# Rajesh Gond Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 1307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-27
- **Case number:** Criminal Revision No. 1856 of 2022
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-gond-revisionist-v-state-of-u-p-anr-50173
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision , Section 319 - Power to proceed
against other persons appearing to be
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
guilty of offence , Indian Penal Code,
1860 - Section 307, 34 - To exercise
powers under U/s 319 Cr.P.C., strong and
cogent
evidence
must
show
the
revisionist's complicity, surpassing primafacie cases - It is not to be exercised in a
casual or a cavalier manner .(Para - 9,10)

Summoning revisionist accused to face trial
under
U/s
319
Cr.P.C.
-
revisionist's
presence at
a
different
location
than
incident's location - prosecution witnesses
(mother and brother of injured ) - identified
revisionist in footage - contradicts the
witnesses' testimony - trial court failed to
appreciate
evidence
collected
during
investigation - leading to cavalier order -
not fulfill Apex Court's test - trial court
relied on statements of two - who verified
identity
of
revisionist
accused
in
the
footage.(Para - 10)

HELD:- Trial court failed to appreciate the
entire
facts,
evidence,
and
material
available on record, and failed to record the
degree of satisfaction required to summon
an accused under U/s 319 Cr.P.C.. Resulted
in the impugned order being unsustainable
in the eye of law and liable to be set aside.
No strong and cogent reasons to summon
the revisionists-accused to face trial in
exercise of powers U/s 319 Cr.P.C.(Para -
11,12)

Revision allowed. (E-7)

List of Cases cited:

## Text

5 All. Rajesh Gond Vs. State of U.P. & Anr.
1307

15. In nutshell, it can be inferred that
the juvenile was found to have complicity
in this frightful crime where the life of a
Branch Manager was taken for looting of
public money. The juvenile was found
above 16 years i.e., 17 years 8 months and
14 days on the date of the occurrence. It
was a borderline case where the accused
was reaching the age of adulthood. The
manner, in which, the crime was committed
and the nature thereof impels me to draw a
conclusion that in case the juvenile is
released on bail, he shall fall of in the same
hands and environs which most probably
contributed towards his criminal bent of
mind.

16. It clearly appears that the Juvenile
Justice Board as well as the appellate
Court,
while
dismissing
the
bail
applications, definitely had in mind the fact
that in case the juvenile is released to his
family, any chance of him turning into a
better and healthy person shall be stalled
and that he shall certainly fall of in the
same kind of things from where, perhaps he
is needed to be rescued for his own welfare.
It is worth notice that though the 'Principle
of Best Interest', described in Section 3 of
the Juvenile Justice Act, 2015 has been
specifically brought in the provisions of the
Act but broadly it is covered in the phrase
'ends of justice' too.

17. In my view, the aim and object of
the Juvenile Justice Act cannot be achieved
if crimes committed by the juveniles are
not viewed from the angle of their own
welfare and concerns of the society at large
are not addressed. The social investigation
report, though, has been prepared on a
printed format rather mechanically may not
be very useful. Nevertheless, there are
some indicators therein which imply that
the juvenile needed effective supervision
and indulgence of a professional counselor
so that from here onwards he grows into an
adult with healthy habits. The social
investigation report indicates that he left his
studies in in-between and is not interested
in any academic pursuit. This is enough to
give a clue to the Court that his mind needs
to be diverted towards positive direction.

18. The learned appellate Court and
the Board have given concurrent view and
have found him not at all entitled to bail
and have given observation that an
effective protection and supervision is
needed. Such an observation for declining
the bail cannot be faulted in the totality of
the circumstances of the matter. I am of the
view that it is not a fit case to grant bail to
the present revisionist.

19. The revision is, accordingly,
dismissed.
----------
(2023) 5 ILRA 1307
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 1856 of 2022

Rajesh Gond ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Arvind Singh Sengar

Counsel for the Respondents:
G.A., Sri Ajeet Kumar Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision , Section 319 - Power to proceed
against other persons appearing to be
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
guilty of offence , Indian Penal Code,
1860 - Section 307, 34 - To exercise
powers under U/s 319 Cr.P.C., strong and
cogent
evidence
must
show
the
revisionist's complicity, surpassing primafacie cases - It is not to be exercised in a
casual or a cavalier manner .(Para - 9,10)

Summoning revisionist accused to face trial
under
U/s
319
Cr.P.C.
-
revisionist's
presence at
a
different
location
than
incident's location - prosecution witnesses
(mother and brother of injured ) - identified
revisionist in footage - contradicts the
witnesses' testimony - trial court failed to
appreciate
evidence
collected
during
investigation - leading to cavalier order -
not fulfill Apex Court's test - trial court
relied on statements of two - who verified
identity
of
revisionist
accused
in
the
footage.(Para - 10)

HELD:- Trial court failed to appreciate the
entire
facts,
evidence,
and
material
available on record, and failed to record the
degree of satisfaction required to summon
an accused under U/s 319 Cr.P.C.. Resulted
in the impugned order being unsustainable
in the eye of law and liable to be set aside.
No strong and cogent reasons to summon
the revisionists-accused to face trial in
exercise of powers U/s 319 Cr.P.C.(Para -
11,12)

Revision allowed. (E-7)

List of Cases cited:

1. Hardeep Singh Vs St. of Punj., AIR 2014
Supreme Court page 1400,

2. Brijendra Singh & ors. Vs St. of Raj., (2017) 7
SCC page 706

3. Smt. Neelam Devi & ors. Vs St. of U.P. &
another

4. Hardeep Singh Vs St. of Punj., AIR 2014
Supreme Court page 1400

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
revisionist learned AGA for the State and
learned counsel for opposite party no.2.

2. This criminal revision has been
filed against the order dated 23.12.2021
passed by Additional Sessions Judge Court
no.3 Ballia in S.T. No.297 of 2017 (State
vs. Gulab Gond) crime no.745 of 2017, U/s
307, 34 IPC, P.S. Ubhaon, District Ballia.
By the impugned order, the learned court
below on an application of prosecution in
exercise of powers U/s 319 Cr.P.C. has
summoned the revisionist accused to face
trial.

3. With regard to incident dated
17.06.2017 at about 9:00 pm, an FIR was
lodged by first informant Preetam on the
same date at 20:30 O'clock alleging therein
that the complainant is resident of village
Jam Basnai P.S. Rasra, District Ballia. He
had come at his nanihal village Babhnauli
in connection with marriage of his maternal
uncle Sunil to be held on 18.06.2017.
Today on 17.06.2017 at about 9:00 pm, he
with his maternal uncle Sonu alias Rohit
was going on a motorcycle. When they
reached
near
the
Pt.
Deen
Dayal
Upadhyaya Inter-college, and was talking
with a vendor then a motorcycle on which
three persons were riding came from the
side of Shahpur Afgah road. Two persons
came down from the motorcycle and
reached near them, one of them asked his
maternal uncle whether his name is Sonu,
he replied that his name is Rohit, on this he
said that he tease his sister and opened fire
on him. The other person also opened fire
on his maternal uncle and both of them
riding the motorcycle ran away from the
spot.
The
maternal
uncle
of
the
complainant fell down, due to darkness the
complainant
could
not
identify
the
assailants. The injured was taken to Sier
5 All. Rajesh Gond Vs. State of U.P. & Anr.
1309
Hospital from where he was referred to
District Mau. It is further alleged that the
complainant has dispute about the landed
property with neighbour Gulab Gond and
he suspect his hand in this incident. During
investigation the names of Guddu Gond
and Rajesh Gond came into light. After
investigation, charge sheet was submitted
against Gulab Gond and Guddu Gond. The
revisionist Rajesh Gond was exonerated.
The trial commenced before the sessions
court and after examination of four
prosecution witnesses, an application U/s
319 Cr.P.C. was moved to summon the
revisionist Rajesh Gond for trial. The
learned court below by the impugned order
has allowed the application and summoned
the revisionist accused for trial.

4. Learned counsel for the revisionist
contended that the revisionist is not named
in the FIR. The complainant in his
statement has reiterated the version of the
FIR and has not named the revisionist
accused. He has also stated that due to
darkness
he
could
not
identify
the
assailants. The name of the revisionist
came at the first time in the statement of
injured after 22 days of the incident and 15
days after discharge from the hospital. It is
further contended that the complainant
P.W.-1 in his statement has specifically
stated that he identify the family members
of Gulab Gond. It is further contended that
there
are
major
contradictions
and
discrepancies in the oral evidence produced
before
the
trial
court.
Further
the
Investigating Officer during trial has
collected the evidence about the fact that
revisionist was not present at the place of
occurrence. At the time of incident, he was
at Bombay, the CCTV footage of the mall
from where he was shopping was produced
before the Investigating Officer, the photo
of this CCTV footage was get identified by
Investigating Officer from the injured and
her mother and they have identified the
revisionist accused in it. The CDR of the
mobile of the revisionist also shows his
presence at some other place and not at the
place of occurrence at the time of incident.
From
the
aforesaid
evidence,
the
Investigating Officer has submitted final
report against the revisionist but during
trial on the basis of statement of injured
Rohit Kumar alias Sonu, the learned trial
court has passed the impugned summoning
order, While his testimony is not worth
reliable. The incident is of the night and it
has come in the evidence that there was
darkness at the time of incident due to
which the complainant was not able to
identify the assailants. The FIR was lodged
only on the basis of suspicion. It is further
contended that regarding motive of the
incident there are different versions put by
the prosecution. So the evidence produced
by the prosecution is not cogent and
sufficient. Lastly it is contended that the
Apex Court in a catena of decisions has
held that the power U/s 319 Cr.P.C. is an
extra-ordinary power which should be
exercised sparingly and not in a routine
manner. There must be sufficient and
cogent reasons. Learned counsel placed
reliance on the case of Hardeep Singh Vs.
State of Punjab AIR 2014 Supreme Court
page 1400,Brijendra Singh and others Vs.
State of Rajasthan (2017) 7 SCC page 706
and Smt. Neelam Devi and two others vs.
State of U.P. and another decided on
28.01.2023 by this Court.

5. Learned counsel appearing for
opposite party no.2 contended that FIR has
been lodged by Preetam, the maternal
nephew of the injured. He is resident of
another village so he could not identify the
assailants by their names. But the injured in
his statement U/s 161 Cr.P.C. has clearly
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
stated
about
the
complicity
of
the
revisionist accused, he has also assigned
the role of firing to the revisionist accused.
In his statement before the trial court he has
reiterated his statement recorded U/s 161
Cr.P.C. and stated about the active
participation of the revisionist in the
incident. It is further contended that CCTV
footage and CDR does not contain the
certificate required under section 65 of IT
Act. It is a matter of trial, it cannot be
appreciated at this stage. Sonu alias Rohit
has suffered gun shot injuries in the
incident,
he
was
hospitalized,
after
discharge his statement was recorded by
the Investigating Officer in which he has
has clearly implicated the revisionist
accused. So there is sufficient and cogent
evidence on record on the basis of which
the learned trial court has exercised his
powers U/s 319 Cr.P.C. and has summoned
the revisionist accused. There is no
illegality in the impugned summoning
order.

6. The Apex Court in the case of
Hardeep Singh Vs. State of Punjab AIR
2014 Supreme Court page 1400 has
prescribed
the
standard
of
evidence
required for exercising powers under
section 319 Cr.P.C. The relevant paras 98
and 99 are as follows:

"98. Power under Section 319,
Cr.P.C. is a discretionary and an extraordinary 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."

"99. Thus, we hold that though
only a prima face 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,
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'.
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."

7. The FIR of this case has been
lodged against unknown persons U/s 307,
120B IPC. Gulab Gond is named in the FIR
on the basis of suspicion with the
allegations that he may be involved in the
incident as there is enmity with him. The
complainant Preetam in his statement U/s
161 Cr.P.C. has narrated the same facts as
alleged in the FIR, he has not named the
assailants who have opened fire. In the FIR
no eye witness is named. The Investigation
Officer has recorded the statement of
injured Rohit, after 21 days of the incident
and in this statement, the name of the
5 All. Rajesh Gond Vs. State of U.P. & Anr.
1311
assailants including revisionist has come
into light. Regarding the alleged incident,
the witness Mansha Ram Gupta in his
statement U/s 161 Cr.P.C. has stated that at
about 9:00 pm Rohit with Preetam came at
his house and asked him to carry his thela
but he refused and went inside of his house.
Meanwhile he heard the sound of firing.
When he came out, he saw the motorcycle
lying on the spot. He could not identify
anyone. Rohit alias Sonu has suffered gun
shot injury and he was lying there. His
brother
Ashish
Kumar
on
getting
information came there and took him to the
hospital. Ashish in his statement recorded
U/s 161 Cr.P.C. claims himself to be an eye
witness. During the trial, the complainant
Preetam has reiterated the version as stated
in his statement U/s 161 Cr.P.C. P.w. 2
Rohit alias Sonu the injured has implicated
the revisionist Rajesh Gond and has stated
that with intention to kill him, he opened
fire. P.W.-3 Usha Devi is not an eye
witness, she is mother of the injured.
Ashish Kumar (P.W.-4) claims himself to
be an eye witness and he has also
implicated the revisionist. It also appears
that during investigation the revisionist has
moved an application to Superintendent of
Police Ballia alleging therein that since last
10-15 years he is living at Bombay and
engaged in construction work. He has come
to know that in the investigation of this
case, his name has also come in the light.
While the real fact is that on 17.06.2017 the
date of the incident, he was at Bombay and
he was engaged in shopping at Korum Mall
Metro Shoes, Thane. He has also used his
credit card for shopping. He has collected
the CCTV footage. He has also withdrawn
the money from the ATM of SBI adjacent
to Kesar Mill at Thane. The Investigating
Officer may obtain the CCTV footage of
ATM
booth.
His
mobile
bearing
no.8652101111 and his location can be
traced from this. The CCTV footage is
attached
with
this
application.
The
Investigating Officer made it part of the
case diary. The CCTV footage was
displayed on CD player of the laptop and
Usha Devi the mother and Ashish the
brother of injured- Rohit has identified
Rajesh Kumar Gond in this CCTV footage.
The Investigating Officer has mentioned
these facts in the case diary. He has further
mentioned that a letter was written to get
the call details of mobile number of Rajesh
Kumar Gond but the surveillance cell
informed that as the incident is more two
years old, it cannot be retrieved. Neither the
CCTV footage of ATM Thane of SBI can
be obtained. The Investigating Officer has
also recorded the statement of some other
witnesses and they have denied the
presence of the revisionist at the place of
occurrence at the time of incident.

8. The revisionist is neither named in
the FIR nor the first informant who is also
an eye witness has named anyone in his
statement recorded U/s 161 Cr.P.C. It has
also come in the evidence that at the time
of incident it was darkness. The revisionist
has been implicated by Rohit Kumar the
injured in his statement recorded U/s 161
Cr.P.C., after 21 days of the incident. The
revisionist has provided the evidence about
the alibi to the Investigating Officer during
the investigation in the form of CCTV
footage of Korum Mall, Thane. The
Investigating Officer has displayed this
CCTV footage before the Usha Devi the
mother and Ashish the brother of the
injured Rohit and they have identified the
revisionist Rajesh Kumar Gond in this
CCTV footage.

9. The case of Brijendra Singh vs.
State of Rajasthan (2017) 7 SCC 706
(Supra), the Apex Court while reiterating
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
the principles laid down in Hardeep Singh
case has made the following observations:

"13. In order to answer the
question, some of the principles enunciated
in
Hardeep
Singh's
case
may
be
recapitulated power under Section 319
Cr.P.C. can be exercised by the trial court
at any stage during the trial, i.e., before the
conclusion of trial, to summon any person
as an accused and face the trial in the
ongoing case, once the trial court finds that
there is some 'evidence' against such a
person on the basis of which evidence it
can be gathered that he appears to be
guilty of offence. The 'evidence' herein
means the material that is brought before
the Court during trial. Insofar as the
material/evidence collected by the IO at the
stage of inquiry is concerned, it can be
utilised for corroboration and to support
the evidence recorded by the Court to
invoke the power under Section 319
Cr.P.C. No doubt, such evidence that has
surfaced in examination-in-chief, without
cross- examination of witnesses, can also
be taken into consideration. However,
since it is a discretionary power given to
the Court under Section 319 Cr.P.C. and
is also an extraordinary one, same has to
be exercised sparingly and only in those
cases where the circumstances of the case
so warrants. The degree of satisfaction is
more than the degree which is warranted
at the time of framing of the charges
against others in respect of whom
chargesheet was filed. Only where strong
and cogent evidence occurs against a
person from the evidence led before the
Court
that
such
power
should
be
exercised. It is not to be exercised in a
casual or a cavalier manner. The prima
facie opinion which is to be formed
requires stronger evidence than mere
probability of his complicity.

14.
When
we
translate
the
aforesaid principles with their application
to the facts of this case, we gather an
impression that the trial court acted in a
casual and cavalier manner in passing the
summoning order against the appellants.
The appellants were named in the FIR.
Investigation was carried out by the police.
On the basis of material collected during
investigation, which has been referred to by
us above, the IO found that these
appellants were in Jaipur city when the
incident took place in Kanaur, at a distance
of 175 kms. The complainant and others
who supported the version in the FIR
regarding
alleged
presence
of
the
appellants at the place of incident had also
made statements under Section 161 Cr.P.C.
to the same effect. Notwithstanding the
same, the police investigation revealed that
the statements of these persons regarding
the presence of the appellants at the place
of occurrence was doubtful and did not
inspire
confidence,
in
view
of
the
documentary and other evidence collected
during the investigation, which depicted
another story and clinchingly showed that
appellants plea of alibi was correct.

15. This record was before the
trial court. Notwithstanding the same, the
trial court went by the deposition of
complainant and some other persons in
their examination-in-chief, with no other
material
to
support
their
so-
called
verbal/ocular version. Thus, the 'evidence'
recorded during trial was nothing more than
the statements which was already there under
Section 161 Cr.P.C. recorded at the time of
investigation of the case. No doubt, the trial
court would be competent to exercise its power
even on the basis of such statements recorded
before it in examination-in-chief. However, in a
case like the present where plethora of evidence
was collected by the IO during investigation
5 All. Chhotey Lal Vs. State of U.P. & Ors.
1313
which suggested otherwise, the trial court was
at least duty bound to look into the same while
forming prima facie opinion and to see as to
whether 'much stronger evidence than mere
possibility of their (i.e. appellants) complicity
has come on record. There is no satisfaction of
this nature. Even if we presume that the trial
court was not apprised of the same at the time
when it passed the order (as the appellants
were not on the scene at that time), what is
more troubling is that even when this material
on record was specifically brought to the notice
of the High Court in the Revision Petition filed
by the appellants, the High Court too blissfully
ignored the said material. Except reproducing
the discussion contained in the order of the trial
court and expressing agreement therewith,
nothing more has been done. Such orders
cannot stand judicial scrutiny."

10. The facts of the case in hand are
almost identical to Brijendra Singh case
(Supra). The CCTV footage of Koram Mall,
Thane establishes the presence of the revisionist
at a different place faraway from the place of
occurrence at the relevant point of time. The
two prosecution witnesses the mother and
brother of injured have duly identified the
revisionist in the CCTV footage. So this piece
of evidence which is part of investigation fully
contradict the testimony of the witnesses
regarding complicity of the revisionist in the
incident. The learned trial court has failed to
appreciate the matters collected during the
course of investigation regarding the presence
of the accused at a place faraway from the place
of occurrence. So the impugned order has been
passed in a cavalier manner and it does not
fulfill the test as laid down by the Apex Court.
The learned trial court has relied on the
statement of Usha Devi (P.W.-3) and Ashish
Kumar (P.W.-4) while these witnesses have
verified the identity of the revisionist accused in
the CCTV footage of Korum Mall, Thane. For
exercising the powers U/s 319 Cr.P.C. there
must be strong and cogent evidence showing
the complicity of the accused which is more
than that of prima-facie case.

11. Considering the entire facts, evidence
and material on record, it appears that there is
no strong and cogent reasons to summon the
revisionists-accused to face trial in exercise of
powers U/s 319 Cr.P.C. While deciding the
application U/s 319 Cr.P.C. the learned trial
court has failed to appreciate the entire facts,
evidence and other material available on record.
The court below has also failed to record the
degree of satisfaction which is required to
summon an accused U/s 319 Cr.P.C. The
degree of satisfaction is not one of prima-facie
case. Consequently, trial court has failed to
exercise its power in accordance with
parameters laid down by the Apex court in a
catena of decisions. The impugned order is not
sustainable in the eye of law and is liable to be
set aside.

12. In view of the above discussion, the
impugned order suffers from material illegality
and is not sustainable in the eye of law.

13. The revision is allowed and the
impugned order dated 23.12.2021is hereby set
aside.

----------
(2023) 5 ILRA 1313
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.04.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 917 of 2022

Chhote Lal ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant: