Ayush Sharma Alias Anshu Sharma and 2 Others vs State of U.P. and 6 Others

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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CRIMINAL REVISION No. - 843 of 2026

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Ayush Sharma Alias Anshu Sharma And 2 Others

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.....Revisionist(s)

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Versus State Of U.P. And 6 Others .....Opposite Party(s) Counsel for Revisionist(s) : Harish Kumar, Umesh Chandra Shukla Counsel for Opposite Party(s) : G.A. Court No. - 87

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HON'BLE ABDUL SHAHID, J.

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Heard Sri Amit Daga, learned Senior Counsel assisted by Sri Harish Kumar, learned counsel appearing for the revisionists and the learned AGA for the State.

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The present criminal revision has been preferred against the impugned order dated 17.12.2025, passed by the learned Additional Sessions Judge, Bijnor in Criminal Revision No. 158 of 2025 (CNR No. UPBJ010049982025) 'Mahendra Tyagi Vs. State of U.P. and others', arising out of Criminal Case No. 8563 of 2021 relating to case crime No. 564 of 2020, under Section 147, 323, 504, 506 IPC, Police Station Seohara, District Bijnor, whereby the revision preferred by the opposite party no.2/informant has been allowed and order dated 6.2.2025 passed by the learned Civil Judge (Junior Division) (FTC-1)/Judicial Magistrate, Court No.1, Bijnore in Criminal Case No. 8563 of 2021 (State Vs. Ashish Maheshwari and others) dismissing the application under Section 319 Cr.P.C. moved by the opposite party no.2 has been set aside.

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The genesis of the present case is that an application under Section 319 Cr.P.C. has been filed before the Civil Judge (Junior Division) (FTC-1)/Judicial Magistrate, Court No.1, Bijnor in Criminal Case No. 8563 of 2021 relating to case crime No. 564 of 2020, under Section 147, 323, 504, 506 IPC, Police Station Seohara, District Bijnor. The learned trial court has rejected the application of the complainant-Mahendra Tyagi under Section 319 Cr.P.C vide order dated 6.2.2025. Thereafter, against the said order, the complainant/opposite party no.2 has preferred a Criminal Revision No. 158 of 2025 before the learned Sessions Judge, Bijnor which is decided by the order impugned dated 17.12.2025 and the criminal revision was allowed and the learned trial court has been directed to pass a fresh order in light of the observations made in the body of the judgment.

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The revisionists being aggrieved by the said order has preferred the present criminal revision before this Court.

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Learned Senior Counsel appearing for the revisionists has vehemently submitted that the order passed by the learned trial court dated 6.2.2025 is purely legal and justifiable order. The finding recorded by the learned trial court is absolutely as per law. Learned counsel for the revisionists has further submitted that the order dated 17.12.2025, passed by the learned Sessions Judge, Bijnor in Criminal Revision No. 158 of 2025 is not legal because neither ingredients of Section 319 Cr.P.C. is made out nor compliance of Section 65B of the Evidence Act has been made. Hence, the finding recorded by the learned Sessions Judge is liable to be rejected and the order passed by the learned trial court dated 6.2.2025 be restored.

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There are two contradictory judgment on the question of law in the present matter have been passed, one by the learned Magistrate Court and another by learned Sessions Judge in exercise of power of revisional court. Whereas, the basic question involved is whether the ingredient of Section 319 Cr.P.C. is made out or not and whether provisions of Section 65B of Indian Evidence Act has been complied or not. That is major contradiction as submitted by the learned counsel for the revisionists.

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Learned Senior Counsel has further submitted that the pen drive which has been made basis/evidence for summoning the revisionists is not evidence or substantive evidence. Learned Senior Counsel has relied on the law laid down by the Hon'ble Supreme Court in Ravinder Singh @ Kaku Vs. State of Punjab (Criminal Appeal No. 1307 of 2019), where in paragraph nos. 21 and 22 held as under:-

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"21. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, Oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.

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22. To conclude, the tripod stand of Motive, Last Seen Theory and Recovery, that supported the conviction of A2 according to the High Court, is found to be nonconclusive and the evidence supporting the conviction of A2 is marred with inconsistencies and contradictions, thereby making it impossible to sustain a conviction solely on such circumstantial evidence."

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This law has been made by the Hon'ble Supreme Court where appeal had been preferred against the conviction under Section 302 read with Section 120B IPC, whereas in the present matter, the provisions of Section 319 and Section 65B of Evidence Act is involved at the stage of summoning of accused.

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Learned counsel for the revisionists has further relied on law laid down by the Hon'ble Supreme Court in the State By Karnataka Lokayukta Police Station Bengaluru Vs. M.R. Hiremath; 2019 INSC 611, which has been preferred against the

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judgement passed by the Karnataka High Court under Section 482 Cr.P.C, wherein the Karnataka High Court rejected the application of the respondent therein for discharge under Section 239 Cr.P.C. Learned counsel has drawn attention of the Court to paragraph nos. 22 and 23 of the said judgment which read as under:-

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"22 The High Court has in the present case erred on all the above counts. The High Court has erred in coming to the conclusion that in the absence of a certificate under Section 65B when the charge sheet was submitted, the prosecution was liable to fail and that the proceeding was required to be quashed at that stage. The High Court has evidently lost sight of the other material on which the prosecution sought to place reliance. Finally, no investigation as such commenced before the lodging of the first information report. The investigating officer had taken recourse to a preliminary inquiry. This was consistent with the decision in Lalita Kumari.

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23. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 of the CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan, adverting to the earlier decisions on the subject; this Court held:

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"29...At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

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The above law has been laid down by the Hon'ble Supreme Court in a criminal appeal arising out of Section 482 Cr.P.C. and wherein application for discharge has been decided under Section 239 Cr.P.C, whereas in the present matter, this Court is hearing criminal revision which is very limited jurisdiction to look only illegality, irregularity and jurisdictional error. The appreciation of facts and evidence under Section 239 Cr.P.C and thereafter wide power under Section 482 Cr.P.C. are entirely different which is required for consideration of application under Section 319 Cr.P.C.

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Learned counsel for the revisionists has vehemently relied on the judgment of Hon'ble Supreme Court that Section 65B of Indian Evidence Act and its admissibility as per law laid down by Hon'le Supreme Court in Anvar P.V. Vs. P.K. Basheer and others; (2014) 10 SCC 473 and he emphasized on paragraph no. 22 of the said judgment which is as follows:-

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"22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and b 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case², does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."

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The Hon'ble Supreme Court has further considered the judgment of Anvar P.V (supra) in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others; (2020) 7 SCC 1, where in paragraph no. 59 it has been observed as under:-

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"59. Subject to the caveat laid down in paras 52 and 56 above, the law laid down by these two High Courts has our concurrence. /So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted, and relied upon in evidence."

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Hence, in view of above, the certificate under Section 65B of Evidence Act would be produced at any stage of trial as per said law. Whereas, in the subject matter, the mater is subjudice only at the stage of summoning of accused persons under Section 319 Cr.P.C. So far as consideration of evidence at the stage of summoning under Section 319 Cr.P.C. is well defined by the Hon'ble Supreme Court in various cases.

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Learned A.G.A. opposed the revision and submitted that the impugned order has rightly been passed by the learned Sessions Judge. He relied on Section 319 Cr.P.C. which reads as under:-

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" Section 319 Cr.P.C. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of,

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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 offence which he appears to have committed."

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The Hon'ble Supreme Court has consistently held, and more particularly in the Constitution Bench judgment in Hardeep Singh Versus State of Punjab, (2014) 3 SCC 92, that the evidence recorded during trial can be considered for summoning an accused under Section 319 Cr.P.C.

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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 (supra), 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.

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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.

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It is settled law by the Constitution Bench in Hardeep Singh (supra) that evidence recorded before the trial court is the evidence which has to be considered for summoning of an accused under Section 319 Cr.P.C. The nature of the evidence has to be more than prima facie. The cross examination is even not necessary. If the evidence recorded during trial is of upto the extent that if unrebutted, it would lead their conviction, which is sufficient to summon the accused under Section 319 Cr.P.C.

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Hence, it is categorically clear that the matter in dispute that has to be decided in the present criminal revision is an application under Section 319 Cr.P.C in terms of the settled provisions of law as far as they are concerned under Section 319 Cr.P.C and Section 65B of Evidence Act, 1872.

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With these observation and findings made by this Court herein above, the impugned order dated 17.12.2025, passed by the learned Sessions Judge, Bijnor, is hereby merged into this order and modified accordingly. Learned trial court/Civil Judge (Junior Division) (FTC-1)/Judicial Magistrate, Court No.1, is directed to decide the application under Section 319 Cr.P.C afresh in accordance with law as stated hereinabove.

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With these findings and observations, the criminal revision is disposed of.

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February 19, 2026 sfa/

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(Abdul Shahid,J.)

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Digitally signed by :- SYED FAHEEM AHMAD High Court of Judicature at Allahabad

Ayush Sharma Alias Anshu Sharma and 2 Others v. State of U.P. and 6 Others

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