar, Laltu, Vishal Sharma and Kanha.
The investigating officer did not find
complicity of the applicant. One Bajaj
Platina Black motorcycle No.UP86 E 3056
was recovered.

Learned counsel for the applicant
submits that on 4.2.2020, on a complaint
made by the applicant, the Commissioner,
Aligarh Region has directed District
Magistrate, Hathras to conduct an enquiry
in the matter of forgery committed by
Madan Mohan Gautam regarding his two
appointment letters.

It is submitted that after the
aforesaid letter dated 4.2.2020 was written,
P.W.2 Madan Mohan Gautam, injured was
examined before the trial court. While
being examined before the trial Court, he
took a u-turn and for the first time in the
prosecution case, second motorcycle was
introduced by the injured witness. It is
submitted that it is in the statement before
the court, P.W.2 injured witness while
introducing second motorcycle has stated in
his cross-examination that the applicant
was riding on the Splender motorcycle
which belongs to him. He further stated
that five persons were present at the place
of occurrence. The Splender motorcycle
was driven by Lalit on which Gaurav
Sharma, Lalit and Yogesh Baghel were
riding and Nitin and Vishal were riding on
the Platina motorcycle.

It is contended by learned counsel
for the applicant that the trial court has
failed to consider the fact that the
investigating
officer
after
meticulous
investigation
and
on
the
basis
of
confessional statement made by Lalit has
filed the charge sheet and has recovered the
Platina motorcycle. No other motorcycle
was recovered by the investigating officer
nor was found involved in the crime. Both
the sons of injured as well as the injured
himself have not assigned the role of firing
to the applicant or shown his presence at
the spot in their statements under section
161 CrPC. The statement given by the
injured Madan Mohan Gautam before the
court is nothing but a clear lie and has been
used as a tool to exert pressure on the
applicant
who
happens
to
be
the
complainant against him and on his
complaint, an enquiry has already been
ordered by the Commissioner, Aligarh
1 All. Gaurav Sharma Vs. State of U.P. & Anr.
799
regarding the forgery committed by him in
his appointment letter.

4. Per contra, learned A.G.A. and
learned counsel for respondent No.2 have
opposed the petition. They have submitted
that while issuing process under section
319 CrPC, only prima facie case is to be
seen. The court cannot go into deeper
appreciation of the evidence at this stage.

5. A Constitution Bench of Supreme
court in Hardeep Singh versus State of
Punjab (2014)3 SCC 92 held that power
under section 319 CrPC which is a
discretionary and an extraordinary power is
to be exercised sparingly and only in those
cases where the circumstances of the case
so warrant and when there are strong and
cogent evidence against a person from the
evidence led before the court. It has also
been held that power is not to be exercised
in a casual and cavalier manner. Relevant
paras 105 and 106 are extracted below :

"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
CrPC to form any opinion as to the guilt of
the accused."

In the case of Brijendra Singh
and others versus State of Rajasthan
(2017)7 SCC 706 it has been held that the
trial court is required to look into the
material collected by the investigating
officer during the course of investigation
before forming prima facie opinion for
summoning a person as an additional
accused if that material collected by the
investigating officer shows another story.

6. In the case in hand, the statement of
the injured under section 161 CrPC and the
statement of his two sons do not show the
presence of the applicant at the place of
occurrence. All three material prosecution
witnesses have stated that only one Platina
motorcycle was used. There is no whisper
regarding the second motorcycle. However,
at the time of statement and cross
examination before the trial court, the
injured witness has taken an U-turn and
instead of three, has introduced five
assailants,
one
additional
motorcycle
belonging to the applicant and therefore,
the trial court should have at least taken
note of their statements given to the
investigating officer under section 161
800 INDIAN LAW REPORTS ALLAHABAD SERIES
CrPC, on the basis of which, the charge
sheet was filed by the investigating officer
and name of the applicant was dropped.

The fact that the accused Lalit has
confessed his guilt in his statement under
section 161 CrPC and only one motorcycle
was recovered by the investigating officer
should have also been taken note of, by the
trial court.

7. It is well settled that power under
section 319 CrPC is to be exercised
primarily for providing or espousing the
cause of criminal justice. At the stage of
section 319 CrPC, the trial court is duty
bound to at least look into the material
which persuaded the investigating officer to
file a final report/closure report against an
accused person. The material on the basis
of which the closure report against an
accused has been filed and his name has
been dropped while filing the charge sheet
must be taken note of, by the trial court.
Merely on a statement given by a
prosecution
witness
and
introducing
altogether a new fact for the first time
during trial which is in stark contradiction
to the statement given by that person during
investigation under section 161 CrPC, that
too by an injured witness, additional
accused which in this case is the applicant
could not have been summoned. The trial
court
should
have,
therefore,
noted
statement given by the injured witness to
the Investigating Officer, the statement of
the two sons of the injured as well as the
confessional statement of the main accused
person and the recovery done by the
investigating officer on the basis of which
the police report was filed.

8. In the present case, the trial court has
not considered the aforesaid material, i.e. the
statement of the injured under section 161
CrPC, statement of his two sons under
section 161 CrPC, confessional statement of
the co-accused person, recovery of only one
motorcycle, i.e. Platina and hence by
overlooking the evidence collected by the
investigating officer which demonstrate that
the present applicant was not present at the
time and place of occurrence, neither there
was any material to indicate his conspiracy in
the commission of offence and merely
relying on the statement recorded during
examination of the injured witness before it
which finds no corroboration with the entire
prosecution case earlier; rather is in stark
contradiction to the earlier prosecution case
and the material collected by the investigating
officer, therefore, the impugned order cannot
be sustained and is liable to be set aside.

9. Accordingly, the petition is allowed
and the impugned order dated 28.7.2022
(supra) is set aside.
----------
(2023) 1 ILRA 800
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.01.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 161 of 2023

Sidhique Kappan ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ishan Baghel, Mohd. Khalid

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Criminal Procedure
Code, 1973 - Sections 227, 228 & 482 -
Discharge - Scope and object - Order of