# Krishna & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 702
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-24
- **Case number:** Criminal Revision No. 2941 of 2023
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-anr-revisionists-v-state-of-u-p-anr-50736
- **Pages:** 17

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
revision - Indian Penal Code, 1860 -
Sections 302, 504 & 506 - Indian Evidence
Act, 1872 - Section 3 -fact , Section 65-B
electronic evidence , Section 103 - burden
of proof as to any particular fact - Plea of
alibi - plea of alibi taken by the defence is
required
to
be
proved
only
after
prosecution has proved its case against
the accused - merits of the evidence have
to be appreciated only during the trial, by
cross examination of the witnesses and
scrutiny of the Court - not to be done at
the
stage
of
Section
319
-
authority/judicial precedent has to be
understood in context of facts based on
which the observation made therein are
made - ratio of a decision is generally
secundum subjectam materiam. (Para
-
20,21)

Application filed by opposite party no.2 under
Section 319 Cr.P.C. - summoning revisionists
as accused - order impugned passed by trial
court - not considered plea of alibi of
revisionists - on basis of oral, electronic as well
as
documentary
evidence
collected
by
Investigating Officer - no finding in that regard -
hence revision. (Para -10,11,13)

HELD:-Trial court not committed any illegality
or irregularity in not considering the plea of the
alibi of the revisionists while passing the order
impugned allowing the application of opposite
party no.2 under Section 319 Cr.P.C. and
summoning the revisionists as accused.(Para -
22)

Criminal Revision dismissed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,997 of 58,177. This is a partial read: ask again with offset=39997 for what follows._

702 INDIAN LAW REPORTS ALLAHABAD SERIES
that there is sufficient ground to proceed,
he will frame a charge under Section 228, if
not, he will discharge the accused. It is
further observed that while exercising his
judicial mind to the facts of the case in
order to determine whether a case for trial
has been made out by the prosecution, it is
not necessary for the Court to enter into the
pros and cons of the matter or into a
weighing and balancing of evidence and
probabilities which is really the function of
the Court, after the trial starts.

18. In present case although Dr.
Pravendra who conducted M.L.C. of injured
persons and submitted supplementary report
stating that no offence under Section 308 IPC is
made out on the basis of supplementary report
as no bone injury was seen on the skull of
injured, however, in CT scan report of injured
Amir, a linear fracture involving anterior lateral
wall of left maxillary sinus was detected,
although there is no opinion of the doctor
regarding the nature and effect of this injury,
however, this injury is on vital part of the body,
just below the skull. Injured Amir has also
stated in his statement that accused persons had
assaulted him and his father and brother Danish
by clubs, sticks and inside weapons in which he
received injuries on his head and spinal cord.

19. In injury report of Amir, one Incised
wound of size 4 x 0.5 cm into bone deep.
Margin is clear on lateral to left Eyebrow on lt.
Side of face and one contusion of size 2 x 1 cm
on Rt. Side of face just below Rt. Eye, were
found apart from two contused swelling on
right forearm and right forehand, thus keeping
in view the nature of injury no. 1 of Amir,
which is in the opinion of the doctor has been
caused by some sharp edged object and the
statement of injured and other witnesses
recorded under Section 161 Cr.P.C., it cannot
be held at the stage of framing of charge that
there is no sufficient ground for proceeding
against accused under Section 308 IPC in the
light of pronouncement of Hon'ble Apex
Court as stated above as a charge can also be
made against accused on grave suspicion of
commission of offence. Prima facie case
envisaged for framing of charge is prima facie
formation of opinion by trial court that there is
sufficient ground to put accused on trial for
said charge and not the formation of opinion
that the said material collected during
investigation, if proved, during trial, the same
would be sufficient to convict the accused for
said charge.

20. Considering rival submissions of
learned counsel for the parties, material on
record
and
totality
of
the
facts
and
circumstances of the case, I find no fault.
Learned court below in passing impugned
order, whereby discharge application moved by
accused revisionist for charge under Section
308 IPC has been dismissed. No illegality,
irregularity or perversity is found in impugned
order passed by learned court below. Revision
is devoid of merit and deserves to be dismissed
in the light of foregoing discussions.

21. Accordingly, impugned order passed
by learned court below is affirmed and revision
stands dismissed.
----------
(2023) 9 ILRA 702
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 2941 of 2023

Krishna & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists:
9 All. Krishna & Anr. Vs. State of U.P. & Anr.
703
Sri Pradeep Mishra, Sri Tanzeel Ahmad, Sri
Vinay Saran (Sr. Adv.)

Counsel for the Respondents:
G.A., Sri Ankit Saran, Sri Anuj Srivastava

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
revision - Indian Penal Code, 1860 -
Sections 302, 504 & 506 - Indian Evidence
Act, 1872 - Section 3 -fact , Section 65-B
electronic evidence , Section 103 - burden
of proof as to any particular fact - Plea of
alibi - plea of alibi taken by the defence is
required
to
be
proved
only
after
prosecution has proved its case against
the accused - merits of the evidence have
to be appreciated only during the trial, by
cross examination of the witnesses and
scrutiny of the Court - not to be done at
the
stage
of
Section
319
-
authority/judicial precedent has to be
understood in context of facts based on
which the observation made therein are
made - ratio of a decision is generally
secundum subjectam materiam. (Para
-
20,21)

Application filed by opposite party no.2 under
Section 319 Cr.P.C. - summoning revisionists
as accused - order impugned passed by trial
court - not considered plea of alibi of
revisionists - on basis of oral, electronic as well
as
documentary
evidence
collected
by
Investigating Officer - no finding in that regard -
hence revision. (Para -10,11,13)

HELD:-Trial court not committed any illegality
or irregularity in not considering the plea of the
alibi of the revisionists while passing the order
impugned allowing the application of opposite
party no.2 under Section 319 Cr.P.C. and
summoning the revisionists as accused.(Para -
22)

Criminal Revision dismissed. (E-7)

List of Cases cited:

1. Shiv Prakash Mishra Vs St. of U.P. , (2019)
LawSuit (SC) 1340

2. Hardeep Singh Vs St. of Punj. ,(2014) 3 SCC
92

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

4. Sugreev Kumar Vs St. of Punj., 2019 (3)
Supreme 7

5. Vijaypal Vs St. (GNCT) of Delhi, 2015 0
Supreme (SC) 214

6. Manjeet Singh Vs St. of Har. & ors. (Para 38),
MANU/SC/0546/2021

7. Sandeep Kumar Vs St. of Har. & ors., 2023
SCC OnLine SC 888

8. Darshan Singh Vs St. of Punj. ,2016 0
Supreme (SC) 2

9. Amit Kapoor Vs Ramesh Chander & anr. ,
(2012) 9 SCC 460

10. St. of Haryana Vs Sher Singh, Manu
SC/0236/1981,

11. Gurcharan Singh Vs St. of Punj., Manu
SC/0122/1955

12. Chandrika Prasad Singh Vs St. of Bihar,
Manu SC/0084/1971

13. St. of Orissa Vs Debendra Nath Padhi,
2004(8) SCC 568

14. Quinn Vs Leathem, (1901) AC 495, Earls of
Halsbury L.C.

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. Heard Mr. Vinay Saran, learned
Senior Advocate assisted by Mr. Pradeep
Kumar Mishra and Mr. Tanzeel Ahmad,
learned counsel for the revisionist, Mr. Ankit
Saran, learned counsel for the opposite party
no.2 and Mr. R.N. Singh, learned A.G.A. for
the State as well as perused the entire
material available on record.
704 INDIAN LAW REPORTS ALLAHABAD SERIES

CHALLENGE TO THE PRESENT
CRIMINAL REVISION

2. This revision has been filed to set
aside the judgment and order dated
28.04.2023 passed by learned Additional
Sessions Judge, Court no.7, Meerut in
Sessions Trial No.297 of 2015, arising out
of Case Crime No. 333 of 2014, under
Section 302, 504, 506 I.P.C., Police Station
Kankarkhera, District Meerut pending
before the learned Additional Sessions
Judge, Court no.7, Meerut.

GENESIS OF THE CASE

3. For the alleged incident dated 24th
May, 2014 at about 11:30 a.m., a first
information report has been lodged by
Dinesh
Kumar
Singh
i.e.
informant/opposite party no.2 on 24th May,
2014 at 1300 hrs. (01:00 p.m.) against
Krishnapal,
Vikash
and
Praveen
(Krishnapal and Vikas are revisionists
herein). The said FIR came to be registered
as Case Crime No. 333 of 2014 under
Sections 504, 506 and 302 I.P.C., at Police
Station
Kankarkheda
Meerut,
District
Meerut. In the FIR it has been alleged that
on 24th May, 2014 the informant along
with his sister and brother, namely, Rekha
and Neeraj respectively were driving to
Meerut in his Honda Amaze White Car to
visit Dr. Anil Rastogi who was treating
him. As they left their Lakhvaya, a White
Scorpio Car overtook and stopped their car.
The named accused persons got out of the
Scorpio Car and threatened to kill Neeraj
for helping Dharmendra Kirtal in a criminal
case. They fired shots at Neeraj which
resulted his death in his car. It is further
alleged that the informant, his sister Rekha
and Satendra and Harendra, who were
coming behind his car saw the said
incident.

4. After lodgement of the FIR,
investigation
proceeded
and
the
Investigating
Officer
on
24.05.2014
recorded
the
statement
of
the
first
informant, Dinesh Kumar Singh under
section 161 C.P.C. in which he reiterated
the version of the FIR.

SPECIFIC
CASE
OF
THE
REVISIONISTS

5. On the next date of incident i.e.
25th May, 2014 statements of witnesses,
namely, Satish Kumar, Sanjeev Kumar and
Mehak Singh were recorded by the
Investigating Officer under Sections 161
Cr.P.C. wherein they stated that the
revisionists namely, Pradhan Krishnapal
and Vikash were in the village on the date
of incident and they have been falsely
implicated in the murder of the deceased
Neeraj. As such, the plea of alibi of the
revisionists surfaced immediately after the
incident. On 29.05.2014, the statement of
sister of the deceased Smt. Rekha and one
Harendra,
who
were
mentioned
as
witnesses of the FIR, were recorded under
Section 161 Cr.P.C. in which they did not
support the version as unfolded in the FIR
and
statement
of
the
first
informant/opposite party no.2 rather stated
that one Praveern alias Billu and one Ankit
were the ones who had shot the deceased
and did not name the revisionists as one of
the perpetrators in the incident. Thereafter
the
name
of
the
revisionists
was
dropped/exonerated from the investigation
and one Ankit alias Guddu was added as an
accused in crime in question. However, the
aforesaid witnesses namely Smt. Rekha and
Harendra were pressurized by the first
informant and on 20.6.2014, they have filed
their affidavits supporting the version of
the FIR and denied their earlier statements
which were recorded by the Investigating
9 All. Krishna & Anr. Vs. State of U.P. & Anr.
705
Officer under section 161 Cr.P.C. Two
more affidavits of the first informant
Dinesh Kumar and Satyendra were brought
on record by the investigating officer on
20.6.2014.
The
police
recorded
the
statement of Sateyndra on 10.07.2014
wherein he supported the version of the
FIR but has failed to answer the crucial
questions
about
the
entire
incident.
Thereafter on 19.7.2014 through CD No.
XXI, the investigating Officer brought on
record the statements of aforesaid Dinesh
Kumar,
Smt.
Rekha,
Sateyndra
and
Harendra recorded under Section 164
Cr.P.C. so to pressurize them not to retract
from their statements in future. Thereafter
the investigating officer recorded the
statement of aforesaid Smt. Rekha on
2.8.2014, Dinesh Kumar on 4.8.2014. After
completion of the investigation under
Chapter XII Cr.P.C., the investigating
officer submitted the charge sheet against
the co-accused persons, namely Praveen
and Ankit and kept the investigation
pending against the revisionists. The
investigation thereafter was transferred to
Crime Branch and during the investigation
vide parcha SCD-III dated 17.11.2014, Call
Detail Reports (CDRs) of the revisionist
No.1 and his Security Guard namely Gagan
and Ankur were obtained and brought on
record. The statement of the aforesaid
police security guards, namely, Gagan and
Ankur of the revisionist No.1 were also
recorded by the investigating officer under
section 161 Cr.P.C. who supported the plea
of alibi of the revisionists and further
denied the involvement of the revisionist in
the incident in question. After completion
of the investigation against the revisionists,
their involvement in the alleged incident
was found to be false vide parcha dated
28.1.2015. After filing of the charge sheet
against the co-accused persons cognizance
was taken and later on the case was
committed to the Court of Sessions and was
registered as Sessions Trial No. 297 of
2015 and is pending in the court of
Additional Sessions Judge, Court No. 7,
Meerut. During the course of trial, the
statements of PW-1 Dinesh and PW- 2
Harendra Singh were recorded in which
they again reiterated the prosecution story
as narrated in the FIR involving the names
of the revisionists as accused. Thereafter on
25.1.2023, opposite party no.2/informant
moved an application under section 319
Cr.P.C. for summoning the revisionists
before the trial court and the same was
numbered as Paper No. 110-Kha but vide
order dated 28.2.2023 the same was not
pressed without obtaining any permission
to file a fresh application. No further
material was brought on record thereafter
and without any new ground and without
seeking any liberty to file a fresh
application,
while
not
pressing
the
application
dated
25.1.2023,
another
application under section 319 Cr.P.C. was
moved by opposite party no.2 on 18.4.2023
by giving a lame excuse that the first
application was not pressed under the threat
of the revisionists, although the fact
remains that the revisionist had no
knowledge
of
the
application
dated
25.1.2023 as they were not attending the
court and were not facing the trial.

6. The trial court vide order dated
28.4.2023 allowed the IInd application filed
by opposite party no.2 in a most
mechanical manner without even properly
going through the material available on
record collected during the investigation. In
the order dated 28th April, 2023 allowing
the application of opposite party no.2 under
Section 319 Cr.P.C. the trial court has not
recorded any finding qua alibi of the
revisionists, which were cropped up in the
statements of the witnesses and the CDR
706 INDIAN LAW REPORTS ALLAHABAD SERIES
which was made part of the investigation
regarding the location of the revisionists at
village Kirthal Baghpat at the time of the
alleged incident and also the statement of
the police security guards supporting the
said facts. The concerned Sessions Judge
while passing the order dated 28th April,
2023, was duty bound to consider entire
material available on record i.e. the
material collected during the investigation
as well as material brought during the
course of trial by way of deposition etc.
However, the Sessions Judge committed
gross illegality while ignoring the material
available on record collected during the
course of investigation which favoured the
revisionists. It is against this order of the
concerned Sessions Judge dated 28th April,
2023 allowing the application of opposite
party no.2 for summoning the revisionists
as accused that the present criminal
revision has been filed.

7. SUBMISSIONS ADVANCED
ON BEHALF OF THE REVISIONISTS

(i) The revisionists are wholly
innocent and have been falsely implicated
in the present case due to ulterior motive
and they have not committed the alleged
offence. The allegations as unfolded in the
FIR are wholly false and baseless.

(ii) On the alleged date and time
of the incident, revisionist no.1 who was a
Pradhan and political person and his
security police guards, namely, Constable
Ankur Kumar and Constable Gagan Pawar
along with his nephew i.e. revisionist no.1
Vikash were in Village Kirthal District
Baghpat which is about 100 kilometres
away from the alleged place of incident i.e.
Village Lokwaya District Meerut, where
they were holding a Panchayat to resolve
the village dispute qua a drain between two
parties. The said plea of alibi of the
revisionists have been supported by the
witnesses recorded under Sections 161
Cr.P.C., referred to herein above including
the statements of the villagers and security
guards under Section 161 Cr.P.C. Such plea
of alibi of the revisionists has not been
considered by the concerned Sessions
Judge while passing the impugned order,
which is arbitrary and per se illegal. The
strong plea of alibi of the applicant is
supported by cogent material collected by
the
investigating
officer
during
the
investigation and no new/additional/fresh
material
was
brought
on
record
contradicting/confronting
the
already
available material by PW-1, therefore, the
power under Section 319 Cr.P.C. should
not have been exercised by the learned trial
judge. Reliance in that regard has been
placed upon the judgment of this Court in
the case of Shiv Prakash Mishra v. State
of Uttar Pradesh, reported in (2019)
LawSuit (SC) 1340, (Para 10, 11, 12).

(iii) The concerned Sessions Judge,
while passing the impugned order has failed
to record his prima facie satisfaction for the
revisionists, therefore, the same is illegal. In
this regard reliance has been placed upon the
judgment of the Apex Court in the case of
Hardeep Singh Vs state of Punjab reported
in (2014) 3 SCC 92.

(iv) The concerned Sessions Judge
while passing the order dated 28th April,
2023 has not considered the material
available on record collected during the
course of investigation and committed gross
illegality in summoning the revisionist. In
support of this submission, reliance upon the
judgment of the Apex Court in the case of
Brijendra Singh & Others Vs. State of
Rajasthan reported in (2017) 7 SCC 706 has
been placed.
9 All. Krishna & Anr. Vs. State of U.P. & Anr.
707

(v) Initially in the statements
recorded under Section 161 Cr.P.C. on 29th
May, 2014, the eye-witnesses, namely
Rekha sister of the deceased and Harendra
have denied the presence of the revisionists
on the spot at the time and date of incident
and they have specifically named the one
Praveern alias Billu and one Ankit that they
had shot the deceased. However, after
being pressurized by the first informant,
they have filed their respective affidavits
after 22 days stating that the earlier
statements given by them before the Police
under Section 161 Cr.P.C. are false and
they have supported the allegations made
by the first informant/opposite party no.2 in
the FIR as well as in his statement recorded
under Section 161 Cr.P.C. On the basis of
such contradictory statements of these two
eye witnesses and the statements of the
witnesses
proving
the
alibi
of
the
revisionists the Investigating Officer has
exonerated the revisionists qua their
involvement in the murder of the deceased
Neeraj from the present case while filing
the charge-sheet. However, ignoring the
evidence collected by the Investigating
Officer, the concerned Sessions Judge has
passed the impugned order summoning the
revisionists as accused in the present case.

(vi) The first informant/ P.W.-1
has again reiterated the allegations against
the revisionist as alleged in the FIR which
had already been tested/investigated by the
investigating officer and the same was
found to false in fair and impartial
investigation and he was exonerated from
the charge sheet. That no application under
section 319 Cr.P.C. has been moved by the
state
(Prosecution)
and
the
instant
application under section 319 Cr.P.C. has
been moved by the first informant on his
own without protesting the final report at
the stage of cognizance.

(vii) The trial Judge without
going through the material on record in a
most mechanical manner in gross violation
of the provision of law and various
pronouncements of the Hon'ble Apex Court
has committed gross illegality while
passing the impugned order and summoned
the revisionist vide order dated 28.04.2023
and without discussing a single evidence
upon which he has recorded his prima facie
satisfaction for summoning the revisionist
under section 319 Cr.P.C. It is settled that
for summoning the additional accused
under Section 319 Cr.P.C. degree of
satisfaction is much stricter [Reference:
Brijendra Singh (Supra)].

(viii) The concerned Sessions
Judge while passing the impugned order
should have taken into consideration the
standard of proof employed for summoning
a person as an accused under Section 319
Cr.P.C, is higher than the standard of proof
employed for framing a charge and thereby
has committed gross illegality (Reference
Sugreev Kumar v. State of Panjab,
reported in 2019 (3) Supreme 7, Para-12).

On the cumulative strength of the
aforesaid,
learned
counsel
for
the
revisionists
submits
that
the
order
impugned
passed
by
the
concerned
Sessions Judge cannot be legally sustained
and is liable to be quashed.

8. SUBMISSIONS ADVANCED
ON BEHALF OF OPPOSITE PARTY
NOS. 1 AND 2

Per contra, learned counsel for
opposite party no.2 and the learned A.G.A.
for the State have disputed the submissions
made by the learned counsel for the
revisionists by contending that there is no
illegality or infirmity in the order passed by
708 INDIAN LAW REPORTS ALLAHABAD SERIES
the Sessions Judge allowing the application
of opposite party no.2 under Section 319
Cr.P.C. for summoning the revisionists as
accused in the case in hand.

9. Apart from the above, Mr. Ankit
Saran, learned counsel for opposite party
no.2 has contended as follows:

(i) The present dispute arose
when a first information report was
registered on 24.5.2014 at about 1300
hours in respect to an incident which
occurred on 24.5.2014 at about 1130 hours,
the
present
revisionists
who
were
specifically and categorically arrayed as an
accused persons in the first information
report.

(ii) The first information report
was prompt and the ingredients therein will
go to show that first informant, Rekha
sister of the deceased and Harendra were
ocular witnesses who had categorically
pointed
fingers
upon
the
present
revisionists of their involvement in the
commission of the alleged crime, directly.
Once the first information report gets
lodged, the investigating officer setting the
procedure into motion prepared site plan,
send the corpse of the deceased for
autopsy, and he further proceeded to record
the statement of first informant as well as
other witnesses of the incident.

(iii) The Investigating Officer
was
being
hand-in-gloves
with
the
revisionists and manipulated the statements
of sister of the deceased, namely, Rekha
and the independent witness, namely,
Harendra recorded u/s 161 Cr.P.C., which
will go to show that the Investigating
Officer from the very beginning of the
investigation was inclined to exonerate the
revisionists. Having gained the knowledge
regarding
the
aforesaid
act
of
the
Investigating Officer, the complainant/
informant as well as the eye-witnesses of
the incident immediately rushed to the
Investigating Officer and submitted their
respective versions on oath by way of
affidavits in which they all demolished the
entire version recorded by the Investigating
Officer under Section 161 Cr.P.C., and
confirmed the previous version as unfolded
in the first information report. Apart from
the versions made in the affidavits, the
statements of first informant Dinesh, eyewitnesses, namely, Rekha, Satendra and
Harendra under Sections 164 Cr.P.C.,
unanimously
deposed
against
the
revisionists and have categorically shown
the involvement of the present revisionists
in the murder of Neeraj (deceased). Not
even in the statements recorded under
Section 164 Cr.P.C. the first informant as
well
as
the
eye-witnesses,
namely,
Harendra confirmed their version when
they were produced before the Court as
Prosecution Witnesses Nos. 1 and 2 in the
respective testimonies and have also
categorically assigned the role of causing
fire- arm injuries to the deceased upon the
revisionists.

(iv) The submission as advanced
by the learned counsel for the revisionists
regarding the CDR report as well as
location of the mobile phones of the
revisionists were at distant place than that
of the place of incident showing that they
were not present at the place of incident, is
incomplete, wrong and has no force, as the
plea of alibi which has been raised on
behalf of the revisionists, is not palpable.
Mere the location of the devices (mobile
phones) which the revisionists were using
at the time of incident, is insufficient to
establish their non-involvement in the
commission of the alleged crime. The
9 All. Krishna & Anr. Vs. State of U.P. & Anr.
709
devices
(mobile
phones)
which
the
revisionists were using at the time of
incident and its CDR report would not defy
the versions so placed by the ocular
witnesses. Moreover, the admission of such
alibi would not be considered at the stage
of their summoning under Section 319
Cr.P.C. for the reasons that the same is an
electronic evidence which under the
provisions of Section 3 of the Evidence
Act, would needed to be certified by an
Expert under the provisions of 65-B of the
Evidence Act, which is required to be
certified after the prosecution evidence is
over. Hence, the plea of alibi adduced by
the revisionists is sketchy. It is not a case
where the accused has proven with absolute
certainty so as to exclude the possibility of
their presence at the place of occurrence.
The evidence adduced by the revisionists is
not of such quality that the court would
entertain any reasonable doubt.

(v)
The
burden
on
the
accused/revisionists is rather heavy and
they are required to establish the plea of
alibi with certitude. In the instant case,
nothing has been brought on record to
establish that the revisionists were not
present at the scene of offence at the time
of incident and they were present at another
place at such time. In support of the
aforesaid submission a judgment and order
passed by the Hon'ble Supreme Court in the
case of Vijaypal Vs. State (GNCT) of
Delhi, reported in 2015 0 Supreme (SC)
214 has been relied upon.

(vi) The precise argument of the
learned counsel for the revisionists was in
regard to the recording of satisfaction
before summoning the revisionists under
the provision of 319 Cr.P.C. and further
argument was that the court ought to have
recorded the evidence so placed on the
point of alibi, which are incorrect. Such
evidence cannot be accepted at the stage of
consideration of application under Section
319 Cr.P.C., the merits of the evidence has
to be appreciated only during the course of
trial by cross-examination of the witnesses
and scrutiny by the Court. This is not to be
done at the stage when an application under
Section 319 Cr.P.C. has to be entertained.
In support of such plea, reliance has been
placed upon the judgment and order of the
Hon'ble Supreme Court in the case of
Manjeet Singh Vs. State of Haryana and
others
(Para
38)
reported
in
MANU/SC/0546/2021 which has been
followed in the recent judgment of the
Hon'ble Supreme Court in the case of
Sandeep Kumar Vs. State of Haryana
and others reported in 2023 SCC OnLine
SC 888.

(vii) So far as the consideration of
the plea of alibi at the stage of summoning
of the accused under Section 319 Cr.P.C. is
concerned, such consideration would be
premature. The plea of alibi taken by the
defence is required to be proved only after
prosecution has proved its case against the
accused beyond reasonable doubt. Reliance
in that regard has been placed upon the
judgment of the Hon'ble Supreme Court in
the case of Darshan Singh Vs. State of
Punjab reported in 2016 0 Supreme (SC) 2.

(viii) The prosecution witnesses
at every stage i.e. statements recorded
under Section 164 Cr.P.C., in the affidavits
given to the Investigating Officer and
testimonies recorded before the Court, has
categorically stated about the involvement
of the revisionists in the commission of the
alleged
crime,
directly,
and
would
definitely have a higher evidentiary value
than that of the version so placed in the
statements given before the Investigating
710 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer under Section 161 Cr.P.C. by the
witnesses of fact, namely, Rekha sister of
the deceased and the independent witness
Harendra.

(ix) In catena of judgments, the
Hon'ble Supreme Court has held that only
prima-facie case is to be established from
the evidence laid before the Court not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of their
complicity. The test has to be applied in
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 un-rebutted would lead to
conviction.

On the cumulative strength of the
aforesaid, Mr. Ankit Saran, learned counsel
for opposite party no.2 submits that in
totality
of
the
fact
that
the
accused/revisionists
have
been
rightly
summoned by the learned trial court and
the heavy burden is upon them to
discharge. Qua the plea of alibi so raised on
behalf of the revisionists, the Court has
rightly overlooked the same as the same
has to be dealt with after the prosecution
has placed its case against the revisionists
beyond all reasonable doubts. Therefore,
the impugned order is just and reasonable
and does not warrant any interference by
this Hon'ble Court while exercising its
powers under Section 397/401 Cr.P.C.

10. I have considered the submissions
made by the learned counsel for the parties
and have gone through the records of the
present criminal revision specifically the
order impugned passed by the trial court on
an application filed by opposite party no.2
under Section 319 Cr.P.C. for summoning
the revisionists as accused in the present
criminal proceedings.

11. Except the submissions made by
the learned counsel for the revisionists that
the trial court vide order impugned while
allowing
the
application
of
the
complainant/opposite
party
no.2
and
summoning the revisionists as accused, has
not considered the plea of the alibi of the
revisionists on the basis of oral as well as
evidence collected by the Investigating
Officer during the course of investigation
nor has recorded any finding in that regard
in
the
impugned
order,
all
other
submissions made by the learned counsel
for the revisionist qua the legality, illegality
or otherwise of the present criminal
proceedings which have been initiated by
opposite party no.2 against the revisionists
cannot be examined by this Court while
exercising its revisional power under
Section 397/401 of Code of Criminal
Procedure. Such submissions can only be
examined
by
the
Bench
having
its
extraordinary jurisdiction under Sections
482 Cr.P.C. This Court can only examine
the correctness, legality, illegality or
otherwise of the order which is under
challenge in the present criminal revision
on the plea of alibi raised by the learned
counsel for the revisionists.

12. The Apex Court in the case of
Amit Kapoor Vs. Ramesh Chander &
Another reported in (2012) 9 SCC 460 has
opined that the jurisdiction of the court
under Section 397 Cr.P.C. can be exercised
so as to examine the correctness, legality or
propriety of an order passed by the trial
court or the inferior court, as the case may
be, whereas Section 482 Cr.P.C. confers a
very wide power on the Court to do justice
and to ensure that the process of the court is
not permitted to be abused.
9 All. Krishna & Anr. Vs. State of U.P. & Anr.
711

13. Paragraph nos. 12, 13,18, 20 and
21 of the judgment in the case of Amit
Kapoor (Supra), which are relevant on the
aforesaid issue, are being quoted herein
below:

"12. Section 397 of the Code
vests the court with the power to call for
and examine the records of an inferior
court for the purposes of satisfying itself as
to the legality and regularity of any
proceedings or order made in a case. The
object of this provision is to set right a
patent defect or an error of jurisdiction or
law. There has to be a well- founded error
and it may not be appropriate for the court
to scrutinize the orders, which upon the
face of it bears a token of careful
consideration
and appear
to
be
in
accordance with law. If one looks into the
various judgments of this Court, it emerges
that the revisional jurisdiction can be
invoked
where
the
decisions
under
challenge are grossly erroneous, there is
no compliance with the provisions of law,
the finding recorded is based on no
evidence, material evidence is ignored or
judicial discretion is exercised arbitrarily
or perversely. These are not exhaustive
classes, but are merely indicative. Each
case would have to be determined on its
own merits.

13. Another well-accepted norm
is that the revisional jurisdiction of the
higher court is a very limited one and
cannot be exercised in a routine manner.
One of the inbuilt restrictions is that it
should not be against an interim or
interlocutory order. The Court has to keep
in mind that the exercise of revisional
jurisdiction itself should not lead to
injustice ex facie. Where the Court is
dealing with the question as to whether the
charge has been framed properly and in
accordance with law in a given case, it may
be reluctant to interfere in exercise of its
revisional jurisdiction unless the case
substantially falls within the categories
aforestated. Even framing of charge is a
much advanced stage in the proceedings
under the Cr.P.C.

....

18. It may also be noticed that the
revisional jurisdiction exercised by the
High Court is in a way final and no inter
court remedy is available in such cases. Of
course, it may be subject to jurisdiction of
this court under Article of the Constitution
of India. Normally, a revisional jurisdiction
should be exercised on a question of law.
However, when factual appreciation is
involved, then it must find place in the class
of cases resulting in a perverse finding.
Basically, the power is required to be
exercised so that justice is done and there
is no abuse of power by the court. Merely
an apprehension or suspicion of the same
would not be a sufficient ground for
interference in such cases.

....

20. The jurisdiction of the Court
under Section 397 can be exercised so as to
examine
the
correctness,
legality
or
proprietary of an order passed by the trial
court or the inferior court, as the case may
be. Though the section does not specifically
use the expression 'prevent abuse of
process of any court or otherwise to secure
the ends of justice', the jurisdiction under
Section 397 is a very limited one. The
legality, proprietary or correctness of an
order passed by a court is the very
foundation of exercise of jurisdiction under
Section 397 but ultimately it also requires
justice to be done. The jurisdiction could be
712 INDIAN LAW REPORTS ALLAHABAD SERIES
exercised where there is palpable error,
non-compliance with the provisions of law,
the decision is completely erroneous or
where the judicial discretion is exercised
arbitrarily. On the other hand, Section 482
is based upon the maxim quando lex liquid
alicuiconcedit, conceder videtur id quo res
ipsa esse non protest, i.e., when the law
gives anything to anyone, it also gives all
those things without which the thing itself
would be unavoidable. The Section confers
very wide power on the Court to do justice
and to ensure that the process of the Court
is not permitted to be abused.

21. It may be somewhat necessary
to have a comparative examination of the
powers exercisable by the Court under
these two provisions. There may be some
overlapping between these two powers
because both are aimed at securing the
ends of justice and both have an element of
discretion. But, at the same time, inherent
power under Section 482 of the Code being
an extraordinary and residuary power, it is
inapplicable in regard to matters which are
specifically provided for under other
provisions of the Code. To put it simply,
normally the court may not invoke its
power under Section 482 of the Code where
a party could have availed of the remedy
available under Section 397 of the Code
itself. The inherent powers under Section
482 of the Code are of a wide magnitude
and are not as limited as the power under
Section 397. Section 482 can be invoked
where the order in question is neither an
interlocutory order within the meaning of
Section 397 (2) nor a final order in the
strict sense. Reference in this regard can be
made to Raj Kapoor & Ors. Vs. State of
Punjab & Ors. [AIR 1980 SC 258 : (1980)
1 SCC 43]}. In this very case, this Court
has observed that inherent power under
Section 482 may not be exercised if the bar
under Sections 397 (2) and 397 (3) applies,
except in extraordinary situations, to
prevent abuse of the process of the Court.
This itself shows the fine distinction
between the powers exercisable by the
Court under these two provisions. In this
very case, the Court also considered as to
whether the inherent powers of the High
Court under Section 482 stand repelled
when the revisional power under Section
397 overlaps. Rejecting the argument, the
Court said that the opening words of
Section 482 contradict this contention
because nothing in the Code, not even
Section 397, can affect the amplitude of the
inherent powers preserved in so many
terms by the language of Section 482.
There is no total ban on the exercise of
inherent powers where abuse of the process
of the Court or any other extraordinary
situation invites the court's jurisdiction.
The limitation is self-restraint, nothing
more. The distinction between a final and
interlocutory order is well known in law.
The orders which will be free from the bar
of Section 397 (2) would be the orders
which are not purely interlocutory but, at
the same time, are less than a final
disposal. They should be the orders which
do determine some right and still are not
finally rendering the Court functus officio
of the lis. The provisions of Section 482 are
pervasive. It should not subvert legal
interdicts written into the same Code but,
however, inherent powers of the Court
unquestionably have to be read and
construed as free of restriction."

13. Now this Court comes to examine
the legality or otherwise of the impugned
order only on the submissions made by the
learned counsel for the revisionists that the
trial court while passing the same has not
considered the plea of alibi of the
revisionists on the basis of oral, electronic
9 All. Krishna & Anr. Vs. State of U.P. & Anr.
713
as well as documentary evidence collected
by the Investigating Officer.

14. The power under Section 319 of
the Code is conferred on the court to ensure
that justice is done to the society by
bringing to book all those, who are guilty
of an offence. One of the aims and
purposes of the Criminal Justice System is
to maintain social order. It is necessary in
that context to ensure that no one who
appears to be guilty escapes a proper trial
in relation to that guilt. There is also a duty
to render justice to the victim of the
offence. It is in recognition of this that the
Code has specifically conferred a power in
the court to proceed against others not
arrayed as accused in the circumstances set
out by this Section. It is a salutary power
enabling the discharge of court's obligation
to the society to bring to book all those
guilty of a crime.

15. In Hardeep Singh's case, which
has heavily been relied upon by the learned
counsel for opposite party no.2 as well as
the learned counsel for the revisionists, the
Apex Court has observed as follows:

"12. Section 319 Cr.P.C. 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
Cr.P.C.

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 Cr.P.C.?

The submissions that were raised
before us covered a very wide canvas and
the learned counsel have taken us through
various provisions of Cr.P.C. and the
judgments that have been relied on for the
said purpose. The controversy centers
around the stage at which such powers can
be invoked by the court and the material on
the basis whereof such powers can be
exercised.

13. It would be necessary to put
on record that the power conferred under
Section 319 Cr.P.C. is only on the court.