# Krishna Kumar Rai Revisionist v. State of U.P. & another

- **Citation:** (2009) 1 ILRA 39
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-25
- **Case number:** Criminal Revision No. 3158 of 2005
- **Bench:** S.N.H. Zaidi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-rai-revisionist-v-state-of-u-p-another-41311
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 319Summoning of applicant-during trailMagistrate
after
examine
the
prosecution witness for offence under
Section
323/325/336/506
I.P.C.-next
day allowed the application summoning
applicant-challenged on ground of delay
as well as plea of "Alibi"-held-plea of
alibi can be decided only after giving
opportunity to the prosecution for cross
examination
during
trail-summoning
order perfectly justified-No inference
required.

Held: Para 10

So far as the involvement of the
revisionist in the incident is concerned, it
appears that the Investigating Officer
had accepted the plea of alibi that the
revisionist was not present on the place
of occurrence and was present in Patna
where he was posted as Assistant
Statistician in the Industry Department.
The Hon'ble Supreme Court in Rajendra
Singh Vs. State of U.P. and another
(2007) 7 SCC 378 has observed that the
burden to prove the plea of alibi lies
upon the accused. This could be done by
leading evidence in the trial and not by
filing some affidavits or statements
purported to have been recorded under
section 161 Cr.P.C. In such a case the
prosecution
would
have
got
an
opportunity
to
cross
examine
the
witness and demonstrate that their
testimony was not correct. The Hon'ble
Apex Court has also observed that the
statements recorded under section 161
Cr.P.C. by the Investigating Officer are
wholly inadmissible as it is not a
substantive piece of evidence and in
view of the proviso to sub-section (1) of
section 162 Cr.P.C. the statement can be
used only for the limited purpose of
contradicting the plea taken therein in
the manner laid down in the said
proviso. The alleged plea of alibi that the
revisionist was not present at the place
of occurrence and was present at Patna
cannot
be
taken
into
account
for
deciding the application moved under
section 319 Cr.P.C.
Case law discussed:
1993 SCC (Cr) 407, (2007) 4 SCC 773, (2007)
7 SCC 378

## Text

1 All] Krishna Kumar Rai V. State of U.P. and another
39
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.09.2008

BEFORE
THE HON'BLE S.N.H. ZAIDI, J.

Criminal Revision No. 3158 of 2005

Krishna Kumar Rai
 ...Revisionist
Versus
State of U.P. & another ...Opposite parties

Counsel for the Revisionist:
Sri Satish Trivedi
Sri P.K. Rai

Counsel for the Opposite Parties:
Sri Raj Kumar Khanna
A.G.A.

Code of Criminal Procedure-Section 319Summoning of applicant-during trailMagistrate
after
examine
the
prosecution witness for offence under
Section
323/325/336/506
I.P.C.-next
day allowed the application summoning
applicant-challenged on ground of delay
as well as plea of "Alibi"-held-plea of
alibi can be decided only after giving
opportunity to the prosecution for cross
examination
during
trail-summoning
order perfectly justified-No inference
required.

Held: Para 10

So far as the involvement of the
revisionist in the incident is concerned, it
appears that the Investigating Officer
had accepted the plea of alibi that the
revisionist was not present on the place
of occurrence and was present in Patna
where he was posted as Assistant
Statistician in the Industry Department.
The Hon'ble Supreme Court in Rajendra
Singh Vs. State of U.P. and another
(2007) 7 SCC 378 has observed that the
burden to prove the plea of alibi lies
upon the accused. This could be done by
leading evidence in the trial and not by
filing some affidavits or statements
purported to have been recorded under
section 161 Cr.P.C. In such a case the
prosecution
would
have
got
an
opportunity
to
cross
examine
the
witness and demonstrate that their
testimony was not correct. The Hon'ble
Apex Court has also observed that the
statements recorded under section 161
Cr.P.C. by the Investigating Officer are
wholly inadmissible as it is not a
substantive piece of evidence and in
view of the proviso to sub-section (1) of
section 162 Cr.P.C. the statement can be
used only for the limited purpose of
contradicting the plea taken therein in
the manner laid down in the said
proviso. The alleged plea of alibi that the
revisionist was not present at the place
of occurrence and was present at Patna
cannot
be
taken
into
account
for
deciding the application moved under
section 319 Cr.P.C.
Case law discussed:
1993 SCC (Cr) 407, (2007) 4 SCC 773, (2007)
7 SCC 378

(Delivered by Hon'ble S.N.H. Zaidi, J.)

1. This revision has been directed
against the order dated 19.3.2005 passed
by C.J.M. Ballia in Criminal Case
No.2336 of 1998 State Vs. Amit Rai and
others
whereby
the
application
of
opposite party no.2 under section 319
Cr.P.C. was allowed and the revisionist
was summoned for trial together with the
accused persons.

2. The facts which gave rise to this
revision, in brief, are that Opposite Party
no.2 Tap Narain had lodged a report on
2.8.98 at Police Station Narahi district
Ballia
against
4
persons,
including
revisionist Krishna Kumar Rai under
sections 328/336/504/506 I.P.C. The
police,
however,
after
investigation
submitted a charge sheet under sections
323/325/336/504/506 I.P.C. against 3
40 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
persons only excluding the name of the
revisionist.
The
Magistrate
took
cognizance and tried the case. In the trial,
after the examination of first informant as
P.W.1, an application under section 319
Cr.P.C. was moved by the prosecution to
summon
Krishna
Kumar
Rai.
An
objection against that application was
filed by the accused persons. The learned
trial Court (C.J.M. Ballia), after hearing
the parties, allowed the application and
ordered for summoning Krishna Kumar
Rai for trial under sections 323, 325, 336,
504, 506 I.P.C. together with the accused
persons by the impugned order. Feeling
aggrieved with the said order, Krishna
Kumar Rai has preferred this revision
before this Court.

3. I have heard the learned counsel
for opposite party no.2 and the learned
A.G.A. for the State and perused the
materials on record as none appeared for
the revisionist.

4. The impugned order has been
challenged,
according
to
memo
of
revision on the following ground:

5. It has been contended in the
memo of revision that there is absolutely
no legal evidence on record to connect the
revisionist with the alleged crime.

6. The Hon'ble Apex Court in
Kishun Singh Vs. State of Bihar 1993
SCC (Cr) 407 has observed in para 11
that:-

"11. On a plain reading of subsection (1) of section 319 Cr.P.C. there
could be no doubt that it must appear
from the evidence tendered in accordance
with any inquiry or trial that any person
not being the accused has committed any
offence for which he could be tried
together with the accused. This power can
be exercised only if it so appears from the
evidence at the trial and not otherwise."

7. In Y. Saraba Reddy Vs. Puthur
Rami Reddy and another (2007) 4 SCC
773 the Supreme Court has observed that
the word "evidence" in section 319
Cr.P.C. contemplates the evidence of
witness given in court.

8. The revisionist was named in the
F.I.R. along with other accused persons. It
was after the investigation that the
Investigating Officer had dropped the
name of the revisionist. In his statement
P.W. 1 has stated that Krishna Kumar Rai
had also arrived along with other accused
persons on the place of occurrence and all
of them abused his brother and pelted
stones and when his son Vijay Shanker
came to the rescue of his uncle then he
was hit with stones as a consequence
thereof he received severe injuries and
besides him Jang Bahadur and Rajiv
Kumar had also received injuries in the
incident. In view of this it cannot be
accepted that there was no evidence on
record to connect the revisionist.

9. It has also been contended that
during the investigation of the case, the
Investigating Officer did not find any
evidence against the revisionist and the
application was moved belatedly at the
middle of the trial. So far as the moving
of the application with delay is concerned,
it appears from Annexure 3 to the
affidavit of the revision that the statement
of P.W.1 was recorded on 18.9.2004 and
the application was moved on the same
date by the complainant Tap Narayan.
Therefore, there appears no delay on the
1 All] Krishna Kumar Rai V. State of U.P. and another
41
part of the prosecution to move the said
application.

10. So far as the involvement of the
revisionist in the incident is concerned, it
appears that the Investigating Officer had
accepted the plea of alibi that the
revisionist was not present on the place of
occurrence and was present in Patna
where he was posted as Assistant
Statistician in the Industry Department.
The Hon'ble Supreme Court in Rajendra
Singh Vs. State of U.P. and another
(2007) 7 SCC 378 has observed that the
burden to prove the plea of alibi lies upon
the accused. This could be done by
leading evidence in the trial and not by
filing some affidavits or statements
purported to have been recorded under
section 161 Cr.P.C. In such a case the
prosecution
would
have
got
an
opportunity to cross examine the witness
and demonstrate that their testimony was
not correct. The Hon'ble Apex Court has
also observed that the statements recorded
under section 161 Cr.P.C. by the
Investigating
Officer
are
wholly
inadmissible as it is not a substantive
piece of evidence and in view of the
proviso to sub-section (1) of section 162
Cr.P.C. the statement can be used only for
the limited purpose of contradicting the
plea taken therein in the manner laid
down in the said proviso. The alleged plea
of alibi that the revisionist was not present
at the place of occurrence and was present
at Patna cannot be taken into account for
deciding the application moved under
section 319 Cr.P.C.

11. Another contention raised in the
memo is that the F.I.R. was lodged by
opposite party no.2 Tap Narayan whereas
Satya Narayan Rai was examined before
the Magistrate as P.W. 1 and the
Magistrate without fixing the identity of
first informant Tap Narayan Rai and
witness Satya Narayan Rai as one and the
same person, has taken into consideration
the statement of P.W.1. This contention is
liable to be rejected because the learned
trial Magistrate has considered this
circumstance and after observing that the
signatures of Tap Narayan Rai had been
put on the statement given before the
court and the complainant had informed
that Tap Narayan and Satya Narayan was
the same person, there is nothing on
record to show that the person examined
before the Magistrate as P.W.1 was some
one else than the first informant Tap
Narayan
Rai.
This
contention
has
therefore no legs to stand.

12. The Hon'ble Apex Court in a
recent case of Y.Saraba Reddy Vs. Puthur
Rami Reddy and another (supra) has
observed that "the trial court has no doubt
jurisdiction to add any persons not being
the accused before it to face the trial along
with other accused person, if the court is
satisfied at any stage of the proceedings
on the evidence adduced that the persons
who have not been arrayed as accused
should face the trial. It is further evident
that such person even though had initially
been named in the F.I.R. as an accused,
but not charge sheeted can also be added
to face the trial. The trial court can take
such a step to add such persons as accused
only on the basis of evidence adduced
before it and not on the basis of materials
available in the charge sheet or the case
diary, because such materials contained in
the charge sheet or the case diary do not
constitute evidence." In the case of
Rajendra Singh (supra) the Hon'ble Apex
Court has observed that "the statements of
the witnesses under section 161 Cr.P.C.
being wholly inadmissible in evidence
42 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
could
not
at
all
be
taken
into
consideration." It is also observed that the
court need not be satisfied that he has
committed the offence but it should
appear to it that he has committed an
offence.
In
other
words
from
the
evidence, it need only appear that
someone else has also committed an
offence to exercise jurisdiction under
section 319 Cr.P.C. The court has further
observed that "it did not see any reason to
describe the power as an extraordinary
power or to confine the exercise of it only
in compelling reasons exist for taking
cognizance against any other person
against whom action has not been taken.
After all, the section only gives power to
the court to ensure that all those persons
involved in the commission of an offence
are tried together and none left out."

13. In view of what has been stated
above, there appears no illegality in the
impugned order of the Magistrate in
summoning the revisionist under section
319 Cr.P.C. to face the trial together with
other accused persons as it appears from
the evidence on record that the revisionist
was
present
and
involved
in
the
commission of the offence along with
other accused persons. This revision has,
therefore, no force and is accordingly
dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.12.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Application No. 33157 of
2008

Satish Kumar and others
...Applicants
Versus
State of U.P. & another ...Opposite parties

Counsel for the Applicants:
Sri Amit Daga

Counsel for the Opposite Parties:
Sri bhaskar Mali
A.G.A.

Code of Criminal Procedure-Section 482Quashing
of
Criminal
Proceedingmatrimonial
dispute-offence
under
section 498A, 323, 504, 506 IPC and 3⁄4
D.P. Act-parties settled their dispute out
of Court-even whole life maintenance
given and accepted by the respondent in
counter
affidavit-held-continuance
of
proceeding amounts to abuse of the
process of Court-proceeding quashed.

Held: Para 9

In view of the discussion made hereinabove, I am of the considered opinion
that it would be an abuse of the process
of the Court, if the criminal proceeding of
case no. 950 of 2007 (State Vs. Satish
Kumar and others) under section 498-A,
323, 504, 506 I.P.C. and 3/4 D.P. Act
arising out of crime no. 527 of 2005, P.S.
Vijay Nagar, Ghaziabad pending in the
Court of Addl. Chief Judicial Magistrate,
Court No. 2, Ghaziabad is allowed to
continue. Therefore, to do the complete
justice, the proceedings of the criminal
case should be quashed by this Court in
its inherent jurisdiction under section
482 Cr.P.C.