# Ajay Singh @ Kallu & others Revisionists v. State of U.P

- **Citation:** (2007) 1 ILRA 97
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-10
- **Case number:** Criminal Revision Defective No.500 of 2006
- **Bench:** Shiv Shanker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-singh-kallu-others-revisionists-v-state-of-u-p-40891
- **Pages:** 4

## Headnote

Code
of
Criminal
Procedure-S.319summoning order accused-not named in
F.I.R. during trial-after recording the
statements of P.W. I-regarding injury
caused
by
the
applicant
by
Axesupported by medical report prima-facie
case
made
out-objection
that
the
98 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
application
not
filed
by
the
prosecution/complainant-hence
the
prosecution
officer
can
not
move
application
suo
motu-held-not
sustainable-session judge committed no
error-can not be interfered.

Held: Para 13

Statement
of
PW-1
Balikaran
was
recorded by the trial court, wherein he
has specifically stated that Kallu @ Ajay,
who is the revisionist caused the sharp
edged weapon injury by kulahari i.e, axe.
Therefore, he is named in the version of
FIT which is prima facie corroborated by
the
statement
of
PW-1
Balikaran
regarding
the
role
of
the
present
revisionist and it is also supported by the
medical report as he also sustained the
sharp edged weapon injury. Therefore,
learned court below has rightly deemed
the prima facie case against the accusedrevisionist for summoning him under
section 319 Cr.P.C. and, if this evidence
is not rebutted on behalf of the accused,
he may be convicted.
Case law discussed:
AIR 2006 SC-415
AIR 2000 SC-1127
1999 Cr.L.J.-315
2005 (51) ACC-406

## Text

1 All] Ajai Singh @ Kallu and others V. State of U.P.
97
aware of the pendency of yet another bail
application
filed
by
the
accused.
Immediately two days thereafter the
accused moved another single Judge of
the High Court, who directed that the
accused be enlarged on bail for a period
of two months on his furnishing security
in the sum of Rs.10,000/= with one surety
on certain terms and conditions. Between
the two orders there was a gap of only
two days and it was nobody's case that
during those two days drastic changes
had taken place necessitating the release
of the accused on bail.
Held, the order granting bail was not
proper and liable to be set aside. Judicial
discipline,
propriety
and
comity
demanded that the order granting bail
should not have been passed reversing all
earlier orders including the one rendered
by the single Judge of the same High
Court only a couple of days before, in the
absence of any substantial change in the
fact situation. In such cases it is necessary
to act with restraint and circumspection
so that the process of the Court is not
abused by a litigant and an impression
does not gain ground that the litigant has
either successfully avoided one Judge or
selected another to secure an order,
which had hitherto eluded him. In such a
situation the proper course, is to direct
that the matter be placed before the same
Judge who disposed of the earlier
applications.
Such
a
practice
or
convention would prevent abuse of the
process of court inasmuch as it will
prevent an impression being created that
a litigant is avoiding or selecting a court
to secure an order to his liking. Such a
practice would also discourage the filing
of successive bail applications without
change of circumstances, such a practice
if adopted would be conducive to judicial
discipline and would also save the
Court's time as a Judge familiar with the
facts would be able to dispose of the
subsequent application. It will also result
in consistency."

12. In view of the above position of
law and the circumstances of the case this
is not a fit case in which Second Bail
Application moved by Nipendra be
allowed.

13. It is a broad daylight occurrence.
FIR was promptly lodged and applicant
was named in the FIR. He is the main
accused of the crime in murder of Vimal
Kumar. Therefore, the Court does not find
it appropriate to enlarge applicant on bail.
The Second Bail Application for bail is
rejected.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.08.2006

BEFORE
THE HON'BLE SHIV SHANKER, J.

Criminal Revision Defective No.500 of
2006

Ajay Singh @ Kallu & others ...Revisionists
Versus
State of U.P.

...Opposite Party

Counsel for the Revisionists:
Sri Indra Lal Yadav
Sri Prem Prakash

Counsel for the Opposite Party:
A.G.A.

Code
of
Criminal
Procedure-S.319summoning order accused-not named in
F.I.R. during trial-after recording the
statements of P.W. I-regarding injury
caused
by
the
applicant
by
Axesupported by medical report prima-facie
case
made
out-objection
that
the
98 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
application
not
filed
by
the
prosecution/complainant-hence
the
prosecution
officer
can
not
move
application
suo
motu-held-not
sustainable-session judge committed no
error-can not be interfered.

Held: Para 13

Statement
of
PW-1
Balikaran
was
recorded by the trial court, wherein he
has specifically stated that Kallu @ Ajay,
who is the revisionist caused the sharp
edged weapon injury by kulahari i.e, axe.
Therefore, he is named in the version of
FIT which is prima facie corroborated by
the
statement
of
PW-1
Balikaran
regarding
the
role
of
the
present
revisionist and it is also supported by the
medical report as he also sustained the
sharp edged weapon injury. Therefore,
learned court below has rightly deemed
the prima facie case against the accusedrevisionist for summoning him under
section 319 Cr.P.C. and, if this evidence
is not rebutted on behalf of the accused,
he may be convicted.
Case law discussed:
AIR 2006 SC-415
AIR 2000 SC-1127
1999 Cr.L.J.-315
2005 (51) ACC-406

(Delivered by Hon'ble Shiv Shanker. J.)

1. This revision has been preferred
against the impugned judgment and order
dated 03-04-2006 passed in Session Trial
No. 343 of 2005 (State of UP Vs.
Ramanand & others), under sections 323,
324, 308 read with section 34 and 504,
I.P.C. by Additional Sessions Judge (Fast
Track Court No. 24) whereby the
application moved by the prosecution
under section 319 of Criminal Procedure
Core against the revisionists was allowed.

2. Brief facts, giving rise to this
revision, are that in Session Trial No. 343
of 2005 the accused persons Ramanand
and others are facing trial before the
Sessions Judge for the charges under
sections 323,324,308/34 and 504 I.P.C..

3. After framing the charge, the
statement
of
PW-1
Balikaran
was
recorded. Thereafter, the prosecution has
moved an application under section 319
Cr.P.C. to summon the accused Kallu @
Ajay, against whom the charge-sheet was
not filed and case was not committed,
which was allowed. Feeling aggrieved by
it, this revision has been filed.

4. Heard the arguments of learned
Senior
counsel
appearing
for
the
revisionists and learned A.G.A..

5. It is contended on behalf of the
revisionists that application under section
319 Cr.P.C. was not moved by the
complainant of this case and District
Government Counsel (Criminal) has not
obtained any instructions or direction on
behalf of the State to move such
application and this is not the duty of the
State counsel according to the Legal
Remembrancer Manual 7.20. Therefore,
he was not empowered to move the
application under section 319 Cr.P.C.
However, it was allowed by committing
the error of law by the concerned trial
court.

6. This contention has no force.
There is the latest pronouncement in the
case of S.K. Shukla Vs. State of UP, AIR
(2006 S.C.), 415, wherein it has been
observed that for the withdrawal of the
prosecution under section 321 Cr.P.C.,
Public Prosecutor cannot act on dictates
of State Government. He has to act
objectively being officer of Court. Courts
are also free to assess whether prima facie
case is made out or not. This latest
1 All] Ajai Singh @ Kallu and others V. State of U.P.
99
pronouncement is fully applicable in the
case in hand and the contention of the
learned counsel for the revisionists has no
force.

7. It is further contended that though
the revisionist no. 1 is named in the FIR
but the charge-sheet was not filed against
him. A Final report filed against him was
accepted by the Court.

8. In these circumstances, they
cannot be summoned by the Court on the
basis of principle of estoppel. Therefore,
the impugned order is liable to be
quashed.

9. This contention has also no force.
While exercising the power under section
319 of Criminal Procedure Code it has to
be seen or considered whether the prima
facie case is made out on the basis of the
evidence recorded by the Trial Court after
framing the charge against the accused.
At this stage, principle of estoppel will
not be applicable according to Section
300 Cr.P.C.

10. It is further contended that the
copy of the application was not given to
the counsel of the accused at the time of
considering the application under section
319 Cr.P.C. by the trial court. This
argument has also no force as the
application was not moved against the
accused, who were facing the trial.
Therefore, there was no locus standi to
file the objection against the application.
It is further contended that there was no
case against the revisionists and accused
could only be summoned under section
319 Cr.P.C., if the evidence is available
which is sufficient for conviction. In the
present case, there was no sufficient
evidence on the basis of which conviction
could be made.

11. On the other hand, it is
submitted by learned A.G.A. that learned
court below has not committed any error
of law or incorrectness in passing the
impugned order.

12. Allegations made in the First
Information Report briefly are that on 2703-2002 at about 10:00 pm that Kallu @
Ajay accused on the exhortation of the coaccused Ramanand assaulted and inflicted
a sharp edged weapon injury on the head
of the injured Balikaran S/o Ram Lal and
one accused Lallan was also named in the
FIR. Injured sustained five injuries
including a blunt object and a sharp edged
weapon injury. Charge sheet was filed
against two accused Ramanand Yadav
and Lallan but charge-sheet was not filed
against the revisionist who was named in
the FIR.

13. Statement of PW-1 Balikaran
was recorded by the trial court, wherein
he has specifically stated that Kallu @
Ajay, who is the revisionist caused the
sharp edged weapon injury by kulahari
i.e, axe. Therefore, he is named in the
version of FIT which is prima facie
corroborated by the statement of PW-1
Balikaran regarding the role of the present
revisionist and it is also supported by the
medical report as he also sustained the
sharp edged weapon injury. Therefore,
learned court below has rightly deemed
the prima facie case against the accusedrevisionist for summoning him under
section 319 Cr.P.C. and, if this evidence
is not rebutted on behalf of the accused,
he may be convicted.
100 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
14. In these circumstances, I do not
find any force in the arguments advanced
on behalf of the revisionists.

15. So far as the pronouncement of
Hon'ble Apex Court in Michael Machado
and another Vs. Central Bureau of
Investigation and another, AIR 2000
S.C., 1127 is concerned, 54 witnesses had
been examined including their crossexamination. Therefore, it was held that
the de novo trial is not proper. In the
present case, statement of PW-1 is only
recorded.

16. The pronouncement in Mahesh
Chandra Misra and others Vs. State of
UP and others, 1999 Crl. L.J. 315 is also
not applicable in the present case as there
is direct evidence against the revisionists
and main role has been assigned to him in
the alleged occurrence.

17. Similar view has also been taken
in Ganga Prasad Mishra Vs. State of UP
and another 2005 (51) ACC 406.

18. In view of discussions made
above, I come to the conclusion that the
learned court below has not committed
any
error
of
law,
illegality
or
incorrectness in allowing the application
under section 319, Cr.P.C. against the
revisionist and it is not liable to be
interfered with.

19. Thus, this revision has no force
and is liable to be dismissed hence
dismissed. The impugned order passed by
the court below is hereby affirmed.
Revision Dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2006

BEFORE
THE HON'BLE SHIV SHANKER, J.

Criminal Revision No. 3974 of 2006

Balveer Prasad

...Revisionist
Versus
State of U.P. & others...Opposite parties

Counsel for the Revisionist:
Sri S.C. Tiwari

Counsel for the Opposite Parties:
Sri S.C. Pandey
A.G.A.

Code of Criminal Procedure-Compromise
Application-revisionist/Applicant
facing
Trail for offence under Section 407
I.P.C.-rejection by Session Judge-heldproper-offence
being
non
-
compoundable
under
section
320
Cr.P.C.-can not be settled on the basis of
compromise.

Held: Para 10 & 11

Therefore, the trial court could not
consider
the
offences
to
be
compoundable, which are not mentioned
under
section
320
of the
Criminal
Procedure Code.

In these circumstances, this criminal
revision has no force and is liable to be
dismissed. Consequently, this revision is
hereby dismissed.
Case law discussed:
ACC-200 Page-372
1999 ACC-372
1999 ACC (Vol. 38)-367

(Delivered by Hon'ble Shiv Shanker. J.)

1. This revision has been preferred
against
the
impugned
order
dated