Neutral Citation No. - 2025:AHC-LKO:16330 Court No. - 12 Case :- CRIMINAL REVISION No. - 631 of 2018 Revisionist :- Suraj Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Arun Kumar Shukla,Ambuj Prajapati,Rajendra Prasad Counsel for Opposite Party :- Govt. Advocate,B.K.Pathak,Sanjeev Shukla,Vinod Kumar Shukla Hon'ble Alok Mathur,J. 1. Heard Sri Rajendra Prasad, learned counsel for the revisionist and the A.G.A. for the State. 2. The revisionist is aggrieved by the order dated 26.4.2018 passed by District and Sessions Judge, Unnao thereby allowing application under Section 391 Cr.P.C. and summoning the accused in criminla trial No.48 of 2018. 3. It has been submitted that opposite party No.3 had lodged a first information report against the revisionist and four other persons in Case Crime No.1097 of 2017 under Sections 147, 302 and 201 IPC at police station Kotwali, District Unnao and after investigation of the said F.I.R. charge sheet was filed under Sections 306 IPC against 15 persons. The revisionist was not named in the F.I.R. nor was listed as an accused while filing the charge sheet. During the trial after conclusion of the testimony of Mohd. Ayub- opposite party No.2 and Shahna an application under Section 319 Cr.P.C. was filed which has been allowed vide order dated 26.4.2018. In the said statement of Mohd. Ayub, who is father of the deceased, it was stated that his son Amir Hussain was murdered in the night of 26/27.9.2017 and prior to that one Rahul Yadav had come to their house and taken his son away. When the son of the complainant did not return he called his son on mobile who said that he will return soon but he did not return till morning and certain persons told him that a body was lying near the railway track which has bent taken by the police and in the hospital it was informed that the body has been brought dead. In the statement it was stated that one day prior to the said incident i.e. on 25.9.2017 the deceased had an altercation with Rohit, Ankit, Rahul, Munshi and Suraj (revisionist) son of Ram Naresh. In his statement he has further stated that Muskan Verma was in some sort of relationship with his son and due to this relationship Rahul had came to his house and taken his son away and it is because of the said incident that his son has been done to death by Rohit, Ankit, Rahul, Munshi and Suraj. 4. From the aforesaid material it is evident that only subsequently another evidence was adduced by the complainant with regard to the fact that Rahul Yadav had accompanied his son on the date of the incident while the trial court has relied only upon the post mortem report according to which there were 13 injuries on the body of the deceased to come to the conclusion that the said injuries would have been caused by more than one person. A perusal of the statement of P.W. 1 and 2 also does not throw any light with regard to involvement of the revisionist in the said incident occurring on 26.9.2017. The only evidence even as per P.W. 1 and 2 is with regard to the fight which has ensued between the deceased and the other persons including the revisionist on 25.9.2017 which was one day prior to the incident. The judgement of Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab & Ors. (2014) 3 SCC 92 reads as under:- “89. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of 5 Page 56 judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence. 90. As held in Mohd. Shafi (Supra) and Harbhajan Singh (Supra), all that is required for the exercise of the power under Section 319 Cr.P.C. is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The pre-requisite for the exercise of this power is similar to the prima facie view which the magistrate must come to in order to take cognizance of the offence. Therefore, no straight-jacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence appearing in Examination-inChief, it can exercise the power under Section 319 Cr.P.C. and can proceed against such other person(s). It is essential to note that the Section also uses the words ‘such person could be tried’ instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and crossexamination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross- examination at all, for in light of sub-section 4 of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to cross examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of Examination-in-Chief, the Court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by Cross Examination, undoubtedly in itself, is an evidence.” 5. In view of the above, we find that the evidence on the basis of which the power under Section 319 Cr.P.C. can be exercised is that the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial on the basis of the evidence as emerged during the course of trial and such satisfaction is of higher degree than the satisfaction which is derived by the court at the time of framing of charges. We further find that the order dated 26.4.2018 was stayed by this Court on 9.1.2019 and accordingly the trial against the revisionist has remained stayed. 6. In light of the aforesaid, we find that the material available on record falls short of forming an opinion on the basis of which powers under Section 319 Cr.P.C. would be exercised and accordingly merely on the statement of P.W. 1 and 2 there is no clear evidence implicating the accused in the said offence and, therefore, we do not find any reason in allowing the application under Section 319 of Cr.P.C. by the trial court. 7. For the discussion aforesaid, the revision is allowed. The order dated 26.4.2018 as well as N.B.W. order dated 3.5.2018 passed by learned District and Sessions Judge, Unnao in S.T. No.48 of 2018 is set aside. 8. However, it is made clear that if during the trial any fresh evidence is adduced in pursuance of the application under Section 319 Cr.P.C., the same shall be considered by the court in accordance with law. (Alok Mathur, J.) Order Date :- 20.3.2025 RKM. Digitally signed by :- RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench