# Ahamad Ali & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2022) 11 ILRA 949
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-20
- **Case number:** Criminal Revision No. 2622 of 2022
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahamad-ali-anr-revisionists-v-state-of-u-p-anr-47936
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Section 319 - Power to
proceed against other persons appearing
to be guilty of offence, Indian Penal
Code, 1860 - Section 302, 506 , The
Juvenile Justice (Care and Protection)
Act, 2015 - unamended Section 18 (new
section 23) - No joint proceedings of
child in conflict with law and person not
a child - juveniles in conflict with law
are to be tried and proceeded with by
the Juvenile Justice Board in accordance
with the provisions of the Act and the
other accused persons, who are not
juveniles, are to be tried by regular
court - Even Juvenile Justice Board in
exercise of the power conferred in
Section 319 Cr.P.C. for summoning the
additional accused may summon either
suo moto or an application filed by the
prosecution. (Para -22)
Application preferred by State under Section 319
Cr.P.C. - allowed by Juvenile Justice Board -
revisionists were summoned to stand trial -
revisionists at the time of alleged incident were
major - hence instant criminal revision -
question before Court - whether the Juvenile
Justice Board can use its powers under Section
319 of Cr.P.C. to summon the accused for trial.
(Para - 2,14,18)

HELD:- Power under Section 319 of the Cr.P.C.
can be exercised by the Juvenile Justice Board
and if the summoned accused is found to be not
a juvenile, his trial can be separated and such
person can be sent for trial to the regular court
of competent jurisdiction. No interference in
order passed by Juvenile Justice Board. Board
directed to proceed in accordance with law.
(Para -24,25)

Revision dismissed. (E-7)

## Text

11 All. Ahamad Ali & Anr. Vs. State of U.P. & Anr.
949
condition
that
whenever
personal
appearance of the victim is required before
the court concerned in case No. 307 of
2021, under Section 363, 366 IPC, police
station Patiyali, district Kasganj, she shall
produce her in court.
----------
(2022) 11 ILRA 949
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Revision No. 2622 of 2022

Ahamad Ali & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Sunil Kumar

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Section 319 - Power to
proceed against other persons appearing
to be guilty of offence, Indian Penal
Code, 1860 - Section 302, 506 , The
Juvenile Justice (Care and Protection)
Act, 2015 - unamended Section 18 (new
section 23) - No joint proceedings of
child in conflict with law and person not
a child - juveniles in conflict with law
are to be tried and proceeded with by
the Juvenile Justice Board in accordance
with the provisions of the Act and the
other accused persons, who are not
juveniles, are to be tried by regular
court - Even Juvenile Justice Board in
exercise of the power conferred in
Section 319 Cr.P.C. for summoning the
additional accused may summon either
suo moto or an application filed by the
prosecution. (Para -22)
Application preferred by State under Section 319
Cr.P.C. - allowed by Juvenile Justice Board -
revisionists were summoned to stand trial -
revisionists at the time of alleged incident were
major - hence instant criminal revision -
question before Court - whether the Juvenile
Justice Board can use its powers under Section
319 of Cr.P.C. to summon the accused for trial.
(Para - 2,14,18)

HELD:- Power under Section 319 of the Cr.P.C.
can be exercised by the Juvenile Justice Board
and if the summoned accused is found to be not
a juvenile, his trial can be separated and such
person can be sent for trial to the regular court
of competent jurisdiction. No interference in
order passed by Juvenile Justice Board. Board
directed to proceed in accordance with law.
(Para -24,25)

Revision dismissed. (E-7)

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Sunil Kumar, learned
counsel for the revisionists, Sri Mithilesh
Kumar, learned AGA for the State and
perused the record.

2. Instant criminal revision has been
preferred against the impugned order dated
26.05.2022 passed by the Juvenile Justice
Board, Bulandshahar in Criminal Case No.
140 of 2015 (State vs Saleem @ Julla)
arising out of Case Crime No.819 of 2015,
under Section 302, 506 IPC, Police Station-
Khurza
Nagar,
District
Bulandshahar,
whereby the application preferred by the
State under Section 319 Cr.P.C. dated
28.10.2021 was allowed by the Juvenile
Justice Board, Bulandshahar and the
revisionists were summoned to stand trial
under Sections 302, 506 IPC.

3. Factual matrix of the case is that
first information report was lodged on
13.08.2015 in Case Crime No. 819 of 2015,
950 INDIAN LAW REPORTS ALLAHABAD SERIES
under Sections 302, 506 IPC, Police Station
Khurza
Nagar,
District
Bulandshahar
against Saleem @ Julla, Mauseem and
Ahmad Ali by the complainant Buniyad
Khan.

4. Learned counsel for the revisionists
submits that accused Saleem @ Julla son of
Yaseen preferred an application before the
Juvenile Justice Board, Bulandshahar for
declaration as juvenile claiming himself of
16 years and 2 month on the date of
incident. After holding the prescribed
inquiry, the Juvenile Justice Board vide
order dated 01.09.2016 declared Saleem @
Julla as juvenile conflict.

5. The opposite party no.2 challenged
the order dated 01.09.2016 before the
sessions judge vide Juvenile Appeal No.
111 of 2016 (Buniyad Khan vs State of
U.P. and after adjudicating the aforesaid
appeal, the Sessions Judge, Bulandshahar
vide order dated 28.11.2016 rejected the
appeal.

6. Accused Saleem @ Julla was
enlarged on bail by the Sessions Judge,
Bulandshahar vide order dated 28.11.2016
passed in Criminal Appeal No.120 of 2016.

7. Investigation of the case was
concluded and the charge sheet dated
30.08.2015 bearing charge sheet No.368 of
2015 was filed against Saleem @ Julla
under Sections 302, 504 IPC. Further trial
of the case No.140 of 2015 (State vs
Saleem @ Julla) commenced before the
Juvenile Justice Board, Bulandshahar.
During the course of trial, PW 1 Buniyad
Khan, PW 2 Shakir Khan, PW 3 Harun
were examined and their deposition were
recorded before the trial court/Juvenile
Justice Board, Bulandshahar. The aforesaid
witnesses in their deposition stated the
complicity of the revisionists in the
commission of offence.

8. He next submits that an application
dated 28.10.2021 under Section 319 Cr.P.C.
was filed before the trial court with a prayer
to summon the revisionists to face the trial
along with accused Saleem @ Julla. The
Juvenile Justice Board, Bulandshahar vide
impugned order dated 26.05.2022 allowed
the application preferred under Section 319
Cr.P.C. and summoned the revisionists to
face the trial under Sections 302, 506 IPC and
directed to place the file of the revisionists
before the competent court of jurisdiction and
directed for appearance of the revisionists
before
the
Chief
Judicial
Magistrate,
Bulandshahar on 7.06.2022.

9. Learned counsel for the revisionists
has vehemently challenged the impugned
order on the ground that Juvenile Justice
Board, Bulandshahar has not vested with any
jurisdiction to exercise the power conferred
under Section 319 Cr.P.C. and on this score,
the order passed by the Juvenile Justice
Board, Bulandshahar suffers from manifest
illegality and is liable to be set aside.

10. He further submits that order passed
by the Juvenile Justice Board is without
jurisdiction and is also suffered from
jurisdictional error. It has further been
submitted that the Juvenile Justice Board
does not have any power to summon any
accused under the provision of Code of
Criminal
Procedure.
Further
in
the
investigation,
no
involvement
of
the
revisionists were found by the investigating
officer, in the alleged offence, therefore, the
name of the revisionists were dropped from
the charge sheet.

11. He next added that the impugned
order passed by the Juvenile Justice Board
11 All. Ahamad Ali & Anr. Vs. State of U.P. & Anr.
951
is without jurisdiction and against settled
proposition of law. He further submits that
impugned order has been passed in
mechanical manner and the Juvenile Justice
Board failed to appreciate that no strong or
credible evidence available against the
revisionists to summon the revisionists to
face trial.

12. Per contra, learned AGA for the
State opposed the contention aforesaid and
submits that the impugned order passed by
the Juvenile Justice Board, Bulandshahar is
well within the jurisdiction and the Juvenile
Justice Board is competent to exercise the
power conferred under Section 319 Cr.P.C.
and the impugned order does not suffer
from any illegality or perversity and
therefore, the present revision is liable to be
dismissed.

13. Having heard learned counsel for
the respective parties and perused the
records .

14. The question, which has come for
consideration and determination by this
Court is, whether the Juvenile Justice
Board can exercise powers conferred under
Section 319 of Cr.P.C. and can summon the
accused to face the trial.

15. Before discussing the issue as
well as the submissions of the counsels, it
is necessary to reproduce the Section 103
of
the
Juvenile
Justice
(Care
and
Protection) Act, 2015. The Section 103 is
quoted hereinbelow;

Section 103 : Procedure in
inquiries, appeals and revision proceedings
(1) Save as otherwise expressly provided by
this Act, a Committee or a Board while
holding any inquiry under any of the
provisions of this Act, shall follow such
procedure as may be prescribed and
subject thereto, shall follow, as far as may
be, the procedure laid down in the Code of
Criminal Procedure, 1973 (2 of 1974) for
trial of summons cases.

(2) Save as otherwise expressly
provided by or under this Act, the
procedure to be followed in hearing
appeals or revision proceedings under this
Act shall be, as far as practicable, in
accordance with the provisions of the Code
of Criminal Procedure, 1973 (2 of 1974).

16. In the present case, as discussed
above, the revisionists were named in the
FIR but after investigation their names
have been dropped from the array of the
accused and charge sheet was filed only
against
Saleem
@
Julla.
Thereafter,
cognizance was taken by the Juvenile
Justice Board and trial of the case was
commenced. During the course of trial, the
PW 1, PW 2 and PW 3 were examined and
their testimony were recorded before the
trial court. The witnesses named above in
the respective testimony have deposed the
complicity
and
involvement
of
the
revisionists in commission of offence of
murder.

17. After the deposition of PW 1, PW
2 and PW 3, an application dated
28.10.2021 under Section 319 Cr.P.C. was
preferred by the opposite party no.2 before
the Juvenile Justice Board and adjudicating
upon the aforesaid application, the Juvenile
Justice Board, Bulandshahar summoned the
accused to face the trial under Section 302,
506 IPC and since revisionists were major
hence their files were separated and was
ordered to place before the court of
competent jurisdiction and revisionists
were directed to appear before the Chief
Judicial
Magistrate,
Bulandshahar
on
07.06.2022.
952 INDIAN LAW REPORTS ALLAHABAD SERIES

18. It is admitted fact of the case that
the revisionists at the time of alleged
incident were major.

19.

Before
adverting
to
the
submissions of the counsels, it is necessary
to examine Section 4 of the Code, which
provides that all the offences under the
Indian Penal Code shall be investigated,
inquired into, tried and otherwise dealt with
according to the provisions contained in the
code. Sub-section (2) of Section 4 further
provides that all offences under any other
law shall be investigated, inquired into,
tried and otherwise dealt with according to
the same provisions, but subject to any
enactment for the time being in force,
regulating
the
manner
or
place
of
investigating, inquiring into, trying or
otherwise dealing with such offences.
According to the provisions of the Code,
after registration of a case against the
accused,
the
police
is
required
to
investigate into the matter and submit the
charge sheet under Section 173 Cr.P.C.,
thereafter
the
competent
court
took
cognizance of the offence under Section
190(1)(b) of the Code and to proceed with
the case for trial where the materials
collected during investigation are to be
translated into legal evidence. Further,
according to the different provisions of the
Code, two or more persons, if they have
committed the same offence in the course
of the same transaction, are to be charged
and tried together. This is so provided
under Clause (a) of Section 223 of the
Code but during trial, if some incriminating
evidence comes against a person, who has
not been shown to be an accused in the
charge sheet submitted under Section 173
Cr.P.C., the trial court has been empowered
under Section 319 Cr.P.C. to summon the
said person as an additional accused. For
appreciation of the issue involved in this
case, Section 319 Cr.P.C. is reproduced,
herein, below:-

"Section 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
offence
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 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."

20. From bare perusal of the aforesaid
provision, it is clear that Section 319
Cr.P.C. empowers a Court to proceed
against any person not shown as an accused
if it appears from the evidence that such
person has also committed an offence for
which he can be tried together with the
11 All. Ahamad Ali & Anr. Vs. State of U.P. & Anr.
953
accused and in that very situation, in view
of the above provision, it is the duty of the
court to summon such person as an
accused, to face trial with the accused
already committed in that case. Therefore,
both justice and convenience require that
cognizance against the newly summoned
accused should be taken in the same case
and in the same manner as against the
accused.

21. As stated abovesaid, is the
situation, when a normal trial is conducted,
in a court but under the provisions of
Juvenile Justice (Care and Protection of
Children) Act, only the juvenile Justice
Board has been empowered to deal
exclusively with all proceedings under the
Act relating to the juvenile in conflict with
law. The unamended Section 18 (new
section 23) deals with a situation where a
juvenile has been charged with the offence
and is produced before a Board, the Board
shall hold the inquiry in accordance with
the provisions of the Act and make such
order in relation to the juvenile as it deems
fit. The relevant provision of the Act,
Section 18 (new section 23), is reproduced
hereinbelow for better appreciation of the
issue:

"Section 18.- No joint proceeding
of juvenile and person not a juvenile- (1)
Notwithstanding anything contained in
Section 223 of the Code of Criminal
Procedure, 1973 (2 of 1974) or in any
other law for the time being in force, no
juvenile shall be charged with or tried for
any offence together with a person who is
not a juvenile.

(2) If a juvenile is accused of an
offence for which under Section 223 of the
Code of Criminal Procedure, 1973 (2 of
1974) or any other law for the time being in
force, such juvenile and any person who is
not a juvenile would, but for the prohibition
contained in sub-section (1), have been
charged and tried together, the Board
taking cognizance of that offence shall
direct separate trials of the juvenile and the
other person."

Section 23 of the Juvenile
Justice (Care and Protection of Children)
Act, 2015 is reproduced hereinunder;

Section 23. No joint proceedings
of child in conflict with law and person not
a child.-: (1) Notwithstanding anything
contained in section 223 of the Code of
Criminal Procedure, 1973 (2 of 1974) or in
any other law for the time being in force,
there shall be no joint proceedings of a
child alleged to be in conflict with law, with
a person who is not a child.

(2) If during the inquiry by the
Board or by the Children's Court, the
person alleged to be in conflict with law is
found that he is not a child, such person
shall not be tried along with a child.

22. From the plain reading of subsection(1) of Section 23, it is clear that no
juvenile shall be charged with or tried for
any offence together with a person, who is
not a juvenile but sub-section (2) of the
said Act clearly stipulates that if a juvenile
is accused of an offence, such juvenile and
any person, who is not a juvenile would,
but for the prohibition contained in subsection (1) have been charged and tried
together, the Board taking cognizance of
that offence shall direct separate trials of
the juvenile and the other person. Thus, it is
clear from the aforesaid provision that
juveniles in conflict with law are to be tried
and proceeded with by the Juvenile Justice
Board in accordance with the provisions of
the Act and the other accused persons, who
are not juveniles, are to be tried by regular
court. Even if a juvenile and an accused,
who is not a juvenile, are required to be
954 INDIAN LAW REPORTS ALLAHABAD SERIES
charged and tried together, their case is also
to be separated and the other person, who is
not a juvenile, is required to be referred by
the Juvenile Justice Board to the regular
court having jurisdiction for his trial. In a
case where the accused is a juvenile, like in
the instant case, and the proceeding with
regard to the said offence is going on
before the Juvenile Justice Board, while
proceeding against the said accused, the
Juvenile Justice Board finds from the
evidence, which has come on record during
proceedings before it, that any person other
than the juvenile in conflict with law before
him is also involved in that very offence, in
my opinion, the Juvenile Justice board will
not be silent expectator or without power to
summon the said accused. Even Juvenile
Justice Board in exercise of the power
conferred in Section 319 Cr.P.C. for
summoning the additional accused may
summon either suo moto or an application
filed by the prosecution.

23. The summoning of the additional
accused is like taking cognizance of the
offence against an accused and then to
summon him to be charged with and tried
along with other accused. Obviously as in
the case at hand, additional accused, if
summoned on the basis of incriminating
evidence coming against him, is not a
juvenile, in view of Section 23 (2) of the
Act, 2015 (section 18(2) of old Act) he
cannot be charged and tried with by the
Juvenile Justice Board and his trial is to be
separated as required under sub-section (2)
of Section 23 of the Act.

24. Hence, after the submissions and
discussions
above,
this
court
is
of
considered opinion that the power under
Section 319 of the Cr.P.C. can be exercised
by the Juvenile Justice Board and if the
summoned accused is found to be not a
juvenile, his trial can be separated and such
person can be sent for trial to the regular
court of competent jurisdiction.

25. Resultantly, no ground is made
out to interfere in the order dated
26.05.2022 passed by Juvenile Justice
Board, Bulandshahar in Criminal Case No.
140 of 2015 (State vs Saleem @ Julla). The
Juvenile Justice Board is directed to
proceed in accordance with law.

26. The instant revision is devoid of
merit, and is hereby, dismissed.
----------
(2022) 11 ILRA 954
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.01.2020

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Crl. Revision No. 17 of 2009

Kashi Prasad ...Revisionist
Versus
State of U.P. ...Opp. Party

Counsel for the Revisionist:
S.P. Maurya, Arvind Kumar Srivastava, Nagendra
Mohan

Counsel for the Respondent:
G.A., Bal Keshwar Srivastava, Sushil Kumar
Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Indian Penal Code, 1860 -
Sections 147, 148, 149, 323, 324, 504,
506, 307 & 302 - prosecution owes a duty
to explain serious and grievous injury on
the accused during the course of incident
which gives rise to prosecution of the
accused - If the prosecution has failed to
explain the injuries on the accused, the
case of the prosecution becomes doubtful
as the prosecution has not come out with