# Smt. Neelam Devi & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 619
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-28
- **Case number:** Criminal Revision No. 3390 of 2022
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-neelam-devi-ors-revisionists-v-state-of-u-p-anr-50255
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Against summoning
order - Daughter of complainant has died
in unnatural circumstances within seven
years of her marriage - FIR was lodged
against
husband
with
other
family
members - In FIR there are general
allegations of demand of dowry and
torture against all the accused persons -
The I.O. submitted charge-sheet only
against husband, who was in jail and
exonerated remaining named accused
persons on the ground that no evidence
was found against them - During trial,
prosecution moved application u/s 319
Cr.P.C. to summon other named accused -
Application allowed - Evidence recorded
during trial was nothing more than
St.ment recorded u/s 161 Cr.P.C. - No
additional evidence - One year before
incident, deceased was living separately
with her husband on the first floor of
house - She was suffering from mental
depression, tried to commit suicide on two
occasions earlier - Her husband got her
treated for her mental disease - Trial court
has failed to appreciate entire facts,
evidence available on record - Impugned
order set-aside. (Para 2, 3, 7, 11)

Criminal Revision allowed. (E-13)

List of Cases cited:

## Text

5 All. Smt. Neelam Devi & Ors. Vs. State of U.P. & Anr.
619
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. The test laid down by the Apex
Court for invoking powers under section
319 Cr.P.C. inter alia includes the principle
that only when strong and cogent evidence
occurs against a person the power should
be exercised. The test to be applied is one
which is more than prima facieCase, which
is applied at the time of framing of charge.
The Apex Court in Rajendra Singh versus
State of UP A.I.R. 2007 SC 2786 has held
that the statement of witnesses to the
Investigating Officer under section one
161Cr.P.C. cannot be relied upon in
recording finding that accused sought to be
tried could not have been present at the
scene of occurrence. It is further held that it
must appear to the court on the evidence
that someone not arrayed as accused
appears to have committed an offence. The
court need not be satisfied that he has
committed an offence. It need only appear
to it that he has committed an offence.

8. There is cogent evidence in the
form of testimony of eye witness and
injured witnesses. Applying the test laid
down by the Apex Court on the present set
of facts, it is clear that there is strong
evidence then mere probability of the
complicity of the revisionist accused and
pass the test as laid down by the Apex
Court which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to the
extent that the evidence, if got unrebutted
would lead to conviction.

9. The trial court in the impugned
order has narrated the averments made in
the application the prosecution case the
evidence lead before it, the provision and
proposition of law on the point and has
analysed all the facts and evidence on
record and has recorded the finding that
there is sufficient ground to summon the
revisionist for trial. The impugned order is
detailed and reasoned one. It is just and
proper. It need no interference. This
criminal revision is liable to be dismissed.

10. Accordingly, the criminal revision
is hereby dismissed.
----------
(2023) 5 ILRA 619
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 3390 of 2022

Smt. Neelam Devi & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
620 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Sudhir Kumar Agarwal, Sri Satyawan
Yadav

Counsel for the Opposite Parties:
G.A., Sri Amaresh Yadava

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Against summoning
order - Daughter of complainant has died
in unnatural circumstances within seven
years of her marriage - FIR was lodged
against
husband
with
other
family
members - In FIR there are general
allegations of demand of dowry and
torture against all the accused persons -
The I.O. submitted charge-sheet only
against husband, who was in jail and
exonerated remaining named accused
persons on the ground that no evidence
was found against them - During trial,
prosecution moved application u/s 319
Cr.P.C. to summon other named accused -
Application allowed - Evidence recorded
during trial was nothing more than
St.ment recorded u/s 161 Cr.P.C. - No
additional evidence - One year before
incident, deceased was living separately
with her husband on the first floor of
house - She was suffering from mental
depression, tried to commit suicide on two
occasions earlier - Her husband got her
treated for her mental disease - Trial court
has failed to appreciate entire facts,
evidence available on record - Impugned
order set-aside. (Para 2, 3, 7, 11)

Criminal Revision allowed. (E-13)

List of Cases cited:

1. Ramesh Chandra Srivastava Vs St. of U.P. &
anr., 2021 0 Supreme (SC) 519

2. Sagar Vs St. of U.P. & anr., 2011 AIR (SC)
1420

3. Smt. Alka Vs St. of U.P. & anr. (Criminal
Revision No. 1482 of 2019 decided on
13.5.2022)

4. Hardeep Singh Vs St. of Pun. & ors., AIR
(2014) Supreme Court 1400
5. Brijendra Singh Vs St. of Raj., (2017) 7 SCC
706

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

1. Heard learned counsel for the
revisionists, learned counsel for the O.P.
No. 2 and learned A.G.A. for the State.

2. This criminal revision is directed
against the order dated 10.8.2022 passed by
Additional Sessions Judge/F.T.C. No. 2,
Azamgarh in S.T. No. 126 of 2018 (State
Vs. Shashi Kant) Case Crime No. 367 of
2017, P.S. Kotwali, District Azamgarh. By
the impugned order the learned trial court
on an application of the prosecution,
exercising powers under section 319
Cr.P.C. has summoned the revisionistsaccused for trial.

3. The O.P. No. 2 lodged an FIR on
18.7.2017 alleging therein that the marriage
of his daughter Hemlata was solemnized
with Shashikant on 19.5.2015 and on the
demand of in-laws Rs. 3 lac cash, one
motorcycle, golden ring and various
household articles were given in dowry but
her husband Shashikant, parents-in-law
Ram Asrey Chaudhary, Neelam Chaudhary
and Devar Raja Chaudhary were not
satisfied with the dowry and used to harass
and torture her. They were demanding one
golden chain and one lac cash as additional
dowry and were threatening to oust her.
They ousted her from their house after
eight days of delivery. His daughter told
him the entire facts on telephone and
relative of the complainant kept her and got
her treated. Thereafter, the complainant
came and took her to Mumbai and got her
treatment. After counselling he sent his
daughter to her in-laws house but the
accused persons again started to abuse and
5 All. Smt. Neelam Devi & Ors. Vs. State of U.P. & Anr.
621
torture her. Yesterday on 16.7.2017 he
came to know that his daughter has been
burnt
and
killed.
After
investigation
charge-sheet was submitted only against
Shashikant, husband of the deceased.
Investigating
Officer
exonerated
the
remaining named accused persons in the
FIR on the ground that no evidence is
found against them. During course of trial
Rambhawati Kannojiya, P.W.1 mother of
the deceased and complainant Pancham
Kannojiya, P.W. 2 were examined. The
prosecution moved an application under
section 319 Cr.P.C. to summon the other
accused persons named in the FIR namely
Ram Asrey Chaudhary, Neelam Chaudhary
and Raja Chaudhary. The learned trial court
by the impugned order has allowed the
aforesaid application and summoned them.

4. Learned counsel for the revisionists
contended that revisionists are innocent and
have been falsely implicated. The O.P. No.
2 with malafide intention and ulterior
motive moved application under section
319 Cr.P.C. on false and frivolous grounds
only to harass them. Learned trial court
while passing the impugned order has not
considered the established principle of law
that the power conferred under section 319
Cr.P.C. is not to be exercised in a routine
manner and it should be used very
sparingly and only if evidence has come on
record which sufficiently establishes that
the persons have committed the offence.
Mere doubt about the involvement of the
other persons on the basis of evidence led
before the trial court is not enough to
summon them under section 319 Cr.P.C.
The power conferred under section 319
Cr.P.C. is an extra-ordinary power and
should be used very sparingly. It may be
exercised only if compelling reasons exist.
Some positive evidence must have to be
there and that evidence should point to the
specific guilt of the persons to be
proceeded against. The learned trial court
has failed to exercise its power in a
judicious manner and wrongly and illegally
summoned the revisionists-accused without
cogent
and
credible
evidence.
The
impugned order has been passed in a
mechanical manner. It is further contended
that deceased was suffering from mental
agony and was under treatment which is
clearly established from the medical
documents. The revisionist no. 2 was on
duty at the time of incident while
revisionist no. 3 is Devar of the deceased
and he is studying in B.A. final year. He
has no concern with the deceased as well as
her husband Shashikant in their day-to-day
affairs. Learned counsel placed reliance on
the following case laws:

1. Ramesh Chandra Srivastava
Vs. State of U.P. and another 2021 0
Supreme (SC) 519

2. Sagar Vs. State of U.P. and
another2011 AIR (SC) 1420

3. Smt. Alka Vs. State of U.P.
and another in Criminal Revision No.
1482 of 2019 decided on 13.5.2022

5. Learned A.G.A. and learned
counsel for the O.P. No. 2 contended that
revisionists-accused were named in the
FIR. There are allegations against them
also regarding harassment and torture for
demand of dowry. The I.O. without any
sufficient reason has exonerated them in
investigation and filed charge-sheet only
against the husband of the deceased who is
in jail and his bail application has been
rejected thrice. The complainant P.W. 2
and Rambhawati, P.W. 1 the parents of the
deceased in their testimony before the trial
court
have
fully
corroborated
the
prosecution story as alleged in the FIR
which clearly establishes the complicity of
622 INDIAN LAW REPORTS ALLAHABAD SERIES
the revisionists-accused. The learned trial
court after considering the real facts and
circumstances of the case and perusing the
evidence available on record has legally
summoned the revisionists. It is also
contended that deceased was well educated
and a graduate. She was not mentally
disturbed. At the time of medical treatment
as disclosed by the revisionists she was
present at Mumbai which is established
from the child card prepared at Mumbai.
Thus, the medical description of mental
care is forged and fabricated. It is further
contended that there is sufficient and
cogent evidence on record against the
revisionists-accused. There is no illegality
in the impugned summoned order.

6. It is not disputed that the daughter
of the complainant-O.P. No. 2 has died in
unnatural circumstances within seven years
of her marriage. The FIR was lodged
against husband Shashikant, parents-in-law
Ram
Asrey
Chaudhary
and
Neelam
Chaudhary and Devar Raja Chaudhary. In
the FIR there are general allegations of
demand of dowry and torture against all the
accused persons. The I.O. conducted the
investigation and submitted charge-sheet
only against husband Shashikant. On the
basis of evidence collected during course of
investigation the I.O. reached to the
conclusion that father-in-law Ram Asrey,
mother-in-law Neelam Chaudhary and
Devar Raja Chaudhary have been falsely
implicated and there is no evidence against
them. It is true that the complainant
Pancham Kannojiya, P.W. 2 father of the
deceased and Rambhawati Kannojiya, P.W.
1 mother of the deceased in their testimony
before the trial court have reiterated the
allegations of the FIR and implicated the
revisionists-accused also but even in their
statements there are general allegations
against the revisionists-accused regarding
harassment and torture for demand of
additional dowry.

7. The revisionists no. 1 and 2 are
parents-in-law while revisionist no. 3 is
Devar
of
the
deceased.
They
were
exonerated during investigation as their
complicity was not found. The evidence
recorded during trial is nothing more than
the statement recorded under section 161
Cr.P.C. There is no additional evidence.
During investigation the I.O. has collected
the evidence that one year before the
incident the deceased was living separately
with her husband on the first floor of the
house. She was also suffering from mental
depression. She has tried to commit suicide
on two occasions earlier. Her husband got
her treated for her mental disease.

8. A Constitution Bench of Apex
Court in Hardeep Singh Vs. State of
Punjab and others AIR (2014) Supreme
Court 1400 has settled scope and ambit of
Section 319 Cr.P.C. The relevant paras 98
and 99 are quoted below:

"98. Power under Section 319,
Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. It is
not to be exercised because the Magistrate
or the Sessions Judge is of the opinion that
some other person may also be guilty of
committing that offence. Only where strong
and cogent evidence occurs against a
person from the evidence led before the
court that such power should be exercised
and not in a casual and cavalier manner.

99. Thus, we hold that though
only a prima 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
5 All. Smt. Neelam Devi & Ors. Vs. State of U.P. & Anr.
623
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."

9. The Apex Court in the case of
Brijendra Singh Vs. State of Rajasthan
(2017) 7 SCC 706 in para no. 13 has
observed as follows:

"In order to answer the question,
some of the principles enunciated in
Hardeep Singh 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 319
Cr.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 discretionary power given to the
Court under Section 319 Cr.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 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."

10. Considering the entire facts,
evidence and material on record it appears
that there is no strong and cogent reason to
summon the revisionists-accused to face
trial in exercise of powers under section
319
Cr.P.C.
While
deciding
the
application under section 319 Cr.P.C. the
learned trial court has failed to appreciate
the entire facts, evidence and other
material available on record. The court
below has also failed to record the
degree of satisfaction which is required
to summon an accused under section 319
Cr.P.C. The degree of satisfaction is not
one of prima facie case as recorded to
the court below. Consequently, trial
court has failed to exercise its power in
accordance with parameters laid down
by the Apex Court in a catena of
decisions. The impugned order is not
sustainable in the eye of law and is
liable to be set-aside.
624 INDIAN LAW REPORTS ALLAHABAD SERIES

11. The criminal revision is allowed.
The impugned order dated 10.8.2022
passed by Additional Sessions Judge/F.T.C.
No. 2, Azamgarh in S.T. No. 126 of 2018
whereby the application under section 319
Cr.P.C.
has
been
allowed
and
the
revisionists have been summoned to face
trial is hereby set-aside.
----------
(2023) 5 ILRA 624
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 3526 of 2022

Ashok Kumar & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Vinay Kumar Pandey

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 323, 324, 325,
504 & 506 - Against summoning order -
Specific allegations against accused that
they along with other co-accused persons
armed
with
lathi,
danda
and
other
weapons assaulted the complainant & ors.
- Five persons received injuries - During
trial, prosecution moved application u/s
319 Cr.P.C. - Ground, that in FIR nine
persons were named while I.O. has
submitted charge-sheet only against five
accused persons - Under undue influence,
IO
has
exonerated
four
persons
-
Application
allowed
-
Contention
-
Opposite party want to settle criminal
matters,
revisionist
have
falsely
implicated - Held, both witnesses (P.W. 1
complainant) and (P.W. 2 injured witness)
have fully corroborated allegations of FIR
- Evidence of eye witness has greater
evidentiary
value,
unless
compelling
reasons
exist
his
St.ment
can't
be
discarded
-
St.ments
of
witnesses
recorded u/s 161, Cr.P.C. was not proper -
It was sketchy, has no details of incident -
To benefit accused, IO has recorded
St.ments at his own - Trial Court rightly
exercised
powers
-
No
illegality
in
impugned order. (Para 2, 3, 4, 7, 8, 9)

Criminal Revision dismissed. (E-13)

List of Cases cited:

1. Hardeep Singh Vs St. of Pun., AIR 2014
Supreme Court page 1400, (Para 98 and 99)

2. St. of M.P. Vs Man Singh, (2003) 10 SCC 414

3. Abdul Sayeed Vs St. of M.P., (2010) 10 SCC
259

4. St. of U.P. Vs Naresh, (2011) 4 SCC 324

(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 has been
filed against the order dated 10.6.2022
passed by Additional Sessions Judge, Court
No. 10, Mathura in S.T. No. 396 of 2016,
under section 147, 148, 149, 323, 324, 325,
504 and 506 IPC (State Vs. Mahesh and
others) Case Crime No. 152 of 2015, P.S.
Chhata, District Mathura.

3. An FIR was lodged by O.P. No. 2
Smt. Taravati alleging therein that today on
23.4.2015 at about 7:00 a.m. Chetram S/o
her Jeth has gone to attend the call of
nature. When he was coming back then
near the house of Mahesh, Ashok, Ashiwin,
Ram Kishan, Mahesh, Bankey, Rajveer and