# Umesh @ Umesh Kumar Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 99
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-12
- **Case number:** Criminal Revision No. 1059 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-umesh-kumar-revisionist-v-state-of-u-p-ors-51399
- **Pages:** 5

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision,
Section
319
-
Power
to
proceed against other persons appearing
to be guilty, Section 155(2) - No police
officer
shall
investigate
a
noncognizable case without the order of a
Magistrate having power to try such
case or commit the case for trial, Indian
Penal Code, 1860 - Sections 323, 325,
504, 506 & 308 .
100 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 319 - scope and
ambit - Power under Section 319 Cr.P.C,
1973 is a discretionary and an extraordinary
power - 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 - even in a case
where the stage of giving opportunity to the
complainant to file a protest petition urging
upon the trial court to summon other
persons as well who were named in F.I.R.
but not implicated in the charge-sheet has
gone, in that case also, the Court is still not
powerless by virtue of Section 319 Cr.P.C. -
even those persons named in the F.I.R. but
not implicated in charge-sheet can be
summoned to face the trial provided during
the trial some evidence surfaces against the
proposed accused.(Para -9, 10, 11)
Application by revisionist under 319 Cr.P.C. - for
summoning opposite party as additional accused
for trial - rejected by trial court - ground -
insufficient
evidence
to
summon
-
hence
revision.(Para - 2)

HELD:-Trial court can summon persons who have
been charge-sheeted as accused based on a
witness's
examination-in-chief,
without
crossexamination. Required evidence is more than prima
facie case, but it is short and if not rebutted, the
person summoned for trial may be convicted. No
illegality, irregularity or impropriety in the impugned
order passed by the trial court.(Para - 12,13)

Revision dismissed. (E-7)

List of Cases cited:

## Text

1 All. Umesh @ Umesh Kumar Vs. State of U.P. & Ors.
99

In Kalyani Baskar vs. M.S.
Sampoornam; (2007) 2 SCC 258, the
Supreme Court while elaborating the
meaning of fair trial observed as below:-

"Fair trial" includes fair and
proper opportunities allowed by law to
prove her innocence. Adducing evidence
in support of the defence is a valuable
right. Denial of that right means denial of
fair trial. It is essential that rules of
procedure designed to ensure justice
should be scrupulously followed, and the
courts should be jealous in seeing that
there is no breach of them."

8. I went through the impugned
orders. The observation of the learned trial
court that summoning the witnesses will
tantamount to review is misconceived. The
trial court failed to apply the law in right
perspective and ignored the difference in
scope and implications in which the
provisions of section 311 Cr.P.C. and
section 233(3) Cr.P.C. are meant to be
applied. Hence the order of the trial court
suffers from legal flaw and is not
sustainable.

9. It is further submitted by the
revisionist that though he applied to the
court for summoning all the 5 witnesses but
it will suffice if any 2 of them are
summoned for examination as defence
witnesses.

10. In view of the above submission,
the revisionist is given liberty to point out
to the court concerned which of the 2
witnesses (out of total 5 witnesses), he
seeks to produce in this defence.

11. Taking all the facts and
circumstances
in
consideration,
this
revision is disposed of as below:-

(i) The order dated 03.08.2018 is
set-aside;

(ii) The revisionist shall, by
moving an application, within a week of
production of certified copy of this order,
give name of 2 persons (out of 5 named)he
seeks to summon as defence witness;

(iii) The trial court shall issue
summons for their production as defence
witnesses.

12. This case pertains to an incident,
which occurred in 2012, therefore the
court concerned is directed to expedite the
matter and would not let any side to
deliberately delay the proceedings.
----------
(2024) 1 ILRA 99
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.01.2024

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 1059 of 2023

Umesh @ Umesh Kumar ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Vijay Kumar Pandey

Counsel for the Opposite Parties:
G.A., Sri Muktesh Kumar Singh

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision,
Section
319
-
Power
to
proceed against other persons appearing
to be guilty, Section 155(2) - No police
officer
shall
investigate
a
noncognizable case without the order of a
Magistrate having power to try such
case or commit the case for trial, Indian
Penal Code, 1860 - Sections 323, 325,
504, 506 & 308 .
100 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 319 - scope and
ambit - Power under Section 319 Cr.P.C,
1973 is a discretionary and an extraordinary
power - 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 - even in a case
where the stage of giving opportunity to the
complainant to file a protest petition urging
upon the trial court to summon other
persons as well who were named in F.I.R.
but not implicated in the charge-sheet has
gone, in that case also, the Court is still not
powerless by virtue of Section 319 Cr.P.C. -
even those persons named in the F.I.R. but
not implicated in charge-sheet can be
summoned to face the trial provided during
the trial some evidence surfaces against the
proposed accused.(Para -9, 10, 11)
Application by revisionist under 319 Cr.P.C. - for
summoning opposite party as additional accused
for trial - rejected by trial court - ground -
insufficient
evidence
to
summon
-
hence
revision.(Para - 2)

HELD:-Trial court can summon persons who have
been charge-sheeted as accused based on a
witness's
examination-in-chief,
without
crossexamination. Required evidence is more than prima
facie case, but it is short and if not rebutted, the
person summoned for trial may be convicted. No
illegality, irregularity or impropriety in the impugned
order passed by the trial court.(Para - 12,13)

Revision dismissed. (E-7)

List of Cases cited:

1. Hardeep Singh Vs St. of Punj. & ors., (2014) 3
SCC 92 S.

2. Mohammad Ispahani Vs Yogendra Chandak
,(2017) 16 SCC 226

3. Rajesh Vs St. of Har., (2019) 6 SCC 368

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri Vijay Kumar Pandey,
learned counsel for the revisionist, Sri
Muktesh Kumar Singh, learned counsel for
the opposite party nos. 2 to 5 and learned
A.G.A. for the State.

2. This criminal revision has been
filed against the order dated 07.12.2022
passed by Additional Sessions Judge- IVth,
Jaunpur in Sessions Trial No. 320 of 2012,
State Vs. Indrasen & others.

3. By the impugned order, the learned
Additional Sessions Judge has rejected 43ख application filed by the revisionist u/s
319 Cr.P.C. for summoning opposite party
nos. 2 to 5 as additional accused for trial.

4. It has been submitted by learned
counsel for the revisionists that without
considering the evidence on record, the trial
court
has
rejected
the
revisionist's
application u/s 319 Cr.P.C. It has also been
submitted that on the basis of complaint
dated 09.08.2010, N.C.R. No. 120 of 2010
u/s 323, 504 I.P.C. was lodged against
accused, Indrasen s/o Ram Yash, Rana
Pratap s/o Ram Yash, Praveen alias
Mulayam s/o Indrasen and Anil Kumar s/o
Rajendra. The revisionist/informant on
16.09.2010 submitted application u/s 155
(2) Cr.P.C. in which he mentioned the name
of four other accused, namely, Akhand
Yadav, Chandrabhan and Nar Singh, sons
of Ram Yash, Vikas son of Indrasen, Arun
alias Pintu Yadav son of Chandrabhan but
after investigation, the Investigating Officer
submitted charge-sheet only against four
accused
against
whom
N.C.R.
was
registered in the police station. The
Investigating Officer illegally did not
submit charge-sheet against the opposite
party nos. 2 to 5 whose names were
mentioned in the informant's application
u/s 155 (2) Cr.P.C. It has also been
submitted that the informant P.W.1 Umesh
Kumar in his evidence dated 16.02.2017
1 All. Umesh @ Umesh Kumar Vs. State of U.P. & Ors.
101
and P.W.2 Ram Swarath in his evidence
dated 01.09.2021 has mentioned that
opposite party nos. 2 to 5 participated in the
commission of the offence.

5. Per contra, learned counsel for
the opposite party nos. 2 to 5 has
submitted that the trial court after
considering the evidence on record has
rightly rejected the application u/s 319
Cr.P.C. for summoning opposite party
nos. 2 to 5 as additional accused in the
case. The informant P.W.1 Umesh Kumar
has not mentioned name of opposite party
nos. 2 to 5 in his written report on the
basis of which aforesaid N.C.R. was
lodged against the accused, Indrasen,
Rana Pratap, Praveen alias Mulayam and
Anil Kumar. It has also been submitted
that after a gap of about 1 month after
submitting
the
written
report,
the
informant P.W.1 Umesh Kumar has
falsely named the opposite party nos. 2 to
5 as accused in the offence. It has also
been submitted that after a gap of about 7
years, the revisionist/informant in his
evidence as P.W.1 has assigned opposite
party nos. 2 to 5 the role in the
commission of offence, which is an
afterthought and cannot be relied upon. It
has also been submitted that P.W.1
Umesh Kumar and P.W.2 Ram Swarath
both are accused in the criminal case
lodged by the opposite party nos. 2 to 5
against
the
revisionist
and
his
companions. Therefore, as a counterblast
and to pressurize the opposite party nos.
2 to 5, the revisionist has falsely named
opposite party nos. 2 to 5 as accused in
his application u/s 155 (2) Cr.P.C. which
he had submitted after a gap of more than
37 days of the occurrence. Since no
evidence was available against opposite
party nos. 2 to 5, the Investigating Officer
did not file charge-sheet against them.

6. The revisionist/informant, Umesh
Kumar had not mentioned in his written
report dated 09.08.2010 complicity of
opposite party nos. 2 to 5 in the crime. He
has for the first time mentioned their names
as accused in his application u/s 155 (2)
Cr.P.C.
submitted
in
the
Court
on
16.09.2010.

7. Thus, after a gap of 37 days from
the
date
of
occurrence,
the
revisionist/informant P.W.1 Umesh Kumar
in his statement recorded on 16.09.2017
and P.W.2 Ram Swarath in his statement
recorded on 01.09.2021 had implicated
opposite party nos. 2 to 5 as being involved
in the commission of offence. The
revisionist/informant, Umesh Kumar in his
application u/s 155 (2) Cr.P.C. has assigned
general role to opposite party nos. 2 to 5 in
the commission of the offence. Similarly,
P.W.1 Umesh Kumar and P.W.2 Ram
Swarath have only assigned general role to
the aforesaid accused in the commission of
offence. Admittedly, on the basis of the first
information report lodged on the side of
opposite party nos. 2 to 5, charge-sheet u/s
323, 325, 504, 506, 308 I.P.C. arising out of
Case Crime No. 742 of 2010 has been filed
against revisionist/informant P.W.1 Umesh
Kumar, P.W.2 Ram Swarath and their
companions.

8. The trial court in its impugned
order has stated that since informant,
Umesh Kumar in his written report dated
09.08.2010 had not implicated opposite
party nos. 2 to 5 in the commission of
offence and their names surfaced on
16.09.2010 only for the first time in the
informant's application u/s 155 (2) Cr.P.C.
submitted in the Magistrate's court and
since P.W.1 Umesh Kumar and P.W.2 Ram
Swarath who are accused in the first
information report lodged on behalf of
102 INDIAN LAW REPORTS ALLAHABAD SERIES
opposite party nos. 2 to 5, have assigned
only general role to the persons mentioned
in the application u/s 319 Cr.P.C., there is
not sufficient evidence for summoning
them u/s 319 Cr.P.C. for trial.

9. The scope and ambit of Section 319
Cr.P.C. has been well-settled by the
pronouncement of Constitution Bench of
the Hon'ble Apex Court in Hardeep Singh
Vs. State of Punjab and others, (2014) 3
SCC 92 and paras 105 and 106 which are
relevant for the purpose is reproduced
hereunder :

"105. Power under Section 319
Cr.P.C, 1973 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
Cr.P.C., 1973. In Section 319 Cr.P.C., 1973,
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., 1973 to
form any opinion as to the guilt of the
accused."

10. In S. Mohammad Ispahani Vs.
Yogendra Chandak (2017) 16 SCC 226,
the Hon'ble Apex Court has observed as
under :

"35. It needs to be highlighted
that when a person is named in the FIR by
the
complainant,
but
police,
after
investigation,
finds
no
role
of
that
particular person and files the charge-sheet
without implicating him, the Court is not
powerless, and at the stage of summoning,
if the trial court finds that a particular
person should be summoned as accused,
even though not named in the charge-sheet,
it can do so. At that stage, chance is given
to the complainant also to file a protest
petition urging upon the trial court to
summon other persons as well who were
named in the FIR but not implicated in the
charge sheet. Once that stage has gone, the
Court is still not powerless by virtue of
Section 319 of the Cr.P.C. However, this
section gets triggered when during the trial
some
evidence
surfaces
against
the
proposed accused."

11. In the case of Rajesh Vs. State of
Haryana (2019) 6 SCC 368, after
considering the observations made by the
Apex Court in Hardeep Singh (supra)
referred to hereinabove, the Apex Court has
further observed and held that even in a
case where the stage of giving opportunity
1 All. Ashok Kumar Shukla Vs. State of U.P. & Ors.
103
to the complainant to file a protest petition
urging upon the trial court to summon other
persons as well who were named in F.I.R.
but not implicated in the charge-sheet has
gone, in that case also, the Court is still not
powerless by virtue of Section 319 Cr.P.C.
and even those persons named in the F.I.R.
but not implicated in charge-sheet can be
summoned to face the trial provided during
the trial some evidence surfaces against the
proposed accused.

12. From the above rulings of Hon'ble
Supreme Court, it can be concluded that the
trial court can summon persons who have
been charge-sheeted as accused on the basis
of examination-in-chief of a witness. It is
not necessary that the witness should be
cross-examined before such person can be
summoned under Section 319 Cr.P.C. The
evidence required for summoning such
persons under Section 319 Cr.P.C. is more
than prima facie case but it is short of such
evidence which if not rebutted will result in
conviction of the persons summoned for
trial.

13. Considering the law propounded
by the Hon'ble Apex Court in the aforesaid
cases, facts and circumstances of the case
and the evidence available on record, this
Court finds no illegality, irregularity or
impropriety in the impugned order passed
by the trial court.

14. There is no merit in the criminal
revision. It is liable to be dismissed.

15.

The
criminal
revision
is
dismissed, accordingly.

16. Let a copy of this order be sent to
the concerned trial court for necessary
action.
----------
(2024) 1 ILRA 103
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.12.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 3986 of 2023

Ashok Kumar Shukla ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Ulajhan Singh Bind, Sri Arvind Kumar
Tripathi, Sri Kunwar Tejandra Bahadur, Sri
Shivam Kumar Shukla

Counsel for the Opposite Parties:
G.A., Sri Ashish Bajpayee

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision, Indian Penal Code, 1860 -
Sections 467, 468, 471, 420 & 120-B,
Indian Evidence Act,1872 - Section 73 -
Comparison of signature, writing or seal
with others admitted or proved - Object of
provision (Section 397 Cr.P.C) - Aims to
correct
patent
defects,
errors
of
jurisdiction, or legal perversity - Allows
court to examine records of inferior courts
for legality and regularity - Sub-section 2
bars revisions against interlocutory orders
in
appeals,
inquiry
trials,
or
other
proceedings.(Para - 9)
Trial Court compared Sale Deed - admitted and
disputed thumb impressions - Noted dismissal of
Vendor's lawsuit for sale deed cancellation -
Discussed evidence to find out if sale deed was
executed through impersonation and forged
thumb impression - Disputed and admitted left
thumb impression were identical in the Sub
Registrar office's - comparison of admitted right
thumb impression with disputed right thumb
impression not possible. (Para - 10,11)

HELD: -Limited scope for examining patent
illegality and irregularity in impugned orders.