# Vishwapal Singh & Ors v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 104
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-29
- **Case number:** Criminal Appeal No. 657 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwapal-singh-ors-v-state-of-u-p-anr-50669
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 452, 323, 427, 504 & 506 -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(1)(Gha) - Code of Criminal
Procedure,
1973
-
Section
319
-
Summoning
order
-
Quashing
of
-
Impugned F.I.R. lodged by complainant
under aforesaid Sections against five
persons
including
present
appellants,
thereafter, matter investigated, nothing
found against them. (Para 2)
8 All. Vishwapal Singh & Ors. Vs. State of U.P. & Anr.
105
After perusal of record, appears that
charge-sheet not filed against appellants,
summoned
on
application
given
by
complainant before court below, civil suit
was pending between them, prosecution
tried to give colour of criminal nature to
civil dispute - Application not supported
with any affidavit nor any cogent reason
given so that appellants be summoned -
Names of appellants expunged during
investigation,
complainant
not
filed
protest petition, however, after long gap,
application filed without assigning any
reason - Allegation are same in application
and first information report, trial court
did not consider this aspect - Thus,
impugned
order
passed
without
application of judicial mind, set aside.
(Para 11, 12, 13, 20)

Appeal allowed. (E-14)

List of Cases cited:

## Text

104 INDIAN LAW REPORTS ALLAHABAD SERIES
to the sexual intercourse, (that time two
finger test was prevalent but not now).
Thus, it has been established that the victim
was telling a lie.

60. On the basis of above discussion
and considering the fact that none of the
independent witnesses came forward in
support of the prosecution version; that all
the accused persons belonged to the same
family with whom there was enmity on
account
of
civil
litigation
with
the
informant; that there was delay in lodging
the FIR; that the medical evidence was not
in support of the prosecution version and
there was no injury on the external or
internal part of the victim except a crust on
the base of little finger of the right hand
rather it has been established that she was
habitual of sexual intercourse as concluded
in paragraph-59; that generally the two real
brothers may not commit such offence
together; that the time of occurrence and
going alone out of the house for defecation
at 10:00 p.m. by the victim appears to be
concocted and fixed for the purposes of
false
implication
of
the
appellants.
Therefore, some roles have been assigned
to all of the appellants. Thus, this Court is
of the conclusion that the prosecution has
been miserably failed in establishing and
proving the prosecution case against the
appellants regarding commission of the
alleged crime. The Sessions Judge has been
miserably failed in properly assessing the
prosecution story and the evidence and in
applying the correct proposition of law.
Thus, there is force in this appeal and it
deserves to be allowed and the impugned
order of conviction and sentencing passed
by the learned trial court is liable to be set
aside.

61. Accordingly, this appeal is
allowed.

62. The judgment and order of
conviction
and
sentencing
dated
03.06.2000 passed by the XI-Additional
Sessions Judge, Faizabad in ST No.827 of
1997 (State Vs. Gudun and others) arising
out of Case Crime No.55 of 1997, under
Sections 376/511, 354, 506 IPC is set aside.

63. The appellants would be set free,
if they are in jail and if they are not wanted
in any other criminal case.

64. The lower court record alongwith
a copy of this judgment be sent back to the
court concerned for its consignment.
----------
(2023) 8 ILRA 104
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.08.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 657 of 2021

Vishwapal Singh & Ors. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Pradeep Kumar Singh, Sushil Kumar Singh

Counsel for the Respondents:
G.A., Anil Kumar Shukla

Criminal Law - Indian Penal Code,1860 -
Sections 452, 323, 427, 504 & 506 -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(1)(Gha) - Code of Criminal
Procedure,
1973
-
Section
319
-
Summoning
order
-
Quashing
of
-
Impugned F.I.R. lodged by complainant
under aforesaid Sections against five
persons
including
present
appellants,
thereafter, matter investigated, nothing
found against them. (Para 2)
8 All. Vishwapal Singh & Ors. Vs. State of U.P. & Anr.
105
After perusal of record, appears that
charge-sheet not filed against appellants,
summoned
on
application
given
by
complainant before court below, civil suit
was pending between them, prosecution
tried to give colour of criminal nature to
civil dispute - Application not supported
with any affidavit nor any cogent reason
given so that appellants be summoned -
Names of appellants expunged during
investigation,
complainant
not
filed
protest petition, however, after long gap,
application filed without assigning any
reason - Allegation are same in application
and first information report, trial court
did not consider this aspect - Thus,
impugned
order
passed
without
application of judicial mind, set aside.
(Para 11, 12, 13, 20)

Appeal allowed. (E-14)

List of Cases cited:

1. Hardeep Singh Vs St. of Punj. & ors., (2014)
3 SCC 92, (Para 105, 106)

2. Labhuji Amratji Thakor & ors. Vs The St. of
Guj. & anr., 2018 (0) Supreme (SC) 1147, (Para
9)

3. Brijendra Singh & ors. Vs St. of Raj., (2017) 7
SCC 706, (Para 13, 15)

4. Periyasami & ors. Vs S. Nallasamy, (2019) 4
SCC 342, (Para 14, 15)

5. Brindaban Das & ors. Vs St. of West Bengal,
2009 (66) ACC 273
(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Sushil Kumar Singh,
learned counsel for the appellants, Sri Anil
Kumar Shukla, learned counsel for the
opposite party no.2 and Sri Bhasker Mal,
learned A.G.A. for the State.

2. The instant appeal has been moved by
the appellants, namely, Vishwapal Singh,
Adarsh Singh and Vipin Singh with a prayer to
quash the impugned summoning order dated
04.03.2020 passed by the Additional Sessions
Judge, Court No.3, Sitapur, whereby the
appellants have been summoned under Section
319 Cr.P.C. in Special Trial No.181/2017
(State Vs. Shivpal Singh & Others), under
Sections 452, 323, 427, 504, 506 I.P.C. and
Section 3(1)(Gha) of The Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, Police Station Kotwali,
District Sitapur.

3. Before opening the arguments, learned
counsel for the appellants informed that
appellant no.1, Vishwapal Singh died, as such,
the appeal in respect of appellant no.1
Vishwapal Singh stands abated. This Court is
proceeding in respect of appellant no.2,
Adarsh Singh and appellant no.3, Vipin Singh.

4. Learned counsel for the appellants
submitted that initially an impugned F.I.R. was
lodged by the opposite party no.2, complainant
on 29.02.2016 at Case Crime No.0143 of
2016, under Sections 323, 147, 452, 504, 506,
427 I.P.C. and Section 3(1)(xi) of S.C./S.T. Act
against the five persons including the present
appellants.
Thereafter,
the
matter
was
thoroughly investigated and nothing was
found against the present appellants and they
were expunged by the Investigating Officer.

5. Learned counsel for the appellants
further submitted that opposite party no.2
moved an application dated 16.09.2019 under
Section 319 Cr.P.C. before the court below for
summoning the appellants to face trial. He
further submitted that against the application
under Section 319 Cr.P.C., objection was filed
by the appellants on 04.10.2019.

6. Learned counsel for the appellants
further submitted that there is a civil
dispute pending between the parties before
the Civil Judge (Senior Division), Sitapur
106 INDIAN LAW REPORTS ALLAHABAD SERIES
bearing O.A. No.602/2015 (Shivpal Singh
& Others Vs. Ram Swaroop & Others), as
such, the prosecution has tried to give
colour of criminal nature to a civil dispute.

7. Learned counsel for the appellants
further submitted that the appellants have
not committed any offence as alleged by
the complainant and from a bare perusal of
the evidence collected by the Investigating
Officer, it is crystal clear that the appellants
have not participated in the alleged offence.

8. Learned counsel for the appellants
further submitted that the application dated
16.09.2019 moved by the opposite party
no.2, complainant under Section 319
Cr.P.C. is not supported with any affidavit
nor any cogent reason has been given as to
why the appellants be summoned after a
long time of lodging of the first information
report, as such, it shows the malafide
arbitrary intention of the complainant just
to harass the appellants.

9. Learned counsel for the appellants
further submitted that the impugned order
dated 04.03.2020 passed by the learned
Additional Sessions Judge, Court No.3,
Sitapur, by which the appellants were
summoned, is also non speaking as the
Magistrate has not considered any material
available before him while summoning the
appellants to face the trial. As such, the
impugned order dated 04.03.2020 on the
face of record appears to be unjustified and
is passed without application of judicial
mind, therefore, the same is liable to be set
aside by this Court and the present appeal
be allowed.

10. Learned A.G.A. for the State as
well as learned counsel for the opposite
party no.2 have opposed the argument
raised by the learned counsel for the
appellants and have jointly submitted that
the impugned order dated 04.03.2020,
summoning the appellants under Section
319 Cr.P.C., was rightly passed, as such, the
same is not liable to be quashed and the
instant appeal is liable to be rejected.

11. After hearing learned counsel for
the parties and perusal of record, it reveals
that the charge-sheet has not been filed
against
the
present
appellants.
The
appellants have been summoned merely on
the application given by the opposite party
no.2, complainant under Section 319
Cr.P.C. It also reveals that a Civil Suit
bearing O.A. No.602/2015 (Shivpal Singh
& Others Vs. Ram Swaroop & Others) is
pending between the parties, as such, the
prosecution has tried to give colour of
criminal nature to a civil dispute.

12. Further, this Court finds that the
application dated 16.09.2019 filed by the
opposite party no.2, complainant under
Section 319 Cr.P.C. before the learned court
below is not supported with any affidavit
nor any cogent reason has been given so
that the appellants be summoned by the
court below. Even though when the names
of the appellants were dropped/expunged
during the investigation, the opposite party
no.2, complainant has not filed any protest
petition against the same, however, after a
long gap, the application under Section 319
Cr.P.C. was filed that too without assigning
any cogent reason.

13. It is further observed by this Court
that in application dated 16.09.2019 filed
by the opposite party no.2, complainant
under Section 319 Cr.P.C., the same
allegation has been leveled which was
leveled in the first information report and
further that the learned trial court, while
passing
the
impugned
order
dated
8 All. Vishwapal Singh & Ors. Vs. State of U.P. & Anr.
107
04.03.2020 did not consider this aspect that
the power under Section 319 Cr.P.C. is a
discretionary and extraordinary power,
which should be sparingly used and only in
those cases where the circumstances of the
case so warrant, has passed the order in
cursory manner and without application of
judicial mind.

14. The Constitution Bench judgment
of the Hon'ble Apex Court in the case of
Hardeep Singh Vs. State of Punjab &
others, (2014) 3 SCC 92 was pleased to
observe in paragraph 105 and 106 of the
aforesaid judgment as under :-

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

15. Further, the Constitution Bench
judgment was duly considered by the
Hon'ble Apex Court in the case of Labhuji
Amratji Thakor & others Vs. The State
of Gujarat and another, 2018 (0)
Supreme (SC) 1147 and the Hon'ble
Supreme Court in paragraph 9 of the
aforesaid judgment was pleased to observe
as under :-

"9. The Constitution Bench has
given a caution that power under Section
319 Cr.P.C.
is
a
discretionary
and
extraordinary power, which should be
exercised sparingly and only in those cases
where the circumstances of the case so
warrant. The crucial test, which has been
laid down as noted above is "the test that
has to be applied is one which is more than
prima facie case as exercised at the time of
framing of charge, but short of satisfaction
to an extent that the evidence, if goes
unrebutted, would lead to conviction." The
present is a case, where the trial court had
rejected the application filed by the
prosecution under Section 319 Cr.P.C.
Further,
in
the
present
case,
the
complainant in the F.I.R. has not taken the
names
of
the
appellants
and
after
investigation in which the statement of
victim was also recorded, the names of the
appellants did not figure. After carrying
investigation,
the
Charge
Sheet
was
submitted in which the appellants names
were also not mentioned as accused. In the
108 INDIAN LAW REPORTS ALLAHABAD SERIES
statement recorded before the Police, the
victim has named only Natuji with whom
she admitted having physical relations and
who took her and with whom she went out
of the house in the night and lived with him
on several places. The mother of victim in
her statement before the Court herself has
stated that victim girl returned to the house
after one and a half months. In the
statement, before the Court, victim has
narrated the entire sequence of events. She
has stated in her statement that accused
Natuji used to visit her Uncle's house
Vishnuji, where she met Natuji. She,
however, stated that it was Natuji, who had
given her mobile phone. Her parents came
to know about she having been given
mobile phone by Natuji, then they went to
the house of Natuji and threatened Natuji."

16. Further, the Hon'ble Apex Court
in the case of Brijendra Singh and others
vs. State of Rajasthan, (2017) 7 SCC 706
and in para 13 and 15 was pleased to
observe as under :-

"13. In order to answer the
question, some of the principles enunciated
in
Hardeep
Singh's
case
may
be
recapitulated:

Power under Section 319 Cr.P.C.
can be exercised by the trial court at any
stage during the trial, i.e., before the
conclusion of trial, to summon any person
as an accused and face the trial in the
ongoing case, once the trial court finds that
there is some ?evidence? against such a
person on the basis of which evidence it
can be gathered that he appears to be
guilty of offence. The evidence? herein
means the material that is brought before
the Court during trial. Insofar as the
material/evidence collected by the IO at the
stage of inquiry is concerned, it can be
utilised for corroboration and to support
the evidence recorded by the Court to
invoke the power under Section 319 Cr.P.C.
No doubt, such evidence that has surfaced
in examination-in-chief, without cross-
examination of witnesses, can also be taken
into consideration. However, since it is a
discretionary power given to the Court
under Section 319 Cr.P.C. and is also an
extraordinary one,
same
has
to
be
exercised sparingly and only in those cases
where the circumstances of the case so
warrants. The degree of satisfaction is
more than the degree which is warranted at
the time of framing of the charges against
others in respect of whom chargesheet was
filed. Only where strong and cogent
evidence occurs against a person from the
evidence led before the Court that such
power should be exercised. It is not to be
exercised in a casual or a cavalier manner.
The prima facie opinion which is to be
formed requires stronger evidence than
mere probability of his complicity.

xx xx xx

15. This record was before the
trial court. Notwithstanding the same, the
trial court went by the deposition of
complainant and some other persons in
their examination-in-chief, with no other
material to support their so- called
verbal/ocular version. Thus, the ?evidence?
recorded during trial was nothing more
than the statements which was already
there under Section 161 Cr.P.C. recorded at
the time of investigation of the case. No
doubt, the trial court would be competent
to exercise its power even on the basis of
such statements recorded before it in
examination-in-chief. However, in a case
like the present where plethora of evidence
was
collected
by
the
IO
during
investigation which suggested otherwise,
the trial court was at least duty bound to
look into the same while forming prima
facie opinion and to see as to whether
8 All. Vishwapal Singh & Ors. Vs. State of U.P. & Anr.
109
?much
stronger
evidence
than
mere
possibility
of
their
(i.e.
appellants)
complicity has come on record. There is no
satisfaction of this nature. Even if we
presume that the trial court was not
apprised of the same at the time when it
passed the order (as the appellants were
not on the scene at that time), what is more
troubling is that even when this material on
record was specifically brought to the
notice of the High Court in the Revision
Petition filed by the appellants, the High
Court too blissfully ignored the said
material.
Except
reproducing
the
discussion contained in the order of the
trial court and expressing agreement
therewith, nothing more has been done.
Such orders cannot stand judicial scrutiny."

17. Further, the Hon'ble Apex Court
in the case of Periyasami and others vs. S.
Nallasamy, (2019) 4 SCC 342 and in
paragraph 14 and 15 of the aforesaid
judgment was pleased to observe as under:-

"14. In the First Information
Report or in the statements recorded under
Section 161 of the Code, the names of the
appellants or any other description have
not been given so as to identify them. The
allegations in the FIR are vague and can be
used any time to include any person in the
absence of description in the First
Information Report to identify such person.
There is no assertion in respect of the
villages to which the additional accused
belong. Therefore, there is no strong or
cogent evidence to make the appellants
stand the trial for the offences under
Sections 147, 448, 294(b) and 506 of IPC
in view of the judgment in Hardeep Singh
case (supra). The additional accused
cannot be summoned under Section 319 of
the Code in casual and cavalier manner in
the absence of strong and cogent evidence.
Under Section 319 of the Code additional
accused can be summoned only if there is
more than prima facie case as is required
at the time of framing of charge but which
is less than the satisfaction required at the
time of conclusion of the trial convicting
the accused.

15. The High Court has set aside
the order passed by the learned Magistrate
only on the basis of the statements of some
of
the
witnesses
examined
by
the
Complainant. Mere disclosing the names of
the appellants cannot be said to be strong
and cogent evidence to make them to stand
trial for the offence under Section 319 of
the Code, especially when the Complainant
is a husband and has initiated criminal
proceedings against family of his in-laws
and when their names or other identity
were not disclosed at the first opportunity."

18. In the present case, it is apparent
that the order under Section 319 Cr.PC. is
based on the statement of P.W.1 without
considering the relevant facts and without
recording any satisfaction that there is
some cogent evidence which may lead to
their
conviction
even
otherwise
the
appellants were already expunged by the
Investigating Officer and final report was
submitted agaisnt them. In the matter of
Hardeep Singh & Bijendra Singh (supra)
and other judgments, the Apex Court is
clearly of the view that evidence should be
more prima facie, if unrebutted, would lead
to conviction, here no such satisfaction has
been recorded by the Additional Sessions
Judge, Court No.3, Sitapur while passing
the summoning order dated 04.03.2020.

19. Hon'ble Apex Court in the case of
Brindaban Das and others vs. State of
West Bengal, 2009 (66) ACC 273, held
that in matters relating to invocation of
powers under section 319 Cr.P.C., the Court
110 INDIAN LAW REPORTS ALLAHABAD SERIES
is not merely required to take note of the
fact that the name of a person who has not
been named as an accused in the FIR has
surfaced during the trial, but the Court is
also required to consider whether such
evidence would be sufficient to convict the
person being summoned. The Apex Court
further observed that the fulcrum on which
the invocation of section 319 Cr.P.C. rests
is whether the summoning of persons other
than the named accused would make such a
difference to the prosecution as would
enable it not only to prove its case but to
also secure the conviction of the persons
summoned.

20. Thus, in view of the law laid
down by the Hon'ble Apex Court and the
facts and circumstances, as narrated above
and from the perusal of the record, the
impugned
summoning
order
dated
04.03.2020
passed
by
the
learned
Additional Sessions Judge, Court No.3,
Sitapur, summoning the appellants under
Section 319 Cr.P.C., is against the spirit and
directions issued by the Hon'ble Apex
Court and is liable to be set aside.

21. Accordingly, the order dated
04.03.2020
passed
by
the
learned
Additional Sessions Judge, Court No.3,
Sitapur, whereby the appellants have been
summoned under Section 319 Cr.P.C. in
Special Trial No.181/2017 (State Vs.
Shivpal Singh & Others), under Sections
452, 323, 427, 504, 506 I.P.C. and Section
3(1)(Gha) of The Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989, Police Station Kotwali, District
Sitapur is hereby set aside and reversed.

22. For the reasons discussed above,
the appeal is allowed in respect of
appellant no.2, Adarsh Singh and appellant
no.3, Vipin Singh.

23. No order as to the costs.
----------
(2023) 8 ILRA 110
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 1045 of 2016
With
Criminal Appeal No. 1044 of 2016

Puneet Tripathi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Radhey Shyam Shukla, Sri Rajesh
Kumar Mishra, Sri Noor Mohammad, Sri
Rudra Pratap Pandey, Sri Vidhu Bhushan
Singh, Sri Kamal Krishna (Sr. Advocate)

Counsel for the Respondent:
G.A., Sri Prashant Kumar Singh

Criminal Law - Indian Penal Code, 1860 -
Sections
498-A
&
304-B
-
Dowry
Prohibition Act, 1961 - Section 3⁄4 - Appeal
against conviction - Quashing of - Code of
Criminal Procedure, 1973 - Section 357 -
Indian Evidence Act, 1872 - Sections 73,
106, 113-A, 113-B & 114(g) - Allegation of
abusing, torturing for non-fulfilment of
demand of dowry and killing of deceased
within seven years of marriage against
accused - Held, relation between deceased
and accused not cordial, institution of suit
for restitution of conjugal rights shows
that accused wanted to keep relation
intact - When accused was medical
representative,
promoted
as
area
manager, no such meagre amount and
ordinary articles demanded as dowry -
None of independent witnesses examined
by trial Court, trial concluded without
summoning actual witnesses present on