# Dinesh Chandra Tiwari v. State of U.P. and another

- **Citation:** (2000) 3 ILRA 222
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-09-28
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-chandra-tiwari-v-state-of-u-p-and-another-39446
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000

222
5. For all these reasons the following
questions are referred for being decided
by a larger bench.

1.
Whether
a
civil
revision
is
maintainable under Article227 of the
Constitution ?

2.
Whether by paying Rs. 100/- as court
fee a revision against an order passed by
the civil court against which a revision
under section 115 C.P.C. has been barred
can be entertained by this court under
Article 227 of the Constitution ?

3.
Whether under the rules of the court
the power under Article 227 can be
exercised by this court in a writ petition
against an order passed by civil court in
appeal or revision?

4.
Whether in absence of any procedure
prescribed by the rules of the court what
procedure would apply for exercising
power
under
Article
227
of
the
Constitution?

5.
Whether a person against whom an
order has been passed by civil court in
appeal or revision has no remedy?

Since the aforesaid questions are
arising frequently, the office is directed to
place the records of this case within a
week before the Hon'ble the Chief Justice
for constituting a larger bench.

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By the Court

1. This revision has been preferred
against the order dated 28.9.1999 passed
by
IInd
Additional
Sessions
Judge,
Kanpur Dehat in Special Sessions Trial
no. 7 of 99 summoning the applicant
under Section 319 Cr.P.C. and issuing
non bail able warrant and process under
Sections 82/83 Cr.P.C. against him.

2. The opposite party no,. 2 lodged
an F.I.R. against the applicant and some
3All] Dinesh Chandra Tiwari V. State of U.P. and another 223

 other
persons
under
Sections
147,148,149,302 I.P.C. and Section 3 (2)
(iv)S.C. &S.T. (Prevention of Atrocities)
Act on the basis of above report a case at
crime no.50 of 1998 was registered. After
investigation the police submitted charge
sheet against six persons. No charge
sheet was submitted against applicant.
After examination of P.W.I. Respondents
no.
2
moved
an
application
for
summoning the applicant and one Lala
Ram in the said case for trial along with
the other accused on the ground that she
had lodged report against them and the
witnesses also disclosed their involvement
in the settlement under Section 161
Cr.P.C. but the police did not submit
charge sheet against them.

3. Learned Special Judge on hearing
learned counsel for the prosecution held
that there was sufficient evidence on
record to summon the above applicant and
Lala Ram under Section 319 Cr,P.C. With
these finding he allowed the application
summoned the applicant and Lala Ram
for trial along with other accused. The
above order has been challenged in this
revision .

4. Heard the learned counsel for the
applicant, learned A.G.A. and the learned
counsel for the respondent no. 2 and
perused the record.

5. The learned counsel for the
applicant contented that the order of
summoning the applicant under Section
319
Cr.P.C.
was
passed
without
completion of cross examination of P.W.I.
and investigation against applicant was
pending and that the applicant be given
opportunity to file objection against the
summoning order before the Trial Court.
He also placed reliance on Single Judge
decision of this Court in Shailendra vs.
State of U.P. 1999 (38) ACC 441. On the
other hand learned counsel for the
opposite party No. 2 contended that cross
examination of the witness is not essential
for exercising power under Section 319
Cr.P.C. and there is no provision in the
Cr.P.C. for filing objection by an accused
summoned under Section 319Cr. P. C.

6. Having heard the submission of
the learned counsel for the parties I find
no force in the above contention, of
applicant's learned counsel..

7. Section 319 Cr.P.C. says that
here, 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 .

8. It was held by the apex Court in
the case of Jogider Singh Vs. State of
Punjab and others, 1979 (16) ACC,
43(SC) that the expression any person not
being accused occurring under Section
319 Cr. P.C. clearly covers any person,
who is not being tried already by the
Court and very purpose of enacting such a
provision like S.319 (1) clearly shows that
even persons, who have been dropped b
the police during investigation but against
whom
evidence
showing
their
involvement in the offence comes before
the criminal Court are included in the said
case, The above view was repeated by the
Apex Court in the case of Municipal
Corporation of Delhi Vs. Ram Kishan
Rohtagi, 1983 (20)ACC 50 (SC).
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

224
9. In the instant case. The name of
applicant was mentioned in the F.I.R.
After investigation he was not challenged.
In her statement before the Trial Court
(P.W.I) Smt. Shakuntala stated about
involvement of the applicant in her
evidence. Section 319 Cr.P.C. is meant
only
for
determining
whether
the
evidence recorded in the Court prima
facie indicates that some person other
than
the
accessed
facing
trial has
committed the offence and in case, the
evidence indicates the involvement of
such person, he may be summoned to face
trial.

10. For invoking provisions of
/section
319
Cr.
P.c.
the
cross
examination of the witness in the court is
not necessary .As held by Division Bench.
This Court in the case of Ram Gopal and
another Vs. State of U.P. ,1999 (38) ACC
123 the term "Evidence' as used in
section 319 Cr. P.C. does not mean
"evidence
completed
by
cross
examination" and the Court can take
action under Section 319 Cr.P.C. even on
the statement in the examination in chief
of one or more witness. The observations
in the Single Judge decision in the case of
Shailendra Vs. State are thus against the
Division Bench and therefore cannot be
relied on.

11. It was also observed in the case
of
Shailendra
Vs.
State
of
U.P.
(Supra)relied on by the learned counsel
for the applicant that summoning order is
ex-parte order and only on basis of
examination in chief of two prosecution
witnesses Updesh Singh Chauhan and
Mithilesh Kumari the applicant has been
summoned but their cross examination
has not been done so far. The revisionist
first of all will appear and then he would
be granted opportunity to cross examine
the witnesses and it is also provided that
in
case
the
revisionist
moves
an
application to the effect that no case is
made out against him or raising any other
contentions which he desires to raise the
learned Additional Sessions Judge will
consider and dispose of the same after
providing an adequate opportunity of
hearing to the revisionist.

12. So far question of passing the
summoning order under Section 319 Cr.
P.C. before cross examination of the
witness is concerned, has been answered
in the Division Bench case of Ram Gopal
and another (Supra). The direction
regarding providing opportunity to the
applicant to file objection against the
summoning order appears to have been
issued in view of Kailash Chaudhary'
case 1993 (30) ACC 665 which has been
over ruled in Full Bench decision of this
Court in case of Ranjeet Singh & others
vs. State of U.P. and another, 2000 (40)
ACC 342, in which it was held that the
aforesaid
conclusion
in
Kailash
Chaudhary 's case is not bad up by the
provisions in the Cr. P.C. and it amounts
to reversing the procedure for trial, which
is not permissible under the Cr.P.C.
Challenging the order of issuing processes
before the Court issuing said processes is
in fact requiring the arms of the clock to
move anti-clockwise which does not
happen or atleast should not happen. A
parallel trial should not commence before
the actual trial beg..... Therefore, there
appears no question of affording any
opportunity
to
the
applicant
before
passing summoning order under Section
319 Cr. P.C. to cross examine a witness or
to
file
any
objection
against
the
summoning
order
before
proceeding
further.
3All] Dinesh Chandra Tiwari V. State of U.P. and another 225

13. Lastly it was contended that the
Trial Court has issued non bailable
warrant as well as processes under
Section 82/83 Cr. P.C. simultaneously
which is harsh one. I do agree with the
learned counsel for the applicant that the
Trial Court ought to have issued summon
to the applicant first and if he did not
respond to it, it would have issued non
bailable warrant and other processes
provided under law.

14. Therefore, the revision has no
force and it should be dismissed with the
observation that at the first instance, the
Trial Court shall issue summon against
applicant and would adopt coercive
measure
to
secure
his
attendance
subsequently if he does not respond to the
summons.

15. The revision is, accordingly,
dismissed with the above observations.
Revision Dismissed.