# Udai Narain Singh v. State of U.P. and another

- **Citation:** (2010) 3 ILRA 938
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-02
- **Case number:** Criminal Revision No. 1489 of 2004
- **Bench:** S.K. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-narain-singh-v-state-of-u-p-and-another-41828
- **Pages:** 6

## Headnote

(A) Code of Criminal Procedure 1973
Sec. 227, IPC Sec. 302, 201-Evidence Act
Sec 30-Accused implicated only on the
basis of confessional statement of the co
accused-held, such a statement can only
bind the maker, but not those who had
been implicated therein-could be read in
evidence as a corraboratime piece of
evidence-if materials before the Court
make
out
even
a
case
of
strong
suspection.

(B) Criminal
Procedure
Code
1973
Sec.227,401-IPC Sec.302, 201-Revision
against
order
rejecting
discharge
application-held, though Addl Session
Judge expected to pursue confessional
statement of the accused and other
materials in the case diary-He was not
required to consider the pros and cons
off the evidence and to record a final
verdict-only a prima facie consideration
of material on face value necessaryimpugned order suffering from material
infirmity-set a side.

Held: Para 17

In the instant case, the learned trial
court has relied on the statements of the
witnesses, Smt Hira Mani Singh, Amresh
Kumar Pandey, Smt. Beena Singh and
Anad Kumar and has excluded the
statements of witnesses Manoj Kumar
and Anand Kumar on the ground that
their statements had merely proved the
confessional statements of co-accused,
which were not relevant and held that
the statements of other witnesses were
sufficient to frame charges under section
302
and
201
I.P.C.,
but
without
indicating as to whether the other
witnesses had spoken anything in regard
to the complicity of the applicant or not.
The submission of the learned counsel
for the applicant or not. The submission
of the learned counsel for the applicant
is
that
except
the
confessional
statements, there is no other evidence
against the applicant. The statements of
the witnesses Smt. Hira Mani Singh,
Amresh Kumar Pandey, Smt. Beena
Singh and Anand Kumar are not in any
way against the applicant, but the
learned Additional Sessions Judge has
misread their statements, therefore, the
finding of the Additional Sessions Judge,
being based on misreading of
the
statements of the said witnesses cannot
be upheld. It is true that the confession
of a co-accused is not a substantive
evidence and there should be some
evidence
beyond
the
confessional
statement of co-accused, but the learned
3 All] Udai Narain Singh V. State of U.P. and another
939
Additional
Sessions
Judge
was
not
expected to Writ down a final judgement
at the stage of charge by holding that
the
confessional
statements
of
coaccused was not relevant, without giving
due consideration to the legal position
that the confessional statements of coaccused could be read in terms of
section 30 of the Evidence Act, as a
corroborative
piece
of
evidence.
Therefore,
the
learned
Additional
Sessions Judge was expected to peruse
the
confessional
statements
of
coaccused and other materials available in
the case diary together and to find out
whether or not any charge against the
applicant was made out. In doing so, he
was not required to consider pros and
cons of the evidence and to record a final
verdict, only a prima facie consideration
of the materials was necessary by taking
into consideration the statements of the
witnesses and co-accused at their face
value.
Case law discussed:
2002(2) Sec.135, 2008(10) Sec.394, 2009(2)
Sec(Cri)850, 2009(2)EFR 216, 2005 CrlJ 1827.

## Text

938 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
shall be adjusted towards the payment of
back wages.

16. Accordingly, this special appeal
is disposed of subject to the directions
made hereinabove. Interim order dated
10.10.2006 stands vacated and the
impugned judgment stands modified
accordingly. No order as to costs.

17.

Medical
Report
dated
03/04.11.2006
submitted
by
the
appellants-Board be kept with the record.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2010

BEFORE
THE HON'BLE S.K. TRIPATHI, J.

Criminal Revision No. 1489 of 2004

Udai Narain Singh

 ...Applicant
Versus
State of U.P. and another ...Opposite Parties

Counsel for the Revisionist:
Sri Kamal Krishna

Counsel for the Respondents:
Sri A.K. Singh
Sri P.N. Rai
Sri R.N. Rai
A.G.A.

(A) Code of Criminal Procedure 1973
Sec. 227, IPC Sec. 302, 201-Evidence Act
Sec 30-Accused implicated only on the
basis of confessional statement of the co
accused-held, such a statement can only
bind the maker, but not those who had
been implicated therein-could be read in
evidence as a corraboratime piece of
evidence-if materials before the Court
make
out
even
a
case
of
strong
suspection.

(B) Criminal
Procedure
Code
1973
Sec.227,401-IPC Sec.302, 201-Revision
against
order
rejecting
discharge
application-held, though Addl Session
Judge expected to pursue confessional
statement of the accused and other
materials in the case diary-He was not
required to consider the pros and cons
off the evidence and to record a final
verdict-only a prima facie consideration
of material on face value necessaryimpugned order suffering from material
infirmity-set a side.

Held: Para 17

In the instant case, the learned trial
court has relied on the statements of the
witnesses, Smt Hira Mani Singh, Amresh
Kumar Pandey, Smt. Beena Singh and
Anad Kumar and has excluded the
statements of witnesses Manoj Kumar
and Anand Kumar on the ground that
their statements had merely proved the
confessional statements of co-accused,
which were not relevant and held that
the statements of other witnesses were
sufficient to frame charges under section
302
and
201
I.P.C.,
but
without
indicating as to whether the other
witnesses had spoken anything in regard
to the complicity of the applicant or not.
The submission of the learned counsel
for the applicant or not. The submission
of the learned counsel for the applicant
is
that
except
the
confessional
statements, there is no other evidence
against the applicant. The statements of
the witnesses Smt. Hira Mani Singh,
Amresh Kumar Pandey, Smt. Beena
Singh and Anand Kumar are not in any
way against the applicant, but the
learned Additional Sessions Judge has
misread their statements, therefore, the
finding of the Additional Sessions Judge,
being based on misreading of
the
statements of the said witnesses cannot
be upheld. It is true that the confession
of a co-accused is not a substantive
evidence and there should be some
evidence
beyond
the
confessional
statement of co-accused, but the learned
3 All] Udai Narain Singh V. State of U.P. and another
939
Additional
Sessions
Judge
was
not
expected to Writ down a final judgement
at the stage of charge by holding that
the
confessional
statements
of
coaccused was not relevant, without giving
due consideration to the legal position
that the confessional statements of coaccused could be read in terms of
section 30 of the Evidence Act, as a
corroborative
piece
of
evidence.
Therefore,
the
learned
Additional
Sessions Judge was expected to peruse
the
confessional
statements
of
coaccused and other materials available in
the case diary together and to find out
whether or not any charge against the
applicant was made out. In doing so, he
was not required to consider pros and
cons of the evidence and to record a final
verdict, only a prima facie consideration
of the materials was necessary by taking
into consideration the statements of the
witnesses and co-accused at their face
value.
Case law discussed:
2002(2) Sec.135, 2008(10) Sec.394, 2009(2)
Sec(Cri)850, 2009(2)EFR 216, 2005 CrlJ 1827.

(Delivered by Hon'ble S.K.Tripathi, J.)

1. Heard Sri Kamal Krishna for the
applicant, Mr. R.N. Rai for the respondent
no. 2 and learned AGA for the respondent
no. 1 and perused the record.

2. This is a revision against the order
dated 22.3.2004 passed by Additional
Sessions Judge, Fast Track Court No. 2,
Varanasi in S.T. No. 55 of 2004, whereby
the learned Additional Session Judge
refused to discharge the applicant.

3. It appears that the applicant Udai
Narain Singh is an accused in S.T. No. 55
of 2004(State Vs. Udai Narain Singh and
others) pending before the Additional
Session Judge, Fast Track Court No.2,
Varanasi.

4. Learned counsel for the applicant
contended before the trial court that from
the facts placed in support of the charge
sheet no prima facie case for framing
charges under section 302 and 201 I.P.C.
was not made out against the applicant. The
learned Additional Sessions Judge passed
the order dated 22.3.2004 and arrived at the
conclusion that there were sufficient
materials on record to frame the charges
against the applicant accordingly, refused to
discharge him.

5. Mr. Kamal Krishna ,the learned
counsel for the applicant submitted that
there is no evidence against the applicant
except the confessional statement of coaccused Pradeep Kumar before the witness
Manoj Kumar.

6. It was next submitted that the
statement of the witness Anand Kumar was
not in any way against the applicant except
that the applicant moved with his father and
others on a tempo in the night of the
incident. The other witnesses including the
complainant did not state anything against
the
applicant,
therefore,
the
learned
Additional Sessions Judge has misread the
evidence and recorded the incorrect finding
that a prima face case for framing charges
was made out against the applicant. The
learned counsel for the applicant further
submitted that the learned Additional
Session Judge has himself came to the
conclusion that the confessional statement
of co-accused was not relevant against tha
applicant and as such the learned lower
court excluded confessional statement of
co-accused Pradeep Kumar, which was
made before the witness Manoj Kumar. It
was next submitted that after exclusion of
the confessional statement of co-accused,
there was no material against the applicant
to frame any charge.
940 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

7. Mr. R.N. Rai, on the other hand,
submitted that the learned Additional
Sessions
Judge
has
considered
the
statements of Smt. Hira Mani Singh,
Amresh Kumar Pandey, Smt. Beena Singh,
Anand Kumar and Manoj Kumar. The
impugned finding based on the statements
of these witnesses cannot be upset b the
revisional court.

8. The provisions of section 227
Cr.P.C. deal with the matter of discharge of
an accused. In the case of Dilawar Balu
Kurane Vs. State of Maharashtra(2002) 2
Supreme Court cases 135, the Apex court
had examined the ambit and scope of
section 227 Cr.P.C. and held:-

"In exercising powers under section
227 Cr.P.C., the settled position of law is
that the Judge while considering the
question of framing the charges under the
limited purpose of finding out whether or
not a prima facie case against the accused
has been made out, where the materials
placed before the court disclose grave
suspicion against the accused which has not
been properly explained the court will be
fully justified in framing a charge and
proceeding with the trail; by and large if
two views are equally possible and the
Judge is satisfied that the evidence
produced before him gave rise to some
suspicion but not grave suspicion against
the accused, he will be fully justified to
discharge the accused, and in exercising
jurisdiction under section 227 Cr.P.C., the
Judge cannot act merely as a post office or
a mouthpiece of the prosecution, but has to
consider the board probabilities of the case,
the total effect of the evidence and the
documents produced before the court but
should not make a roving enquiry into the
pros and cons of the matter and weigh the
evidence as if he was conducing a trial."

9. In case of Yogesh alias Sachin
Jagdish
Joshi
Vs.
State
of
Maharashtra(2008) 10 Supreme Court
Cases 394, the apex court has almost
perpounded the same principles in the
following terms:-

"It is trite that the words "not
sufficient ground for proceeding against the
accused" appearing in section 227 Cr.P.C.,
postulate exercise of judicial mind on the
part of the Judge to the facts of the case in
order to determine whether a case for trial
has been made out by the prosecution,
However, in assessing this fact, the Judge
has the power to sift and weigh the material
for the limited purpose of finding out
whether or not a prima facie case against the
accused has been made out. The test to
determine a prima face case depends upon
the facts of each case and in this regard it is
neither feasible not desirable to lay down a
rule of universal application. By and large,
however, if two views are equally possible
and the Judge is satisfied that the evidence
produced before him gives rise to suspicion
only as distinguished from grave suspicion,
he will be full within his right to discharge
the accused. At this stage, he is not to see as
to whether the trial will end in conviction or
not. The broad test to be applied is whether
the materials on record, if unrebutted, make
a conviction reasonably possible."

10. In the case of Palwinder Singh
Vs. Balwinder Singh and others(2009) 2
Supreme Court Cases (Cri) 850, the Apex
court reiterated the aforesaid principles and
held.:-

"The jurisdiction of the learned
Sessions Judge while exercising power
under section 227 Cr.P.C. is limited.
Charges can also be framed on the basis of
strong
suspicion.
Marshalling
and
3 All] Udai Narain Singh V. State of U.P. and another
941
appreciation of evidence is not in the
domain of the Court at that point of time."

11. A perusal of the aforesaid
decisions clearly reveals that charges can be
framed against the accused, if the materials
produced before the Court make out even a
case of grave or strong suspicion against the
accused. While considering the question of
framing charge or discharge the Marshalling
and appreciation of evidence is not in the
domain of the court. What is required from
the Court is to find out whether on the basis
of the materials on record, if unrebutted, a
conviction of the accused is reasonably
possible, if the answer is in negative, the
accused may be discharged.

12. The learned counsel for the
applicant submitted that the Additional
Sessions Judge has himself excluded the
confessional
statement
of
co-accused
holding that the same was not admissible in
evidence and there is no other evidence
against the applicant, therefore, rejection of
discharge prayer was not proper. Learned
counsel further submitted that the learned
trial court has perused the statements of the
witnesses Smt. Hira Mani Singh, Amresh
Kumar Pandey, Smt. Beena Singh, Anand
Kumar and Manoj Kumar and on perusal of
their statements was of the view that a
prima facie case for framing charge under
section 302 I.P.C. was made out against the
applicant, but he has not indicated what
were the statements of the said witnesses
and how their statements were against the
applicant and he has not assigned reason in
this regard, therefore, the impugned order is
liable to be set aside.

13. Learned AGA, on the other hand,
submitted that the confessional statement of
co-accused was relevant under section 30 of
the Evidence Act. He further submitted that
no doubt confessional statement of a coaccused is not substantive evidence, but the
same can be used for corroboration of other
evidence. It was also submitted that when
the charge can be framed in a case of
existence of grave or strong suspicion, the
exclusion of the confessional statement of
co-accused was not proper.

14. The learned counsel for the
applicant, in rebuttal, submitted that the
learned trial court instead of considering the
case for the purpose of deciding as to
whether any case for framing charge was
made out or not proceeded to elaborately
examine the matter on merits as if he was
writing a final judgement after the trial
court. Legally he was not required to do so..

15. In the case Union of India vs. Bal
Mukund & others, 2009(2) EFR 216. In
that case the Apex Court has held in para 21
as follows:

"21. ..............If an accused makes a
confession in terms of the provisions of the
Code of Criminal Procedure or otherwise,
his confession may be held to be admissible
in evidence only in terms of Section 30 of
the Evidence Act and not otherwise. If it is
merely a statement before any authority, the
maker may be bound thereby but not those
who had been implicated therein. If such a
legal principle can be culled out, the logical
corollary thereof would be that the coaccused would be entitled to cross-examine
the accused as such a statement made by
him would be prejudicial to his interest."

16. In the case of Monish H. Bhalla
VS. Satya Prakash Bahl S.P. Bahl @ S.P.
And others, 2005 Crl. L.J. 1827, the
Bombay High Court after referring to
various decisions of Privy Council and the
Apex Court held, in para 6, as follows:-
942 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

"On a specific query by this Court, it
was admitted that besides the statement of
co-accused there is no other material
against the respondent No.1 Satya Prakash
Bahl. In such case, the question which
arises for consideration is whether the
confession of one of the accused implicating
the other accused, can be treated as
substantive evidence. The statements of coaccused have been recorded under section
67 of NDPS Act like one under section 15 of
the TADA Act, which makes the statement of
an accused admissible against the coaccused, conspirators or abettors. In such
case, one would have to fall back on section
30 of the Evidence Act to see what use can
be made of the statement of one accused
against the co-accused. This aspect has
been
considered
by
the
Honourable
Supreme Court in a number of matters i.e.
in the case of Bhuboni Sahu v. The King,
AIR 1949 P.C. 257: (1950 Cri LJ 872);
Haricharan Kurmi v. State of Bihar, (1964
(2) Cri LJ 344): AIR 1964 SC 1184;
Kashmira Singh v. State of M.P., 1952 SCR
526: AIR 1953 SC 159; (1952 Cri LJ 839).
In Haricharan Kurmi(supra), the Supreme
Court has observed in para No. 12 thus:

"It would be noticed that as a result of
the provisions contained in section 30, the
confession has no doubt to be regarded as
amounting to evidence in a general way,
because whatever is considered by the
Court is evidence; circumstances which are
considered by the Court as well as
probabilities do amount to evidence in that
generic sense. Thus, though confession may
be regarded as evidence in that generic
sense because of the provisions of section
30, the fact remains that it is not evidence
as defined by section 3 of the Act. The
result, therefore, is that in dealing with a
case against an accused person, the Court
cannot start with the confession of coaccused person; it must begin with other
evidence adduced by the prosecution and
after it has formed its opinion with regard
to the quality and effect of the said evidence
then it is permissible to turn to the
confession in order to receive assurance to
the conclusion of guilt which the judicial
mind is about to reach on the said other
evidence. That briefly stated, is the defect of
the provisions contained in Section 30. The
same view has been expressed by this Court
in Kashmira singh vs. State of Madhya
Pradesh 1952 SCR 526: (AIR 1952 SC 159)
there the decision of the Privi Counsil in
Bhuboni Sahu's case(76 Ind App 147) (AIR
1949 PC 257) has been cited with approval

17. In the instant case, the learned
trial court has relied on the statements of
the witnesses, Smt Hira Mani Singh,
Amresh Kumar Pandey, Smt. Beena Singh
and Anad Kumar and has excluded the
statements of witnesses Manoj Kumar and
Anand Kumar on the ground that their
statements
had
merely
proved
the
confessional statements of co-accused,
which were not relevant and held that the
statements
of
other
witnesses
were
sufficient to frame charges under section
302 and 201 I.P.C., but without indicating
as to whether the other witnesses had
spoken
anything
in
regard
to
the
complicity of the applicant or not. The
submission of the learned counsel for the
applicant or not. The submission of the
learned counsel for the applicant is that
except the confessional statements, there is
no other evidence against the applicant.
The statements of the witnesses Smt. Hira
Mani Singh, Amresh Kumar Pandey, Smt.
Beena Singh and Anand Kumar are not in
any way against the applicant, but the
learned Additional Sessions Judge has
misread their statements, therefore, the
finding of the Additional Sessions Judge,
3 All] Nagar Panchayat Akbarpur V. M/S Bajrang Bali Rice Mills and others
943
being
based
on
misreading
of
the
statements of the said witnesses cannot be
upheld. It is true that the confession of a
co-accused is not a substantive evidence
and there should be some evidence beyond
the confessional statement of co-accused,
but the learned Additional Sessions Judge
was not expected to Writ down a final
judgement at the stage of charge by
holding that the confessional statements of
co-accused was not relevant, without
giving due consideration to the legal
position that the confessional statements of
co-accused could be read in terms of
section 30 of the Evidence Act, as a
corroborative piece of evidence. Therefore,
the learned Additional Sessions Judge was
expected to peruse the confessional
statements
of
co-accused
and
other
materials available in the case diary
together and to find out whether or not any
charge against the applicant was made out.
In doing so, he was not required to
consider pros and cons of the evidence and
to record a final verdict, only a prima facie
consideration
of
the
materials
was
necessary by taking into consideration the
statements of the witnesses and co-accused
at their face value.

18. In view of the facts and
circumstances stated above, the impugned
order suffers from a material infirmity
resulting in causing failure justice in the
case. As such the impugned order cannot
be sustained.

19. The revision is allowed. The
impugned order dated 22.3.2004 is set
aside and the matter is remanded to the
learned Additional Sessions Judge for a
fresh decision in accordance with law.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2010

BEFORE
THE HON'BLE S.P. MEHROTRA, J.
THE HON'BLE S.S. TIWARI, J.

First Appeal from Order No. 1915 of 2010

Nagar
Panchayat
Akbarpur,
Kanpur
Dehat

 ...Petitioner
Versus
M/S Bajrang Bali Rice Mills and others

 ...Respondentss

Counsel for the Petitioner:
Sri Pradeep Chauhan

Court fee Act 1870 Section 6-A(1)-appeal
against order regarding sufficiency of
court fee-can be only by the plaintiff and
not by the person filling objection-held
appeal by defendant-not maintainable

Held: Para 9 and 13

Thus, the only person who can file
appeal under sub-section (1) of Section
6A of the Court Fees Act, 1870, is the
person called upon to make good a
deficiency in court-fee. A person raising
objection on the ground of insufficiency
of court-fee paid in the suit has not been
given any right to file an appeal under
sub-section (1) of Section 6A of Court
Fees Act, 1870.

In view of the above, the present appeal
filed by the defendant -appellant is not
maintainable, and the same is liable to
be dismissed on this ground.
Case law discussed:
AIR 1954 All 188= 1953 ALJ 702.

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. The present appeal has been filed
under Section 6A of the Court Fees Act
,1870 against the Order dated 23.3.2010