# Satypal Singh Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 234
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-30
- **Case number:** Criminal Revision No. 428 of 2020
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satypal-singh-revisionist-v-state-of-u-p-anr-46920
- **Pages:** 10

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397 - calling for
records to exercise powers of revision,
Section 401- High court's powers of
revision, Section 319 - Power to proceed
against other persons appearing to be
guilty of offence , Indian Penal Code, 1860
- Sections 452, 302, 504, 506 - Unless
there is cogent and credible evidence
available against a person which may lead
to
conviction
of
the
person
after
3 All. Satypal Singh Vs. State of U.P. & Anr.
235
conclusion of the trial, he should not be
summoned as an additional accused - trial
Court has not considered overwhelming
evidence collected by the investigating
officer during the course of investigation -
which would demonstrate that the present
revisionist was not present at the time
and place of occurrence - impugned order
unsustainable and against the law. (Para -
25,28)

Trial
Court
summoned
the
revisionist
(accused) under Section 319 Cr.P.C. on an
application
filed
by
the
complainant
(respondent No.2) to face trial as an
additional accused - (Para - 2)

HELD:- Trial Court is required to look into the
material collected by the investigating officer
during the course of investigation before forming
prima facie opinion for summoning a person as an
additional accused. It is the duty of the trial Court
to consider the evidence collected by the
investigating
officer
during
the
course
of
investigation and power under Section 319 Cr.P.C.
should not be exercised merely on statement of
the complainant or the witnesses who have
reiterated their statements recorded under Section
161 Cr.P.C. during the course of investigation
which the investigating officer did not find credible
and cogent on the basis of other plethora of
evidence collected by him. (Para - 25,27)

Criminal Revision allowed. (E-6)

List of Cases Cited:-

## Text

234 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 18.04.2013. Thereafter, on the basis
of enquiry report and audit report and
considering the factum of approval earlier
given
for
the
appointment
of
the
petitioners, the D.I.O.S. passed an order
dated 28.05.2016 for payment of salary to
the petitioners which was earlier stopped
in the month of November, 2013 and
even the arrears of salary were also
released. On account of these facts, the
petitioners have got their writ petitions
withdrawn, which were filed assailing the
order dated 03.07.2015 passed by the
D.I.O.S. holding the appointment of the
petitioners erroneous as the advertisement
in question was not issued properly.
Therefore, when the conscious decision
has been taken by the D.I.O.S. on
28.05.2016, the impugned order dated
30.06.2020 should have not been passed
by the same authority making review of
its earlier order. As a matter of fact, the
D.I.O.S. vide impugned order dated
30.06.2020 has not only reviewed the
order of approval dated 18.04.2013 but
also reviewed the order dated 28.05.2016,
therefore, the said order dated 30.06.2020
is without jurisdiction and uncalled for
order. The Administrative Authorities
must mind their statutory limits and if
such limit is crossed without having any
colour of authority, the said inaction
would be absolutely unacceptable.

36. In view of the facts and
circumstances as well as the dictums' of
Hon'ble Apex Court in re: Naresh Kumar
(supra) and Dr. (Smt.) Kuntesh Gupta
(supra), the order dated 30.06.2020
passed by the respondent No.3, which is
contained as Annexure No.1 to the writ
petition, is illegal, unwarranted and
without jurisdiction, besides, suffers from
voice of arbitrariness and perversity,
hence, such order is hereby quashed.

37. A writ in the nature of
mandamus is issued commanding the
opposite parties to allow the petitioners to
work on their respective posts and they
be paid their regular salary forthwith. The
opposite parties are also directed to pay
the arrears of salary, which has been
withheld, within a period of three months
and the petitioners shall be treated
continued in service.

38. Accordingly, the writ petition is
allowed.

39. No order as to cost.
----------
(2021)03ILR A234
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.03.2021

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Revision No. 428 of 2020

Satypal Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Kamlesh Singh

Counsel for the Opposite Parties:
G.A., Manoj Kumar Misra

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397 - calling for
records to exercise powers of revision,
Section 401- High court's powers of
revision, Section 319 - Power to proceed
against other persons appearing to be
guilty of offence , Indian Penal Code, 1860
- Sections 452, 302, 504, 506 - Unless
there is cogent and credible evidence
available against a person which may lead
to
conviction
of
the
person
after
3 All. Satypal Singh Vs. State of U.P. & Anr.
235
conclusion of the trial, he should not be
summoned as an additional accused - trial
Court has not considered overwhelming
evidence collected by the investigating
officer during the course of investigation -
which would demonstrate that the present
revisionist was not present at the time
and place of occurrence - impugned order
unsustainable and against the law. (Para -
25,28)

Trial
Court
summoned
the
revisionist
(accused) under Section 319 Cr.P.C. on an
application
filed
by
the
complainant
(respondent No.2) to face trial as an
additional accused - (Para - 2)

HELD:- Trial Court is required to look into the
material collected by the investigating officer
during the course of investigation before forming
prima facie opinion for summoning a person as an
additional accused. It is the duty of the trial Court
to consider the evidence collected by the
investigating
officer
during
the
course
of
investigation and power under Section 319 Cr.P.C.
should not be exercised merely on statement of
the complainant or the witnesses who have
reiterated their statements recorded under Section
161 Cr.P.C. during the course of investigation
which the investigating officer did not find credible
and cogent on the basis of other plethora of
evidence collected by him. (Para - 25,27)

Criminal Revision allowed. (E-6)

List of Cases Cited:-

1. Saeeda Khatoon Arshi Vs St.of U.P., (2020) 2
SCC 323

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

3. Brijendra Singh & ors. Vs St. of Raj. , (2017)
7 SCC 706

4. Periyasami Vs S. Nallasamy, (2019) 4 SCC 342

(Delivered by Hon'ble Dinesh Kumar Singh, J.)

1. Present criminal revision under
Section 397/401 Cr.P.C. has been filed
impugning the order dated 03.03.2020
passed by the Addl Sessions Judge, Court
No.11, Hardoi in S.T. No.111 of 2018:
State vs Pawan Singh and Ors. arising out
of Crime No.267 of 2017 registered under
Sections 452, 302, 504, 506 IPC, Police
Station Kachauna, District Hardoi.

2. Learned Trial Court vide impugned
order has summoned the revisionist under
Section 319 Cr.P.C. on an application filed
by the complainant, respondent No.2 to
face trial as an additional accused.

3. An FIR was registered at Case
Crime No.0267 of 2017 under Sections
147, 148, 149, 452, 302, 504, 506 IPC P.S.
Kachauna, Hardoi on a written complaint
of respondent No.2 having allegations that
on 02.11.2017 at around 9:00 PM. accused
Pawan Singh, Satyapal Singh (revisionist),
Sonu Singh all sons of Barrister Singh,
Harshit @ Jeepu s/o Satyapal Singh,
Munna s/o Rajaram came to the house of
the complainant and told the uncle of the
complainant that he had to leave the land.
When uncle of the complainant objected,
all these accused entered the house of the
complainant.
Accused-Pawan,
Sonu,
Harshit and Munna caught hold of the
uncle and present revisionist fired at the
uncle of the complainant with illegal
weapon. Hearing the sound of gun shot,
complainant, his brother, Harisharan and
his father Vishnu Narayan came out of the
house exhorting the accused, then the
accused fled away from the scene of
occurrence extending threats. Uncle of the
complainant had died on the spot, however,
he was taken to the hospital at Kachauna
where doctor declared him brought dead.
The complainant is a practicing advocate at
Hardoi which is evident from the FIR itself.

4.

Inquest
proceedings
were
conducted on the same day i.e. 02.11.2017
236 INDIAN LAW REPORTS ALLAHABAD SERIES
at
23:05
Hours.
Post
mortem
was
conducted on the next day and following
injuries were found on the body of the
deceased:-

(i) Fire arm entry wound of size 2
x 1.5 cm on interior aspect of left thigh. 7
cm away from root of penis; 13' O clock
position
margin
inflicted;
blackening
present;

(ii) Fire arm exit wound of 2.5 cm
x 2 cm present on back of right thigh on
gluteal region;

5. The investigating officer examined
as many as 38 witnesses during the course
of investigation and filed charge sheet
against accused-Pawan Singh, Sonu Singh,
two brothers of the revisionist, Harshit @
Jeepu son of the revisionist, Munna Singh
s/o Rajaram under Sections 452, 302, 504,
506/34 IPC and absolved the revisionist of
the charges as he was not found to be
present at the time and place of incident
when the alleged incident took place.

6. There is enmity between the
complainant who is practicing advocate and
the revisionist who happened to be the
Village Pradhan. Respondent No.2 had
instituted nine cases against the revisionist
in which he has either been acquitted or
final report has been filed in his favour or
complaint cases have been rejected. Details
of
the
cases
instituted
against
the
revisionist by the complainant have been
given in Annexure-10 of the revision
petition.

7. The Investigating Officer found the
location of mobile phone of the revisionist at
Sandila, 35 kms away from the place of
incident i.e. village Tikari on the basis of Call
Detail Record. It is also stated that a dispute
took place between Pawan, brother of the
revisionist and the complainant side in the
evening of 02.11.2017 and Pawan Singh
called the police by dialing number 100.
Police reached the village at around 7:30 PM.
Pawan Singh, brother of the revisionist also
informed the revisionist about the dispute on
his Mob.No.8009185252. Police reached
village Tikari and settled the dispute in the
evening.

8. It is further stated that respondent
No.2 (complainant) after learning about the
dispute between the brother of the revisionist
and Munna came to the village and bet the
brother of the revisionist. However, on
intervention of the villagers, Pawan was
separated from the complainant. It is also
stated that soon thereafter, the complainant
himself threatened Ram Sewak, elder brother
of his father to grab his property. It is also
mentioned that in the year 1998, the
complainant and his father had shown Ram
Sewak, who did not have any son and had
only three married daughters and his wife had
died around 30 years back, dead and got
recorded his land in their name in the revenue
record. When Ram Sewak came to know
about this fact, he got annoyed from the
complainant and his father and he was not
having good relations with them.

9. It is also stated that respondent
No.2 was in inebriated condition and he
fired at Ram Sewak. He was not taken to
the hospital immediately but Ram Sewak
was being pressurized to name the
revisionist
and
his
family
members.
However, Ram Sewak did not agree to
falsly implicate the revisionist and his other
family members. Ram Sewak died due to
excessive bleeding.

10. One villager, Bablu called the
revisionist at 8:10 PM on 2.11.2017
informing about the incident. Transcript of
3 All. Satypal Singh Vs. State of U.P. & Anr.
237
conversation between the revisionist and
Bablu forms part of the case diary. It is also
said that one sepoy of police station
Kachauna also called the revisionist at
09:03 PM informing that he was being
implicated in the offence. This also forms
part of the case diary.

11. In the FIR, it has been said that
Ram Sewak was taken to the C.H.C.,
Kachauna. However, from the statement of
the medical Officer of C.H.C., Kachauna, it
is clear that he was never brought to C.H.C.
Kachauna on 02.11.2017 as alleged in the
FIR. The investigating officer on the basis
of statement of the witnesses Bhaiya Lal,
Ranjana Singh, Uttam Kumar Singh found
the presence of the revisionist at Sandila in
Gayatri Maha Yagya at the time when the
incident allegedly took place. The deceased
had received a firearm injury on his leg and
he had died due to excessive bleeding as is
evident from the post-mortem report.

12. One FIR on the basis of an order
on a complaint filed under Section 156(3)
Cr.P.C. by Rohit Kumar Singh came to be
registered on 17.03.2018 at Police Station
Kachauna at FIR No.0098 of 2018 in
respect of the same incident under Sections
147, 148, 452, 302, 504, 506 IPC against
respondent No.2 and five other persons.
The police, however, after investigation of
the aforesaid offence filed a final report
absolving the named accused. Against final
report, protest petition has been filed and
same has been treated as complaint.

13. Allegation in FIR No.098 of 2018
is that the deceased's wife had died 30
years before the date of incident. He had no
son and had only three daughters. All of
them were married. Respondent No.2, his
father and brothers had an eye on the
property of the deceased. The deceased
wanted to get his will registered in favour
of his three daughters on the very next day
of the incident. When it came to the
knowledge of respondent No.2, he fired at
the deceased and falsely implicated the
revisionist and others. It is also alleged that
in past also respondent No.2 and his father
had shown the deceased dead and got
mutated his land in their names in the
revenue record.

14. Heard Mr. Sharad Pathak, learned
counsel for the revisionist, Mr. Manoj
Kumar
Mishra,
learned
counsel
for
opposite party no.2 as well as Mr. Umesh
Kumar Singh, learned counsel for the State.
.

15. Trial Court has summoned the
present revisionist on the basis of the
statements of respondent No.2-P.W.-1 and
P.W.-2 (Basant) who have reiterated the
allegations in the FIR. Learned counsel for
the
revisionist
has
submitted
that
investigation
carried
out
by
the
investigating officer and evidence collected
by him is cogent and credible which is not
only based on oral testimony of the several
witnesses regarding non presence of the
revisionist at the time and place of incident
but also fully gets established from the
scientific and electronic evidence collected
by him. He has further submitted that the
learned trial Court has ignored the cogent
and credible evidence available on record
and only on the basis of reiteration of the
allegation of the FIR by P.W.-1 and P.W.-
2, has summoned the revisionist under
Section 319 Cr.P.C. as additional accused
to face trial.

16. On the other hand, Mr. Manoj
Kumar
Mishra,
learned
counsel
for
respondent No.2 has submitted that the trial
Court has applied the law correctly on the
238 INDIAN LAW REPORTS ALLAHABAD SERIES
facts and circumstances of the case
inasmuch as during the course of trial,
evidence against the revisionist has come
regarding
his
involvement
in
the
commission of offence. He has been
assigned role of firing and his presence at
the place and time of occurrence is clearly
established from the statements of P.W.-1
and P.W.-2 and, therefore, this Court may
not interfere with the impugned order in
exercise of its powers under Section
397/401 Cr.P.C.

17. Learned counsel for respondent
No.2 has placed reliance on the judgment
of the Supreme Court in the case of Saeeda
Khatoon Arshi v. State of U.P., (2020) 2
SCC 323 to submit that the Supreme Court
after taking survey of the judgments on the
power of the Court under Section 319
Cr.P.C. to summon a person as additional
accused to face trial has set aside the order
of High Court quashing the order of the
Sessions Judge summoning a person as an
additional accused on the ground that
evidence of P.W.-1 and P.W.-2 meet the
threshold requirement for summoning the
accused under Section 319 Cr.P.C.

18. I have considered the submission
of learned counsel for the parties.

19. Section 319 Cr.P.C. reads as
under:-

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

"(1)Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence
which
he
appears
to
have
committed.

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

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

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

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

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

20. Power under Section 319 Cr.P.C.
is an extraordinary power conferred on a
Court to do real justice. It should be used to
that occasion only if compelling reason
exists for proceeding against a person
against whom action has not been taken.
Policy of the code is that the offence can be
taken cognizance of once only and not
repeatedly upon discovery of further
particulars.
In
a
given
case,
the
complainant may not even know the names
and other particulars of an offender and it
would, therefore, be sufficient for him to
make a complaint in respect of persons who
are known offenders as accused. When
such a trial proceeds against a known
accused, if the evidence led in the trial
disclose offence committed by other
persons who can be tried along with the
accused facing trial, then Section 319
3 All. Satypal Singh Vs. State of U.P. & Anr.
239
Cr.P.C. comes into play. Object of Section
319 Cr.P.C. is to ensure that no one who
appears to be guilty escapes trial in relation
to the offence.

21. Power under Section 319 Cr.P.C.
is not to be exercised in a cavalier and
mechanical manner but requires to be
invoked when on consideration of material
available on record, the Court feels the
necessity of implicating some person(s) as
accused. Power under Section 319 Cr.P.C.
is to be exercised by the Court to do real
justice. Provisions of Sub-Section 1 of
Section 319 Cr.P.C. provide that "if it
appears from the evidence" that any person
has committed any offence. The question
which Court has to confront itself is that
whether
when
the
Investigating
Agency/Officer has filed a closure /final
report against a named accused, should the
Court summon the said person as additional
accused only on the statement of the
complainant
or
other
witnesses
who
has/have reiterated the allegation in the
FIR. Power under Section 319 Cr.P.C. is to
be used primarily to advance the cause of
criminal justice but not as a handle at the
hands of the complainant to harass a person
who is not involved in the commission of
the offence/crime.

22. A Constitutional Bench of
Supreme Court in the case of Hardeep
Singh vs State of Punjab (2014) 3 SCC
92 has held that power under Section 319
Cr.P.C.
which
is
discretionary
and
extraordinary power, is to be exercised only
when strong and cogent evidence comes
against a person before the Court and such
power should not be exercised in a casual
and cavalier manner.

Para 105 and 106 of the aforesaid
judgment is reproduced hereunder:-

"105. Power under Section 319
CrPC
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.

106. 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" 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."

23. If the evidence recorded during
the trial is nothing more than the statements
which are already made under Section 161
Cr.P.C. during the course of investigation
and such evidence is against the plethora of
evidence collected during the course of
240 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation which suggests otherwise,
trial Court would not be correct in law for
summoning a person as an additional
accused on the basis of such evidence.

24. While answering the question that
what degree of satisfaction is required for
invoking powers under Section 319 Cr.P.C.
and in what circumstances powers should
be exercised in respect of a person named
in the FIR but not charge-sheeted, the
Supreme Court in the case of Brijendra
Singh & Ors vs State of Rajasthan :
(2017) 7 SCC 706 in paras 13 to 15 has
held as under:-

"13. In order to answer the
question, some of the principles enunciated
in Hardeep Singh case [Hardeep Singh v.
State of Punjab, (2014) 3 SCC 92 : (2014)
2 SCC (Cri) 86] may be recapitulated:
power under Section 319 CrPC can be
exercised by the trial court at any stage
during the trial i.e. before the conclusion of
trial, to summon any person as an accused
and face the trial in the ongoing case, once
the trial court finds that there is some
"evidence" against such a person on the
basis of which evidence it can be gathered
that he appears to be guilty of the offence.
The "evidence" herein means the material
that is brought before the court during trial.
Insofar as the material/evidence collected
by the IO at the stage of inquiry is
concerned,
it
can
be
utilised
for
corroboration and to support the evidence
recorded by the court to invoke the power
under Section 319 CrPC. No doubt, such
evidence that has surfaced in examinationin-chief, without cross-examination of
witnesses,
can
also
be
taken
into
consideration. However, since it is a
discretionary power given to the court
under Section 319 CrPC and is also an
extraordinary one, same has to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. The
degree of satisfaction is more than the
degree which is warranted at the time of
framing of the charges against others in
respect of whom charge-sheet was filed.
Only where strong and cogent evidence
occurs against a person from the evidence
led before the court that such power should
be exercised. It is not to be exercised in a
casual or a cavalier manner. The prima
facie opinion which is to be formed
requires stronger evidence than mere
probability of his complicity.

14.
When
we
translate
the
aforesaid principles with their application
to the facts of this case, we gather an
impression that the trial court acted in a
casual and cavalier manner in passing the
summoning order against the appellants.
The appellants were named in the FIR.
Investigation was carried out by the police.
On the basis of material collected during
investigation, which has been referred to by
us above, the IO found that these appellants
were in Jaipur city when the incident took
place in Kanaur, at a distance of 175 km.
The complainant and others who supported
the version in the FIR regarding alleged
presence of the appellants at the place of
incident had also made statements under
Section 161 CrPC to the same effect.
Notwithstanding the same, the police
investigation revealed that the statements of
these persons regarding the presence of the
appellants at the place of occurrence was
doubtful and did not inspire confidence, in
view of the documentary and other
evidence collected during the investigation,
which
depicted
another
story
and
clinchingly showed that the appellants' plea
of alibi was correct.

15. This record was before the trial
court. Notwithstanding the same, the trial
court went by the depositions of the
3 All. Satypal Singh Vs. State of U.P. & Anr.
241
complainant and some other persons in their
examination-in-chief, with no other material
to support their so-called verbal/ocular
version. Thus, the "evidence" recorded during
trial was nothing more than the statements
which were already there under Section 161
CrPC recorded at the time of investigation of
the case. No doubt, the trial court would be
competent to exercise its power even on the
basis of such statements recorded before it in
examination-in-chief. However, in a case like
the present where a plethora of evidence was
collected by the IO during investigation
which suggested otherwise, the trial court
was at least duty-bound to look into the same
while forming prima facie opinion and to see
as to whether much stronger evidence than
mere possibility of their (i.e. appellants)
complicity has come on record. There is no
satisfaction of this nature. Even if we
presume that the trial court was not apprised
of the same at the time when it passed the
order (as the appellants were not on the scene
at that time), what is more troubling is that
even when this material on record was
specifically brought to the notice of the High
Court in the revision petition filed by the
appellants, the High Court too blissfully
ignored the said material. Except reproducing
the discussion contained in the order of the
trial court and expressing the agreement
therewith, nothing more has been done. Such
orders cannot stand judicial scrutiny."

25. Thus, trial Court is required to
look into the material collected by the
investigating officer during the course of
investigation before forming prima facie
opinion for summoning a person as an
additional accused.

26. The Supreme Court in the case of
Periyasami v. S. Nallasamy, (2019) 4 SCC
342 taking note of the judgment of Hardeep
Singh (supra) has held that for summoning
a person as an additional accused to face
trial in exercise of power under Section 319
of the Code, there has to be more than
prima facie case which is otherwise the
requirement at the time of framing of the
charge. The level of satisfaction for
exercising the powers under Section 319
Cr.P.C. is little less than the satisfaction
required at the time of conclusion of trial
for convicting an accused. Unless there is
cogent and credible evidence available
against a person which may lead to
conviction of the person after conclusion of
the trial, he should not be summoned as an
additional accused.

Para 10 to 14 of the aforesaid
judgment which are relevant are extracted
hereunder:-

"10. The learned counsel for the
appellants relies upon a Constitution Bench
judgment of this Court in Hardeep Singh v.
State of Punjab [Hardeep Singh v. State of
Punjab, (2014) 3 SCC 92 : (2014) 2 SCC
(Cri) 86] to contend that satisfaction
required to invoke the power under Section
319 of the Code to arraign an accused is to
be exercised sparingly and only in those
cases where the circumstances of the case
so warrant. It is only where strong and
cogent evidence occurs against a person
from the evidence laid before the court,
such power should be exercised and not in
a casual and cavalier manner. The Court
held as under: (SCC p. 138, paras 105-06)

"105. Power under Section 319
CrPC
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
242 INDIAN LAW REPORTS ALLAHABAD SERIES
person from the evidence led before the
court that such power should be exercised
and not in a casual and cavalier manner.

106. 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' 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."
 (emphasis in original)

11. The learned counsel for the
appellants also refers to a recent order of
this Court in Labhuji Amratji Thakor v.
State of Gujarat [Labhuji Amratji Thakor v.
State of Gujarat, (2019) 12 SCC 644 : 2018
SCC OnLine SC 2547] , where, the order
of summoning the additional accused on
the basis of the statements of some of the
witnesses in the witness box was set aside
for the reason that there is not even
suggestion of any act done by the
appellants amounting to an offence under
Sections 3 and 4 of the Protection of
Children from Sexual Offences Act, 2012.
It was held as under: (SCC OnLine SC para
12)

"12. ... The Court has to consider
substance of the evidence, which has come
before it and as laid down by the
Constitution Bench in Hardeep Singh
[Hardeep Singh v. State of Punjab, (2014)
3 SCC 92 : (2014) 2 SCC (Cri) 86] has to
apply the test i.e. ''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.'..."

12. We have heard the learned
counsel for the parties and find that the
order passed by the High Court is not
sustainable in law. The present case is
basically a matrimonial dispute wherein,
the husband who is the complainant has
levelled allegations against the wife and her
other family members. Though in the FIR,
the complainant has mentioned that 15
women and 35 men came by vehicles but
the names of 11 persons alone were
disclosed in the first information report.

13. In the statements recorded
under Section 161 of the Code during the
course of investigation, the complainant
and his witnesses have not disclosed any
other name except the 11 persons named in
the FIR. Thus, the complainant has sought
to cast net wide so as to include numerous
other persons while moving an application
under Section 319 of the Code without
there being primary evidence about their
role in house trespass or of threatening the
complainant. Large number of people will
not come to the house of the complainant
and would return without causing any
injury as they were said to be armed with
weapons like crowbar, knife and ripper, etc.

14. In the first information report
or in the statements recorded under Section
161 of the Code, the names of the
appellants or any other description has not
been given so as to identify them. The
allegations in the FIR are vague and can be
3 All. Akhlesh Kumar Vaidhya Vs. State of U.P. & Ors.
243
used any time to include any person in the
absence
of
description
in
the
first
information report to identify such person.
There is no assertion in respect of the
villages to which the additional accused
belong. Therefore, there is no strong or
cogent evidence to make the appellants
stand the trial for the offences under
Sections 147, 448, 294(b) and 506 IPC in
view of the judgment in Hardeep Singh
case [Hardeep Singh v. State of Punjab,
(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] .
The
additional
accused
cannot
be
summoned under Section 319 of the Code
in casual and cavalier manner in the
absence of strong and cogent evidence.
Under Section 319 of the Code additional
accused can be summoned only if there is
more than prima facie case as is required at
the time of framing of charge but which is
less than the satisfaction required at the
time of conclusion of the trial convicting
the accused."

27. To arrive at deserved satisfaction
for summoning a person as an additional
accused under Section 319 Cr.P.C., it
depends on the quality of the evidence
available on record. It is the duty of the
trial Court to consider the evidence
collected by the investigating officer during
the course of investigation and power under
Section
319 Cr.P.C.
should
not
be
exercised merely on statement of the
complainant or the witnesses who have
reiterated their statements recorded under
Section 161 Cr.P.C. during the course of
investigation
which
the
investigating
officer did not find credible and cogent on
the basis of other plethora of evidence
collected by him.

28. In the present case, learned trial
Court has not considered overwhelming
evidence collected by the investigating
officer during the course of investigation
which would demonstrate that the present
revisionist was not present at the time and
place of occurrence. I find order impugned
herein is unsustainable and against the law.
Thus, this revision is allowed and order
dated 3.03.2020 passed by the Addl
Sessions Judge, Court No.11, Hardoi in
S.T. No.111 of 2018: State vs Pawan Singh
and Ors. arising out of Crime No.267 of
2017 under Sections 452, 302, 504, 506
IPC, Police Station Kachauna, Hardoi is
hereby quashed.
----------
(2021)03ILR A243
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Revision No. 849 of 2019

Akhlesh Kumar Vaidhya ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Devi Prasad Tripathi, Sri Manish Pandey

Counsel for the Opposite Parties:
A.G.A., Sri Babul Kumar Sharma, Sri Harish
Chandra Mishra

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 125 -
Indian Penal Code, 1860 - Sections
498-A,
323,
504,
506
-
Dowry
Prohibition Act,1961 - Section3 / 4 -
To enforce the substantial issues of
civil law, the only remedy available is
in Civil Court, therefore, findings
recorded in proceedings under Section
125, Cr.P.C. are not final and parties
are always at liberty to agitate their
rights in Civil Court - Order under