# Sagar Yadav & Anr. Revisionists v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2019) 2 ILRA 528
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-31
- **Case number:** Criminal Revision No. 2699 of 2019
- **Bench:** Rajul Bhargava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sagar-yadav-anr-revisionists-v-state-of-u-p-anr-opp-parties-44808
- **Pages:** 8

## Headnote

A. Cr.P.C., 1973-Section 319 - Revisionists
though nominated in the F.I.R exonerated
in the Police Report on basis of alibi -"
Evidence" - is limited to the evidence
recorded by the trial court - Statement
recorded under Section 161 of the Cr.Pc -
Has
only
the
limited
purpose
of
contradicting the maker thereof- the other
evidence which has come on record
between the stage of taking cognizance by
the Court till the commencement of the
trial can merely be used for corroborative
purposes - Plea of Alibi- Section 103 of the
Evidence Act - Burden of Proof for
establishing the plea of alibi - Could be
done by leading evidence in trial court and
not by relying on the material collected
during investigation n- The Court in
exercise of its inherent powers under
Section 482 Cr.P.C. cannot consider the
plea of alibi of an accused- Precedent-a
decision is precedent on its own facts- the
only thing binding a party is the ratio
decidendi which is generally secundum
subjectam
materiam-Application
under
Section 319 Cr.P.C.- is maintainable only
when implicative evidence of probative
value more than strong suspicion comes
on record in shape of documentary or oral
evidence in trial - Power under Section 319
of the Code - is conferred on the court to
ensure that justice is done to the society
by bringing to book all those guilty of an
offence and to render justice to the victim.

Scope, ambit and sweep of expression
"evidence" contained under Section 319 Cr.P.C.
and explained in the para 85 in the
Constitution Bench judgement of Hardeep
Singh was not considered in the subsequent
cases in Brijendra Singh's and Shiv Prakash
Mishra's cases to the extent that any evidence
collected during investigation either in favour
of the prosecution or the accused cannot be
taken into account while exercising the power
under
Section
319
Cr.P.C.
In
view
of
unambiguous interpretation to the word
'evidence'; it is limited to the evidence
recorded
by
the
trial
court".
2 All. Sagar Yadav & Anr. Vs State of U.P. & Anr.
529
A decision is precedent on its own facts- The
only thing in Judge's decision binding a party
is the principle upon which the case is decided
and for this reason it is important to analyze a
decision and isolate from it the ratio decidendi.

Application under Section 319 Cr.P.C. is
maintainable only when implicative evidence of
probative value more than strong suspicion
comes on record in shape of documentary or
oral evidence in trial.

Statement under Section 161 Cr.P.C. is not a
substantive piece of evidence. In view of
proviso to subsection (1) of Section 162
Cr.P.C., the statement can be used only with
limited purpose of contradicting the maker
thereof in the manner laid down in the said
proviso.

Consideration of plea of alibi -Section 103 of
Evidence Act - burden of proof as to any
particular fact lies on that person who wishes
the court to believe in its existence, unless it is
proved by any law that proof of that fact lies
on a particular person- The Court in exercise
of its inherent powers under Section 482
Cr.P.C. cannot consider the plea of alibi of an
accused at the stage of taking cognizance,
framing of charges or summoning the accused
on the basis of evidence recorded during trial
under Section 319 Cr.P.C.

The power under Section 319 of the Code is
conferred on the court to ensure that justice is
done to the society by bringing to book all
those guilty of an offence and to render justice
to the victim. One of the aims and purposes of
the Criminal Justice System is to maintain
social order. It is in recognition of this that the
Code has specifically conferred a power in the
court to proceed against others not arrayed as
accused in the circumstances set out by this
Section. Revision accordingly dismissed.

Criminal Revision dismissed (E-3)

Case law relied upon/discussed: -

## Text

528 INDIAN LAW REPORTS ALLAHABAD SERIES
not required to be reversed in appeal.
All these authorities have been referred
and followed in Shivasharanappa and
others vs. State of Karnatapa and
others, 2013(5) SCC 705.

15. In the present case above
principles are not only applicable in
entirety but makes the jurisdiction of this
Court further narrower for the reason that
here the judgment of acquittal has been
challenged in revision where the scope of
judicial review is further limited as
already discussed above and not as wide
as that of Appellate Court. Therefore,
unless there is a patent and culpable
illegality
justifying
interference
in
judgment of acquittal, this Court shall not
and should not interfere in criminal
revision.

16. The revision is dismissed.
Interim order, if any, stands vacated

17. Certify this judgment to the
lower Court immediately.
----------

(2019)10ILR A 528

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE

THE HON'BLE RAJUL BHARGAVA, J.

Criminal Revision No. 2699 of 2019

Sagar Yadav & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri Rajiv Lochan Shukla, Sri Shiv Shankar
Prasad Gupta
Counsel for the Opposite Parties:
A.G.A.

A. Cr.P.C., 1973-Section 319 - Revisionists
though nominated in the F.I.R exonerated
in the Police Report on basis of alibi -"
Evidence" - is limited to the evidence
recorded by the trial court - Statement
recorded under Section 161 of the Cr.Pc -
Has
only
the
limited
purpose
of
contradicting the maker thereof- the other
evidence which has come on record
between the stage of taking cognizance by
the Court till the commencement of the
trial can merely be used for corroborative
purposes - Plea of Alibi- Section 103 of the
Evidence Act - Burden of Proof for
establishing the plea of alibi - Could be
done by leading evidence in trial court and
not by relying on the material collected
during investigation n- The Court in
exercise of its inherent powers under
Section 482 Cr.P.C. cannot consider the
plea of alibi of an accused- Precedent-a
decision is precedent on its own facts- the
only thing binding a party is the ratio
decidendi which is generally secundum
subjectam
materiam-Application
under
Section 319 Cr.P.C.- is maintainable only
when implicative evidence of probative
value more than strong suspicion comes
on record in shape of documentary or oral
evidence in trial - Power under Section 319
of the Code - is conferred on the court to
ensure that justice is done to the society
by bringing to book all those guilty of an
offence and to render justice to the victim.

Scope, ambit and sweep of expression
"evidence" contained under Section 319 Cr.P.C.
and explained in the para 85 in the
Constitution Bench judgement of Hardeep
Singh was not considered in the subsequent
cases in Brijendra Singh's and Shiv Prakash
Mishra's cases to the extent that any evidence
collected during investigation either in favour
of the prosecution or the accused cannot be
taken into account while exercising the power
under
Section
319
Cr.P.C.
In
view
of
unambiguous interpretation to the word
'evidence'; it is limited to the evidence
recorded
by
the
trial
court".
2 All. Sagar Yadav & Anr. Vs State of U.P. & Anr.
529
A decision is precedent on its own facts- The
only thing in Judge's decision binding a party
is the principle upon which the case is decided
and for this reason it is important to analyze a
decision and isolate from it the ratio decidendi.

Application under Section 319 Cr.P.C. is
maintainable only when implicative evidence of
probative value more than strong suspicion
comes on record in shape of documentary or
oral evidence in trial.

Statement under Section 161 Cr.P.C. is not a
substantive piece of evidence. In view of
proviso to subsection (1) of Section 162
Cr.P.C., the statement can be used only with
limited purpose of contradicting the maker
thereof in the manner laid down in the said
proviso.

Consideration of plea of alibi -Section 103 of
Evidence Act - burden of proof as to any
particular fact lies on that person who wishes
the court to believe in its existence, unless it is
proved by any law that proof of that fact lies
on a particular person- The Court in exercise
of its inherent powers under Section 482
Cr.P.C. cannot consider the plea of alibi of an
accused at the stage of taking cognizance,
framing of charges or summoning the accused
on the basis of evidence recorded during trial
under Section 319 Cr.P.C.

The power under Section 319 of the Code is
conferred on the court to ensure that justice is
done to the society by bringing to book all
those guilty of an offence and to render justice
to the victim. One of the aims and purposes of
the Criminal Justice System is to maintain
social order. It is in recognition of this that the
Code has specifically conferred a power in the
court to proceed against others not arrayed as
accused in the circumstances set out by this
Section. Revision accordingly dismissed.

Criminal Revision dismissed (E-3)

Case law relied upon/discussed: -

1. Hardeep Singh Vs St. of Punj. (2014) 3 SCC
92
2. Brijendra Singh & Ors. Vs St. of Raj. (2017)
7 SCC 706
3. Shiv Prakash Mishra Vs St. of U.P.& ors.
passed in Criminal Appeal No.1105 of 2019
(arising out of S.L.P. (Crl.) No.2168 of 2019)
dated 23.7.2019
4. Quinn Vs Leathem (1901) AC 495 Earls of
Halsbury L.C.
5.
St.
of
Har.
Vs
Sher
Singh,
Manu
SC/0236/1981
6. Gurcharan Singh Vs St. of Punj. Manu
SC/0122/1955
7. Chandrika Prasad Singh Vs St. of Bihar
Manu SC/0084/1971
8. St. of Ori. Vs Debendra Nath Padhi (2004) 8
SCC 568

(Delivered by Hon'ble Rajul Bhargava, J.)

1. Heard Sri Rajiv Lochan Shukla
and Sri Shiv Shanker Prasad Gupta,
learned counsels of the revisionists and
Sri Pankaj Saxena, learned A.G.A. for the
State and perused impugned order and
material on record.

2. Present revision has been
preferred against the impugned order
dated 7.05.2019 passed by the Additional
Sessions Judge, Court No.1, Azamgarh in
Session Trial No.49 of 2017 (State Versus
Lakshaman Yadav and others) under
Sections 302, 120-B, 506 I.P.C. and 7
Criminal Law Amendment Act, Police
Station Maharajganj, District Azamgarh,
whereby application 21 kha under Section
319 Cr.P.C. moved by informant/opposite
party no.2 for summoning the revisionists
has been allowed and the revisionists have
been summoned to face trial under
aforesaid sections.

3. The facts, in brief, relevant for
decision of present revision are that
530 INDIAN LAW REPORTS ALLAHABAD SERIES
opposite party no.2 lodged F.I.R. on
22.1.2016 at 2.15 p.m. regarding an
incident which is stated to have taken
place on the same day at 1.00 p.m.. It is
stated that on 12.10.2012 at about 4.00
p.m. accused, Saudagar and Sagar in
collusion with hired assailants had caused
firearm injuries on the informant's son
Vishwajeet alias Santosh in which a case
was registered and one of the accused
Lakshaman was still in jail. The aforesaid
accused,
Saudagar
and Sagar
were
extending threat for entering into a
compromise or else they will face dire
consequences. On 22.1.2016 at about 1.00
p.m. the accused, Sagar and Saudagar
along with two unknown miscreants came
on motorcycle and after waylaying the
tempo of the deceased, made him to fell
on the ground and they resorted to
indiscriminate firing and fled away. After
investigation charge-sheet was submitted
only against accused, Laxman Yadav
under Sections 302, 120-B, 506, 34 I.P.C.
and 7 Criminal Law Amendment Act
However, the participation of revisionist /
accused, Saudagar was found false on the
basis of the some electronic evidences
collected by the Investigating Officer in
the form of Pen Drive and CCTV footage
from
21.1.2016
to
23.1.2016.
The
revisionist no.1, Sagar Yadav was also
exonerated on the ground that he was
present before Consolidation Officer on
22.1.2016 which is about 40 kms away
from the place of incident. During trial
statement of first informant PW 1 was
recorded. He was also an eye-witness. He
had categorically stated that revisionists
and two other accused whose names came
into light subsequently have resorted to
indiscriminate firing in a bright day light
incident and his son died on the spot on
account of multiple firearm wounds of
entry and exit. An application was moved
by the prosecution to summon applicants
under Section 319 Cr.P.C. in view of
categorical
statement
of
the
first
informant regarding participation of the
revisionists by the impugned order.
Learned judge summoned revisionists to
face trial.

4.

Learned
counsel
for
the
revisionists have assailed the impugned
order on the ground that the trial judge
has misinterpreted evidence on record and
has recorded perverse finding about
involvement of revisionists in the crime.
Trial judge did not consider the material
collected during investigation in respect
of their plea of alibi which stood
unrebutted and solely on the basis of
conjectures and surmises summoned the
revisionists to face trial. He has also
conducted mini trial by even going to the
extent of considering the manner in which
the Investigating Officer relied on pen
drive provided by some well-wisher of the
revisionist no.2 from which he had drawn
an inference that he was present at a quite
far away place and arrived at conclusion
that his presence at the spot at the date
and time of the incident is doubtful. It has
been argued that learned judge has
overstepped by scanning the evidence led
against revisionists by rejecting it and
summoning the revisionists in exercise of
powers under Section 319 Cr.P.C.

5.

Learned
counsel
for
the
revisionists submitted that in view the
judgement of Hon'ble Apex Court in the
case of Hardeep Singh Versus State of
Punjab (2014) 3 SCC 92, the trial judge
has not considered the evidence on record
and has relied on extraneous material
without recording satisfaction more than
prima facie satisfaction sufficient for
framing charges is required under the law
2 All. Sagar Yadav & Anr. Vs State of U.P. & Anr.
531
and no such satisfaction to this effect has
been recorded in the impugned order.
Learned counsels have further place
reliance on subsequent decision of the
Hon'ble Apex Court in the case of
Brijendra Singh and others Versus State
of Rajasthan (2017) 7 SCC 706 and
followed in the a recent judgement
rendered by Hon'ble Apex Court in the
case of Shiv Prakash Mishra Versus State
of Uttar Pradesh and another passed in
Criminal
Appeal
No.1105
of
2019
(arising out of S.L.P. (Crl.) No.2168 of
2019) dated 23.7.2019 wherein the plea of
alibi was raised by the accused and
accepted by Investigating Agency which
led to filing of charge-sheet without
arraying the accused therein despite
having been named as one of the
assailants in the F.I.R. and they were
summoned on the basis of testimony
recorded in the trial as one of the
assailants. The powers under Section 319
Cr.P.C. was invoked by the prosecution
which led to allowing of the application
which was assailed in the High Court
whereafter the matter was preferred upto
Supreme Court wherein challenge made
by the accused therein was upheld by
holding that a detailed inquiry has been
conducted by the investigating agency
where the plea of alibi was found to be
true, the trial court was not correct in
allowing the application under Section
319 Cr.P.C. in a perfunctory and cursory
manner without applying its judicial mind
to the exonerative evidence collected by
the
Investigating
Officer
during
investigation. Learned counsels have
submitted that case of the revisionists is
more or less on the same lines as during
investigation on the basis of electronic
evidence and documentary evidence their
participation in the murder of the son of
first informant was found false. Thus the
impugned order is in the teeth of the
guidelines/parameters stated in paragraph
no.106 of Hardeep Singh's case(supra)
and the impugned order is liable to be
quashed.

6. Sri Pankaj Saxena, learned
A.G.A. Appearing for the State has
strongly opposed the prayer for quashing
the impugned order and has relied upon
the Constitution Bench decision of
Hon'ble Apex Court in Hardeep Singh
Versus State of Haryana.. He has further
argued that the plea of alibi cannot be
considered
at
the
stage
of
taking
cognizance or claiming discharge by the
accused under Section 227 of Cr.P.C. and
the trial court while exercising powers
under Section 319 Cr.P.C. The trial judge
has rightly placed reliance on the
statement of PW 1 who is the eye-witness
and had lodged the F.I.R. within one and
half hours of the incident naming the
revisionists and two unknown miscreants.
Therefore, the instant revision deserves to
be dismissed.

7. In order to deal with the
submissions made by learned counsels for
the revisionists, especially in respect of
subsequent judgements rendered by the
Hon'ble Apex Court in Brijendra Singh's
and Shiv Prasad Mishra's cases, I would
like to deal with legal aspect as to what
material/evidence is to be considered
under Section 319 Cr.P.C. as laid down in
the judgements of the Hon'ble Apex Court
in
the
Constitution Bench decision
rendered in the case of Hardeep Singh
(supra).

8. The Hon'ble Apex court in it's
decision of Constitution Bench in the case
of Hardeep Singh(supra) has considered
the scope, ambit and sweep of Section
532 INDIAN LAW REPORTS ALLAHABAD SERIES
319 Cr.P.C. in detail and has framed
several
questions
including
question
No.(iii) which is reproduced below:-

"Question (iii) - Whether the
word "evidence" used in Section 319 (1)
Cr.P.C. has been used in a comprehensive
sense and includes the evidence collected
during
investigation
or
the
word
"evidence" is limited to the evidence
recorded during trial ?"

The above said question has
been answered in the following manner by
the Apex Court :-

"85. In view of the discussion
made
and
the
conclusion
drawn
hereinabove, the answer to the aforesaid
question posed is that apart from evidence
recorded during trial, any material that
has been received by the court after
cognizance is taken and before the trial
commences, can be utilized only for
corroboration and to support the evidence
by the court to invoke the power under
Section 319 Cr.P.C. The "evidence" is
thus limited to the evidence during trial."

9. This Court, after carefully
considering
the
Constitution
Bench
decision of Apex Court in the case of
Hardeep Singh(supra) and subsequent
decisions in Brijendra Singh's and Shiv
Prakash Mishra's cases is of the opinion
that a bare perusal of two Judges's Bench
decision of Apex Court in the Brijendra
Singh's case reveals that though earlier
decision
of
Hardeep
Singh
was
considered, however, the scope, ambit and
sweep of expression "evidence" contained
under Section 319 Cr.P.C. and explained
in the para 85 in the judgement was not
considered in the subsequent cases to the
extent that any evidence collected during
investigation either in favour of the
prosecution or the accused cannot be
taken into account while exercising the
power under Section 319 Cr.P.C. In view
of unambiguous interpretation to the word
'evidence'; it is limited to the evidence
recorded by the trial court".

10. With profound respect and
utmost humility at my command, I may
record that it is well settled that
authority/judicial precedent has to be
understood in context of facts based on
which the observation made therein are
made. The ratio of a decision is generally
secundum subjectam materiam.

11. In Quinn v. Leathem (1901) AC
495, Earls of Halsbury L.C. stated:

"...that every judgment must be
read as applicable to the particular facts
proved, or assumed to be proved, since
the generality of the expressions which
may be found there are not intended to be
expositions of the whole law, but
governed and qualified by the particular
facts
of
the
case
in
which
such
expressions are to be found. The other
case is only an authority for what it
actually decides.

12. It is also well settled that a decision
is precedent on its own facts. Each case
presents its own features. It is not everything
said by a Judge while giving judgement that
constitutes a precedent. The only thing in
Judge's decision binding a party is the
principle upon which the case is decided and
for this reason it is important to analyze a
decision and isolate from it the ratio
decidendi.

13. This court indeed cannot
comment on the decision of Hon'ble Apex
2 All. Sagar Yadav & Anr. Vs State of U.P. & Anr.
533
Court in the Brijendra Singh and Shiv
Prakash Mishra's cases(supra) but two
conflicting views appeared to exist on the
same point of meaning of expression
''evidence' used in Section 319 Cr.P.C.,
the decision of Hon'ble Apex Court in the
case of Hardeep Singh rendered by Bench
of larger composition shall prevail upon
Brijendra Singh's and another decision.

14. In view of the above, this Court
has no hesitation to hold that the
expression "evidence" found in Section
319 Cr.P.C. is to be understood to mean
the evidence collected during the trial in
shape of oral and documentary evidence.
However, the other evidence which has
come on record between the stage of
taking cognizance by the Court till the
commencement of the trial can merely be
used for corroborative purposes as laid
down by the Apex Court in five Judge
Bench decision in the case of Hardeep
Singh. In other words, an application
under Section 319 Cr.P.C. is maintainable
only
when
implicative
evidence
of
probative
value
more
than
strong
suspicion comes on record in shape of
documentary or oral evidence in trial.
While considering such application under
Section 319 Cr.P.C. the trial court can
take assistance, for corroboration only, of
any evidence which is already on record
introduced between the stage of taking
cognizance
and
the
stage
of
commencement of trial. However, the
trial court is not empowered to invoke
Section 319 Cr.P.C. merely based on
evidence which is part of investigation
stage unless the same is already brought
on record between the period of taking
cognizance and before the trial begins.

15. Essentially, the main thrust of
the learned counsels for the revisionists is
to the plea of alibi which according to
them was of an impeccable quality and
thus the trial judge instead of rejecting the
same on flimsy ground should have
considered the same as it was tested by
electronic evidence and documentary
evidence and in this behalf statement of
witnesses was also recorded by the
Investigating Officer under Section 161
Cr.P.C. to record a positive finding that
the revisionists could not have been
present at the scene of commission of crime.
It is well settled that statement under Section
161 Cr.P.C. is not a substantive piece of
evidence. In view of proviso to subsection
(1) of Section 162 Cr.P.C., the statement can
be used only with limited purpose of
contradicting the maker thereof in the
manner laid down in the said proviso.
Therefore, the trial judge was perfectly
justified in not placing reliance on wholly
inadmissible evidence of alibi collected
during investigation and if he had relied upon
the same it would squarely be against
interpretation given by Constitution Bench of
Hon'ble Apex Court in Hardeep Singh's case
being extraneous material collected during
investigation and could not be treated as an
evidence for the purposes of exercise of
powers
under
Section
319
Cr.P.C.
Consideration of plea of alibi while
exercising powers under Section 319 Cr.P.C.
may also be looked into from another angle
i.e. Section 103 of Evidence Act which
stipulates that burden of proof as to any
particular fact lies on that person who wishes
the court to believe in its existence, unless it
is proved by any law that proof of that fact
lies
on
a
particular
person.
Second
illustration to Section 103 of Evidence Act
reads as under:

"B wishes the court to believe
that at that time in question he was
elsewhere, he must prove it."
534 INDIAN LAW REPORTS ALLAHABAD SERIES

16. This provision makes it obvious
that burden of establishing plea of alibi of
the revisionists before this Court lay
squarely upon them. There is hardly any
doubt regarding this legal proposition.
Reference may be made to the cases of
State of Haryana Versus Sher Singh,
Manu SC/0236/1981, Gurcharan Singh
Versus
State
of
Punjab,
Manu
SC/0122/1955 and Chandrika Prasad
Singh Versus State of Bihar Manu
SC/0084/1971.

17. This could be done by leading
evidence in trial court and not by relying
on
the
material
collected
during
investigation.
In
such
a
case
the
prosecution would have to be given an
opportunity to cross-examine this witness
can demonstrate that their testimony was
not correct. The Court also in exercise of
its inherent powers under Section 482
Cr.P.C. cannot consider the plea of alibi
of an accused at the stage of taking
cognizance,
framing
of
charges
or
summoning the accused on the basis of
evidence recorded during trial under
Section 319 Cr.P.C. The revisionists
accused will have ample opportunity to
place their evidence at the appropriate
stage. In this behalf the judgement of the
Hon'ble Apex Court, rendered in the case
of State of Orissa Versus Debendra
Nath Padhi, 2004(8) Supreme Court
Cases 568 be referred to. It was held:

" .....Further, at the stage of
framing of charge roving and fishing
inquiry is impermissible. If the contention of
the accused is accepted, there would be a
mini trial at the stage of framing of charge.
That would defeat the object of the Code. It
is well-settled that at the stage of framing of
charge the defence of the accused cannot be
put forth. The acceptance of the contention
of the learned counsel for the accused
would mean permitting the accused to
adduce his defence at the stage of framing
of charge and for examination thereof at
that stage which is against the criminal
jurisprudence. By way of illustration, it may
be noted that the plea of alibi taken by the
accused may have to be examined at the
stage of framing of charge if the contention
of the accused is accepted despite the well
settled proposition that it is for the accused
to lead evidence at the trial to sustain such
a plea. The accused would be entitled to
produce materials and documents in proof
of such a plea at the stage of framing of the
charge, in case we accept the contention put
forth on behalf of the accused. That has
never been the intention of the law well
settled for over one hundred years now. It is
in this light that the provision about hearing
the
submissions
of
the
accused
as
postulated by Section 227 is to be
understood. It only means hearing the
submissions of the accused on the record of
the case as filed by the prosecution and
documents submitted therewith and nothing
more.
The
expression
'hearing
the
submissions of the accused' cannot mean
opportunity to file material to be granted to
the accused and thereby changing the
settled law. At the state of framing of charge
hearing the submissions of the accused has
to be confined to the material produced by
the police."

18. The above judgement relates to
the stage of claiming of discharge by the
accused under Section 227 Cr.P.C.
However, in view of well settled law that
even at the stage of framing of charge,
material in respect of plea of alibi cannot
be relied upon to discharge the accused.

19. The power under Section 319 of
the Code is conferred on the court to
2 All. Aviral Singh & Anr. Vs State of U.P. & Anr.
535
ensure that justice is done to the society
by bringing to book all those guilty of an
offence. One of the aims and purposes of
the Criminal Justice System is to maintain
social order. It is necessary in that context
to ensure that no one who appears to be
guilty escapes a proper trial in relation to
that guilt. There is also a duty to render
justice to the victim of the offence. It is in
recognition of this that the Code has
specifically conferred a power in the court
to proceed against others not arrayed as
accused in the circumstances set out by
this Section. It is a salutary power
enabling the discharge of a court's
obligation to the society to bring to book
all those guilty of a crime.

20. In the light of aforesaid, the present
revision is bereft of merit. The impugned
order passed by trial judge is perfectly
justified
and
well
within
the
guidelines/parameters
laid
down
by
Constitution Bench decision of Hon'ble Apex
Court in the case of Hardeep Singh's case.

21. The revision is accordingly,
dismissed.
----------

(2019)10ILR A 535

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2019

BEFORE

THE HON'BLE DINESH KUMAR SINGH-I, J

Criminal Revision No. 2952 of 2019

Aviral Singh & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri Gopal Misra

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

A. Cr.P.C., 1973 - Section 397/401 and
Section 227 - Discharge - Requirement
at stage of Section 227 & 228 Cr.PC. -
Consideration of the "record of the case"
and hearing the parties- Ground of
Presumption is enough to frame the
Charge - Satisfaction of the court - may
even be weaker than prima-facie case -
At the stage of framing of charge, strong
suspicion and not proof is sufficientQuestions
of
facts
are
matters
of
evidence which can only be appreciated
during trial. (Para 9,11,12,13 &14)

On the basis of the allegation made by the
victim against the accused there arises grave
suspicion in respect of the victim having been
attempted to be raped as was stated by her in
her statement given under Section 164 Cr. P.C.
and it is also true that the trial court was not
required to make a roving enquiry regarding
commission of the offence.

The arguments which have been raised before
the trial court relate to the factual aspect of
the case, finding where on would be possible
only after trial is conducted by adducing
evidence of both the sides and its appreciation
is made.

The court is required to consider the "record of
the case" and the documents submitted
therewith and, after hearing the parties may
either discharge the accused or where it
appears to the court and in its opinion there is
ground for presuming that the accused has
committed an offence, it shall frame the
charge. The satisfaction of the court in relation
to the existence of constituents of an offence
and the facts leading to that offence is a sine
qua non for exercise of such jurisdiction. It
may even be weaker than prima-facie case. At
the initial stage of framing of charge, the court
is concerned not with proof but with a strong
suspicion that the accused has committed an
offence, which, if put to trial, could prove him
guilty.