# Sarvajeet & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 668
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-20
- **Case number:** Criminal Revision No. 1165 of 2013
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarvajeet-ors-revisionists-v-state-of-u-p-anr-49726
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 161 & 319 -
Indian Penal Code, 1860 - Sections 498-A
& 306 - Criminal Revision against - order
impugned by which - Court below on an
application of prosecution, summoned the
additional accused - Validity - Offences under
section 498-A and 306 IPC - FIR - version of FIR
that, being fed up with the torture of her
husband victim jumped into well with her two
minor sons to commit suicide - Name of
proposed accused is not mentioned in FIR -
Victim and informant had not implicated
proposed accused in their St.ments - Proposed
accused implicated for the first time in St.ments
before court - court finds that, the learned trial
court has materially erred in allowing the
application u/s 319 CrPC - there is inherent
contradictions in the prosecution case and trial
Court had also failed to record its satisfaction
required for summoning accused - hence, the
impugned order for summoning the additional
accused is not sustainable in the eyes of law -
revision allowed. (Para - 9, 10)

Revision Allowed. (E-11)

List of Cases cited: -

## Text

668 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 2 ILRA 668
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 1165 of 2013

Sarvajeet & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Manish Tiwary, Sri Ashwini Kumar
Awasthi, Sri Ashok Kumar Singh, Sri
Nirbhay Singh

Counsel for the Opposite Parties:
Govt. Advocate

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 161 & 319 -
Indian Penal Code, 1860 - Sections 498-A
& 306 - Criminal Revision against - order
impugned by which - Court below on an
application of prosecution, summoned the
additional accused - Validity - Offences under
section 498-A and 306 IPC - FIR - version of FIR
that, being fed up with the torture of her
husband victim jumped into well with her two
minor sons to commit suicide - Name of
proposed accused is not mentioned in FIR -
Victim and informant had not implicated
proposed accused in their St.ments - Proposed
accused implicated for the first time in St.ments
before court - court finds that, the learned trial
court has materially erred in allowing the
application u/s 319 CrPC - there is inherent
contradictions in the prosecution case and trial
Court had also failed to record its satisfaction
required for summoning accused - hence, the
impugned order for summoning the additional
accused is not sustainable in the eyes of law -
revision allowed. (Para - 9, 10)

Revision Allowed. (E-11)

List of Cases cited: -
1. Sunil Tyagi Vs Government of NCT of Dehi,
(2021) 0 Supreme (Del) 831,

2. Pepsi Foods Ltd. & anr. Vs Special Judicial
Magistrate & ors., (1998) 5 SCC 749,

3. Dhariwal Tobacco Products Ltd. & ors. Vs St.
of Mah. & anr., (2009) 2 SCC 370,

4. Vishnu Agarwal Vs St. of U.P. & anr., (2011)
14 SCC 813,

5. Madhu Limaye & ors. Vs Unknown, (1969) 1
SCC 292,

6. Inder Mohan Goswami & anr. Vs St. of
Uttaranchal, (2007) 12 SCC 1,

7. Adalat Prasad Vs Roopal Jindal & ors., (2004)
7 SCC 338,

8. K.M. Mathew Vs St. of Ker., (1992) 1 SCC 217,

9. Mohd. Zakir Vs Shabana & ors., (2018 Vol. 15
SCC 316),

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

1. Heard learned counsel for the
revisionists, learned AGA for the State.

2. None is present on behalf of opposite
party no.2 despite service of notice.

3. This criminal revision is directed
against the order dated 27.02.2013 passed by
Additional Sessions Judge court no.24,
Allahabad in S.T. No.755 of 2011 (State vs.
Ram Babu). By the impugned order, the
learned trial court in exercise of powers U/s
319 Cr.P.C. On an application of prosecution
has summoned the revisionist-accused to face
trial for the offence U/s 498A & 306 IPC with
co-accused Ram Babu.

4. The perusal of the record,
transpires that an FIR was lodged on
2 All. Sarvajeet & Ors. Vs. State of U.P. & Anr.
669
05.06.2002 at 04:00 pm by Ramendra
Singh, the brother of opposite party no.2
regarding the incident alleged to have taken
place on 05.06.2002 at about 2:30 pm. It
was alleged that the marriage of sister of
the complainant was solemnized with Ram
Babu Singh in the year 1993. As the
complainant was poor person, sufficient
dowry was not given. Since last two years
years his sister being tortured making
allegations of theft of a chain. She was
beaten today due to which she with her two
minor sons jumped into the well. Her both
sons have died while the sister has been
saved. In this FIR in question/answer, it is
also mentioned that the name of the sister
of the complainant is Tara and she was
being tortured by her husband Ram Babu
who abeted her to commit suicide with her
two sons aged about five and three years
named Golu and Molu. After investigation,
charge-sheet was submitted against Ram
Babu Singh. During the course of trial, an
application U/s 319 Cr.P.C. was filed by the
victim/ prosecution alleging therein that the
marriage of the victim was solemnized with
Ram Babu and two sons Golu aged about 5
years and Molu aged about 3 years were
born out of their wedlock. She was being
harassed and tortured by her husband Ram
Babu, Dewar Shiv Babu, the parent-in-laws
namely Sona Devi and Sarvajeet Singh for
demand of dowry. On 05.06.2002 being fed
up with the torture, she was leaving for her
mayaka with her sons then her husband and
mother-in-law tried to push her in the well
while her father in law and dewar were
exhorting them. She with her both sons fell
in the well being pushed by her husband
and mother-in-law. A case crime no.194 of
2002 U/s 498A and 306 IPC was registered
at P.S. Sarai Inayat, District Allahabad
regarding the aforesaid incident, in which it
is mentioned that the parent-in-laws,
husband and dewar were involved in the
incident. This fact is further corroborated in
the application moved U/s 156 (3) Cr.P.C.
and statement of the victim recorded before
the trial court. On the aforesaid ground,
prayer was made to summon Sarvajeet
Singh, Sona Devi and Shiv Babu. The
learned trial court by the impugned order
has allowed the application and summoned
the revisionist-accused U/s 319 Cr.P.C.

5. Learned counsel for the revisionists
contended that FIR was registered only against
Ram Babu Singh the husband of Tara Devi
and it was alleged that he was torturing his
wife Tara Devi, due to his torture she with her
two sons Golu and Molu jumped into a well.
In the statement recorded U/s 161 Cr.P.C. the
first informant Ramendra Singh as well as
Tara Devi reiterated the aforesaid allegations
of the FIR and have not taken the name of
revisionists- accused. Charge-sheet was also
submitted only against Ram Babu Singh. In
the statements before the trial court, the first
informant Ramendra Singh P.W.-1 and Tara
Devi P.W.-2 have put up a different story
implicating the revisionist-accused. In the
previous
statements,
it
is
specifically
mentioned that the victim Tara Devi with her
husband Ram Babu Singh live separately. It is
further contended that the impugned order,
does not show that their exist any compelling
reasons to summon the revisionist. The trial
court has also not recorded its satisfaction that
from the evidence the revisionists have
committed the alleged offence. The impugned
order has been passed in a routing manner.
There is no credible evidence for their
summoning and no offence is made out
against them The order passed by the court
below is wholly illegal, perverse and against
the settled principle of law.

6. Learned AGA contended that
although the revisionists were not named in
the FIR but the complainant and the victim
670 INDIAN LAW REPORTS ALLAHABAD SERIES
in their statement before the court have
implicated
them.
There
are
specific
averments about their complicity in the
offence. The learned trial court after
analyzing the evidence on record has come
to the conclusion that there is sufficient
evidence and has passed the summoning
order which is just and proper.

7. The Constitution Bench in the case
of Hardeep Singh vs. State of Punjab AIR
2014 SC 1400 has laid down the test for
invoking powers U/s 319 Cr.P.C. The
relevant paras are quoted below:

"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-facie case is to be established
from the evidence 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."

8. The Apex Court further in the case
of Ramesh Chandra Srivastava vs. State of
U.P. 2021 0 Supreme (SC) 519 has held
"The test as laid down by the Constitution
Bench of this Court for invoking power U/s
319 Cr.P.c. inter alia includes the principle
that only when strong and cogent evidence
occurs against a person from the evidence
the power U/s 319 Cr.P.C. should be
exercised. The power cannot be exercised
in a casual and cavalier manner. the test to
be applied, as laid down by this Court, is
one which is more than prima facie case
which is applied at the time of framing of
charges."

9. The FIR of this case has been
lodged by Ramendra Singh- the brother of
Tara Devi (victim) and there is no whisper
about the involvement of revisionistaccused in the incident. According to
version of FIR Tara Devi fed up with the
torture of her husband jumped into the well
with her minor sons to commit suicide.
During the course of investigation the first
informant Ramendra Singh and victim Tara
Devi has made the similar statement. They
have not implicated the revisionist accused.
For the first time in their statement before
the trial court developing a new story, they
have implicated the revisionist-accused.
The story as set up by the witnesses during
their testimony before the trial court has
come for the first time and which is against
the allegations of the FIR and the previous
statements of these witnesses.
2 All. Ibrar @ Raju Vs. State of U.P. & Anr.
671

10. Applying the law as laid down by
the Apex Court on the facts of the case on
hand, it is clear that the learned trial court
has materially erred in allowing the
application U/s 319 Cr.P.C. There is
inherent contradictions in the prosecution
case as unfolded in the FIR, as explained in
the statement of witnesses examined U/s
161 Cr.P.C. and the statements recorded
during the course of trial. The court below
while deciding the application U/s 319
Cr.P.C.
has
completely
ignored
the
aforesaid aspect of the matter and has failed
to record his satisfaction which is required
for summoning the accused U/s 319 Cr.P.C.
The evidence led by prosecution is not
cogent one and cannot be the basis of
summoning the revisionist-accused who are
neither named in the FIR nor in the
previous statements of witnesses recorded
U/s 161 Cr.P.C. The impugned order suffers
from material illegality which has been
passed in a cavalier manner and not
sustainable in the eye of law.

11. Accordingly the revision is
allowed.
The
impugned
order
dated
27.02.2013 is hereby set aside.
----------
(2023) 2 ILRA 671
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 4154 of 2022

Ibrar @ Raju ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ram Bahadur, Sri Vishal Srivastava, Sri
Anil Kumar (Sr. Advocate)
Counsel for the Opposite Parties:
G.A., Sri Manoj Kumar Bhatt, Sri Preet Pal
Singh Rathore

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164 & 319 - Indian
Penal Code, 1860 - Sections 354, 376-D,
452 & 506 - Criminal Revision - against,
order impugned by which learned Trial court,
on an application filed by the prosecution,
summoned the revisionist - Validity -
Offences of gang Rape - FIR - from the date
of registration of FIR and till submission of
Charge-sheet neither the revisionist was
named nor any allegation was made against
him - the power conferred under section 319
CrPC is an extraordinary power and it should
be exercised sparingly and with conscious
approach - Court finds that, trial court ignored
the grounds on which the revisionist/accused
was exonerated during investigation - the
standard of evidence required for exercising
the powers u/s 319 CrPC - hence, the
impugned order is not sustainable in the eyes
of law - revision allowed. (Para - 11, 12)

Revision Allowed. (E-11)

List of Cases cited: -

1. Ramesh Chand Srivastava VS St. of UP -
Criminal Appeal No. 990/2021 decided on Dt.
13.09.2021,

2. Periyasami & ors. Vs Nallasamy (2019 vol. 4
SCC 342),

3. Hardeep Singh Vs St. of Pun. 2014 vol. 3 SCC
92,

4. Brijendra Singh & anr. Vs St. Of Raj. 2017 Vol.
7 SCC 706.,

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

1. Heard Mr Anil Kumar, learned
Senior Advocate, assisted by Mr Ram
Bahadur and Mr Vishal Srivastava, learned
counsel for the revisionist, Mr Preet Pal
Singh Rathore, learned counsel for opposite