# Manidhar Mishra & Anr. /Revisionists v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 426
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-25
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manidhar-mishra-anr-revisionists-v-state-of-u-p-anr-44774
- **Pages:** 7

## Headnote

A. Criminal Law -Code of Criminal
Procedure,1973 - Section 319 - Degree
of satisfaction - Standard of proof
employed for summoning a person as an
accused under Section 319 is higher than
the standard of proof employed for
framing a charge against an accused -
What is, necessary for the Court is to
arrive at a satisfaction that the evidence
adduced on behalf of the prosecution, if
unrebutted, may lead to the conviction
of a person sought to be added as the
accused in the case.

B. Criminal Law -Code of Criminal
Procedure,1973
-
Section
319
-
'Evidence' - Examination in-chief of
prosecution
witnesses
is
to
be
considered and there is no need to wait
for cross-examination. (Para 14)

Held: - In the testimony of PW-2, specific role
attributed to two accused persons Ankur
Mishra and Manidhar Mishra - Trial court
discussed the statement of PW-2 and PW-3
and
found
sufficient
evidence
showing
involvement of and for proceeding against the
revisionists Ankur Mishra and Manidhar Mishra
-Two eyewitnesses supported the prosecution
version and stated the involvement revisionists
in commission of the offence and if the same
remains unrebutted, the prosecution will
certainly succeed.
 (Para 17, 19)

Criminal revision dismissed (E-5)
List of Cases Cited: -

## Text

426 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)11ILR A426

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.09.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Revision No. 3450 OF 2019

Manidhar Mishra & Anr.
 ...Applicants/Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Rajiv Lochan Shukla, Sri Ravikant
Shukla

Counsel for the Opposite Party:
A.G.A., Sri Pawan Kumar Mishra, Sri I.K.
Chaturvedi

A. Criminal Law -Code of Criminal
Procedure,1973 - Section 319 - Degree
of satisfaction - Standard of proof
employed for summoning a person as an
accused under Section 319 is higher than
the standard of proof employed for
framing a charge against an accused -
What is, necessary for the Court is to
arrive at a satisfaction that the evidence
adduced on behalf of the prosecution, if
unrebutted, may lead to the conviction
of a person sought to be added as the
accused in the case.

B. Criminal Law -Code of Criminal
Procedure,1973
-
Section
319
-
'Evidence' - Examination in-chief of
prosecution
witnesses
is
to
be
considered and there is no need to wait
for cross-examination. (Para 14)

Held: - In the testimony of PW-2, specific role
attributed to two accused persons Ankur
Mishra and Manidhar Mishra - Trial court
discussed the statement of PW-2 and PW-3
and
found
sufficient
evidence
showing
involvement of and for proceeding against the
revisionists Ankur Mishra and Manidhar Mishra
-Two eyewitnesses supported the prosecution
version and stated the involvement revisionists
in commission of the offence and if the same
remains unrebutted, the prosecution will
certainly succeed.
 (Para 17, 19)

Criminal revision dismissed (E-5)
List of Cases Cited: -

1. Sunil Kumar Gupta & ors. Vs St. of U.P. &
ors 2019 (108) ACC 29.

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

3.Sarabjit Singh & anr. Vs St. of Punjab & anr.
(2009) 16 SCC 46.

4. Babubhai Bhimabhai Bokhiria Vs St. of Guj.
(2014) 5 SCC 568.

5. Brijendra Singh Vs St. of Raj. AIR 2017 SC
2839.

6. Labhuji Amaratji Thakor Vs St. of Guj. AIR
2019 SC 734.

7. Rakesh Vs St. of Haryana AIR 2019 SC 2168

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Rajiv Lochan Shukla,
learned Senior counsel assisted by Sri
Ravi Kant Shukla, appearing for the
revisionists, Sri I.K. Chaturvedi, learned
Senior counsel assisted by Sri Pawan
Kumar Mishra, appearing for the opposite
party no.2, the learned A.G.A. for the
State and also perused the record.

2. This revision has been filed by
the revisionist, Manidhar Mishra and
Gangadhar Mishra @ Ankur Mishra
against the judgement and order dated
05.09.2019 passed by learned Sessions
3 All. Manidhar Mishra & Anr. Vs. State of U.P. & Anr.
427
Judge, Basti on the application ( Paper
No.77Kha ) moved by opposite party no.2
Pradeep Kumar Tiwari in S.T. No. 211 of
2016 ( State Vs. Roop Narayan Giri ) in
Case Crime No. 0568 of 2016 under
section
302
I.P.C.,
Police
Station
Captainganj, District Basti.

3. Submission of the learned counsel
for the revisionist is that initially an
application was moved from the side of
prosecution under section 319 Cr.P.C. and
the learned Sessions Judge, Basti passed
an order dated 28.10.2017 by which he
rejected the application.

4. Against that order, a revision
being Revision No. 236 of 2018 was filed
before this Court and vide order dated
08.07.2019, that revision was partly
allowed in respect of two accused persons
Ankur Mishra and Manidhar Mishra
remanding the file with the direction that
in respect of both of them, learned trial
court shall reconsider and re-visit as to
whether Ankur Mishra and Manidhar
Mishra may be summoned in exercise of
power
under
section
319
Criminal
Procedure Code in the light of the
guidelines provided in the case of
Hardeep Singh Vs. State of Punjab
(2014) 3 SCC 92 and shall pass fresh
order in respect of summoning of these
two accused persons. For remaining
revisionists, revision was rejected finding
no illegality and infirmity in the order of
the learned trial court in respect of them.
Therefore, matter remained pending in
respect of Ankur Mishra and Manidhar
Mishra and the learned Sessions Judge,
Basti was expected to pass fresh order.
Subsequently, learned Sessions Judge,
Basti, after hearing both the sides, passed
the
impugned
order by which he
summoned the accused, Ankur Mishra
and Manidhar Mishra for the offence
under Section 302 /34 I.P.C. under
Section 319 Cr.P.C.

5. Aggrieved by this order, the
present revision has been filed by the
revisionists, Ankur Mishra and Manidhar
Mishra challenging the impugned order
on the basis that the learned trial court,
after the case was remanded back to him,
did not consider the directions given in
the order of this Court and without
considering
the
guidelines
of
the
aforesaid judgements, impugned order
was passed. It was not considered that
Investigation Officer did not submit
charge-sheet against them. Impugned
order is based on the testimony of P.W.2,
Ashutosh
Tiwari.
During
trial
the
statement
of
P.W.1Pradeep
Kumar
Tiwari, the applicant/ complainant was
also recorded but the same has not been
considered while passing the said order.
The testimony of P.W.1 and P.W.2 were
inconsistent and as such was not reliable
at all. It appears that they are not even eye
witnesses of the case and the complainant
has implicated all the family members of
accused persons. Post-mortem report also
did not support the prosecution version
and only three injuries were found on the
body of the deceased, hence, order is not
sustainable in the eye of law and deserves
to be quashed. It has been further
submitted that the revisionist no.1 is
employed
as
Government
Servant
whereas revisionist no.2 is in search of
job.

6. it has been further submitted that
in the judgement passed by this Court in
the aforesaid Revision, an observation
was made by this Court that 'so far as the
complicity of Ankur Mishra, Manidhar
Mishra are concerned appears to be
428 INDIAN LAW REPORTS ALLAHABAD SERIES
specific role has been attributed to them
in the testimony of PW-2'. For remaining
persons, this Court absolutely did not find
any case and to that effect observation has
been incorporated in the judgement of this
Court. The learned trial court passed the
impugned order on the basis of aforesaid
observation which is not justified in view
of the judgement of this Court in the
earlier Revision.

7. Submission of the learned counsel
for the revisionists is of two folds; firstly,
that the guidelines which were required to
be considered by the learned trial court in
view of the order of this Court was not at
all considered while summoning the
revisionists and secondly, learned trial
court did not consider the statement of
witnesses in detail as directed by this
Court.

8. It is pertinent to mention that
initially the F.I.R. was lodged naming 8
accused persons. After investigation,
charge-sheet was filed only against one
Roop Narayan Giri and other 7 accused
persons were given clean chit in the
matter.

9. Since copy of the CD in which
Investigation Officer has recorded the
statements of witnesses is not on record,
therefore, it is not possible to take some
assistance in order to test as to on what
ground, Investigation Officer did not
submit
charge-sheet
against
the
revisionists/ accused persons. Therefore, I
have to confine to the statement which
was recorded during trial. Before the
learned trial court, P.W.2 has been
examined. It is admitted fact from both
the sides that P.W.1 is not an eye witness
and he made statement on the basis of
information given to him on mobile and
on receiving information, he came to
lodge F.I.R. P.W. 2 has been examined as
eye witness before the trial court and he
has given his statement before the trial
court in which involvement of the
accused persons/revisionists has been
clearly stated. From the statement of
P.W.2, it appears that he has specifically
stated that at the time of the incident,
accused Roop Narain Giri was carrying
sabbal and accused Ankur Mishra was
also carrying sabbal whereas accused
Manidhar Mishra was armed with knife
and lathi. The witness has stated that
when they started beating his grandfather, he saw the said incident himself
and with him, his grand-mother also saw
the incident. The learned trial court has
further referred to the statement of PW-3
Smt Ketaki Tiwari who has stated that she
saw her husband surrounded by the
accused persons on his cot. On noise, her
grand son told her that her husband was
being beaten. She saw her husband was
being beaten by accused Roopnarain Giri
and Ankur Misra hitting her husband by
sabbal and others were carrying lathi and
have surrounded him. Seeing that all the
accused persons surrounded her husband
and beating him, she cried and fainted.
Thus, the learned trial court found that
both PW-2 and PW-3 are eyewitnesses
and have stated that accused Roop
Narayan Giri and Ankur Mishra were
carrying
sabbal
and
other
accused
Manidhar Misra with lathi were striking
the deceased. Thus, the learned trial court
found enough evidence against the
accused
persons
showing
their
involvement
in
the
commission
of
offence.

10. Learned counsel for the
revisionists has referred to the judgement
rendered in the Case of Sunil Kumar
3 All. Manidhar Mishra & Anr. Vs. State of U.P. & Anr.
429
Gupta and others Vs. State of U.P. and
others, [2019 (108) ACC 29), in which
Supreme Court visited the law on the
point of Section 319 Cr.P.C., that refers to
the judgement of Hardeep Singh Vs.
State of Punjab, (2014) 3 SCC 92 and
Sarabjit Singh and another Vs. State of
Punjab and another, (2009) 16 SCC 46
and has concluded that for summoning
the accused under section 319 Cr.P.C.
much
stronger
evidence
than mere
probability of complicity of such persons
is required and it should appear that if
such evidence remains un-rebutted, the
trial would result in conviction. It is also
to be seen as to whether impugned order
which has been passed in consonance
with the said guidelines and the law laid
down.

11. Section 319 Cr.P.C. reads as
under :-

"319. Power to proceed against
other persons appearing 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 a fresh,
and the 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."

12. In Hardeep Singh (supra), the
Constitution Bench has settled the law in
respect
of
Section
319,
Criminal
Procedure Code. that the standard of
proof employed for summoning a person
as an accused under Section 319 is higher
than the standard of proof employed for
framing a charge against an accused. The
Supreme Court observed for the purpose
of Section 319 as under:

".....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 the conviction of a person
sought to be added as the accused in the
case."

Regarding
the
degree
of
satisfaction necessary for framing a
charge, the Court observed:

"However, there is a series of
cases wherein this court while dealing
with the provisions of Sections 227, 228,
239, 240, 241, 242 and 245 of the
Cr.P.C., has consistently held that the
court at the stage of framing of the charge
has to apply its mind to the question
whether or not there is any ground for
430 INDIAN LAW REPORTS ALLAHABAD SERIES
presuming the commission of an offence
by the accused.

The court has to see as to
whether the material brought on record
reasonably connect the accused with the
offence. Nothing more is required to be
enquired into. While dealing with the
aforesaid provisions, the test of prima
facie case is to be applied. The court has
to find out whether the materials offered
by the prosecution to be adduced as
evidence are sufficient for the court to
proceed against the accused further".

The Court concluded as below:

"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 cross-examination, it requires
much stronger evidence than mere
probability of his complicity. The test that
has to be applied is one which is more
than prima facie case as exercised at the
time of framing of charge, but short of
satisfaction to an extent that the evidence,
if goes unrebutted, would lead to
conviction......"

13. In Babubhai Bhimabhai
Bokhiria vs. State of Gujarat, 2014 (5)
SCC 568, the aforesaid view of Hardeep
Singh (supra) has been further quoted
with approval and the Supreme Court has
held as under :-

"Section 319 of the Code
confers power on the trial court to find
out whether a person who ought to have
been
added
as
an
accused
has
erroneously
been
omitted
or
has
deliberately
been
excluded
by
the
investigating agency and that satisfaction
has to be arrived at on the basis of the
evidence so led during the trial. On the
degree of satisfaction for invoking power
under Section 319 of the Code, this Court
observed that though the test of prima
facie case being made out is same as that
when the cognizance of the offence is
taken and process issued, the degree of
satisfaction under Section 319 of the
Code is much higher."

14. In Brijendra Singh vs State of
Rajasthan, AIR 2017 SC 2839, the
supreme court discussed the meaning of
'evidence' in section 319, Criminal
Procedure Code and expressed the view
that
the
examination-in-chief
of
prosecution witnesses is to be considered
and there is no need to wait for crossexamination. The prima facie opinion and
satisfaction with regards to complicity of
the person in commission of the offence
is not mere probability of involvement. It
requires stronger and cogent evidence. In
this case, the IO investigated the offence
and did not submit charge-sheet for the
reason that at the time of incident the
appellant was at a distance of 175 km
from the place of occurrence. The
supreme court set aside the summoning
order and observed that no doubt, the trial
court can summon the person on the basis
of the statement of witnesses given during
trial.
However,
where
plethora
of
evidence was collected by the IO
including
documentary
evidence
indicating his plea of alibi to be correct,
the trial court is duty bound to consider
the evidence so collected by IO while
forming
opinion
and
recording
satisfaction regarding prima facie case for
the purpose of section 319 of the Criminal
Procedure Code.

15. The view expressed in Hardeep
Singh (supra) has been further reiterated
in Labhuji Amaratji Thakor vs State of
Gujarat, AIR 2019 SC 734 and has laid
3 All. Manidhar Mishra & Anr. Vs. State of U.P. & Anr.
431
down that 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. The
Supreme Court set aside the order of the
High Court and up held the order of Court
below rejecting the application under
section 319.

16. In Rakesh vs State of Haryana,
AIR 2019 SC 2168, It appears that the
facts of the case was quite similar in the
case before the Supreme Court as in that
case also the name of the persons was not
mentioned in the FIR and when the
statement under section 161 Cr.P.C. was
recorded by the Investigating Officer, the
name of these persons did not find
mention.
The
supreme
court
again
considered the ambit of section 319 and
laid down as follows:

"Thus, we hold that though only
a prima facie case is to be established
from the evidence led before the court,
not necessarily tested on the anvil of
cross-examination,
it
requires
much
stronger evidence than mere probability
of his complicity. The test that has to be
applied is one which is more than prima
facie case as exercised at the time of
framing charge, but short of satisfaction
to an extent that the evidence, if goes
unrebutted, would lead to conviction."

17. What is important is that the
learned trial court discussed the statement
of PW-2 and PW-3 and found sufficient
evidence showing involvement of and for
proceeding against the revisionists Ankur
Mishra and Manidhar Mishra for the
offence under Section 302/34 IPC. After
reaching this conclusion, the learned trial
court took support in favour of the
conclusion by referring to the observation
of this court in the judgement of earlier
Revision in which this court has observed
to the effect that in the testimony of PW2, specific role has been attributed to two
accused persons Ankur Mishra and
Manidhar Mishra. I do not find anything
wrong in it and it cannot be said that the
learned trial court has summoned the
revisionists only on the basis of the
aforesaid observation of this Court.

18. So far as submission of the
learned counsel for the revisionists with
regard to non mentioning of judgement of
the Supreme Court is concerned which
has been pointed out in the earlier
judgement of this Court in the said
revision, of course, it appears to be
missing, but, this revision is not to be
decided on this basis or on the basis why
the learned trial court did not mention or
discuss those references.

19. In the situation like this, where
two
eyewitnesses
supported
the
prosecution version and have stated the
involvement of these two accused persons
in commission of the offence and if the
same remains unrebutted, the prosecution
will
certainly
succeed,
and
also
considering the fact that these two
accused persons/revisionists were named
in the F.I.R., I find that there remains no
reason as to why and how otherwise
conclusion could be reached by the
learned trial court with regard to these
two accused person.

20. In view of the above, I am of the
view that there is no substance in the
arguments of the learned counsel to the
revisionists and the impugned order does
not suffer from any illegality, infirmity or
432 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdictional error. Revision has no force
and is liable to be dismissed.

21. The revision is accordingly,
dismissed.
----------

(2019)11ILR A432

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Revision No. 3546 of 2019

Smt. Sanjeeda @ Moti & Ors.
 ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Atul Kumar

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

A. Criminal Law -Code of Criminal
Procedure,1973 - Section 319 - Degree
of satisfaction - Standard of proof
employed for summoning a person as an
accused under Section 319 is higher than
the standard of proof employed for
framing a charge against an accused.

B. Criminal Law- Code of Criminal
Procedure,1973
-
Section
319
-
'Evidence' - Examination in-chief of
prosecution
witnesses
is
to
be
considered and there is no need to wait
for cross-examination

Revisionist name occurred in the statements
of P.W. - 1 Murtaza, who lodged F.I.R. and of
P.W.-2 - Mustafa who was the eyewitness and
has seen the occurrence also stated the same
thing in his statement. After completing
examination-in-chief
of
P.W.-2
,accused
persons /revisionists were summoned under
section 319 Cr.P.C. Held - Requirement of
section 319 Cr.P.C. was established by
statement of two witnesses. Further All these
accused persons are named accused persons
in the FIR (Para 19, 20)

Criminal Revision dismissed (E-5)
List of Cases Cited: -
1. Hardeep Singh Vs St. of Punjab (2014) 3
SCC 92.
2. Babubhai Bhimabhai Bokhiria Vs St. of Guj.
(2014) 5 SCC 568.
3. Brijendra Singh Vs St. of Raj. AIR 2017 SC 2839.
4.Labhuji Amaratji Thakor Vs St. of Guj. AIR
2019 SC 734
5. Rakesh Vs St. of Haryana AIR 2019 SC 2168

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Vakalatnama filed by Shri Sushil
Kumar Pandey, Advocate on behalf of the
informant is taken on record.

2. Heard Shri Atul Kumar, learned
counsel for the revisionist, Shri Sushil
Kumar Pandey, learned counsel for the
informant, learned A.G.A. for the State
and perused the record. .

3. This revision has been filed
against the order dated 21.08.2019 passed
by the Additional District Judge, Court
no. 9, Muzaffar Nagar in S.T. No. 1291 of
2016 (State Vs. Mohsin), arising out of
Case Crime No. 480 of 2016, under
sections 147, 148, 302 read with section
149, 506 I.P.C., P.S. Charthawal, District
Muzaffar Nagar by which the revisionist
Smt.
Sanjeeda
@
Moti,
Gulfaraj,