# Criminal Case No. 512 of 1994. State v. Krishna Kumar and others. Under Section

- **Citation:** (2000) 2 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-12-23
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/criminal-case-no-512-of-1994-state-v-krishna-kumar-and-others-under-section-39600
- **Pages:** 4

## Text

2All] Shiv Sahain Mishra alias Raju V. State of U.P. and others
13
14. At the fag end of the arguments, an
application was filed where in a prayer has
been made to (a) permit the petitioner for
pursuing relief no.1 in a separate writ petition
before the Single Judge, (b) Clarify that relief
nos. (c), (d) and (e) have not been given up
and continue in the present writ petition.

15. We are of the opinion that in view of
the statement made by the counsel for the
petitioner and liberty having not been granted
to them to file a separate writ petition for
seeking relief no.1{in fact relief no.(a)} such
a prayer cannot be granted. We are fortified
in our view by a decision of the Apex Court in
Sarguja Transport Service Versus State
Transport Tribunal, A.I.R. 1987 SC 88. The
other prayer regarding clarification of the
order can only be granted by the same Bench
which heard the matter on 23.12.1999.

16. In the result, both the petitions
succeed and are hereby allowed. The
impugned order dated 20.12.1999 of Cane
Commissioner
(Annexure-8
to
the
writ
petition) is quashed. The Cane Commissioner
is directed to pass a fresh order after giving
opportunity of hearing to all the parties
concerned and in accordance with law.

17. The petitioner and respondent no.4
are directed to appear before the Cane
Commissioner, U.P. on 18.1.2000. The Cane
Commissioner shall make endeavour to pass
final
order
expeditiously
preferably
by
31.1.2000. Learned counsel for respondent
no.4 has under taken that his client will
personally serve all the parties as may be
directed by the Cane Commissioner.

18. It is being made clear that it should
not be understood that this Court is expressing
any opinion regarding merits of the claim of
any party. The Cane Commissioner shall
exercise his independent judgment after
taking into consideration all the relevant
factors and shall pass orders in accordance
with law.

$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 86 75,3$7+, -
7+( +21·%/( 86 75,3$7+, -

&ULPLQDO 0LVF $SSOLFDWLRQ 1R RI

6KLY
6DKDLQ
0LVKUD
DOLDV
5DMX
DQG
RWKHUV
«$SSOLFDQWV
9HUVXV
6WDWH RI 83 DQG RWKHUV «2SSRVLWH SDUWLHV

&RXQVHO IRU WKH $SSOLFDQWV
6KUL $PLW 6D[HQD
6KUL 316DNVHQD
&RXQVHO IRU WKH 5HVSRQGHQW
$*$
6KUL 3DQNDM 5DL

&U3& 6HFWLRQ 7KH WHUP 3(9,'(1&( ́ DV
XVHG LQ VHFWLRQ &U3& GRHV QRW PHDQ DQ
HYLGHQFH FRPSOHWHG E\ FURVV H[DPLQDWLRQ
7KH FURVV H[DPLQDWLRQ RI WKH ZLWQHVVHV LV
QRW QHFHVVDU\ IRU VXPPRQLQJ WKH SHUVRQ XV
 &U3& 2QO\ UHTXLUHPHQW LV WKDW WKHUH
VKRXOG
EH
HYLGHQFH
EHIRUH
WKH
FRXUW
UHJDUGLQJ WKH LQYROYHPHQW RI WKH SHUVRQ
FRQFHUQHG
+HOG
7KDW WKH VXPPRQLQJ RUGHU XQGHU 6HFWLRQ
 &U 3 & LV QRW OLDEOH WR EH TXDVKHG LQ
WKLV SURFHHGLQJ SDUD
 $&& S 6&
 $&& S
 $&& S
1979(16)A.C.C. 43(SC).

By the Court

1. The above two application under
Section 482 Cr.P.C. have been preferred for
quashing of proceeding against the applicants
on the basis of order dated 4.4.1997 passed in
Criminal Case No. 512 of 1994. State Vs.
Krishna Kumar and others. Under Section
323, 325, 504 and 506 I.P.C. P.S. Bakewar,
district Fatehpur pending in the Court of
Additional
Chief
Judicial
Magistrate
Fatehpur.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
14
2. Smt Bhagwani Devi opposite party no.
2 in both the applications, lodged a report on
22.1.1994 at P.S. Bakewar district Fatehpur
against the applicants of both the application
and four others with the allegation that on
21.1.1994 at about 6.00 p.m. while her son
and daughter were milching cow, Krishna
Kumar, Gokaran Nath, Taju armed with rifles
along with Bhagwati Prasad, Dhannar, Rajan,
Dileep, Vindoo, Krishna Devi, Mahesh, Girija
Shankar, Uma Shankar, wife of Girija
Shankar and Mukesh Kumar in all of 14
persons raided her house and started causing
injuries to her son and daughter. They also
fired from rifle and gun, set fire in her
chhappar, damaged Chabootara and stonned
at the house. They also caused injuries to
animals and threatened them to remove from
the village. The police registered a case at
crime no. 10 of 1994, under Section 323, 504
and 506 I.P.C. After investigation the police
submitted charge sheet only against four
persons namely Krishna Kumar, Mahesh,
Uma Shankar and Mukesh Kumar. During
trial before the Magistrate Smt. Asha Devi
daughter of opposite party no. 2 was
examined on oath. In her statement she
named four persons against whom police had
submitted charge sheet as well as the
applicants, in all 14 persons, involved in the
offence. Thereafter Smt. Bhagwani Devi
opposite party no. 2 moved an application for
summoning the applicants of both the
applications under Section 319 Cr.P.C. on the
ground that report was lodged against them
also and they were also involved in the
offence. The learned Magistrate found that
there was sufficient ground for proceeding
with against the applicants and therefore, he
summoned them under Section 323, 325, 504
and 506 I.P.C. in the exercise of power under
Section 319 Cr. P.C. for trial alongwith other
accused. The above summoning order has
been
sought
to
be
quashed
in
these
applications.

3. Heard learned counsel for the
applicants in both the applications as well as
the learned counsel for the opposite party no.
2 and the learned A.G.A. and perused the
record.

4. The summoning order under Section
319 Cr.P.C. has been challenged on the
ground that the complainant and other
witnesses have not named the applicants in
their statement under Section 161 Cr.P.C. and
police had submitted charge sheet only
against four persons. The applicants Krishna
Kumar and Mahesh Narain were not present
on the spot and were on their respective duty
place on the date of occurrence and
implication of applicants was false. The
learned Magistrate had wrongly summoned
them and that the summoning order was
passed
prior
to
completion
of
cross
examination of Smt. Asha Devi P.W.I. and
therefore
her
statement
could
not
be
considered for the purpose of summoning the
applicants.

5. Having considered the facts deposed in
the affidavits and the submission of the
learned counsel for the parties I found no
force in the above contention.

6. Section 319 Cr.P.C. says that 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.

7. In the case of Joginder Singh and
another Vs. State of Punjab and another,
1979(16) ACC 43(SC) it was held by Hon'ble
Supreme Court that the expression any person
not being the accused occurring in Section
319 Cr.P.C. clearly covers any person who is
not being tried already by the Court and the
very purpose of enacting such a provision like
section 319 (1) clearly shows that even
persons who have been dropped by the police
during
investigation
but
against
whom
2All] Shiv Sahain Mishra alias Raju V. State of U.P. and others
15
evidence showing their involvement in the
offence comes before the Criminal Court are
included in the said expression. This view
was repeated by the Hon'ble Supreme Court
in another case of Municipal Corporation of
Delhi Vs. Ram Kishan Rastogi and others,
1983(20) A.C.C. 50(SC). Therefore, it is clear
that the Court may summon the persons who
have been dropped by the police if there is
evidence.

8. In some cases like Dileep Singh Vs.
State of U.P. 1996(3) 45 (Hindi Section)
Surendra Kumar Sharma Vs. State of U.P.
1996 ACC(51) (Hindi Section) and Brij Pal
Singh Vs. State of U.P. 1996 (33) ACC(4)
single Judges of this Court held that the
summoning order under Section 319 Cr.P.C.
cannot be passed before conclusion of the
cross examination of the witness. But
controversy
was
finally
resolved
in
subsequent Division Bench case of Ram
Gopal and another Vs. State of U.P. in
Criminal Misc. Application No. 1823 of 1995,
decided on 12.10.1998 and reported in 1999
(38) ACC 123. The above single/Judge cases
were over ruled and it was held that the term
"EVIDENCE" as used in Section 319 Cr.P.C.
does not mean an evidence completed by
cross examination and the court can take
action under Section 319 Cr.P.C,. even on the
statement made in examination-in-chief of
one or more witness. Thus, it is clear that the
cross examination of the witness is not
necessary for summoning the persons under
Section 319 Cr.P.C. and only requirement is
that there should be evidence before the court
regarding
involvement
of
the
person
concerned. Moreover, in this case the cross-
examination of Smt. Asha Devi (P.W.D.) was
also done.

9. The next contention of the learned
counsel for the applicants was that applicants
were not named by witnesses in their
statement under Section 161 Cr.P.C. has no
force as Smt. Asha Devi (P.W.1) stated that
she had named all the 14 persons, but the
police did not mention their name. Moreover,
the actual involvement of the applicants shall
be decided by the Trial Court and the veracity
and correctness of the evidence cannot be
considered
at
this
stage
because
only
primafacie conclusion is to be drawn by the
Court and it is not necessary to record a
finding regarding the correctness of the
statement of the witnesses.

10. The next contention of the learned
counsel for the applicants was that two of the
applicants namely Shiv Sahain Mishra and
Bhagwati Prasad were not present on the spot.
The plea regarding alibi of these applicants
shall be considered on merit as it has to be
proved like other fact.

11. In view of the above discussion and
observation I find that the summoning order
under Section 319 Cr.P.C. is not liable to be
quashed in this proceeding. The applications
have no force and are liable to be rejected.
Both
the
applications,
Criminal
Misc.
Application No. 3072 of 1997 Shiv Sahain
Mishra Mishra alias Raju and others Vs. state
of U.P. and another and Criminal Misc.
Application No. 33 of 1997, Gokaran Nath
Misra and others Vs. State of U.P. and another
are hereby rejected summarily. Stay orders
dated 14.5.1997 are vacated.

12. Copy of this order be sent to C .J.M.
Fatehpur.

Application Rejected.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
16
$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' )(%58$5<
'$7(' $//$+$%$' )(%58$5<
%()25(
%()25(
7+( +21·%/( 1.0,75$ &-
7+( +21·%/( 1.0,75$ &-
7+( +21·%/( 656,1*+-
7+( +21·%/( 656,1*+-

6SHFLDO $SSHDO 1R RI

0DKHVKZDU 3UDVDG 7LZDUL «$SSHOODQWV
9HUVXV
-RLQW
'LUHFWRU
RI
(GXFDWLRQ
DQG
RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH $SSHOODQW
6KUL 5. 2MKD
&RXQVHO IRU WKH 5HVSRQGHQW
6&.

83
6HFRQGDU\
(GXFDWLRQ
6HUYLFH
&RPPLVVLRQ
5XOHV

U$GKRF
DSSRLQWPHQW RI OHFWXUHU TXRWD SURYLGHG
IURP
SURPRWLRQ
DPRQJVW
VHQLRU
PRVW
OHFWXUHU
DQG

E\
'LUHFW
UHFUXLWPHQW
HDUOLHU GLUHFWLRQ XQGHU 5HPRYDO RI 'LIILFXOW\
RUGHU QRW SURSHU
+HOG
,I WKH YDFDQF\ GHWHUPLQHG LQ WKH DIRUHVDLG
PDQQHU IDOOV LQ WKH TXRWD RI SURPRWLRQ DQG
WKH FRQGLWLRQV SUHFHGHQW DV YLVXDOL]HG LQ
6HFWLRQ DUH VDWLVILHG LW FDQ EH ILOOHG LQ
RQ DGKRF EDVLV RQO\ LQ WKH PDQQHU SUHVFULEHG
E\ 5XOH RI WKH 5XOHV DV SUHVFULEHG LQ
6HFWLRQ DQG QRW E\ GLUHFW UHFUXLWPHQW
XQGHU VXEVHFWLRQ UHDG ZLWK VXE6HFWLRQ
 RI 6HFWLRQ DQG 5XOH RI WKH 5XOHV
H[FHSW
RQ
SDLQV
RI
LQYDOLGDWLRQ
RI
DSSRLQWPHQW LQ WHUPV RI VHFWLRQ RI WKH
$FW
,Q RXU RSLQLRQ WKHUHIRUH LI WKH YDFDQF\ IDOOV
LQ WKH TXRWD RI GLUHFW UHFUXLW WKHQ WKH VDPH
FDQQRW EH ILOOHG E\ DGKRF SURPRWLRQ XQGHU
5XOH

RI
WKH
5XOHV
ZKLFK
SURYLGHV
SURFHGXUH
IRU
DGKRF
DSSRLQWPHQW
E\
SURPRWLRQ ZKHUH VXFK DSSRLQWPHQWV DUH WR
EH PDGH XQGHU 6HFWLRQ RI WKH $FW μ LQ
UHVSHFW RI WKH YDFDQFLHV WR EH ILOOHG LQ E\
SURPRWLRQ μ LW PD\ EH REVHUYHG WKDW WKH 83
6HFRQGDU\ (GXFDWLRQ 6HUYLFHV &RPPLVVLRQ
5HPRYDO RI 'LIILFXOWLHV RUGHU KDV
VLQFH EHHQ UHVFLQGHG DQG WKH SURFHGXUH ODLG
GRZQ LQ WKH 5XOHV KROGV WKH ILHOG RI DGKRF
DSSRLQWPHQW 3DUD
&DVH ODZ GLVFXVVHG
 83/%(&
 83/%(&
 83/%(&

By the Court

1. The question that crops up for
consideration in this Special Appeal is as to
whether Adhoc appointment of a Lecturer in a
recognized intermediate College can be made
by promotion under Section 18 of U.P.
Secondary Education Service Selection Board
Act,1982 in short the Act read with provisions
confined in the U.P. Secondary Education
Service Commission Rules, 1995 in short the
Rules in respect of a "vacancy" which is
ultimately to be filled in by direct recruitment
in accordance with the provisions of the Act
read with Rule 14 of the Rules.

2. The facts of the case lie in a short
compass. Lady Prasanna Kaur Inter College
Sardar
Nagar
Gorakhpur
is
recognized
intermediate College in short the College. A
substantive vacancy in the post of Lecture
(English ) occurred on 1.7.1996. The vacancy
fell in the 50% quota prescribed for direct
recruitment. The Committee of Management
of the college however, passed a resolution on
16.11.1995 for giving adhoc promotion to the
appellant in the vacant post of Lecturer in
English as the appellant according to the
Committee of Management was qualified for
appointment to the post of Lecturer in
English. The papers were sent to the District
Inspector
of
Schools
vide
letter dated
11.3.1997 for financial approval for the
promotion of the appellant. The letter dated
11.3.1997 states that the Committee of
Management had taken the vacancy in
question to be one falling within 50% quota to
be filled in by promotion. It appears that no
decision in the matter was communicated by
the District Inspector of Schools to the
Management of the college whereupon the
appellant filed a Writ Petition being Civil
Misc. Writ Petition No.30587 of 1997 seeking
issuance of writ of mandamus commanding