Smt. Rehana vs State Of U.P. And Another
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Allahabad High Court

Smt. Rehana vs State Of U.P. And Another on 13 October, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:182537
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
CRIMINAL REVISION No. - 1627 of 2023   
 
   Smt. Rehana    
 
  .....Revisionist(s)   
 
 Versus  
 
   State of U.P. and Another    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Revisionist(s)   
 
:   
 
S.M.Faraz I. Kazmi   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
Avinash Pandey, G.A.   
 
     
 
 Court No. - 92
 
   
 
 HON'BLE CHAWAN PRAKASH, J.      

1. Heard learned Counsel for the revisionist, learned A.G.A for the State as well as learned Counsel for opposite party no.2 and perused the record.

2. Admit.

3. The present criminal revision has been preferred against the order dated 17.03.2023, passed by the learned Additional District and Sessions Judge, Court No. 3, Saharanpur in Sessions Trial No. 1948 of 2021, State v. Farman and others, whereby an application under Section 319 Cr.P.C. moved by opposite party no.2 was allowed and the revisionist was summoned under Section 498A, 304B and Section 3/4 D.P.Act and under alternate charged under Section 302/34 I.P.C.

4. An F.I.R. as Crime No. 368 of 2021, under Section 498A, 304B I.P.C. and Section 3/4 D.P. Act was registered at P.S. Behat, District Saharanput against the three accused persons namely Farhan, Danish and Smt. Rehana alleging therein that marriage of the daughter of the informant was solemnized with Farhan about two and a half years ago. It is further alleged that in pursuance to the fulfilment of the demand of motorcycle and some cash, Farhan, Dansih and Smt. Rehana caused her to death. The F.I.R. was lodged on the same day i.e. on 25.07.2021. The post mortem of the deceased was conducted on 26.07.2010 at S.B.D. Hospital, Saharanpur.

5. The Investigating Officer recorded the statement of the witnesses under Section 161 Cr.P.C. and also recorded statement of few independent witnesses. Thereafter, he filed charge-sheet against accused Farhan and Danish but no charge-sheet was filed against the revisionist. The learned Magistrate proceed to take cognizance over the charge-sheet. During trial, learned Trial Court recorded the statement of P.W.-1 Akhtar and P.W.-2 Sahzad. After that, an application under Section 319 Cr.P.C. was filed by the informant to summon the revisionist Smt. Rehana for facing trial with the other accused person. The said application was allowed by the impugned order dated 17.03.2023. Hence, this revision has been filed.

6. It is submitted by the learned Counsel for the revisionist that the revisionist has not committed the alleged offence and has been falsely implicated in this case. She is a widow and living separately from the family of the deceased and her husband. It is further submitted that present case was registered by the father of the deceased on the general allegations. During investigation, the Investigating Officer recorded the statement of few independent witnesses namely Tahir, Abdul Qadir, Wajid, Latif, Smt. Mehraj, Nafeees Ahmad, Shahzad and Shabbir but all the witnesses have categorically refuted the allegation levelled against her. The Investigating Officer, after completion of investigation, found nothing against the revisionist and exonerated her name in the crime in question. Further, during post-mortem, the doctor did not notice any visible mark of injury all over the body of the deceased and could not opined about the cause of death , following which viscera was preserved for chemical analysis.

7. It is further submitted that during trial, statement of P.W.-1 Akhtar and P.W.-2 Sahzad were recorded. They supported the prosecution version, being relative of the deceased. Their statement cannot be relied upon as they are the interested witnesses. It is further submitted that it is settled principle of law that power under Section 319 Cr.P.C. is discretionary

8. It is further submitted that the learned Trial Court did not take into consideration the statement of independent witnesses recorded by the Investigating Officer during trial and passed the impugned order on the basis of statement of P.W.-1 Akhtar and P.W.-2 Sahzad and has committed illegality in passing the impugned order. It is further submitted that it is settled principle of law that power under Section 319 Cr.P.C. is discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of such case so warrant. This power could not be exercised merely because the Magistrate or the Sessions Judge is in opinion that some other persons may also be guilty of committing the offence.

9. Learned Counsel for the revisionist has placed reliance upon a judgment of Hon'ble Apex Court in Brijendra Singh and others v. State of Rajasthan, 2017 Lawsuit (SC) 484, and stated that it was the duty of the Court to take into consideration the statement of the witnesses recorded by the Investigating Officer during trial. Thus, the impugned order is against the settled provisions of law and the said order is liable to the set-aside.

10. Per contra, learned A.G.A. and learned Counsel for opposite party no.2 vehemently opposed the instant revision and has submitted that the revisionist has been named in the F.I.R. and she has active role in commission of offence. She is living in the same house with the other accused Danish, who is her son. Statement of P.W.-1 Akhtar and P.W.-2 Sahzad and other witnesses were recorded under Section 161 Cr.P.C. and also before the Trial Court and they have supported the version of the First Information Report. After recording their statement, learned Trial Court has allowed the application under Section 319 Cr.P.C. by a detailed order. The learned Trial Court has also expressed its view in clear terms that there is strong evidence against the present revisionist. The medical evidence corroborates the prosecution version. Learned Trial Court committed no mistake in considering the active role of the revisionist in the commission of the alleged crime, therefore, this revision may be dismissed.

11. It is further submitted by the learned A.G.A and learned counsel for opposite party no.2 that the Hon'ble Supreme Court in Brijendra Singh (supra) has expressed his views in paragraph nos. 14 an d 15 of the case and the facts are totally difference from the present case. In Brijendra Singh (supra) the accused has taken a plea of alibi but in the present case the accused was living in the same premises, thus, the learned Trial Court has not committed any illegality in passing the impugned order.

12. I have considered the rival submissions made by the learned Counsel for the parties and have gone through the entire record including the impugned order carefully.

13. The law prevailing over the subject has been well explained by the Constitution Bench of Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others, 2014 (85) ACC 313, wherein it was held that under Section 319 Cr.P.C. a person against whom it appears from the evidence that he, though not an accused in the case so far, could be tried together with the accused already facing the trial and in such event by virtue of Section 319 (4) Cr.P.C. the proceedings against such person shall be commenced afresh and it shall be presumed as if he had been an accused when the court took cognizance of the offence upon which the trial was commenced and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by the cross examination. The degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. is in fact much stronger evidence than mere probability of his complicity. Thus, 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 difference in the degree of satisfaction for summoning the original accused and the subsequent accused is on account of the fact that the trial may have already been commenced against the original accused and it is in the course of such trial that materials are discussed against the newly summoned accused, fresh summoning of the accused will result in delay of the trial, therefore, the decree of satisfaction for summoning the accused (original and subsequent) has to be different.

14. It was further clarified by the Hon'ble Apex Court that:

"117.6 A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh."

15. The Hon'be Apex Court in Y. Saraba Reddy Vs. Puthur Rami Reddy and Anr. (2007) 4 Supreme Court Cases 773 has put a caution over the power of the Court with reference to Section 319 Cr.P.C. by making an observation as extracted herein below-

"11. Power under Section 319 of the Code can be exercised by the court suo motu or on an application by someone including the accused already before it. If it is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier The word 'evidence' in Section 319 contemplates the evidence of witnesses given in court. Under sub-section (4)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced That would show that by virtue of sub-section (4)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned."

16. The aforesaid settled propositions of law leave no shadow of doubt that on the basis of the evidence before it during trial generally the sessions court is fully empowered and armed with competent jurisdiction over the issue of summoning the additional accused persons to face trial along with accused persons who were already been tried by it.

17. The aforesaid principle of law also echoed in the legal pronouncements of the Hon'ble Apex Court like, Shishupal Singh Vs. State of U.P. and Anr. (2019) 8 Supreme Court Cases 682, Babubhai Bhimabhai Bokiria and another Vs. State of Gujarat and others (2014) 5 SCC 568 (para 8), Sukhpal Singh Khaira Vs. State of Punjab (Criminal Appeal No. 885 of 2019 decided on 05.12.2022), Kallu Nat alias Mayank Kumar Nagar Vs. State of U.P. and Anr 2025 INSC 930 and so on.

18. In the case of Hardeep Singh (supra) the said issue was specifically explained in para 117.2 and 117.3:-

"Para- 117.2:- Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (i) Inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be pre-trial inquiry. Inquiry u/s 200, 201, 202 Cr.P.C., and u/s 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power u/s 319 Cr.P.C., and also to add an accused whose name has been shown in column 2 of the charge-sheet.

Para- 117.3:- In view of the above position the word "evidence" in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial."

19. Following the judicial pronouncement made by Hon'ble Apex Court in Hardeep Singh (supra), the issue in hand was also considered in the case of Brijendra Singh (supra) wherein the Hon'ble Apex Court pronounced that:-

"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 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record."

20. On the basis of the decisions promulgated by the Hon'ble Apex Court, the principle behind the provisions of Section 319 Cr.P.C. emerges out that the court proposes at one hand to see and consider the evidence recorded during trial but at the same time, the courts are duty bound to consider the material collected by the I.O. during investigation subject to limitation that such material can be used for corroboration of the evidence recorded in the court after the trial commences.

21. It transpires from the perusal of the record that F.I.R. bearing Crime No. 368 of 2021, was registered against the three accused persons namely Farhan, Danish and Smt. Rehana. During investigation, the Investigating Officer found no role of the revisionist int he commission of crime and he filed a charge sheet against Farhan and Dansih. During trial, statement of P.W.-1 Akhtar and P.W.-2 Sahzad were recorded and they supported the prosecution version. The main argument of the learned Counsel for the revisionist is that the Trial Court, at the time of passing of the impugned order, did not take into consideration the statement of independent witnesses whose statements were recorded under Section 161 Cr.P.C. and prays that the impugned order be set-aside on this ground itself.

22. It is relevant to mention here that the learned Trial Court while passing the impugned order has not taken into consideration the statement of the independent witnesses, who stated that there is no role of the revisionist in the case and has passed the impugned order on the basis of the statement of P.W.-1 Akhtar and P.W.-2 Sahzad recorded during trial.

23. It is relevant to mention here that it is settled principle of law that the Court, at the time of passing an order on application under Section 319 Cr.P.C., will take into consideration the statement of witnesses recorded under Section 161 Cr.P.C. and also the statement of witnesses recorded during trial. The statement of witnesses recorded during trial cannot be ignored. Though the learned Trial Court has not taken into consideration the statement of the independent witnesses but a perusal of the statement of P.W.-1 Akhtar and P.W.-2 Sahzad shows that they have supported the version of prosecution and they have clearly stated the role of the revisionist in the commission of crime. Hence, this argument has no force.

24. It is also relevant to mention here that co-accused Danish is son of the revisionist against whom charge-sheet has been filed. It shows that the revisionist was also residing in the same premises.

25. It is also relevant to mention here that the facts of Brijendra Singh (supra) is totally different from the facts of this case. In that case, a plea of alibi was taken by the accused persons but in the present case the revisionist has not taken any plea of alibi but she was living in the same house.

26. A perusal of the impugned order also reveals that the learned Trial Court has given and expressed his opinion that a case more than prima facie is made out against the revisionist and the learned trial Court has not committed any illegality in passing the impugned order. Hence, this revision is liable to be dismissed.

27. Accordingly, the revision is dismissed.

(Chawan Prakash,J.)

October 13, 2025

Vijay