# Upendra & Anr. Revisionists v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 90
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-11
- **Case number:** Criminal Revision No. 1416 of 2023
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upendra-anr-revisionists-v-state-of-u-p-ors-50422
- **Pages:** 8

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Sections
156(3),161,164 & 397/401 - Revision -
Section 319 - Power to proceed against
other persons appearing to be guilty of
offence , Indian Penal Code, 1860 -
Sections-506 and 376 D , Protection of
Children From Sexual Offences, Act 2012 -
Section-7/8 - material must be more than
prima facie case as exercised at the time
of framing of charges but short of
satisfaction to the extent that evidence if
goes unrebutted would lead to conviction
- minority of a witness itself cannot be a
ground to reject his/her testimony if
he/she is quite mature to understand his
or her testimony. (Para -18)

Application of first informant (father of victim)
under
Section
319
Cr.P.C.
-
allowed
-
revisionists were summoned - to face the trial -
hence revision. (Para - 2)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 319 - material
available at the time of inquiry is also the
evidence for the purpose of Section-319
Cr.P.C - during inquiry only material that
could be available is the material collected
by
the
Investigating
Officer
during
investigation - exercising power under
Section
319
Cr.P.C.
apart
from
the
evidence recorded during trial - any
material that has been received by the
court after cognizance is taken and before
the trial commences - can be utilized for
corroboration and to support the evidence
recorded by the court to invoke the power
under Section 319 Cr.P.C. . (Para - 11,12)

HELD:-Material collected by the prosecuting
agency during investigation available at the time
of inquiry as well as the statement of PW-1
recorded during trial is not sufficient for
summoning
the
revisionists
as
additional
accused in exercise of power under Section-319
Cr.P.C. to establish the complicity of revisionists
in crime.(Para - 19)

Revision allowed. (E-7)

List of Cases cited:

## Text

90 INDIAN LAW REPORTS ALLAHABAD SERIES
and averments in counter affidavit filed on
behalf of the private respondents, the fee
structure of her dependent children has
been enhanced by the course of time and
they are also taking tuition by private home
tutor; it is also stated therein that it would
be incorrect to stated that there is no
earning of the revisionist and he has
become jobless. The revisionist has not
disclosed his real income before the court
below in proceeding under Section 125
Cr.P.C. He made several defaults in
payment of maintenance awarded by court
below as modified by interim order passed
by this Court.

16.
Considering
the
changed
circumstances related to the revisionist, which
has affected his earnings as he lost his job in
Portugal, this Court is of the view that the
amount ordered by learned court below
towards maintenance of the respondent No.2
to 4 is liable to be modified in the light of the
facts and circumstances of the case. Impugned
order passed by court below awarding
maintenance to private respondents against
present revisionist is modified to the extent
mentioned as under:-

(1) The
revisionist
shall pay
monthly maintenance allowance at the rate of
Rs.5,000/- to respondent No.1 Vinita Maurya
and her daughters Vanshika and Niharika at
the rate of Rs.2500/- per month to each of
them with effect from 1.1.2015, as and when
becomes due in the manner provided by the
court below under the impugned award.

(2) The arrears of maintenance will
be computed in accordance with the direction
No.1 as above, from 1.1.2015 and will be
payable to the respondents in 10 equal and
monthly installments, which will commence
from the period of one month from the date of
production of certified copy of this order
before the court concerned.

(3) Any amount deposited by the
revisionist
towards
the
maintenance
allowance payable to opposite party Nos.2 to
4 either in terms of award of learned Principal
Judge, Family Court or in terms of interim
order of this Court dated 25.3.2015 will be
adjusted into the amount payable by the
revisionist. The amount payable by the
revisionist will be spread over 10 monthly
installments as stated above. However, it is
made clear that in the event of failure on the
part of the revisionist to oblige any part of the
order, coercive measures be revived from that
stage and recoveries will be made in
accordance with law.

17. Accordingly, the revision petition is
disposed of in the manner and the maintenance
awarded by the court below will stand
modified to the above extent, accordingly.

18. Let a copy of this order be forwarded
to court concerned for information and
necessary actions.
----------
(2023) 5 ILRA 90
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.04.2023

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Revision No. 1416 of 2023

Upendra & Anr. ...Revisionists
Versus
State of U.P. & Ors. ...Opposite Parties
5 All. Upendra & Anr. Vs. State of U.P. & Ors.
91
Counsel for the Revisionists:
Sri Ravikant Shukla

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

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Sections
156(3),161,164 & 397/401 - Revision -
Section 319 - Power to proceed against
other persons appearing to be guilty of
offence , Indian Penal Code, 1860 -
Sections-506 and 376 D , Protection of
Children From Sexual Offences, Act 2012 -
Section-7/8 - material must be more than
prima facie case as exercised at the time
of framing of charges but short of
satisfaction to the extent that evidence if
goes unrebutted would lead to conviction
- minority of a witness itself cannot be a
ground to reject his/her testimony if
he/she is quite mature to understand his
or her testimony. (Para -18)

Application of first informant (father of victim)
under
Section
319
Cr.P.C.
-
allowed
-
revisionists were summoned - to face the trial -
hence revision. (Para - 2)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 319 - material
available at the time of inquiry is also the
evidence for the purpose of Section-319
Cr.P.C - during inquiry only material that
could be available is the material collected
by
the
Investigating
Officer
during
investigation - exercising power under
Section
319
Cr.P.C.
apart
from
the
evidence recorded during trial - any
material that has been received by the
court after cognizance is taken and before
the trial commences - can be utilized for
corroboration and to support the evidence
recorded by the court to invoke the power
under Section 319 Cr.P.C. . (Para - 11,12)

HELD:-Material collected by the prosecuting
agency during investigation available at the time
of inquiry as well as the statement of PW-1
recorded during trial is not sufficient for
summoning
the
revisionists
as
additional
accused in exercise of power under Section-319
Cr.P.C. to establish the complicity of revisionists
in crime.(Para - 19)

Revision allowed. (E-7)

List of Cases cited:

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

2. Sagar Vs St. of U.P. , (2022) 6 SCC 389

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Ravikant Shukla, learned
counsel for the revisionists, Sri Manvendra
Singh, learned counsel for the opposite
party no.2 and learned AGA for the State.

2. By way of present revision,
revisionists, who are two in numbers, have
challenged the order dated 04.02.2023
passed by the learned Additional Sessions
Judge/Special Judge (Rape and POCSO
Act), Court No.1, Fatehpur in Special
Sessions Trial No.101 of 2019, by which
application of first informant (father of
victim) under Section 319 Cr.P.C. was
allowed and revisionists were summoned
under Sections-506 and 376 D IPC read
with Section-7/8 of Protection of Children
From Sexual Offences, Act 2012 to face the
trial.

3. Contention of learned counsel for
the revisionists is that for the incident dated
25.02.2019, FIR was lodged on 06.03.2019
by the father of victim under Sections-363,
366 and 506 IPC in Case Crime No.83 of
2019 at Police Station-Bindki, DistrictFatehpur, making allegations that coaccused, Pawan Raidas enticed away his 13
year daughter Renu Devi and present
92 INDIAN LAW REPORTS ALLAHABAD SERIES
revisionists also helped him in the aforesaid
crime. During investigation, statement of
victim under Section-161 Cr.P.C. and
thereafter, under Section-164 Cr.P.C. was
recorded but victim did not make any
allegations against the present revisionists.
On the contrary, she admitted that she had
run away with Pawan Kumar willingly for
marriage because she likes Pawan. During
investigation,
medical
examination
of
victim was also conducted in which no
opinion about sexual assault was given and
CMO by certificate dated 04.04.2019
mentioned the age of victim Renu Devi as
19 year on the basis of radiological
examination. Thereafter, police submitted
charge-sheet dated 01.06.2019 against the
co-accused, Pawan Raidas and involvement
of revisionists was found to be false. It is
also submitted that during investigation coaccused, Pawan as well as the victim Renu
Devi and also the present revisionists had
also approached this Hon'ble Court by way
of Criminal Misc. Writ Petition No.7322 of
2019 challenging the FIR of Case Crime
No.83 of 2019 registered at Police StationBindki, District-Fatehpur. In that writ
petition, the victim Renu Devi had filed an
affidavit stating therein that she willingly
run away with Pawan and got married with
him. On the basis of aforesaid affidavit of
victim Renu Devi, writ petition was
disposed of by order dated 15.03.2019
granting interim protection to all the
petitioners
including
the
present
revisionists from arrest till submission of
chargesheet.

4. It is further submitted that all these
documents were before the court below
during inquiry and on the basis of the
evidence available on record, charges were
framed against co-accused Pawan Raidas.
During trial, PW-1 (victim) had taken uturn and had stated that the present
revisionists along with the co-accused,
Pawan forced her to sit in Baleno Car and
threatened that she had to get married with
Pawan. Thereafter, they kept her at
Maharajpur and repeatedly raped her for
many days and thereafter co-accused,
Pawan forced her to sign on blank paper
and then brought her to this Court and
thereafter, when the police raided at their
house then they left the victim at Bindki,
Lalauli
Chauraha
where
the
police
recovered her. It was further contended that
the statement of PW-1 was recorded at the
instance of her father who is the first
informant because aunty of revisionists,
namely, Gudiya Devi had moved an
application under Section 156(3) Cr.P.C. on
13.11.2017
which
was
registered
as
complaint case no.57 of 2018 in which
summoning order was also passed on
19.07.2022 summoning the father of PW-1
(Jai Karan Nishad) and thereafter charges
were also framed on 19.07.2022, against
the first informant, Jai Karan Nishad for the
incident dated 18.09.2017 for outraging her
modesty, beating and injuring her as well as
her family members.

5. Learned counsel for the revisionists
lastly submitted that there is no sufficient
material to summon them under Section
319 Cr.P.C. on the basis of statement of
PW-1 recorded before the Court on
03.11.2020 as there is not only a u-turn
from her earlier statement recorded under
Sections-161 and 164 Cr.P.C. but there was
serious contradiction in the statement of
PW-1, therefore, prayed for quashing of the
impugned order.

6. On the other hand, learned counsel
for the opposite party no.2 had stated that
5 All. Upendra & Anr. Vs. State of U.P. & Ors.
93
the alleged complaint filed by the aunty of
revisionists was lodged subsequent to the
FIR lodged by the first informant (father of
victim) against the revisionists. It was
further submitted that as per the school
certificate as well as statement of PW-1,
her date of birth is 15.01.2006. Therefore,
at the time of incident, victim was minor,
therefore, her statement recorded under
Sections-161 and 164 Cr.P.C. has no
evidentiary value.

7. Learned AGA also submitted that on
the basis of statement of PW-1, there is
sufficient material on record to summon the
revisionists under Section-319 Cr.P.C.,
therefore, present revision deserves to be
dismissed.

8. After hearing counsel for the parties
and from perusal of record, the first
question arises is whether the material
available
during
inquiry
which
was
collected
during
investigation
like
statement under Section-161 Cr.P.C. as well
as under Section-164 Cr.P.C. and also the
medical examination report as well as age
determination certificate of CMO can be
looked into while summoning the accused
under Section 319 Cr.P.C., on the basis of
statement recorded at the time of trial.

9. Second question arises is whether
there is sufficient material available on the
basis of statement of PW-1 during trial to
summon the revisionists.

10. Hon'ble Supreme Court in the case
of Hardeep Singh Vs State of Punjab
(2014) 3 SCC 92 had observed in
paragraph no.54, which is being quoted as
below :

"54. In our opinion, the stage of
inquiry does not contemplate any evidence
in its strict legal sense, nor could the
legislature
have
contemplated
this
inasmuch as the stage for evidence has not
yet arrived. The only material that the
court has before it is the material collected
by the prosecution and the court at this
stage prima facie can apply its mind to find
out as to whether a person, who can be an
accused, has been erroneously omitted from
being arraigned or has been deliberately
excluded by the prosecuting agencies. This
is all the more necessary in order to ensure
that the investigating and the prosecuting
agencies have acted fairly in bringing
before the court those persons who deserve
to be tried and to prevent any person from
being deliberately shielded when they
ought to have been tried. This is necessary
to usher faith in the judicial system
whereby the court should be empowered to
exercise such powers even at the stage of
inquiry and it is for this reason that the
legislature has consciously used separate
terms, namely, inquiry or trial in Section
319 Cr.P.C."

11. From the observations of the
Hon'ble Supreme Court in the above case,
it is clear that the material available at the
time of inquiry is also the evidence for the
purpose of Section-319 Cr.P.C. It is also
clear that during inquiry only material that
could be available is the material collected
by
the
Investigating
Officer
during
investigation because at that time, no other
material could be brought on record but
question arises relevancy of this material
available during inquiry for the purpose of
94 INDIAN LAW REPORTS ALLAHABAD SERIES
exercising power under Section 319 Cr.P.C.
on the basis of evidence comes during trial.
This question was also answered by
Hon'ble Supreme Court in paragraph no.85
of Hardeep Singh Vs State of Punjab
(supra), which is quoted hereinunder:

"85. In view of the discussion
made
and
the
conclusion
drawn
hereinabove, the answer to the aforesaid
question posed is that apart from evidence
recorded during trial, any material that has
been received by the court after cognizance
is taken and before the trial commences,
can be utilised only for corroboration and
to support the evidence recorded by the
court to invoke the power under Section
319 Cr.P.C. The ?evidence? is thus, limited
to the evidence recorded during trial."

12. Therefore, for exercising power
under Section 319 Cr.P.C. apart from the
evidence recorded during trial, any material
that has been received by the court after
cognizance is taken and before the trial
commences,
can
be
utilized
for
corroboration and to support the evidence
recorded by the court to invoke the power
under Section 319 Cr.P.C.

13. The evidence is thus limited to
evidence recorded during trial but same can
be corroborated or supported by the
evidence available during inquiry.

14. So far as second question regarding
the availability of sufficient material for
summoning the revisionists on the basis of
statement of PW-1 recorded at the time of
trial is concerned, for that purpose, Hon'ble
Supreme Court has already issued detailed
guidelines in Hardeep Singh Vs State of
Punjab (supra) in paragraph nos.105 and
106 which are quoted as below :

"105. Power under Section 319
Cr.P.C. is a discretionary and an extra-
ordinary 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.
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."
5 All. Upendra & Anr. Vs. State of U.P. & Ors.
95

15. Similarly, Hon'ble Supreme Court
in Sagar Vs. State of U.P. (2022) 6 SCC
389 also observed regarding sufficiency of
material as well as power under Section319 Cr.P.C. Relevant paragraph no.9 of the
said judgement is quoted as under:

"9. The Constitution Bench has
given a caution that power under Section
319 of the Code is a discretionary and
extraordinary power which should be
exercised sparingly and only in those cases
where the circumstances of the case so
warrant and the crucial test as noticed
above 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 learned Single Judge of the
High Court has even failed to consider the
basic principles laid down by this Court
while invoking Section 319 of the Code,
which has been considered by the learned
trial Judge under its order dated 30 th
January, 2018."

16. From Section 319 Cr.P.C., it is
clear that power of summoning a person as
accused can be exercised on the basis of
material coming on record during inquiry
or trial. For ready reference, Section 319
Cr.P.C. is being quoted as below:

"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 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."

17. The purpose of Section 319 Cr.P.C.
is to impose a duty to enable the court so as
to encompass any situation which the court
may have to tackle while proceeding to try
an offence and not allow a person who
deserves to be tried to get escort free by
being not arraigned in the trial instead of
the possibility of his complicity which can
be gathered from the document presented
by the prosecution. The court is sole
repository of justice and a duty is cast upon
it to uphold the rule of law and, therefore, it
will be inappropriate to deny the existence
of such power with a court in a criminal
96 INDIAN LAW REPORTS ALLAHABAD SERIES
justice system where it is not uncommon
that real accused, at times, gets away by
manipulating the investigating and/or the
prosecuting agency. The desire to avoid
trial is so strong that an accused makes
effort at times to get himself absolved and
even at the stage of investigation or inquiry,
even though he may be connected with the
commission of offence. Therefore, word
evidence used in Section 319 Cr.P.C. has to
be understood in its wider sense, both at the
stage of trial and even at the stage of
inquiry. The court, therefore, should be
understood to have power to proceed
against any person after summoning him on
the basis of any such material as brought
forth before it. The duty and obligation of
the court becomes more onerous to invoke
such power cautiously on such material
after evidence has been led during trial.

18. Now, we come to second question
whether there is sufficient material on the
basis of statement of PW-1 recorded during
trial to summon the revisionists under
Section 319 Cr.P.C. In her statement, PW-1
admitted that she was medically examined
for the purpose of any assault as well as for
the purpose of determination of her age and
also her statement was recorded by
Magistrate but she had stated that her
statement under Section-164 Cr.P.C. was
recorded under the threat of co-accused,
Pawan and her father, Harilal. At one stage
of her statement, PW-1 has stated that, only
Pawan had been residing with her in room
and no other person was there but
subsequently, she stated all persons had
been residing with her in room. In
examination-in-chief, she stated that all
persons
committed
rape
upon
her
repeatedly but in cross-examination, PW-1
stated that except Pawan, only revisionist
no.1 committed rape upon her and no other
person committed rape upon her. During
trial there was only statement of PW-1
which was basis of passing the impugned
order and there was no other evidence on
record showing that any other person has
seen the above incident as stated by PW-1.
On considering the totality of statement of
PW-1 as well as its corroboration with the
material available at the time of inquiry i.e.
statement under Sections-161 and 164
Cr.P.C., evidence is not sufficient for
summoning the revisionists because as per
the established law by Hon'ble Supreme
Court, the test is that material must be more
than prima facie case as exercised at the time
of framing of charges but short of satisfaction to
the extent that evidence if goes unrebutted
would lead to conviction. So far as contention
of counsel for opposite party no.2 that as per
school leaving certificate of victim, she is
minor, therefore, her statement recorded under
Sections-161 and 164 Cr.P.C. is not relevant, is
concerned, that is also misconceived because if
this reasoning is accepted then her statement
during trial as PW-1 will also cannot be treated
as evidence. Even otherwise, it is established
position of law that minority of a witness itself
cannot be a ground to reject his/her testimony if
he/she is quite mature to understand his or her
testimony.

19. Therefore, in totality considering
the material collected by the prosecuting
agency during investigation available at the
time of inquiry as well as the statement of
PW-1 recorded during trial is not sufficient
for
summoning
the
revisionists
as
additional accused in exercise of power
under Section-319 Cr.P.C. to establish the
complicity of revisionists in crime.

20. In view of the facts discussed
above as well as the law laid down by the
5 All. Rajkeshwar Vs. State of U.P. & Ors.
97
Apex Court in Hardeep Singh Vs State of
Punjab (supra) as well as Sagar Vs. State
of U.P. (supra), the impugned order dated
04.02.2023 is set aside and the present
revision is allowed.
----------
(2023) 5 ILRA 97
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 1738 of 2013

Rajkeshwar ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Ashok Kumar Srivastava, Sri Ganesh

Counsel for the Opposite Parties:
Govt. Advocate, Sri N.D. Upadhyay, Sri
Vinay Bhushan

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Section 145 - Procedure where
dispute concerning land or water is likely
to cause breach of peace , Section 146 -
power to attach subject to dispute and to
appoint receiver - when a civil suit is
pending
and
the
parties
have
been
directed to maintain status quo, initiation
of proceeding under Section 145 Cr.P.C. is
improper - For breach of peace Section
107 Cr.P.C. can be invoked but cannot
attach the property. (Para - 14)

Property in question pending in Revenue Court -
with an interim stay order to maintain status
quo - SDM directed SHO - to send a report for
action under Sections 145 and 146 CrPC - which
is against provisions of law - superior officer
directed SHO to send a positive report -
concerned report was sent by SHO - Order
passed by Sub-Divisional Magistrate under
Section 145 CrPC. - land, totaling 1.0.912
hectares, was attached under section 146 (1)
CrPC. - hence criminal revision. (Para - 2,12)

HELD:-Impugned order is not liable to be
sustained. Impugned order passed by SubDivisional Magistrate,under Section 146(1) CrPC
quashed. (Para - 15,16)

Revision allowed. (E-7)

List of Cases cited:

1. Ashok Kumar Vs St. of Uttarakhand & ors. ,
2013 (3) SCC 366

2. Manika Shahu Vs Dandapani Shahu, 1986
CrLJ 287

3. Suresh Kumar Vs Vijay Kumar, 1988 CrLJ 977

4. Delhi Ram Sumer Puri Vs St. of U.P., AIR
1985 SC 472

5. Iqbal Singh Vs St. of Har., 1985 CrLJ 1757
(P& H)

6. Anand Ram Vs St. of Delhi, 1986 CrLJ 2008

7. Mohinder Singh Vs Dilbagh Rai, 1977 CrLJ
1029

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Mr. Ganesh, learned counsel
for the revisionist and learned Additional
Government Advocate. None appeared
from the side of opposite party no.2 to
argue the case. Perused the material
available on record.

2. This criminal revision has been
preferred against the order passed by
opposite
party
no.2/Sub-Divisional
Magistrate,
Robertsganj,
District
Sonbhadra dated 02.05.2013 in Case No.39