# Kanhaya Lal Gupta Revisionist v. State Of U.P. & Anr

- **Citation:** (2016) 6 ILRA 36
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-06
- **Bench:** Ravindra Nath Kakkar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanhaya-lal-gupta-revisionist-v-state-of-u-p-anr-43965
- **Pages:** 7

## Text

36 INDIAN LAW REPORTS ALLAHABAD SERIES

observed by him that prima facie case is made out. These very words in very clear terms discloses
the application of mind by the magistrate, therefore, it cannot be said that there was no application
of mind by the magistrate concerned before taking cognizance.

13. So far as the second contention of the learned counsel regarding the filling of gaps in a
printed proforma is concerned, also do not find any reason to believe, because the impugned order
is typed order, except for dates which are being filled by pen. So far as entries are concerned, like
'Case Crime No.' 'Parties Name' 'Sections' etc., these are usually filled up by the office only and it is
not necessarily to be filled up by the magistrate himself in his own handwriting. Order of taking
cognizance is not like the order passed under Section 111 Cr.P.C. It is consistent view of this Court
that it should not be on printed proforma by filling the gaps but the conditions therein are certainly
different than that of taking cognizance upon police report in a proceeding under Section 111
Cr.P.C. Report of the police station is being submitted and magistrate has to take action after taking
the stock of the report and in that case application of mind is necessary after considering all the
facts and circumstances that are to be forwarded by the police station and a conclusion has to be
drawn by the magistrate concerned. In the cases before a magistrate for taking cognizance on the
police report under Section 173 Cr.P.C. such type of application of mind is not necessary. Police
personnel after investigating the matter and coming to a conclusion that case is made out against
the accused persons files a report and upon that magistrate while taking cognizance is to apply his
mind regarding the prima facie case is made out unlike the clear cut observation that is to be taken
in the proceeding under Section 111 Cr.P.C. If dates and other fillings are being made by the office
then it cannot be said that there is no application of mind rather it is the language of the order that is
to be seen and following action that is taken and in the present case as observed above, magistrate
has applied his mind and after that has taken cognizance and issued summons.

14. In the attuning circumstances, I fail to find any weight in the submissions of learned
counsel and in consequence, revision lacks merit and liable to be dismissed.

15. The criminal revision is hereby dismissed.
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REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.06.2016

BEFORE

THE HON'BLE RAVINDRA NATH KAKKAR, J.

Criminal Revision No.- 3790 Of 2015

Kanhaya Lal Gupta ...Revisionist
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Revisionist:
6 All. Kanhaya Lal Gupta Vs State Of U.P. & Anr.

37
Ravindra Nath Rai, Ashok Kumar Rai

Counsel for Opposite Parties:
Govt.Advocate

Present criminal revision has been preferred against the judgment and order dated 13.7.2015, passed by
Additional Sessions Judge, 3rd Basti in Session Trial No.46/15 (State Vs. Shivaji & others), under Section 498A, 304B I.P.C. and 3⁄4 Dowry Prohibition Act, whereby the court below has rejected the application filed
against the opposite party no.2- Jagdish Prasad s/o Sri Ram Adhar for summoning him under Section 319 of
the Code of Criminal Procedure, 1973, which is under challenge in this revision.
In Hardeep Singh & others Vs. State of Punjab and others, (2014) 3 SCC Page 92, the Hon'ble Apex
Court has elaborately explained the scope and extent of the powers of the courts under the criminal justice
system to arraign any person as an accused during the course of inquiry or trial as contemplated under
Section 319 of Cr.P.C.
Regarding the degree of satisfaction required for invoking the power under Section 319 Cr.P.C. the Hon'ble
Apex Court observed that the word "appear" means "clear to the comprehension", or a phrase near to, if not
synonymous with "proved". It imparts a lesser degree of probability than proof.
Court observed that 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.
The impugned order rejecting the application of the revisionist under Section 319 Cr.P.C. is confirmed and the
revision being devoid of merit is dismissed.

(Delivered by Hon'ble Ravindra Nath Kakkar, J.)

1. This criminal revision has been preferred against the judgment and order dated
13.7.2015, passed by Additional Sessions Judge, 3rd Basti in Session Trial No.46/15 (State Vs.
Shivaji & others), under Section 498-A, 304B I.P.C. and 3⁄4 Dowry Prohibition Act, whereby the
court below has rejected the application filed against the opposite party no.2- Jagdish Prasad s/o Sri
Ram Adhar for summoning him under Section 319 of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C.'), which is under challenge in this revision.

2. Facts, in brief, are that revisionist-applicant's daughter Mamta was married on 18.5.2013
with accused Shivaji Agrahari. Opposite party no.2-Jagdish Prasad is real elder brother of the
deceased father of Shivaji. He along with other co-accused demanded the additional dowry.
Opposite party no.2- Jagdish Prasad was the Mediator of the alleged marriage. Rs.3 lac & fifty
thousand along with a motorcycle was given in the marriage as a dowry, but there was an
additional demand of Rs.5 lacs as dowry. Due to this demand of dowry, his daughter Mamta was
physically and mentally tortured. On 20.9.2013 Mamta was burnt by pouring kerosene oil by all
these accused persons.

3. An FIR was registered against all the accused persons, namely, Shivaji Agrahari, Om
Prakash, Shanti Devi and Jagdish Prasad, but in connivance with the Investigating Officer the
charge sheet has not been filed against accused-Jagdish Prasad. The charge sheet was only filed
38 INDIAN LAW REPORTS ALLAHABAD SERIES

against accused Shivaji, Om Prakash and Shanti Devi. The prosecution has produced Kanhayia Lal
and Pawan Kumar Agrahari as witnesses before the court below who had stated in their statement
about the involvement of Jagdish Prasad for the demand of dowry. The applicant-revisionist prayed
for summoning the accused- Jagdish Prasad along with the other co-accused, against which an
objection was filed stating therein that the application for summoning the accused had only been
filed for causing delay and harassment of the other accused in the trial.

4. After hearing both the parties learned Additional Sessions Judge, Court No.3, Basti
rejected application no.27-Kha of Sections 319 Cr.P.C. Being aggrieved, this revision has been
preferred.

5. Learned counsel for the revisionist contended that on perusal of the statement of P.W.1
Kanahiya Lal and P.W.2 Pawan Kumar involvement of the opposite party no.2 Jagdish Prasad is
established and learned court below has illegally rejected the application against opposite party
no.2 on the basis of the statement recorded under Section 161 Cr.P.C. by the Investigating Officer.
Opposite party no.2 being head of the family and was retired as a Lekhpal from Revenue
Department, he has settled the marriage of Shivaji with the daughter of informant. Subsequently, a
demand of Rs.5 lacs was raised and due to the non-fulfilment of the same the deceased was
tortured. Jadgish Prasad continuously started torturing the deceased alongwith the other co-accused
due to non-fulfilment of the dowry. Hence, he actively participated in causing burn injuries to the
deceased. Being an influential person he succeeded in getting a final report by the Investigating
Officer in his favour. The learned court below after examining the evidence of P.W.1 and P.W.2
had illegally rejected the application under Section 319 Cr.P.C. filed in S.T. No.46 of 2014, under
Sections 498A, 304-B and 3/4 Dowry Prohibition Act. Therefore, he prayed that the revision be
allowed and the order of the learned trial court be rejected.

6. Learned A.G.A. rebutting the arguments advanced by the learned counsel for the
revisionist stated that the trial court has rightly rejected the application filed by the revisionist under
Section 319 Cr.P.C. There is no illegality or jurisdictional error in the order impugned. Prima facie,
it is established by the testimony of P.W.1 and P.W.2 that the accused Jagdish Prasad is living
separately with the other co-accused and during investigation husband, brother-in-law (devar) and
mother-in-law of the deceased found to be involved in the offence against whom charge sheet has
been filed. The learned court below has clearly given a finding that opposite party no.2 Jagdish
Prasad is a retired Lekhpal and he is living separately along with his nine children. As a family
member being the elder brother of the deceased father of Shivaji, he was mediator of the alleged
marriage and played the role of in-laws. There was a dying declaration of the deceased which does
not support the presence and involvement of the accused Jagdish Prasad, therefore, the court below
has rightly rejected the application of the revisionist-applicant. The revision is without merit and is
liable to be dismissed.

7. I have considered the submissions raised by both the parties and have gone through the
records.
6 All. Kanhaya Lal Gupta Vs State Of U.P. & Anr.

39
8. Section 319 Cr.P.C. is as follows :-

"319 Cr.P.C.- Power to proceed against other persons to be guilty of offence :-

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears
from the evidence that any person not being the accused has committed any offence for which such
person could be tried together with the accused, the Court may proceed against such person for the
offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or
summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a
summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence
which he appears to have committed.

(4) Where the Court proceeds against any person under Sub-Section (1) then-

(a) the proceedings in respect of such person shall be commenced afresh, and
witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such
person had been an accused person when the Court took cognizance of the offence upon which the
inquiry or trial was commenced."

9. It is an established preposition of law that the trial court will take certain steps to all such
persons who is an accused only on the basis of evidence adduced before it and not on the basis of
the material available in the charge sheet or case diary because of the fact that such material
contained in a charge sheet or the case diary do not constitute evidence. The Apex Court in the case
of Hardeep Singh & others Vs. State of Punjab and others, (2014) 3 SCC Page 92 made the
following observations :-

87. In Pyare Lal Bhargava v. The State of Rajasthan, AIR 1963 SC 1094, a fourJudge Bench of this Court was concerned with the meaning of the word ''appear'. The court held
that the appropriate meaning of the word ''appears' is ''seems'. It imports a lesser degree of
probability than proof. In Ram Singh & Ors. v. Ram Niwas & Anr., (2009) 14 SCC 25, a two-Judge
Bench of this Court was again required to examine the importance of the word ''appear' as
appearing in the Section. The Court held that for the fulfillment of the condition that it appears to
the court that a person had committed an offence, the court must satisfy itself about the existence of
an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is,
therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf
of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as an
accused in the case.
40 INDIAN LAW REPORTS ALLAHABAD SERIES

88. 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 Cr.P.C., 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, 2013 (11) SCALE 23, 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.

10. In Hardeep Singh (supra), the Hon'ble Apex Court has elaborately explained the scope
and extent of the powers of the courts under the criminal justice system to arraign any person as an
accused during the course of inquiry or trial as contemplated under Section 319 of Cr.P.C.

11. The Hon'ble Apex Court has also held 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.

12. Regarding the degree of satisfaction required for invoking the power under Section 319
Cr.P.C. the Hon'ble Apex Court observed that the word "appear" means "clear to the
comprehension", or a phrase near to, if not synonymous with "proved". It imparts a lesser degree of
probability than proof.

13. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence
adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to
be added as an accused in the case. In Rajendra Singh Vs. State of U.P. & Another, AIR 2007 SC
2786, the Hon'ble Apex Court observed as follows:-

"Be it noted, the court need not be satisfied that he has committed an offence. It need
only appear to it that he has committed an offence. In other words, from the evidence it need only
appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319
of the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and
not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to
enable it to exercise its jurisdiction under this section. The expression "appears" indicates an
application of mind by the court to the evidence that has come before it and then taking a decision
to proceed under Section 319 of the Code or not."

14. In Sarabjit Singh & another Vs. State of Punjab & another., AIR 2009 SC 2792,
while explaining the scope of Section 319 Cr.P.C., the Hon'ble Apex Court observed as under :-
6 All. Kanhaya Lal Gupta Vs State Of U.P. & Anr.

41

"......For the aforementioned purpose, the courts are required to apply stringent tests; one of
the tests being whether evidence on record is such which would reasonably lead to conviction of the person
sought to be summoned ..... Whereas the test of prima facie case may be sufficient for taking cognizance of an
offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion.
While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on
record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a
higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the
question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for
the purpose of forming an opinion to summon a person as an additional accused is laid down, the
ingredients thereof. viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of
jurisdiction, would not be satisfied." (Emphasis added)."

15. 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.

16. In the light of the above legal position, I have considered the contentions raised by both the
parties and also perused the record.

17. It is an admitted fact that the first information report is lodged against four persons, namely,
Shivaji, Om Prakash, Shanti Devi and Jagdish Prasad under Sections 498-A, 304-B IPC and 3⁄4 Dowry
Prohibition Act. Amongst the accused persons, Shivaji is the husband of the deceased and Om Prakash is the
brother-in-law (devar), Shanti Devi is the mother-in-law of the deceased and Jagdish Prasad is elder brother
of the deceased father of husband- Shivaji. It is also an admitted fact that after completion of the investigation
charge sheet has been filed only against the named accused Shivaji (husband) Om Prakash (devar), Shanti
Devi (mother-in-law) on the basis of collection of evidence/material under Section 161 Cr.P.C., excluding
the name of Jagdish Prasad. It is also an admitted fact that during investigation, dying declaration of the
deceased Mamta was recorded and before recording the dying declaration the doctor had certified the fit state
of mind of the deceased. It is also an admitted fact that the named accused Jagdish Prasad is the real elder
brother of the deceased father of the husband Shivaji and he has played an active role of Samadhi/in-laws
(mediator) from the side of the husband.

18. Admittedly, the death of the deceased was an unnatural death and was within seven years of
marriage. As per the prosecution story, the death was caused due to the demand of additional dowry of Rs.5
lakh and a motorcycle by all the four accused persons whose names are mentioned in the First Information
Report and due to non-fulfilment of the alleged demand, deceased Mamta was set on fire by pouring
kerosene oil on her body and all the accused persons played active role in causing death of deceased Mamta.

19. I have perused the records and given thoughtful consideration on the evidence of PW-1
Kanhaiya Lal and PW-2 Pawan Kumar whose statements were recorded before the trial court. PW-1
Kanhaiya Lal is the father of the deceased Mamta, who is the complainant of the case and has lodged the
42 INDIAN LAW REPORTS ALLAHABAD SERIES

First Information Report. PW-2 Pawan Kumar is the real nephew of PW-1 Kanhaiya Lal. From a perusal of
the evidence/oral testimony of PW-1 and PW-2 it transpires that accused Jagdish Prasad is living separately
in a house along with his family members in village Madahi, whereas the incident took place in a town of
Mahrajganj and distance between the two places is about 10 kms. In this regard it is important to mention that
PW-1 Kanhaiya Lal who is the author of the FIR and complainant of the case and also the father of the
deceased mentioned two addresses of accused Jagdish Prasad, i.e., Madahi and Mahrajganj and stated that at
the time of the incident, accused Jagdish Prasad resided at the place of the occurrence which under the facts
and circumstances of the case does not inspire confidence of the Court and on this point there is a statement
that at the time of the incident, accused Jagdish Prasad was also present at the scene of the occurrence and
played active role by pouring kerosene oil on the body of deceased Mamta and set her on fire is not
believable. Moreso, from any angle of the case Jagdish Prasad being member of a separate family and being
elder brother of the deceased father of the husband cannot be a beneficiary of the additional dowry. It is also
stated that the dying-declaration recorded prior to the death of the deceased does not show the presence or
involvement of accused Jagdish at the time of the incident or at the place of the occurrence. Since the dying
declaration does not establish the presence or involvement of accused Jagdish, factum of separate living of
accused Jagdish is proved. So far as the involvement of accused Jagdish in commission of the alleged offence
is concerned, he is not the beneficiary of the additional dowry. Hence, the statements of PW-1 and PW-2
recorded during the trial is neither cogent nor credible or trustworthy on this point.

20. Keeping all the facts and circumstances as stated above, the legal proposition as above
mentioned, there is no merit in the arguments raised by the learned counsel for the revisionist. The impugned
order does not suffer from any infirmity or perversity hence does not require any interference.

21. Accordingly, the impugned order rejecting the application of the revisionist under Section 319
Cr.P.C. is confirmed and the revision being devoid of merit is dismissed.

22. Let a certified copy of the judgment be transmitted to the court concerned for compliance.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.06.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Bench No.- 13474 Of 2016

Lavkush & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioners:
Mohd. Kashif Rafi, M.A. Siddiqui