# Ramesh Revisionist v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 295
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-11
- **Case number:** Criminal Revision No. 661 of 2017
- **Bench:** Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-revisionist-v-state-of-u-p-ors-45398
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401 - Indian
Penal Code, 1860- Sections 147, 148, 149,
342, 302, 504, 506 & SC/ST Act, 1989Sections
3(1)(x),
3(2)(v)-applicationrejection-Challenge
to-rejection
order
regarding
summoning
of
other
four
accused u/s 319-Investigating officers
had not found any reliable evidence
296 INDIAN LAW REPORTS ALLAHABAD SERIES
against them-From the evidence of PW-1
and PW-2 involvement of other four
accused
in
the
incident
was
not
established-Hence,
trial
court
rightly
rejected
the
application-the
power
conferred to the trial court to summon an
accused u/s 319 CrPC is an extra-ordinary
power
and
it
should
be
used
very
sparingly.(Para 3 to 18)

B. Though only a prima facie case is to be
established form 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
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 u/s 319 Cr.P.C. In the
present
case,
the
trial
court
had
considered the rival submissions and
prima facie satisfied that there is no
cogent evidence available to summon the
other four accused along with other coaccused persons. (Para 7 to 12)

The revision is dismissed. (E-6)

List of Cases Cited:-

## Text

11 All. Ramesh Vs. State of U.P. & Ors.
295
the court has still not begun. What is
available is the material that has been
submitted before the court along with the
charge-sheet. In such situation, the court
only has the preparatory material that has
been placed before the court for its
consideration in order to proceed with the
trial by framing of charges.

83.It
is,
therefore,
not
any
material that can be utilised, rather it is
that material after cognizance is taken by a
court, that is available to it while making
an inquiry into or trying an offence, that
the
court
can
utilise
or
take
into
consideration for supporting reasons to
summon any person on the basis of
evidence adduced before the court, who
may be on the basis of such material,
treated to be an accomplice in the
commission of the offence. The inference
that can be drawn is that material which is
not exactly evidence recorded before the
court, but is a material collected by the
court, can be utilised to corroborate
evidence already recorded for the purpose
of summoning any other person, other than
the accused. This would harmonise such
material with the word "evidence" as
material that would be supportive in nature
to facilitate the exposition of any other
accomplice whose complicity in the offence
may have either been suppressed or
escaped the notice of the court."

6. In view of the discussions made
herein above, the submissions made by the
learned counsel for the revisionists are not
found to be cogent enough to quash the
order impugned in the present revision.
Consequently, the present revision is
accordingly dismissed.

7. However, it is observed that if the
bail has not been obtained as yet, the
accused-revisionist may appear before the
court below and apply for bail within two
months from today. The court below shall
make an endeavour to decide the bail
application
keeping
in
view
the
observations made by the Court in the Full
Bench decision of Amrawati and another
Vs. State of U.P. 2004 (57) ALR 290 and
also in view of the decision given by the
Hon'ble Supreme Court in the case of Lal
Kamlendra Pratap Singh Vs. State of
U.P. 2009 (3) ADJ 322 (SC).

8. In the aforesaid period or till the
date of appearance of the accused in the
court below, whichever is earlier, no
coercive measures shall be taken or given
effect to.
----------
(2020)11ILR A295
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2020

BEFORE
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Criminal Revision No. 661 of 2017

Ramesh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Anil Kumar

Counsel for the Opposite Parties:
A.G.A., Sri Shiv Badan Singh, Sri Vijay
Bahadur Shivhare

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401 - Indian
Penal Code, 1860- Sections 147, 148, 149,
342, 302, 504, 506 & SC/ST Act, 1989Sections
3(1)(x),
3(2)(v)-applicationrejection-Challenge
to-rejection
order
regarding
summoning
of
other
four
accused u/s 319-Investigating officers
had not found any reliable evidence
296 INDIAN LAW REPORTS ALLAHABAD SERIES
against them-From the evidence of PW-1
and PW-2 involvement of other four
accused
in
the
incident
was
not
established-Hence,
trial
court
rightly
rejected
the
application-the
power
conferred to the trial court to summon an
accused u/s 319 CrPC is an extra-ordinary
power
and
it
should
be
used
very
sparingly.(Para 3 to 18)

B. Though only a prima facie case is to be
established form 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
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 u/s 319 Cr.P.C. In the
present
case,
the
trial
court
had
considered the rival submissions and
prima facie satisfied that there is no
cogent evidence available to summon the
other four accused along with other coaccused persons. (Para 7 to 12)

The revision is dismissed. (E-6)

List of Cases Cited:-

1. Hardeep Singh Vs St. of Punj. & ors. (2014) 1
JIC 539 SC

2. Babubhai Bhimabhai Bokhiria & anr. Vs St. of
Guj. & ors, (2014) 5 SCC 568

3. Shiv Prakash Mishra Vs St. of U.P & anr.
(2019) 7 SCC 806

4. Ashish Chadha Vs Asha kumari & anr. (2012)
1 SCC 680

(Delivered by Hon'ble Vipin Chandra Dixit, J.)

1. This criminal revision has been
filed against the order dated 4.2.2017
passed by Special Judge, S.C./S.T. (P.A.)
Act, Hamirpur in Special Case No.24 of
2013 by which application filed by
revisionist under Section 319 of Cr.P.C.
was rejected.

2. The brief facts of the case are that the
revisionist had lodged an F.I.R. on 7.10.2012
against 10 accused namely (1) Dev Singh, (2)
Satish, (3) Brajesh, (4) Arun, (5) Santosh, (6)
Omkar, (7) Rajesh, (8) Sunil, (9) Santosh and
(10) Awadhesh, which was registered as Case
Crime No.462 of 2012, under Sections 147,
148, 149, 342, 302, 504, 506 I.P.C. and
Sections 3(1)(x) and 3(2)(v) S.C./S.T. Act in
P.S. Kurara, District Hamirpur. It was alleged
in the F.I.R. that the accused persons had
committed murder of informant's brother
Jaitpal. The Police after investigation had
submitted charge-sheet against (1) Dev
Singh, (2) Satish, (3) Santosh, (4) Sunil, (5)
Awadhesh and (6) Santosh but no chargesheet was submitted against other four
accused namely (1) Brajesh, (2) Arun, (3)
Rajesh and (4) Omkar. The trial was
proceeded and the prosecution had examined
two witnesses of fact namely Ramesh
(informant) as P.W.-1 and Jagannath as P.W.-
2. After the evidence of P.W.-1 and P.W.-2
the informant/revisionist had moved an
application on 16.5.2016 (although provision
was not mentioned) under Section 319 of
Cr.P.C. to summon and try the opposite party
nos.2, 3, 4 & 5 (whose name were not in
charge-sheet) along with other co-accused.
The learned trial court after considering the
evidence of P.W.-1 and P.W.-2 and other
materials brought on record, had rejected the
application which is Paper No.43-Ka under
Section 319 Cr.P.C. vide order dated
4.2.2017, which is impugned in the present
criminal revision.

3. Heard Sri Anil Kumar, learned
counsel for the revisionist, Sri Raj Kamal
Srivastava, learned A.G.A. for the State
11 All. Ramesh Vs. State of U.P. & Ors.
297
and Sri Vijay Bahadur Shiv Hare, learned
counsel for opposite party nos.2 to 5.

4.

The
learned
counsel
for
revisionist/informant has submitted that the
opposite party nos.2 to 5 were also
accompanying with other co-accused and
committed the murder of his brother Jaitpal
but the Investigating Officer did not submit
a charge-sheet against them whereas from
the evidence of P.W.-1 and P.W.-2 the
offence against opposite party nos.2 to 5
are fully proved and they are also liable to
be tried along with other co-accused. The
trial court has committed illegality in
rejecting the application filed under Section
319 Cr.P.C. by the impugned order. It is
further submitted by learned counsel for the
revisionist that the entire facts and
circumstances of the case had not been
properly considered by the trial court and
the application was rejected in a very
casual manner.

5. On the other hand, learned A.G.A.
for the State as well as learned counsel for
opposite party nos.2 to 5 have submitted
that the trial court after considering the
entire evidence of P.W.-1 & P.W.-2 has
rightly passed the order dated 4.2.2017.
From the evidence of P.W.-1 and P.W.-2
the involvement of opposite party nos.2 to
5 in the incident was not established. It is
further submitted that opposite party nos.2
to 5, who are sons of accused Dev Singh
were named in the F.I.R. and during
investigation the Investigating Officer has
not found any reliable evidence against
them therefore charge-sheet has not been
submitted against them. It is further
submitted by learned counsel for opposite
party nos.2 to 5 that P.W.-1 & P.W.-2 are
real brothers and are interested witnesses
and their evidence are not reliable. It is
further submitted that the Police neither
had filed charge-sheet against opposite
party nos.2 to 5 nor has submitted the final
report against them as they are absconders.
Lastly, it is submitted that the trial court
after prima-facie satisfaction that the
involvement of opposite party nos.2 to 5
are not established from the evidence of
P.W.-1 and P.W.-2, had rightly rejected the
application under Section 319 Cr.P.C. filed
by the revisionist.

6. Learned counsel for opposite party
nos.2 to 5 has further submitted that the
powers given under Section 319 of Cr.P.C.
are discretionary powers of the court and
are to be exercised sparingly and the trial
court after having thoroughly examined the
record
found
no
substance
in
the
application filed under Section 319 Cr.P.C.
and has rightly rejected the same.

7. Before considering the merits of
the contention of rival parties it is
necessary to refer to Section 319 Cr.P.C.
which reads as under:-

"319. Power to proceed against
other persons appearing to be guilty of
offence.

(1) 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.

(2) Where such person is not
attending the Court, he may be arrested or
summoned, as the circumstances of the
case
may
require,
for
the
purpose
aforesaid.

(3) Any person attending the
Court, although not under arrest or upon a
298 INDIAN LAW REPORTS ALLAHABAD SERIES
summons, may be detained by such Court
for the purpose of the inquiry into, or trial
of, the offence which he appears to have
committed.

(4) Where the Court proceeds
against any person under sub- section (1),
then-

(a) the proceedings in respect of
such person shall be commenced a fresh,
and the witnesses re- heard;

(b) subject to the provisions of
clause (a), the case may proceed as if such
person had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced."

8. By bare reading of Section 319
Cr.P.C. it is clear that the power under
Section 319 Cr.P.C. can be exercised by the
trial court at any stage during trial to
summon any person as an accused to face
the trial if it appears from the evidence that
such person has committed any offence for
which such person could be tried together
with other accused.

9. The provisions of Section 319
Cr.P.C. have been enacted in the Code of
Criminal Procedure with a view to achieve
objective that the real culprit should not get
away
unpunished
and
the
court
is
empowered to proceed against any person
not shown as an accused if it appears from
the
evidence
that
such
person
has
committed any offence then he may be
summoned to face the trial along with other
co-accused.

10. The Full Bench of Hon'ble Apex
Court in the case of Hardeep Singh Vs.
State of Punjab and others reported in
2014 (1) JIC 539 (SC) has laid down the
principles in respect of summoning the
persons who were not charge-sheeted
during investigation but from the evidence
they were found guilty for committing such
an offence. The relevant paragraphs 96, 97,
107, 108 are quoted hereunder:-

"96. 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- Judges
Bench of this Court in Vikas v. 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.

97. In Rajendra Singh (Supra),
the Court observed:

"Be it noted, the court need not
be satisfied that he has committed an
offence. It need only appear to it that he
has committed an offence. In other words,
from the evidence it need only appear to it
that someone else has committed an
offence, to exercise jurisdiction under
Section 319 of the Code. Even then, it has a
discretion not to proceed, since the
expression used is "may" and not "shall".
The legislature apparently wanted to leave
that discretion to the trial court so as to
enable it to exercise its jurisdiction under
this section. The expression "appears"
indicates an application of mind by the
court to the evidence that has come before
it and then taking a decision to proceed
under Section 319 of the Code or not."

107. Power under Section 319
Cr.P.C. is a discretionary and an extra-
ordinary power. It is to be exercised
11 All. Ramesh Vs. State of U.P. & Ors.
299
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.

108. 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 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.

11. The power of trial court under
Section 319 Cr.P.C. in respect to arraign
any person as an accused during the course
of enquiry or trial is also dealt with by
Hon'ble the Apex Court in the case of
Babubhai
Bhimabhai
Bokhiria
and
another Vs. State of Gujarat and others,
reported in (2014) 5 SCC 568, the relevant
paragraph 8 is quoted hereunder:-

"8. Section 319 of the Code
confers power on the trial court to find out
whether a person who ought to have been
added as an accused has erroneously been
omitted or has deliberately been excluded
by the investigating agency and that
satisfaction has to be arrived at on the
basis of the evidence so led during the trial.
On the degree of satisfaction for invoking
power under Section 319 of the Code, this
Court observed that though the test of
prima facie case being made out is same as
that when the cognizance of the offence is
taken and process issued, the degree of
satisfaction under Section 319 of the Code
is much higher."

12. The same view has been taken by
Hon'ble Apex Court in latest decision
reported in (2019) 7 SCC 806 Shiv
Prakash Mishra Vs. State of Uttar
Pradesh
and
another.
The
relevant
paragraph 10 is quoted herein below:-

"10. The standard of proof
employed for summoning a person as an
accused person under Section 319 Cr.P.C.
is higher than the standard of proof
employed for framing a charge against the
accused person. The power under Section
319 Cr.P.C. should be exercised sparingly.
As held in Kailash v. State of Rajasthan:
(SCC p. 55, para 9)

"9.
............
the
power
of
summoning an additional accused under
Section 319 Cr.P.C. should be exercised
sparingly. The key words in Section are "it
appears
from
the
evidence"....
"any
person".... "has committed any offence". It
is not, therefore, that merely because some
witnesses have mentioned the name of such
person or that there is some material
against that person, the discretion under
Section 319 Cr.P.C. would be used by the
court."
300 INDIAN LAW REPORTS ALLAHABAD SERIES

13. It has been repeatedly held by the
Hon'ble Apex Court in series of cases that
the power to summon an accused is an
extra-ordinary power conferred on the
Court and should be used very sparingly
and only if compelling reasons exist for
taking cognizance against other persons
against whom action has not been taken.
The powers conferred to the trial court
under Section 319 Cr.P.C. are discretionary
and it should not be applied mechanically.

14. The trial court had recorded the
findings while passing the impugned order
that
the
Investigating
Officer
while
submitting the charge-sheet disclosed 20
witnesses in which several witnesses are the
witnesses of fact whereas only statement of
Ramesh and his brother Jagannath were
recorded as P.W.-1 and P.W.-2 and other
witnesses of facts still have to be examined.
From the evidence of two real brothers of the
deceased the involvement of opposite party
nos.2 to 5 in the commission of crime are not
prima-facie established. The powers of trial
court under Section 319 Cr.P.C. are
discretionary in nature and after considering
the evidence and material which are brought
on record, the trial court prima-facie was
satisfied that the involvement of opposite
party nos.2 to 5 are not established and has
rejected
the
application
filed
by
the
informant/revisionist.

15. The Hon'ble Apex Court in the
case of Ashish Chadha Vs. Asha Kumari
and another reported in (2012) 1 SCC 680
has laid down the law that it is the trial
court which has to decide whether evidence
on record is sufficient to make out a primafacie case against the accused. The relevant
paragraph 21 is referred as under:-

"21. In this connection, we may
usefully refer to the observations of this
court in Munna Devi vs. State of Rajasthan
& another (SCC p.632, para 3).

"3. We find substance in the
submission
made
on
behalf
of
the
appellant. The revision power under the
Code of Criminal Procedure cannot be
exercised in a routine and casual manner.
While exercising such powers the High
Court has no authority to appreciate the
evidence in the manner as the trial and the
appellate courts are required to do.
Revisional powers could be exercised only
when it is shown that there is a legal bar
against the continuance of the criminal
proceedings or the framing of charge or the
facts as stated in the first information
report even if they are taken at the face
value and accepted in their entirety do not
constitute the offence for which the accused
has been charged."

16. The Hon'ble Apex Court laid
down the law that the High Court while
exercising the revisional jurisdiction has no
authority to appreciate the evidence in the
manner as the trial court and the appellate
court are required to do. The revisional
powers under the Code of Criminal
Procedure cannot be exercised in a routine
and casual manner and while exercising the
revisional power the High Court has no
authority to appreciate the evidence and it
could be exercised only when it is shown
that there is legal bar against the
continuance of the criminal proceedings. In
the present case the trial court had
considered the rival submissions of parties
and has prima-facie satisfied that there is
no cogent evidence available to summon
the opposite party nos.2 to 5 along with
other co-accused persons. The revisionist
had failed to point out any illegality or
irregularity in the order passed by trial
court rejecting the application under
Section 319 Cr.P.C.
11 All. Surendra Kumar Shukla Vs. C.B.I.
301

17. The power confered to the trial
court to summon an accused under Section
319 Cr.P.C. is an extra-ordinary power and
it should be used very sparingly and not be
applied mechanically. In the present case
the trial court has not committed any
illegality or infirmity in rejecting the
application after prima-facie satisfaction
that
the
evidence
adduced
by
the
prosecution
did
not
establish
the
involvement of opposite party nos.2 to 5 in
the crime. The evidence brought on record
during trial does not prima facie show the
complicity of opposite parties no.2 to 5 in
the occurrence and the trial court has
rightly refused to summon them as accused.

18. After considering the rival
submissions of the parties as well as
material brought on record, the impugned
order does not suffer from any illegality or
irregularity and the learned trial court has
not committed any error in rejecting the
application filed by revisionist under
Section 319 Cr.P.C. The revisionist has
failed to point out any infirmity or illegality
in the order. The present criminal revision
lacks merits and deserves to be dismissed.

19. Accordingly, the criminal revision
is dismissed.
----------
(2020)11ILR A301
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.10.2020

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Criminal Revision Defective No. 697 of 2020

Surendra Kumar Shukla ...Revisionist
Versus
C.B.I. ...Opposite Party

Counsel for the Revisionist:
Sri Mehul Khare, Sri Prakash Sinha

Counsel for the Opposite Party:
Sri Sanjay Kumar Yadav, Sri Gyan Prakash

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401 - Indian
Penal Code, 1860- Sections 120-B, 420,
467, 468, 471 - Prevention of Corruption
Act, 1988-Section 13(2) r/w 13(1)(d)-
application-rejection-challenge
to
-
discharge
application-revisionist/auditor
conspired to dupe the bank by forged and
manufactured documents along with other
accused-revisionist cannot be absolved as
the revisionist wilfully gave false opinion
and signed the document mechanicallyrevisionist acted unprofessionally with
dishonest intention to favour the accused
persons for pecuniary gain and causing
wrongful loss to the bank-trial court
committed no error in rejecting the
application.(Para 3 to 27)

B. Turning to charge u/s 120-B IPC, an
agreement between two or more persons
to do or cause to be done an illegal act or
an act which is not illegal, by illegal
means. It differs from the other offences
in that mere agreement is made an
offence even if no step is taken to carry
out the agreement. A conspiracy from its
very nature is generally hatched in
secret. It is, therefore, extremely rare
that
direct
evidence
in
proof
of
conspiracy can be forthcoming. But like
other offences criminal conspiracy can be
proved
by
circumstantial
evidence.
Indeed, in most cases proof of conspiracy
is largely inferential though the inference
must
be
founded
on
solid
facts,
surrounding
circumstances
and
antecedent
and
subsequent
conduct,
amongst
other
factors,
constituting
relevant material. The agreement or
understanding
may
be
proved
by
necessary implication to do an unlawful
act by unlawful means.(Para 24)

The revision is dismissed. (E-6)

List of Cases Cited:-