# Ibrar @ Raju Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-25
- **Case number:** Criminal Revision No. 4154 of 2022
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ibrar-raju-revisionist-v-state-of-u-p-anr-49727
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164 & 319 - Indian
Penal Code, 1860 - Sections 354, 376-D,
452 & 506 - Criminal Revision - against,
order impugned by which learned Trial court,
on an application filed by the prosecution,
summoned the revisionist - Validity -
Offences of gang Rape - FIR - from the date
of registration of FIR and till submission of
Charge-sheet neither the revisionist was
named nor any allegation was made against
him - the power conferred under section 319
CrPC is an extraordinary power and it should
be exercised sparingly and with conscious
approach - Court finds that, trial court ignored
the grounds on which the revisionist/accused
was exonerated during investigation - the
standard of evidence required for exercising
the powers u/s 319 CrPC - hence, the
impugned order is not sustainable in the eyes
of law - revision allowed. (Para - 11, 12)

Revision Allowed. (E-11)

List of Cases cited: -

## Text

2 All. Ibrar @ Raju Vs. State of U.P. & Anr.
671

10. Applying the law as laid down by
the Apex Court on the facts of the case on
hand, it is clear that the learned trial court
has materially erred in allowing the
application U/s 319 Cr.P.C. There is
inherent contradictions in the prosecution
case as unfolded in the FIR, as explained in
the statement of witnesses examined U/s
161 Cr.P.C. and the statements recorded
during the course of trial. The court below
while deciding the application U/s 319
Cr.P.C.
has
completely
ignored
the
aforesaid aspect of the matter and has failed
to record his satisfaction which is required
for summoning the accused U/s 319 Cr.P.C.
The evidence led by prosecution is not
cogent one and cannot be the basis of
summoning the revisionist-accused who are
neither named in the FIR nor in the
previous statements of witnesses recorded
U/s 161 Cr.P.C. The impugned order suffers
from material illegality which has been
passed in a cavalier manner and not
sustainable in the eye of law.

11. Accordingly the revision is
allowed.
The
impugned
order
dated
27.02.2013 is hereby set aside.
----------
(2023) 2 ILRA 671
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 4154 of 2022

Ibrar @ Raju ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ram Bahadur, Sri Vishal Srivastava, Sri
Anil Kumar (Sr. Advocate)
Counsel for the Opposite Parties:
G.A., Sri Manoj Kumar Bhatt, Sri Preet Pal
Singh Rathore

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164 & 319 - Indian
Penal Code, 1860 - Sections 354, 376-D,
452 & 506 - Criminal Revision - against,
order impugned by which learned Trial court,
on an application filed by the prosecution,
summoned the revisionist - Validity -
Offences of gang Rape - FIR - from the date
of registration of FIR and till submission of
Charge-sheet neither the revisionist was
named nor any allegation was made against
him - the power conferred under section 319
CrPC is an extraordinary power and it should
be exercised sparingly and with conscious
approach - Court finds that, trial court ignored
the grounds on which the revisionist/accused
was exonerated during investigation - the
standard of evidence required for exercising
the powers u/s 319 CrPC - hence, the
impugned order is not sustainable in the eyes
of law - revision allowed. (Para - 11, 12)

Revision Allowed. (E-11)

List of Cases cited: -

1. Ramesh Chand Srivastava VS St. of UP -
Criminal Appeal No. 990/2021 decided on Dt.
13.09.2021,

2. Periyasami & ors. Vs Nallasamy (2019 vol. 4
SCC 342),

3. Hardeep Singh Vs St. of Pun. 2014 vol. 3 SCC
92,

4. Brijendra Singh & anr. Vs St. Of Raj. 2017 Vol.
7 SCC 706.,

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Mr Anil Kumar, learned
Senior Advocate, assisted by Mr Ram
Bahadur and Mr Vishal Srivastava, learned
counsel for the revisionist, Mr Preet Pal
Singh Rathore, learned counsel for opposite
672 INDIAN LAW REPORTS ALLAHABAD SERIES
party no.2 as well as the learned A.G.A.
and perused the material placed on record.

2. The revisionist, by way of filing the
present revision, has sought to quash the
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, 376-D and 506 I.P.C.,
Police
Station
Nawabganj,
District
Allahabad. By the impugned order, learned
trial court, on an application filed by the
prosecution under Section 319 Cr.P.C., has
summoned the revisionist to face trial.

3. An F.I.R. was lodged on
20.07.2018
by
opposite
party
no.2
(prosecutrix) alleging therein that her
neighbours Israr alias Raju son of Harun
alias Babu and Mahfooz son of Shamum
had evil eyes on her. On 05.07.2018 at
about 2 p.m. when prosecutrix was
returning home from Mansoorabad, they
teased her in front of Fatehpur. The
prosecutrix made a complaint on 100 Dial,
but no action was taken. On 08.07.2018 at
about 1.00 a.m. (in night) aforesaid two
persons with two unknown companions
entered into the house from the roof. The
prosecutrix was sleeping opening the door
due to hot weather. Meanwhile, all the four
persons gagged her mouth and on point of
country-made pistol, they all committed
rape wit her. They also threatened her not
to disclose it to anyone, otherwise she and
her mother will be killed. The prosecutrix
gave information of the incident in the
morning at Police Station Nawabganj, but
no action was taken, hence an application is
being moved to Inspector General of
Police,
Allahabad.
After
investigation
charge-sheet was submitted on 17.4.2019
against
Mahfooz
son
of
Shamum.
Thereafter
vide
CD
Parcha
dated
11.08.2019, the two accused Israr alias
Raju
and
Bablu
alias
Sharif
were
exonerated. During trial after statement of
two witnesses, prosecutrix PW 1 and
Anwari Bano PW 2, an application under
Section 319 Cr.P.C. was filed by the
prosecution alleging therein that the report
of prosecutrix was not registered at Police
Station
Nawabganj,
she
moved
an
application dated 12.07.2018 to Inspector
General of Police, Prayagraj and on this
application Case Crime No. 331 of 2018
under Sections 354, 452, 376-D and 506
I.P.C. was registered against Israr alias Raju
son of Harun alias Babu and Mahfooz son
of Shamum. After narrating the averments
of the F.I.R., it is further alleged that
statement of the victim was recorded under
Section 164 Cr.P.C. in which she has taken
the names of Ibrar alias Raju son of Khalil
alias Babu and Sharif alias Bablu son of
Haneef. In statement recorded under
Section 161 Cr.P.C. she has taken the
names of the aforesaid accused persons.
The
applicant
has
also
moved
an
application for amendment before the High
Court. Her statement has been recorded by
the trial court in which she has implicated
Ibrar alias Raju and Sharif alias Bablu and
has reiterated that they have committed
rape with her. Statement of Anwari Bano
was also recorded and she has also narrated
the entire incident that Ibrar alias Raju son
of Khalil alias Babu and Sharif alias Bablu
son of Haneef have committed rape on her.
On the aforesaid grounds, prayer was made
to summon the accused. Learned trial court
has allowed aforesaid application and
summoned the revisionist-accused and
Bablu alias Sharif.

4. It is contended by learned counsel
for the revisionist that in the F.I.R.
revisionist was not named. The F.I.R was
2 All. Ibrar @ Raju Vs. State of U.P. & Anr.
673
registered against Israr alias Raju son of
Harun alias Babu and Mahfooz son of
Shamum
and
their
two
unknown
companions.
The
statement
of
the
complainant was recorded under Section
161 Cr.P.C. in which she has reiterated the
version of the F.I.R. and has named Israr
alias Raju and Mahfooz son of Shamum as
accused persons who have committed
offence. The same statement has been
reiterated by the prosecutrix in statement
recorded under Section 164 Cr.P.C. When it
came to the notice of the complainant that
Israr alias Raju was not present in the
village at the time of the incident and he
was at Mumbai, then she falsely implicated
Ibrar. The name of Ibrar has come for the
first time in the statement of the prosecutrix
recorded before the trial court. It is also
contended that charge-sheet was submitted
against Mahfooz son of Shamum. Coaccused Israr alias Raju and Sharif alias
Bablu
were
not
arrested
during
investigation and investigation was kept
pending against them. The independent
witnesses have stated that a dispute
regarding drainage has taken place and the
complainant called the police who pacified
the parties. No other incident has happened.
On 25.10.2019 last Parcha was prepared by
the Investigating Officer with averment that
during investigation complicity of Israr
alias Raju and Bablu alias Sharif has been
found false, hence no charge-sheet was
submitted against them. It is also contended
that learned trial court without taking into
consideration that even from the date of
registration of the F.I.R. and till submission
of charge-sheet neither the revisionist was
named nor any allegation was made against
him. Whatsoever allegation is there, it is
against only Israr alias Raju, but the trial
court has summoned the revisionist. The
impugned order is totally illegal, arbitrary
and has been passed by the trial court
without considering the evidence and
material on record. It is next contended that
revisionist and opposite party no.2 are
neighbours and their houses are situated in
front of each other. Because of village
partibandi their relations are not cordial and
due to this reason for the first time on
28.06.2022 the name of the revisionist has
been disclosed after about three and half
years of registration of the F.I.R. Learned
counsel has further submitted that Apex
Court in the case of Ramesh Chandra
Srivastava Versus State of U.P. in
Criminal Appeal No.990 of 2021 vide
order dated 13.09.2021 while adjudicating
the powers of the court under Section 319
Cr.P.C. has held that:

"The test as laid down by the
Constitution Bench of this Court for
invoking power under Section 319 Cr.P.C.
inter alia includes the principle that only
when strong and cogent evidence occurs
against a person from the evidence, the
power under Section 319 Cr.P.C. should be
exercised. The power cannot be exercised
in a casual and cavalier manner. The test to
be applied, as laid down by this Court, is
one which is more than prima facie case
which is applied at the time of framing of
charges."

5. It is further contended that the
Apex Court in Periyasami and others
Versus Nallasamy (2019) 4 SCC 342, has
held as follows:

"The additional accused cannot
be summoned under Section 319 of the
Code in casual and cavalier manner in the
absence of strong and cogent evidence.
Under Section 319 of the Code additional
accused can not be summoned only if there
is more than prima facie case as is required
at the time of framing of charge but which
674 INDIAN LAW REPORTS ALLAHABAD SERIES
is less than the satisfaction required at the
time of conclusion of the trial convicting
the accused."

6. It is also contended that learned
trial court was under an obligation to go
through the entire material and evidence
collected by the Investigating Officer
during the trial, and so far as the
application filed by opposite party no.2
under Section 319 Cr.P.C. is concerned that
should
not
have
been
taken
into
consideration which is contrary to the
entire evidence. In absence of any credible
evidence upto three and half years from the
date of registration of the First Information
Report, the revisionist-applicant can not be
implicated in the present case only to
satisfy the ego of the opposite party no.2. It
is next contended that it is a clear case of
false
implication
of
the
revisionistapplicant due to family dispute and
partibandi of the village and in absence of
any credible evidence, false implication of
the applicant-revisionist cannot be ruled
out. It is also contended that learned trial
court while summoning the revisionistapplicant has not applied his judicial mind
rather in a most mechanical manner
summoned the revisionist. The learned trial
court while summoning the revisionist has
miserably failed to appreciate the fact that
no offence is made out against the
revisionist from the First Information
Report as well as the statements recorded
before it.

7. Learned counsel for the opposite
party no.2 and learned A.G.A. appearing
for State contended that revisionist-accused
was named from very beginning. In the
application dated 12.07.2018 addressed to
Inspector General of Police, Ibrar alias
Raju was named, but a confusion was
created by the people of accused side and
on their behest name of Ibrar was changed
by Israr while nickname Raju was the
same. It is further contended that Ibrar and
Israr are actually one person. Raju the
nickname is common and Babu the
nickname of father is also common.
Learned counsels also contended that
police in collusion with the accused have
developed the story that dispute between
the parties is with regard of drainage on
account of which false implication has been
made which is highly improbable. A lady
will not put her prestige on stake. It is also
contended that revisionist and other coaccused
and
their
associates
were
pressurizing the prosecutrix and her family
members not to lodge the F.I.R. The
prosecutrix came to her parental home just
before few days of the incident. She knew
the revisionist by his nickname Raju and
father's nickname Babu and she was
confused about his real name Ibrar or Israr.
She moved application before higher
authorities on 12.07.2018. The revisionist
and other co-accused are very influential
person.
They
adversely
affected
the
investigation of the case. The prosecutrix
preferred a Writ-C (Criminal) No. 24381 of
2018 before this Court for fair and
impartial investigation. The Investigating
Officer
was
not
conducting
fair
investigation and prosecutrix has to move
an application dated 23.01.2019 before the
Circle Officer that revisionist and his father
were named under their nicknames i.e.
Raju and Babu that is why she has scribed
their name in the F.I.R. Now they have
prepared their Aadhar card under the name
of Ibrar alias Raju son of Khalil alias Babu,
so the name be corrected accordingly.
Thereafter, the revisionist moved surrender
application on 29.01.2019 before the court
below under the name of Israr son of Khalil
alias Babu. The police submitted a report
on
02.02.2019
stating
therein
that
2 All. Ibrar @ Raju Vs. State of U.P. & Anr.
675
revisionist is wanted in aforesaid case.
After seeing the report dated 02.02.2019,
the revisionist did not appear before the
court below, consequently, his surrender
application was rejected vide order dated
02.03.2019. Thereafter, the complainant
moved another application on 11.03.2019
before the Investigating Officer stating
therein that correct name of accused is
Ibrar alias Raju instead of Israr alias Raju.
Despite this, Investigating Officer was not
taking any action against the revisionist,
then
she
preferred
Criminal
Misc.
Application (U/S 482 Cr.P.C.) No.30986
of 2019 before this Court which was
disposed of with a direction to the
complainant to move an application before
the Investigating Officer. Thereafter, she
submitted complaint dated 03.10.2019
before the Investigating Officer but the
Investigating Officer not complied with
the order of this Court, then a contempt
application
was
also
moved.
The
revisionist was named in the F.I.R. since
very beginning. He is also one of the main
culprits. The error in his name has
occurred only on account of confusion of
name by which he is addressed in the
village.It is further contended that the
prosecutrix in her statement before the
trial court has clearly implicated the
revisionist showing his complicity in the
incident. He is main culprit who has
committed rape with the victim. Other
witnesses produced before the trial court
has also narrated entire evidence. From
their testimony the involvement of the
revisionist-accused is fully established.
The trial court after considering evidence
and material on record has found that there
is sufficient and cogent evidence against
the
revisionist
and
has
passed
the
summoning order. Therefore, there is no
illegality in the the impugned summoning
order.

8. The perusal of record transpires
that in the F.I.R. one of the accused is
named as Israr alias Raju son of Harun
alias Babu while revisionist is Ibrar alias
Raju son of Khalil Ahmad. From the
allegations of the F.I.R. it is also clear that
the
complainant
and
accused
are
neighbours. There may be confusion in the
name, Israr and Ibrar, but here in the case in
hand there is also difference in the
parentage. In the F.I.R., parentage of named
accused Israr is Harun while parentage of
revisionist Ibrar is Khalil Ahmed and not
Harun. The difference of parentage is
prominent one. There is no plausible
explanation regarding this difference. After
investigation charge-sheet was submitted
against
Mahfooz.
During
further
investigation the Investigating Officer has
recorded statements of a number of
independent witnesses who have stated
about the incident dated 05.07.2018 and
have put up a different story. They have not
corroborated the allegations of the F.I.R. in
this respect. The name of revisionist Ibrar
has been disclosed by the complainant and
prosecutrix at a very late stage. The
Investigating Officer has also observed that
when it came to the notice of prosecutrix
that at the alleged time of incident Israr was
at Mumbai and he will be exonerated, then
she changed the name and implicated Ibrar.
In the F.I.R., in the statement recorded
under Section 161 and in the statement
under Section 164 Cr.P.C. the name
disclosed is Israr alias Raju.

9. The Apex Court in Hardeep Singh
Versus State of Punjab, 2014(3) SCC 92
has held as follows:

"Power
under
Section
319,
Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised
sparingly and only in those cases where the
676 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

Thus, we hold that though only a
prima face 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."

10. In Brijendra Singh and another
Versus State of Rajasthan (2017) 7 SCC
706, the Apex Court has made following
observations:

"13. 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 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 charge-sheet 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."

11. The power conferred to the trial
court to summon an accused under Section
319 Cr.P.C. is although a discretionary
power, but it is an extraordinary power and
it should be exercised sparingly and with
cautious approach. There must be cogent
and sufficient evidence. In the present case,
the trial court has completely ignored the
grounds on which the revisionist-accused
was
exonerated
by
the
Investigating
Officer. The revisionist-accused was not
named in the F.I.R. His name also did not
surface either in the statement of victim
recorded under Section 161 Cr.P.C. or 164
Cr.P.C. At a very late stage, the name of
revisionist-accused has been introduced
while there is prominent difference in the
parentage of the accused. The trial court
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,