# Kalicharan & Ors. Revisionist v. The State of U.P. & Anr. Opp. Parties

- **Citation:** (2022) 12 ILRA 600
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-29
- **Case number:** Crl. Revision No. 2625 of 2021
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalicharan-ors-revisionist-v-the-state-of-u-p-anr-opp-parties-47949
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401, &319
Cr.P.C. - Indian Penal Code, 1860- Section
302/34-deceased died due to asphyxia-
witnesses statements proved involvement
of
all
three
revisionist
and
also
corroborated
with
the
post-mortem
report-Trial court rightly appreciated the
evidence
and

considering
the
examination-in-chief
came
to
the
conclusion that more than prima facie
case was made out against the revisionistRevisionists have to go through de novo
trial and it will have no effect of the trial
concluded against other accused wherein
they have been acquitted.(Para 1 to 17)

B. While considering the application u/s
319 Cr.P.C. Court of Magistrate has to
make an opinion only on the basis of
evidence produced before Court and he is
not required to look into the material
collected during investigation and has to
make out an opinion/satisfaction that 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 as well as 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.(Para 5 to 15)

The revision is dismissed. (E-6)

List of Cases cited:

## Text

600 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhawan, who is presently recorded as
tenure holder of the land in dispute that if
he is dispossessed in violation of ad interim
injunction order of civil court, he may
move
appropriate
application
for
enforcement
and
punishment
for
disobedience of that order, before the court
concerned to seek appropriate remedy and
the same will be decided by the learned
civil court in accordance with law after
giving opportunity of hearing to both the
parties. Learned Executive Magistrate will
be within his right to initiate proceeding
under Section 107/151 Cr.P.C., if any of the
party is likely to commit breach of peace or
disturb the public tranquility in view of the
dispute over the land in question.
----------
(2022) 12 ILRA 600
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Revision No. 2625 of 2021

Kalicharan & Ors. ...Revisionist
Versus
The State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Ashutosh Yadav, Abhilasha Singh, Sri
Nagenda Kumar Singh, Sri Pradeep Kumar, Mrs.
Swati Agrawal Srivastava, Sri S.Lal, Sri Udia
Karan Saxena(Sr. Advocate)

Counsel for the Opp. Parties:
G.A., Sri Sushil Kumar

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401, &319
Cr.P.C. - Indian Penal Code, 1860- Section
302/34-deceased died due to asphyxia-
witnesses statements proved involvement
of
all
three
revisionist
and
also
corroborated
with
the
post-mortem
report-Trial court rightly appreciated the
evidence
and

considering
the
examination-in-chief
came
to
the
conclusion that more than prima facie
case was made out against the revisionistRevisionists have to go through de novo
trial and it will have no effect of the trial
concluded against other accused wherein
they have been acquitted.(Para 1 to 17)

B. While considering the application u/s
319 Cr.P.C. Court of Magistrate has to
make an opinion only on the basis of
evidence produced before Court and he is
not required to look into the material
collected during investigation and has to
make out an opinion/satisfaction that 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 as well as 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.(Para 5 to 15)

The revision is dismissed. (E-6)

List of Cases cited:
1. Hardeep Singh Vs St. of Punj. & ors. (2014) 3
SCC 92

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

3. A.T. Mydeen & anr. Vs The Asstt. Commr.
Customs Deptt. (2021) SCC OnLine SC 1017

4. Sugreev Kumar Vs St. of Punj. & anr. (2020)
14 SCC 472

5. Sartaj Singh Vs St. of Har. & anr.(2021) 5
SCC 337

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)
12 All. Kalicharan & Ors. Vs. The State of U.P. & Ors.
601

1. Sri Udai Karan Saxena, learned
Senior Advocate assisted by Ms. Swati
Agrawal
Srivastava,
Advocate
for
revisionists, has submitted arguments,
which are in two folds. Firstly, that
summoning
of
revisionists
(three
in
numbers), under Section 319 Cr.P.C., is
contrary
to
judgment
passed
by
Constitution Bench in Hardeep Singh vs.
State of Punjab and others, (2014) 3 SCC
92 and Brijendra Singh and others vs.
State of Rajasthan (2017) 7 SCC 706,
that, Trial Court has to make out an opinion
to see whether much stronger evidence than
mere possibility of their (applicants)
complicity has come on record. However,
there is no satisfaction of this nature in the
impugned order. Relevant para 15 of the
judgment in Brijendra Singh (supra), is
quoted hereinafter:

"15. This record was before the trial
court. Notwithstanding the same, the trial
court
went
by
the
deposition
of
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 was already
there under Section 161 Cr.P.C. 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 plethora of
evidence was collected by the IO during
investigation which suggested otherwise,
the trial court was at least duty bound 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
trial court and expressing agreement
therewith, nothing more has been done.
Such
orders
cannot
stand
judicial
scrutiny."
(Emphasis given by Court for revisionists)

2. Second fold of the argument of
learned Senior Advocate is that, during
pendency to challenge to order passed
under Section 319 Cr.P.C. trial has been
concluded against originally charge sheeted
accused,
wherein
Trial
Court
vide
judgment and order dated 07.09.2022 has
acquitted said accused from the offence
under Section 302 IPC, therefore, there
would be no justification that present
revisionists may go through the same
procedure wherein same evidence has to be
led again and most likely outcome of trial
will be same.

3. The above submissions are
vehemently opposed by Sri Sushil Kumar,
learned counsel appearing for Opposite
Party No. 2. He submitted that Trial Court
has correctly appreciated the evidence of
eye witnesses, i.e., PWs 1, 2 and 3 that all
the three revisionists have also assaulted
deceased, who not only received multiple
injuries but died due to strangulation and
said witnesses had witnessed the incident
and further that in a case where a person is
summoned under Section 319 Cr.P.C. he
602 INDIAN LAW REPORTS ALLAHABAD SERIES
has to face de novo trial, therefore, there
will be no consequence of acquittal of the
charge sheeted accused for the same
offence after the trial.

4. The Court proceeds to consider the
second
argument
of
learned
Senior
Advocate, which was vehemently opposed
by counsel for Opposite Party No. 2 and
AGA that what will be the consequence of
conclusion of trial of charge sheeted
accused if for the same offence accused
persons summoned under Section 319
Cr.P.C. has to face de novo trial?

5. This issue has been considered
recently by Supreme Court and law has
been reiterated in A. T. Mydeen and
another vs The Assistant Commissioner,
Customs Department, 2021 SCC OnLine
SC 1017 and relevant paragraphs are
mentioned hereinafter:

"39. The provisions of law and the
essence of case-laws, as discussed above,
give a clear impression that in the matter of
a criminal trial against any accused, the
distinctiveness of evidence is paramount in
light of accused's right to fair trial, which
encompasses two important facets along
with others i.e., firstly, the recording of
evidence in the presence of accused or his
pleader and secondly, the right of accused
to cross-examine the witnesses. These facts
are, of course, subject to exceptions
provided under law. In other words, the
culpability of any accused cannot be
decided on the basis of any evidence, which
was not recorded in his presence or his
pleader's presence and for which he did not
get an opportunity of cross-examination,
unless the case falls under exceptions of
law, as noted above.

40. The essence of the above
synthesis is that evidence recorded in a
criminal trial against any accused is
confined to the culpability of that accused
only and it does not have any bearing
upon a co-accused, who has been tried on
the basis of evidence recorded in a
separate trial, though for the commission
of the same offence."

 (Emphasis supplied)

6. As held in A.T. Mydeen (supra),
that the accused summoned under Section
319 Cr.P.C. has to face trial de novo and
evidence led in other trial for the same
offence cannot be relied on against accused
summoned under Section 319 Cr.P.C., who
has to tried on the basis of evidence
recorded in separate trial though for the
same offence. Therefore, the second
argument of learned Senior Advocate is
hereby rejected.

7. Now the Court proceeds to
consider the first argument, whether the
order
summoning
revisionists
under
Section 319 Cr.P.C. is legally sustainable
or not?

8. The scope of summoning under
Section 319 Cr.P.C. has recently been
considered and reiterated by Supreme
Court in Sugreev Kumar vs. State of
Punjab and another, (2020) 14 SCC 472
and
relevant
paras
are
mentioned
hereinafter:

"10. It remains trite that the provisions
contained in Section 319 CrPC are to
achieve the objective that the real culprit
should not get away unpunished. By virtue
of these provisions, the Court is empowered
to proceed against any person not shown as
an accused, if it appears from evidence that
such person has committed any offence for
which, he could be tried together with the
other accused persons. In Hardeep Singh
12 All. Kalicharan & Ors. Vs. The State of U.P. & Ors.
603
(supra), the Constitution Bench of this
Court has explained the purpose behind
this provision, inter alia, in the following:

"12. Section 319 Code of Criminal
Procedure springs out of the doctrine judex
damnatur cum nocens absolvitur (judge is
condemned when guilty is acquitted) and
this doctrine must be used as a beacon light
while explaining the ambit and the spirit
underlying the enactment of Section 319
Code of Criminal Procedure.

13. It is the duty of the court to do
justice by punishing the real culprit. Where
the investigating agency for any reason
does not array one of the real culprits as an
accused, the court is not powerless in
calling the said accused to face trial. The
question
remains
under
what
circumstances and at what stage should the
court exercise its power as contemplated in
Section 319 CrPC?

*** *** ***

19. The court is the sole repository of
justice and a duty is cast upon it to uphold
the rule of law and, therefore, it will be
inappropriate to deny the existence of such
powers with the courts in our criminal
justice system where it is not uncommon
that the real accused, at times, get away by
manipulating the investigating and/or the
prosecuting agency. The desire to avoid
trial is so strong that an accused makes
efforts at times to get himself absolved even
at the stage of investigation or inquiry even
though he may be connected with the
commission of the offence."

11. As regards the degree of
satisfaction required for invoking the
powers under Section 319 CrPC, the
Constitution Bench has laid down the
principles as follows:

"95. At the time of taking
cognizance, the court has to see whether a
prima facie case is made out to proceed
against the accused. Under Section 319
CrPC, though the test of prima facie case
is the same, the degree of satisfaction that
is required is much stricter. A two-Judge
Bench of this Court in Vikas v. State of
Rajasthan, held that on the objective
satisfaction of the court a person may be
"arrested"
or
"summoned",
as
the
circumstances of the case may require, if it
appears from the evidence that any such
person
not
being
the
accused
has
committed an offence for which such
person could be tried together with the
already arraigned accused persons.

*** *** ***

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
604 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

12. Thus, the provisions contained in
Section 319 CrPC sanction the summoning
of any person on the basis of any relevant
evidence as available on record. However,
it being a discretionary power and an
extraordinary one, is to be exercised
sparingly and only when cogent evidence is
available. The prime facie opinion which is
to be formed for exercise of this power
requires stronger evidence than mere
probability of complicity of a person. The
test to be applied is the one which is more
than a prime facie case as examined at the
time of framing charge but not of
satisfaction to the extent that the evidence,
if goes uncontroverted, would lead to the
conviction of the accused."
 (Emphasis supplied)

9. Supreme Court also considered the
scope of Section 319 in a recent judgment
in Sartaj Singh vs The State Of Haryana
and another, (2021) 5 SCC 337 and
relevant paras are mentioned hereinafter:

"6.1.2 In the said case, the following
five questions fell for consideration
before this Court.

(i) What is the stage at which power
under
Section
319
CrPC
can
be
exercised?

(ii) Whether the word "evidence" used
in Section 319(1) CrPC could only mean
evidence tested by cross examination or the
court can exercise the power under the said
provision even on the basis of the statement
made in the examination-in-chief of the
witness concerned?

(iii) Whether the word "evidence"
used in Section 319(1) CrPC has been
used in a comprehensive sense and
includes the evidence collected during
investigation or the word "evidence" is
limited to the evidence recorded during
trial?

(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?

(v) Does the power under Section 319
CrPC extend to persons not named in the
FIR or named in the FIR but not charged
or who have been discharged?"

xxx xxx

"6.1.4 While answering Questions
(iii), namely, whether the word "evidence"
used in Section 319(1) CrPC has been used
in a comprehensive sense and includes the
evidence collected during investigation or
the word "evidence" is limited to the
evidence recorded during trial, this Court,
in the aforesaid decision has observed and
held as under:

"58. To answer the questions and to
resolve the impediment that is being faced
by the trial courts in exercising of powers
under Section 319 CrPC, the issue has to
be
investigated
by
examining
the
circumstances which give rise to a situation
for the court to invoke such powers. The
circumstances that lead to such inference
being drawn up by the court for summoning
a person arise out of the availability of the
facts and material that come up before the
court and are made the basis for
summoning
such
a
person
as
an
accomplice to the offence alleged to have
12 All. Kalicharan & Ors. Vs. The State of U.P. & Ors.
605
been committed. The material should
disclose the complicity of the person in the
commission of the offence which has to be
the material that appears from the evidence
during the course of any inquiry into or
trial of offence. The words as used in
Section 319 CrPC indicate that the
material has to be "where ... it appears
from the evidence" before the court.

59. Before we answer this issue, let us
examine
the
meaning
of
the
word
"evidence". According to Section 3 of the
Evidence Act, "evidence" means and
includes:

"(1) all statements which the court
permits or requires to be made before it by
witnesses, in relation to matters of fact
under inquiry;

such statements are called oral
evidence;

(2) all documents including electronic
records produced for the inspection of the
court;

such
documents
are
called
documentary evidence."

xxx

78. It is, therefore, clear that the word
"evidence" in Section 319 CrPC means
only such evidence as is made before the
court, in relation to statements, and as
produced before the court, in relation to
documents. It is only such evidence that
can be taken into account by the Magistrate
or the court to decide whether the power
under Section 319 CrPC is to be exercised
and not on the basis of material collected
during the investigation.

xxx xxx xxx

82. This pretrial stage is a stage where
no adjudication on the evidence of the
offences involved takes place and therefore,
after
the
material
along
with
the
chargesheet has been brought before the
court, the same can be inquired into in
order to effectively proceed with framing of
charges. After the charges are framed, the
prosecution is asked to lead evidence and
till that is done, there is no evidence
available in the strict legal sense of Section
3 of the Evidence Act. The actual trial of
the offence by bringing the accused before
the court has still not begun. What is
available is the material that has been
submitted before the court along with the
chargesheet. In such situation, the court
only has the preparatory material that has
been placed before the court for its
consideration in order to proceed with the
trial by framing of charges.

83. It is, therefore, not any material
that can be utilised, rather it is that
material after cognizance is taken by a
court, that is available to it while making
an inquiry into or trying an offence, that
the
court
can
utilise
or
take
into
consideration for supporting reasons to
summon any person on the basis of
evidence adduced before the court, who
may be on the basis of such material,
treated to be an accomplice in the
commission of the offence. The inference
that can be drawn is that material which is
not exactly evidence recorded before the
court, but is a material collected by the
court, can be utilised to corroborate
evidence already recorded for the purpose
of summoning any other person, other than
the accused. This would harmonise such
material with the word "evidence" as
material that would be supportive in nature
to facilitate the exposition of any other
accomplice whose complicity in the offence
may have either been suppressed or
escaped the notice of the court.

84. The word "evidence" therefore has
to be understood in its wider sense both at
the stage of trial and, as discussed earlier,
even at the stage of inquiry, as used under
Section 319 CrPC. The court, therefore,
should be understood to have the power to
606 INDIAN LAW REPORTS ALLAHABAD SERIES
proceed
against
any
person
after
summoning him on the basis of any such
material as brought forth before it. The
duty and obligation of the court becomes
more onerous to invoke such powers
cautiously on such material after evidence
has been led during trial.

85. In view of the discussion made and
the conclusion drawn hereinabove, the
answer to the aforesaid question posed is
that apart from evidence recorded during
trial, any material that has been received
by the court after cognizance is taken and
before the trial commences, can be utilised
only for corroboration and to support the
evidence recorded by the court to invoke
the power under Section 319 Cr.P.C. The
"evidence" is thus, limited to the evidence
recorded during trial.

6.1.5 While answering Question (ii)
namely, whether the word "evidence" used
in Section 319(1) Cr.P.C. means as arising
in examination-in-chief or also together
with cross-examination, in the aforesaid
decision, this Court has observed and held
as under:

86. The second question referred to
herein is in relation to the word "evidence"
as used under Section 319 CrPC, which
leaves no room for doubt that the evidence
as understood under Section 3 of the
Evidence Act is the statement of the
witnesses that are recorded during trial
and
the
documentary
evidence
in
accordance with the Evidence Act, which
also includes the document and material
evidence in the Evidence Act. Such
evidence begins with the statement of the
prosecution
witnesses,
therefore,
is
evidence which includes the statement
during examination-in-chief. In Rakesh
(2001) 6 SCC 248 : 2001 SCC (Cri) 1090 :
AIR 2001 SC 2521, it was held that: (SCC
p. 252, para 10)

"10. ... It is true that finally at the time
of trial the accused is to be given an
opportunity to cross-examine the witness to
test its truthfulness. But that stage would
not arise while exercising the court's power
under Section 319 CrPC. Once the
deposition is recorded, no doubt there
being no cross-examination, it would be a
prima facie material which would enable
the Sessions Court to decide whether
powers under Section 319 should be
exercised or not."

87. In Ranjit Singh v. State of Punjab,
(1998) 7 SCC 149 : 1998 SCC (Cri) 1554 :
AIR 1998 SC 3148, this Court held that:
(SCC p. 156, para 20)

"20. ... it is not necessary for the court
to wait until the entire evidence is collected
for exercising the said powers."

88. In Mohd. Shafi [Mohd. Shafi v.
Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1
SCC (Cri) 889 : AIR 2007 SC 1899, it was
held that the prerequisite for exercise of
power under Section 319 CrPC is the
satisfaction of the court to proceed against
a person who is not an accused but against
whom evidence occurs, for which the court
can even wait till the cross-examination is
over and that there would be no illegality
in doing so. A similar view has been taken
by a two Judge Bench in Harbhajan Singh
v. State of Punjab (2009) 13 SCC 608 :
(2010) 1 SCC (Cri) 1135. This Court in
Hardeep Singh v. State of Punjab, (2009)
16 SCC 785 : (2010) 2 SCC (Cri) 355
seems to have misread the judgment in
Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC
544 : (2009) 1 SCC (Cri) 889 : AIR 2007
SC 1899, as it construed that the said
judgment laid down that for the exercise of
power under Section 319 CrPC, the court
has to necessarily wait till the witness is
cross-examined
and
on
complete
appreciation of evidence, come to the
12 All. Kalicharan & Ors. Vs. The State of U.P. & Ors.
607
conclusion whether there is a need to
proceed under Section 319 CrPC.

89. We have given our thoughtful
consideration
to
the
diverse
views
expressed in the aforementioned cases.
Once examination-in-chief is conducted,
the statement becomes part of the record.
It is evidence as per law and in the true
sense, for at best, it may be rebuttable. An
evidence being rebutted or controverted
becomes
a
matter
of
consideration,
relevance and belief, which is the stage of
judgment by the court. Yet it is evidence
and it is material on the basis whereof the
court can come to a prima facie opinion
as to complicity of some other person who
may be connected with the offence.

90. As held in Mohd. Shafi v. Mohd.
Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC
(Cri) 889 : AIR 2007 SC 1899 and
Harbhajan Singh (2009) 13 SCC 608 :
(2010) 1 SCC (Cri) 1135, all that is
required for the exercise of the power
under Section 319 CrPC is that, it must
appear to the court that some other person
also who is not facing the trial, may also
have been involved in the offence. The
prerequisite for the exercise of this power
is similar to the prima facie view which the
Magistrate must come to in order to take
cognizance of the offence. Therefore, no
straitjacket formula can and should be laid
with respect to conditions precedent for
arriving at such an opinion and, if the
Magistrate/court is convinced even on the
basis
of
evidence
appearing
in
examination-in-chief, it can exercise the
power under Section 319 CrPC and can
proceed against such other person(s). It is
essential to note that the section also uses
the words "such person could be tried"
instead of should be tried. Hence, what is
required is not to have a mini trial at this
stage by having examination and crossexamination and thereafter rendering a
decision on the overt act of such person
sought to be added. In fact, it is this minitrial that would affect the right of the
person sought to be arraigned as an
accused rather than not having any crossexamination at all, for in light of subsection
(4) of Section 319 CrPC, the person would
be entitled to a fresh trial where he would
have all the rights including the right to
cross-examine prosecution witnesses and
examine defence witnesses and advance his
arguments upon the same. Therefore, even
on the basis of examination-in-chief, the
court or the Magistrate can proceed
against a person as long as the court is
satisfied that the evidence appearing
against such person is such that it prima
facie necessitates bringing such person to
face trial. In fact, examination-in-chief
untested by cross-examination,undoubtedly
in itself, is an evidence.

91. Further, in our opinion, there
does not seem to be any logic behind
waiting till the cross-examination of the
witness is over. It is to be kept in mind that
at the time of exercise of power under
Section 319 CrPC, the person sought to be
arraigned as an accused, is in no way
participating in the trial. Even if the crossexamination
is
to
be
taken
into
consideration, the person sought to be
arraigned as an accused cannot crossexamine the witness(es) prior to passing of
an order under Section 319 CrPC, as such
a procedure is not contemplated by CrPC.
Secondly, invariably the State would not
oppose or object to naming of more
persons as an accused as it would only help
the prosecution in completing the chain of
evidence,
unless
the
witness(es)
is
obliterating the role of persons already
facing trial. More so, Section 299 CrPC
enables the court to record evidence in
absence
of
the
accused
in
the
circumstances mentioned therein.
608 INDIAN LAW REPORTS ALLAHABAD SERIES

92. Thus, in view of the above, we
hold that power under Section 319 CrPC
can be exercised at the stage of completion
of examination-in-chief and the 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.

xxx xxx

6.2 Considering the law laid down by
this Court in Hardeep Singh (supra) and
the observations and findings referred to
and reproduced hereinabove, it emerges
that (i) the Court can exercise the power
under Section 319 CrPC even on the basis
of the statement made in the examinationin-chief of the witness concerned and the
Court need not wait till the crossexamination of such a witness and the
Court need not wait for the evidence
against the accused proposed to be
summoned
to
be
tested
by
crossexamination; and (ii) a person not named
in the FIR or a person though named in the
FIR but has not been charge-sheeted or a
person who has been discharged can be
summoned under Section 319 CrPC,
provided from the evidence (may be on the
basis of the evidence collected in the form
of statement made in the examination-inchief of the witness concerned), it appears
that such person can be tried along with
the accused already facing trial.

xxx xxx
6.4 In the case of Rajesh v. State of
Haryana
(2019)
6
SCC
368,
after
considering the observations made by this
Court in Hardeep Singh (supra) referred to
hereinabove,
this
Court
has
further
observed and held that even in a case
where the stage of giving opportunity to the
complainant to file a protest petition urging
upon the trial court to summon other
persons as well who were named in FIR but
not implicated in the charge-sheet has
gone, in that case also, the Court is still not
powerless by virtue of Section 319 CrPC
and even those persons named in FIR but
not implicated in charge-sheet can be
summoned to face the trial provided during
the trial some evidence surfaces against the
proposed accused." (Emphasis supplied)

10. Considering Sugreev Kumar
(supra) and Sartaj Singh (supra) that the
answer to Question-3 by Constitution
Bench in Hardeep Singh (supra) would be
relevant and, as quoted above, wherein it is
categorically held that word "evidence" in
Section 319 Cr.P.C. means only such
evidence as is made before the Court, in
relation to statements, and as produced
before the Court, in relation to documents.
It is only such evidence that can be taken
into account by the Magistrate or Court to
decide whether the power under Section
319 CrPC is to be exercised and not on the
basis of material collected during the
investigation.

11. In view of above observation of
Constitution Bench that while considering
the application under Section 319 Cr.P.C.
Court of Magistrate has to make an opinion
only on the basis of evidence produced
before Court and he is not required to look
into
the
material
collected
during
investigation and has to make out an
opinion/ satisfaction that 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 as well as 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
12 All. Kalicharan & Ors. Vs. The State of U.P. & Ors.
609
satisfaction to an extent that the evidence,
if
goes
unrebutted,
would
lead
to
conviction.

12. On the basis of above legal
position the Court scrutinize the impugned
order and examination-in-chief of PWs-1, 2
and 3 on which the impugned order was
passed.

13. PW-1, Shiv Lal in categorical
terms has stated as under:

"नदिांक 26.3.18 का सुबह के लगभग
9.00 बजे रामिरेश व मिीराम सौच के बाद
वापस अिीता के घर पास आये देखा नक
सुघड़पाल सररया से सानवत्री देवी हनसया से
रामनकशोर व कालीचरि डण्डों से मेरी पुत्री के
साथ मारपीट कर रहे थे।"

14. PW-2, Mani Ram in categorical
terms has also stated as under:

"मैं एकदम दौड़कर पहुाँचा तो देखा नक
अिीता को सुघड़पाल, रामनकशोर, सानवत्री देवी
कालीचरि चारो लोग लाठी डण्डों व सररया व
हंनसया से मार रहे थे। बाद मैिे रोका तो तब तक
इि लोगों िे गला दबाकर अिीता की हत्या कर
दी। और मुझे भी धक्का मार कर बाहर भगा
नदया।"

15. Lastly, PW-3, Ram Paresh in
categorical terms has also stated as under:

"दूसरे नदि सुबह नदिांक 26.3.18 को जब
हम लोग सौच निया से निवृि होकर वापस आ
रहे थे तो हमिे अपिी बहि की चीख पुकार
सुिी, कह रही थी भईया बचाओ भईया बचाओ।
सुघड़पाल के हाथ में सररया थी रामनकशोर के
हाथ में डण्डा था। सानवत्री के हाथ में हनसया था,
कालीचरि के हाथ में डण्डा था। चारो एक साथ
मार रहे थे। जब हम िजदीक पहुाँचे तो हमें
धक्का मार भाग गये। हम अपिी बहि के पास
पहुाँचे तो देखा नक उसके पूरे चेहरे गदमि पीठ
कन्धों पर चोटे थी मेरी बहि की हत्या अनभयुक्त
सुघड़पाल उसकी सानवत्री देवी, उसके नपता
कालीचरि व भाई राम नकशोर िे नमलकर की
है।"

16. The above quoted parts of
prosecution witnesses have in equal terms
alleged the involvement of all three
revisionist also and allegations are also
corroborated with the post-mortem report
which opined that cause of death was due
to asphyxia and shock and haemorrhage
due
to
anti
mortem
injuries
and
strangulation. Therefore, in the impugned
order dated 20.09.2021 Trial Court after
considering Hardeep Singh (supra) as
well as the above referred evidence has
come to the conclusion that considering the
examination-in-chief more than prima facie
case was made out against revisionists. I,
therefore, do not find any irregularity in the
impugned order whereby revisionists are
summoned under Section 302/34 IPC. So
far as observations made in Brijendra
Singh (supra) are concerned, since the
impugned order satisfies the test prescribed
by Constitution Bench judgement in
Hardeep Singh (supra), as referred in
Sugreev Kumar (supra) and Sartaj Singh
(supra), only evidence brought before the
Court has to be considered. Therefore, the
revisionists will not get any help from
observations made in Brijendra Singh
(supra).

17.

As
discussed
above,
the
revisionists have to go through de novo
trial and it will have no effect of the trial
concluded against other accused wherein
they have been acquitted. Therefore, while
rejecting the prayer made in this revision, it
is disposed of with the direction that Trial
610 INDIAN LAW REPORTS ALLAHABAD SERIES
Court shall conclude trial expeditiously,
preferably within a period of one year from
today, subject to the calender of the Court.
----------
(2022) 12 ILRA 610
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Revision No. 3014 of 2021
&
Crl. Revision No. 3022 of 2021

Rajat Upadhyay (minor) ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Raj Kumar Kesari

Counsel for the Opp. Parties:
G.A., Sri Sunil Kumar Singh

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973 - Section 397/401 -
Indian Penal Code, 1860- Sections 302,
307, 34, 504, 506 & 3/25 - Arms Act,1959
-application for declaring juvenile rejected
by Juvenile Justice Board-discrepancy
between dates of birth recorded upto class
5 as compared to date which came to be
recorded in class 6-a fake story was made
up by the revisionist side that exactly on
same date and month but a year ago
mother of minor gave birth to another
male child, who died within a few weeksthe Board found this fact conspicuous that
the birth of rest of the three children came
to be registered in the Nagar Nigam
except the birth registration of present
juvenile-when he was admitted in another
institution
in
Class-6
no
transfer
certificate or any other document was
produced and different date of birth was
mentioned-The
story
given
by
the
revisionist as to birth and death of second
child has no legs to stand and has been
rightly discarded by the appellate court-no
reliance can be placed on birth certificatein view of unambiguous school papers,
there was no need to go for medical
examination-Hence,
the
court
has
committed no fault in rejecting the
request for medical examination. (Para 1
to 18)

The revision is dismissed. (E-6)

List of cases cited:
1. Parag Bhati Vs St. of U.P. (2016) 12 SCC 744

2. Sanjeev Kumar Gupta Vs St. of U.P & anr.
(2019) 12 SCC 370 Abuzar Hossain Vs St. of
W.B. (2012) 10 SCC 489

3. Ashwani Kumar Saxena Vs St. of M.P. (2012)
9 SCC 750 Babloo Pasi Vs St. of Jharkhand
(2008) 13 SCC 133

4. Arnit Das Vs St. of Bih.(2000) 5 SCC 488

5. Jitendra Ram Vs St. of Jharkhand (2006) 9
SCC 428

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Raj Kumar Kesari,
learned counsel for the revisionist, Sri Sunil
Kumar Singh, learned counsel for the
opposite party no.2 and Sri O.P. Mishra,
learned A.G.A. for the State in both the
matters.

2. Perused the record.

3. These criminal revisions have been
filed on behalf of the alleged minor through
his natural guardian/mother challenging the
order dated 05.10.2021 passed by the
learned Additional District and Sessions
Judge/Special Judge (POCSO Act), Court
No.2, Varanasi in both the matters in
Criminal Appeal Nos.96 of 2020 and 97 of
2020 affirming the order dated 19.11.2020
and 11.11.2020 passed by the Juvenile