# Smt. Sanjeeda @ Moti & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 432
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-24
- **Case number:** Criminal Revision No. 3546 of 2019
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sanjeeda-moti-ors-revisionists-v-state-of-u-p-anr-44778
- **Pages:** 6

## Headnote

A. Criminal Law -Code of Criminal
Procedure,1973 - Section 319 - Degree
of satisfaction - Standard of proof
employed for summoning a person as an
accused under Section 319 is higher than
the standard of proof employed for
framing a charge against an accused.

B. Criminal Law- Code of Criminal
Procedure,1973
-
Section
319
-
'Evidence' - Examination in-chief of
prosecution
witnesses
is
to
be
considered and there is no need to wait
for cross-examination

Revisionist name occurred in the statements
of P.W. - 1 Murtaza, who lodged F.I.R. and of
P.W.-2 - Mustafa who was the eyewitness and
has seen the occurrence also stated the same
thing in his statement. After completing
examination-in-chief
of
P.W.-2
,accused
persons /revisionists were summoned under
section 319 Cr.P.C. Held - Requirement of
section 319 Cr.P.C. was established by
statement of two witnesses. Further All these
accused persons are named accused persons
in the FIR (Para 19, 20)

Criminal Revision dismissed (E-5)
List of Cases Cited: -

## Text

432 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdictional error. Revision has no force
and is liable to be dismissed.

21. The revision is accordingly,
dismissed.
----------

(2019)11ILR A432

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Revision No. 3546 of 2019

Smt. Sanjeeda @ Moti & Ors.
 ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Atul Kumar

Counsel for the Opposite Parties:
A.G.A., Sri Sushil Kumar Pandey

A. Criminal Law -Code of Criminal
Procedure,1973 - Section 319 - Degree
of satisfaction - Standard of proof
employed for summoning a person as an
accused under Section 319 is higher than
the standard of proof employed for
framing a charge against an accused.

B. Criminal Law- Code of Criminal
Procedure,1973
-
Section
319
-
'Evidence' - Examination in-chief of
prosecution
witnesses
is
to
be
considered and there is no need to wait
for cross-examination

Revisionist name occurred in the statements
of P.W. - 1 Murtaza, who lodged F.I.R. and of
P.W.-2 - Mustafa who was the eyewitness and
has seen the occurrence also stated the same
thing in his statement. After completing
examination-in-chief
of
P.W.-2
,accused
persons /revisionists were summoned under
section 319 Cr.P.C. Held - Requirement of
section 319 Cr.P.C. was established by
statement of two witnesses. Further All these
accused persons are named accused persons
in the FIR (Para 19, 20)

Criminal Revision dismissed (E-5)
List of Cases Cited: -
1. Hardeep Singh Vs St. of Punjab (2014) 3
SCC 92.
2. Babubhai Bhimabhai Bokhiria Vs St. of Guj.
(2014) 5 SCC 568.
3. Brijendra Singh Vs St. of Raj. AIR 2017 SC 2839.
4.Labhuji Amaratji Thakor Vs St. of Guj. AIR
2019 SC 734
5. Rakesh Vs St. of Haryana AIR 2019 SC 2168

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Vakalatnama filed by Shri Sushil
Kumar Pandey, Advocate on behalf of the
informant is taken on record.

2. Heard Shri Atul Kumar, learned
counsel for the revisionist, Shri Sushil
Kumar Pandey, learned counsel for the
informant, learned A.G.A. for the State
and perused the record. .

3. This revision has been filed
against the order dated 21.08.2019 passed
by the Additional District Judge, Court
no. 9, Muzaffar Nagar in S.T. No. 1291 of
2016 (State Vs. Mohsin), arising out of
Case Crime No. 480 of 2016, under
sections 147, 148, 302 read with section
149, 506 I.P.C., P.S. Charthawal, District
Muzaffar Nagar by which the revisionist
Smt.
Sanjeeda
@
Moti,
Gulfaraj,
3 All. Smt. Sanjeeda @ Moti & Ors. Vs. State of U.P. & Anr.
433
Shahnawaz, Mehtab, Hafij and Jishan
have been summoned under section 319
Cr.P.C.

4. The F.I.R. was in respect of the
criminal
incident
took
place
on
02.08.2016 for which on the same day the
F.I.R. was lodged by one Murtaza stating
that his brother Riyazul Hussain was
sleeping in the upper portion of the house
in veranda and it was mid night at 1:30
a.m.
Sanjeeda
@
Moti,
Gulfaraj,
Shahnawaz, Mehtab, Hafij and Jishan and
three other persons came and caused gun
shot injuries to Riyazul Hussain and
because of that he died and thereafter, the
accused persons firing on the family
members and the informant, threaten with
dire consequences, escaped away from
the place. His brother Mustafa, Sahid @
Bhuru, the wife of Mustafa Julekha and
the wife of informant Kuresha saw the
accused persons running away after
committing the offence. On the basis of
this, the offence was registered under
section 147, 148, 149, 302, 506 IPC
against 7 named persons and three
unknown persons.

5. The Investigation took place and
the
Investigating
Officer
submitted
charge-sheet
against
single
accused
Mohsin for the offence under sections
147, 148, 149, 302, 506 IPC. The trial
started and it has been submitted by the
learned counsel to the revisionist that
charges were framed against the accused
persons for the offence under section 147,
148, 302 read with section 149 and 506
IPC. Thereafter the statement of one
witness namely P.W.-1 Murtaza was
recorded and an application has been
given by the prosecution for summoning
all the accused persons against whom the
charge-sheet was not filed but their name
occurred in the statement of P.W.-1. After
hearing the prosecution the accused
persons were summoned by order date
08.02.2019 against that order these
revisionists filed a revision which was
decided by this Court as Criminal
Revision No. 927 of 2019 by order dated
12.03.2019 and the summoning order of
the accused persons under section 319
Cr.P.C. was set aside and the matter was
remanded to dispose of the application a
fresh as only one witness was examined
at that time and this court expected some
more evidence to come for the just
disposal of the application.

6. Thereafter, the trial proceeded
and Mustafa was examined as P.W.-2 and
after completing examination-in-chief of
P.W.-2 the application was decided a
fresh by the impugned order dated
21.08.2019 and the accused persons
/revisionists
were
summoned
under
section 319 Cr.P.C.

7. Aggrieved by this order, this
revision has been filed challenging the
impugned order on the basis that in
passing the said order the evidence was
not properly weighed and the same is
illegal, without consideration of the facts
and evidence on record. This was not
considered by the learned court below
that there was no allegation in the FIR
against the revisionists and no specific
role was assigned to them in commission
of the offence. The deceased sustained
only one fire arm injury and none other
have sustained any injury, therefore, the
impugned order is illegal and against the
provisions of law and is liable to be set
aside.

8. It has been admitted by both the
sides is pertinent that in revision only
434 INDIAN LAW REPORTS ALLAHABAD SERIES
three aspects are considered- material
irregularity, illegality and jurisdictional
error in passing the impugned order. The
Revisional Court is not required to enter
into the factual matrix in such cases and
needless to say that the jurisdiction of the
Revisional Court is enough restricted, so
far as the factual matrix is concerned.

9. From the perusal of the F.I.R. it
appears that the accused persons who are
summoned under section 319 Cr.P.C.
were all named in the F.I.R., therefore, it
was necessary to look into the reasons,
why and how, I.O. submitted charge-sheet
only against single accused. It is strange
to see that in the charge-sheet there is
specific mention of section such as 147,
148 IPC and it requires that the particular
offence must have been committed by a
group of persons who must have
constituted an unlawful assembly with the
common
object
of
committing
the
offence. Therefore, there appears to be
apparent absurdity that the I.O. submitted
charge-sheet only against a single accused
and incorporated in the charge-sheet that
the offence under section 147 and 148
IPC was also constituted. It is also very
significant to mention that the learned
trail court has also framed charge
including these two sections alongwith
section
149
IPC,
therefore,
while
submitting the charge-sheet it was in the
mind of the I.O. that the offence has been
committed by an unlawful assembly with
the common object to commit that
offence and the same must have been
present while framing charge.

10. Now, there are two witnesses who
have been examined as yet, PW-1 Murtaza
who was already earlier examined and who
has lodged F.I.R. and the second is PW-2
Mustafa who is eyewitness.

11. It is also pertinent to mention that
the cross-examination of PW-1 has been
completed from the side of the accused and
thereafter, PW-2 has been examined.
Admittedly the offence was committed in the
mid night and for committing the offence the
place of occurrence has been shown to be the
house of deceased and the place around his
house. The learned counsel to the revisionist
has laid emphasis on the fact that when the
fire took place, the informant was in his
room, therefore, he could not be said to be an
eyewitness of the incident. May be so, it is
one angle of viewing the situation but in his
statement it has clearly come that when he
and his wife came out side the house they
saw the accused persons 9 or 10 in numbers,
armed with pistols in their hands, after
committing the offence, were indulged in
firing targeting other family members and
creating alarm and threatening to all of them
escaped from the place.

12. Now, saying that this witness is
not an eyewitness has to be looked into by
the learned trial court. A finding on this
aspect is not expected in revision, but this
much is clear that they saw the accused
persons come out from the house and
running away from the place firing
towards the family members.

13. 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
3 All. Smt. Sanjeeda @ Moti & Ors. Vs. State of U.P. & Anr.
435
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."

14. In Hardeep Singh (supra), the
Constitution Bench has settled the law in
respect
of
Section
319,
Criminal
Procedure Code. that the standard of
proof employed for summoning a person
as an accused under Section 319 is higher
than the standard of proof employed for
framing a charge against an accused. The
Supreme Court observed for the purpose
of Section 319 as under:

"........what is, therefore, necessary
for the Court is to arrive at a satisfaction
that the evidence adduced on behalf of the
prosecution, if unrebutted, may lead to
the conviction of a person sought to be
added as the accused in the case."

Regarding the degree of satisfaction
necessary for framing a charge, the Court
observed:

"However, there is a series of cases
wherein this court while dealing with the
provisions of Sections 227, 228, 239, 240,
241, 242 and 245 of the Cr.P.C., has
consistently held that the court at the
stage of framing of the charge has to
apply its mind to the question whether or
not there is any ground for presuming the
commission of an offence by the accused.

The court has to see as to whether
the
material
brought
on
record
reasonably connect the accused with the
offence. Nothing more is required to be
enquired into. While dealing with the
aforesaid provisions, the test of prima
facie case is to be applied. The court has
to find out whether the materials offered
by the prosecution to be adduced as
evidence are sufficient for the court to
proceed against the accused further".

The Court concluded as below:

"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 cross-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......"

15. In Babubhai Bhimabhai
Bokhiria vs. State of Gujarat, 2014 (5)
SCC 568, the aforesaid view of Hardeep
Singh (supra) has been further quoted
436 INDIAN LAW REPORTS ALLAHABAD SERIES
with approval and the Supreme Court has
held as under :-

"Section 319 of the Code confers
power on the trial court to find out
whether a person who ought to have been
added as an accused has erroneously been
omitted or has deliberately been excluded
by the investigating agency and that
satisfaction has to be arrived at on the
basis of the evidence so led during the
trial. On the degree of satisfaction for
invoking power under Section 319 of the
Code, this Court observed that though the
test of prima facie case being made out is
same as that when the cognizance of the
offence is taken and process issued, the
degree of satisfaction under Section 319
of the Code is much higher."

16. In Brijendra Singh vs State of
Rajasthan, AIR 2017 SC 2839, the
supreme court discussed the meaning of
'evidence' in section 319,
Criminal
Procedure Code and expressed the view
that
the
examination-in-chief
of
prosecution witnesses is to be considered
and there is no need to wait for crossexamination. The prima facie opinion and
satisfaction with regards to complicity of
the person in commission of the offence
is not mere probability of involvement. It
requires stronger and cogent evidence. In
this case, the IO investigated the offence
and did not submit charge-sheet for the
reason that at the time of incident the
appellant was at a distance of 175 km
from the place of occurrence. The
supreme court set aside the summoning
order and observed that no doubt, the trial
court can summon the person on the basis
of the statement of witnesses given during
trial.
However,
where
plethora
of
evidence was collected by the IO
including
documentary
evidence
indicating his plea of alibi to be correct,
the trial court is duty bound to consider
the evidence so collected by IO while
forming
opinion
and
recording
satisfaction regarding prima facie case for
the purpose of section 319 of the Criminal
Procedure Code.

17. The view expressed in Hardeep
Singh (supra) has been further reiterated in
Labhuji Amaratji Thakor vs State of
Gujarat, AIR 2019 SC 734 and has laid
down 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. The Supreme Court set aside
the order of the High Court and up held the
order of Court below rejecting the
application under section 319.

18. In Rakesh vs State of Haryana,
AIR 2019 SC 2168, It appears that the
facts of the case was quite similar in the
case before the Supreme Court as in that
case also the name of the persons was not
mentioned in the FIR and when the
statement under section 161 Cr.P.C. was
recorded by the Investigating Officer, the
name of these persons did not find
mention.
The
supreme
court
again
considered the ambit of section 319 and
laid down as follows:

"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
charge, but short of satisfaction to an
3 All. Siya Ram & Anr. Vs. State of U.P.
437
extent
that
the
evidence,
if
goes
unrebutted, would lead to conviction."

19. in this case P.W.-2 is the eyewitness
who has seen the occurrence and he has also
stated the same thing in his statement. He has
stated that on the said time, date and place, the
accused persons came in the mid night. He
saw them who were 9 or 10 in numbers
carrying pistol in their hands. He recognized
them in the electric light and they all were the
resident of same village and were very much
acquainted with him. He has further stated
that they all had caught hold of deceased on
his cot and on the exhortation of Smt.
Sanjeeda @ Moti accused Mohsin shot him
on his chest. On hearing noise his brother
Mustafa and his wife Smt. Julekha, a neighbor
Sahid @ Bhuru reached there and they
challenged the accused persons, thereupon,
while stepping done from the staircase, they
all fired on them with intention to cause death.
Thereafter, threatening of dire consequences
they went away from the place. This is the
evidence on record for the purpose of disposal
of application under section 319 Cr.P.C.

20. The learned trial court has
considered the evidence on record and has
found sufficient evidence on record for
establishing involvement of these accused
persons in the commission of the offence. At
the cost of the repetition it must be
remembered that the Investigating Officer
while submitting the charge-sheet when
mentioned section 147 and 148 IPC, the
natural inference is that by concluding
investigation he has found that the offence
was committed by unlawful assembly. The
statement of witnesses certainly goes to show
that these accused persons constituted an
unlawful assembly and at the the time of
incident they were the members of unlawful
assembly. The requirement for the application
of section 319 Cr.P.C. appears to have been
established by statement of two witnesses. All
these accused persons are named accused
persons in the FIR and the FIR has not been
delayed to support the idea that in the written
report the name of so many persons was
deliberately included while lodging the F.I.R.
in a situation, where the crime has been
committed in mid night and that too in the
house of deceased, it appears natural and
more probable that a single accused will not
alone go and commit such crime in other's
house and place unless accompanied by other
accused persons, otherwise, the possibility
may be always there that the single person
may be overpowered by other side. Therefore,
the conclusion reached by the learned trial
court is logical and justified.

21.

In
view
of
the
above
discussions, I find that there is no material
irregularity or illegality in the impugned
order nor there is any jurisdictional error
and therefore, the revision has got no
force and is liable to be dismissed.

22. The revision is dismissed
accordingly.
----------

(2019)11ILR A437

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.11.2019

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 635 of 2005
with
Criminal Appeal No. 644 of 2005

Siya Ram & Anr. ...Appellants
Versus
State of U.P. ...Respondents