# Upendra @ Mohit Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 640
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-07
- **Case number:** Criminal Revision No. 1981 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upendra-mohit-revisionist-v-state-of-u-p-anr-46384
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973-Section 319 - Revisionist
named in FIR-assigned a role -testimony
of
PW-1
and
PW-2-
indicative
of
complicity
of
Revisionist-though
not
arraigned in charge sheet-summoning
order u/s 319 legal.

Held, The power under Section 319 of the Code
to summon even those persons who are not
named in the chargesheet to appear and face
trial, being unquestionable and the object of the
provision being not to allow a person who
deserves to be tried to go scot-free by being not
arraigned in the trial in spite of possibility of his
complicity which can be gathered from the
evidence during the course of trial, the order
passed under Section 319 of the Code
summoning the revisionist does not contain
any
material
error
so
as
to
warrant
inference.(para 20)

Revision dismissed. (E-9)

List of Cases cited:

## Text

640 INDIAN LAW REPORTS ALLAHABAD SERIES
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

16. The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2021)10ILR A640
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Criminal Revision No. 1981 of 2021

Upendra @ Mohit ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Anil Kumar Shukla

Counsel for the Opposite Parties:
A.G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973-Section 319 - Revisionist
named in FIR-assigned a role -testimony
of
PW-1
and
PW-2-
indicative
of
complicity
of
Revisionist-though
not
arraigned in charge sheet-summoning
order u/s 319 legal.

Held, The power under Section 319 of the Code
to summon even those persons who are not
named in the chargesheet to appear and face
trial, being unquestionable and the object of the
provision being not to allow a person who
deserves to be tried to go scot-free by being not
arraigned in the trial in spite of possibility of his
complicity which can be gathered from the
evidence during the course of trial, the order
passed under Section 319 of the Code
summoning the revisionist does not contain
any
material
error
so
as
to
warrant
inference.(para 20)

Revision dismissed. (E-9)

List of Cases cited:

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

2. S. Mohammed Ispahani Vs Yogendra
Chandak & ors., (2017) 16 SCC 226

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

4. Saeeda Khatoon Arshi Vs St. of U. P. & anr.,
(2020) 2 SCC 323

5. Adesh Tyagi Vs St. of U.P. & anr., Application
u/s
482
No.8478
of
2021,
decided
on
04.08.2021

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

1. Heard Sri Anil Kumar Shukla,
learned counsel for the revisionist and Sri
Pankaj
Saxena,
learned
Additional
Government
Advocate-I
appearing
alongwith Ms. Sushma Soni, learned
Additional Government Advocate, for the
State-opposite party.

2. The present criminal revision has
been
filed
against
the
order
dated
18.03.2021 passed by the Additional
District and Sessions Judge, Court no.4,
Hathras in S.T. No.396 of 2015 (State vs.
Girendrapal and Others), arising out of
Case Crime No.700 of 2014, under
Sections 308, 323, 504, 506 IPC, Police
Station- Sasni, District Hathras, whereby
the revisionist has been summoned by the
court below in exercise of powers under
Section 319 of the Code of Criminal
Procedure, 19731.
10 All. Upendra @ Mohit Vs. State of U.P. & Anr.
641

3. Learned counsel for the revisionist
has sought to assail the order passed by the
court below by referring to the factual
aspects of the case to contend that the
revisionist has been falsely implicated in
the criminal case. He has submitted that the
jurisdiction under Section 319 of the Code
is to be exercised in an extra-ordinary
situation where there is a strong possibility
of the conviction of the accused, who is
proposed to be summoned, and the powers
are not to be exercised in a routine manner.
It
is
further
pointed
out
that
the
Investigating Officer did not find any
material against the revisionist and no
charge-sheet having been submitted against
him, there was no further material on the
basis of which the trial court could have
summoned the revisionist.

4. Learned Additional Government
Advocate-I has controverted the assertions
made by the counsel for the revisionist by
drawing attention to the fact that the
revisionist herein was named in the FIR
and as per the FIR version he was assigned
a specific role. Attention has been drawn to
the fact that the testimony of PW-1 and
PW-2 during the course of trial have
pointed to the complicity of the revisionist
and his clear role in the incident. It is also
contended that the testimony before the
trial judge would have to be given more
weight than the report submitted by the
Investigating Officer pursuant to the
investigation.

5.

Rival
contentions
fall
for
consideration.

6. The ambit and scope of the powers
of the Magistrate under Section 319 of the
Code were considered in the Constitution
Bench judgment of the Supreme Court in
Hardeep Singh and Others vs. State of
Punjab2. Referring to the object of the
provision it was held that the object of the
provision is that the real culprit should not
get away unpunished and in a situation
where the investigating agency for any
reason does not array one of the real
culprits as an accused, the court is not
powerless in calling the said accused to
face trial. It was stated thus :-

"8.The
constitutional
mandate
under
Articles
20
and
21
of
the
Constitution of India, 1950 provides a
protective
umbrella
for
the
smooth
administration of justice making adequate
provisions to ensure a fair and efficacious
trial so that the accused does not get
prejudiced after the law has been put into
motion to try him for the offence but at the
same time also gives equal protection to
victims and to society at large to ensure
that the guilty does not get away from the
clutches of law. For the empowerment of
the courts to ensure that the criminal
administration of justice works properly,
the law was appropriately codified and
modified by the legislature under CrPC
indicating as to how the courts should
proceed in order to ultimately find out the
truth so that an innocent does not get
punished but at the same time, the guilty
are brought to book under the law. It is
these ideals as enshrined under the
Constitution and our laws that have led to
several decisions, whereby innovating
methods and progressive tools have been
forged to find out the real truth and to
ensure that the guilty does not go
unpunished.

9.The presumption of innocence
is the general law of the land as every man
is presumed to be innocent unless proven to
be guilty. Alternatively, certain statutory
presumptions in relation to certain class of
offences have been raised against the
642 INDIAN LAW REPORTS ALLAHABAD SERIES
accused whereby the presumption of guilt
prevails till the accused discharges his
burden upon an onus being cast upon him
under the law to prove himself to be
innocent. These competing theories have
been kept in mind by the legislature. The
entire effort, therefore, is not to allow the
real perpetrator of an offence to get away
unpunished. This is also a part of fair trial
and in our opinion, in order to achieve this
very end that the legislature thought of
incorporating provisions of Section 319
Code of Criminal Procedure. It is with the
said object in mind that a constructive and
purposive interpretation should be adopted
that advances the cause of justice and does
not dilute the intention of the statute
conferring powers on the court to carry out
the abovementioned avowed object and
purpose to try the person to the satisfaction
of the court as an accomplice in the
commission of the offence that is the
subject matter of trial.

xx

12. Section 319 Code of Criminal
Procedure springs out of the doctrine judex
damnatur cum nocens absolvitur (Judge is
condemned when guilty is acquitted) and
this doctrine must be used as a beacon light
while explaining the ambit and the spirit
underlying the enactment of Section 319
CrPC.

13. It is the duty of the court to do
justice by punishing the real culprit. Where
the investigating agency for any reason
does not array one of the real culprits as an
accused, the court is not powerless in
calling the said accused to face trial. The
question remains under what circumstances
and at what stage should the court exercise
its power as contemplated in Section 319
CrPC.

xxx

17. Section 319 CrPC allows the
court to proceed against any person who is
not an accused in a case before it. Thus, the
person against whom summons are issued
in exercise of such powers, has to
necessarily not be an accused already
facing trial. He can either be a person
named in Column 2 of the chargesheet filed
under Section 173 Code of Criminal
Procedure or a person whose name has
been disclosed in any material before the
court that is to be considered for the
purpose of trying the offence, but not
investigated. He has to be a person whose
complicity may be indicated and connected
with the commission of the offence.

18. The legislature cannot be
presumed to have imagined all the
circumstances and, therefore, it is the duty
of the court to give full effect to the words
used by the legislature 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 go scot free by being not arraigned
in the trial in spite of possibility of his
complicity which can be gathered from the
documents presented by the prosecution.

19.
The
court
is
the
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 powers with the courts in our
criminal justice system where it is not
uncommon that the real accused, at times,
get away by manipulating the investigating
and/or the prosecuting agency. The desire
to avoid trial is so strong that an accused
makes efforts at times to get himself
absolved even at the stage of investigation
or inquiry even though he may be
connected with the commission of the
offence."

7. As regards the degree of
satisfaction required for invoking the
powers under Section 319 of the Code, it
10 All. Upendra @ Mohit Vs. State of U.P. & Anr.
643
was held 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. It was observed as
follows :-

"105. Power under Section 319
Code
of
Criminal
Procedure
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 Code
of Criminal Procedure. In Section 319
Code of Criminal Procedure 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
Code of Criminal Procedure to form any
opinion as to the guilt of the accused.

8. The question as to in what
situations the power under the section can
be exercised in respect of persons not
named in the FIR or named in the FIR, but
not charge-sheeted or discharged was also
considered, and it was held that a person
whose name does not appear even in the
FIR or in the charge-sheet or whose name
appears in the FIR and not in the chargesheet, can still be summoned by the court
provided the conditions under the section
stand fulfilled. It was observed as follows :-

"111.
Even
the
Constitution
Bench in Dharam Pal (CB) has held that
the Sessions Court can also exercise its
original jurisdiction and summon a person
as an accused in case his name appears in
Column 2 of the chargesheet, once the case
had been committed to it. It means that a
person whose name does not appear even in
the FIR or in the chargesheet or whose
name appears in the FIR and not in the
main part of the chargesheet but in Column
2 and has not been summoned as an
accused in exercise of the powers under
Section 193 Code of Criminal Procedure
can still be summoned by the court,
provided the court is satisfied that the
conditions provided in the said statutory
provisions stand fulfilled.

xxx

117.6 A person not named in the
FIR or a person though named in the FIR
but has not been chargesheeted or a person
who has been discharged can be summoned
under Section 319 Code of Criminal
Procedure provided from the evidence it
appears that such person can be tried along
with the accused already facing trial.
However, in so far as an accused who has
644 INDIAN LAW REPORTS ALLAHABAD SERIES
been
discharged
is
concerned
the
requirement of Sections 300 and 398 Code
of Criminal Procedure has to be complied
with before he can be summoned afresh. "

9. The word 'evidence' as used under
Section 319(1) of the Code was also
considered and it was held as follows :-

"84.
The
word
"evidence"
therefore has to be understood in its wider
sense both at the stage of trial and, as
discussed earlier, even at the stage of
inquiry, as used under Section 319 Code of
Criminal Procedure.The court, therefore,
should be understood to have the 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 powers
cautiously on such material after evidence
has been led during trial.

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 Code of Criminal Procedure. The
"evidence" is thus, limited to the evidence
recorded during trial. "

10. The principles with regard to
exercise of power by the court to summon
an accused under Section 319 of the Code
were reiterated in S. Mohammed Ispahani
Vs. Yogendra Chandak and others3, and
it was held that the power under Section
319 to summon even those persons who are
not named in the charge-sheet to appear
and face trial, is unquestionable. It was
observed thus:-

"28.Insofar as power of the Court
Under Section 319 of the Code of Criminal
Procedure, to summon even those persons
who are not named in the charge sheet to
appear and face trial is concerned, the same
is unquestionable. Section 319 of the Code
of Criminal Procedure, is meant to rope in
even
those
persons
who
were
not
implicated when the charge sheet was filed
but during the trial the Court finds that
sufficient evidence has come on record to
summon them and face the trial. In
Hardeep Singh's case, the Constitution
Bench of this Court has settled the law in
this
behalf
with
authoritative
pronouncement, thereby removing the
cobweb which had been created while
interpreting this provision earlier. As far as
object behind Section 319 of the Code of
Criminal Procedure, is concerned, the
Court had highlighted the same as under:

19.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
powers with the courts in our criminal
justice system where it is not uncommon
that the real accused, at times, get away by
manipulating the investigating and/or the
prosecuting agency. The desire to avoid
trial is so strong that an Accused makes
efforts at times to get himself absolved
even at the stage of investigation or inquiry
even though he may be connected with the
commission of the offence. '

11. The power to proceed against
persons named in FIR with specific
allegations against them, but not chargesheeted, was reiterated in Rajesh and
others Vs. State of Haryana,4 and it was
held that persons named in the FIR but not
10 All. Upendra @ Mohit Vs. State of U.P. & Anr.
645
implicated
in
charge-sheet
can
be
summoned to face trial, provided during the
trial some evidence surfaces against the
proposed accused.

12. The exercise of powers under
Section 319 of the Code for summoning an
additional accused again came up for
consideration in Saeeda Khatoon Arshi Vs.
State of Uttar Pradesh and another5 and it
was held that it is the duty of the court to give
full effect to the words used by the legislature
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 go scot-free by being
not arraigned in the trial inspite of the
possibility of his complicity which can be
gathered from the documents presented by the
prosecution.

13. In the case at hand the court below
has taken note of the fact that the revisionist
was not only named in the FIR but he was also
assigned a role in the incident. The testimony
of P.W.1 and P.W.2 as being indicative of the
complicity of the revisionist have also been
referred. Upon considering the settled legal
position with regard to the exercise of powers
under Section 319, the court below has passed
the order summoning the revisionist.

14. The FIR version as also the evidence
before the trial judge being indicative of the
complicity of the revisionist, though not
arraigned as an accused in the charge-sheet, it
was open to the trial court to form a view that
the revisionist be tried together with the other
accused, and for the said purpose summon the
revisionist in exercise of powers under Section
319 of the Code.

15. The broad principles which have
been laid down for exercise of powers
under Section 319 of the Code underline
the object of the enactment that the real
perpetrator of the offence should not get
away unpunished and in a situation where
the investigating agency for any reason
does not array any culprit as an accused the
court would not be powerless in calling the
accused to face trial; rather it would be
duty of the court to do justice by punishing
the real culprit.

16. The test which has been laid down
with regard to the degree of satisfaction
required for invoking the powers under
Section 319 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.

17. The power to proceed under
Section 319 has also been held to be
exerciseable in respect of persons though
named in the FIR but not charge-sheeted
provided the court is satisfied that the
conditions provided under the section stand
fulfilled.

18. Section 319 (1) of the Code
envisages that 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.

19. The word evidence used under
Section 319 (1) of the Code has been held to
be understood to refer to the evidence
recorded during trial, and also any material
that has been received by the court after
cognizance is taken and before the trial
commences, to be utilized for corroboration
646 INDIAN LAW REPORTS ALLAHABAD SERIES
and to support the evidence recorded by the
court.

20. The evidence recorded by the
court during trial is thus to be accorded
primacy and for the purpose of exercise
of power under Section 319 of the Code
would have to be given weight over the
material which was collected during the
course of investigation. The contention
which has been sought to be raised
placing
reliance
upon
the
material
collected by the investigating officer
during the course of investigation, for the
purpose of exercise of powers under
Section 319 of the Code, thus cannot be
accepted.

21. The power under Section 319 of
the Code to summon even those persons
who are not named in the charge-sheet to
appear
and
face
trial,
being
unquestionable and the object of the
provision being not to allow a person
who deserves to be tried to go scot-free
by being not arraigned in the trial inspite
of possibility of his complicity which can
be gathered from the evidence during the
course of trial, the order passed under
Section 319 of the Code summoning the
revisionist does not contain any material
error so as to warrant inference.

22. The aforementioned legal
position has been considered in detail in a
recent decision of this Court in Adesh
Tyagi vs. State of U.P. and Another6

23. Counsel for the revisionist at
this stage submits that he does not dispute
the aforementioned legal position with
regard to the scope of exercise of powers
under Section 319 of the Code and states
that the revisionist would submit to the
jurisdiction of the court below and seek
bail.

24. Needless to say that in case any
such application for bail is moved by the
revisionist, the court below would be
expected to dispose of the same in
accordance with the settled principles of
law.

25. Subject to aforesaid observation
the revision stands dismissed.
----------

(2021)10ILR A646
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 06.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 3400 of 2011
(CIVIL MISC. REVIEW APPLICATION No. 340686
of 2011)

Regional Manager U.P.S.R.T.C., Bareilly
 ...Appellant
Versus
Smt. Sabari Begum ...Respondent

Counsel for the Appellant:
Sri Nripendra Mishra

Counsel for the Respondent:

Review
application
filed-virtually
an
attempt to re argue the matter-not
permissible in review application.

Reargument on merits cannot be allowed
in a review application. (E-9)

List of Cases cited: