# Ishwar Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 1 ILRA 73
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-19
- **Case number:** Criminal Revision No. 1793 of 2018
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishwar-revisionist-v-state-of-u-p-anr-49183
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401-Indian
Penal
Code,
1860-Sections
323/34,
304/34,504
&
506-challenge
tosummoning
order
u/s
319
Cr.P.C.-
revisionist was named in the FIR showing
his
complicity
in
the
incident-During
investigation revisionist was exonerated
on the basis of plea of alibi which was
confirmed by the statement recorded of
the
witnesses-But
the
injured/complainant statement u/s 161
Cr.P.C.
and
the
statement
in
her
examination
in
chief,
injured
again
corroborated the allegations of FIR-It is
settled law that the testimony of injured
witness is of higher value and cannot be
ignored-Apex Court held that power u/s
319 Cr.P.C. can be exercised at the stage
of completion of examination in chief and
court does not need to wait till the said
evidence is tested on cross examination
for, it is the satisfaction of the court which
can
be
gathered
from
the
reasons
recorded by the court, in respect of
complicity of some other persons, not
facing the trial in the offence-Learned trial
court rightly recorded its satisfaction
about the complicity of the revisionist and
therefore,
summoned
him-Hence,
no
illegality or infirmity in the impugned
order.(Para 1 to 9)

B. The Apex Court while dealing the
question
"what
is
the
degree
of
satisfaction required for invoking the
power u/s 319 Cr.P.C." held that though
only a prima facie case is to be established
from evidence led before the court not
necessarily tested on the anvil of cross
74 INDIAN LAW REPORTS ALLAHABAD SERIES
examination, 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 u/s
319 Cr.P.C.(Para 6)

The revision is dismissed. (E-6)

List of Cases cited:

## Text

1 All. Ishwar Vs. State of U.P. & Anr.
73
Rights Act, 2005 or a Special Court under
the Protection of Children from Sexual
Offences Act, 2012, wherever existing and
where
such
courts
have
not
been
designated, the Court of Sessions having
jurisdiction to try offences under the Act."

17. It is apparent that wherever a
Special Court under the Protection of
Children from Sexual Offences Act, 2012 is
in existence, such court shall function as
"Children's Court" under the provisions of
Juvenile Justice (Care and Protection of
Children) Act, 2015. This may not be taken to
mean that the jurisdiction under the Juvenile
Justice (Care and Protection of Children) Act,
2015 lies in Special POCSO Court. To say in
plain words, whenever a matter relating to a
"child in conflict with law" or a 'child in need
of care and protection' is taken up or decided
by a competent court that court shall be
referred to as Children's Court. It has come in
my observation that Judges of Special
POCSO Courts functioning as appellate court
in respect to 'child in need of care and
protection' or "child in conflict with law"
wrongly refer themselves as Special Judge,
POCSO Court or even as Additional Sessions
Judge. Its proper designation is "Children's
Court". It is necessary to point out this error
which is being committed by the concerned
courts almost all over the State of Uttar
Pradesh.

18. Registry is directed to circulate this
judgement to all the District Judges of State
of U.P.
----------
(2023) 1 ILRA 73
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2022

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.
Criminal Revision No. 1793 of 2018

Ishwar ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Madan Singh, Sri Abhinav Tripathi

Counsel for the Opposite Parties:
G.A., Sri Ronak Chaturvedi

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401-Indian
Penal
Code,
1860-Sections
323/34,
304/34,504
&
506-challenge
tosummoning
order
u/s
319
Cr.P.C.-
revisionist was named in the FIR showing
his
complicity
in
the
incident-During
investigation revisionist was exonerated
on the basis of plea of alibi which was
confirmed by the statement recorded of
the
witnesses-But
the
injured/complainant statement u/s 161
Cr.P.C.
and
the
statement
in
her
examination
in
chief,
injured
again
corroborated the allegations of FIR-It is
settled law that the testimony of injured
witness is of higher value and cannot be
ignored-Apex Court held that power u/s
319 Cr.P.C. can be exercised at the stage
of completion of examination in chief and
court does not need to wait till the said
evidence is tested on cross examination
for, it is the satisfaction of the court which
can
be
gathered
from
the
reasons
recorded by the court, in respect of
complicity of some other persons, not
facing the trial in the offence-Learned trial
court rightly recorded its satisfaction
about the complicity of the revisionist and
therefore,
summoned
him-Hence,
no
illegality or infirmity in the impugned
order.(Para 1 to 9)

B. The Apex Court while dealing the
question
"what
is
the
degree
of
satisfaction required for invoking the
power u/s 319 Cr.P.C." held that though
only a prima facie case is to be established
from evidence led before the court not
necessarily tested on the anvil of cross
74 INDIAN LAW REPORTS ALLAHABAD SERIES
examination, 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 u/s
319 Cr.P.C.(Para 6)

The revision is dismissed. (E-6)

List of Cases cited:
1. Hardeep Singh Vs St. of Punj. & ors. (2014)
AIR SC 1400 SC

2. Brijendra Singh & ors. Vs St. of Raj. (2017) 7
SCC 706

3. Manjeet Singh Vs St. of Har. & ors. (2021)
SCC On Line SC 632

4. Rajesh & ors. Vs St. of Har.(2019) 6 SCC 368

5. Bijendra Singh Vs State of Raj. (2017) 7 SCC
706

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

1. Heard learned counsel for the
revisionist, learned counsel for opposite
party no.2 as well as learned AGA for the
State.

2. This criminal revision is filed to set
aside the order dated 8.03.2018 passed by
Additional Sessions Judge, court no.6,
Bijnor in S.T. No.192 of 2017 (State vs.
Nand Lal and ors) in case crime no.446 of
2016, U/s 323/34, 304/34, 504, 506 IPC,
P.S. Dhampur, District Bijnor.

3. In brief the facts are that an FIR
crime no. 446 of 2016 was lodged on
08.07.2016 naming the applicants Ishwar,
Nand Lal, Keshav and Ghanshyam. The
allegations of the FIR is that on 08.07.2016
at 10:30-11:00 am, applicant- Ishwar, Nand
Lal, Ghanshyam and Keshav started
construction over the disputed land. The
complainant and her husband and daughter
Tannu prevented them from doing so, then
all the four accused persons assaulted the
complainant, putting him on earth, they
assaulted him with bricks. Her husband
received injuries in the stomach and
became unconscious. The complainant and
her daughter tried to save him then
accused-persons assaulted them. They went
away from there abusing and extending
threats with death. The complainant took
her husband to the hospital where he is
under treatment. Initially the case was
registered under section 323, 504, 506 IPC.
Due to the death of injured, Section 304
IPC was added. After investigation, chargesheet was submitted only against three
accused namely Nand Lal, Ghanshyam and
Keshav.
The
Investigating
Officer
exonerated the other named accused
Ishwar. During the course of trial, after
examination in chief of P.W.-1 Savita Devi
(complainant/ injured) an application U/s
319 Cr.P.C. was moved by the complainant/
prosecution alleging therein that accused
Ishwar
is
named
in
the
FIR
and
complainant Savita in her statement under
section 161 Cr.P.C has assigned the same
role to him as the remaining accused. The
examination in chief of Savita has been
recorded in the court, she is one of the
injured witness. The complicity of the
accused Ishwar is like other co-accuse
persons, hence accused Ishwar be also
summoned U/s 319 Cr.P.C. for trial. The
learned trial court by the impugned order
dated 08.03.2018 has allowed the aforesaid
application
and
has
summoned
the
revisionist accused Ishwar to face trial for
offence U/s 304/34, 323/34, 504 & 506
IPC.
1 All. Ishwar Vs. State of U.P. & Anr.
75

4. It is contended by learned counsel
for the revisionist that learned trial court
has summoned the revisionist only on the
basis of statement recorded under section
161 Cr.P.C. as well as examination in chief
of the complainant. Without considering
the entire facts and circumstances of the
case, the statement U/s 161 Cr.P.C. has
been relied. Hence the summoning order is
illegal and arbitrary on the face of record
and is not sustainable in the eyes of law. It
is submitted by learned counsel for the
revisionist that general allegations have
been levelled against all the accused
persons. No specific allegations has been
levelled against any accused persons during
the
course
of
investigation.
The
Investigating Officer has collected the
evidence to the effect that on the date of
incident, the location of mobile number of
the revisionist was not near the place of
incident. The revisionist having two mobile
numbers bearing nos. 8273535308 and
9568363773 and the location of these
mobile numbers shown at Moradabad.
After verification of call detail records, it
was found that he was not present at the
place of occurrence. The Investigating
Officer has recorded the statement of
Munesh Kumar (principal of coaching
centre) where the revisionist was studying
and other independent witnesses namely
Monu Kumar, Manjul Kumar, Ranjeet
Singh, Munendra Singh, Krishna Kumar,
Jitendra etc. under section 161 Cr.P.C. and
they have stated that on 08.07.2016 the
revisionist was present in the coaching
institute from 9:30 am to 12 noon. During
the course of investigation, evidence to this
effect has come that on the date of incident,
the revisionist was not present at the spot
and accordingly the Investigating Officer
deleted his name. It is further contended
that power U/s 319 Cr.P.C. is to be
exercised sparingly only when strong and
cogent evidence occurs. The test that has to
be applied is one which is more than primafacie case as exercised at the time of
framing of charge, but short of satisfaction
to an extent that the evidence, if goes
unrebutted, would led to conviction. In the
absence of such satisfaction, the court
should refrain from exercising power under
section 319 Cr.P.C. Learned counsel further
contended that P.W.-1 in her statement
illegally and falsely given the name of the
revisionist as well as the entire family. The
learned trial court without any evidence &
reasons
and
without
recording
the
satisfaction has illegally summoned the
revisionist. The order is not sustainable in
the eye of law. It is also contended that the
learned trial court without considering the
legal aspect of the matter and without
considering the facts and circumstances of
the case, has illegally summoned the
revisionist to face the trial. Learned counsel
placed reliance on the constitutional bench
case of Apex Court Hardeep Singh vs.
State of Punjab and ors AIR 2014
Supreme Court 1400 SC, the relevant
paragraphs are quoted below:

"98. 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
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.

99. Thus, we hold that though
only a prima-facie case is to be established
from the evidence led before the court not
necessarily tested on the anvil of cross
76 INDIAN LAW REPORTS ALLAHABAD SERIES
examination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied is
one which is more than prima facie case as
exercised at the time of framing of charge,
but short of satisfaction to an extent that
the evidence, if goes unrebutted, would lead
to conviction. In the absence of such
satisfaction, the court should refrain from
exercising power under section 319 Cr.P.C.
In section 319 Cr.P.C., the purpose of
providing if it appears from the evidence
that any person not being 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
Cr.P.C. to form any opinion as to the guilt
of the accused."

Learned counsel also placed
reliance on the case law of Brijendra Singh
and ors vs. State of Rajasthan (2017) 7
SCC 706. The relevant paragraphs are
quoted below:

" 14. When we translate the
aforesaid principles with their application
to the facts of this case, we gather an
impression that the trial court acted in a
casual and cavalier manner in passing the
summoning
order
against
the
appellants.The appellants were named in
the FIR. Investigation was carried out by
the police. On the basis of material
collected during investigation, which has
been referred to by us above, the IO found
that these appellants were in Jaipur city
when the incident took place in Kanaur, at
a distance of 175 km. The complainant and
others who supported the version in the
FIR regarding alleged presence of the
appellants at the place of incident had also
made statements under Section 161 CrPC
to the same effect. Notwithstanding the
same, the police investigation revealed that
the statements of these persons regarding
the presence of the appellants at the place
of occurrence was doubtful and did not
inspire
confidence,
in
view
of
the
documentary and other evidence collected
during the investigation, which depicted
another story and clinchingly showed that
the appellants' plea of alibi was correct.

15. This record was before the
trial court. Notwithstanding the same, the
trial court went by the depositions of the
complainant and some other persons in
their examination-in-chief, with no other
material
to
support
their
so-called
verbal/ocular version. Thus, the "evidence"
recorded during trial was nothing more
than the statements which were already
there under Section 161 CrPC recorded at
the time of investigation of the case. No
doubt, the trial court would be competent
to exercise its power even on the basis of
such statements recorded before it in
examination-in-chief. However, in a case
like the present where a plethora of
evidence was collected by the IO during
investigation which suggested otherwise,
the trial court was at least duty-bourd to
look into the same while forming prima
facie opinion and to see as to whether
much
stronger
evidence
than
mere
possibility
of
their
(i.e.
appellants)
complicity has come on record. There is no
satisfaction of this nature. Even if we
presume that the trial court was not
apprised of the same at the time when it
passed the order (as the appellants were
not on the scene at that time), what is more
troubling is that even when this material on
record was specifically brought to the
notice of the High Court in the revision
petition filed by the appellants, the High
Court too blissfully ignored the said
material.
Except
reproducing
the
discussion contained in the order of the
1 All. Ishwar Vs. State of U.P. & Anr.
77
trial court and expressing the agreement
therewith, nothing more has been done.
Such orders cannot stand judicial scrutiny."

On the aforesaid ground, learned
counsel submitted that the impugned order
is arbitrary and illegal and is liable to be set
aside.

5. Learned AGA and learned counsel
appearing for opposite party no.2 submitted
that the Investigating Officer in collusion
with the accused has wrongly exonerated
the revisionist whereas the injured of the
present case had specifically named the
revisionist as one of the accused who not
only participated in causing death of her
husband but also caused injuries to her. The
Investigating Officer has referred to two
mobile
numbers
8273535308
and
9568363773. The location of mobile
number 8273535308 has been shown at
Moradabad,
however,
as
per
the
verification report of the user of this
number,
it
was
informed
to
the
Investigating Officer that this number is
registered in the name of Keshav Kumar,
the uncle of the revisionist. Thus, even the
so called mobile detail record does not
establish that the revisionist was at a
different location inasmuch as the mobile
number on the basis of which the
Investigating Officer has come to this
conclusion, belongs to Keshav Kumar and
not to the revisionist. The entire case diary
does not contain any call detail record and
only a passing reference has been made by
the Investigating Officer with respect to the
two mobile numbers. It is further contended
that the complicity of the revisionist is
consistently established right from the FIR
from the statement recorded U/s 161
Cr.P.C. as well as from the statement of
injured witness recorded on oath before the
trial court. The revisionist has not filed any
document in order to substantiate his
alleged plea of alibi. Further it is a settled
law that plea of alibi can be considered at
the state of trial. Learned counsel further
contended that the revisionist has equally
participated in the commission of the
offence, the presence of the revisionist at
the place of time and occurrence is clearly
established from the statement of the
injured witness during the course of trial.
Learned counsel contended that P.W.-1
being injured witness, her testimony is on a
high pedestal and cannot be taken lightly
and ignored. For summoning the accused
under section 319 Cr.P.C. the examination
in chief of the witness is sufficient and the
witness being injured, her testimony cannot
be discarded. The learned trial court
considering the evidence, on record has
rightly summoned the revisionist U/s 319
Cr.P.C. and as such there is no illegality or
infirmity in the impugned order. More than,
prima-facie evidence is available against
the revisionist. The revision lacks merit and
deserves to be dismissed. Learned counsel
placed reliance on the case law of Manjeet
Singh vs. State of Haryana and ors 2021
SCC On Line SC 632. The relevant
paragraphs are quoted below:

"35. Applying the law laid down
in the aforesaid decisions to the facts of the
case on hand we are of the opinion that the
Learned trial Court as well as the High
Court have materially erred in dismissing
the application under Section 319 Cr.P.C.
and refusing to summon the private
respondents herein to face the trial in
exercising the powers under Section 319
Cr.P.C. It is required to be noted that in the
FIR No.477 all the private respondents
herein who are sought to be arraigned as
additional accused were specifically named
with specific role attributed to them. It is
specifically mentioned that while they were
returning back, Mahendra XUV bearing no.
78 INDIAN LAW REPORTS ALLAHABAD SERIES
HR-40A-4352 was standing on the road
which belongs to Sartaj Singh and Sukhpal.
Tejpal, Parab Saran Singh, Preet Samrat
and Sartaj were standing. Parab Sharan
was having lathi in his hand, Tejpal was
having a gandsi, Sukhpal was having a
danda, Sartaj was having a revolver and
Preet Singh was sitting in the jeep. It is
specifically mentioned in the FIR that all
the
aforesaid
persons
with
common
intention parked the Mahendra XUV HR40A-4352 in a manner which blocks the
entire road and they were armed with the
weapons. Despite the above specific
allegations, when the charge-sheet/final
report came to be filled only two persons
came to be charge-sheeted and the private
respondents herein though named in the
FIR were put/kept in column no. 2. It is the
case on behalf of the private respondents
herein that four different DSPs inquired
into the matter and thereafter when no
evidence was found against them the
private respondents herein were put in
column no. 2 and therefore the same is to
be given much weightage rather than
considering/believing the examination-Inchief of the appellant herein. Heavy
reliance is placed on the case of Brijendra
Singh (Supra). However none of DSPs
and/or their reports, if any, are part of the
charge-sheet. None of the DSPs are shown
as witnesses. None of the DSPs are
Investigating Officer. Even on considering
the final report/charge-sheet as a whole
there
does
not
appear
to
be
any
consideration on the specific allegations
qua the accused the private respondents
herein who are kept in column no. 2. Entire
discussion in the charge-sheet/final report
is against Sartaj Singh only.

36.
So
far
as
the
private
respondents are concerned only thing
which is stated is "During the investigation
of the present case, Shri Baljinder Singh,
HPS, D.SP Assandh and Shri Kushalpal,
HPS, DSP Indri found accused Tejpal
Singh, Sukhpal Singh, sons of Gurdev
Singh, Parab Sharan Singh and Preet
Samrat Singh sons of Mohan Sarup Singh
cast Jat Sikh, residents of Bandrala
innocent and accordingly Sections 148, 149
and 341 of the IPC were deleted in the case
and they were kept in column no. 2,
whereas challan against accused Sartaj has
been presented in the court."

37. Now thereafter when in the
examination-in-chief the appellant herein -
victim - injured eye witness has specifically
named the private respondents herein with
specific role attributed to them, the Learned
trial Court as well as the High Court ought
to have summoned the private respondents
herein to face the trial. At this stage it is
required to be noted that so far as the
appellant herein is concerned he is an
injured eye-witness. As observed by this
Court in the cases of State of MP v.
Mansingh (2003) 10 SCC 414 (para 9);
Abdul Sayeed v. State of MP (2010) 10 SCC
259; State of Uttar Pradesh v. Naresh
(2011) 4 SCC 324, the evidence of an
injured eye witness has greater evidential
value and unless compelling reasons exist,
their statements are not to be discarded
lightly. As observed hereinabove while
exercising the powers under Section 319
Cr.P.C. the Court has not to wait till the
cross-examination and on the basis of the
examination-in-chief of a witness if a case
is made out, a person can be summoned to
face the trial under Section 319 Cr.P.C.

38. Now so far as the reasoning
given by the High Court while dismissing
the revision application and confirming the
order passed by the Learned trial Court
dismissing the application under Section
319 Cr.P.C. is concerned, the High Court
itself has observed that P.W.-1 Manjeet
Singh is the injured witness and therefore
1 All. Ishwar Vs. State of U.P. & Anr.
79
his presence cannot be doubted as he has
received fire arm injuries along with the
deceased. However, thereafter the High
Court has observed that the statement of
Manjeet Singh indicates over implication
and that no injury has been attributed to
either of the respondents except they were
armed with weapons and the concerned
injuries are attributed only to Sartaj Singh
even for the sake of arguments someone
was present with Sartaj Singh it cannot be
said that they had any common intention or
there was meeting of mind or knew that
Sartaj would be firing. The aforesaid
reasonings are not sustainable at all. At the
stage of exercising the powers under
Section 319 Cr.P.C., the Court is not
required to appreciate and/or enter on the
merits of the allegations of the case. The
High Court has lost sight of the fact that
the allegations against all the accused
persons right from the very beginning were
for the offences under Sections 302, 307,
341, 148 & 149 IPC. The High Court has
failed to appreciate the fact that for
attracting the offence under Section 149
IPC only forming part of unlawful
assembly is sufficient and the individual
role and/or overt act is immaterial.
Therefore, the reasoning given by the High
Court that no injury has been attributed to
either of the respondents except that they
were armed with weapons and therefore,
they cannot be added as accused is
unsustainable. The Learned trial Court and
the High Court have failed to exercise the
jurisdiction and/or powers while exercising
the powers under Section 319 Cr.P.C.."

He also placed reliance on the case
law of Rajesh and ors vs.State of Haryana,
(2019) 6 SCC 368 wherein informant
named 10 persons for attempt to murder of
his
son
and
another
with
specific
allegations against all the accused. The
Investigating Officer submitted his report
U/s 173 (2) Cr.P.C. against four accused
only, no challan filed against six accused
(appellants). The trial proceeded against
four accused only. During trial, P.W.-1
(complainant) and P.W.-2 (injured witness)
specifically stated that overacts by the
accused appellants and role played by
them. An application for proceeding
against them under section 319 Cr.P.C. was
allowed by the trial court. The High Court
dismissed the revision. The Apex Court held
that the appellants herein had also named
in the FIR. In the deposition before court,
P.W. 1 & 2 have specifically stated against
appellants and specific roles attributed to
them. On the basis of the same, the persons
against whom, no charge-sheet is filed can
be summoned to face the trial. No error has
been committed by the courts below to
summon the appellants therein to face the
trial in exercise of power U/s 319 Cr.P.C.

6. It is undisputed that the revisionist
was named in the FIR showing his
complicity in the incident, one person has
died in the incident while the another
(complainant) has received injuries. The
Investigating Officer has exonerated the
revisionist during the investigation, on the
basis of evidence that at the relevant time,
his presence is not established to be at the
place of occurrence as he was present at
Moradabad in his coaching institute. The
Investigating Officer has recorded the
statement of the Manager of the coaching
institute and some other witnesses. This
fact is un-controverted that the mobile No.
8273535308, the location of which is
shown to be at Moradabad is registered in
the name of Keshav Kumar and further
that the entire case diary does not contain
any CDR and only passing reference has
been made by the Investigating Officer
with respect to the two mobile numbers.
80 INDIAN LAW REPORTS ALLAHABAD SERIES
The FIR of this case has been lodged by
the complainant who has also received
injuries in the incident naming the
revisionist and attributing the role of
taking participation in the incident. In her
statement recorded U/s 161 Cr.P.C., she
has reiterated the allegations of the FIR
but the Investigating Officer on the basis
of the material collected during the course
of investigation as discussed above has
exonerated the revisionist. During the
course of trial, complainant has been
examined as P.W.-1. Her examination in
chief, was recorded in which she has again
corroborated the allegations of the FIR
showing the complicity of the revisionist
in the incident. It is settled law that the
testimony of injured witness is of higher
value and cannot be ignored. In the case of
Hardeep Singh (Supra), the Apex Court
held that the power U/s 319 Cr.P.C. can be
exercised at the stage of completion of
examination in chief and court does not
need to wait till the said evidence is tested
on cross examination for, it is the
satisfaction of the court which can be
gathered from the reasons recorded by the
court, in respect of complicity of some
other person(s), not facing the trial in the
offence. The Apex Court while dealing the
question
"what
is
the
degree
of
satisfaction required for invoking the
power U/s 319 Cr.P.C." has answered it
"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 cross examination, it
requires much stronger evidence than
mere probability of his complicity. The test
that has to be applied is one which is more
than prima facie case as exercised at the
time of framing of charge, but short of
satisfaction to an extent that the evidence,
if
goes
unrebutted,
would
lead
to
conviction. In the absence of such
satisfaction, the court should refrain from
exercising power under section 319
Cr.P.C. In section 319 Cr.P.C., the purpose
of providing if it appears from the
evidence that any person not being 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 Cr.P.C. to form
any opinion as to the guilt of the accused."

7. So applying the test laid down by
the Apex Court on the present set of facts,
it is clear that there is strong evidence, than
mere probability of the complicity of the
accused in the form of testimony of injured
witness and it pass the test as laid down by
the Apex Court which is more than primafacie case as exercised at the time of
framing of charge but short of satisfaction
to an extent that the evidence if goes
unrebutted would led to conviction. Further
the material on the basis of which the
revisionist
was
exonerated
by
the
Investigating Officer is not conclusive in
nature and this fact distinguish this case
from the case law of Bijendra Singh vs.
State of Rajasthan (2017) 7 SCC 706
relied on by the learned counsel for the
revisionist. The case law cited by learned
counsel for opposite party no.2 fully
supports his arguments and applicable in
the present set of facts.

8. In the impugned order, the learned
trial court has narrated the entire facts and
material on record and has critically
analyzed all these materials. Learned trial
court has recorded its satisfaction about the
complicity of the revisionist and, therefore,
has summoned him. The order is a detailed
and reasoned one which is just and proper.
1 All. Kaushlesh Mishra & Ors. Vs. State of U.P. & Anr.
81
There is no illegality or infirmity in the
impugned and it need no interference.

9. Accordingly, the revision is devoid
of merits and is hereby dismissed.
----------
(2023) 1 ILRA 81
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 2194 of 2015

Kaushlesh Mishra & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Mohammad Mustafa Khan, Miss Afshan
Shafaut, Sri Byas Kumar Prasad

Counsel for the Opposite Parties:
G.A., Sri Santosh Kuamar Pandey, Sri
Saurabh Tripathi

A. Criminal Law - Criminal Procedure
Code,1973 - Section 245(2)-rejectiondischarge
application-application
rejected
by
Magistrate

without
evaluating allegations of complaint and
considered police report submitted u/s
202 Cr.P.C.-Magistrate failed to apply
his mind to grounds of discharge and did
not consider relevant contention raised
in
this
respect-Thus,
Magistrate
proceeded on assumption that he has no
power to evaluate the material on record
and at that stage prayer of discharge
could not be entertained-This is a
violation of the legal provision which
requires a finding by Magistrate with
regard to charges against accused being
groundless or that there is ground for
presuming
that
the
accused
have
committed offence-Hence, the matter is
remanded back to lower court to pass a
fresh
order
on
the
discharge
application.(Para 1 to 10)

B. Section 245(2) Cr.P.C. provides that
the
Magistrate
is
empowered
to
discharge the accused at any previous
stage of the case i.e. before evidence
u/s 244 Cr.P.C., if he considers the
charge to be groundless. (Para 6)

The revision is allowed. (E-6)

List of Cases cited:
Manoj Mahabeer Prasad Khaitan Vs Ram Gopal
Poddar & anr. in CRLA No 1973 of 2010 (SLP
(Crl) No 2274 of 2008)

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

1. Heard Sri Byas Kumar Prasad,
learned counsel for the revisionists and
learned A.G.A. for the State. However,
none appeared on behalf of opposite party
no.2.

2. This criminal revision has been
filed with the prayer to set aside judgement
and order dated 18.04.2015 passed by
learned
Chief
Judicial
Magistrate,
Siddharthnagar in Criminal Complaint
Case No.277 of 2013 (Ripusudan Mishra
Versus Kaushlesh Mishra and others) under
Sections 506 and 427 I.P.C. , Police Station
Siddharthnagar, District Siddharthnagar,
pending the court of Chief Judicial
Magistrate, Siddharthnagar.

3. In brief, the facts of the case are
that
opposite
party
no.2
moved
an
application under Section 156(3) Cr.P.C.
against revisionists and Sub Inspector
Santraj Yadav, Constable Rauf Khan and
five unknown constables, alleging therein
that the father of the opposite party no.2
paid Nazrana of Rs.20/- to ex-Zamindar on