# Arunendra @ Dabbu Revisionist v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-30
- **Case number:** Criminal Revision No. 5924 of 2023
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arunendra-dabbu-revisionist-v-state-of-u-p-anr-51576
- **Pages:** 12

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 319, 379 &
401 - Indian Penal Code, 1860 - Sections
307/419, 436/149 & 323/149 - Application
under Section 319 Cr.P.C. - Summoning
Additional Accused - Degree of Satisfaction for
Summoning - Maintainability of Application -
The revisionist, Arunendra @ Dabbu Yadav,
challenged the order dated 31.10.2023 by the
Additional
Sessions
Judge/Special
Judge
(MP/MLA
Court),
Prayagraj,
allowing
an
application under Section 319 Cr.P.C. to
summon him as an additional accused in
Complaint Case No. 2390 of 2010 under
Sections 307/419, 436/149, and 323/149 IPC.
The complainant alleged that on 30.06.2005,
the revisionist, along with others, fired rifles,
broke into her house, assaulted her family, and
set fire to property, following an earlier incident
on 29.06.2005. Despite his name appearing in
the complaint, the revisionist was not initially
summoned. The trial court, based on consistent
St.ments of PW-1, PW-2, and PW-3 implicating
him, allowed the Section 319 application before
judgment delivery. Held: The court, relying on
Sukhpal Singh Khaira Vs St. of Punj. ((2023) 1
SCC 289), Hardeep Singh Vs St. of Punj. ((2014)
3 SCC 92), Vikas Vs St. of Rajasthan ((2014) 3
SCC 321), and Brijendra Singh Vs St. of
Rajasthan ((2017) 7 SCC 706), upheld the trial
court's order. The application was maintainable
as it was filed before judgment, and the
evidence against the revisionist was sufficient to
frame
charges,
meeting
the
degree
of
satisfaction required under Section 319 Cr.P.C.

Revision was dismissed .

Case Law Cited:
3 All. Arunendra @ Dabbu Vs. State of U.P. & Anr.
165

## Text

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164 INDIAN LAW REPORTS ALLAHABAD SERIES
other hand, if the story given by the
revisionist
is
believed,
the
admitted
document indicates that he was alive till at least
2006 i.e., the year in which the younger son was
born. Coupled with this fact are the
circumstances that no credible has been
furnished to show where did the juvenile (the
younger son) studied before be took admission
in Subedar Pandey Inter College directly in
Class-9th. The story is too imaginative to be a
reality. A strong probability appears that the
actual date of birth of the juvenile was
05.07.2000, as is shown by the date of birth
registered in a school where he had studied
initially. Notably the age calculated on the basis
of date of birth being 5.7.2000 matches with the
radiological age and therefore a whimsical and
mechanical approach to deduct two straight
years from radiological opinion is nothing but
uncalled for. All the evidence dissuade the
Court from considering probable age on lower
side. This is definitely not a case where age
could be or ought to have been considered by
lowering it by a margin of 2 years. No two
views seem possible, therefore no question
arises of leaning in favour of accused. The
Juvenile Justice Board clearly committed an
error which was corrected by the Appellate
Court.

17. On the basis of above discussion,
I do not find any good reason to interfere in
the order passed by the appellate court. The
revision
lacks
merit
and
is
hereby
dismissed.
----------
(2024) 3 ILRA 164
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.01.2024
BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Revision No. 5924 of 2023

Arunendra @ Dabbu ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Nipun Singh, Sri Vivek Chaturvedi, Sri
V.P. Srivastava (Sr. Advocate)

Counsel for the Opposite Parties:
G.A., Sri Kunjesh Kumar Dubey

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 319, 379 &
401 - Indian Penal Code, 1860 - Sections
307/419, 436/149 & 323/149 - Application
under Section 319 Cr.P.C. - Summoning
Additional Accused - Degree of Satisfaction for
Summoning - Maintainability of Application -
The revisionist, Arunendra @ Dabbu Yadav,
challenged the order dated 31.10.2023 by the
Additional
Sessions
Judge/Special
Judge
(MP/MLA
Court),
Prayagraj,
allowing
an
application under Section 319 Cr.P.C. to
summon him as an additional accused in
Complaint Case No. 2390 of 2010 under
Sections 307/419, 436/149, and 323/149 IPC.
The complainant alleged that on 30.06.2005,
the revisionist, along with others, fired rifles,
broke into her house, assaulted her family, and
set fire to property, following an earlier incident
on 29.06.2005. Despite his name appearing in
the complaint, the revisionist was not initially
summoned. The trial court, based on consistent
St.ments of PW-1, PW-2, and PW-3 implicating
him, allowed the Section 319 application before
judgment delivery. Held: The court, relying on
Sukhpal Singh Khaira Vs St. of Punj. ((2023) 1
SCC 289), Hardeep Singh Vs St. of Punj. ((2014)
3 SCC 92), Vikas Vs St. of Rajasthan ((2014) 3
SCC 321), and Brijendra Singh Vs St. of
Rajasthan ((2017) 7 SCC 706), upheld the trial
court's order. The application was maintainable
as it was filed before judgment, and the
evidence against the revisionist was sufficient to
frame
charges,
meeting
the
degree
of
satisfaction required under Section 319 Cr.P.C.

Revision was dismissed .

Case Law Cited:
3 All. Arunendra @ Dabbu Vs. State of U.P. & Anr.
165
1. Sukhpal Singh Khaira Vs St. of Punj., (2023)
1 SCC 289

2. Hardeep Singh Vs St. of Punj., (2014) 3 SCC
92

3. Vikas Vs St. of Rajasthan, (2014) 3 SCC 321

4. Brijendra Singh Vs St. of Rajasthan, (2017) 7
SCC 706

5. Periyasami Vs S. Nallasamy, (2019) 4 SCC
342

6. Sugreev Kumar Vs St. of Punj., AIR 2019 SC
2903

7. Shiv Prakash Mishra Vs St. of Uttar Pradesh,
(2019) 7 SCC 806

8. Mani Pushpak Joshi Vs St. of Uttarakhand,
AIR 2019 SC 5263

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1-The instant Criminal Revision
under Section 379/401 of the Code of
Criminal
Procedure,
hereinafter
referred
as
"Cr.P.C"
has
been
preferred by the revisionist-Arunendra
alias Daddu Yadav with a prayer to set
aside
the
impugned
order
dated
31.10.2023
passed
by
learned
Additional
Sessions
Judge/Special
Judge MP/MLA Court, Prayagraj in
Complaint Case No. 2390 of 2010
(UPAD01-007721-2010),
under
Sections 307/419, 436/149, 323/149
I.P.C., Police Station Jhunsi, District
Prayagraj, whereby application No.
171 kha dated 17.10.2023 moved by
the complainant under Section 319
Cr.P.C. was allowed and revisionistArunendra alias Daddu Yadav was
summoned to face the trial for the
offence punishable under Sections
307/419, 436/149, and 323/149 I.P.C.

2-Heard Mr. V.P. Srivastava, learned
Senior Advocate, assisted by Mr. Nipun
Singh, learned counsel for the revisionist,
Mr. J.K. Upadhyay, learned Additional
Government Advocate assisted by Ms.
Pratiksha Rai, learned Brief Holder for the
State of U.P./opposite party No. 1, Mr.
Kunjesh Kumar Dubey, learned counsel for
opposite party no. 2 and perused the
materials on record.

3-Brief facts of the case which are
required to be stated are as follow:-

3.1-The
complainant/opposite
party no. 2-Shashi Devi moved an
application under Section 156(3) Cr.P.C.
dated 08.07.2005 in respect of incidents
dated 29.06.2005 and 30.06.2005 against
eleven
accused
persons,
namely,
Moolchandra Yadav, Smt. Vijma Yadav
(MLA), Raju Yadav, Ashok Nishad, Loha
Singh, Amar Singh, Gyan Chandra, Lal
Chandra, Jabar Singh, Padmakar Rai-SubInspector, Police Station Jhunsi, Allahabad
and Raju seeking direction to lodge F.I.R.
in the matter for the offence under Sections
395, 397, 436, 323, 504, 506, 364 I.P.C.
alleging inter alia that Mohan Lal Yadav of
her village was murdered by some
unknown persons on 29.06.2005 in the
morning.
Angered
by
this
murder,
deceased's brother Moolchandra Yadav,
Smt. Vijma Yadav (MLA), Raju Yadav,
Gyan Chandra Yadav, Amar Singh Yadav,
Ashok Nishad, Loha Singh, Jabar Singh,
Raju, Lal Chand and 10-20 unknown
persons barged into her house and started
beating women, children and her brotherin-laws Raj Kumar and Awadhesh. Raj
Kumar and Awadhesh got scared and ran
away from the village. Then on the
exhortation of Smt. Vijma Yadav, MLA,
Moolchandra and other accused persons
looted the ornaments, clothes and licensed
166 INDIAN LAW REPORTS ALLAHABAD SERIES
rifles and cartridges of her brother-in-law
Raj Kumar Yadav and her husband Ashok
Kumar Yadav kept in house and set the
house on fire, as a result thereof about 140
bags of grains and household items kept in
the house were burnt to ashes. The accused
persons also burnt the tractor parked in
front of her house. It is further alleged in
paragraph no. 4 of the application that on
the next day, on 30.06.2005 under the
leadership of Smt. Vijma Yadav, MLA,
again Moolchandra Yadav, Arunendra @
Daddu Yadav (revisionist), Gyan Chandra
Yadav, Jabar Singh, Amar Singh, Raju
Yadav, Raju son of Tulsiram, Ashok
Nishad, Lalchand and 15-20 persons came
and opened fire with the rifles which they
had looted from her house and weapons
they had brought with them and barged into
her house by breaking the doors and started
beating her and her children. When she
protested,
then
Vijma
Yadav,
MLA
exhorted the persons who had come with
her to set the house on fire and she herself
by pouring kerosene set the bed on fire and
started pushing the children towards fire.
When she protested, then Padmakar RaiSub-Inspector,
Police
Station
Jhunsi,
Allahabad, who was present at the spot
after beating and abusing her directed the
constables to put her on police vehicle.
Thereafter constables took her to the police
station. In the police station also she was
beaten. Her tent house and home were set
on fire. In the application, it is also stated
that police of concerned police station is
not taking any action against the accused
persons under the pressure and in collusion
with Smt. Vijma Yadav (local MLA).

3.2-Learned
Magistrate,
vide
order dated 03.08.2005 instead of directing
to lodge F.I.R. in the matter treated the said
application
dated
08.07.2005
as
a
complaint and after recording statement
under Section 200 Cr.P.C. of complainant
on 12.08.2005 and statements under
Section
202
Cr.P.C.
of
prosecution
witnesses namely, Shiv Narayan (PW-1) on
27.09.2005, Awadhesh Yadav (PW-2) on
27.09.2005, Ram Bachcha (PW-3) on
12.04.2006, Shivmurat alias Rajjan (PW-4)
on 12.04.2006, Ayodhya Prasad (PW-5) on
21.04.2006, Prakash Giri (PW-6) on
21.04.2006, Pramod Kumar (PW-7) on
21.04.2006 and Ajeet Kumar (PW-8) on
21.04.2006, summoned all the aforesaid
accused
persons
vide
order
dated
29.06.2006 to face trial except the
revisionist-Arunendra @ Daddu Yadav,
who is presently "Block Pramukh" from
block Bahadurpur, Prayagraj.

3.3-Accused
persons
had
preferred the Criminal Misc. Applications
under Section 482 Cr.P.C. Nos. 7761 of
2007, 2469 of 2007, 2667 of 2007 and
38646 of 2017 which were decided by
common judgement and order dated
23.02.2018 by the coordinate Bench of this
Court, whereby prayer for quashing the
criminal proceeding, summoning order and
issuance of bailable and non-bailable
warrants against the accused persons were
refused and trial court was directed to
conclude the trial expeditiously, preferably
within the period of eight months.

3.4-Thereafter,
charges
were
framed against the accused persons on
13.10.2019 and statement of complainant
and witnesses, namely, Shashi Devi,
Awadesh Yadav and Shiv Narayan were
recorded before the trial court as PW1, PW2 and PW-3 on 09.12.2019, 29.09.2022 and
29.05.2023 respectively, in which, they
have supported the prosecution case and
made allegations against the present
revisionist-Arunenedra @ Daddu Yadav
also along with other accused persons.
Relevant part of their statements in respect
of role of the revisionist-Arunenedra @
3 All. Arunendra @ Dabbu Vs. State of U.P. & Anr.
167
Daddu Yadav regarding the incident dated
30.06.2005 are as under:-

(i) Statement of complainantShashi Devi, PW-1.

xxxxxxxxxx

"िूसरे विन सुबह हम लोग अपने महमूिाबाि वाले
घर पर आये। वफर मुवजजमान को जब पिा चला िो वे लोग वहााँ पर
भी आयें। मृिक मुनीम का लड़का अरुणेन्र उफा डब्बू िथा मूलचन्र
मृिक मुनीम के भाई हमारे आिमी की राइफल वलये थे। िथा
अरूणेन्र उफा डब्बू मेरे िेवर की राइफल वलये थे। ववजमा यािव के
कहने पर फायर वकया। मुवजजमान मेरे घऱ का िरवाजा िोड़ विये। हम
लोगों को मुवजजमान पुनः पीटे। घर अन्िर िख्िा रखा था। उसे
ववजमा यािव ने जला विया। मेरे बेटे मांगल यािव के वसर का बाल
पकड़ कर आग में झोकने की कोवर्शर्श वकया। मैने हाथ पकड़ कर
बेटे को अपने िरफ खींचने की कोवर्शर्श वकया वफर पोवलस आ गयी।
िूसरे विन मुवजजमान हमारी कार, ट्रैक्टर, टेण्ट हाउस में भी ववजमा के
ललकारने पर लगाया पुवलस के आऩे पर ववजमा ने कहा वक इसे
मारो। इस पर िरोगा ने हाथ ऐठ कर मुझे डण्डे से मारा। पुवलस को
िेखकर बाकी लोग भागने लगे। िरोगा जी के मारने के बाि ववजमा
ने भी मुझे मारा। मुझे िथा मेरे बच्चों को पुवलस वाले पकड़ कर थाने
ले गये। थाने का नाम नहीं बिा सकिी। र्शहर के थाने में ले गया था।
इस आगजनी व िोड़फोड़ में मेरा करीब 20-25 लाख का नुसकान
हुआ आज िक मेरे पवि व िेवर की राइफल नहीं वमली। ववजमा
िथा अन्य मुवजजमान मारिे पीटिे समय गाली भी िे रहे थे। हावजर
अिालि मुवजजमान को िेखकर साक्षी ने कहा वक ये मेरे गाांव के है
इन्हें मैं जानिी पहचानिी ह ाँ। अवभयुक्ता ववजमा यािव हावजर
अिालि नहीं है। वह वकसी अन्य गाांव की है।"

(ii) Statement of witness Shiv
Narayan, PW-2

बयान वर्शव नारायण यािव पी०डब्लू-2

xxxxxxxx

"िूसरे विन विनाांक 30.06.2005 को हमारे ग्राम
सभा उस्िपुर वामिबाि के मकान पर सुबह मूलचन्र ववजमा यािव
क्षेत्रीय वविायक डब्बू उफा अरूणेन्र यािव एक हाथ में मूलचन्र एक
हाथ में डब्बू उफा अरूणेन्र लेकर आए और मेरे घर पर फायर करने
लगे।

यहााँ खड़ा ट्रैक्टर को मेरे िरवाजे पर था खड़े ट्रैक्टर
को ववजमा यािव के कहने पर उसमें आग लगा विये घर में खड़ी
गाड़ी स्टीम (कार) को िरवाजा िोड़कर के अांिर मोवबल डालकर
आग लगा विया घर में मेरी बड़ी भाभी माया िेवी व उनके बच्चे को
मारना पीटना चालू कर विया ववजमा यािव जबरजस्िी टाांग पकड़कर
खींचने लगी बोली आग लगा िो वमट्टी का िेल विड़ककर आग
लगा िी और मेरे भाभी के बच्चों को आग में ढकलने लगी उनको
भी आग में ढकेलकर इनको जला िो।

यहााँ पर मौजूि थानेिार पिमाकर राय से बोली मेरे
भाभी र्शर्शी को पकड़कर जबरजस्िी जीप में ढकेल विया जीप में
बैठा वलया थानेिार पिमाकर राय मेरी भाभी को थाने में भद्दी भद्दी
गावलयाां जावि सूचक िेिे हुए उनके साथ िुवाव्यवाहार वकया गया
और थाने में लाकर मारा पीटा गया और उनको थाने पर िीन-चार
विन िक बैठाए रहे क्षेत्रीय वविायक ववजमा यािव के िबाव में। कोई
कायावाही न होने पर मेरी भाभी र्शर्शी िेवी मुवजजमानों को िवण्डि
कराने हेिु प्रा० पत्र विया था।"

(iii)
Statement
of
witness
Awadhesh Kumar Yadav, P.W. 3

xxxxxxxx

"वि०30/06/05 को उपरोक्त सभी अवभ०गण, व
लूटी हुई रायफल अरूणेन्र उफा डब्बू यािव और मूलचन्र यािव
लेकर आये और उस्िापुर वाले घर में ट्रैक्टर, इस्टीम कार, टेन्ट
हाउस के सामान रजाई, गद्दा, कुसी आवि, पर अपने साथ लायें वमट्टी
के िेल विड़ककर आग लगा वियें, मेरी भाभी ने जब ववरोि वकया
िो ववजमा यािव बाल पकड़कर उनकों मारने-पीटने लगी। ववजमा
यािव ने कहा वक सब लोगों को बच्चों सवहि आग में डालकर जला
िों। मैने जब बचाने को प्रयास वकया िो मूलचन्र, अरूणेन्र उफा
डब्बू यािव द्वारा बाहर से फायर वकया गया। वि०30/06/2005
को ववजमा यािव के साथ पिमाकर एस०ओ० झूांसी भी साथ में थे,
जब ववजय यािव मार-पीट ली, िो भाभी र्शवर्श िेवी को पिमाकर
राय ने अपनी सरकारी जीप में बैठा वलया और 30/06/05 से
06/07/2005 िक भाभी को थाने पर रखे थे, जब हम लोग थाने
पर जािे थे िो पिमाकर राय िौड़ाकर मारिे थे और गाली-गुप्ता िेिे
थे।

जब मेरी भाभी िूटकर वि०06/07/2005 को
आई िो उन्होंने बिाया वक पिमाकर मारिे-पीटिे और प्रिावड़ि करिे
थे। ववजमा यािव के कहने पर पिमाकर राय थाने पर भाभी को
गाली िेिा था व प्रिावड़ि करिा था।"

3.5-On
01.09.2023
statements
under Section 313 Cr.P.C. of the accused
persons were recorded and after completion
of defence evidence and final argument,
date was fixed for delivery of judgement on
18.10.2023.
In
the
meantime
before
delivery of judgement, the complainant
/opposite party no. 2 moved an application
under Section 319 Cr.P.C. dated 17.10.2023
for summoning the revisionist-Arunenedra
@ Daddu Yadav to face trial. The said
application of the complainant has been
168 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed by the trial court vide order dated
31.10.2023 and summoned the revisionist
Arunendra
@
Daddu Yadav
as
an
additional accused to face trial under
Section 307/149, 436/149 and 323/149
I.P.C., which is the subject matter of
challenge in the present Criminal Revision.

4-The main substratum of argument of
learned counsel for the revisionist is that on
29.06.2005
revisionist's
father
was
murdered, regarding which Moolchandra
Yadav (uncle of the revisionist) lodged
F.I.R. against Ashok Yadav (husband of
complainant), Raju Yadav, Chottan Giri and
Ramesh Chandra Yadav, therefore a false
complaint
has
been
filed
by
the
complainant. Much emphasis has been
given by contending that though in
paragraph
No.
4
of
the
complaint,
allegation against the revisionist Arunendra
@ Daddu Yadav has been levelled with
regard to the incident dated 30.06.2005, but
he was not included as an accused in array
of the parties and he was not summoned
under Section 204 Cr.P.C. The complainant
at that time did not file any petition
regarding non summoning of the revisionist
along with other accused persons. It is next
argued that complainant with ulterior
motive has moved an application under
Section 319 Cr.P.C. at the fag end of the
trial on 17.10.203, a day before the delivery
of judgement, which was not maintainable.
It is also argued that on the basis of
statements of PW-1, PW-2 and PW-3 given
before the trial court, revisionist cannot be
convicted, hence the same is not sufficient
to summon the revisionist under Section
319 of Cr.P.C. The learned Additional
Sessions Judge/Special Judge wrongly and
illegally entertained the said application
under
Section
319
Cr.P.C.
of
the
complainant and without applying judicial
mind and without giving finding as to
whether revisionist can be convicted on the
material evidence (statements of PW-1,
PW-2 and PW-3) or not, allowed the said
application and summoned the revisionist
in exercise of powers under Section 319
Cr.P.C. to face trial vide impugned order
dated vide order dated 31.10.2023, which is
liable to be set aside.

5-On the other hand, learned A.G.A.
for the State and learned counsel appearing
on behalf of complainant/opposite party no.
2 vehemently opposed the prayer made on
behalf of the revisionist by contending that
name of the revisionist Arunendra @
Daddu Yadav and allegation against him
with
regard
to
the
incident
dated
30.06.2005 are mentioned in paragraph no.
4 of the complaint itself, but due to
omission, his name was not mentioned at
first page of the complaint in the list of
accused. The complainant and witnesses in
their statements under Section 200 and 202
Cr.P.C. have also made allegation against
the revisionist. Much emphasis has been
given by contending that before the trial
court also the complainant and witnesses
who have been examined as PW-1, PW-2
and PW3 have made allegation against the
revisionist by stating inter-alia that on the
next day on 30.06.2005, in morning, they
came to their house in Mahmudabad. When
accused persons came to know it, they also
came there. Arunendra @ Daddu Yadav
was armed with rifle of complainant's
brother-in-law and Moolchandra was armed
with rifle of complainant's husband which
were looted by the accused persons on
29.06.2005 and fired on the exhortation of
accused Vijama Yadav (the then M.L.A.).
Learned A.G.A. for the State referring the
statements of PW1, PW2 and PW3, also
argued that from their statements active
involvement of revisionist in the incident
dated 30.6.2005 is apparent on record and
3 All. Arunendra @ Dabbu Vs. State of U.P. & Anr.
169
as such much more than prima facie case is
made out against the revisionist, which is
sufficient to frame charge against him.

6-Before adverting to the claim of the
parties, it would be useful to quote Section
319 Cr.P.C.

"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 a fresh,
and the 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."

7-From the perusal of Section 319
Cr.P.C., it is clear that it is the duty of the
Court to see that no accused is left
unpunished.

8-The moot question involved in the
present case is as to whether application
under
Section
319
Cr.P.C.
of
the
complainant
which
was
filed
before
delivery of judgement was maintainable or
not and what would be degree of
satisfaction for invoking the provisions of
Section 319 Cr.P.C.

9-So far as the first issue regarding the
maintainability
of
application
dated
17.10.2023 under Section 319 Cr.P.C. is
concerned, it would be appropriate to refer
the Constitutional Bench judgement of
Hon'ble Apex Court in the case of Sukhpal
Singh Khaira Versus State of Punjab,
(2023) 1 SCC 289, in which the Hon'ble
Apex Court after wholesome treatment
interpreting the word and phrases "Trial",
"Conclusion of trial'' and "Trial when
concluded" has settled the issue about the
stage(s) of the proceeding at which power
under Section 319 Cr.P.C. may be invoked.
The relevant paragraphs of the said
judgement are as follows:-

"Para no. 23- A close perusal of
Section 319 of CrPC indicates that the
power bestowed on the court to summon
any person who is not an accused in the
case is, when in the course of the trial it
appears from the evidence that such person
has a role in committing the offence.
Therefore, it would be open for the Court to
summon such a person so that he could be
tried together with the accused and such
power
is
exclusively
of
the
Court.
Obviously, when such power is to summon
the additional accused and try such a
person with the already charged accused
against whom the trial is proceeding, it will
have to be exercised before the conclusion
170 INDIAN LAW REPORTS ALLAHABAD SERIES
of trial. The connotation 'conclusion of
trial' in the present case cannot be
reckoned as the stage till the evidence is
recorded, but, is to be understood as the
stage
before
pronouncement
of
the
judgment as already held in Hardeep Singh
(supra)
since
on
judgment
being
pronounced the trial comes to a conclusion
since until such time the accused is being
tried by the Court.

Para no. 33- In that view of the
matter, if the Court finds from the evidence
recorded in the process of trial that any
other person is involved, such power to
summon the accused under Section 319 of
CrPC can be exercised by passing an order
to that effect before the sentence is imposed
and the judgment is complete in all respects
bringing the trial to a conclusion. While
arriving at such conclusion what is also to
be kept in view is the requirement of subsection (4) to Section 319 of CrPC. From
the said provision it is clear that if the
learned Sessions Judge exercises the power
to summon the additional accused, the
proceedings in respect of such person shall
be commenced afresh and the witnesses
will have to be re-examined in the presence
of the additional accused. In a case where
the learned Sessions Judge exercises the
power under Section 319 of CrPC after
recording the evidence of the witnesses or
after
pronouncing
the
judgement
of
conviction but before sentence being
imposed, the very same evidence which is
available on record cannot be used against
the newly added accused in view of Section
273 of CrPC. As against the accused who
has been summoned subsequently a fresh
trial is to be held. However while
considering the application under Section
319 of CrPC, if the decision by the learned
Sessions Judge is to summon the additional
accused before passing the judgement of
conviction or passing an order on sentence,
the conclusion of the trial by pronouncing
the judgement is required to be withheld
and the application under Section 319 of
CrPC is required to be disposed of and only
then the conclusion of the judgement, either
to convict the other accused who were
before the Court and to sentence them can
be proceeded with. This is so since the
power under Section 319 of CrPC can be
exercised only before the conclusion of the
trial by passing the judgement of conviction
and sentence.

Para no. 34- Though Section 319
of CrPC provides that such person
summoned as per sub-section (1) thereto
could be jointly tried together with the
other accused, keeping in view the power
available to the Court under Section 223 of
CrPC to hold a joint trial, it would also be
open to the learned Sessions Judge at the
point of considering the application under
Section 319 of CrPC and deciding to
summon the additional accused, to also
take a decision as to whether a joint trial is
to be held after summoning such accused
by deferring the judgement being passed
against the tried accused. If a conclusion is
reached that the fresh trial to be conducted
against the newly added accused could be
separately tried, in such event it would be
open for the learned Sessions Judge to
order so and proceed to pass the judgment
and conclude the trial insofar as the
accused against whom it had originally
proceeded and thereafter proceed in the
case of the newly added accused. However,
what is important is that the decision to
summon an additional accused either suomoto by the Court or on an application
under Section 319 of CrPC shall in all
eventuality be considered and disposed of
before the judgement of conviction and
sentence is pronounced, as otherwise, the
trial would get concluded and the Court
will get divested of the power under Section
3 All. Arunendra @ Dabbu Vs. State of U.P. & Anr.
171
319 of CrPC. Since a power is available to
the Court to decide as to whether a joint
trial is required to be held or not, this
Court was justified in holding the phrase,
"could be tried together with the accused"
as contained in Section 319(1) of CrPC, to
be directory as held in Shashikant Singh
(supra) which in our opinion is the correct
view.

Para no. 38- For all the reasons
stated above, we answer the questions
referred as hereunder.

Para no. 39.(I)- Whether the trial
court has the power under Section 319 of
CrPC for summoning additional accused
when the trial with respect to other co-
accused has ended and the judgment of
conviction rendered on the same date
before pronouncing the summoning order?

The power under Section 319 of
CrPC is to be invoked and exercised before
the pronouncement of the order of sentence
where there is a judgment of conviction of
the accused. In the case of acquittal, the
power should be exercised before the order
of acquittal is pronounced. Hence, the
summoning order has to precede the
conclusion of trial by imposition of
sentence in the case of conviction. If the
order is passed on the same day, it will
have to be examined on the facts and
circumstances of each case and if such
summoning order is passed either after the
order of acquittal or imposing sentence in
the case of conviction, the same will not be
sustainable.

Para no. 40 (II)- Whether the
trial court has the power under Section 319
of the CrPC for summoning additional
accused when the trial in respect of certain
other absconding accused (whose presence
is
subsequently
secured)
is
ongoing/pending, having been bifurcated
from the main trial?

The trial court has the power to
summon additional accused when the trial
is proceeded in respect of the absconding
accused after securing his presence, subject
to the evidence recorded in the split up
(bifurcated)
trial
pointing
to
the
involvement of the accused sought to be
summoned. But the evidence recorded in
the main concluded trial cannot be the
basis of the summoning order if such power
has not been exercised in the main trial till
its conclusion.

Para no. 41.(III)- What are the
guidelines that the competent court must
follow while exercising power under
Section 319 CrPC?"

Para no. 41.1- If the competent
court finds evidence or if application under
Section 319 of CrPC is filed regarding
involvement of any other person in
committing the offence based on evidence
recorded at any stage in the trial before
passing of the order on acquittal or
sentence, it shall pause the trial at that
stage.

Para no. 41.2- The Court shall
thereupon
first
decide
the
need
or
otherwise
to
summon
the
additional
accused and pass orders thereon.

Para no. 41.3- If the decision of
the court is to exercise the power under
Section 319 of CrPC and summon the
accused, such summoning order shall be
passed before proceeding further with the
trial in the main case.

Para no. 41.4- If the summoning
order of additional accused is passed,
depending on the stage at which it is
passed, the Court shall also apply its mind
to the fact as to whether such summoned
accused is to be tried along with the other
accused or separately.

Para no. 41.5- If the decision is
for joint trial, the fresh trial shall be
172 INDIAN LAW REPORTS ALLAHABAD SERIES
commenced
only
after
securing
the
presence of the summoned accused.

Para no. 41.6- If the decision is
that the summoned accused can be tried
separately, on such order being made, there
will be no impediment for the Court to
continue and conclude the trial against the
accused who were being proceeded with.

Para no. 41.7- If the proceeding
paused as in (i) above is in a case where
the accused who were tried are to be
acquitted and the decision is that the
summoned accused can be tried afresh
separately, there will be no impediment to
pass the judgment of acquittal in the main
case.

Para no. 41.8- If the power is not
invoked or exercised in the main trial till its
conclusion and if there is a split-up
(bifurcated) case, the power under Section
319 of Cr.P.C can be invoked or exercised
only if there is evidence to that effect,
pointing
to
the
involvement
of
the
additional accused to be summoned in the
split up (bifurcated) trial.

Para no. 41.9- If, after arguments
are heard and the case is reserved for
judgment the occasion arises for the Court
to invoke and exercise the power under
Section 319 of CrPC, the appropriate
course for the court is to set it down for rehearing.

Para no. 41.10- On setting it
down for re-hearing, the above laid down
procedure to decide about summoning;
holding of joint trial or otherwise shall be
decided and proceeded with accordingly.

Para no. 41.11- Even in such a
case, at that stage, if the decision is to
summon additional accused and hold a
joint trial the trial shall be conducted
afresh and de novo proceedings be held.

Para no. 41.12- If, in that
circumstance, the decision is to hold a
separate trial in case of the summoned
accused as indicated earlier;

(a) The main case may be decided
by pronouncing the conviction and sentence
and then proceed afresh against summoned
accused.

(b) In the case of acquittal the
order shall be passed to that effect in the
main case and then proceed afresh against
summoned accused."

10-In the case in hand, admittedly the
application under Section 319 Cr.P.C. was
moved
before
the
judgement
was
delivered/pronounced by the trial Court,
hence in the light of principles laid down
by the Hon'ble Apex Court in the case of
Sukhpal Singh Khaira (Supra), this Court
is of the view that application dated
17.10.2023 under Section 319 Cr.P.C. of
the complainant was maintainable and
same has been rightly entertained and
considered by the trial Court.

11-So far as second issue regarding
parameters / degree of satisfaction for
invoking the provisions of Section 319
Cr.P.C. is concerned, it would be useful to
refer following judgements of the Hon'ble
Apex Court, wherein this issue has
specifically dealt with.

11.1-The Constitutional Bench of
Hon'ble Apex Court in the case of
Hardeep
Singh
Versus
State
of
Punjab,(2014) 3 SCC 92, has framed five
questions, out of which question no. IV
which is relevant for the purpose of this
case is as under:-

Question (iv) What is the
nature of the satisfaction required to
invoke the power under Section 319
Cr.P.C. to arraign an accused?

Whether
the
power
under
Section 319 (1) Cr.P.C. can be exercised
3 All. Arunendra @ Dabbu Vs. State of U.P. & Anr.
173
only if the court is satisfied that the
accused summoned will in all likelihood
be convicted?

Aforesaid questions have been
answered in the following terms:-

Para No. 117.5. Though under
Section 319(4)(b) Cr.P.C. the accused
subsequently impleaded is to be treated
as if he had been an accused when the
Court initially took cognizance of the
offence, the degree of satisfaction that
will be required for summoning a person
under Section 319 Cr.P.C. would be the
same as for framing a charge. The
difference in the degree of satisfaction
for summoning the original accused and
a subsequent accused is on account of the
fact that the trial may have already
commenced against the original accused
and it is in the course of such trial that
materials are disclosed against the newly
summoned accused. Fresh summoning of
an accused will result in delay of the
trial, therefore the degree of satisfaction
for summoning the accused (original and
subsequent) has to be different."

11.2-The
Division
Bench
of
Hon'ble Supreme Court in Vikas Vs. State
of Rajasthan, (2014) 3 SCC 321, has held
that on the objective satisfaction of the
court a person may be 'arrested' or
'summoned', as the circumstances of the
case may require, if it appears from the
evidence that any such person not being the
accused has committed an offence for
which such person could be tried together
with the already arraigned accused persons.

11.3-While dealing with the duty
and power of the Court under Section 319
Cr.P.C.,
Hon'ble
Supreme
Court
in
Brijendra Singh and others Vs. State of
Rajasthan, 2017(7) SCC 706, has held as
under:

"It is the duty of the court to do
justice by punishing the real culprit. Where
the investigating agency for any reason
does not array one of the real culprits as an
accused, the court is not powerless in
calling the said accused to face trial. The
question remains under what circumstances
and at what stage should the court exercise
its power as contemplated in Section 319
Cr.P.C."

xx xx xx

"The court is the sole repository
of justice and a duty is cast upon it to
uphold the rule of law and, therefore, it will
be inappropriate to deny the existence of
such powers with the courts in our criminal
justice system where it is not uncommon
that the real accused, at times, get away by
manipulating the investigating and/or the
prosecuting agency. The desire to avoid
trial is so strong that an accused makes
efforts at times to get himself absolved even
at the stage of investigation or inquiry even
though he may be connected with the
commission of the offence." It also goes
without saying that Section 319 Cr.P.C.,
which is an enabling provision empowering
the Court to take appropriate steps for
proceeding against any person, not being
an accused, can be exercised at any time
after the charge-sheet is filed and before
the pronouncement of the judgment, except
during the stage of Section 207/208 Cr.P.C.,
the committal etc., which is only a pre- trial
stage intended to put the process into
motion."

11.4-The
aforesaid
principles
have further been followed by Hon'ble the
Supreme Court in the cases of Periyasami
and others Vs. S. Nallasamy; 2019 (4)
SCC 342, Sugreev Kumar vs. State of
Punjab and others; AIR 2019 SC 2903,
Shiv Prakash Mishra vs. State of Uttar
Pradesh; 2019 (7) SCC 806 and Mani
Pushpak Joshi vs. State of Uttrakhand
and another; AIR 2019 SC 5263.
174 INDIAN LAW REPORTS ALLAHABAD SERIES

12-Here it would also be relevant to
mention that each case must be decided on
its own facts and merit. Even one
additional or different fact may make big
difference between the conclusion in two
cases, because even a single significant
detail may alter the entire aspect.

13-So far as F.I.R. dated 29.06.2005
lodged by Moolchandra (uncle of the
revisionist)
regarding
murder
of
revisionist's father against Ashok Yadav
(husband of complainant), Raju Yadav,
Chottan Giri and Ramesh Chandra Yadav is
concerned, I find that they have been
acquitted by the judgement and order dated
23.09.2010 of the trial court passed in
Sessions Trial No. 338/2006, 489/2006 and
340/2006, but Moolchandra who was
informant/complainant in that case did not
prefer any appeal against the aforesaid
judgement of acquittal and order dated
23.09.2010. Smt. Padmavati Devi, who is
mother of the revisionist had preferred
Criminal Appeal u/s 372 Cr.P.C. along with
Criminal Misc. Application Defective U/s
372 Cr.P.C. (Leave to Appeal) No. 58 of
2017 after 2354 days on 27.05.2017,
which has been dismissed as time barred by
the Division Bench of this Court vide order
dated 23.01.2019.

14-Having heard the submissions of
learned counsel for the parties and
examined the record in its entirety, I find
that:-

14.1- The complainant in her
application under section 156 (3) Cr.P.C.
made allegation that since one of the
accused-Vijma Yadav was sitting MLA at
the time of incident and co-accused
Padmakar Rai, Sub-Inspector at that time
was posted in Police Station-Jhunsi,
Allahabad, therefore, on the influence of
Vijma Yadav, the then local sitting MLA,
who is one of the accused in the present
case, her FIR was not lodged with regard to
incident dated 29.06.2005 and 30.6.2005.
Under
the
circumstances,
she
filed
application under Section 156(3) Cr.P.C.
dated 08.07.2005 seeking direction to lodge
F.I.R. in the matter for the offence under
Sections 395, 397, 436, 323, 504, 506, 364
I.P.C., but the said application was treated
as
complaint,
as
such
no
police
investigation was done in the matter.

14.2-Regarding
the
second
incident dated 30.06.2005, allegation has
been levelled against the revisionistArunendra @ Daddu Yadav in paragraph
no. 4 of the complaint, statement under
Section 200 Cr.P.C. of the complainant and
statements of witnesses under Section 202
Cr.P.C. alleging inter-alia that on the next
day, i.e. 30.06.2005 under the leadership of
Smt.
Vijma
Yadav
MLA,
again
Moolchandra Yadav, Arunendra @ Daddu
Yadav (revisionist), Gyan Chandra Yadav,
Jabar Singh, Amar Singh, Raju Yadav, Raju
son of Tulsiram, Ashok Nishad, Lalchand
and 15-20 persons came and opened fire
with the rifles which they had looted from
her house and the weapons, which they had
brought with them and barged into her
house by breaking the doors and started
beating her as well as her children.

14.3-When
statement
of
complainant (Shashi Devi) and witnesses
namely, Shiv Narayan and Awadesh Yadav
were recorded before the trial court as
PW1, PW-2 and PW-3 they have made
same allegation against the revisionist, as
noted above in preceding paragraph no. 3.4.

14.4-Considering
the
facts,
materials on record as well as statements of
PW-1, PW-2 and PW-3, as mentioned
above in paragraph no. 3.4, with regard to
second incident dated 30.06.2005, I find
that the role attributed to the revisionist-
3 All. Gedpec Infratech Ltd. Vs. U.P. Power Transmission Corporation Ltd., Lucknow
175
Arunendra @ Daddu Yadav is similar to
role of accused Moolchandra Yadav who is
already facing trial. Hence, this Court is of
the view that the evidence which has come
on record against the revisionist are much
more than prima facie and are sufficient to
proceed against the revisionist in exercise
of power under Section 319 Cr.P.C. and for
framing of charge.

15-In view of above, it can safely be
held that the learned Additional Sessions
Judge while passing the impugned order
dated 31.10.2023 was fully satisfied that
there are strong and cogent evidence
against the revisionist which is sufficient
for framing of charge and has not passed
the order in a casual manner.

16-The order passed by the learned
Additional Sessions Judge is in consonance
with the law laid down by Hon'ble
Supreme Court in Sukhpal Singh Khaira
and Hardeep Singh (Supra) and it cannot
be said that the order of the learned
Additional Sessions Judge is in the teeth of
the order of Hon'ble Supreme Court
referred to above.

17-In view of what has been indicated
herein above, I do not find any illegality or
irregularity in the order date 31.10.2023
passed by learned Additional Sessions
Judge/Special
Judge
MP/MLA
Court,
Prayagraj summoning the revisionist under
Section 319 Cr.P.C. to face the trial under
Sections 147, 148, 302/149, 323/149, 504
and 506 IPC along with other accused.

18-The Criminal Revision is bereft of
merit. It is accordingly rejected.
----------
(2024) 3 ILRA 175
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Civil Misc. Arbitration Application No. 91 of 2023

Gedpec Infratech Ltd. ...Applicant
Versus
U.P.