# Hamid & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2025) 12 ILRA 881
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-19
- **Case number:** Criminal Revision No. 4925 of 2024
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hamid-ors-revisionists-v-state-of-u-p-anr-54858
- **Pages:** 14

## Text

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12 All. Hamid & Ors. Vs. State of U.P. & Anr.
881
discharged. The appellant, Onkar need not
surrender.

58. Let a copy of this order be sent to
the Trial Court concerned along with the
Trial Court record for information and
necessary compliance.
---------
(2025) 12 ILRA 881
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2025

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Criminal Revision No. 4925 of 2024

Hamid & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Issue for Consideration
Issue pertains to whether the Sessions Court
was justified in law in allowing the application
u/s 319 CrPC and summoning the revisionist -
applicants to face trial, despite repeated
earlier rejections of similar applications,
and without duly considering the effect of
the Supreme Court's order clarifying that
dismissal of the SLP would not amount to
an expression on merits, particularly in the
light of the evidentiary material on record,
including
cross-examination
of
prosecution
witnesses and the settled parameters governing
the exercise of power u/s 319 CrPC.

Headnotes
Code of Criminal Procedure, 1973 - ss.
161, 319 - Indian Penal Code, 1860 - ss.
147, 148, 149, 302, 307, 352, 504 - The
case arises out of an incident of murder
dated 19.05.2020, in respect of which an
FIR was lodged on the same day naming
ten accused persons, with one more added
during investigation, although the present
revisionist/applicants were named in the
FIR,
they
were
exculpated
during
investigation on the basis of statements of
certain
independent
witnesses
and
consequently
not
charge-sheeted
-
Repeated attempts were thereafter made
by the informant/opposite party no. 2 to
summon the applicants first at the stage
of cognizance, then after committal, and
subsequently
through
multiple
applications u/s 319 CrPC each of which
was either rejected or deferred by the
courts below until an application dated
25.07.2023 was rejected on merits by the
Sessions Court - That rejection was set
aside by High Court on 08.07.2024 with a
direction to reconsider the matter in light
of the judgment in Sandeep Kumar v.
State of Haryana - While the applicants'
challenge to the said remand order was
pending before the Supreme Court, and
despite the Supreme Court's order dated
14.08.2024 clarifying that dismissal of the
SLP would not amount to an expression on
merits or on the role of the applicants, the
Sessions Court proceeded to allow a fresh
application u/s 319 CrPC on 17.08.2024
and summoned the applicants to face trial,
which summoning order was challenged in
the instant criminal revision.

Held: Once the Hon'ble Supreme Court, while
dismissing the SLP had clarified that the
impugned judgment and the dismissal of SLP
would not be treated as an expression of
opinion on the merits of the case, including the
alleged role of the petitioners (applicants), in
the opinion of this Court, all questions of fact
and law would be open to be raised by the
applicants before the Sessions Court pursuant to
the remand made by the High Court and,
therefore, making cursory reference to the cross
examination of PW-1, PW-2 and PW-3, without
even indicating as to what they had stated
about role of the applicants, allowing application
u/s 319 CrPC, does not appear to be justified -
Court found it to be a fit case where the matter
has to be reconsidered by the Sessions Court
after taking into consideration the observations
made by the Supreme Court in the order dated
14.08.2024 passed in SLP (Criminal) No. 10780
of 2024, entire material on record, including
cross-examination of witnesses significance
whereof has been emphasised by the Supreme
Court in its decisions - Thus, criminal revision
allowed, impugned order set aside. [Paras 31 to
33] (E-13)
882 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law Cited
Aarif and others v. State of Rajasthan and
another, 2023 SCC OnLine SC 1375; Hetram
@ Babli v. State of Rajasthan and another,
2024 SCC OnLine SC 3509; S. Mohammed
Ispahani v. Yogendra Chandak and others,
(2017) 16 SCC 226; Hardeep Singh v. State
of Punjab and others, (2014) 3 SCC 92;
Brijendra Singh and others v. State
of
Rajasthan, (2017) 7 SCC 706; Amar Singh
and others v. State of U.P., 2024 SCC OnLine
All 2234; Sandeep Kumar v. The State of
Haryana and another, 2023 LiveLaw (SC)
573 - referred to

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973

List of Keywords
Criminal revision; Application u/s 319 CrPC;
Summoning;
Face
trial;
Charge-sheet;
Cognizance stage; Committal; Examination-inchief;
Cross-examination;
Independent
witnesses; Statements recorded u/s 161 CrPC;
Jurisdictional error; Material irregularit; Undue
haste;
Exercise
of
power;
Prima
facie
satisfaction;
Merits
of
the
case;
Judicial
propriety; Pendency of SLP; Clarification by
Supreme Court; Expression of opinion on
merits; Reconsideration; Fresh order; Remand;
Revision allowed; Impugned order set aside.

Case Arising From
REVISIONAL JURISDICTION: Criminal Revision
No. - 4925 of 2024

From the Judgment and Order dated 17.08.2024
passed by the Sessions Court, Meerut in S.T. No.
574 of 2020 arising out of Case Crime No. 126
of 2020, Police Station Mundali, Meerut

Appearances for Parties
Advs. for the Revisionist:
Gaurav Kumar Srivastava, M.N. Singh, Mahesh
Narain Singh, Satya Prakash Rai, Vimlendu
Tripathi

Advs. for the Opposite Party:
G.A., Sushil Dubey

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri Vimlendu Tripathi,
learned counsel assisted by Shri Gaurav
Kumar Srivastava and Shri Satya Prakash
Rai, Advocates appearing for the applicants
in revision, Shri Rajesh Kumar Rao,
learned A.G.A. for the State and Shri
Sushil Dubey, learned counsel appearing
for opposite party No. 2.

2. The present revision under
Section 397/401 CrPC has been filed by
three persons challenging the order dated
17.08.2024 whereby an application 133Kha filed by opposite party no. 2 under
Section 319 CrPC has been allowed by the
Sessions Court and the applicants have
been summoned to face trial under Sections
147, 148, 149, 302, 307, 352, 504 IPC in
S.T. No. 574 of 2020 (State Vs. Abubakar
and others) arising out of Case Crime No.
126 of 2020, Police Station Mundali,
District Meerut.

3. The case has a long history and
various proceedings right from lodging of
FIR till passing of the order impugned and
even subsequent thereto, need reference in
a chronological manner.

4. In relation to an incident of murder
occurred on 19.05.2020, a First Information
Report was lodged on the same day at 20.42
hours indicating occurrence at 19.30 hours.
Ten (10) persons were named in the FIR and
name of one person, namely, Niyaz was added
during investigation, bringing the total number
of accused to eleven (11). The applicants,
though named in the FIR, their names were
expunged during the course of investigation as
their presence on the spot was not found. As a
result thereof, charge sheet was submitted only
against 8 persons.

5. When the charge sheet was
submitted
before
the
Chief
Judicial
12 All. Hamid & Ors. Vs. State of U.P. & Anr.
883
Magistrate, Meerut, an application was
moved by opposite party no. 2 requesting
summoning of the applicants mentioning
that their names were wrongly expunged.
The said application was disposed of by
order dated 09.07.2020 by referring to the
statements recorded under Section 161
CrPC
indicating
as
to
whether
the
applicants had aided in commission of
crime or not, the same was a matter of trial
which would be considered after evidence
is led.

6. After the matter was committed
to the court of Session, another application
(6-Kha) was moved by opposite party no. 2
praying for summoning of the applicants,
however, the same was rejected by the
Sessions Court by order dated 13.05.2022
observing that no additional facts had been
brought on record. Thereafter, charges were
framed and when examination-in-chief of
PW-1 commenced on 06.07.2022 and
concluded on 05.12.2022, in the meantime,
another application under Section 319
CrPC was moved on 19.09.2022 containing
the same prayer for summoning the
applicants to face trial. An order was
passed by the trial court on 24.02.2023
deferring
consideration
of
the
said
application till recording of evidence of
other witnesses of fact. The said application
is said to be still pending.

7. Thereafter, evidence of PW-2
and PW-3 was recorded and before cross
examination of PW-3 could be concluded,
another
application
(95-Kha)
dated
25.07.2023 was moved by opposite party
no. 2 making same prayer for summoning
the
applicants.
The
application
was
opposed by the charge-sheeted accused by
filing objections dated 29.08.2023 and, by
an order dated 09.10.2023, the same was
rejected by the Sessions Court on merits.
8. Opposite party no. 2, being
aggrieved of the order dated 09.10.2023,
approached this Court by filing Criminal
Revision No. 5780 of 2023 (Ajwar Vs.
State of U.P. and 3 others), which was
allowed by order dated 08.07.2024, setting
aside the order dated 09.10.2023 with a
direction to the court concerned to pass a
fresh order in the light of observations
made in the order within one month from
the date of presentation of certified copy of
the order.

9. Opposite party no. 2 filed
another application dated 18.07.2024 (133Kha) under Section 319 CrPC annexing
therewith a copy of the order dated
08.07.2024 passed by this Court and prayed
for summoning the applicants. While the
said
application
was
posted
for
consideration, the applicants brought to the
notice of the trial court the challenge laid
by them to the order dated 08.07.2024 by
way of SLP (Criminal) No. 10780 of 2024
before the Hon'ble Supreme Court.

10. On 09.08.2024, an order was
passed by the Sessions Court taking note of
pending SLP and disposal of application
(133-Kha) was deferred fixing 14.08.2024.
On 14.08.2024, arguments on application
(133-Kha) were heard and the matter was
posted for passing order on 17.08.2024, on
which date, the order impugned in the
instant revision has been passed allowing
the application (133-Kha) and summoning
the applicants to face trial, as already noted.

11.
Learned
counsel
for
the
applicants
has
raised
following
submissions:-

 (i) The Sessions Court proceeded
in undue haste and though, on 09.08.2024,
taking note of pendency of SLP against the
884 INDIAN LAW REPORTS ALLAHABAD SERIES
order
dated
08.07.2024,
disposal
of
application (133-Kha) was deferred fixing
14.08.2024, on which date the SLP was
decided but order was not uploaded that
day but the same was uploaded on
17.08.2024, about which also, the Sessions
Court was informed on 17.08.2024, the
order impugned has been passed in
ignorance of the same and, therefore, the
order is liable to be set aside on this ground
alone.

 (ii) The order impugned is based
upon the observations made by this Court
in the order dated 08.07.2024 without
making any reference to the order passed
by Honble Supreme Court, according to
which, all questions on merits were opened
to be raised by the applicants with
reference to their role in the matter and,
therefore, disposal of the application in
ignorance of the order of Honble
Supreme Court, is unsustainable.

 (iii) At every stage, the prayer for
summoning the applicants was declined by
the
court,
firstly,
on
09.07.2020
at
cognizance stage, secondly, on 13.05.2022
after commital of the case to the Sessions
Court, thirdly, adjudication was deferred by
order dated 24.02.2023 awaiting recording
of evidence of other witnesses of fact
which application is still pending, fourthly,
on 09.10.2023, which order, though was set
aside in revision but once dismissal of
revision has been made ineffective by the
Honble Supreme Court, the circumstance
would be read in favour of the applicants
and, hence, passing of the order impugned
on the same set of facts and material on
record, is wholly unjustified.

 (iv) The order impugned is based
upon the observations made in the order
dated 08.07.2024 passed by this Court and,
therefore, the Sessions Court has treated the
said order as final, though the same has to
be understood in the light of the order
passed by the Honble Supreme Court and
also the law laid down in various
judgments relied on by the applicants
before this Court as to the exercise of
powers under Section 319 CrPC and,
therefore, cursory observations made in the
order
impugned
without
meticulously
examining the record of proceedings,
cannot be countenanced.

 (v) There are overwritings in the
initially moved application/Tehrir dated
19.05.2020 by the informant, not only as to
the time of occurrence of the incident but
also involvement of the applicant no. 1 and
also serious contradictions in the statements
of witnesses, particularly cross examination
of PW-1, PW-2 and PW-3 which have not
been considered by the Sessions Court and,
therefore, the ratio laid down in Aarif and
others Vs. State of Rajasthan and
another: 2023 SCC OnLine SC 1375,
Hetram @ Babli Vs. State of Rajasthan
and another: 2024 SCC OnLine SC 3509,
S. Mohammed Ispahani Vs. Yogendra
Chandak and others: (2017) 16 SCC 226,
Hardeep Singh Vs. State of Punjab and
others: (2014) 3 SCC 92, Brijendra Singh
and others Vs. State of Rajasthan: (2017)
7 SCC 706 and Amar Singh and others
Vs. State of U.P.: 2024 SCC OnLine All
2234, has not been followed, hence, the
order impugned is unsustainable.

 (vi) Specific averments made in
paragraph no. 60 of the affidavit supporting
stay
application/memo
of
revision
regarding proceedings held by the Sessions
Court on 09.08.2024, 14.08.2024 and
17.08.2024 with reference to the order of
Honble Supreme Court and information
given by the applicants side to the
12 All. Hamid & Ors. Vs. State of U.P. & Anr.
885
Sessions Court having not been disputed in
the counter affidavit, it is a case where
undue haste was shown by the Sessions
Court in passing the order impugned and in
all propriety, the matter should have been
deferred until the order dated 14.08.2024
disposing of the SLP could be brought on
record and perused, for which no occasion
could arise due to final order passed in
haste.

 (vii) The High Court, though
allowed the revision filed by opposite party
no. 2 by order dated 08.07.2024, even if the
order
of
Honble
Supreme
Court
dismissing
the
SLP
and
also
the
observations made thereafter are ignored,
the observations and findings recorded in
paragraph nos. 50, 51 and 52 of the order of
this Court clearly read in favour of the
applicants and, hence, even if the High
Courts order was to be relied on by the
Sessions Court, the said observations were
sufficient to reject the application (133Kha).

 (viii)
The
presence
of
the
applicants having not been found on the
spot as stated by various independent
witnesses, three of whom are shown as eye
witnesses at Sl. Nos. 6, 7 and 8 of the
charge sheet, there was no justifiable
reason for the Sessions Court to allow
application (133-Kha) merely on the
ground that Section 149 IPC has been
pressed into service indicating formation of
an unlawful assembly in which the
applicants were also involved.

 (ix) A cross case was registered at
Crime No. 361 of 2020 on account of injuries
sustained by the defence side, incident in
relation whereto occurred at 9.00 PM the
same day and, in the said case, one Niyaz
sustained injuries but he was added as 11th
accused in the present case and record of
proceedings of the present case read with the
proceedings of the cross case reflects
absolutely no involvement of the applicants
in commission of crime, as alleged, and,
hence, the cursory allowing the application
(133-Kha) is not according to law.

 (x) Reliance placed by this Court
while deciding the aforesaid criminal revision
by order dated 08.07.2024, on the judgment
of Hon'ble Supreme Court in the case of
Sandeep Kumar Vs. The State of Haryana
and another: 2023 LiveLaw (SC) 573 is
misplaced as the said judgment has been
passed in ignorance of various other
decisions on the point of exercise of power
under Section 319 CrPC and, for this reason,
though SLP was dismissed by Honble
Supreme Court, dismissal was held to be non-
prejudicial to the defence qua role of the
applicants to be agitated before the court after
remand by the High Court and, therefore,
things have to be considered in their entirety,
not only on facts but also on the law
governing the subject.

12. Per contra, learned AGA submits
that all the arguments advanced relate to the
questions which may be considered during
the course of trial and once the last order
rejecting the application under Section 319
CrPC was set aside by the High Court in
Criminal Revision, which order was upheld
by
the
Honble
Supreme
Court
by
dismissing
the
SLP
by
order
dated
14.08.2024, no illegality has been committed
by the Sessions Court in allowing the
application based upon critical analysis of
material available on record and, hence, no
interference is warranted.

13. Learned counsel for opposite
party
no.
2
has
made
following
submissions:-
886 INDIAN LAW REPORTS ALLAHABAD SERIES
 (i) The case being a double
murder case and the applicants being
named in the FIR, expunging their names
based upon the statements of independent
witnesses, who were not eye witnesses, that
the applicants were not present on the spot,
in itself, would not be sufficient to reject
the application under Section 319 CrPC
and, at this stage, only prima facie
satisfaction has to be recorded by the court
concerned where trial against the persons
not charge-sheeted may be felt necessary
and, hence, the detailed order passed by the
Sessions Court does not call for any
interference.

 (ii) The applicants would not get
any advantage of the order passed by the
Hon'ble Supreme Court, inasmuch as their
SLP was dismissed and even if certain
observations were made by the Honble
Supreme Court, the Sessions Court has
considered the case of both sides on merits
after granting opportunity of hearing to the
applicants and has arrived at a lawful
conclusion based upon the record of
investigation, particularly expunging the
names of the applicants merely based upon
the statements of independent witnesses.

 (iii) Indication made at entries
No. 6, 7 and 8 of the charge sheet as
regards witnesses, wherein three persons
out of others have been described as eye
witnesses by the Investigating Officer, is
thoroughly misplaced and cannot be
considered as the said persons were not
indicated as eye witnesses by the informant
and
Investigating
Officer
had
no
competence or authority to indicate their
names as eye witnesses. The fact remains
that they would be treated as independent
witnesses only and once the presence of the
applicants and their specific role of causing
physical assault and fire arm injury stand
reflected not only from the contents of FIR
but also in the testimony of witnesses, the
same was sufficient to exercise powers
under Section 319 CrPC and, therefore, the
order impugned does not call for any
interference.

 (iv) By referring to paragraph no.
28 of the counter affidavit, it is contended
that eight (8) so called independent
witnesses had been introduced by the
Investigating Officer himself and these
witnesses falsely stated that it was the
month of Ramzan and that the incident took
place near mosque at the time of Namaz,
whereas, in reality, the incident took place
during the lock-down period due to Covid19 when the mosque was completely closed
and, in fact, no such independent witness
was present at the place of occurrence nor
was it naturally possible. It is further
contended that the alleged independent
witnesses reside at a distance of 1 Km, 900
mtrs, 800 mtrs and 300 mtrs, which
demonstrates
that
none of
the
said
witnesses was present on the spot and their
statements were got recorded on account of
collusion in between them and the
investigating officer.

14.
I
have
considered
the
submissions made by learned counsel for
the parties and have perused the material
available on record.

15. Though it is true that the
application of opposite party no. 2 to
summon the applicants was rejected at
cognizance stage by order dated 09.07.2020
and, after commital, it was again rejected
on 13.05.2022 by the Sessions Court and,
then, after certain statements were recorded
and before the completion of crossexamination of PW-3, adjudication of
another application under Section 319
12 All. Hamid & Ors. Vs. State of U.P. & Anr.
887
CrPC was
deferred
by
order dated
24.02.2023
awaiting
recording
of
statements of other witnesses of fact, the
fact remains that a subsequent application
dated 25.07.2023 (95-Kha) was finally
rejected on 09.10.2023. The said order was
set aside by this Court while allowing
Criminal Revision No. 5780 of 2023 by
order dated 08.07.2024. It is necessary to
reproduce certain portions of the said order,
as emphatically argued by learned counsel
for the applicants. Paragraphs no. 50, 51
and 52 of the order dated 08.07.2024 are
extracted herein under:-

 "50. The Court has now to
consider as to whether the satisfaction,
which is required to be observed by a Court
before summoning a prospective accused
could have been observed by Court below
on the basis of the depositions of PW-1
Ajwar (first informant), PW-2 Abdullah and
PW-3 Asjad. Upon evaluation of the
depositions of PW-1, PW-2 and PW-3, this
Court finds that the statements of PW-1, PW2 and PW-3 were also recorded under Section
161 Cr.P.C. However, when a parallel is
drawn in between the statements of
aforementioned witnesses recorded under
Section 161 Cr.P.C. and their depositions
before Court below this Court finds that
nothing new has been stated by the
aforementioned
witnesses
in
their
depositions before Court below. On the
same material, the prospective accused i.e.
opposite parties 2, 3 and 4 herein, who are
named in the FIR were exculpated as the
independent witnesses examined by the
Investigating Officer under Section 161
Cr.P.C., the complicity of the opposite parties
2,3 and 4 was not found to be established in
the crime in question.

 51.
From
the
perusal
of
depositions of PW-1, PW-2 and PW-3, it is
apparent that nothing new has been stated
by aforementioned witnesses than what was
stated by them in their statements under
Section 161 Cr.P.C.. As such, the caution
given by the Apex Court in the case of
Brijendra Singh (Supra) to the effect that
in case, a witness has also been examined
under Section 161 Cr.P.C. then the Court
should find out whether something new has
emerged in this deposition before Court
below and only thereafter proceed to allow
the application under Section 319 Cr.P.C.
Since the aforesaid caution given by the
Apex Court is not satisfied in the present
case coupled with the fact that the
statement of aforementioned witnesses
recorded under Section 161 Cr.P.C.
stood belied by the statements of the
independent witnesses examined under
Section
161
Cr.P.C.,
therefore,
no
illegality can be said to have been
committed by Court below in passing the
order impugned.

 52. It is thus apparent that the
prospective accused i.e. opposite parties 2,
3 and 4 herein were named in the FIR but
not charge sheeted. The prosecution has
filed an application under Section 319
Cr.P.C.
after
the
statement-inchief/examination-in-chief
of
three
prosecution witnesses of fact i.e. PW-1
Ajwar (first informant), PW-2 Abdullah
and PW-3 Asjad was recorded on the
ground that as per the depositions of
aforementioned witnesses, the complicity
of the prospective accused i.e. opposite
parties 2, 3 and 4 herein also stands
established in the crime in question.
However, the statements of aforementioned
witnesses were also recorded under Section
161 Cr.P.C., which is similar to their
depositions before Court below. As such,
nothing new has emerged in the depositions
of PW-1, PW-2 and PW-3 before Court
888 INDIAN LAW REPORTS ALLAHABAD SERIES
below than what was stated by them in
their previous statements recorded under
Section 161 Cr.P.C. The veracity of the
statements of aforementioned witnesses
recorded under Section 161 Cr.P.C.
stood belied by the statements of the
independent witnesses examined under
Section 161 Cr.P.C. namely Mustajab,
Masroob, Matloob, Masroof Ali, Mohd.
Javed, Sajid and Azhar, who have not
implicated the prospective accused in the
crime in question as their very presence
at the time and place of occurrence was
denied by them. As such, up to this stage,
the conclusion drawn by Court below to
reject the application filed by the
prosecution/first
informant
under
Section 319 Cr.P.C. is in consonance
with the directions issued by the Apex
Court in the case of Brijendra Singh
(Supra) and S. Mohammad Ishpahani
(Supra)."

16. A perusal of the afore-quoted
portions of the order of this Court indicates
that the conclusion drawn by the Sessions
Court while rejecting the application under
Section 319 CrPC was found to be in
consonance with the directions issued by the
Honble Supreme Court in the case of
Brijendra
Singh
(supra)
and
S.
Mohammed Ispahani (supra). However,
the reason for allowing the revision and
conclusion is contained in paragraphs no. 53
to 60 of the order of this Court, which also
need reproduction. For a ready reference, the
same are reproduced as under:-

 "53. However, subsequently, the
Apex Court in the case of Sandeep Kumar
Vs. State of Haryana, 2023 SCC OnLine
SC 888, has held that in a case under Section
149 IPC, once the presence of prospective
accused
stands
emerged
as
per
the
depositions of the prosecution witnesses
examined up to the stage of the application
under Section 319 Cr.P.C. then in such a
circumstance, no other material is required to
be looked into for ascertaining the innocence
of the prospective accused. As such, the
aforementioned judgment has carved out an
exception to the ratio laid down by the Apex
Court in the Five Judges Bench judgment in
Hardeep Singh (Supra), Brijendra Singh
(Supra) and S. Mohammad Ishpahani
(Supra).

 54. As per the depositions of PW1, PW-2 and PW-3 recorded before Court
below, the presence of prospective accused
i.e. opposite parties 2, 3 and 4 herein at the
time and place of occurrence is fully
established. In view of above, the finding
returned by Court below qua the innocence of
prospective accused that as per the statements
of independent witnesses examined during
the
course
of
investigation
by
the
Investigating Officer is of no consequence, so
far as the summoning of the prospective
accused under Section 319 Cr.P.C. is
concerned.

 55. In view of above, the Court
below has committed a jurisdictional error in
passing the order impugned inasmuch as, the
Court below has clearly ignored the ratio laid
down by the Apex Court in the case of
Sandeep Kumar (Supra). The Court below
has thus exercised its jurisdiction with
material irregularity, which has vitiated the
order impugned.

 56. As a result, the present
criminal revision succeeds and is liable to
be allowed.

 57. It is, accordingly, allowed.

 58. The order impugned dated
09.10.2023 passed by Additional Sessions
12 All. Hamid & Ors. Vs. State of U.P. & Anr.
889
Judge/Special Judge (E.C. Act), Court No.
2, Meerut, in Sessions Case No. 1126 of
2020 (State Vs,. Abubuquar and others),
under sections 147, 148, 149, 302, 307,
352,
504,
34
IPC,
Police
StationMundawali, District-Meerut, is, hereby, set
aside.

 59. The Court below shall pass a
fresh order in the light of the observations
made herein above within a period of one
month from the date of presentation of a
certified copy of this order.

 60. Considering the facts and
circumstances of the case, the cost is made
easy.

17. A bare perusal of the aforequoted paragraphs
indicates
that
the
revision was allowed by referring to the
decision of Hon'ble Supreme Court in the
case of Sandeep Kumar (supra) and the
Sessions
Court
was
found
to
have
committed a jurisdictional error ignoring
the ratio laid down in the said case.

18. As to what would be the effect
of the order of this Court, is to be seen in
the light of order dated 14.08.2024 passed
by the Honble Supreme Court in SLP
(Criminal) No. 10780 of 2024, filed by the
applicants. The said order is reproduced as
under:-

 "We
are
not
inclined
to
interfere with the impugned judgment
and, hence, the present special leave
petition is dismissed.

 We, however, clarify that the
impugned judgment and the dismissal of
the present special leave petition will not
be treated as an expression of opinion on
the merits of the case, including the
alleged role of the petitioners.

 Pending application(s), if any,
shall stand disposed of."

19. The Honble Supreme Court,
though did not interfere with the order of
this Court and dismissed the SLP, while
doing so, a clarification was made that the
impugned judgment and the dismissal of
SLP would not be treated as an
expression of opinion on the merits of the
case, including the alleged role of the
petitioners (applicants herein).

20. In view of the aforesaid, it was
incumbent for the Sessions Court to, at
least, refer to the order passed by the
Honble Supreme Court and understand its
implications on the merits of the case (both
on facts and law), however, the order of the
Honble Supreme Court was not before
the Sessions Court. Qua this aspect,
reference to the relevant order sheet of the
Sessions Trial is necessary. The same reads
as under:-

 "ST 574/20

सरकार अबुबकर+8
U/S 302, 370 IPC
PS मुण्डाली

 09-8-24

 सत्र
वाि
प्रस्तुत।
पुकार
पर
अधभ०गण नाधजम, असलम व वसीम जेल से
अधभ०गण गय्यूर, निीम व अ० काधिर जमानत
पर उपक्तस्र्थत। अबूबकर जेल से उपक्तस्र्थत नहीं
आर्ा तलब हो। अधभ० धनर्ाज उपक्तस्र्थत नहीं।
वादी मुकदमा हाममद की ओर से 137ख
प्रा०पत्र मय शपथपत्र प्रस्तुत मकया गया मक
890 INDIAN LAW REPORTS ALLAHABAD SERIES
मा०
सवोच्च
न्यायालय
में
योमित
एस०एल०पी० के मिस्तारण तक प्रा०पत्र u/s
319 Cr.p.c. के प्रा०पत्र की सुिवाई स्थमगत
की िाये। पत्रावली वास्ते मिस्तारण प्रा०पत्र
133ख व 137ख मद० 14/8/24 को पेश हो।

 14-8-24

 सत्र
वाि
प्रस्तुत।
पुकार
पर
अधभ०गण असलम, अबूबकर, नाधजम व वसीम
धजला कारागार से उपक्तस्र्थत। अधभ० धनर्ाज
जररर्े v/c जेल से तलब हुए। अधभ०गण गय्यूर,
अ० काधिर व निीम जरे जमानत उपक्तस्र्थत।
प्रा०पत्र 133ख पर उभयपक्ोों के अमिवक्ता
को सुिा। पत्रावली वास्ते आदेश मदिाोंक
17/8/24 को पेश हो।"

21. A perusal of the order sheet
indicates that factum of pendency of SLP
was noted by the court on 09.08.2024 and
hearing of application (133-Kha) was
deferred fixing 14.08.2024. On 14.08.2024,
arguments on application (133-Kha) were
heard. Admittedly, SLP was decided by the
Honble Supreme Court on the same day,
i.e. on 14.08.2024.

22. At this stage, reference to
paragraph no. 60 of the affidavit supporting
stay application/memo of revision needs to
be made, which is reproduced as under:-

 "60.
That
on
05.08.2024
application was filed on behalf of Learned
Counsel appearing on behalf of the
revisionist no. 1 seeking an extremely short
adjournment in the matter. On the said
application 09.08.2024, was the date fixed.

 That
on
09.08.2024
an
application alongwith status report of SLP
(Crl) was also filed before the Court below
to demonstrate that the tentative date fixed
in SLP (Crl) is 14.08.2024.

 That on 14.08.2024 when the
matter was heard by the Learned Court
below
post
lunch
whereupon
due
intimation was given that the SLP (Crl)
has
already been
decided
by
the
Honble Supreme Court a few minutes
before whereby direction has been issued
to decide the matter on its own merit and
without
being
influenced
with
the
judgment of the Honble Court or with
the dismissal of SLP (Crl) including the
alleged role of the revisionists. As such
request was made to grant a short date
so that the judgment of the Honble
Supreme Court may be placed on
record. But the Learned Court below
was adamant to decide the matter
because the time of one month, as per
direction of the Honble High Court,
was coming to an end. On repeated
requests the Learned Court below
adjourned the matter on 17.08.2024
with an assurance that without looking
into the order passed by the Honble
Supreme Court no further action will
be taken in the matter. On 17th, the
order of the Honble Supreme Court,
was uploaded on the official website
after 4 in the evening, however the
Learned Court below without waiting
for the same pass the impugned order
in a most arbitrary manner. Copy of
order passed by Supreme Court dated
14.08.2024 is being filed herewith and
marked as Annexure No. 27 to this
affidavit."

23. The aforesaid paragraph has
been responded to in paragraph no. 48 of
the counter affidavit filed by the opposite
party no. 2. The same reads as under:-
12 All. Hamid & Ors. Vs. State of U.P. & Anr.
891
 "48. That the contents of
paragraph no. 60 of the affidavit is a
matter of record describing of the filing
of SLP before the Honble Supreme
Court, hence, needs no comment."

24.
Considering
the
detailed
statement of facts qua the order passed by
Hon'ble Supreme Court on 14.08.2024 and
its uploading after 4.00 PM on 17.08.2024
and insistence on the part of applicants
requesting Sessions Court to wait for order
of Hon'ble Supreme Court and no specific
denial of the same in the counter affidavit,
the Court has no reason not to accept the
statement contained in paragraph no. 60 of
the affidavit. Once it is so, the Court finds
absolutely no justification on the part of the
Sessions Court to show undue haste in
passing the final order on the same day, i.e.
17.08.2024 and in all judicial propriety, it
should have waited for bringing the order
of the Honble Supreme Court on record
and,
then,
proceed
to
decide
the
application.

25. It further reflects that the order
dated 17.08.2024 impugned in the present
revision, at so many places, indicates that
the same is being passed "in compliance of
or in furtherance of the order dated
08.07.2024" passed by the High Court in
the revision and no reference of the order
of
Hon'ble
Supreme
Court
and
its
implication is contained therein. In this
background of facts, this Court does not
approve the approach of the learned
Additional Sessions Judge, Court No. 4,
Meerut and finds undue haste on his part in
deciding the application (133-Kha).

26. Although, learned counsel for
opposite party no. 2 has also tried to defend
quick disposal of the application by arguing
that the time limit fixed by the High Court
was going to expire, the record reveals that
this Court, by order dated 08.07.2024, had
granted one month time for deciding the
application from production of certified
copy of the order, which was filed by
opposite party no. 2 along with a fresh
application (133-Kha) on 18.07.2024 and,
if the argument advanced on behalf of
opposite party no. 2 regarding expiry of
one month time from the date of production
of certified copy of the order is accepted on
its face value, the time would have
certainly expired on 17.08.2024, which was
the 30th day from filing of the order of this
Court (Month of July being of 31 days). On
17.08.2024, passing of the order by the
Hon'ble Supreme Court on 14.08.2024 and
its late uploading was brought to the notice
of the Sessions Court. Heavens would have
not fallen if the matter could have been
posted after one or two days for perusal of
the order passed by the Hon'ble Supreme
Court and to act accordingly. One month
fixed by the High Court could not mean
that the application could not have been
decided on 32nd day nor could the Sessions
Judge, for not deciding the matter on 31st
day
would
have
faced
contempt
proceedings.

27. This Court could have made
further observations as regards the undue
and unwarranted haste shown by the then
Additional Sessions Judge, Court No. 4,
Meerut, however, it refrains itself from
doing so but with a remark that judiciary
must not give rise to any occasion where
litigants who approach Courts for redressal
of their grievances in accordance with law,
start losing faith in this pious institution as
it is the last ray of hope for people to get
justice by lawful means.

28. As regards merits of the
contentions and counter contentions raised
892 INDIAN LAW REPORTS ALLAHABAD SERIES
by learned counsel for the parties, not only
based upon factual position on record but
also the law laid down by Hon'ble Supreme
Court in various judgments, on perusal of
the judgment in the case of Sandeep
Kumar (supra), the Court finds that
though observations have been made that at
the stage of considering an application
under Section 319 CrPC, appreciation of
the merits of evidence need not be done
and one of the charges being of Section 149
IPC, any specific individual role or act is
not material, the said judgment of Hon'ble
Supreme Court when read with the ratio
laid down in other previous decisions in the
cases of Hetram @ Babli (supra), Aarif
(supra), S. Mohammed Ispahani (supra),
Hardeep Singh (supra) and Brijendra
Singh (supra), it would be revealed that
cross-examination of witnesses has been
treated as a matter of quite significance
even at the stage of consideration of
application under Section 319 CrPC. For
this purpose, paragraph no. 9 of the
judgment of Hon'ble Supreme Court in the
case of Hetram @ Babli (supra) is
reproduced as under:-

 "9. In the facts of the case, the
occasion for considering the application
under Section 319 of the CrPC arose after
the cross-examination of the only eye
witnesses was recorded. Therefore, while
deciding an application under Section
319 of the CrPC, the Court must
consider the cross-examination as well. If
an application under Section 319 of the
CrPC
is
made
after
the
cross
examination of witnesses, it will be
unjust to ignore the same. The power
under Section 319 of the CrPC cannot be
exercised when there is no case made out
against the persons sought to be implicated.
In view of the omissions which are material
and
which
amount
to
contradiction,
obviously no Court could have recorded a
satisfaction which is contemplated by
Section 319 of the CrPC. It is impossible to
record a finding that even a prima facie
case of involvement of the appellant has
been made out."

29. On the same lines, paragraphs
no. 7 and 8 of the judgment of Honble
Supreme Court in the case of Aarif (supra)
are reproduced as under:-

 "7. As far as evidence of PW-1 is
concerned,
we
find
that
though
opportunities were available earlier, the
statement of the said witness was recorded
very late. The witness admitted that at 4
a.m., when she was in the hospital where
the deceased was undergoing treatment, a
police constable came. Still, she did not
disclose anything about the incident to the
police constable. She was in the hospital
for the entire night, where a police outpost
was there. But she did not disclose
anything to the police. In any event, in the
earlier round, the High Court did not find
evidence of the PW-1 sufficient to sustain
the order under Section 319 of Cr.P.C.

 8. PW-5 - Shahrookh, in his
cross-examination, admitted that he had
not seen the incident with his own eyes.
Therefore, he is not an eyewitness. PW-6 -
Mohammed claims to have seen the
incident from some distance. He also
claims to have gone to the hospital where
the deceased was taken. He did not report
the incident to the police, though the
deceased
was
related
to
him.
The
respondents also placed reliance on the
testimony of PW-7 - Ekaramuddin S/o
Chand Mohammed. His statement was
recorded three weeks after the incident.
Evidence of said witnesses is insufficient
to meet the standards of a prima facie
12 All. Hamid & Ors. Vs. State of U.P. & Anr.
893
case laid down by the Constitution
Bench.