# Mohd. Akib Revisionist v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 107
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Criminal Revision No. 5359 of 2022
- **Bench:** Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-akib-revisionist-v-state-of-u-p-anr-50825
- **Pages:** 6

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision, Indian Penal Code, 1860 -
Section
326-A
-
Voluntarily
causing
grievous hurt by use of acid, etc. - entire
purpose of criminal trial is to go to the
truth of the matter - Once there is
satisfaction of the Court that there is
evidence before it that an accused has
committed an offence, the court can
proceed against such a person - At the
stage of summoning an accused there has
to be a prima facie satisfaction of the
court. (Para -18,)

(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 319 - scope and
ambit - 'doctrine judex damnatur cum
nocens absolvitur (Judge is condemned
when guilty is acquitted) - 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 inestigating 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. (Para - 18,19,20)

Accused named in FIR - name was dropped
during investigation - only co-accused was
charge sheeted under Section 326A IPC - Court
below not taken note of fact - respondent No. 2
named in FIR and primarily responsible for
throwing acid on PW-2 (injured) - completely
lost an eye - PW-1 (eye witness) and PW-2
(injured
witness)
testimony
indicates
respondent's complicity - application moved by
revisionist/informant under Section 319 Cr.P.C. -
rejected - hence revision. (Para - 2,16,17)

HELD: -Trial Court directed to reconsider
matter afresh and pass appropriate orders in the
light of observations made Hon'ble Apex Court's
judgments (Hardeep Singh Vs St. of Punj. &
ors). (Para -21)

Revision disposed of. (E-7)

List of Cases cited:

## Text

1 All. Mohd. Akib Vs. State of U.P. & Anr.
107
(2024) 1 ILRA 107
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Revision No. 5359 of 2022

Mohd. Akib ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri S.S. Rajput

Counsel for the Opposite Parties:
G.A., Ms. Aishwarya Saxena, Sri Ajit Kumar,
Sri Ram Behari Saxena

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision, Indian Penal Code, 1860 -
Section
326-A
-
Voluntarily
causing
grievous hurt by use of acid, etc. - entire
purpose of criminal trial is to go to the
truth of the matter - Once there is
satisfaction of the Court that there is
evidence before it that an accused has
committed an offence, the court can
proceed against such a person - At the
stage of summoning an accused there has
to be a prima facie satisfaction of the
court. (Para -18,)

(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 319 - scope and
ambit - 'doctrine judex damnatur cum
nocens absolvitur (Judge is condemned
when guilty is acquitted) - 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 inestigating 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. (Para - 18,19,20)

Accused named in FIR - name was dropped
during investigation - only co-accused was
charge sheeted under Section 326A IPC - Court
below not taken note of fact - respondent No. 2
named in FIR and primarily responsible for
throwing acid on PW-2 (injured) - completely
lost an eye - PW-1 (eye witness) and PW-2
(injured
witness)
testimony
indicates
respondent's complicity - application moved by
revisionist/informant under Section 319 Cr.P.C. -
rejected - hence revision. (Para - 2,16,17)

HELD: -Trial Court directed to reconsider
matter afresh and pass appropriate orders in the
light of observations made Hon'ble Apex Court's
judgments (Hardeep Singh Vs St. of Punj. &
ors). (Para -21)

Revision disposed of. (E-7)

List of Cases cited:

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

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Sri S.S. Rajput, learned
counsel for the revisionist, learned AGA for
the State and Sri Ram Behari Saxena,
learned counsel for opposite party no. 2.

2. The present criminal revision has
been filed by the revisionist against the
order dated 11.11.2022 passed by the
learned Additional Session Judge, Court
No. 7, Aligarh in Sessions Trial No. 2689
of 2021 (State vs. Mumshad alias Banti)
arising out of Case Crime No. 345 of 2021,
under Section 326A IPC, Police Station
Gandhi Park, District Aligarh whereby
application
moved
by
the
revisionist/informant under Section 319
Cr.P.C. has been rejected.
108 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The revisionist/informant gave a
Tehrir dated 09.06.2021 stating that on
08.06.2021 at 9.00 P.M. at the Old
Roadways Bus Stand when he, his brother
Tazeem and cousin Javed were waiting for
the bus, in the meantime, Mumshad alias
Banty and Amil Husain reached identifying
his brother Tazim. Amil threw an acid
pouch on the face of Tazim. They tried to
throw the pouch at him too, but fled away
in fear. The revisionist/ informant at once
reached the nearby police Chowki and with
their help Tazim was admitted for treatment
at Malkhan Singh Hospital. On the very
night, his brother was referred to J.N.
Medical College, Aligarh. The condition of
his brother was serious who completely lost
an eye, even the face was distorted.

4. An FIR was registered on 10.6.2021
at 11.13 A.M. bearing Case Crime No. 0345
of 2021 under Section 326A IPC, Police
Station Gandhi Park, District Aligarh naming
Mumshad alias Banty and Amil Husain.

5. After investigation only Mumshad
alias Banty was charge sheeted, the name of
Amil Husain was dropped. The charge was
framed and the trial proceeded.

6. The first informant Mohd. Akib, an
eye witness was examined as P.W-1. In his
examination-in-chief recorded on 21.3.2022,
he supported the prosecution version with
specific allegations against Amil Husain.

7. The injured witness Tazim Ahmed
was examined as P.W.-2. His examination-inchief was recorded on 02.06.2022. He also
supported the prosecution version with
specific allegations against Amil Husain.

8. Subsequently, an application was
moved by the prosecution under Section
319 Cr.P.C. stating that accused Mumshad
alias Banty and Amil Husain were named
in the FIR but the Investigating Officer
dropped the name of Amil Husain by
filing the final report, therefore, Amil too
be summoned and tried as an accused.

9. Raising objection, counsel for the
accused Amil in his defence stated that he
was falsely implicated for the reason that
he lodged an FIR bearing Case Crime No.
492 of 2019 under Sections 354, 376,
377, 504 and 506 IPC against Tazeem
Ahmad for committing rape on his sister,
Shahin Husain. In order to mount
pressure for compromise, he was falsely
implicated. He further pleaded that on the
date of incident he was on his job at
H.F.A.
Formulation
Private
Limited
Dehradun.

10.
Learned
counsel
for
the
revisionist/informant
argued
that
the
learned
Trial
Court
rejected
his
application under Section 319 Cr.P.C. on
the following grounds:

(i) Firstly, in the examinationin-chief,
the
prosecution
witnesses
admitted that in the year 2019 his brother
Tazeem(injured) was roped in a rape case
which was still pending.

(ii) The said witnesses admitted
that the FIR was not lodged on the date of
occurrence.

(iii) PW-1 admitted that the FIR
was lodged after consulting his brother
Tazeem as to who should be roped as an
accused.

(iv) P.W-2(injured) in his crossexamination admitted that Km. Shahin
who was a nurse in a Medical College
lodged an FIR in the year 2019 regarding
commission of rape and further admitted
that Amil Husain was her brother and the
rape case was still pending.
1 All. Mohd. Akib Vs. State of U.P. & Anr.
109

(v) P.W-2 further admitted that he
knew Fatima but denied that she left him
near the Masjid. Fatima was carrying a
Mobile No. 7599967521 and gave a written
application to the Investigating Officer
stating that on 08.06.2021 she took dinner
at the Medical College Road with Tazim, as
he had to go to Delhi. She left Tazim at the
Masjid who was all alone. Thereafter
Fatima returned back to her home on her
Activa UP 12 AU 7559. After a while, she
received a call from Tajeem that acid has
been thrown on him and he was admitted at
the Malkhan Hospital. She went to
Malkhan Hospital where Tazim informed
that he could not see very clearly but he
knew who had thrown the acid. She
remained at the Medical College till 1.00
A.M. She did not see the brother or his
relative at the Hospital and Tajeem was all
alone.

(vi) The Trial Court found that
during investigation the statement of the
mother of Amil Husain, namely, Zubeda
Begum was recorded who stated that her
son was falsely implicated in order to
create pressure to compromise the rape
case. And that her son Amil Husain was on
job on the date of incident at H.F.A.
Formulation Private Limited, Dehradun.

(vii) A certificate issued by an
Authorised Officer of H.F.A. Formulation
Private Limited, Dehradun was procured by
the Investigating Officer stating that Amil
Husain was available there on 08.06.2021
at 9.07 A.M. to 7.11 P.M. Certain other
documents along with the attendance report
was also placed. Few affidavits of landlords
and other persons were also taken into
account stating that Amil Husain was
residing in that House from 08.06.2022 to
10.6.2022.

(viii) The call details reports
procured by the Investigating Officer from
Idea Mobile Services Company showed the
location of Amil Husain from 08.06.2021
to 09.06.2021 at Dehradun. As the accused
Amil Husain was available at Dehradun,
the presence of Amil Husain was doubtful.
As PW-2 injured Tazeem was an accused in
a rape case, therefore, in order to create
pressure for compromise, the accused Amil
Husain was also robed.

11. Learned counsel for the revisionist
submitted that the Trial Court had rejected
the application under Section 319 Cr.P.C. in
a cursory manner, ignoring the evidence on
record and without application of judicial
mind.

12. Reference was made to deposition
of P.W.-1 and P.W. 2 which is as follows:

"बयान गिाह ..... ि हम्मद आवकब
पुि अब्दुि सिीि उम्र 22 िषण पेशा व्यापार
वनिासी किािपुर थाना अिापुर वजिा कासगंज
ने सशपथ बयान वकया वक घिना वदनांक
08.06.2021 सिय 09 बजे रावि पुराना बस
िैण्ड र डिेज गांर्ी पाकण की है। िैं ि िेरा भाई
वदल्ली जाने के विए र डिेज बस का इन्ताजर
कर रहे थे। बहन ई जािेद हिें साथ छ डने
हिारे साथ आये। इतने िें हिारे गांि का
िुिशाद बंिी अपने साथ आविि हुसैन क
िेकर हिार तरफ बढा तथा कहा यह रहा
ताजीि इतने िें आविि ने तेजाब से भरा पाउच
ताजीि के िुंह पर फेंक कर िारा ताजीि ज र से
वचल्लाया त ये और पाउच िेकर हिारी ओर
फेंके। उसने खुद कहा िह हिारी ओर पाउच
िेकर बढे इनक बढता देखकर हि डर कर
भाग गये। चीख पुकार पर ि ग ं क िौके पर
काफी ि ग ं के आने पर िुिशाद आविि के
साथ ि िर साईवकि पर भाग गया। िैं ि िेरे
बहन ई जािेद ताजीि िेरे भाई क िगी थी।
पुविस चौकी र डिेज थाना गांर्ी पाकण िेकर
पहुंचे त हिें पुविस िाि ं ने ििखान वसंह िें
110 INDIAN LAW REPORTS ALLAHABAD SERIES
भती करा वदया था। ताजीि की गिीर हाित
क देखते हुये डाक्टर ं ने ताजीि क जे०एन
िेवडकि रेफर कर वदया था। ताजीि की
तबीयत ज्यादा खराब ह ने के कारण हि ि ग
उसकी देखरेख िें रहे। ताजीि की सीर्ी आंख
ि चेहरा खराब ह गया था। िैं घिना के अगिे
वदन ररप िण विखाने थाना गांर्ी पाकण गया था।
पि उपिब्ध कागज संख्या 04/3 अ क देखकर
गिाह ने कहा यह िही िाईपशुदा तहरीर है ज
थाना पर दी थी वजस पर िेरे हस्ताक्षर है वजसकी
िैं वशनाख्त करता हूूँ वजस पर प्रदशण-1 डािा
गया। घिना के सम्बि िें पुविस ने िेरा बयान
विया था।

वजरह द न ं अवर्िक्ताओं की याचना
पर ..... की जाती है। वजरह जारी। बयान िेरे
ब िने पर प्रश्न त्तर द्वारा अंवकत वकया। "

सुनकर तस्दीक वकया।

"बयान गिाह .....ताजीि अहिद
पुि अब्दुि शिीि उम्र 30 िषण पेशा व्यापार
वनिासी
किािपुर
थाना
उिापुर
वजिा
कासगंज ने सशपथ बयान वकया वक घिना
वदनांक 08.06.2021 सिय रावि 09 बजे की
घिना है। िैं ि छ िा भाई आवकब ि बहन ई
जािेद पुराना बस िैण्ड थाना गांर्ीपाकण पर
वदल्ली जाने के विए खडे थे। बस का इन्तजार
कर रहे थे। तभी िुिशाद ि बन्टी, आविि के
साथ िेरी तरफ यह कहना बढा वक यह ताजीि
है आविि ने तेजाब से भरा पाउच िेरे चेहरे पर
िारा िैं जिन ह ने के कारण वचल्लाया चीख
पुकार पर िेरे भाई ि बहन ई िेरी तरफ बढे
उनक आगे बढता देख उन पर भी िुिशाद ि
बंिी ने तेजाब के पाउच फेके। िौके पर उक्त
ि ग भी आये वजन्हें िेकर यह ि ग भागे। भाई
ि बहन ई पुविस चौकी गये िुझे बेह शी ह रही
थी िहां से अस्पताि िे गये। िहां से िेवडकि
रेफर कर वदया गया। घिना के संबंर् िें पुविस
ने पूछताछ की थी।"

13. From the perusal of record, we
find that during trial, the P.W.-1 (first
informant/eye
witness)
supported
the
prosecution version. In examination-inchief, he specifically roped the respondent
no. 2 Amil Husain. Even P.W.-2 (injured
witness)
in
his
examination-in-chief
supported the prosecution case and had also
specifically roped the respondent no. 2
Amil Husain.

14. From the order impugned, it is
apparent that the learned trial court while
dealing
with
the
application
under
Section319 Cr.P.C. had taken into account
the
material
collected
during
the
investigation. Reference has been made to
the statement of Fatima and the mother of
respondent No. 2, namely, Amil Husain
Zubeda Begum which cannot be seen at
this stage. Even the defence version of the
accused cannot be seen at this stage. The
plea of alibi taken by the accused that he
was present at Dehradun and the call
detailed reports showing the location of
Amil at Dehradun are to be seen and
considered during trial.

15. Per contra, learned counsel for the
accused/Amil argued that the application
moved by the revisionist has been rightly
rejected and there is no illegality in the
impugned order.

16. Upon hearing the counsel for the
parties and upon perusal of record, we find
that the accused Amil Husain was named in
the FIR but during the course of the
investigation his name was dropped and
only the co-accused Mumshad alias Banty
was charge sheeted under Section 326A
IPC.

17. In the case, at hand, the Court
below has not taken note of the fact that the
1 All. Mohd. Akib Vs. State of U.P. & Anr.
111
respondent No. 2 was named in the FIR and
was assigned the main role of throwing
acid on PW-2 (injured). The testimony of
PW-1 (eye witness) and PW-2 (injured
witness) clearly indicate the complicity of
the respondent No. 2 as is apparent from
the evidence.

18. Recently, the Hon'ble Supreme
Court in Sandeep Kumar vs. the State of
Haryana and another, 2023 SCC Online SC
888 has observed that the entire purpose of
criminal trial is to go to the truth of the
matter. Once there is satisfaction of the
Court that there is evidence before it that an
accused has committed an offence, the
court can proceed against such a person.
At the stage of summoning an accused
there has to be a prima facie satisfaction
of the court. The evidence which was
there before the court was of an eye
witness who clearly stated before the
court that the crime has been committed
by the revisionist. Therefore, the court
need not cross examine this witness. It
can stop the trial at that stage itself if
such application had been moved under
Section
319
Cr.P.C.
The
detail
examination of the witness and other
witnesses is a subject matter of the trial
which has to begin afresh. The scope and
ambit of Section 319 Cr.P.C. has been
discussed and dealt with an detail in the
Constitution Bench judgement of Hardeep
Singh vs. State of Punjab and others
reported in (2014) 3 SCC 92 where it said:

"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.

13. It is the duty of the court to do
justice by punishing the real culprit. Where
the inestigating 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."

19. In Hardeep Singh (supra), this
court further said that the Court only has to
see at the state of Section 319, whether a
prima facie case is made out although the
degree of satisfaction has to be much
higher.

"95. At the time of taking
cognizance, the court has to see whether a
prima facie case is made out to proceed
against the accused. Under Section 319
Cr.P.C. though the test of prima facie case
is the same, the degree of satisfaction that
is required is much stricter. A two-Judge
Bench of this Court in Vikas v. State of
Rajasthan, held that on the objection
satisfaction of the court a person may be
"arrest"
or
"summoned",
as
the
circumstances of the case may require, if it
appears from the evidence that any such
person
not
being
the
accused
has
committed an offence for which such
person could be tried together with the
already arraigned accused persons.

In para 106 it stated as under:

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 crossexamination, 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
112 INDIAN LAW REPORTS ALLAHABAD SERIES
exercising power under Section 319 Cr.P.C.
In Section 319 Cr.P.C. the purpose of
providing if "it appears from the evidence
that any person not being the accused has
committed any offence" it 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
Cr.P.C. to form any opinion as to the guilt
of the accused."

20. Thus, the main object for exercise
of powers under Section 319 of the Code is
that the real perpetrator of the offence
should not go away unpunished specially in
a situation where the investigating agency
for any reason whatsoever had not arraigned
any culprit as an accused. The Court would
not be powerless in calling the accused to
face trial, rather it is the duty of the Court to
do justice by punishing the real culprit.

21. In view of the aforesaid facts and
circumstances as well as in the light of
Hon'ble Apex Court judgements, it is
hereby
directed
to
the
Trial
Court
concerned to consider the matter afresh and
pass appropriate orders in the light of
observations as aforesaid.

22. Accordingly, the revision is
disposed of.
----------
(2024) 1 ILRA 112
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Misc. Writ Petition No. 14212 of 2023
Abhay Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Vikram Singh

Counsel for the Respondents:
G.A.

A. Constitution of India, 1950-Article
226-Indian Penal Code, 1860-Sections
498-A, 304-B, 120-B r/w Section 3⁄4 D.P.
Act-deceased
died
under
mysterious
circumstances
at
the
petitioner's
residence within seven years of her
marriage-during the investigation certain
evidence collected by the I.O. with regard
to
demand
of
dowry
and
crueltypetitioner contended that brother of his
deceased-wife had an affair with a lady
who had no connection of whatsoever
nature with the in-laws family-certain
social media posts amounts to conduct of
a mini-trial within the purview of writ
jurisdiction, which is impermissible in
law-its evidentiary merits and pertinence
will undergo scrutiny during the trial in
accordance
with
the
Evidence
Act,
1872.(Para 1 to 37)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Babubhai Vs. St. of Guj. & ors.(2010) 12 SCC
254

2. Manu Sharma Vs. St. (NCT of Delhi)
(2010) 6 SCC 1

3. K.Chandrasekhar Vs St. of Ker. & ors.(1998) 5
SCC 223

4. Ramachandran Vs R. Udhayakumar & ors.(2008)
5 SCC 413

5. Mithabhai Pashabhai Patel & ors.Vs St. of Guj.
(2009) 6 SCC 332

6. Kishan Lal Vs Dharmendra Bafna (2009) 7 SCC
685