ASIFversusSTATE OF U.P. AND ANOTHER

    HIGH COURT OF JUDICATURE AT ALLAHABAD
             CRIMINAL REVISION No. - 5283 of 2024

Asif
                                                  .....Revisionist(s)
                             Versus

State of U.P. and Another
                                                     .....Opposite
                                                           Party(s)

Counsel for Revisionist(s)    : Mohd. Khalil, Mohd. Afzal
                                Ansari,   Punita  Pandey,
                                Shweta Pandey
Counsel for Opposite Party(s) : Amit Rai, G.A., Vikas
                                Tiwari

Court No. - 45
          HON'BLE LAKSHMI KANT SHUKLA, J.

1. The instant Criminal Revision has been preferred by the
revisionist challenging the validity and propriety of the
impugned order dated 24.09.2024 passed by the Additional
Sessions Judge, F.T.C.-II, Bijnor (hereinafter referred to as 'the
Trial Court') whereby the Trial Court has summoned the
revisionist under Section 319 Cr.P.C. to face trial in Sessions
Trial No. 486 of 2023, State v. Shareef etc. arising out of Case
Crime No. 479 of 2022, under Sections 323/34,
504/34,506/34,304/34 I.P.C., Police Station Nazibabad, District
Bijnor along with co-accused.

2. Feeling aggrieved from the aforesaid order, the present
Criminal Revision has been filed inter alia on the grounds that
the impugned order is arbitrary, illegal and contrary to the facts
and evidence on record. It is contended that the Trial Court has
failed to exercise the jurisdiction vested in it in accordance
with law and has committed material irregularity while passing
the impugned order.

3. Heard Mr. Mohd. Khalil, learned counsel for the revisionist,
learned A.G.A. appearing on behalf of the State and perused
the material available on record.
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4. Learned counsel for the revisionist submits that while
allowing an application under Section 319 Cr.P.C., the Court is
required to record its satisfaction that the evidence available on
record is cogent, credible and of such quality that it gives rise
to a strong possibility of the accused sought to be summoned
having committed the offence. However, the learned Trial
Court has not recorded such reasons in the impugned order.

5. Elaborating his submissions, learned counsel for the
revisionist further submits that although the revisionist was
named in the FIR as accused no. 2, but upon conclusion of the
statutory investigation, the Investigating Officer found the
allegations against him to be false and accordingly exonerated
him from the case. It is contended that the conclusion of
exonerating the revisionist was arrived at on the basis of the
statements of the prosecutrix recorded under Section 161 and
164 Cr.P.C. as well as the statements of other witnesses,
medical evidence, CCTV footage and other material collected
during the course of investigation.

6. To buttress his submissions, the learned counsel for the
revisionist has placed reliance upon the judgement of this
Court in Sanju and others v. State of U.P. and another,
[2024 (127) ACC 791] and the judgement of Supreme Court in
Aarif and others v. The State of Rajasthan and another,
2024 0 AIR (SC) (Cri) 34. In Sanju (supra) in paragraph nos.
36, 37, 38 and 39, it has been held:

     "36. Whereas Hon'ble Supreme Court in Brijendra Singh
     Meena v. State of Rajasthan and others (supra) held in
     paragraph 13 of the judgement that the 'evidence' herein
     means the material that is brought before the Court during
     trial. Insofar as the material/evidence collected by the I.O. at
     the stage of inquiry is concerned, it can be utilized for
     corroboration and to support the evidence recorded by the
     Court to invoke the power under Section 319 Cr.P.C.

     37. Hon'ble Supreme Court also held in Brijendra Singh's
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case that powers of the Court to proceed under Section 319
Cr.P.C. even against those persons who are not arraigned as
accused, cannot be disputed. This provision is meant to
achieve the objective that real culprit should not get away
unpunished. As Section 319 Cr.P.C. springs out of a legal
maxim "judge is condemned when guilty is acquitted" and
this doctrine must be used as a beacon light while explaining
the ambit and spirit underlying the enactment of Section 319
Cr.P.C. 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 the real culprits as an accused, the
Court is not powerless in calling the said accused to face
trial. 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.

38. The Hon'ble Apex Court observed that in a case like the
present where plethora of evidence was collected by the
Investigating Officer 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 much stronger evidence than mere possibility of
their (appellants), complicity has come on record. There is
no satisfaction of this nature. The police on investigation
revealed that the statement of these persons regarding the
presence of the appellants at the place of occurrence was
doubtful and did no inspire confidence, in view of the
documentary and other evidence collected during the
investigation, which depicted another story and clinchingly
showed that appellants plea of alibi was correct.

39. With foregoing submissions at Bar and discussion, this
Court is of the considered opinion that the learned court
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                            4


    below has committed legal error while ignoring all together
    the course of investigation, the reason behind exoneration of
    the revisionists and filing of charge-sheet against a new set
    of accused persons on the basis of evidence collected during
    investigation. Although the evidence adduced during inquiry
    or trial is envisaged as "evidence" under Section 319 Cr.P.C.
    as settled in Constitutional Bench Judgement the Hon'ble
    Apex Court in Hardeep Singh v. State of Punjab and others
    (supra) but in subsequent judgement in Brijendra Singh and
    others v. State of Rajasthan (supra) the Hon'ble Apex Court
    held that the evidence collected by I.O. at the stage of
    investigation should also be looked into as the same may be
    utilized for corroboration and to support the evidence
    recorded by the Court to invoke the power under Section 319
    Cr.P.C. The impugned order is not sustainable under law
    and deserves to be set-aside."

7. The Supreme Court in Aarif (supra) in paragraph no. 6 of
the report it has been held:

    "6. Regarding the extent and degree of inquiry required for
    deciding an application under Section 319 of Cr.P.C. the
    decision of the Constitution Bench of this Court in the case of
    Hardeep Singh v. State of Punjab, (2014 3 SCC 92 will be
    relevant. In para 95 of the said judgment, it is stated thus:

          "95. At the time of taking congnizance, the court
          has to see whether a prima facie case is made
          out to proceed against the accused. Under
          Section 319 Cr.P.C. though the test of prima
          facie case is the same, the degree of satisfaction
          that is required is much stricter. A two judge
          Bench of this Court in Vikas vs. State of
          Rajasthan, (2014) 3 SCC 321: (2013) 11 Scale
          23, held that on the objective satisfaction of the
          Court    a   person    may    be    "arrested"    or
          "summoned" as the circumstances of the case
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          may require, if it appears from the evidence that
          any such person not being the accused has
          committed an offence for which such person
          could be tried together with the already
          arraigned accused persons."

                                      (emphasis supplied)

8. In light of the judgements referred above, it has been argued
that the Trial Court was duty bound to consider not only the
evidence adduced before it but also the material collected by
the Investigating Officer during investigation. However, the
Trial Court failed to take into account such material and
proceeded to pass the impugned order. Therefore, the
impugned order is liable to be set aside.

9. Per contra, the learned A.G.A. vehemently opposed the
submissions of the learned counsel for revisionist but could not
dislodge the factual and legal arguments of the learned counsel
for the revisionist.

10. Having heard the learned counsel for parties and upon
consideration of the rival submissions as noted herein-above
and the material available on record, this Court is of the view
that the Trial Court was obliged to consider the entire evidence,
whether produced before it or collected during investigation
while adjudicating the application under Section 319 Cr.P.C.
The failure to do so amounts to a material irregularity.
Accordingly, the impugned order cannot be sustained and is
liable to be set aside. The present revision, therefore, deserves
to be allowed.

11. Accordingly, the present Criminal Revision is allowed. The
impugned order dated 24.09.2024 passed in Sessions Trial No.
486 of 2023, State v. Shareef etc. (arising out of Case Crime
No.     479     of     2022),    under     Sections    323/34,
504/34,506/34,304/34 I.P.C., Police Station Nazibabad, District
Bijnor is hereby set aside.
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                                        12. The Trial Court concerned is directed to pass a fresh order,
                                        in accordance with law and after affording due opportunity of
                                        hearing to the parties and in view of the observations made
                                        herein-above.

                                        13. Let a copy of this order be communicated to the Trial Court
                                        concerned by the Registrar (Compliance).

                                        April 16, 2026
                                        Brijesh Maurya

                                                                            (Lakshmi Kant Shukla,J.)




Digitally signed by :-
BRIJESH KUMAR
High Court of Judicature at Allahabad