# Satish & Ors. Revisionists v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 1114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-13
- **Case number:** Criminal Revision No. 4576 of 2022
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-ors-revisionists-v-state-of-u-p-anr-opp-parties-49799
- **Pages:** 4

## Headnote

Criminal Law- Indian Penal Code, 1860 -
Sections 307, 323 & 504 - The Code of
Criminal Procedure, 1973 - Sections 161,
319 - As per FIR - Sharafat and Satish
suddenly opened fire on her mother -
Thereafter,
other
accused
persons
assaulted her with lathi, danda - After
investigation, I.O. submitted charge-sheet
only against Sharafat and Sabir - During
trial P.W. 1, P.W. 2 and P.W. 3 were
examined - Application u/s 319 Cr.P.C.
was moved by prosecution to summon the
remaining accused named in FIR - Trial
Court has summoned the revisionists -
Held, it is undisputed that revisionists are
named
in
FIR
-
Clear
and
specific
allegations against the accused - Mother
of complainant has suffered injuries - Her
medico legal report is part of record - In
her St.ment complainant and injured both
have corroborated version of FIR - Before
trial
court
they
have
been
fully
corroborated prosecution story - It is
settled law that testimony of injured
witness can't be discarded unless there
are cogent reasons - The I.O. merely on
the
basis
of
C.D.R.
has
recorded
conclusion that revisionists were not
present at the time of incident - Injured
witness
and
complainant
have
fully
corroborated their presence at the spot -
Impugned summoning order is detailed
and reasoned. (Para 2, 3, 8, 11)

Revision dismissed. (E-13)

List of Cases cited:

## Text

1114 INDIAN LAW REPORTS ALLAHABAD SERIES
be gathered from reading the order as a
whole. There is no infirmity or illegality or
error in the impugned order. There is no
sufficient reason to interfere in the
impugned order. This criminal revision is
liable to be dismissed.

13. This criminal revision is,
accordingly, dismissed.
----------
(2023) 4 ILRA 1114
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 4576 of 2022

Satish & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri Shashi Kumar Mishra

Counsel for the Opp. Parties:
G.A.

Criminal Law- Indian Penal Code, 1860 -
Sections 307, 323 & 504 - The Code of
Criminal Procedure, 1973 - Sections 161,
319 - As per FIR - Sharafat and Satish
suddenly opened fire on her mother -
Thereafter,
other
accused
persons
assaulted her with lathi, danda - After
investigation, I.O. submitted charge-sheet
only against Sharafat and Sabir - During
trial P.W. 1, P.W. 2 and P.W. 3 were
examined - Application u/s 319 Cr.P.C.
was moved by prosecution to summon the
remaining accused named in FIR - Trial
Court has summoned the revisionists -
Held, it is undisputed that revisionists are
named
in
FIR
-
Clear
and
specific
allegations against the accused - Mother
of complainant has suffered injuries - Her
medico legal report is part of record - In
her St.ment complainant and injured both
have corroborated version of FIR - Before
trial
court
they
have
been
fully
corroborated prosecution story - It is
settled law that testimony of injured
witness can't be discarded unless there
are cogent reasons - The I.O. merely on
the
basis
of
C.D.R.
has
recorded
conclusion that revisionists were not
present at the time of incident - Injured
witness
and
complainant
have
fully
corroborated their presence at the spot -
Impugned summoning order is detailed
and reasoned. (Para 2, 3, 8, 11)

Revision dismissed. (E-13)

List of Cases cited:

1. Hardeep Singh Vs St. of Pun. AIR 2014
Supreme Court page 1400

2. Brijendra Singh & ors. Vs St. of Raj. (2017) 7
SCC page 706

3. Shiv Prakash Mishra Vs St. of U.P. & anr.
reported in 2019 (109) ACC 632 (SC)

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

1. Heard learned counsel for the
revisionists, learned A.G.A. for the State and
perused the record.

2. This criminal revision is directed
against the order dated 23.9.2022 passed by
learned Additional District and Sessions Judge,
Court No. 4, Bulandshahar in S.T. No. 737 of
2021 (State Vs. Sharafat Ali and others) Case
Crime No. 295 of 2020, under section 307, 323
IPC, P.S. Jahangirabad, District Bulandshahar.
By the impugned order learned trial court
exercising the powers under section 319 Cr.P.C.
on
the
application
of
prosecution
has
summoned the revisionists-accused to face trial
with other co-accused.

3. The O.P. No. 2 lodged an FIR that
on 27.6.2020 at about 2:30 p.m. Sharafat
4 All. Satish & Ors. Vs. State of U.P. & Anr.
1115
and Satish suddenly opened fire on her
mother Nagina. Thereafter, Sabir, Satish,
Basheer, Satendra and Dharmveer assaulted
her with lathi, danda, fists and kicks. The
co-villagers and the husband of Nagina
picked Nagina from the spot and admitted
her in Bulandshahar hospital. She was
referred to Meerut Medical College due to
her serious condition. After investigation
the I.O. submitted charge-sheet only
against Sharafat and Sabir. During course
of
trial
three
witnesses
complainant
Shahana, P.W. 1, injured Nagina, P.W. 2
and Raju, husband of Nagina, P.W. 3 were
examined. At this stage an application
under section 319 Cr.P.C. was moved by
the prosecution to summon the remaining
accused named in the FIR. The learned trial
court after hearing both the parties by the
impugned
order
has
summoned
the
revisionists-accused.

4. Learned counsel for the revisionists
contended that the I.O. has recorded the
statement of complainant, injured, husband
of injured and other witnesses. He also
obtained CDR to ascertain the location of
the accused Dharmveer, Satish and Sharafat
and their location was not found on the
spot. He also recorded the statement of
Lekhpal Dev Kumar who stated that the
wife of revisionist no. 1 moved an
application to the District Magistrate with
regard to possession of the disputed land
and upon the spot the Revenue Inspector
and
police
reached
there
and
after
measurement the possession was handed
over to revisionist no. 1. It is also
contended that medical examination of the
injured Nagina was conducted at C.H.C.
Jahangirabad. Four injuries were noted and
X-ray was advised. It was conducted by the
S.B.B.P. Hospital and no radiological bony
abnormality was found. As no foreign body
was found it can be safely referred to that
injured has not suffered any fire arm injury.
During course of trial three witnesses were
examined by the prosecution. On the basis
of it the court below on an application
moved
under
section
319
Cr.P.C.
summoned the revisionists. While passing
the summoning order the trial court apart
from the evidence recorded before the trial
court
also
considered
the
evidence
collected during course of investigation
which is not permissible as held in catena
of decisions. Only material collected by
trial court during inquiry or trial can be
used to arraign the additional accused. It is
further contended that the Hon'ble Apex
Court reiterated time and again that the
power under section 319 Cr.P.C. is a
discretionary and extra ordinary power
which should be exercised sparingly. The
crucial test 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 un-rebutted in likelihood the newly
added accused would be conducted as has
been held in case of Hardeep Singh Vs.
State of Punjab and others. The power
under section 319 Cr.P.C. cannot be
exercised in a casual and in a cavalier
manner, it should be exercised only when
strong and cogent evidence occurs against a
person and further to add a person as
additional accused under section 319
Cr.P.C. stronger evidence is required then
near probability of complicity of that
person. This is the test that has to be
applied as laid down in various case laws.
While in present case if the summoning
order is tested upon the touch stone then it
appears that no satisfaction has been
recorded which is required.

5. It is further contended that it is also
settled law that the material evidence which
has been laid before the court has been
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
taken into consideration and not the
statement recorded under section 161
Cr.P.C. could be utilized while exercising
power under section 319 Cr.P.C. as has
been done in the present case, as such the
same is liable to be set-aside. The learned
trial court summoned the revisionists in
mechanical manner and failed to consider
the ratio of law as laid down in the case
laws cited in the impugned order in its true
perspective. It is further contended that
Hon'ble Apex Court in latest decision in
case of Shiv Prakash Mishra Vs. State of
U.P. and another reported in 2019 (109)
ACC 632 (SC) was pleased to observe and
the relevant paragraph 9 is quoted herein
below:-

9. 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 Vs.
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."

6. Lastly it is contended that
prosecution
story
has
not
been
corroborated
as
there
are
material
contradictions even in the statement
recorded during trial and further medical
evidence
does not
corroborates
the
prosecution
story.
The
impugned
summoning order is not sustainable being
illegal.

7. Learned A.G.A. contended that
revisionists are named in the FIR and
there are specific allegations against them
that they participated in the crime and
assaulted the victim. One person has
suffered injury. Her medico legal report is
part of record. The complainant, injured
and other witnesses have corroborated the
prosecution story. Three witnesses have
been examined during course of trial.
They also corroborated the evidence of
trial. The I.O. has wrongly exonerated the
revisionists-accused. There is sufficient
material on record against revisionistsaccused. The learned trial court after
appreciating the entire material on record
has found that there is sufficient material
and has passed the summoning order.
There is no illegality in the impugned
summoning order.

8.

It
is
undisputed
that
the
revisionists-accused are named in the FIR.
There are clear and specific allegations that
they took part in the assault. The mother of
the complainant has suffered injuries in the
incident. Her medico legal report is part of
record. In her statement under section 161
Cr.P.C. the complainant and injured both
have fully corroborated the version of the
FIR. Before the trial court they have been
examined and in that statement they have
also again reiterated the allegations of the
FIR and fully corroborated the prosecution
story. Nagina, P.W. 2 is an injured witness
and it is settled law that testimony of
injured witness can not be discarded unless
there are cogent reasons. The I.O. merely
on the basis of C.D.R. has recorded the
conclusion that revisionists were not
present at the place of occurrence at the
time of incident. While the injured witness
4 All. Nadeem Tarik Vs. State of U.P. & Anr.
1117
as
well
as
complainant
have
fully
corroborated their presence at the spot and
that they have took part in the incident and
assaulted the injured causing her injuries.

9. The Apex Court in the case of
Hardeep Singh Vs. State of Punjab AIR
2014 Supreme Court page 1400 has
prescribed
the
standard
of
evidence
required for exercising powers under
section 319 Cr.P.C. The relevant paras 98
and 99 are as follows:

"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 face 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."

10. The facts of this case are
distinguished from the case law of
Brijendra Singh and others Vs. State of
Rajasthan (2017) 7 SCC page 706
because in that case the I.O. has collected
the plethora evidence about the alibi of the
accused while in this case there is no such
kind of evidence which can be used to
discredit the statement of injured witness.

11. The learned trial court has
narrated the entire facts and allegations
made in the application, the evidence
available on record and after being satisfied
that there is sufficient material on record
has passed the impugned summoning order.
The impugned summoning order is detailed
and reasoned one. There is no perversity or
illegality in the impugned summoning
order.

12. The revision is devoid of merit
and is hereby dismissed.
----------
(2023) 4 ILRA 1117
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 4309 of 2022

Nadeem Tarik ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist: