# Puneet Gupta Revisionist v. State of U.P. And Anr

- **Citation:** (2019) 1 ILRA 727
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-04-19
- **Case number:** Criminal Revision No. 1463 of 2019
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/puneet-gupta-revisionist-v-state-of-u-p-and-anr-44467
- **Pages:** 6

## Headnote

Section
319
Cr.P.C.-trial
court
empowered to proceed against any
person not shown as accused
The power envisaged under Section 319 of
Cr.P.C. should be exercised based on evidence
stronger
than
mere
probability
of
his
complicity against any person. (Para 16)

B. Indian Evidence Act- Section 65-B-
admissibility of electronic record- highly
risky to blindly rely
Chronological list of Cases Cited:-

## Text

1 All. Puneet Gupta Vs. State of U.P. And Anr.
727
private detective and by no means, it can
be said that it is a document which is
admissible in evidence without formal
proof. Therefore, detective report could
also not help the contention of the
husband that the wife is a school teacher
and is earning.

12. On the basis of above discussion, I
find that in view of the status of the parties
and the financial capacity of the husband, the
wife has been awarded maintenance of Rs.
20,000/- per month which is by no means in
higher side. It is personal responsibility of the
husband to pay maintenance to the wife
whether the marriage continues or dissolved.
Therefore, I find no material irregularity or
illegality in the impugned judgement nor
there is any jurisdictional error. Revision has
got no force and is liable to be dismissed.

13.

Revision
is
dismissed
accordingly.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2019

BEFORE
THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Revision No. 1463 of 2019

Puneet Gupta ...Revisionist
Versus
State of U.P. And Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri M.J. Akhtar, Sri V.M. Zaidi

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

A.
Section
319
Cr.P.C.-trial
court
empowered to proceed against any
person not shown as accused
The power envisaged under Section 319 of
Cr.P.C. should be exercised based on evidence
stronger
than
mere
probability
of
his
complicity against any person. (Para 16)

B. Indian Evidence Act- Section 65-B-
admissibility of electronic record- highly
risky to blindly rely
Chronological list of Cases Cited:-

1. 2014 (3) SCC 92 Hardeep Singh V State of
Punjab

2. 2017 SCC, page 706 Brijendra Singh and
other V State of Rajasthan

3. Criminal Appeal No. 1349 of 2018 arising
out of S.L.P. (CRL.) No. 6392 of 2018 Labhuji
Amratji and others Vs. State of Gujrat and
other

4. Ciminal Appeal No. 456 of 2019 arising out
of S.L.P. (Crl.) No. 208 of 2019 Periyasami and
Ors. Vs. S. Nallasamy

5. 2019 LawSuit (SC) 818 Sugreev Kumar Vs.
State of Punjab (E-10)

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Sri VM Zaidi, learned
senior Advocate assisted by Sri MJ
Akhtar for the revisionist, Sri Adesh
Kumar, learned counsel for private
opposite party, learned AGA and perused
the record.

2. By means of the instant
revisionist, the revisionist has targeted
judgement and order dated 08.03.2019
passed by the II-Additional Session
Judge/Special Judge (SC/ST Act), Meerut
in S.T. No. 21 of 2018 (State v. Sonu and
others), arising out of Crime No. 206 of
2018, under section 319 Cr.P.C. whereby
the applicant Puneet Gupta s/o Harikishan
Gupta and along with one Bharat Bhushan
s/o Kailash Chand were summoned under
sections 376-D IPC and 3(2)(V) of the
Scheduled Castes and Scheduled Tribes
728 INDIAN LAW REPORTS ALLAHABAD SERIES
(Prevention of Atrocities) Act, P.S.
Ganganagar, District Meerut.

3. Perusal of the record reveals that
the genesis of the case ignites from the
FIR lodged by none other but the victim
herself, belonging to a depressed caste
(Harijan) and Intermediate pass girl, aged
about 18 years was in search of
employment and later on she got
employment in a big and well reputed
business establishment known as M/s RT
Motors/Jai Shree Marking, situated near
Hapur Adda, Meerut on 05.07.2018,
which was having business of sale and
purchase of cars but on the very next date
of her new appointment, one of her top
hierarchies, claimed as "Boss", named
Bharat Bhushan dropped her home by his
car with the assurance that on the next
date he will pick up from her residence.
On 07.07.2018, the fateful day, around
12.00 to 1.30 hours, instead of taking her
to the establishment, the accused Bharat
Bhushan took her to a deserted place and
there he ravished her modesty, thereafter,
he invited his close friends namely; Punit
Gupta (applicant) and Sonu Nayak, who
also committed rape upon her one by one
and Sonu Nayak made video clips of her
with the threats that they will continue to
do the same, otherwise aforesaid video
would be made viral, if she informs
anyone about it. FIR, dated 07.07.2018 at
21.30 hours was registered as Case Crime
No. 206 of 2018, under the aforesaid
offence at P.S. Ganganagar, District
Meerut for the incident occurred on the
same day at 14.00 hours. After lodging
the aforesaid FIR, investigation of the
case started rolling and on 07.07.2018 at
about 11.10 P.M. she was produced for
medico-legal examination before Dr.
Shikha Tripathi, Medical Officer, CHC
Jani Khurd (Panchli Khurd), Meerut
wherein she stated before the aforesaid
doctor, which is hereby extracted from the
record:

^^vkt 7&7&18 yxHkx 1-30 ih0,e0
ij HkjrHkw"k.k eq>s 'kfu efUnj xaxkuxj ls cgku
ls fdlh vutku txg ys x;k] ogkW dejs esa
eq>s cqyk;k] ogkW igys ls nks yM+ds lksuw vkSj
fodh cSBs Fks] FkksM+h nsj esa iquhr Hkh vk x;k vkrs
gh mlus njoktk vanj ls cUn fd;k] eSaus iwNk
fd njoktk dUV D;ksa fd;k] iquht vkSj lksuw
ohfM;ks cukus yxs] Hkjr us igys ersjs lkFk
xyr fdke fd;k] mlds ckn foDdh us esjs lkFk
xyr dke fd;k] fQj mUgksaus cksyk fd vxj
rqeus ?kj ij dqN crk;k rks rqEgkjh ohfM;ks
?kjokyksa dks Hkst nwaxk] vkSj iquhr us FkIIkM+ ekjk]
mlds ckn Hkjr us eq>s 'kfu efUnj] xaxkuxj
ij NksM+ fn;k] ?kj vkds eSaus cgu vkSj ekW dks
iwjh ckr ckr crkbZ fQj 6&6-30 cts xaxkuxj
Fkkus x,A^^

4. In the aforesaid statement, the
alleged victim disclosed the name of the
assailant has been referred as Bharat
Bhushan, Puneet Gupta (claimed Bosses
of the company), Sonu Tyagi (unknown)
and Vicky (unknown). The doctor after
conducting aforesaid medical examination
opined that the alleged victim was having
'white discharge' and 'tenderness' over her
'vaginal area' though there was no sign of
forcible sexual act at the time of the
medical examination but sexual assault
cannot be ruled out.

5. Thereafter, the police recorded
statement under section 161 Cr.P.C. of the
victim, which is annexed as annexure 9 to
the
affidavit,
wherein
she
broadly
reiterated the FIR version by giving vivid
description of the incident specifically
attributing specific role to the all the
assailants, who ravished her modesty and
snapped obscene pictures and shot videos.
Thereafter, the alleged victim was put for
1 All. Puneet Gupta Vs. State of U.P. And Anr.
729
statement under section 164 Cr.P.C. on
23.07.2018 wherein she candidly stated
that on 5th July, 2018 she joined in the
show room of the company, referred
herein above, and was working as a
"Caller" therein. She further alleged,
without mincing words, therein that the
heinous of sexual assault upon her was
committed by Bharat Bhushan, Puneet
Gupta, Sonu Tyagi and one more person
Vicky shot obscene video clips of her.
Not only this, the alleged culprits
committed unnatural sex by putting their
male genitals in her mouth.

6. It is million dollars question and
startling feature of the instant case that
ignoring the text mentioned in the FIR,
statement made before the doctor as well
as the statements recorded under sections
161
and
164
Cr.P.C.,
by
broadly
corroborating the medical evidence, Sri
Jitendra Kumar, Circle Officer, Sadar
Dehat, District Meerut concluded the
entire
investigation,
subtracting
the
involvement of accused persons namely
Bharat Bhusan and Puneet Gupta (present
revisionist) by relying upon the CCTV
footage
and
the
affidavits
of
the
employees of their own company. Copy
of the conclusion drawn by the aforesaid
Circle Officer dated 14.08.2018, is
annexed as annexure no. 4 to the affidavit,
is self revealing which establishes that
under the influence of these affluent and
influential persons, who are claimed to be
"Bosses" of the company and named as
Bharat Bhushan and Puneet Gupta, have
been conveniently won over the aforesaid
Circle Officer, who after relying upon the
above
mentioned
two
documents,
submitted
the
CLOSURE
REPORT.
Aggrieved by the closure report of the
Investigation Officer, the informant filed
application 31 Kha, dated 19.02.2018
against both the accused persons, Bharat
Bhushan and Puneet Gupta who have
been exonerated on the basis of the CCTV
and affidavits filed by the employees of
the company, who have certified the
credentials as well as the characters of the
aforesaid accused.

7. As the matter was triable by the
Sessions court, it was committed to the court
of sessions whereby the testimony of the
alleged victim was recorded as P.W.-1 and her
examination-in-chief has fully corroborated
the allegation of gang rape committed upon
her not only against Bharat Bhushan and
Puneet Gupta but also against Sonu Tyagi and
Vicky and having shot her porn film. She has
stated in her examination-in-chief many more
things, which would be reiteration of other
things and thereafter, the application 31 Kha
was allowed by II-Additional Session
Judge/Special Judge (SC/ST Act), Meerut
vide order dated 08.03.2019 and the same was
challenged on the following grounds:

(a) case of false implications
without any cogent evidence against the
revisionist on the basis of which the order
impugned was passed;

(b) there are three different
versions of the alleged victim i.e.,
statements recorded under sections 161,
164 Cr.P.C. and her testimony as P.W.-1,
which are contradictory to each other;

(c) the doctor has not given a
definite opinion about rape by the victim;

(d) the CCTV footage installed
in the office of the revisionist establishes
his presence at the relevant of time;

(e) the evidence whether alleged
victim was employed or worked in the
firm or office of the revisionist or not;

(f) all the affidavits of the
employees
of
Puneet
Gupta,
who
unequivocally certified his character;
730 INDIAN LAW REPORTS ALLAHABAD SERIES

(g) the victim herself is an
antagonist and not only this, the alleged
victim and her entire family were earlier
also
indulged
into
such
type
of
malpractices

(f) the affidavits filed by the covillagers, annexed as annexure 6 to the
petition, reveals that the entire family of
the alleged victim has chequered family
and they were also in a habit of such type
of malpractices in the past.

8. On the aforesaid backdrop,
learned counsel for the revisionist has
tried to raise his castle of the arguments
targeting the order impugned dated
08.03.2019.

9. This Court has carefully perused
all the relevant documents. Submissions
made by the rival parties in support of the
contentions, it is trite that the provisions
of section 319 Cr.P.C. are to achieve the
objective that a real culprit should not get
away unpunished by virtue of the
provisions, the trial court is empowered to
proceed against any person not shown as
an accused, if it appears from evidence
that such person has committed any
offence for which is ought to be tried
together with other accused persons. In
the case of Hardeep Singh v. State of
Punjab
[2014(3)
SCC
92],
the
constitutional bench of Apex Court has
lucidly explained the objection and
purpose behind te laudable provision of
the aforesaid section, which are as
follows:

(i) 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.

(ii) It is the duty of the Court to
do justice by punishing the real culprit.
Where any investigating agency for any
reason does not array the real culprit as an
accused, the court is not powerless in
calling the said accused to face trial. The
only question left is the satisfaction and
degree of satisfaction of the court to
exercise its power as contemplated in
section 319 Cr.P.C.

10. Indeed, courts are the sole
repository of justice and onerous duty is
casted 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.

11. In the instant case,the named
accused persons namely, Bharat Bhushan
and
Puneet
Gupta
(the
applicant),
undoubtedly are the influential persons,
who claimed them as "Bosses' of the
establishment M/s RT Motors, having no
dearth of money and resources, thus on
this
background
of
the
case,
the
possibility to influence the investigation
of the case cannot be ruled out. There is
bundles of load of direct evidence, which
are evident in the text of the FIR itself,
victim's
statements
recorded
under
sections 161 and 164 Cr.P.C., coupled
with the fact, medical treatment of the
victim
sufficiently
indicating
the
involvement of these accused persons,
including the applicant- Puneet Gupta.
These vultures of flesh, mercilessly
molested a girl of young age, shot her
obscene videos for blackmailing and
lastly in order to quench their lust,
ravished
her.
But
the
obedient
1 All. Puneet Gupta Vs. State of U.P. And Anr.
731
Investigating Officer of the case moulded
the entire case in favour of the applicant
and his accomplice. The Investigating
Officer of the case shockingly relied upon
the affidavits of the employees, above
whom the applicant ruled over as their
Boss, certifying the respective characters
of the accused persons and the so-called
CCTV footage and eventually dropped
the names of the amongst the array of the
rest of the accused persons.

12. The power under section 319
Cr.P.C., though extraordinary and has 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/s might have committed the
offence, there has to be strong and cogent
evidence against a person from the
evidence led before the court that such
power should be exercised and not in a
casual and cavalier manner. The attract
the provision of section 319 Cr.P.C., it is
necessary 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 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' 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'.

13. On the principles of law laid
down in the cases of Brijendra Singh
and other v. State of Rajasthan [2017
SCC, page 706] followed in Labhuji
Amratji Thakor and others v. State of
Gujarat
and
another
decided
on
November 13, 2018 in Criminal Appeal
No.1349 of 2018 arising out of SLP
(CRL.) No.6392 /2018, reiterated in the
case of Periyasami and Ors. Vs. S.
Nallasamy [Criminal Appeal No. 456 of
2019 arising out of S.L.P (Crl.) No. 208
of 2019] decided on 14th March, 2019
and in the case of Sugreev Kumar v.
State of Punjab [2019 LawSuit (SC)
818] decided on 15th March 2019
wherein Hon'ble the Apex Court has
categorically held that mere disclosing the
name of accused cannot be said to be
strong and cogent evidence to make them
to stand trial for the offence under Section
319 of the Code.

14. Arriving home to the facts and
circumstances of the instant case and
keeping lien to the aforesaid guidelines
laid down in the aforementioned cases,
this Court finds that there is categorical
and unequivocal allegation of outraging
modesty of the informant, as mentioned in
the FIR and her corroborating statements
given
at
different
stages
(though
admittedly with minor discrepancies),
primarily attributes specific role to all the
accused persons, including the revisionist.
She has not budged an inch at any of the
fora of her statements in the entire
prosecution case, this Court is of the
considered
opinion that learned
IIAdditional Session Judge/Special Judge
(SC/ST Act), Meerut has passed the
732 INDIAN LAW REPORTS ALLAHABAD SERIES
judgement and order dated 08.03.2019 in
absolute consonance with the principles
of law and no illegality/irregularity or
perversity
prevails
therein
while
exercising his powers envisaged under
section 319 Cr.P.C.

15. Much emphasis has been laid
down by the learned counsel for the
revisionist on the evidence of CCTV
footage collected by the Investigating
Officer during investigation, from the
office of the revisionist, who happens to
be the Boss of the establishment.

16. At this stage relying upon the
evidence of the CCTV footage, without
testing its authenticity is hit by section 65B of the Indian Evidence Act, which
speaks about its admissibility of the
electronic record. It is highly risky to
blindly rely upon the same. There is
another
aspect
of
the
matter
that
subordinate
employees
of
the
establishment
had
given
"character
certificates"
through
their
respective
affidavits to the revisionist, which cannot
be relied upon, if compared the same with
the allegations made in the FIR and
various statements given by the informant
during investigation coupled with medical
report of the doctor, which clearly
indicates that the informant (victim) was
subjected to mass molestation by all the
accused persons, including the revisionist.

17. At the cost of repetition, this
Court has no hitch in holding that the
learned
II-Additional
Session
Judge/Special Judge (SC/ST Act), Meerut
while passing judgement and order dated
08.03.2019
has
vividly
disclosed,
analyzed and critically examined of the
aforesaid aspects on the issue and has
recorded his satisfaction and he has held
therein that there is enough material on
record to try the applicant along with
other co-accused persons to face trial in
S.T. No. 21 of 2018 (State v. Sonu and
others), arising out of Crime No. 206 of
2018, under sections 376-D IPC and
3(2)(V) of the Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, P.S. Ganganagar, District
Meerut.

18. On the aforesaid score, the
instant
revision
falls
flat
and
is,
accordingly, rejected.

19. However, if the revisionist has
not been bailed out so far in the aforesaid
trial and surrenders before the court
concerned, applies for bail within a period
of 30 days from the delivery of this order,
the trial court is directed to given patient
hearing to both the rival parties on the
application for bail and pass appropriate,
speaking
and
reasoned
order
in
accordance with law, provided there is no
other impediment in the case.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ- A No. 3240 OF 2002

Surya Prakash Mani Tripathi (Bhupendra
Mani Tripathi) ...Petitioner
Versus
State Bank of India and Ors.
 ..Respondents

Counsel for the Petitioner:
Sri Anil Tiwari, Sri Harsh Gopal, Sri Jeevan
Prakash Sharma, Sri Munna Kumar Singh,
Sri
Vinay
Kumar
Mishra