# Shivam Pandey @ Shiva & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 630
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-09
- **Case number:** Criminal Revision No. 540 of 2021
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-pandey-shiva-anr-revisionists-v-state-of-u-p-anr-47457
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section 397/401, 319 -
Indian Penal Code,1860-Section 364, 392,
419, 420-quashing of summoning order
passed u/s 319 Cr.P.C.-statement of PW2
,PW3, PW4 depicts clear motive of the
revisionists-they threatened the abductee
prior to the abduction-abductee had an
illicit relationship with the sister of
revisionist-Three
witnesses
given
last
scene evidence against the revisionists-
strong and cogent evidence available
against the revisionist is more than
enough to summon the accused personsTrial court committed no illegality in
passing the order.(Para 1 to 29)

B. If the evidence tendered in the course of
any enquiry or trial shows that any person
not being the accused has committed any
offence for which he could be tried together
with the accused, he can be summoned to
face trial even though he may not have been
charge-sheeted by the investigating agency
or may have been discharged at an earlier
stage.(Para 17 to 20)

The revision is dismissed. (E-6)

List of Cases cited:

## Text

630 INDIAN LAW REPORTS ALLAHABAD SERIES

34. Accordingly, this appeal is
dismissed.

35. Appellant Jaibir is on bail, he be
taken into custody to serve out the
remaining
sentence.
His
bonds
are
cancelled and sureties are discharged.

36. Copy of this judgment be certified
to the court below for compliance. Lower
court record be transmitted to the District
Court, concerned forthwith.
----------
(2021)09ILR A630
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.09.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Revision No. 540 of 2021

Shivam Pandey @ Shiva & Anr.
 ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Rajiva Dubey

Counsel for the Opposite Parties:
Mr. Alok Tiwari (Addl. Govt. Advocate)

A. Criminal Law - Code of Criminal
Procedure,1973-Section 397/401, 319 -
Indian Penal Code,1860-Section 364, 392,
419, 420-quashing of summoning order
passed u/s 319 Cr.P.C.-statement of PW2
,PW3, PW4 depicts clear motive of the
revisionists-they threatened the abductee
prior to the abduction-abductee had an
illicit relationship with the sister of
revisionist-Three
witnesses
given
last
scene evidence against the revisionists-
strong and cogent evidence available
against the revisionist is more than
enough to summon the accused personsTrial court committed no illegality in
passing the order.(Para 1 to 29)

B. If the evidence tendered in the course of
any enquiry or trial shows that any person
not being the accused has committed any
offence for which he could be tried together
with the accused, he can be summoned to
face trial even though he may not have been
charge-sheeted by the investigating agency
or may have been discharged at an earlier
stage.(Para 17 to 20)

The revision is dismissed. (E-6)

List of Cases cited:

1. Hardeep Singh & ors. Vs St of Punj. & ors.
(2014) AIR SCW 667

2. Brijendra Singh & ors. Vs St. of Raj. (2017)
AIR SC 2839

3. Rajendra Singh Vs St. of U.P. & anr. (2007) 7
SCC 387

4. Gaurav @ Nilwa Vs St. of U.K. & anr. (2020)
112 ACC 186

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1.

Heard
learned
counsel
for
petitioners as well as Shri Alok Tiwari,
learned Additional Government Advocate
for State.

2. The present 482 Cr.P.C. application
has been filed to quash the impugned order
dated 19.8.2021, passed by Addl. Sessions
Judge/FTC (New), Lakhimpur Kheri vide
S.T. No.707 of 2018, Crime No.894 of
2018 under sections 364, 392, 419, 420
I.P.C.,
P.S.
Kotwali
Sadar,
district
Lakhimpur Kheri, whereby the application
moved by the prosecution under Section
319 CrPC has been allowed and the
revisionsits have been summoned to face
trial.
9 All Shivam Pandey @ Shiva & Anr. Vs. State of U.P. & Anr.
631

3. Learned counsel for the revisionists
submitted that the trial Court has illegally
summoned the revisionists. In the statement
under section 161 CrPC none of the
prosecution witnesses has taken the name
of the revisionists. It is submitted that
relying on the evidence of P.W.1, P.W.2,
P.W.3 and P.W.4, learned trial court has,
though summoned the revisionists under
section 319 CrPC, however, has failed to
record any satisfaction as mandated by the
Supreme Court in the case of Hardeep
Singh and others versus State of Punjab
and others 2014 AIR (SCW) 667.

4. The next ground raised by the
revisionists' counsel is that the statement of
the prosecution witnesses under section 161
CrPC and the material collected during
investigation by the investigating officer
have not been taken into account while
summoning the revisionists.

5. Per contra, learned A.G.A. has
submitted that the prosecution witnesses
P.W.1, P.W.2, P.W.3 and P.W.4 in their
statement before the court have assigned
the motive of committing the crime to the
revisionists. P.W.2, P.W.3 and P.W.4 have
given the last seen evidence against the
revisionists. P.W.2, P.W.3 and P.W.4 have
also stated that the threat was extended by
the revisionists to the deceased few days
back and the trial court after considering
the evidence of all four prosecution
witnesses and after finding more than a
prima facie case has rightly summoned the
revisionists. There is no illegality in the
order impugned.

6. A perusal of the evidence of P.W.1
Manoj Kumar Mathur shows that he came
to know that the abductee Mobin has
developed illicit relationship with the sister
of revisionist No.1 Shivam Pandey. Mobin
was working as driver with the witness and
that is why, after coming to know the illicit
relationship, he has terminated his service.

7. P.W.2 Razia wife of the abductee
Mobin has stated that the revisionists 1 and
2 went with her husband Mobin. They were
seen by another prosecution witness Salim.
She has also corroborated and reiterated the
illicit relationship of Mobin with the sister
of revisionist No.1. 3 to 10 days prior, her
husband
Mobin
was
threatened
by
revisionists that either he leaves Lakhimpur
Kheri and forget their sister or his family
members will not be able to trace his body.
She has further stated that on 8.8.2018 at
6.30p.m., her husband was taken by the
revisionists. She has also stated that she
had
moved
an
application
to
the
Superintendent of Police, Kheri and has
told him that the revisionists in collusion
with Abhishek Verma and Naman Verma,
co-accused have abducted her husband.

8. P.W.3 Salim has stated that he has
seen the revisionists 1 and 2 with the
abductee Mobin on 8.8.2018 at around 6-7
p.m..

9. P.W.4 Baheed in his examination
in chief has also stated that the abductee
Mobin developed relationship with the
sister of revisionist No.1. When it came to
the knowledge of revisionists 1 and 2, they
went to the house of Mobin at around
6.00p.m. and threatened Mobin to leave
Lakhmpur Kheri, or else his family
members will not be able to trace his dead
body.

10.

The
trial
Court
on
due
appreciation of evidence of the prosecution
witnesses P.W.2, P.W.3 and P.W.4 has
found that all the three prosecution
witnesses have taken the name of both the
632 INDIAN LAW REPORTS ALLAHABAD SERIES
revisionists and have supported the story of
committing the crime by them, hence has
summoned the revisionists.

11.

Learned
counsel
for
the
revisionists has relied on the judgment in
Hardeep Singh's case (supra) and submitted
that the trial court should have recorded its
satisfaction that the evidence which has
been adduced by the prosecution is
sufficient and if it goes unrebutted, it will
lead to conviction. Relevant para 99 of the
judgment in Hardeep Singh's case (supra) is
reproduced as below :

?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 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 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 Cr.P.C. to form
any opinion as to the guilt of the accused.?

12. A perusal of the aforesaid
judgment (relevant para 99) shows that 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.

13. In the present case, I find that the
trial court was satisfied that on the basis of
the evidence of P.W.2, P.W.3 and P.W.4 ,
prima facie case against the revisionist is
made out. There is no requirement for the
court while issuing summons to the persons
summoned under section 319 CrPC to form
any opinion regarding guilt of the accused.

14. The learned counsel has further
relied on Brijendra Singh and others versus
State of Rajasthan 2017 AIR (SC) 2839.
Relevant para 13 is extracted below :

?13. In order to answer the
question, some of the principles enunciated
in
Hardeep
Singh?s
case
may
be
recapitulated:

Power under Section 319 Cr.P.C.
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 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 319Cr.P.C.
No doubt, such evidence that has surfaced
in examination-in-chief, without cross-
examination of witnesses, can also be taken
into consideration. However, since it is a
9 All Shivam Pandey @ Shiva & Anr. Vs. State of U.P. & Anr.
633
discretionary power given to the Court
under Section 319Cr.P.C. and is also an
extraordinary one, same has to be
exercised sparingly and only in those cases
where the circumstances of the case so
warrants. 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 chargesheet 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.?

15. In the case of Brijendra Singh
(supra), it has been held by Supreme Court
that prima facie opinion which is to be
formed requires stronger evidence than mere
probability of his complicity of the accused
and the degree of satisfaction should be more
than the degree which is warranted at the
time of framing of charges. It is further held
that even such evidence which has surfaced
in the examination in chief without cross
examination can be taken into consideration.

16. In the present case, the evidence of
P.W.2, P.W.3 and P.W.4 makes it more than
prima facie evidence and strong and cogent
evidence has been given against the
revisionists.

17. Learned A.G.A. on the other hand
has relied on judgment in Rajendra Singh
versus State of U.P. and another (2007)7
SCC 378. It has been held that if the
evidence tendered in the course of any
enquiry or trial shows that any person not
being the accused has committed any offence
for which he could be tried together with the
accused, he can be summoned to face trial
even though he may not have been chargesheeted by the investigating agency or may
have been discharged at an earlier stage. .

18. In Gaurav @ Nilwa versus State
of
Uttarakhand
and
another
[2020(112)ACC 186, the High Court of
Uttarakhand while summing up law laid
down in Hardeep Singh's case (supra) held as
under (relevant para 10) :

?10. From the law laid down by
Honble Apex Court in Hardeep Singhs case
(supra), it emerges that- (i) the Court can
exercise power under Section 319 Cr.P.C.
even on the basis of the statement made in
examination-in-chief
of
witnesses
concerned; and (ii) Court need not wait till
the cross examination of such a witness and
the Court need not wait for the evidence
against accused proposed to be summoned
to be tested by cross examination and to a
person not named in the FIR or a person so
named in the FIR, but, to have not been
charge-sheeted or a person who has been
discharged can be summoned under
Section 319 Cr.P.C., provided from the
evidence it appears that such person can be
tried along with accused already facing
trial.?

19. In regard to the arguments of the
revisionists' counsel that the material
collected by the investigating officer has to
be taken into account, he has relied on para
110 of the judgment in Hardeep Singh's
case
(supra),
which
is
extracted
hereinunder :

?110. We accordingly sum up our
conclusions as follows:

Question Nos.1 & III Q.1 What is
the stage at which power under Section 319
Cr.P.C. can be exercised?
634 INDIAN LAW REPORTS ALLAHABAD SERIES

AND Q.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?

A. In Dharam Pal's case, the
Constitution Bench has already held that
after committal, cognizance of an offence can
be taken against a person not named as an
accused but against whom materials are
available from the papers filed by the police
after completion of investigation. Such
cognizance can be taken underSection 193
Cr.P.C. and the Sessions Judge need not wait
till
'evidence'
underSection
319Cr.P.C.
becomes
available
for
summoning
an
additional accused.

Section 319 Cr.P.C., significantly,
uses two expressions that have to be taken
note of i.e. (1) Inquiry (2) Trial. As a trial
commences after framing of charge, an
inquiry can only be understood to be a pretrial inquiry. Inquiries under Sections 200,
201, 202 Cr.P.C.; and under Section 398
Cr.P.C.
are
species
of
the
inquiry
contemplated
bySection
319
Cr.P.C.
Materials coming before the Court in course
of
such
enquiries
can
be
used
for
corroboration of the evidence recorded in the
court after the trial commences, for the
exercise of power under Section 319Cr.P.C.,
and also to add an accused whose name has
been shown in Column 2 of the chargesheet.

In view of the above position the
word 'evidence' in Section 319 Cr.P.C. has
to be broadly understood and not literally
i.e. as evidence brought during a trial.

Question No. II Q.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?

A. Considering the fact that under
Section 319Cr.P.C. a person against whom
material is disclosed is only summoned to
face the trial and in such an event
underSection 319(4)Cr.P.C. the proceeding
against such person is to commence from
the stage of taking of cognizance, the Court
need not wait for the evidence against the
accused proposed to be summoned to be
tested by cross-examination.

Question No. IV Q.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) CrPC can be
exercised only if the court is satisfied that
the accused summoned will in all likelihood
be convicted?

A. Though underSection 319(4)
(4)(b) Cr.P.C. the accused subsequently
impleaded is to be treated as if he had been
an accused when the Court initially took
cognizance of the offence, the degree of
satisfaction that will be required for
summoning a person under Section 319
Cr.P.C. would be the same as for ?framing
a charge. The difference in the degree of
satisfaction for summoning the original
accused and a subsequent accused is on
account of the fact that the trial may have
already commenced against the original
accused and it is in the course of such trial
that materials are disclosed against the
newly
summoned
accused.
Fresh
summoning of an accused will result in
delay of the trial - therefore the degree of
9 All Shivam Pandey @ Shiva & Anr. Vs. State of U.P. & Anr.
635
satisfaction for summoning the accused
(original and subsequent) has to be
different.

Question No.V Q.V Does the
power under Section 319Cr.P.C. extend to
persons not named in the FIR or named in
the FIR but not chargesheeted or who have
been discharged?

A. A person not named in the FIR
or a person though named in the FIR but
has not been chargesheeted or a person
who has been discharged can be summoned
under Section 319Cr.P.C. provided from
the evidence it appears that such person
can be tried along with the accused already
facing trial. However, in so far as an
accused who has been discharged is
concerned the requirement of Sections 300
and 398 Cr.P.C. has to be complied with
before he can be summoned afresh.

The matters be placed before the
appropriate Bench for final disposal in
accordance
with
law
explained
hereinabove.?

20. A perusal of the law laid down in
the aforesaid case shows that enquiries
under sections 200, 201, 202 CrPC and
under section 396 CrPC are species of the
inquiry contemplated by section 319 CrPC.
However, it is no where held that if for the
first time statement has been given before
the court which was not given before the
investigating officer, the trial court shall be
precluded from summoning the accused;
rather on the contrary in view of the
aforesaid judgment, it is quite clear that if
the evidence has been given by the
prosecution witness regarding commission
of the crime by a person and makes out
more than a prima facie case greater than
the degree of satisfaction at the stage of
framing of charges, such persons can be
summoned by the trial court. Therefore, the
law in this respect can be summarised that
if during enquiry or trial an evidence has
come that a person who is not chargesheeted and not an accused has committed
a crime and that evidence is more than
prima facie evidence and also shows more
than probability, rather it is a strong or
cogent evidence, the trial Court shall be
within its right to summon that accused to
face trial along with other co-accused
persons. The satisfaction that requires
should be lower than that on which the
accused can be convicted, however, it has
to be greater than mere a prima facie case
or mere a probable case.

21. In the present case, P.W. 2 and
P.W.4 have given clear cogent evidence
regarding commission of crime by the
present revisionists. They have assigned
motive against the revisionists. They have
also given the last seen evidence against the
revisionists that they were seen with Mobin
who has been abducted. P.W.2, P.W.3 and
P.W.4 have also stated that the revisionists
have threatened the abductee Mobin to kill.
Thus, a cumulative reading of statements of
these three witnesses depicts that the
revisionists had a clear motive. They have
extended threat 8-10 days prior to the
abduction of Mobin and on the date of
occurrence, these three witnesses have
given last seen evidence against the
revisionists and in view of the aforesaid
law laid down by Supreme Court, it is more
than enough to summon the accused
persons.

22. At this stage, learned counsel for
the revisionists submits that although
discretion under section 319 CrPC is
discretionary, however, while summoning
the accused, the trial court should not act in
636 INDIAN LAW REPORTS ALLAHABAD SERIES
a casual manner and such discretion should
be exercised sparingly.

23. I find that the trail court has been
very careful and has gone through the
evidence of the prosecution witnesses in
detail and only then has summoned the
revisionists to face trial. There is no
illegality in the impugned order.

24. The revision, being devoid of
merit, is dismissed.
----------
(2021)09ILR A636
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Criminal Revision No. 1407 of 2021

Yogesh ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Suresh Chandra Pandey, Sri Saurabh
Pandey.

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

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
&
Indian Penal Code, 1860-Section 147,
148, 149, 323, 342, 302/34 & Juvenile
Justice (Care and Protection of Children)
Act, 2015-Section 101, 102- applicationbail
rejected
u/s
12
JJ
Act-appeal
preferred u/s 101 of the Act, turned
down-age
of
the
accused/revisionist
determined as 16 years 6 months and 16
days on the date of incident-failure to
grant a fair hearing would be equally a
cause of prejudice to the accused as to the
victim-victim/complainant
would
be
entitled to a reasonable opportunity of
being heard in a revision-right to be heard
in revision would not stand excluded only
for the reason that a person who claims
such a right was not entitled to be heard
at the stage of passing of the original
order or at the appellate stage. (Para 1 to
82)

B. In a situation where substantial right
would be effected or a prejudice is likely
to result, an opportunity of hearing can
legitimately be claimed as a matter of
right when the order is assailed at the
higher forum, irrespective of the right of
hearing having been given at the stage
when original order was passed. (Para 75
to 81)

C. The principle of audi alteram partem is
a fundamental rule of natural justice and
'fair play in action' is its essence, which
demands that before any order prejudicial
to the interests of a person is passed, he
must be given an opportunity to be
heard.(Para 76)

The revision is allowed. (E-6)

List of Cases cited:

1. X S/o Laxman Vs St. Thru Pp & anr. CRLR
No. 494 of 2021

2. Sandeep Kumar Bafna Vs St. of Mah. & ors.
(2014) 16 SCC 623

3. Manharibhai Muljibhai Kakadia & anr. Vs
Shailesbhai Mohanbhai Patel & ors. (2012) 10
SCC 517

4. Mohit @ Sonu & anr. Vs St. of U. P. & anr.
(2013) 7 SCC 789

5. Babloo Pasi Vs St. of Jharkhand anr. (2008)
13 SCC 133

6. Jagannath Verma Vs St. of U.P.(2014) 8 ADJ
439

7. Mallikarjun Kodagali (dead) thru LRs Vs St. of
Karn. & ors.