Shabir State of U.P. and Another v. Revisionist(s) .....Opposite Party(s) Counsel for Revisionist(s) Counsel for Opposite Party(s)

: A.C.Srivastava, Subham Singh : Bhavya Sahai, G.A. Court No. - 86 HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. Heard Sri A.C. Srivastava, learned counsel for the revisionist, Sri Bhavya Sahai, learned counsel for the opposite party no.2 and learned A.G.A. for the State.

2. Admit.

3. This criminal revision is directed against the impugned order dated 21.04.2025 passed by the Additional District & Session Judge, Court No.13, Meerut in Session Trial No.209 of 2024 (State Vs. Umar Daraj and others) arising out of Case Crime No.153 of 2023 under Section 302/34 IPC, Police Station Kharkhauda, District Meerut whereby the learned trial court allowed the application 51-Kha of the informant / prosecution moved under section 319 Cr.P.C. and the revisionist Shabir was summoned to face trial under Sections 147, 148, 149, 302 I.P.C. in the aforesaid session trial.

4. It is submitted by the learned counsel for the revisionist that the impugned order is wholly perverse and against the established legal principles. It is also submitted that from the perusal of the FIR as well as entire evidence on record it transpires that no offence is made out against the revisionist under Sections 147, 148, 149, 302 I.P.C. Even the investigating officer of the case during entire investigation could not find any evidence against the revisionist and that was the reason no charge sheet was submitted against him. It is further urged by the learned counsel for the revisionist that it is a case of false implication of the revisionist in the alleged crime. It is also submitted that the revisionist was named in the F.I.R. of this case but however during investigation his name was exonerated by the Investigating Officer and no charge-sheet was submitted against him as there was no evidence against him. However, the learned trial court summoned the revisionist to face trial 2 CRLR No. 2672 of 2025 in the aforesaid session trial which was already running in the Court of Additional District & Session Judge, Court No.13, Meerut. It is also submitted that at this juncture the revisionist is not contesting the matter on the point that there was absolutely no evidence against the present revisionist, rather he has objected only on the ground that the materials collected by the Investigating Officer during investigation has not been considered at all by the learned trial judge. It is further submitted that in view of the judgment passed by the Constitution Bench of Hon'ble Supreme Court in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92 and further in Brijendra Singh & Others Vs. State of Rajasthan, 2017 (7) SCC 706 the provisions of Section 319 Cr.P.C. do not exclude the materials collected by the Investigating Officer during investigation completely rather the materials coming before the court in the course of investigation can be used for corroboration of the evidence recorded in the court after commencement of trial. In fact the law never requires that the materials and evidence collected during investigation shall not be considered at all while disposing of the application under section 319 Cr.P.C. While passing the impugned order, the learned trial court did not consider the material and evidence collected by the Investigating Officer during investigation at all which was against the mandate of the Hon'ble Supreme Court. He has further referred the relevant provisions of Hardeep Singh (supra) and Brijendra Singh (supra) cases.

5. 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."

6. It is also notable that on the basis of the decisions promulgated by the Hon'ble Supreme 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 3 CRLR No. 2672 of 2025 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 the limitation that such material can be used for corroboration of the evidence recorded in the court after the trial commences.

7. The bone contention of learned counsel for the revisionist is that the trial court is bound to consider the evidence and material collected by the Investigating Officer during investigation. Although there is a legal embargo that the material coming before the court in the course of investigating / inquiry can be used for corroboration of the evidence recorded before the court after the trial commences for the sake of exercise of power under section 319 Cr.P.C. but not to consider the materials / evidence collected by the Investigating Officer during investigation makes a legal defect in the order passed by the court for not considering such materials completely.

8. Per contra, learned counsel for the the opposite party no.2 and learned A.G.A. have vehemently opposed the present revision. It has been submitted by the learned counsel for the opposite party no.2 that the learned trial court while passing the impugned order has considered the evidence collected by the Investigating Officer during investigation. In this connection, paragraph 14 of the impugned order has been referred by him which is as follows : "इस ्ऺकार उपरो्व सा्षी के बयानों के अवलोकन से यह िविदत होता है की उपरो्व सा्षी पी० डब्लू० ३ खैरुिनशा के न्यायालय के सम्ष िदये गए बयानों, उ्व सा्षी ्षारा ्ऺस्तुत तहरीर ्ऺदशर् क-4 व उ्व सा्षी के धारा 161 द०्ऺ०स० के बयानों में यामीन व सािबर की िविनि्श्ि भूिमका व संिलप्तता के सम्बन्ध में एकरूपता है। उ्व सा्षी के उपरो्व यामीन व सािबर के सम्बन्ध में िदए गए बयान उस स्तर के ्ऺतीत होते है, िजस स्तर के साष्य की अपे्षा माननीय सवरॏच्च न्यायालय ्षारा उपरो्व सम्मािनत िविध ्िवस्था में की गयी है।"

9. It is further contended that from the aforesaid piece of order it is apparently clear that the learned trial court has considered the evidence and material collected during investigation. He has also relied upon the decision of this Court passed in Chandra Shekhar Tiwari and 4 others Vs. State of U.P. and another in Criminal Revision No.3080 of 2025 dated 2.9.2025 wherein reliance has been placed on Satbir Singh Vs. Rajesh Kumar and others, (2025) 5 SCC 740, which is the latest law on the subject alongwith the law laid down by the Constitution Bench in Hardeep Singh (supra) and further in Brijendra Singh (supra) cases.

10. It is further contended that the learned trial court has also expressed its view in clear terms that there is strong evidence against the present revisionist and there are chances of his conviction in the instant case. He is liable to be tried alongwith the other accused persons for the offence under 4 CRLR No. 2672 of 2025 sections 147, 148, 149, 302 I.P.C. and the learned trial court committed no mistake in considering the active role of the revisionist in the commission of the alleged crime of murder and in holding that they must be tried with the other accused persons who are already facing trial. There is no infirmity, illegality or perversity in the impugned order warranting interference by this Court and revision deserves to be dismissed.

11. 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.

12. In the instant revision only a petty issue is involved. Both the sides are agreed on the point that the materials and evidence collected during investigation by the Investigating Officer shall also be considered by the Court while deciding the application under section 319 Cr.P.C. but the dispute is on the point as to whether while passing the present impugned order such material and evidence which was collected by the Investigating Officer during investigation was actually considered by the trial court or not.

13. If paragraph 14 of the impugned order dated 21.4.2025 is taken into consideration, it transpires that the trial court has not considered the entire evidence and materials collected by the Investigating Officer during investigation which was mandatory in the light of the decisions of the Hon'ble Supreme Court in Hardeep Singh (supra), Brijendra Singh (supra) and Satbir Singh (supra) cases. It has only considered the statement made by P.W.3 under section 161 Cr.P.C. and the written report moved at the police station by the informant and hence it is found that the mandatory directions given by the Hon'ble Supreme Court in the aforesaid decisions and also in other plethora of decisions have not been complied with by the learned trial court in letter and spirit. To consider the materials / evidence found during investigation by the Investigating Officer the court should not act in a cursory manner but it should be seriously scrutinized and considered in order to find out as to whether they are corroborative with the evidence recorded before the trial court.

14. In view of that, without going deep into the matter, this Court is of the view that the matter should be remanded back to the learned trial court to consider and scrutinize all the materials collected by the Investigating Officer during investigation thoroughly taking into consideration the spirit of the judicial pronouncements which were obligatory upon the learned Sessions Judge and only then a proper disposal of application under section 319 Cr.P.C. can be made. 5 CRLR No. 2672 of 2025

15. With the aforesaid discussion, the present criminal revision is allowed and the order dated 21.04.2025 passed by the Additional District & Session Judge, Court No.13, Meerut in Session Trial No.209 of 2024 (State Vs. Umar Daraj and others) arising out of Case Crime No.153 of 2023 under Section 302/34 IPC, Police Station Kharkhauda, District Meerut is set-aside and the matter is remanded back to the learned trial court to proceed with in the light of the discussion made here-in-above by this Court and to pass a fresh order in accordance with law. September 23, 2025 (Nalin Kumar Srivastava,J.) SANDEEP SHARMA High Court of Judicature at Allahabad

: A.C.Srivastava, Subham Singh : Bhavya Sahai, G.A. Court No. - 86 HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. Heard Sri A.C. Srivastava, learned counsel for the revisionist, Sri Bhavya Sahai, learned counsel for the opposite party no.2 and learned A.G.A. for the State.

2. Admit.

3. This criminal revision is directed against the impugned order dated 21.04.2025 passed by the Additional District & Session Judge, Court No.13, Meerut in Session Trial No.209 of 2024 (State Vs. Umar Daraj and others) arising out of Case Crime No.153 of 2023 under Section 302/34 IPC, Police Station Kharkhauda, District Meerut whereby the learned trial court allowed the application 51-Kha of the informant / prosecution moved under section 319 Cr.P.C. and the revisionist Shabir was summoned to face trial under Sections 147, 148, 149, 302 I.P.C. in the aforesaid session trial.

4. It is submitted by the learned counsel for the revisionist that the impugned order is wholly perverse and against the established legal principles. It is also submitted that from the perusal of the FIR as well as entire evidence on record it transpires that no offence is made out against the revisionist under Sections 147, 148, 149, 302 I.P.C. Even the investigating officer of the case during entire investigation could not find any evidence against the revisionist and that was the reason no charge sheet was submitted against him. It is further urged by the learned counsel for the revisionist that it is a case of false implication of the revisionist in the alleged crime. It is also submitted that the revisionist was named in the F.I.R. of this case but however during investigation his name was exonerated by the Investigating Officer and no charge-sheet was submitted against him as there was no evidence against him. However, the learned trial court summoned the revisionist to face trial 2 CRLR No. 2672 of 2025 in the aforesaid session trial which was already running in the Court of Additional District & Session Judge, Court No.13, Meerut. It is also submitted that at this juncture the revisionist is not contesting the matter on the point that there was absolutely no evidence against the present revisionist, rather he has objected only on the ground that the materials collected by the Investigating Officer during investigation has not been considered at all by the learned trial judge. It is further submitted that in view of the judgment passed by the Constitution Bench of Hon'ble Supreme Court in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92 and further in Brijendra Singh & Others Vs. State of Rajasthan, 2017 (7) SCC 706 the provisions of Section 319 Cr.P.C. do not exclude the materials collected by the Investigating Officer during investigation completely rather the materials coming before the court in the course of investigation can be used for corroboration of the evidence recorded in the court after commencement of trial. In fact the law never requires that the materials and evidence collected during investigation shall not be considered at all while disposing of the application under section 319 Cr.P.C. While passing the impugned order, the learned trial court did not consider the material and evidence collected by the Investigating Officer during investigation at all which was against the mandate of the Hon'ble Supreme Court. He has further referred the relevant provisions of Hardeep Singh (supra) and Brijendra Singh (supra) cases.

5. 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."

6. It is also notable that on the basis of the decisions promulgated by the Hon'ble Supreme 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 3 CRLR No. 2672 of 2025 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 the limitation that such material can be used for corroboration of the evidence recorded in the court after the trial commences.

7. The bone contention of learned counsel for the revisionist is that the trial court is bound to consider the evidence and material collected by the Investigating Officer during investigation. Although there is a legal embargo that the material coming before the court in the course of investigating / inquiry can be used for corroboration of the evidence recorded before the court after the trial commences for the sake of exercise of power under section 319 Cr.P.C. but not to consider the materials / evidence collected by the Investigating Officer during investigation makes a legal defect in the order passed by the court for not considering such materials completely.

8. Per contra, learned counsel for the the opposite party no.2 and learned A.G.A. have vehemently opposed the present revision. It has been submitted by the learned counsel for the opposite party no.2 that the learned trial court while passing the impugned order has considered the evidence collected by the Investigating Officer during investigation. In this connection, paragraph 14 of the impugned order has been referred by him which is as follows : "इस ्ऺकार उपरो्व सा्षी के बयानों के अवलोकन से यह िविदत होता है की उपरो्व सा्षी पी० डब्लू० ३ खैरुिनशा के न्यायालय के सम्ष िदये गए बयानों, उ्व सा्षी ्षारा ्ऺस्तुत तहरीर ्ऺदशर् क-4 व उ्व सा्षी के धारा 161 द०्ऺ०स० के बयानों में यामीन व सािबर की िविनि्श्ि भूिमका व संिलप्तता के सम्बन्ध में एकरूपता है। उ्व सा्षी के उपरो्व यामीन व सािबर के सम्बन्ध में िदए गए बयान उस स्तर के ्ऺतीत होते है, िजस स्तर के साष्य की अपे्षा माननीय सवरॏच्च न्यायालय ्षारा उपरो्व सम्मािनत िविध ्िवस्था में की गयी है।"

9. It is further contended that from the aforesaid piece of order it is apparently clear that the learned trial court has considered the evidence and material collected during investigation. He has also relied upon the decision of this Court passed in Chandra Shekhar Tiwari and 4 others Vs. State of U.P. and another in Criminal Revision No.3080 of 2025 dated 2.9.2025 wherein reliance has been placed on Satbir Singh Vs. Rajesh Kumar and others, (2025) 5 SCC 740, which is the latest law on the subject alongwith the law laid down by the Constitution Bench in Hardeep Singh (supra) and further in Brijendra Singh (supra) cases.

10. It is further contended that the learned trial court has also expressed its view in clear terms that there is strong evidence against the present revisionist and there are chances of his conviction in the instant case. He is liable to be tried alongwith the other accused persons for the offence under 4 CRLR No. 2672 of 2025 sections 147, 148, 149, 302 I.P.C. and the learned trial court committed no mistake in considering the active role of the revisionist in the commission of the alleged crime of murder and in holding that they must be tried with the other accused persons who are already facing trial. There is no infirmity, illegality or perversity in the impugned order warranting interference by this Court and revision deserves to be dismissed.

11. 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.

12. In the instant revision only a petty issue is involved. Both the sides are agreed on the point that the materials and evidence collected during investigation by the Investigating Officer shall also be considered by the Court while deciding the application under section 319 Cr.P.C. but the dispute is on the point as to whether while passing the present impugned order such material and evidence which was collected by the Investigating Officer during investigation was actually considered by the trial court or not.

13. If paragraph 14 of the impugned order dated 21.4.2025 is taken into consideration, it transpires that the trial court has not considered the entire evidence and materials collected by the Investigating Officer during investigation which was mandatory in the light of the decisions of the Hon'ble Supreme Court in Hardeep Singh (supra), Brijendra Singh (supra) and Satbir Singh (supra) cases. It has only considered the statement made by P.W.3 under section 161 Cr.P.C. and the written report moved at the police station by the informant and hence it is found that the mandatory directions given by the Hon'ble Supreme Court in the aforesaid decisions and also in other plethora of decisions have not been complied with by the learned trial court in letter and spirit. To consider the materials / evidence found during investigation by the Investigating Officer the court should not act in a cursory manner but it should be seriously scrutinized and considered in order to find out as to whether they are corroborative with the evidence recorded before the trial court.

14. In view of that, without going deep into the matter, this Court is of the view that the matter should be remanded back to the learned trial court to consider and scrutinize all the materials collected by the Investigating Officer during investigation thoroughly taking into consideration the spirit of the judicial pronouncements which were obligatory upon the learned Sessions Judge and only then a proper disposal of application under section 319 Cr.P.C. can be made. 5 CRLR No. 2672 of 2025

15. With the aforesaid discussion, the present criminal revision is allowed and the order dated 21.04.2025 passed by the Additional District & Session Judge, Court No.13, Meerut in Session Trial No.209 of 2024 (State Vs. Umar Daraj and others) arising out of Case Crime No.153 of 2023 under Section 302/34 IPC, Police Station Kharkhauda, District Meerut is set-aside and the matter is remanded back to the learned trial court to proceed with in the light of the discussion made here-in-above by this Court and to pass a fresh order in accordance with law. September 23, 2025 (Nalin Kumar Srivastava,J.) SANDEEP SHARMA High Court of Judicature at Allahabad