Allahabad High Court
Awadhesh Alias Awadhesh Nishad And 2 ... vs State Of U.P. And Another on 21 January, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:20689
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 374 of 2024
Awadhesh Alias Awadhesh Nishad And 2 Others
.....Revisionist(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Revisionist(s)
:
Nipun Singh, Vivek Chaturvedi
Counsel for Opposite Party(s)
:
Arvind Yadav, G.A.
Connected with
CRIMINAL REVISION No. - 358 of 2024
Deepu
.....Revisionist(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Revisionist(s)
:
Nipun Singh, Vivek Chaturvedi
Counsel for Opposite Party(s)
:
Arvind Yadav, G.A., Sapan Kumar Singh
Court No. - 84
HON'BLE CHAWAN PRAKASH, J.
1. Sri Nipun Singh, learned Senior Advocate assisted by Sri Vivek Chaturvedi, learned counsel for the revisionists, Sri Arvind Kumar Yadav, learned counsel for the opposite party and learned AGA for the State are present.
2. Both the revisions have been filed against the order dated 30.11.2023 passed by the learned Chief Judicial Magistrate, Gorakhpur in Case No. 7045/2022 (State Vs. Awadesh Nishad and others) arising out of Case Crime No. 42 of 2021, under Section 406 IPC, Police Station Chaurichaura, District-Gorakhpur, whereby the revisionists have been summoned under Section 376D of Cr.P.C. Since, both the revisions have been filed against the same order, hence, are being heard and decided by a common order.
3. The brief facts for filing of the present revision are that a first information report in Case Crime No. 42 of 2021, under Section 406 of the IPC was registered against Awadesh @ Awadesh Nishad, Rahul @ Rahul Gupta and Amandeep with an allegation that the first informant and her husband got information that Awadesh, Rahul were involved in the business of selling and purchasing of old vehicle on commission basis and relying upon the said information, the husband of the informant, namely Deepchandra contacted with Awadhesh, Rahul Gupta and given Rs. 16,50,000/- for purchasing Scorpio vehicle bearing registered no. MH-04-JP-1749, but despite taking the money, they have not transferred the said vehicle in favour of her husband and further it came into her knowledge that Awadhesh transferred the said vehicle in his own name and has further transferred the same in favour of his real brother Amandeep due to which they caused financial loss to her and her husband by grabbing the aforesaid money.
4. During investigation, the Investigation Officer recorded the statement of the prosecutrix under Section 161 Cr.P.C. on two occasions and also statement of her husband. After recording the statement of the prosecutrix under Section 161 Cr.P.C., Sections 354Kha and 506 of the IPC were added on 03.06.2021. The Statement of the prosecutrix was recorded under Section 164 Cr.P.C.Thereafter, a charge-sheet under Section 406 of the IPC was filed against Awadhesh, Rahul and Amandeep.
5. The Senior Superintendent of Police, District-Gorakhpur directed further investigation in the matter. The Investigation Officer recorded the statement of the husband of the prosecutrix on 06.10.2021 as well as the statements of Chandan Jaiswal and Chote Lal, who are a residents of the same village. Thereafter, a charge-sheet under Section 406 of the IPC was filed against Awadhesh, Rahul and Amandeep.
6. During trial, the statement of PW-1 was recorded. An application, under Section 319 Cr.P.C. was filed by the prosecution. The learned Chief Judicial Magistrate, Gorakhpur allowed the said application and summoned Awadhesh, Rahul, Amandeep, Deepu and Mahesh Rajwali to face trial under Section 376-D of IPC. Feeling aggrieved thereby, the present criminal revisions have been filed.
7. It is submitted on behalf of the revisionists Awadhesh, Rahul and Amandeep that a first information report, under Section 406 of IPC was registered against them, in which nothing was alleged that the revisionists molested or committed rape with the prosecutrix. The statement of the prosecutrix and her husband were recorded under Section 161 Cr.P.C., in which they repeated the version of the first information report. Thereafter, the second statement of prosecutrix was recorded under Section 161 Cr.P.C. and the statement was also recorded under Section 164 Cr.P.C. In her statement given under Section 164 Cr.P.C., she alleged that the revisionists committed rape with her. The Investigation Officer on the basis of investigation, filed a charge sheet under Section 406 IPC. The matter was sent for further investigation, but a charge sheet under 406 of IPC was filed. During trial, charges under Section 406 IPC were framed against the revisionists. After recording the statement of the prosecutrix witness and an application under Section 319 Cr.P.C. was filed to summon the revisionists to face trial under Section 376-D IPC.The said application was allowed by the learned Chief Judicial Magistrate by exercising power given under Section 319 Cr.P.C. The revisionists are already facing trial in the present case, they cannot be summoned by the learned Magistrate by exercising power given under Section 319 Cr.P.C. As per 319 Cr.P.C. that person could be summoned to face trial, who is not facing trial in that case. Hence, the revisionists Awadhesh, Rahul and Amandeep have wrongly summoned by the learned Magistrate by impugned order.
8. It is submitted on behalf of the revisionist, Deepu that he has not been named in the FIR itself. The FIR is registered against Awadhesh Nishad, Rahul Gupta and Amandeep, under Section 406 of IPC. No allegation of any kind has been made against him. From the perusal of FIR no allegation has been made against him and he has no concern with the alleged crime. He has no concern with the Vehicle No. MH04JP1749 and has no concern with sale or purchase of the alleged vehicle. The statements of the prosecutrix were recorded under Section 161 Cr.P.C. on two occasions. In these statements, she did not make any allegation against the revisionist, Deepu, and the allegations were made only against the co-accused, Rahul and Awadesh. Her statement under Section 164 Cr.P.C. was recorded after a period of four months, in which she stated that Deepak @ Deepu, along with the other co-accused, committed rape.
9. The said statement has been given afterthought, just to falsely implicate the accused in the present case. It is further submitted that the Investigation Officer also recorded the statements of the public person, who was residing in the same premises, in which they stated that no such offence has been committed. On the basis of said investigation, the Investigation Officer filed a charge sheet under Section 406 of IPC. Thereafter, the Superintendent of Police, Gorakhpur directed further investigation in the matter.
10. After a detailed investigation, the Investigating Officer filed a charge sheet under Section 406 of the IPC against Awadesh, Rahul, and Amandeep. No charge sheet was filed against Deepak @ Deepu. The informant, during her medical examination, refused to undergo medical examination, which also indicates that no offence of rape was committed upon her. During the course of trial, after recording the statement of PW-1, an application under Section 319 Cr.P.C. was filed by the prosecution.
11. The learned Magistrate allowed the said application. This order has been passed against the settled principle of law. It is further submitted that at the time of passing an order on an application under Section 319 Cr.P.C., the learned Court is required to form an opinion that more than a prima facie case is made out against the proposed accused. In the present case, no prima facie case is made out against the accused on the basis of evidence available on the record. There are major contradictions in examination-in-chief and cross-examination of PW-1. It is further submitted that on 31.08.2016, the co-accused Awadhesh has purchased his land in favour of his wife namely Renu from one Ram Pyare, who is real brother-in-law of husband of the informant, but the said Ram Pyare in collusion with first informant, her husband and other family members committed fraud and executed a sale deed by fabricating false documents due to which an FIR No. 345/2021 was lodged by the wife of co-accused Awadhesh on 19.09.2021. After investigation, the Investigation Officer submitted a charge sheet on 01.07.2023 under Sections 420, 323, 504, 506 & 406 of the IPC.
12. Another FIR, being Case Crime No. 481 of 2022 was lodged by the wife of co-accused Awadhesh against the husband of first informant and her other family members. After investigation, a charge sheet in the said case was submitted on 20.11.2022. The husband, brother-in-law, and other family members of the first informant are history-sheeters of the concerned police station against whom more than 30 criminal cases have been registered. The present case has been registered just as a counter blast and the prosecutrix has made an improvements in her statement given under Section 164 Cr.P.C. just to falsely implicate all the revisionists for exerting pressure in the criminal cases registered against the husband of the informant. The learned Chief Judicial Magistrate has committed a gross error of law and has exceeded the powers given under Section 319 Cr.P.C. by summoning the revisionists under Section 376-D IPC, accordingly the impugned order is liable to be set aside.
13. Per contra, it is submitted that an application under Section 319 Cr.P.C. was filed by the prosecutrix for summoning Awadhesh, Rahul, Amandeep, Deepu and Mahesh Rajwali to face trial under Section 376-D IPC. The said application has been allowed by the learned Chief Judicial Magistrate, Gorakhpur. A first information report under Section 406 IPC was registered against Awadhesh, Rahul, and Amandeep. The statement of the prosecutrix was recorded under Section 161 Cr.P.C. on two occasions, and thereafter her statement was recorded under Section 164 Cr.P.C. In the FIR as well as in her statements given under Section 161 Cr.PC., she did not state anything that the accused persons had committed rape upon her just to avoid herself from public shame. The investigation Officer has filed a charge sheet, under Section 406 of IPC against Awadhesh, Rahul and Amandeep against the evidence available on the record.
14. It is also submitted that accused Awadhesh, Rahul and Amandeep are facing trial before the learned Magistrate and they have been wrongly summoned under Section 319 Cr.P.C. and have no objection, if the order passed under Section 319 Cr.P.C. against Awadhesh, Rahul and Amandeep is set aside. It is further submitted that the learned Chief Judicial Magistrate has rightly summoned the revisionist Deepu to face trial under Section 376-D IPC, because opposite party no. 2, in her statement given under Section 164 Cr.P.C. has specifically implicated him. Therefore, the summoning order, insofar as it relates to Deepu is liable to be upheld.
15. As per the facts of this case, the first information report under Section 406 of IPC was registered at Police Station-Chauri Chaura, District-Gorakhpur in Case Crime No. 42 of 2021 against Awadhesh, Nishad and Rahul with an allegation that the first informant and her husband got information that Awadesh, Rahul were involved in the business of selling and purchasing of old vehicles on commission basis. Relying upon the said information, the husband of the informant, namely Deepchandra contacted with Awadhesh, Nishad and Rahul Gupta @ Rahul and given Rs. 16,50,000/- for the purchase of a Scorpio vehicle registered as MH04JP1749. It is further alleged that despite receiving the aforesaid money, the accused did not transfer the said vehicle in favour of her husband, and further it came to her knowledge that Awadhesh had transferred the said vehicle in his own name and later further transferred the same in favour of his real brother Amandeep due to which they caused financial loss to the informant and her husband by grabbing the said money. The statement of the prosecutrix was recorded under Section 161 Cr.P.C. on two occasions and thereafter her statement was recorded under Section 164 Cr.P.C. The Investigation Officer filed a charge sheet under Section 406 of Cr.P.C. against Awadhesh, Rahul @ Rahul Gupta and Amandeep.
16. The revisionists Awadhesh @ Awadhesh Nishad, Rahul @ Rahul Gupta and Amandeep are facing trial as accused persons, against whom charges under Section 406 of IPC have been framed. The statement of PW-1 was recorded during trial, and thereafter an application under Section 319 Cr.P.C. was filed. The learned Chief Judicial Magistrate allowed the said application and summoned Awadhesh, Rahul, Amandeep, Deepu and Mahesh Rajwali to face trial under Section 376-D of IPC.
17. Section 319 of the Cr.P.C. empowers the Court to proceed against other persons appearing to be guilty of an offence. The relevant provision is reproduced below:-
"319. Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offfence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
18. As per the provisions of Section 319 Cr.P.C., during the course of an inquiry or any trial of an office, if it appears from the evidence that any person not being an accused in the case, has committed an offence which could be tried together with the accused, the Court may proceed against such person for the offence, which appears to have been committed.
19. It means by exercising power given under Section 319 Cr.P.C., the Court can summon any person other than the person, who are facing trial. In the present case, the charge sheet against Awadesh, Rahul and Amandeep was filed under Section 406 of IPC. They are facing trial before the Court and they cannot be summoned by the learned Court by exercising power given under Section 319 Cr.P.C. Hence, as far as the impugned order dated 30.11.2023 relating to summoning of Awadesh, Rahul, Amandeep under Section 376D of IPC is concerned is liable to be set aside on this point itself.
20. As far as, the order against the accused Deepu to face trial under Section 376D IPC is concerned, it is relevant to mention that the name of the accused is not mentioned in the first information report. In other words, not a single allegation has been alleged against this accused in the first information report. The first information report has been lodged against Awadesh @ Nishad, Rahul Gupta and Amandeep under Section 406 of the IPC.
21. The statement of the prosecutrix was recorded under Section 161 Cr.P.C. On 2.03.2021, the Investigation Officer received a written statement from the first informant, which was sent by first informant to Senior Superintendent of Police in which she has reiterated the version of FIR and has developed in her story that on 28.01.2021 at about 2:00 pm, when she was alone at her home, the co-accused Awadhesh and Rahul came there and molested her, additionally stating that if she makes physical relations with them, then they will transfer the vehicle in question in favour of her husband. In this statement nothing has been said about Deepu that he has molested the opposite party no. 2 and not a single word has been mentioned about committing of the rape. The Investigation Officer recorded the statement of husband of the informant namely Deepchandra in which he has reiterated the version of the FIR and has not alleged any allegation of molestation or attempt of rape against Deepu.
22. As per the record, the Investigation Officer again recorded a Second statement of the informant, in which she has stated that co-accused persons used to call her having dirty conversations and it has further alleged that co-accused person has molested her and tried to commit rape at her home. The statement of the prosecutrix was recorded under Section 164 Cr.P.C., in which she supported the version of FIR and further stated that the accused Deepu and along with other co-accused persons had committed rape upon her at her home. The Investigation Officer, after a detailed investigation filed a charge sheet under Section 406 of the IPC against Awadhesh, Rahul, Amandeep and no charge sheet was filed against Deepu. During the trial, the statement of PW-1 recorded, in which she has stated that accused Deepu and other co-accused persons had committed rape upon her.
23. As per settled principle of law, the power given under Section 319 Cr.P.C. is an extraordinary power which should be exercised very carefully and a person can be summoned to face trial under this provision only if a prima facie case is made out against them. It is also well-settled that, while passing an order on an application filed under Section 319 Cr.P.C., the Court must consider the evidence adduced before it, and each application must be decided based on the facts of the particular case. In the present case, the name of the revisionist, Deepu does not appear in the FIR, in other words no allegation has been made against Deepu in the First Information Report, Even, in the statements given under Section 161 Cr.P.C. by the prosecutrix and her husband, nothing has been stated against the Deepu.
24. In her second statement under Section 161 Cr.P.C., she has stated that the accused Rahul Gupta and Awadhesh tried to molest her and attempted to commit rape. In this statement nothing has been said that the accused Deepak @ Deepu along with other co-accused persons had committed rape with the prosecurix. However, in her statement given under Section 164 Cr.P.C., she has improved her earlier two statements and has stated that Deepu along with other co-accused persons had committed rape upon her. During the trial PW-1 was also supported the version given under Section 164 Cr.P.C.
25. The statement of any witness given under Section 161 Cr.P.C. is used for contradiction, whereas the statement given by any witness under Section 164 Cr.P.C. is used for both contradiction and corroboration given on oath during trial. There are major contradictions in between the two statements of the victim given under Section 161 Cr.P.C. and statement given under Section 164 Cr.P.C. On the basis of these statements and other evidence collected by the Investigation Officer during investigation, it cannot be said more than a prima facie case under Section 376-D IPC is made out against the revisionist-Deepu.
26. Hence, the learned Chief Judicial Magistrate has committed an illegality by allowing the application filed under Section 319 Cr.P.C., and the impugned order dated 30.11.2023 is liable to be set aside. Accordingly, the impugned order dated 30.11.2023 is set aside.
27. Accordingly, both the revisions are allowed.
(Chawan Prakash,J.) January 21, 2026 Neetu