# Ram Kishore Revisionist v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 7
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-07
- **Case number:** Criminal Revision No. 3318 of 2019
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishore-revisionist-v-state-of-u-p-ors-45025
- **Pages:** 5

## Headnote

A.Criminal Law - Maxim- 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
Code
of
Criminal
Procedure. (Para 7)

B.Criminal Law - Code of Criminal
Procedure, 1973 - Sections 397/401 &
Indian Penal Code, 1860 - Sections
302,201,404 - Application u/s 319 -
rejection-witnesses
were
crossexamined
by
the
counsel
for
the
accused-no
admissible
evidence
on
record indicating the complicity of the
opposite parties in the commission of
offence-trial court rightly rejected the
application. (Para 9 & 10)

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 Cr.P.C. 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. (Para 7)

Criminal Revision dismissed. (E-6)

List of cases cited: -

## Text

4 All. Ram Kishore Vs. State of U.P. & Ors.
7
Section in Paragraph nos. 41.1, 41.2 and
41.3 supports the order passed by the
DDC.

(27) More so, when the statute itself
casts a duty upon the Consolidation
Authorities to protect the interest of the
State Government and the Gaon Sabha or
Local Body or Authority.

(28) This Court, therefore, does not
find
any
good
ground
to
show
interference in such order.

(29) The petition is dismissed. No
order as to costs.
----------
(2019)12 ILR A7
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.11.2019

BEFORE
THE HON'BLE AJIT SINGH, J.

Criminal Revision No. 3318 of 2019

Ram Kishore ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Krishna Mishra

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

A.Criminal Law - Maxim- 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
Code
of
Criminal
Procedure. (Para 7)

B.Criminal Law - Code of Criminal
Procedure, 1973 - Sections 397/401 &
Indian Penal Code, 1860 - Sections
302,201,404 - Application u/s 319 -
rejection-witnesses
were
crossexamined
by
the
counsel
for
the
accused-no
admissible
evidence
on
record indicating the complicity of the
opposite parties in the commission of
offence-trial court rightly rejected the
application. (Para 9 & 10)

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 Cr.P.C. 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. (Para 7)

Criminal Revision dismissed. (E-6)

List of cases cited: -

1. Hardeep Singh Vs. St. of Punjab, reported in
(2014) 3 SCC, 92

2. Vikas Vs. St. of Rajasthan, 2013 (11) SCALE
23

(Delivered by Hon'ble Ajit Singh, J.)

1. Heard learned counsel for the
revisionist and the learned A.G.A.

2. Present revision under Sections
397/401 Cr.P.C. has been filed with prayer
to set aside the order dated 27.05.2019
passed by Additional Sessions Judge,
8 INDIAN LAW REPORTS ALLAHABAD SERIES
Court No.3, Kaushambi passed in Session
Trial No.205 of 2016 (State Vs. Anup
Kumar) arising out of Case Crime No.139
of 2016, under Sections 302, 201, 404
I.P.C.,
Police
Station
Mahewaghat,
District Kaushambi, whereby application
14 Kha under Section 319 Cr.P.C. filed by
the
revisionist
for
summoning
the
opposite party nos.2 and 3 was rejected.
Aggrieved by the said order, the instant
criminal revision has been preferred.

3. The brief facts leading to this
revision are that the first information
report
was
lodged
by
the
complainant/revisionist, Ram Kishor on
13.05.2016 with the allegation that his
son, namely, Sandeep Kumar @ Sanjeev,
who was residing with Anup Kumar and
was also working with him in Rajapur. It
was further alleged that on 25.04.2016
Anoop Kumar with the intention to cause
death came to the village with Sandeep
and Sandeep after taking Rs.15,000/- in
cash and pass book from the house and
after withdrawing Rs.25,000/- from the
bank returned to the house and informed
that he is going with Anoop Kumar as he
is having an important work. It was also
alleged that Anoop Kumar hatched a
conspiracy
involving
his
father,
Shivcharan Lal and brother, Aniruddh
along with two hired miscreants and
murdered the son of the complainant. The
complainant got information from the
newspaper on 26.04.2016 about the death
of his son, Sandeep @ Sanjeev and the
deceased was recognized by his cloths.
The police after investigation submitted
the charge-sheet against Anoop Kumar
only. The trial of this case was proceeded.
The prosecution has examined PW-1, PW2 and PW-3 and the witnesses were crossexamined by the counsel for the accused
Anoop Kumar. After the statements of
PW-1, PW-2 and PW-3 an application
under Section 319 Cr.P.C. was given and
after hearing the application, the trial
court rejected the application filed under
Section 319 Cr.P.C.

4.

Learned
counsel
for
the
revisionist submitted that the trial court
has
not
properly
considered
the
application and it has been decided in a
cursory manner. He further submitted that
the entire facts and circumstances of the
case has not been properly discussed by
the trial court.

5. Learned A.G.A. has vehemently
opposed the argument of learned counsel
for the revisionist and has submitted that
the incident is alleged to have taken place
on 25.04.2016 and the first information
report of the incident was lodged on
13.05.2016. He further submitted that
there is no reliable and cogent evidence
against the other accused person, whose
names were mentioned in the application,
filed under Section 319 Cr.P.C., and the
application has rightly been dismissed by
the trial court and no interference is
required in the impugned order. He has
further submitted that the powers given
under
Section
319
Cr,.P.C.
are
discretionary powers of the Court are to
be exercised sparingly and the trial court
after having thoroughly examined the
record, found no substance in the
application
so
moved.
He
further
submitted that the impugned order has
been passed after due consideration of the
material
available
on
record.
He
submitted
that
the
prosecution
has
examined three witnesses and the PW-1,
Ram Kishore, who has lodged the first
information report of this incident named
the opposite party nos.2 and 3 in the first
information report is not an eye-witness
4 All. Ram Kishore Vs. State of U.P. & Ors.
9
of the incident and the PW-2 Shivnathiya,
who is the wife of the complainant and
the mother of the deceased, Sandeep, is
also not an eye-witness and she has only
seen Sandeep going with the accused,
Anoop Kumar and she had not seen the
opposite party nos.2 and 3 going with her
son,
the
deceased
Sandeep.
The
prosecution has also examined PW-3,
Durga Prasad and he said in his statement
during trial that on 25.04.2016 he had
seen the deceased, Sandeep and Anoop
Kumar going on one motor-cycle. He
further deposed that he had also seen
Aniruddh and Shivcharan going on
another motor-cycle along with two
unknown persons. He further deposed that
when he asked from these people they
told him that they are in a hurry and are
going to Rajapur.

6. The provisions of Section 319
Cr.P.C. have been enacted in the Cr.P.C.
with a view to achieve the objective that
the real culprits should not get away
unpunished. By virtue of these provisions
the Court is empowered to proceed
against any persons not shown as an
accused, if it appears from evidence that
such person has committed any offence
for which, he could be tried together with
the other accused persons then he may be
summoned to face the trial.

7. Hon'ble Apex Court in the case of
Hardeep Singh Vs. State of Punjab,
reported in (2014) 3 SCC, 92 has
explained
the
purpose
behind
this
provision, inter-alia in the following :

"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 Code of Criminal Procedure.

13. 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 Cr.P.C.

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."

8. As regards the decree of
satisfaction required for invoking the
powers under Section 319 Cr.P.C., the
Constitution Bench in the case of
Hardeep Singh Vs. State of Punjab
(Supra) has laid down the principles as
follows :

"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
10 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Vs. State of Rajasthan,
2013 (11) SCALE 23, held that on the
objective satisfaction of the court a
person
may
be
'arrested'
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.

105. Power under Section 319
Cr.P.C. 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 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."

9. After careful consideration of the
provisions contained in Section 319
Cr.P.C. it emerges that Section 319 Cr.P.C.
sanction the summoning of any person on
the basis of any relevant evidence as
available on record. However, it being a
discretionary power and an extraordinary
one, is to be exercised sparingly and only
when strong cogent evidence is available
indicating
that
the
proposed
accused/summoned accused may be guilt
of committing offence. The prima facie
opinion which is to be formed for exercise
of this power requires stronger evidence
than mere probability of complicity of a
person. The test to be applied is the one
which is more than a prima facie case as
examined at the time of framing of charge
but not of satisfaction to the extent that
the evidence, if goes uncontroverted,
would lead to the conviction of the
accused as earlier held by the Apex Court.

10. After considering all the material
available on record filed with this revision
and
after
considering
the
evidence
available on record and the impugned
order this Court finds that the impugned
order does not suffer from any illegality,
improbability or infirmity requiring any
4 All. Smt. Savrunisha & Ors. Vs. Bhola Nath
11
interference by this Court. The learned
Additional Sessions Judge after noticing that
there was no admissible evidence on record
indicating the complicity of the opposite party
nos.2 and 3 in the commission of the offence.
The learned trial court has rightly rejected the
application
moved
by
the
complainant/revisionist. This Court after
careful consideration does not find any
illegality, improbability or infirmity in the
impugned order.

11. The revision lacks merit and is
accordingly, dismissed.
----------

(2019)12 ILR A11

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.

Second Appeal No. 521 of 2016

Smt. Savrunisha & Ors. ...Appellants
Versus
Bhola Nath ...Respondent

Counsel for the Appellants:
Sri Narendra Kumar Chaturvedi, Sri Vivek
Singh Shrinet

Counsel for the Respondent:
Sri Umesh Chandra Tripathi

A.Civil Law - Specific Relief Act - Sections
36 & 38 - Permanent Injunction - Suit by
tenant against true owner - Tenant
inducted
as
tenant
without
valid
allocation order under U.P. Act No. 13 of
1972 - such tenant an illegal trespasser
in
possession
-
Not
entitled
to
permanent injunction against true owner
(Para 12)

B. Civil Law - Eviction of unauthorized
occupant - lawful process of eviction of
unauthorized occupant by a true owner -
means grant of an opportunity to the
parties to tender their defence & its
adjudication by a court of law - Once
court finds that the occupant is in
unauthorized
occupation
-
such
unauthorized occupant does not have
any further right to possession over the
disputed premises - said unauthorized
occupant has to vacate the premises
voluntarily, after the adjudication - upon
failure to do so, the said person is liable
to
be
evicted
through
execution
proceedings (Para 21)

Second Appeal dismissed. (E-5)

List of cases cited: -

1. Thomas Cook (India) Ltd. Vs Hotel Imperial
2006(88) DRJ 545

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The second appeal arises from a
judgment and decree dated 11.02.2016
passed in Civil Appeal No.85 of 2015
(Bhola Nath Vs. Savrunisha and others),
rendered by the learned appellate court,
allowing the appeal after reversing the
judgment and decree dated 30.07.2015,
passed by the learned trial court in
Original Suit No.718 of 2007 {Mohd.
Rafeeq (since deceased) Through L.Rs.
Vs. Bhola Nath}. The appellate court
dismissed the suit of the plaintiffsappellants. The learned trial court had
decreed the suit, by granting an injunction
in favour of the plaintiffs-appellants.

2. The suit was originally instituted
by one Mohd. Rafeeq.

3. The plaintiff had filed a suit for
injunction
against
the
defendant-