# Mishri Lal Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 263
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-04
- **Case number:** Criminal Revision No. 3260 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mishri-lal-revisionist-v-state-of-u-p-anr-46500
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 - Revision -
Indian Penal Code, 1860 - Sections 307, 504 - a
person whose name does not appear even in
the FIR or in the charge-sheet or whose name
appears in the FIR and not in the charge-sheet,
can still be summoned by the court provided
the conditions under the section stand fulfilled.
(Para - 7 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 319 - Power to
proceed against other persons appearing to be
guilty of ofence - discretionary and an extraordinary power - doctrine judex damnatur cum
nocens absolvitur (Judge is condemned when
guilty is acquitted) - Section 319 CrPC allows
the court to proceed against any person who is
not an accused in a case before it..(Para - 3)

Revisionist named in F.I.R. - assigned a role in the
incident - testimony of P.W.-1 and P.W.-2 - indicative
of the complicity of the revisionist - present at spot -
licensed weapon of the revisionist used by principal
accused for causing firearm injuries - court below
summoned revisionist under section 319 Cr.P.C. - on
an application moved by opposite party no.2 - hence
revision.

HELD:-The power under Section 319 of the Code to
summon even those persons who are not named in
264 INDIAN LAW REPORTS ALLAHABAD SERIES
the charge-sheet to appear and face trial, being
unquestionable and the object of the provision being
not to allow a person who deserves to be tried to go
scot-free by being not arraigned in the trial inspite of
possibility of his complicity which can be gathered
from the evidence during the course of trial, the order
passed under Section 319 of the Code summoning the
revisionist does not contain any material error so as
to warrant inference. (Para - 20)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

## Text

11 All. Mishri Lal Vs. State of U.P. & Anr.
263
cases where a man and woman have been living
together as husband and wife for a reasonably
long period of time, and strict proof of marriage
should not be a pre-condition for maintenance
under Section 125 of the Cr.P.C., so as to fulfil
the true spirit and essence of the beneficial
provision of maintenance under Section 125.We
also believe that such an interpretation would be
a just application of the principles enshrined in
the preamble to our Constitution, namely, social
justice and upholding the dignity of the
individual."

31. In the case of Kamla and others Vs.
M.R. Mehar reported in 2019 (2) SCC 491 the
Hon'ble Apex Court has gone to the extent that
long cohabitation between woman and man
leads to presumption of marriage entitling
maintenance for woman and children born to
them.

32. Hence it can be safely said that the
grant of a maintenance is beneficial legislation
for the purposes of granting benefit tot he
dependent, who are on the verge of the
starvation and who have been meted with a
treatment, which she was never intended to be
given.

33. Further no other point has been raised
by the learned counsel for the revisionist.

34. Looking in the totality of the matter,
this Court finds that the present case is not a fit
case, wherein this Court may exercise its
jurisdiction under Section 397/401 CrPC while
setting aside the order dated 27.10.2021, hence
the present criminal revision is liable to be
dismissed.

35. The revision is accordingly dismissed.

36. No order as to cost.
----------
(2021)12ILR A263
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.12.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Criminal Revision No. 3260 of 2021

Mishri Lal ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Kamal Dev Rai

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 - Revision -
Indian Penal Code, 1860 - Sections 307, 504 - a
person whose name does not appear even in
the FIR or in the charge-sheet or whose name
appears in the FIR and not in the charge-sheet,
can still be summoned by the court provided
the conditions under the section stand fulfilled.
(Para - 7 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 319 - Power to
proceed against other persons appearing to be
guilty of ofence - discretionary and an extraordinary power - doctrine judex damnatur cum
nocens absolvitur (Judge is condemned when
guilty is acquitted) - Section 319 CrPC allows
the court to proceed against any person who is
not an accused in a case before it..(Para - 3)

Revisionist named in F.I.R. - assigned a role in the
incident - testimony of P.W.-1 and P.W.-2 - indicative
of the complicity of the revisionist - present at spot -
licensed weapon of the revisionist used by principal
accused for causing firearm injuries - court below
summoned revisionist under section 319 Cr.P.C. - on
an application moved by opposite party no.2 - hence
revision.

HELD:-The power under Section 319 of the Code to
summon even those persons who are not named in
264 INDIAN LAW REPORTS ALLAHABAD SERIES
the charge-sheet to appear and face trial, being
unquestionable and the object of the provision being
not to allow a person who deserves to be tried to go
scot-free by being not arraigned in the trial inspite of
possibility of his complicity which can be gathered
from the evidence during the course of trial, the order
passed under Section 319 of the Code summoning the
revisionist does not contain any material error so as
to warrant inference. (Para - 20)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

1. Hardeep Singh & ors. Vs St. of Punj., (2014) 3
SCC 92

2. S. Mohammed Ispahani Vs Yogendra Chandak &
ors., (2017) 16 SCC 226

3. Rajesh & ors.Vs St. of Har., (2019) 6 SCC 368

4. Saeeda Khatoon Arshi Vs St. of U.P. & anr., (2020)
2 SCC 323

5. Adesh Tyagi Vs St. of U.P. & anr., 2021 (117) ACC
484

6. Upendra @ Mohit Vs St. of U.P. & anr., Criminal
Revision no. 1981 of 2021

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

1. Heard Sri Kamal Dev Rai, learned
counsel for the applicant and Sri Arvind
Kumar,
learned
Additional
Government
Advocate appearing for the State-opposite
party.

2. The present criminal revision has been
filed seeking to set aside the judgement and
order dated 17.11.2021 passed by Additional
Sessions Judge, Court No. 1, Mainpuri in
Session Trial No. 316 of 2014 (State vs. Anoj
Kumar), under Sections 307, 504 I.P.C.,
Police
Station-Kishni,
District-Mainpuri,
arising out of Case Crime No. 266 of 2014, on
the application of the opposite party no.2 filed
under Section 319 of the Code of Criminal
Procedure, 19731.

3. Learned counsel for the revisionist has
sought to assail the order passed by the court
below by referring to the factual aspects of the
case to contend that the revisionist has been
falsely implicated in the criminal case. He has
submitted that the jurisdiction under Section
319 of the Code is to be exercised in an extraordinary situation where there is a strong
possibility of the conviction of the accused,
who is proposed to be summoned, and the
powers are not to be exercised in a routine
manner. It is further pointed out that the
Investigating Officer did not find any material
against the revisionist and no charge-sheet
having been submitted against him, there was
no further material on the basis of which the
trial
court
could
have
summoned
the
revisionist.

4. Learned Additional Government
Advocate-I has controverted the assertions
made by the counsel for the revisionist by
drawing attention to the fact that the
revisionist herein was named in the FIR and as
per the FIR version he was assigned a specific
role. Attention has been drawn to the fact that
the testimony of PW-1 and PW-2 during the
course of trial have pointed to the complicity
of the revisionist and his clear role in the
incident. It is also contended that the
testimony before the trial judge would have to
be given more weight than the report
submitted
by
the
Investigating
Officer
pursuant to the investigation.

5. The ambit and scope of the powers of
the Magistrate under Section 319 of the Code
were considered in the Constitution Bench
judgment of the Supreme Court in Hardeep
Singh and Others vs. State of Punjab2.
Referring to the object of the provision it was
held that the object of the provision is that the
real culprit should not get away unpunished and
11 All. Mishri Lal Vs. State of U.P. & Anr.
265
in a situation 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. It was
stated thus :-

"8.The constitutional mandate under
Articles 20 and 21 of the Constitution of India,
1950 provides a protective umbrella for the smooth
administration
of
justice
making
adequate
provisions to ensure a fair and efficacious trial so
that the accused does not get prejudiced after the
law has been put into motion to try him for the
offence but at the same time also gives equal
protection to victims and to society at large to
ensure that the guilty does not get away from the
clutches of law. For the empowerment of the
courts to ensure that the criminal administration of
justice works properly, the law was appropriately
codified and modified by the legislature under
CrPC indicating as to how the courts should
proceed in order to ultimately find out the truth so
that an innocent does not get punished but at the
same time, the guilty are brought to book under the
law. It is these ideals as enshrined under the
Constitution and our laws that have led to several
decisions, whereby innovating methods and
progressive tools have been forged to find out the
real truth and to ensure that the guilty does not go
unpunished.

9. The presumption of innocence is the
general law of the land as every man is
presumed to be innocent unless proven to be
guilty.
Alternatively,
certain
statutory
presumptions in relation to certain class of
offences have been raised against the accused
whereby the presumption of guilt prevails till the
accused discharges his burden upon an onus
being cast upon him under the law to prove
himself to be innocent. These competing
theories have been kept in mind by the
legislature. The entire effort, therefore, is not to
allow the real perpetrator of an offence to get
away unpunished. This is also a part of fair trial
and in our opinion, in order to achieve this very
end that the legislature thought of incorporating
provisions of Section 319 Code of Criminal
Procedure. It is with the said object in mind that
a constructive and purposive interpretation
should be adopted that advances the cause of
justice and does not dilute the intention of the
statute conferring powers on the court to carry
out the abovementioned avowed object and
purpose to try the person to the satisfaction of
the court as an accomplice in the commission of
the offence that is the subject matter of trial.

xx

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

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

xxx

17. Section 319 CrPC allows the court
to proceed against any person who is not an
accused in a case before it. Thus, the person
against whom summons are issued in exercise of
such powers, has to necessarily not be an
accused already facing trial. He can either be a
person named in Column 2 of the chargesheet
filed under Section 173 Code of Criminal
Procedure or a person whose name has been
disclosed in any material before the court that is
to be considered for the purpose of trying the
offence, but not investigated. He has to be a
person whose complicity may be indicated and
connected with the commission of the offence.

18.
The
legislature
cannot
be
presumed
to
have
imagined
all
the
266 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances and, therefore, it is the duty of the
court to give full effect to the words used by the
legislature so as to encompass any situation
which the court may have to tackle while
proceeding to try an offence and not allow a
person who deserves to be tried to go scot free
by being not arraigned in the trial in spite of
possibility of his complicity which can be
gathered from the documents presented by the
prosecution.

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

6. As regards the degree of satisfaction
required for invoking the powers under
Section 319 of the Code, it was held 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. It was
observed as follows :-

"105. Power under Section 319 Code
of Criminal Procedure is a discretionary and
an extra-ordinary power. It is to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. It is not
to be exercised because the Magistrate or the
Sessions Judge is of the opinion that some
other person may also be guilty of committing
that offence. Only where strong and cogent
evidence occurs against a person from the
evidence led before the court that such power
should be exercised and not in a casual and
cavalier manner.

106. Thus, we hold that though only a
prima facie case is to be established from the
evidence led before the court not necessarily
tested on the anvil of 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. In the absence of such satisfaction,
the court should refrain from exercising power
under Section 319 Code of Criminal Procedure.
In Section 319 Code of Criminal Procedure the
purpose of providing if "it appears from the
evidence that any person not being the accused
has committed any offence" is clear from the
words "for which such person could be tried
together with the accused." The words used are
not "for which such person could be convicted".
There is, therefore, no scope for the Court acting
under Section 319 Code of Criminal Procedure
to form any opinion as to the guilt of the
accused.

7. The question as to in what situations the
power under the section can be exercised in
respect of persons not named in the FIR or
named in the FIR, but not charge-sheeted or
discharged was also considered, and it was held
that a person whose name does not appear even
in the FIR or in the charge-sheet or whose name
appears in the FIR and not in the charge-sheet,
can still be summoned by the court provided the
conditions under the section stand fulfilled. It
was observed as follows :-

"111. Even the Constitution Bench in
Dharam Pal (CB) has held that the Sessions
Court can also exercise its original jurisdiction
and summon a person as an accused in case his
name appears in Column 2 of the chargesheet,
11 All. Mishri Lal Vs. State of U.P. & Anr.
267
once the case had been committed to it. It means
that a person whose name does not appear even
in the FIR or in the chargesheet or whose name
appears in the FIR and not in the main part of
the chargesheet but in Column 2 and has not
been summoned as an accused in exercise of the
powers under Section 193 Code of Criminal
Procedure can still be summoned by the court,
provided the court is satisfied that the conditions
provided in the said statutory provisions stand
fulfilled.

xxx

117.6 A person not named in the FIR
or a person though named in the FIR but has not
been chargesheeted or a person who has been
discharged can be summoned under Section 319
Code of Criminal Procedure provided from the
evidence it appears that such person can be tried
along with the accused already facing trial.
However, in so far as an accused who has been
discharged is concerned the requirement of
Sections 300 and 398 Code of Criminal
Procedure has to be complied with before he can
be summoned afresh. "

8. The word 'evidence' as used under
Section 319(1) of the Code was also considered
and it was held as follows :-

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

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

9. The principles with regard to exercise of
power by the court to summon an accused under
Section 319 of the Code were reiterated in S.
Mohammed Ispahani Vs. Yogendra Chandak
and others3, and it was held that the power
under Section 319 to summon even those
persons who are not named in the charge-sheet
to appear and face trial, is unquestionable. It was
observed thus :-

"28.Insofar as power of the Court
Under Section 319 of the Code of Criminal
Procedure, to summon even those persons who
are not named in the charge sheet to appear and
face
trial
is
concerned,
the
same
is
unquestionable. Section 319 of the Code of
Criminal Procedure, is meant to rope in even
those persons who were not implicated when the
charge sheet was filed but during the trial the
Court finds that sufficient evidence has come on
record to summon them and face the trial. In
Hardeep Singh's case, the Constitution Bench of
this Court has settled the law in this behalf with
authoritative pronouncement, thereby removing
the cobweb which had been created while
interpreting this provision earlier. As far as
object behind Section 319 of the Code of
Criminal Procedure, is concerned, the Court had
highlighted the same as under:

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

10. The power to proceed against persons
named in FIR with specific allegations against
them, but not charge-sheeted, was reiterated in
Rajesh and others Vs. State of Haryana,4 and
it was held that persons named in the FIR but
not implicated in charge-sheet can be summoned
to face trial, provided during the trial some
evidence surfaces against the proposed accused.

11. The exercise of powers under Section
319 of the Code for summoning an additional
accused again came up for consideration in
Saeeda Khatoon Arshi Vs. State of Uttar
Pradesh and another5 and it was held that it is
the duty of the court to give full effect to the
words used by the legislature so as to encompass
any situation which the court may have to tackle
while proceeding to try an offence and not allow
a person who deserves to be tried to go scot-free
by being not arraigned in the trial inspite of the
possibility of his complicity which can be
gathered from the documents presented by the
prosecution.

12. In the facts of the present case the court
below has taken note of the fact that the
revisionist was not only named in the F.I.R. but
he was also assigned a role in the incident. The
testimony of P.W.-1 and P.W.-2 being indicative
of the complicity of the revisionist have also
been referred and in particular their statements
that at the time of the incident, the revisionist
was present at the spot and it was the licensed
weapon of the revisionist which was used by the
principal accused for causing the firearm
injuries. Upon considering the settled legal
position with regard to exercise of powers under
Section 319, the court below has passed the
order summoning the revisionist.

13. The FIR version as also the evidence
before the trial judge being indicative of the
complicity of the revisionist, though not
arraigned as an accused in the charge-sheet, it
was open to the trial court to form a view that
the revisionist be tried together with the other
accused, and for the said purpose summon the
revisionist in exercise of powers under Section
319 of the Code.

14. The broad principles which have been
laid down for exercise of powers under Section
319 of the Code underline the object of the
enactment that the real perpetrator of the offence
should not get away unpunished and in a
situation where the investigating agency for any
reason does not array any culprit as an accused
the court would not be powerless in calling the
accused to face trial; rather it would be duty of
the court to do justice by punishing the real
culprit.

15. The test which has been laid down with
regard to the degree of satisfaction required for
invoking the powers under Section 319 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.

16. The power to proceed under Section
319 has also been held to be exerciseable in
respect of persons though named in the FIR but
not charge-sheeted provided the court is satisfied
that the conditions provided under the section
stand fulfilled.

17. Section 319 (1) of the Code envisages
that 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.
11 All. Chand Patrakar & Anr. Vs. State of U.P. & Anr.
269

18. The word evidence used under Section
319 (1) of the Code has been held to be
understood to refer to the evidence recorded
during trial, and also any material that has been
received by the court after cognizance is taken
and before the trial commences, to be utilized
for corroboration and to support the evidence
recorded by the court.

19. The evidence recorded by the court
during trial is thus to be accorded primacy and
for the purpose of exercise of power under
Section 319 of the Code would have to be given
weight over the material which was collected
during
the
course
of
investigation.
The
contention which has been sought to be raised
placing reliance upon the material collected by
the investigating officer during the course of
investigation, for the purpose of exercise of
powers under Section 319 of the Code, thus
cannot be accepted.

20. The power under Section 319 of the
Code to summon even those persons who are not
named in the charge-sheet to appear and face
trial, being unquestionable and the object of the
provision being not to allow a person who
deserves to be tried to go scot-free by being not
arraigned in the trial inspite of possibility of his
complicity which can be gathered from the
evidence during the course of trial, the order
passed under Section 319 of the Code
summoning the revisionist does not contain any
material error so as to warrant inference.

21. The aforementioned legal position has
been considered in detail in recent decisions of
this Court in Adesh Tyagi vs. State of U.P. and
Another6 and Upendra @ Mohit vs. State of
U.P. and Another7.

22. Counsel for the applicant at this stage
submits
that
he
does
not
dispute
the
aforementioned legal position with regard to the
exercise of powers under Section 319 of the
Code and states that the applicant would submit
to the jurisdiction of the court below and seek
bail.

23. It goes without saying that in case any
such application is moved, the court below
would be expected to dispose it of in accordance
with the settled principles of law.

24. Subject to the aforesaid observation,
the revision stands dismissed.
----------
(2021)12ILR A269
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 3280 of 2021

Chand Patrakar & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Ajay Kumar Mishra

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 - Revision -
Section 311 - Power to summon material
witness, or examine person -power conferred
under Section 311 should be invoked by the
court only to meet the ends of justice - Power
is to be exercised only for strong and valid
reasons and it should be exercised with great
caution and circumspection - power under this
provision shall not be exercised if the court is
of the view that the application has been filed
as an abuse of the process of law - Prevention
of Corruption Act, 1988 - Section 8/9 .(Para -23
)

Application preferred by revisionist - under Section
311 of the Cr.P.C. - for re-examination of PW1