# Juned Pahalwan v. State of U.P. and another

- **Citation:** (2009) 3 ILRA 943
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-13
- **Case number:** Criminal Revision No. 3550 of 2009
- **Bench:** Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/juned-pahalwan-v-state-of-u-p-and-another-41574
- **Pages:** 3

## Headnote

applicant-under Section 319 Cr. P.C.-
offence under Section 302/394/506 IPCon ground unless all the witnesses
crass-examined-mere on possibility of
involvement-summoning order can not
be passed-alternatively till the decision
of larger Bench of Apex Court in Hardeep
Singh case order be kept in abeyanceheld-misconceived-consideration
of
possibility of conviction not required
under law.

Held: Para 9 & 11

In my view, the later view is to be
preferred to the view taken in some
decisions
which
have
insisted
on
necessity
for
cross
examining
the
witnesses is for reaching a finding about
the probability of conviction before
summoning an accused.

In view of my preference to the view
taken in Hardeep Singh's case and
because even in the said decision the
proceedings against Vijay Preet Singh
had not been stayed until the larger
Bench of the Apex Court considered the
matter, I see no reason for issuing notice
or keeping the matter pending till the
larger Bench decides the issue in the
Apex Court.
Case law discussed:
1983 (1) SCC 1, 2000 (2) JIC 5 (SC), 2000(3)
SCC 262, 2005 (1) JIC 107 (SC), , 2007 (58)
ACC 254, 2009 (1) JIC 362 (SC), SCC 248,
1991 (9) LCD 149.

## Text

3 All] Juned Pahalwan V. State of U.P. and another
943
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2009

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Revision No. 3550 of 2009

Juned Pahalwan

...Applicant

Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicant:
Sri V.P. Srivastava
Sri Lav Srivastava
Sri Vijay Singh Senger

Counsel for the Opposite Parties:
A.G.A.

Criminal
Revision-Summoning
of
applicant-under Section 319 Cr. P.C.-
offence under Section 302/394/506 IPCon ground unless all the witnesses
crass-examined-mere on possibility of
involvement-summoning order can not
be passed-alternatively till the decision
of larger Bench of Apex Court in Hardeep
Singh case order be kept in abeyanceheld-misconceived-consideration
of
possibility of conviction not required
under law.

Held: Para 9 & 11

In my view, the later view is to be
preferred to the view taken in some
decisions
which
have
insisted
on
necessity
for
cross
examining
the
witnesses is for reaching a finding about
the probability of conviction before
summoning an accused.

In view of my preference to the view
taken in Hardeep Singh's case and
because even in the said decision the
proceedings against Vijay Preet Singh
had not been stayed until the larger
Bench of the Apex Court considered the
matter, I see no reason for issuing notice
or keeping the matter pending till the
larger Bench decides the issue in the
Apex Court.
Case law discussed:
1983 (1) SCC 1, 2000 (2) JIC 5 (SC), 2000(3)
SCC 262, 2005 (1) JIC 107 (SC), , 2007 (58)
ACC 254, 2009 (1) JIC 362 (SC), SCC 248,
1991 (9) LCD 149.

(Delivered by Hon'ble Amar Saran, J.)

1. Heard Shri V.P. Srivastava,
learned senior counsel for the revisionist
and
learned
Additional
Government
Advocate.

2. This criminal revision has been
filed challenging an order dated 13.8.2009
passed by the learned Additional Sessions
Judge/Special Judge (DAA), Kanpur
Dehat
in
SST
No.
200
of
2008
summoning the revisionist in a case under
sections 302/394/504/506 IPC, police
station Bhognipur, Kanpur Dehat in
exercise of powers under section 319 of
the Code of Criminal Procedure.

3. It was mentioned in the
application for summoning the revisionist
that on 1.5.2008 at about 9.20 P.M., the
revisionist Juned Pahalwan, Zubair Khan
alias Majhlay and Hasnain alias Motey
and Ghulam Jilani committed the murder
of the deceased Aejaz Khan, the brother
of the informant Chand Babu, who lodged
a report of the incident at 11.10 PM. The
revisionist was shown armed with a
double barrel gun with which he fired on
the deceased and the post-mortem report
confirmed the said injury as there were
six gun shot injuries on the deceased and
67 pellets were retrieved from the body of
the deceased. These pellets were said to
be forced by the DBBL gun used by the
revisionist.
944 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
4. Learned trial judge observed that
it was probable that the injuries to the
deceased could have been caused by the
DBBL gun as only one other accused
Hasnain was carrying a "Pauniya" and the
other accused were armed with rifles. He
was, therefore, prima facie satisfied that it
appeared from the evidence that the
revisionist was involved in the incident.
He was not impressed with the alibi
evidence accepted by the investigating
officer, who had recorded the 161 Cr.P.C.
statement of the revisionist wherein the
revisionist was said to be admitted at
PHC, Naukha Rath between 30.4.2008
and 2.5.2008 for diarrhoea and vomiting.

5. Shri V.P. Srivastava, learned
senior counsel for the revisionist did not
raise any submission on merits. He only
argued that as the Apex Court has taken
the view in some cases, viz Municipal
Corporation of Delhi Vs. Ram Kishan
Rohtagi and others, 1983 (1) SCC 1,
Michael Machado and another Vs. CBI
and another, 2000 (2) JIC 5 (SC),
2000(3) SCC 262 and Krishnappa Vs.
State of Karnataka, 2005 (1) JIC 107
(SC) that the powers to summon an
accused under section 319 Cr.P.C. was an
extraordinary power to be exercised
sparingly and it was only for compelling
reasons that the Court could taken
cognizance. Some of the recent decisions
in Mohd. Shafi Vs. Mohd Rafiq, 2007
(58) ACC 254 had insisted that it was
only after cross-examination of a witness
that an accused should be summoned and
that in other recent decisions it was held
that unless there was a probability of
conviction a summoning order ought not
to have been passed.

6. He however submitted that in
Hardeep Singh Vs. State of Punjab and
others 2009 (1) JIC 362 (SC), which is
also a two Judge decision, the Apex Court
has questioned the propriety of the view
that an accused could only be summoned
after the witnesses had been crossexamined and that the powers
of
summoning should only be exercised
when there is likelihood of an accused
being convicted. This matter has then
been referred by the two judges Bench to
a larger Bench and it was contended that
until the larger Bench of the Apex Court
takes a decision on the matter, the
proceedings should be stayed.

7. As pointed out above, in the
present case on merits, learned counsel
for the revisionist could not contend that
there was no probability of conviction on
the evidence that was being produced.
Even in Hardeep Singh (supra) the Apex
Court was examining some connected
petitions, one such special leave petition
was Manjeet Pal Singh Vs. State of
Punjab and another. It was held that there
was nothing against the respondent No. 2
and the final report had been accepted by
the trial court and the High Court and
likewise in the case of Hardeep Singh
(supra) where respondent Jagdar was not
charge sheeted, the order issuing process
was not held to be unlawful. Only in the
case of Vijay Preet Singh where the name
of the accused found place in the FIR
where he was not only present with the
weapon of assault (gadasa) but also
arrested from scene of occurrence, his
exclusion from the charge sheet was held
not justified and submission of final
report by the police was held not in
consonance with law. The Apex Court
had set aside the order by which the
application under section 319 Cr.P.C. had
been
rejected
by
the
trial
Court.
Thereafter, it had referred the matter to
3 All] Rajesh Kumar Yadav and others V. State of U.P. and another
945
the larger Bench for taking a decision on
two points alluded to herein-above.
Significantly in Hardeep Singh's case the
proceedings against Hardeep Singh were
not kept in abeyance till the consideration
of the matter by the larger Bench.

8. As I find a conflict of opinions
between two Judges' decisions, in my
view, the view preferred in Hardeep
Singh (supra) and in Rakesh and another
Vs. State of Haryana, SCC 248, wherein
it was observed that cross examination
was not material for summoning an
accused and all that was required to be
seen from the evidence was whether there
was sufficient material or evidence for the
Court to reach a conclusion that other
accused who was sought to be summoned,
was also involved in the commission of
the crime. Probability of conviction was
not required to be considered at this stage.

9. In my view, the later view is to be
preferred to the view taken in some
decisions
which
have
insisted
on
necessity
for
cross
examining
the
witnesses is for reaching a finding about
the probability of conviction before
summoning an accused.

10. In a Full Bench decision of this
Court in Ganga Saran Vs. Civil Judge
1991 (9) LCD 149, the Court held that
when there is a conflict of two co-equal
decisions of the Apex Court, which
cannot possibly be reconciled, then it is
not necessary to follow the later view, but
this Court is entitled to decide which of
the two views take the law more
accurately and elaborately.

11. In view of my preference to the
view taken in Hardeep Singh's case and
because even in the said decision the
proceedings against Vijay Preet Singh had
not been stayed until the larger Bench of
the Apex Court considered the matter, I
see no reason for issuing notice or
keeping the matter pending till the larger
Bench decides the issue in the Apex
Court.

12. I find no illegality in the
impugned
order,
the
revision
is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2009

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.14145 of 2008

Rajesh Kumar Yadav & others ...Petitioners
Versus
State of U.P. Dept of Irrigation and
others

...Respondents

Counsel for the Petitioners:
Sri D.S.P. Singh

Counsel for the Respondents:
Sri M.C. Chaturvedi
Sri K.R. Singh
Sri Rajiv Sharma
Sri Govind Saxena
Sri M.C. Tripathi

Constitution
of
India-Article-226-
Cancellation of selection- selection for
the Post of Nalkoop Mistri finalized-
formal appointment letters was to be
issued-
superintending
engineer
by
impugned
order
cancelled
entire
selection without assigning any reason -
except recording the ward "inevitable
reason" in counter affidavit only reason
disclosed the complainant made by local
M.L.A.
As
well
as
unsuccessful
candidates- neither any enquiry held nor
any material produced before the court