HIGH COURT OF JUDICATURE AT ALLAHABAD Pradeep Kumar Dubey .....Revisionist(s)

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

Counsel for Revisionist(s) : Parveen Kumar Shukla Counsel for Opposite Party(s) : G.A.

Court No. - 87 HON'BLE ABDUL SHAHID, J.

1. Heard learned counsel for the revisionist and learned A.G.A. for the State. 2. The present criminal revision has been filed by the revisionist against the order dated 12.12.2025 passed by the learned Additional Sessions Judge/Special Judge, S.C./S.T. Act, Mirzapur, in Sessions Trial No. 07 of 2018 (State versus Yogesh Pandey and others), under Sections 302/34 I.P.C., arising out of Case Crime No. 279 of 2017, Police Station Kachhwa, District Mirzapur.

3. Learned counsel for the revisionist submits that the discharge application filed by the revisionist has been wrongly and illegally rejected by the learned trial court vide the impugned order dated 12.12.2025.

4. It is further submitted that the F.I.R. of the said offence was registered under Section 302 I.P.C. against four named persons, namely: (1) Yogesh Pandey, (2) Gauri Shankar Pandey, (3) Vipin Kumar Dubey, and (4) Pradeep Dubey (the present revisionist). In the F.I.R., the role of exhortation was assigned to the revisionist. After detailed investigation, a charge sheet was filed under Section 302 I.P.C. only against Yogesh Pandey, Gauri Shankar Pandey, and Vipin Kumar Dubey. No evidence was found against the revisionist, and hence no charge sheet was filed against him.

5. The revisionist/accused was summoned under Section 319 Cr.P.C. on the basis of the statements of P.W.-1, Rajesh Kumar Dubey, and P.W.-2, Arun Kumar Dubey. P.W.-1, in his deposition dated 09.07.2019, specified the presence and role of the revisionist, Pradeep Kumar Dubey, at the place of occurrence and attributed to him the role of exhortation. P.W.-2 also deposed as an eye-witness and corroborated the role of the revisionist in the incident. Thus, the ingredients of Section 319 Cr.P.C. stand satisfied as required by law.

6. It is held by Hon'ble Supreme Court in Asim Akhtar Versus The State of West Bengal and another, 2024 INSC 794 that complicity of any person sought to be arrayed as an accused can be decided with or without conducting cross-examination of the complainant and other prosecution witnesses and there is no mandate to decide the application under section 319 Cr.P.C. before cross examination of other witnesses. It is held by the Hon'ble Supreme Court in Hardeep Singh Versus State of Punjab, (2014) 3 SCC 92, that the word "evidence" used in section 319 Cr.P.C. indicates, the word "evidence" is limited to the evidence recorded during trial. The summoning of accused under section 319 Cr.P.C. is settled, that this power is an extraordinary power, which should be used sparingly with circumspection and while passing the summoning order under section 319 Cr.P.C. court must consider whether more than prima facie case made out, or not; mere prima facie case is not sufficient. It is held by Hon'ble Supreme court in Omi Versus State of M.P. (2025) 2 SCC 621, that trial court can add an individual as accused only on the basis of the evidence adduced before it and not on the basis of the materials available in the charge sheet or the case diary because such materials contained in the charge sheet or the case diary do not constitute evidence. It is held by the Hon'ble Supreme Court in Shiv Baran Versus State of U.P., 2025 SCC OnLine SC 1457 that trial court can exercise power to summon an additional accused under section 319 Cr.P.C. only on the basis of the evidence adduced before it and not any other material collected during investigation.

7. Learned counsel for the revisionist has further submitted that the eye- witnesses are doubtful, that there was no source of light, and that there are consistent contradictions in the statements recorded under Section 161 Cr.P.C. However, any such contradictions in statements under Section 161 Cr.P.C. are matters t