# Deep Narain and others v. State Of U.P. and another

- **Citation:** (2010) 3 ILRA 949
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-31
- **Case number:** Criminal Revision No. 3502 of 2010
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deep-narain-and-others-v-state-of-u-p-and-another-41755
- **Pages:** 3

## Headnote

Sri S.N. Tripathi
A.G.A

Criminal
Revision-against
Summoning
order u/s 319 Cr.P.C. without specific
finding-if
evidence
remained
uncontroverted-conviction of Revisionist
can be held-order not sustainable

Held: Para 12

In the present case, no doubt the
learned Additional Sessions Judge has
passed a detailed order but he nowhere
recorded any specific finding whether or
not the evidence adduced in support of
the application filed under section 319
CrPC,
if
uncontroverted,
would
reasonably lead to conviction of the
revisionists. In absence of a finding in
this perspective, the summoning order
can not be upheld.
Case law discussed:
2009 (66) ACC 32, 2009 (66) ACC 273, (2000)
3 SCC 262, 2004 (7) SCC 792, 2010(5) ADJ
628

## Text

3 All] Deep Narain and others V. State of U.P. and another
949
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.08.2010

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Revision No. 3502 of 2010

Deep Narain and others
 ...Petitioner
Versus
State Of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri Shashi Bhushan

Counsel for the Respondent:
Sri S.N. Tripathi
A.G.A

Criminal
Revision-against
Summoning
order u/s 319 Cr.P.C. without specific
finding-if
evidence
remained
uncontroverted-conviction of Revisionist
can be held-order not sustainable

Held: Para 12

In the present case, no doubt the
learned Additional Sessions Judge has
passed a detailed order but he nowhere
recorded any specific finding whether or
not the evidence adduced in support of
the application filed under section 319
CrPC,
if
uncontroverted,
would
reasonably lead to conviction of the
revisionists. In absence of a finding in
this perspective, the summoning order
can not be upheld.
Case law discussed:
2009 (66) ACC 32, 2009 (66) ACC 273, (2000)
3 SCC 262, 2004 (7) SCC 792, 2010(5) ADJ
628

(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. Heard Mr. Shashi Bhushan for the
revisionists, Mr. S.N. Tripathi for the
respondent no.2 and the learned AGA for
the respondent no.1 and perused the
impugned judgment and order.

2. With the consent of the learned
counsel for the parties, the instant revision is
being disposed of finally at the stage of
admission.

3. The instant revision has been filed
against the order dated 6.8.2010 passed by
the Additional Sessions Judge (Fast Track
Court) Sant Kabir Nagar in S.T. No. 53 of
2009 ? State vs. Nagendra Shukla, whereby
the learned Additional Sessions Judge has
summoned the revisionist no.1, Deep
Narain with regard to the offences under
section 376/302 IPC and has summoned the
remaining revisionists in regard to the
offence under section 302 IPC.

4. It appears that the respondent no.2
lodged an FIR with the allegations that her
daughter (deceased Km. Meena) had made
an oral dying declaration before her,
according to which the revisionist no.1
Deep Narain committed rape on her and
after that the remaining revisionists put her
on
fire
after
sprinkling
kerosene,
consequently, the deceased sustained burn
injuries. In the hospital, the deceased made
a similar statement but the doctor did not
record her statement and referred her to
Gorakhpur but she died while she was on
way to Gorakhpur.

5. During the trial, the statements of
PW-1 Smt. Geeta Shukla, PW-2 Km. Reena
Shukla and PW-3 Km. Vedika Shukla were
recorded. These witnesses have supported
the prosecution story stated in the FIR.
Learned Additional Sessions Judge found it
proper to summon the revisionists under
section 319 CrPC and accordingly passed
the summoning order dated 6.8.2010.
950 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

6. The learned counsel for the
revisionists submitted that the learned
Additional Sessions Judge has not recorded
any finding as to whether the evidence
adduced
against
the
revisionists,
if
uncontroverted, is sufficient to record a
conviction against the revisionists.

7. In the case of Sarabjit Singh and
another vs. State of Punjab and another
2009 (66) ACC 32, the Apex Court held that
indisputably, before an additional accused
can be summoned for standing trial, the
nature of the evidence should be such which
would make out grounds for exercise of
extraordinary power. The materials brought
before the court must also be such which
would satisfy the court that it is one of those
cases where its jurisdiction should be
exercised sparingly. The Apex Court further
observed that an order under section 319
CrPC, therefore, should not be passed only
because the first informant or one of the
witnesses seeks to implicate other person.
Sufficient and cogent reasons are required to
be assigned by the court so as to satisfy the
ingredients of the provisions. Mere ipse dixit
would not serve the purpose. Such an
evidence must be convincing one at least for
the purpose of exercise of the extraordinary
jurisdiction.
After
making
these
observations, the Apex Court further held
that the courts are required to apply stringent
tests; one of the tests being whether evidence
on record is such which would reasonably
lead to conviction of the person sought to be
summoned.

8. Another Division Bench of the Apex
Court in the case of Brindaban Das and
others vs. State of West Bengal, 2009 (66)
ACC 273, propounded the same principle
and held that in matters relating to invocation
of powers under section 319 CrPC, the Court
is not merely required to take note of the fact
that the name of a person who has not been
named as an accused in the FIR has surfaced
during the trial, but the Court is also required
to consider whether such evidence would be
sufficient to convict the person being
summoned.
The
Apex
Court
further
observed that the fulcrum on which the
invocation of section 319, CrPC rests is
whether the summoning of persons other
than the named accused would make such a
difference to the prosecution as would enable
it not only to prove its case but to also secure
the conviction of the persons summoned.

9. In the case of Michael Machado &
Anr. V. Central Bureau of Investigation &
Anr., (2000) 3 SCC 262, the Apex Court
propounded that power under section 319
CrPC vested in the Court should be used
sparingly and the evidence on which the
same was to be invoked should indicate a
reasonable prospect of conviction of the
person sought to be summoned.

10. The prospects of conviction as one
of the requirement for summoning a person
as accused under section 319 CrPC has been
propounded even in the case of Krishnappa
vs. State of Karnataka, 2004 (7) SCC 792. It
has been held in that case that invocation of
the power under section 319 CrPC should
not have been resorted to, since the chances
of conviction on the basis of the evidence on
record was remote. Applying the principles
laid down in the cases of Michael Machado
(supra), the Apex Court further ruled that the
power to summon an accused is an
extraordinary power conferred on the Court
and it should be used very sparingly and only
if compelling reasons exist for taking
cognizance against the person other than the
accused.

11. After considering the aforesaid case
laws and few other decisions of the Apex
3 All] Jitendra Kumar Soni and others V. State of U.P. and others
951
Court, this Court in the case of Rajol v.
State of U.P., 2010(5) ADJ 628 has
observed in para 22 as follows:

"22. In the cases of Sarabjeet (Supra),
Brindawan Das, Michael Machado (supra)
and Krishnappa (supra), it has been clearly
held that summoning order should be passed
only when the evidence, if uncontroverted, is
of such a nature as to reasonably lead to
conviction of the person sought to be
summoned. The standard of evidence
required for summoning an additional
accused should be higher than the evidence
required for framing charges because the
jurisdiction under section 319 CrPC is to be
exercised sparingly in an extra ordinary
situation. Whether or not any evidence is of
such a quality as to record conviction if it
remains uncontroverted, is a variable
question depending upon the facts and
circumstances of each case and no hard and
fast rule can be laid down in this regard.
However, the court considering the evidence
for the purpose of section 319 CrPC is not
legally required to evaluate the evidence as it
is ordinarily done while rendering the final
judgment but the court has to see whether or
not, the evidence on record appeals to the
reason for the purposes of section 319 CrPC
and the story narrated by the witnesses
against the person sought to be summoned is
not improbable and absurd and a conviction
is
possible
on
such
statements,
if
uncontroverted. A non observance of this
legal
requirement
would
render
the
summoning order illegal."

12. In the present case, no doubt the
learned Additional Sessions Judge has
passed a detailed order but he nowhere
recorded any specific finding whether or not
the evidence adduced in support of the
application filed under section 319 CrPC, if
uncontroverted, would reasonably lead to
conviction of the revisionists. In absence of a
finding in this perspective, the summoning
order can not be upheld.

13. For the reasons discussed above,
the revision is allowed. The impugned order
dated 6.8.2010 is set aside. The learned
Additional Sessions Judge is directed to
reconsider the application filed under section
319 CrPC in the light of the observations
made hereinabove and pass an appropriate
order afresh in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE A.P. SAHI, J.
THE HON'BLE S.K. GUPTA, J.

Civil Misc. Writ Petition No. 3733 of 2009

Jitendra Kumar Soni and others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare,

Counsel for the Respondents:
Sri V.K. Singh,
Sri C.K. Rai,

Constitution of India Article 226,14,254Education-Admission
to
special
BTC
course-exclusion by the State Court of
degree
diploma/certificate
in
LT/B.P.Ed/D.P.Ed/C.P.Ed
from
institutions/university duly recognised
by the NCTE, but situate outside Uttar
Pradesh-Held,all institutions imparting
training courses approved by the NCTE
are a class by themselves-no distinction
can be made by State Governmentnotification imposing restriction held
unreasonable, violation of Article 14-