# Amar Singh and others v. State of U.P. and another

- **Citation:** (2007) 3 ILRA 753
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-19
- **Case number:** Civil Misc. Application No. 22382 of 2007
- **Bench:** R.K. Rastogi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-singh-and-others-v-state-of-u-p-and-another-41149
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 319Guide
lines
and
the
circumstancesexplained-for
exercise
power
under
Section 319.

Held: Para 12

In view of the above rulings of the
Hon'ble Apex Court the legal position
regarding summoning of any person as
accused u/s 319 Cr.P.C. can be summed
up as under:

## Text

3 All] Amar Singh and others V. State of U.P. and another
753
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2007

BEFORE
THE HON'BLE R.K. RASTOGI, J.

Civil Misc. Application No. 22382 of 2007

Amar Singh and others
...Applicants
Versus
State of U.P. and another ...Opposite Party

Counsel for the Applicants:
Sri S.K. Tiwari

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

Code of Criminal Procedure-Section 319Guide
lines
and
the
circumstancesexplained-for
exercise
power
under
Section 319.

Held: Para 12

In view of the above rulings of the
Hon'ble Apex Court the legal position
regarding summoning of any person as
accused u/s 319 Cr.P.C. can be summed
up as under:

1.
The power u/s 319 Cr.P.C. is not to
be exercised mechanically on the
ground that some evidence has
come on record implicating the
person sought to be made an
accused.
2.
There is no compelling duty on the
Court to proceed against those
persons against whom no charge
sheet has been submitted.
3.
The
power
u/s
319
Cr.P.C.
is
discretionary
and
should
be
exercised to achieve criminal justice
and the Court should not turn
against
another
person
simply
because it has come across some
evidence connecting that person
also with the offence. The court
should exercise judicial discretion in
the
matter
considering
all
the
relevant facts and circumstances.
4.
The Court must be satisfied that the
other person , who had not been
arrayed
as
accused,
had
also
participated in commission of the
offence.
5.
The
power
u/s
319
Cr.P.C.
is
extraordinary power conferred on
the court and this should be used
very sparingly if the compelling
reasons exist for taking cognizance
against
other
accused
persons
against whom no charge sheet has
been submitted.
6.
There must be reasonable prospect
of the case against the newly added
accused ending in his conviction for
the offence concerned and then only
that person should be summoned as
an accused otherwise the Court
should refrain from adding him as
an accused.
7.
The Court shall exercise a judicial
discretion taking into consideration
conspectus of the case including the
stage
at
which
the
trial
has
proceeded and the quantum of
evidence collected till the date and
time
spent
by
the
Court
for
collecting
such
evidence
while
passing the order of summoning the
person u/s 319 Cr.P.C.
8.
The
satisfaction
whether
there
exists likelihood of conviction of the
person to be summoned as accused
can be arrived at inter alia upon
cross examination of the witness
naming him and so the orders for
summoning a person as accused u/s
319 Cr.P.C. should be passed after
cross examination of the witness.
9.
The Court concerned may also take
into consideration other evidence
before
passing
an
order
for
summoning a person as an accused
u/s 319 Cr.P.C.
Case law discussed:
2000 SCC (Crl.) 609
1983 (2) ACC-50 (SC)
2006 (1) SCC (Crl.)-568
2007 (58) ACC-254
754 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(Delivered by Hon'ble R.K. Rastogi, J.)

1. This is an application u/s 482
Cr.P.C.
to
quash
the
order
dated
5.12.2006
passed
by
the
Judicial
Magistrate IVth, Aligarh in case no.
450/06, State Vs. Harpal and others, u/s
147,148,323,504,506,332,353 I.P.C., P.S.
Dadon, District Aligarh.

2. The facts relevant for disposal of
this application is that on 22.9.2000 at
about 2.30 P.M. Constable Rajendra
Singh of P.S. Dadon lodged a F.I.R.
against nine accused persons named
therein including the present applicants
and 15-20 unknown persons on which
case
crime
no.364/2000,
u/s
147,148,324,504,506,332,353 I.P.C. and
Section 7 Criminal Law Amendment Act,
was
registered
against
the
accused
persons.

3. The police after investigation
submitted the charge sheet against six
accused persons only named in the F.I.R.
and no charge sheet was filed against the
present applicants though they were
named in the F.I.R.. The case proceeded
against six accused only named in the
charge sheet and the statement of the
informant Constable Rajendra Singh was
recorded as P.W.1 and in his statement he
named the present applicants also as
accused. Thereafter an application was
moved from the side of the prosecution to
summon the applicants u/s 319 Cr.P.C.
The learned Magistrate after hearing the
prosecution allowed the application and
summoned the applicants accused u/s 319
Cr.P.C. Against the above order this
application has been filed u/s 482 Cr.P.C.
by those accused summoned u/s 319
Cr.P.C.

4. I have heard learned counsel for
the applicants and learned A.G.A. at the
admission stage.

5. Since the point involved in the
case is legal one, I am deciding it at the
admission stage after hearing both the
parties.

6. The scope of power of the court
u/s 319 Cr.P.C. was considered by
Hon'ble
Apex
Court
in
Municipal
Corporation of Delhi Vs. Ram Kishan
Rohtagi and others 1983 (20) ACC 50
(SC), and it was observed in the above
case:

"......if the prosecution can at any
stage produce evidence which satisfies the
Court that the other accused or those who
have not been arrayed as accused against
whom proceedings have been quashed
have also committed the offence the Court
can take cognizance against them and try
them along with the other accused. But,
we would hasten to add that this is really
an
extraordinary
power
which
is
conferred on the Court and should be used
very sparingly and only if compelling
reasons exist for taking cognizance
against the other person against whom
action has not been taken."

7. The above view was followed by
Hon'ble Apex Court in Michael Machado
V. Central Bureau of Investigation 2000
SCC (Cri) 609 holding that unless the
Court is hopeful that there is a reasonable
prospect of the case against the newly
added accused ending in their conviction
for the offence concerned, the Court shall
refrain from adding them as accused.

8. In the case of Palanisamy
Gounder
and
another
Vs.
State
3 All] Amar Singh and others V. State of U.P. and another
755
Represented by Inspector of Police
(2006) 1 SCC (Cri) 568. The facts were
that a charge sheet had been submitted
against 5 accused persons, but on the
basis of further investigation the names of
two accused were dropped and the case
proceeded against three accused persons
only.
However
during
trial,
the
prosecution witnesses named all the five
accused persons and then an application
was moved from the side of the
prosecution to summon those two accused
also
who
had
been
subsequently
discharged. The Sessions Judge allowed
that application and that order was
confirmed by the High court but on
appeal the Apex Court considering the
law laid down in Municipal Corporation
of Delhi Vs Ram Kishan Rohtagi and
others (Supra) and Michael Machado V.
Central Bureau of Investigation (supra),
allowed the appeal and set aside the
summoning order passed by the learned
sessions Judge against those co accused
who had been discharged on the basis of
the further investigation, and observed
therein as follows:

"In Michael Machado accused V.
Central
Bureau
of
Investigation
construing the words' the court may
proceed against such person' in Section
319 Cr.P.C., this Court held that the
power is discretionary and should be
exercised only to achieve criminal justice
and that the court should not turn against
another person whenever it comes across
evidence connecting that other person
also with the offence. This Court further
held that a judicial exercise is called for,
keeping a conspectus of the case,
including the stage at which the trial has
already proceeded and the quantum of
evidence collected till then, and also the
amount of time which the court had spent
for collecting such evidence. The court,
while examining an application under
Section 319 Cr.P.C., has also to bear in
mind that there is no compelling duty on
the Court to proceed against other
persons. In a nutshell, it means that for
exercise of discretion under Section 319
Cr.P.C. all relevant factors, including the
one noticed above, have to be kept in
view and an order is not required to be
made mechanically merely on the ground
that some evidence had come on record
implicating the person sought to be added
as an accused."

9. In the case of Mohd. Shafi Vs.
Mohd. Rafiq and another (2007 (58)
ACC 254, the facts were that the appellant
Mohd. Shafi and one Karimullah were
named as the accused persons in a case
u/s
302
I.P.C.
The
police
after
investigation submitted a charge sheet
against Karimullah @ Arif only and
discharged Mohd. Shafi. Thereafter when
the statement of P.W.1 Rafiq was
recorded, he stated in his examination- inchief
that
Mohd.
Shafi
had
also
participated in the murder, and on that
basis
the
prosecution
moved
an
application for summoning Mohd. Shafi
u/s 319 Cr.P.C. The learned Sessions
Judge rejected that application on the
ground that only the examination in chief
of the witnesses had been recorded and he
had not been put to cross examination and
so on the basis of examination in chief of
P.W.1
Karimullah
could
not
be
summoned as accused u/s 319 Cr.P.C.

10. Then the complainant O.P. no. 2
filed an application u/s 482 Cr.P.C. before
this Court which was allowed and the
order of the Sessions Judge rejecting the
application u/s 319 Cr.P.C. was set aside
756 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
and the court passed an order for
summoning Mohd. Shafi u/s 319 Cr.P.C.

11. Aggrieved with that order Mohd.
Shafi filed an appeal before the Apex
Court and the Hon'ble Apex Court
holding that the order passed by the High
court was erroneous made the following
observations:

"From the decisions of this Court, as
noticed above, it is evident that before a
Court
exercises
its
discretionary
jurisdiction in terms of Section 319 of the
Code of Criminal Procedure, it must
arrive at the satisfaction that there exists a
possibility that the accused so summoned
is in all likelihood would be convicted.
Such satisfaction can be arrived at inter-
alia upon completion of the crossexamination of the said witness. For the
said purpose, the Court concerned may
also like to consider other evidence."

12. In view of the above rulings of
the Hon'ble Apex Court the legal position
regarding summoning of any person as
accused u/s 319 Cr.P.C. can be summed
up as under:

1. The power u/s 319 Cr.P.C. is not to
be exercised mechanically on the
ground that some evidence has come
on record implicating the person
sought to be made an accused.
2. There is no compelling duty on the
Court to proceed against those
persons against whom no charge
sheet has been submitted.
3. The power u/s 319 Cr.P.C. is
discretionary and should be exercised
to achieve criminal justice and the
Court should not turn against another
person simply because it has come
across some evidence connecting that
person also with the offence. The
court
should
exercise
judicial
discretion in the matter considering
all
the
relevant
facts
and
circumstances.
4. The Court must be satisfied that the
other person, who had not been
arrayed
as
accused,
had
also
participated in commission of the
offence.
5. The power u/s 319 Cr.P.C. is
extraordinary power conferred on the
court and this should be used very
sparingly if the compelling reasons
exist for taking cognizance against
other accused persons against whom
no charge sheet has been submitted.
6. There must be reasonable prospect of
the case against the newly added
accused ending in his conviction for
the offence concerned and then only
that person should be summoned as
an accused otherwise the Court
should refrain from adding him as an
accused.
7. The Court shall exercise a judicial
discretion taking into consideration
conspectus of the case including the
stage at which the trial has proceeded
and
the
quantum
of
evidence
collected till the date and time spent
by the Court for collecting such
evidence while passing the order of
summoning the person u/s 319
Cr.P.C.
8. The satisfaction whether there exists
likelihood of conviction of the
person to be summoned as accused
can be arrived at inter alia upon cross
examination of the witness naming
him and so the orders for summoning
a person as accused u/s 319 Cr.P.C.
should
be
passed
after
cross
examination of the witness.
3 All] Sri Krishna Kumar Gupta V. The Registrar General, High Court, Alld. and others
757
9. The Court concerned may also take
into consideration other evidence
before
passing
an
order
for
summoning a person as an accused
u/s 319 Cr.P.C.

13. The position in the present case
is that the learned Magistrate has not
taken into consideration the above aspects
of the case which he was bound to
consider while passing the order for
summoning the applicant u/s 319 Cr.P.C.
Hence, the order passed by him cannot be
sustained and it is liable to be set aside.

14. The present application u/s 482
Cr.P.C. is, therefore, allowed. The order
of the learned Magistrate concerned
summoning the accused applicant under
section 319 Cr.P.C. is set aside. The
application for summoning the accused
applicant under section 319 Cr.P.C. is
rejected. However, if at any subsequent
stage of the proceedings there comes any
credible evidence regarding participation
of the present accused applicant in
commission of the crime, then the learned
Magistrate can reconsider the feasibility
of
summoning
him
taking
into
consideration the observations of the
Hon'ble Apex Court in the above quoted
judgements.

15. Let a copy of this judgement be
sent to the Registrar General of the court
for circulation amongst Judicial Officers
of the subordinate judiciary for their
information and guidance.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2007

BEFORE
THE HON'BLE V.K. SHUKLA, J.

Civil Misc. Writ Petition No.23282 of 2007

Sri Krishna Kumar Gupta
...Petitioner
Versus
The
Registrar
General
High
Court,
Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri Siddhartha Srivastava

Counsel for the Respondents:
Sri Neeraj Upadhyay
Sri Yogesh Kumar Saxena
Sri A.Z. Rizvi
Sri K.R. Sirohi
S.C.

Subordinate
Civil
Courts
Ministerial
Establishment
Rules,
1947-Rule-20Criteria
for
Promotion-merit-cumseniority-petitioner being Senior most
by-passed- as the private respondent got
several outstanding entries by different
officers while petitioner got good and
satisfactory-otherwise
every
thing
equal-No guide lines for determination of
better
candidates
provided-heldcommittee
possess
full
discretionpromotion of private respondent-valid.

Held: Para 14

On the touchstone of the rules which are
applicable in the present case and
dictum
noted
above,
claim
of
the
petitioner is being looked into. This fact
is undisputed that post in question is
selection post and promotion has to be
based on the principle of merit with due
regard to the seniority i.e. on the
principle of merit-cum-seniority where
merit has to be given precedence. As per
note appended due weight has to be
given to previous record of service and