# Satish Chaubey Revisionist v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 338
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-10
- **Case number:** Criminal Revision No. 3274 of 2022
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-chaubey-revisionist-v-state-of-u-p-ors-49331
- **Pages:** 12

## Headnote

G.A.,
Sri
Anand
Mohan
Pandey
10 All. Satish Chaubey Vs. State of U.P. & Ors.
339
(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 r. w.
Section 401 - Revision - Indian Penal
Code, 1860 - Sections 498-A & 304B -
Dowry Prohibition Act, 1961 - Sections 3 &
4 .

(B) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 319 - Power to
proceed against other persons appearing
to be guilty of offence - doctrine judex
damnatur cum nocens absolvitur (Judge is
condemned when guilty is acquitted)-
duty of the Court to do justice by
punishing the real culprit - 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.(Para - 6)

Complaint of harassment - demand of dowry -
post-mortem report of deceased - cause of
death - asphyxia due to ante-mortem - an
application 30 KH for summoning of respondent
Nos. 2, 3 and 4 - who are father-in-law, motherin-law and sister-in-law (Nanad) - trial court
rejected
application
for
summoning
on
compromise - no specific allegations - with
regard to complicity in offence - against
parents-in-laws of deceased in F.I.R. - and
sworn testimony of P.W. 1, during trial - court
below not mentioned any documentary evidence
in support of plea of separate living of parentsin-law of deceased from her and her husband
during her lifetime. (Para - 2, 10, 11)

HELD:- Trial court while rejecting application
under Section 319 Cr.P.C. has not duly tested
the evidence of P.W.1(present revisionist) at
anvil of prima facie case envisaged for
summoning accused under Section 319 Cr.P.C.
to face trial along with accused person, who is
already facing trial. Impugned order suffers
from legal error. Not sustainable in the manner
in which it exists. Trial court's order set aside.
Matter remitted back to trial court to hear and
decide application 30 kh under Section 319
Cr.P.C., moved by informant, for summoning
other accused persons afresh after giving
opportunity of hearing.(Para -11,12 )
Criminal Revision allowed. (E-7)

LIST OF CASES CITED:-

## Text

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338 INDIAN LAW REPORTS ALLAHABAD SERIES
and application of the law, without the
influence of outside factors.

71. If the Courts are to impart
justice in a free, fair and effective manner,
then the presiding judge cannot afford to
remain a mute spectator totally oblivious to
the various happenings taking place around
him, more particularly, concerning a
particular case being tried by him. The fair
trial is possible only when the court takes
active interest and elicit all relevant
information and material necessary so as to
find out the truth for achieving the ultimate
goal of dispensing justice with all fairness
and impartiality to both the parties.

72. In Ram Chander (supra),
while speaking about the presiding judge in
a criminal trial, Chinnappa Reddy, J.
observed that if a criminal court is to be an
effective instrument in dispensing justice,
the presiding judge must cease to be a
spectator and a mere recording machine.
He must become a participant in the trial by
evincing intelligent active interest by
putting questions to witnesses in order to
ascertain the truth. The learned Judge
reproduced a passage from Sessions Judge,
Nellore v. Intha Ramana Reddy, 1972 Cri
LJ 1485, which reads as follows:-

"Every criminal trial is a voyage
of discovery in which truth is the quest. It
is the duty of a presiding Judge to explore
every avenue open to him in order to
discover the truth and to advance the cause
of justice. For that purpose he is expressly
invested by Section 165 of the Evidence
Act with the right to put questions to
witnesses. Indeed the right given to a Judge
is so wide that he may, ask any question he
pleases, in any form, at any time, of any
witness, or of the parties about any fact,
relevant or irrelevant. Section 172(2) of the
Code of Criminal Procedure enables the
court to send for the police-diaries in a case
and use them to aid it in the trial. The
record
of
the
proceedings
of
the
Committing Magistrate
may
also
be
perused by the Sessions Judge to further aid
him in the trial."

490. Upon evaluation of the evidence
led in this case, on the touchstone of fair
trial guaranteed to an accused under Article
21 of the Constitution of India, we hold that
prosecution has failed to prove the guilt of
accused
SK
and
Pandher
beyond
reasonable doubt, on the settled parameters
of a case based on circumstantial evidence.

491. The conviction and sentence of
accused SK and Pandher vide judgment
and order passed by the court below in
Sessions Trial No. 440 of 2007 dated
24.7.2017 is reversed. Capital Criminal
Appeal Nos. 5183 of 2017 and 4404 of
2017 are allowed and the reference No. 10
of 2017 is answered accordingly. The
accused appellants SK and Pandher shall be
released on compliance of Section 437A
Cr.P.C. provided they are not required in
any other case.
----------
(2023) 10 ILRA 338
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.08.2023
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 3274 of 2022

Satish Chaubey ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Tahira Kazmi, Sri Saiful Islam Siddiqui

Counsel for the Opposite Parties:
G.A.,
Sri
Anand
Mohan
Pandey
10 All. Satish Chaubey Vs. State of U.P. & Ors.
339
(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 r. w.
Section 401 - Revision - Indian Penal
Code, 1860 - Sections 498-A & 304B -
Dowry Prohibition Act, 1961 - Sections 3 &
4 .

(B) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 319 - Power to
proceed against other persons appearing
to be guilty of offence - doctrine judex
damnatur cum nocens absolvitur (Judge is
condemned when guilty is acquitted)-
duty of the Court to do justice by
punishing the real culprit - 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.(Para - 6)

Complaint of harassment - demand of dowry -
post-mortem report of deceased - cause of
death - asphyxia due to ante-mortem - an
application 30 KH for summoning of respondent
Nos. 2, 3 and 4 - who are father-in-law, motherin-law and sister-in-law (Nanad) - trial court
rejected
application
for
summoning
on
compromise - no specific allegations - with
regard to complicity in offence - against
parents-in-laws of deceased in F.I.R. - and
sworn testimony of P.W. 1, during trial - court
below not mentioned any documentary evidence
in support of plea of separate living of parentsin-law of deceased from her and her husband
during her lifetime. (Para - 2, 10, 11)

HELD:- Trial court while rejecting application
under Section 319 Cr.P.C. has not duly tested
the evidence of P.W.1(present revisionist) at
anvil of prima facie case envisaged for
summoning accused under Section 319 Cr.P.C.
to face trial along with accused person, who is
already facing trial. Impugned order suffers
from legal error. Not sustainable in the manner
in which it exists. Trial court's order set aside.
Matter remitted back to trial court to hear and
decide application 30 kh under Section 319
Cr.P.C., moved by informant, for summoning
other accused persons afresh after giving
opportunity of hearing.(Para -11,12 )
Criminal Revision allowed. (E-7)

LIST OF CASES CITED:-

1. Hardeep Singh Vs St. of Punj., (2014) 3 SCC
92

2. Hardeep Singh Vs St. of Punj., 2014
(supreme) SC 27

3. Sandeep Kumar Vs St. of Har. 2023 law suits
SC 722

4. Manjeet Singh Vs St. of Har. in Criminal
Appeal No. 875 2021 SCC on-line SC 632

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
revisionist, learned counsel for the opposite
party Nos. 2 to 5, Sri Ramesh Chand
Gupta, learned A.G.A. for the State and
perused the material placed on record.

2. By means of present criminal
revision revisionist, who is informant in
S.T No. 10 of 2020 (State Vs. Sanjay
Pathak) arising out of case crime No. 405
of 2019, under sections 498-A, 304B I.P.C.
and Section 3 and 4 of Dowry Prohibition
Act, P.S.- Panki, District- Kanpur Nagar,
has assailed the impugned order dated
10.06.2022, passed by learned Additional
Sessions Judge F.T.C. Court No. 1 Etawah,
whereby applicant moved an application 30
KH for summoning of respondent Nos. 2, 3
and 4, who are father-in-law, mother-in-law
and sister-in-law (Nanad) of the decreased
as section 319 Cr.P.C. has been dismissed.
The factual matrix of the case in brief are
that an F.I.R. was lodged at the instance of
informant Satish Chaubey at P.S. Panki,
District- Kanpur Nagar on 8.10.2019 with
averment that he had married his daughter
Priyam @ Divya Pathak with accused
Sanjay Pathak on 3.12.2016, in which he
spent around rupees 15 lakh up to his
340 INDIAN LAW REPORTS ALLAHABAD SERIES
capacity, but when she came back after
sometime of marriage to the place of the
informant, she told that her in-laws are very
greedy people, they used to tease her for
bringing less dowry. He consoled his
daughter that in course of time things will
get improve, but his daughter used to
inform him that she is being subjected to
torture by her husband and in-laws, her
sister-in-law,
Bittu
Tiwari
is
very
interfereing with regard to bringing of
dowry. He would console his daughter that
she should keep patience, things will get
right.
On
05.10.2019,
his
daughter
telephoned him that her husband Sanjay
Pathak, mother-in-law, Kanchan Pathak,
father-in-law Devi Dyal are engaged in
maar peet with her. He could not rush to
the place of her daughter due to busyness.
On the next day, he tried to communicate
with his daughter telephonically but phone
could not be connected. On same day at
around 6:00 P.M., he received information
that his daughter had died. The F.I.R. was
lodged after 2 days of the incident.
Additional City Magistrate, III conducted
inquest on dead body of the deceased on
07.10.2019 at the place of the incident in
presence of police and punch witnesses. In
inquest report, fresh marks of friction were
found on neck of the deceased, in the
opinion of Panch witnesses, the deceased
died on 6.10.2019 by hanging. In the
postmortem report of the deceased Divya
Pathak, a ligature mark 27 cm x 2 cm
around the neck with gap of 10 cm R.P.
side back of neck- distance 4.5 cm below
chin, 6 cm below left ear,1.5 cm below
right ear- on dissection white glistening
subcutaneous tissue underline ligature mark
was found. According to opinion of doctor,
the cause of death was asphyxia due to
ante-mortem hanging. The investigation
was conducted by Circle Officer, who
examined the witnesses, conducted local
inspection of place of incident, prepared
site plan and after concluding investigation,
submitted charge-sheet against husband of
the deceased namely, Sanjay Pathak and
dropped the name of named accused
persons Devi Dayal Pathak, Kanchan
Pathak and Bittu Tiwari @ Sukriti, the
sister-in-law of the deceased, finding their
implication in the F.I.R. false. According to
Investigating Officer, the parents-in-law of
the deceased were residing separately from
deceased and her husband, prior to death of
the deceased and accused Bittu Tiwari was
married 20 years ago and visit her parental
place, occassionaly. Her matrimonial place
lies
in
District-Kanpur
Dehat.
The
Investigation Officer placed reliance on
statements of independent witnesses Chaya
Devi, Guddi wife of Ram Singh, Asha wife
of Vinod Kumar, Balram, Jagdish Dubey,
Sumant Pandey while exonerating the
respondent nos. 2 to 4 in charge-sheet. The
learned Magistrate took cognizance of the
offence against chargesheeted accused
Sanjay Pathak and committed the case for
trial to court of Sessions. On commitment
of the case for trial, charge were framed
under Sections 498-A, 304B I.P.C. and
Section 3 and 4 of Dowry Prohibition Act
against
accused
Sanjay
Pathak.
In
prosecution
evidence
P.W.-1
Satish
Chaubey, present revisionist was examined
and
after
his
cross-examination,
an
application under Section 319 Cr.P.C. has
been moved by P.W.-1 Satish Chaubey, the
informant with prayer to summon accused
persons Devi Dyal, Kanchan Pathak and
Bittu @ Sukriti under Section 319 Cr.P.C.
to face trial together with accused Sanjay
Pathak, who is already facing trial. Learned
trial court rejected said application 30 Kha
by impugned order after hearing the
applicant, public prosecutor and learned
counsel for accused-Sanjay Pathak, on
ground that on perusal of evidence on
10 All. Satish Chaubey Vs. State of U.P. & Ors.
341
record, it appears that the case is of suicide
and not of homicidal death. On the basis of
evidence on record, no fact or circumstance
is disclosed on basis of which it prima facie
appears that 4 accused-persons have
participated
in
the
offence.
General
allegations against these accused-persons
with regard to demand of dowry and
subjecting the deceased to torture are made
in evidence of P.W. 1- Satish Chaubey, but
no specific charge has been levelled
therein.
Independent
witnesses
are
examined by Investigating Officer at C.D.-
12, who have stated that proposed accused
Devi Dyal Pathak and Kanchan Pathak
were residing separately from their son
Sanjay Pathak and proposed accused Bittu
Tiwari was married 20 years ago and she
resides in her matrimonial place at District-
Kanpur Dehat. In these circumstances, it is
difficult to believe that proposed accused
persons had subjected the deceased to
torture pursuant to demand of dowry. The
deceased was residing with her husband
Sanjay Pathak and she died due to hanging
at the place of her husband during 7 years
of her marriage, therefore, in considered
opinion of the court, the summoning of
proposed accused persons is not found
justifiable in the light of law laid down by
Apex Court in Hardeep Singh Vs. State of
Punjab (2014) 3 SCC 92.

3. Feeling aggrieved by impugned
order, instant criminal revision have been
preferred by the informant in the case.
Learned
counsel
for
the
revisionist
submitted that impugned order dated
10.06.2022, passed by learned trial court is
against the law laid down by Hon'ble
Supreme Court in catena of decisions with
respect to exercise of powers under Section
319 Cr.P.C. The Court below has not
considered the application under Section
319 Cr.P.C. as well as the statement of the
revisionist given during the course of trial
as P.W. 1 in correct perspective, while
passing the impugned order. In present case
all the essential ingredients of Section 498A, 304-B and 3/ 4 D.P. Act are clearly
made out against respondent nos. 2, 3 and 4
and complicity of these accused persons in
the offence cannot be ruled out. The
informant and family members of the
deceased have supported F.I.R. version in
their statement under Section 161 Cr.P.C.
also. There is consistent version in the
statement of informant in F.I.R., statement
under Section 161 Cr.P.C. as well as his
statement as P.W. 1 before the Court . On
the basis of material on record, it is evident
that there was continuous demand of dowry
from the deceased Priam @ Divya by her
husband as well as her in-laws, the
proposed accused, who were also named in
F.I.R. She was subjected to cruelty and
torture by all the 4 named accused persons,
but only the husband of the deceased has
been chargesheeted and name of remaining
three accused persons were wrongly
dropped by the Investigating Officer on the
basis of placing reliance on statements of
un-concerned persons. The evidence of
P.W. 1 is sufficient to establish prima facie
case against proposed accused persons for
summoning them under Section 319 Cr.P.C.
The deceased was subjected to cruelty by
all the named accused persons shown,
before her death as evident from the
evidence of P.W. 1 and previous version in
F.I.R. as well as his statement under
Section 161 Cr.P.C. The P.W. 1 has
categorically stated in cross-examination
that the deceased was not suffering from
fever or she authored any suicide note. He
denied the hand-writing of the deceased in
suicide note during cross-examination. He
lastly concluded that learned court below
while passing the impugned order has
completely ignored evidence regarding
342 INDIAN LAW REPORTS ALLAHABAD SERIES
complicity of respondent nos. 2 to 4 in
making demand of dowry, consequent
torture committed against the deceased and
the death of deceased in abnormal
circumstances at her matrimonial home.
From site plan prepared by police, it is
clear that respondent Nos. 2 and 3 are
living next to the house of the accused
Sanjay Pathak (husband) and the same
cannot be termed as separate living. There
is specific allegations against respondent
Nos. 2 to 4 by the revisionist in his
evidence, therefore, there plea for separate
living cannot absolve them from their
criminal liability and they are liable to be
tried together with accused Sanjay Pathak.
Therefore, impugned order is liable to be
set aside and necessary directions may be
issued to summon respondents nos. 2 to 4
to face trial together with co-accused
Sanajy Pathak.

4. Per contra, learned counsel
appearing for respondent nos. 2 to 4
submitted that there is no legal or factual
error in impugned order passed by learned
court below by rejecting application under
Section
319
Cr.P.C.
moved
by
the
revisionist for summoning respondent nos.
2 to 4 as additional accused to face trial in
exercise of powers under Section 319
Cr.P.C. There is plethora of evidence of
independent witnesses in support of stand
of the respondents that they were living
separately from accused Sanjay Pathak
when the incident occurred. Respondent
No. 4 is married sister-in-law of the
deceased, whose marriage took place 20
years prior to the incident. Similarly, the
respondent nos. 2 and 3, parents of the
deceased were also residing separately
from the deceased and accused Sanjay
Pathak. The deceased was suffering from
disease which might have created suicidal
tendency in her, and as a result thereof she
committed suicide. The private respondents
played no role in unfortunate suicidal death
of the deceased. Learned A.G.A. also
supported the impugned order, the postmortem report of the deceased, no injury
mark was found on her except ligature
mark on her neck, which appears to have
caused due to hanging committed by the
deceased.

5. Learned counsel for the revisionist
placed reliance on certain judgments of
Hon'ble Supreme Court to bolster his case
in present revision. Hon'ble Supreme Court
in Hardeep Singh Vs. State of Punjab
2014 (supreme) SC 27 by Constitution
Bench judgment, settled the law with
regard to exercise of powers under Section
319 Cr.P.C. to much extent in Hardeep's
case, following questions were to be
answered by the Constitution Bench

i) What is the stage at which
power under Section 319 Cr.P.C. can be
exercised?

(ii) Whether the word "evidence"
used in Section 319(1) Cr.P.C. could only
mean evidence tested by cross-examination
or the court can exercise the power under
the said provision even on the basis of the
statement made in the examination-in-chief
of the witness concerned?

(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?

(iv) What is the nature of the
satisfaction required to invoke the power
under Section 319 Cr.P.C. to arraign an
accused? Whether the power under Section
319(1) Cr.P.C. can be exercised only if the
court
is
satisfied
that
the
accused
summoned will in all likelihood convicted?
10 All. Satish Chaubey Vs. State of U.P. & Ors.
343

(v) Does the power under Section
319 Cr.P.C. extend to persons not named in
the FIR or named in the FIR but not
charged or who have been discharged?

6. Hon'ble Apex Court considered the
scope of Section 319 Cr.P.C. in the light of
afore formulated questions and observed as
under:-

11. Section 319 Cr.P.C. as it exists
today, is quoted hereunder:

"319 Cr.P.C.-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
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 afresh,
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."

12. Section 319 Cr.P.C. 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
Cr.P.C.

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 submissions that were raised
before us covered a very wide canvas and
the learned counsel have taken us through
various provisions of Cr.P.C. and the
judgments that have been relied on for the
said purpose. The controversy centers
around the stage at which such powers can
be invoked by the court and the material on
the basis whereof such powers can be
exercised.

15. Section 319 Cr.P.C. allows the
court to proceed against any person who is
not an accused in a case before it. Thus, the
person against whom summons are issued
in exercise of such powers, has to
necessarily not be an accused already
facing trial. He can either be a person
named in Column 2 of the chargesheet filed
under Section 173 Cr.P.C. or a person
whose name has been disclosed in any
material before the court that is to be
considered for the purpose of trying the
offence, but not investigated. He has to be a
person whose complicity may be indicated
344 INDIAN LAW REPORTS ALLAHABAD SERIES
and connected with the commission of the
offence.

71. It is, therefore, clear that the
word "evidence" in Section 319 Cr.P.C.
means only such evidence as is made before
the court, in relation to statements, and as
produced before the court, in relation to
documents. It is only such evidence that
can be taken into account by the Magistrate
or the Court to decide whether power
under Section 319 Cr.P.C. is to be exercised
and not on the basis of material collected
during investigation.

79.
The
word
"evidence"
therefore has to be understood in its wider
sense both at the stage of trial and, as
discussed earlier, even at the stage of
inquiry, as used under Section 319 Cr.P.C.
The court, therefore, should be understood
to have the power to proceed against any
person after summoning him on the basis of
any such material as brought forth before
it. The duty and obligation of the court
becomes more onerous to invoke such
powers cautiously on such material after
evidence has been led during trial.

80. 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 utilised only for corroboration and
to support the evidence recorded by the
court to invoke the power under Section
319 Cr.P.C. The 'evidence' is thus, limited
to the evidence recorded during trial.

84. Further, in our opinion, there
does not seem to be any logic behind
waiting till the cross-examination of the
witness is over. It is to be kept in mind that
at the time of exercise of power under
Section 319 Cr.P.C., the person sought to
be arraigned as an accused, is in no way
participating in the trial. Even if the crossexamination
is
to
be
taken
into
consideration, the person sought to be
arraigned as an accused cannot cross
examine the witness(s) prior to passing of
an order under Section 319 Cr.P.C., as such
a procedure is not contemplated by the
Cr.P.C. Secondly, invariably the State
would not oppose or object to naming of
more persons as an accused as it would
only help the prosecution in completing the
chain of evidence, unless the witness(s) is
obliterating the role of persons already
facing trial. More so, Section 299 Cr.P.C.
enables the court to record evidence in
absence
of
the
accused
in
the
circumstances mentioned therein.

85. Thus, in view of the above, we
hold that power under Section 319 Cr.P.C.
can be exercised at the stage of completion
of examination in chief and court does not
need to wait till the said evidence is tested
on
cross-examination
for
it
is
the
satisfaction of the court which can be
gathered from the reasons recorded by the
court, in respect of complicity of some
other person(s), not facing the trial in the
offence.

98. 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.

99. 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-
10 All. Satish Chaubey Vs. State of U.P. & Ors.
345
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. In Sandeep Kumar Vs. State of
Haryana 2023 law suits SC 722, Hon'ble
Supreme Court while considering the scope
of Section 319 Cr.P.C. set aside the order of
High Court passed in Criminal revision
against summoning order passed by learned
trial court in exercise of powers under
Section 319 Cr.P.C. and affirmed the
summoning order passed by learned trial
court with regard to 3 named accusedpersons in F.I.R. whose name was dropped
in charge-sheet. Hon'ble Apex Court in
para 5 of the judgment in Sandeep Kumar
observed as under:

5. In Hardeep Singh (supra), this
court further said that the Court only has to
see at the state of Section 319, whether a
prima facie case is made out although the
degree of satisfaction has to be much
higher.

"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
CrPC, though the test of 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 v. State of
Rajasthan, 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.

In Para 106 it stated as under:

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 CrPC.
In Section 319 CrPC the purpose of
providing if "it appears from the evidence
that any person not being the accused has
committed any offence" it 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 CrPC to form any opinion as to the
guilt of the accused." In our considered
opinion, the prosecution had fully made out
its case for summoning the three as accused
under Section 319, Cr.PC, so that they may
also face trial.
346 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Learned counsel for revisionist also
placed reliance in judgment of Manjeet
Singh Vs. State of Haryana in Criminal
Appeal No. 875 2021 SCC on-line SC
632, wherein Hon'ble Supreme Court had
delivered a judgment expanding the gamet
of the powers of trial court under Section
319 Cr.P.C. to ensure that the guilty does
not get away from the chase of law, in that
case an appeal had arisen out of a case of
murder against the decision of the trial
court that had dismissed the application of
the appellant under Section 319 Cr.P.C. and
she refused to summon the proposed
persons as accused to face trial. The High
Court also uphold the judgment of trial
court, Hon'ble Supreme Court allowed
appeal and summarised the principles
explaining the ambit of Section 319 Cr.P.C.
In that case, the appellant was the injured
eye-witness and on the basis of his
evidence, an application under Section 319
Cr.P.C. was moved to summon 4 named
accused persons as additional accused to
face trial in concerned sessions trial. The
Hon'ble Apex Court summarized the ratio
of its various decisions including Hardeep
Singh Vs. State of Punjab (supra) in
following manner:-

13. The ratio of the aforesaid
decisions on the scope and ambit of the
powers of the Court under Section 319
CrPC can be summarized as under:

(i) That while exercising the
powers under Section 319 CrPC and to
summon the persons not charge-sheeted,
the entire effort is not to allow the real
perpetrator of an offence to get away
unpunished;

(ii) for the empowerment of the
courts
to
ensure
that
the
criminal
administration of justice works properly;

(iii) the law has been properly
codified and modified by the legislature
under the CrPC indicating as to how the
courts should proceed to ultimately find out
the truth so that the innocent does not get
punished but at the same time, the guilty
are brought to book under the law;

(iv) to discharge duty of the court
to find out the real truth and to ensure that
the guilty does not go unpunished;

(v)
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;

(vi) Section 319 CrPC allows the
court to proceed against any person who is
not an accused in a case before it;

(vii) 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;

(viii) Section 319 CrPC is an
enabling provision empowering the court to
take appropriate steps for proceeding
against any person not being an accused
for also having committed the offence
under trial;

(ix) the power under Section
319(1) CrPC can be exercised at any stage
after the charge-sheet is filed and before
the pronouncement of judgment, except
during the stage of Sections 207/208 CrPC,
committal, etc. which is only a pre- trial
stage intended to put the process into
motion;

(x) the court can exercise the
power under Section 319 CrPC only after
the trial proceeds and commences with the
recording of the evidence;

(xi) the word "evidence" in
Section 319 CrPC means only such
10 All. Satish Chaubey Vs. State of U.P. & Ors.
347
evidence as is made before the court, in
relation to statements, and as produced
before the court, in relation to documents;

(xii) it is only such evidence that
can be taken into account by the Magistrate
or the court to decide whether the power
under Section 319 CrPC is to be exercised
and not on the basis of material collected
during the investigation;

(xiii) if the Magistrate/court is
convinced even on the basis of evidence
appearing in examination-in-chief, it can
exercise the power under Section 319 CrPC
and can proceed against such other person(s);

(xiv) that the Magistrate/court is
convinced even on the basis of evidence
appearing in examination-in-chief, powers
under Section 319 CrPC can be exercised;

(xv) that power under Section 319
CrPC can be exercised even at the stage of
completion of examination-in-chief and the
court need not has to wait till the said evidence
is tested on cross-examination;

(xvi) even in a case where the stage
of giving opportunity to the complainant to file
a protest petition urging upon the trial court to
summon other persons as well who were named
in FIR but not implicated in the charge-sheet
has gone, in that case also, the Court is still not
powerless by virtue of Section 319 CrPC and
even those persons named in FIR but not
implicated in the charge-sheet can be
summoned to face the trial, provided during the
trial some evidence surfaces against the
proposed accused (may be in the form of
examination-in-chief
of
the
prosecution
witnesses); (xvii) while exercising the powers
under Section 319 CrPC the Court is not
required and/or justified in appreciating the
deposition/evidence
of
the
prosecution
witnesses on merits which is required to be
done during the trial.

9. From perusal of record, it appears that
trial in the case was being conducted at District-
Kanpur Nagar, under which jurisdiction, the
alleged offence was committed, however on
application of the informant, present revisionist,
this court passed an order on 3.12.2021,
transferring the trial from district Kanpur Nagar
to District- Etawah, on ground that this was
admitted that the accused Sanjay Pathak, who is
already facing trial is practising lawyer in
District- Kanpur Nagar and the informant was
apprehensive that he will not get free and fair
trial at District- Kanpur Nagar. In present case,
complicity of accused Sanjay Pathak, father of
Devi Dyal Pathak and mother Kanchan Pathak
is shown in F.I.R. in causing death of the
deceased as deceased telephoned her father, the
informant on 05.10.2019 that these persons
were engaged in maar peet with her on that day.
As regard respondent No. 4 Bittu Tiwari, the
married sister-in-law of the deceased is
concerned, in F.I.R. it is stated that she along
with other accused persons tease the deceased
for bringing just dowry and these people were
harassing her and her sister-in-law Bittu
Tiwari used to speak much regarding
dowry and was very interfering in the
matter.

10. From perusal of post-mortem
report of the deceased, it appears that
cause of death therein is mentioned as
asphyxia due to ante-mortem hanging
and according to medical jurisprudence
in absence of any other injury mark
except ligature mark on neck, such type
of death is usually considered as
suicidal. The revisionist was examined as
P.W. 1 during trial and trial is still pending
in respect of co-accused Sanjay Pathak. A
suicide note has been placed on record of
trial court and same was shown to P.W. 1
during cross-examination, but he denied the
hand writing of the deceased therein. He
also denied his previous statement under
Section 161 Cr.P.C. to police that his
daughter used to have fever post birth of
348 INDIAN LAW REPORTS ALLAHABAD SERIES
her child (daughter). He also denied
defence suggestion that his daughter was
patient of MDR- TB. P.W. 1 has stated in
his examination-in-chief that his daughter
Priyam @Divya was married with accused
Sanjay
Pathak
on
03.12.2016. After
sometime of marriage, his daughter used to
make complaint of harassment and demand
of dowry by accused Sanjay Pathak, Devi
Dyal, Kanchan Pathak and Bittu Tiwari,
whenever she would visit her parental
place. Although, in F.I.R. no specific role
has been assigned to respondent No.4 Bittu
Tiwari in incident dated 05.10.2019, yet in
statement under Section 161 Cr.P.C. of the
informant and in his sworn testimony
before the Court, he has stated that on
05.10.2019 his daughter telephoned him in
the morning that her husband father-in-law
and
mother-in-law
and
sister-in-law
(nanad) are engaged in maar peet with her
due to demand of dowry. However, in
cross-examination P.W. 1 could not tell as
to which number, call was made by the
deceased to him. This call was received on
mobile number of his wife 8923139936. He
has not saved the number from which call
of his daughter was made. On 06.10.2019,
Sanjay Pathak had telephoned on mobile
number of his wife, rushed to the place of
Sanjay Pathak at around 09:00 P.M on that
day and found dead body of his daughter
lying in a hospital. They found some injury
mark on back of the deceased and he was
not able to tell as to these were postmortem marks. The dead body was
cremated by Sanjay Pathak at Bithoor as
body was handed over to him. He got F.I.R.
scribed by his son and lodged it at P.S.
concerned. He further stated that accusedpersons were demanding Rs. 10,00,000/-
more as additional dowry. This is wrong to
say that deceased was suffering from
MDR-TB and she was being treated for that
since 2018. His son-in-law used to make
demand of dowry, when he visited the place
of the witness. He had given Rs. 12 lakh to
his son-in-law Sanjay after delivery of the
child and prior to death of his daughter. The
emphasis has been made by learned
counsel for the revisionist that in site plan
I.O. has shown residence of accused Devi
Dyal Pathak and Kanchan Pathak in the
vicinity of the place where the deceased
was allegedly hanged after killing her by
accused persons. Therefore, there is no
much weight in logic of learned trial court
that accused Devi Dyal and his wife were
residing separately from accused Sanjay
Pathak.

11. On perusal of copy of postmortem report of the deceased, it appears
that cause of death is mentioned as
asphyxia due to ante-mortem, which is
usually found in cases of suicidal death.
However, Section 304 B I.P.C. is applicable
in homicidal as well as suicidal death both,
if other ingredients of offence under
Section 304-B I.P.C. are made out. The
learned trial court has rejected application
for summoning respondent nos. 2 to 4 on
compromise that there are no specific
allegations against them with regard to
complicity in the offence. Accused Bittu
Tiwari, sister-in-law of the deceased, is a
married lady who resides in different city
and her marriage took place more than 20
years ago of the death of the deceased. The
case of Bittu Tiwari, who is married sisterin-law of the deceased can be taken on
different pedestal from other accused
persons, who are parents-in-law of the
deceased. Their residence is shown in site
plan adjacent to the house of accused
Sanjay Pathak, where unfortunate death of
Divya occurred. Although, there are no
specific allegations against parents-in-laws
of the deceased in F.I.R. and sworn
testimony of P.W. 1, during trial, yet their
10 All. Satyendra & Ors. Vs. State of U.P. & Anr.
349
complicity has been stated in the offence, in
F.I.R., statement under Section 161 Cr.P.C.
of the informant as well as in his sworn
testimony before the Court. Learned court
below has not mentioned any documentary
evidence in support of plea of separate
living of the parents-in-law of the deceased
from her and her husband during her
lifetime. Learned court while rejecting
application under Section 319 Cr.P.C. has
not duly tested the evidence of P.W.1 at
anvil of prima facie case envisaged for
summoning accused under Section 319
Cr.P.C. to face trial along with accused
person, who is already facing trial. The
impugned order suffers from legal error and
is not sustainable in the manner in which it
exists.

12. Consequently, the revision stands
allowed, impugned order dated 10.06.2022
passed by learned trial court is hereby set
aside and the matter is remitted back to trial
court to hear and decide application 30 kh
under Section 319 Cr.P.C.