# Kailash Singh v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1582
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-17
- **Case number:** Application U/S 482 No. 45291 of 2019
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-singh-v-state-of-u-p-anr-45544
- **Pages:** 9

## Headnote

A. Criminal law - Code of Criminal Procedure,
1973- Section 319 - Privilege of facing the trial
afresh and witnesses be re-heard is given to the
newly arrayed accused and not to the accused
persons who have already faced the trial and their
trial is at the fag end.

The trial of the accused persons who have already
faced the trial and their trial is at the fag end, cannot
be permitted to commence afresh on the ground
that they should be tried together with the newly
impleaded accused.

B. Criminal law - Code of Criminal Procedure,
1973- Section 319- Disassociation of trial of newly
impleaded accused from the rest of the accused
persons, is perfectly just and valid and in
consonance with the scheme and spirit of Section
319 Cr.P.C. - Separating the file is not equivalent to
separating the session trial. It is like two branches
coming out of a same stem.

Dissassociation of trial of the newly impleaded
accused is not equivalent to separation of the
Sessions Trial and will not result in any prejudice,
therefore the application filed on behalf of the
accused, whose trial is about to end, that he should
be tried together afresh with the newly impleaded
accused, is misconceived and against the provisions
of Section 319 Cr.P.C.

Interpretation of Statutes-Harmonious ConstructionWords "such person"- Indicative of a person who is
non-accused and has been summoned to face the
prosecution in the midst of the trial in exercise of
power u/s 319 Cr.P.C. Words "could be tried
together with the accused" are directory.

The mandate of law of fresh trial is mandatory
whereas the mandate that a newly added
accused could be tried together with the
accused whose trial is at the fag end is
directory. The words "could be tried together
with the accused" in Section 319(1) Cr.P.C.
cannot be said to be capable of only one
construction. If it was so, the approach to be
adopted would be different since the intent of
parliament is to be respected despite the
consequences of interpretation. There is,
however,
a
scope
of
two
possible
constructions. That being the position, a
reasonable and a common sense approach
deserves to be adopted and preferred rather
than a construction that would lead to absurd
results. ( Para 9, 17,19)
2 All. Kailash Singh Vs. State of U.P. & Anr.
1583
Criminal Application rejected.

Case Law discussed:-

## Text

1582 INDIAN LAW REPORTS ALLAHABAD SERIES

13. I may record that the prayer for
quashing of the proceedings against the
applicant made in the present application
is bereft of merit and is therefore liable to
be dismissed.

14. The present application is
dismissed.

15. It is made clear that any finding
and observations made by Additional
Session Judge in the order dated 25.3.2019
stands effaced and the Presiding Officer
before
whom
proceedings
are
now
pending
shall
totally
ignore
any
observations made in the order dated
25.3.2019.

16.

Office
is
directed
to
communicate the order to the concerned
court forthwith.
----------
(2020)02ILR A1582

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2020

BEFORE
THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 No. 45291 of 2019

Kailash Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Dharmendra Singhal, Sri Sunil Singh,
Sri Shivendra Raj Singhal

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

A. Criminal law - Code of Criminal Procedure,
1973- Section 319 - Privilege of facing the trial
afresh and witnesses be re-heard is given to the
newly arrayed accused and not to the accused
persons who have already faced the trial and their
trial is at the fag end.

The trial of the accused persons who have already
faced the trial and their trial is at the fag end, cannot
be permitted to commence afresh on the ground
that they should be tried together with the newly
impleaded accused.

B. Criminal law - Code of Criminal Procedure,
1973- Section 319- Disassociation of trial of newly
impleaded accused from the rest of the accused
persons, is perfectly just and valid and in
consonance with the scheme and spirit of Section
319 Cr.P.C. - Separating the file is not equivalent to
separating the session trial. It is like two branches
coming out of a same stem.

Dissassociation of trial of the newly impleaded
accused is not equivalent to separation of the
Sessions Trial and will not result in any prejudice,
therefore the application filed on behalf of the
accused, whose trial is about to end, that he should
be tried together afresh with the newly impleaded
accused, is misconceived and against the provisions
of Section 319 Cr.P.C.

Interpretation of Statutes-Harmonious ConstructionWords "such person"- Indicative of a person who is
non-accused and has been summoned to face the
prosecution in the midst of the trial in exercise of
power u/s 319 Cr.P.C. Words "could be tried
together with the accused" are directory.

The mandate of law of fresh trial is mandatory
whereas the mandate that a newly added
accused could be tried together with the
accused whose trial is at the fag end is
directory. The words "could be tried together
with the accused" in Section 319(1) Cr.P.C.
cannot be said to be capable of only one
construction. If it was so, the approach to be
adopted would be different since the intent of
parliament is to be respected despite the
consequences of interpretation. There is,
however,
a
scope
of
two
possible
constructions. That being the position, a
reasonable and a common sense approach
deserves to be adopted and preferred rather
than a construction that would lead to absurd
results. ( Para 9, 17,19)
2 All. Kailash Singh Vs. State of U.P. & Anr.
1583
Criminal Application rejected.

Case Law discussed:-

1. Hardeep Singh vs. St. of Punjab, (2014) 2
SCC (Crl), 86

2. Labhu Ji Amratji Thakor vs. St. of Guj.,
(2019) AIR SC, 734

3. Delhi Cloth and General Mills Co. Ltd. vs. St.
of M.P. & ors., AIR (1996) SC 283

4. Shashi Kant Singh vs. Tarkeshwar Singh,
(2002) 5 SCC 738

5. State of Rajasthan vs. Ganeshi Lal reported
in A.I.R. (2008) SC 690

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Shri Dharmendra Singhal,
learned Senior Counsel assisted by Shri
Sunil Singh and Shri Shivendra Raj
Singhal leanred counsel for the applicant
as well as learned A.G.A. and also perused
the record.

2. After hearing the parties at length,
this Court deems it proper to adjudicate
this application u/s 482 Cr.P.C. at the
threshold/admission stage itself.

3. The applicant Kailash Singh, by
means of present application is invoking
the extraordinary powers of this Court
under Section 482 Cr.P.C. targeting the
validity and veracity of the order dated
26.11.2019 whereby learned Additional
Session Judge-II/Special Judge, SC/ST
Act, Kanpur Dehat (Ramabai Nagar) has
turned down the request of the accusedapplicant to hold a de-novo trial of the
Special Session Trial No.28 of 2017,
arising out of Case Crime No.368 of 2016,
u/s 302/34, 307/34, 504, 506 I.P.C. and
Section 3(2)(V) of the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities)
Act,
Police
Station-Rura,
District-Kanpur Dehat, along with newly
arrayed accused Pratap Singh Katiyar but
to the contrary the trial court has
disconnected and disassociated the trial of
the newly arrayed accused Pratap Singh
Katiyar
vide
the
impugned
order.
Aggrieved by the aforesaid order, the
present Application u/s 482 Cr.P.C., has
been moved by the accused-applicant
Kailash Singh.

4. Learned Senior Counsel. while
addressing the Court, has strenuously
argued that the impugned order dated
26.11.2019 is against the soul and spirit of
Section 319 of the Code of Criminal
Procedure, therefore, it is liable to be
quashed.

5. Facts of the case :- The applicant
along with accused Ashutosh Singh @
Anshu is facing criminal prosecution in the
court
of
the
II-Additional
Session
Judge/Special Judge, SC/ST Act, Kanpur
Dehat by means of Special Session Trial
No.28 of 2017 (State vs. Ashutosh Pratap
Singh and others). The genesis of the case
ignites from lodging of the F.I.R. by one
Indra Pal Chamar on 16.11.2016 for the
incident said to have taken place on
16.11.2016 at 9.00 A.M. of which the
F.I.R. was got registered at 11.10 A.M. as
Case Crime No.368 of 2016 at Police
Station
Rura,
District-Kanpur
Dehat
(Ramabai Nagar), u/s 302, 307, 504, 506,
34 I.P.C. and Section 3(2)(5) of SC/ST Act
against Ashutosh Singh @ Anshu Singh,
Kailash Singh and Pratap Singh Katiyar,
with the allegations that when the
informant Indra Pal Chamar along with his
father Ram Shankar (50 years old), went to
his agriculture field, the accused persons,
namely, Ashutosh Singh @ Anshu, his
1584 INDIAN LAW REPORTS ALLAHABAD SERIES
father Kailash Singh (applicant) with
Pratap Singh Katiyar appeared at the place
of occurrence and tried to take away their
tractor over the standing crop of the
informant forcibly. On resistance by them,
the accused applicant Ashutosh Singh @
Anshu fired from his gun causing instant
death of Ram Shankar, father of the
informant. Thereafter, he again fired upon
the informant but due to his lady luck the
informant could save his life. The
assailants after causing death, ran away
from the spot hurling filthy abuses
rebuking their caste. This incident was
witnessed by many of the co-villagers. The
post-mortem report of the deceased reveals
that he received two gun shot injuries on
his person. After holding an extensive and
threadbare investigation, the Police has
submitted report u/s 173(2) Cr.P.C. against
Ashutosh Singh @ Anshu and Kailash
Singh dropping the name of Pratap Singh
Katiyar from the charge sheet under
Sections 302/34, 307/34, 504, 506 I.P.C.
and Section 3(2)(V) of SC/ST Act and
against
Bhanu
Pratap
Singh
and
Bhupendra Pratap Singh an additional
charge sheet was also submitted u/s 201
I.P.C. However, a Bench of this Court by
entertaining the Application u/s 482
Cr.P.C. No.15196 of 2017 by order dated
14.9.2017 has directed that no coercive
action shall be taken against Bhanu Pratap
Singh and Bhupendra Pratap Singh. The
file of Ashutosh Pratap Singh @ Anshu
and Kailash Singh was disassociated and
on 22.9.2018 the charges were framed
against these named accused persons in the
aforementioned sections of Indian Penal
Code.

6. During trial the testimony of Indra
Pal,
Munna
and
number
of
other
prosecution witnesses were recorded.
Thereafter, an Application No.17Kha was
moved u/s 319 Cr.P.C. with the prayer to
call upon Pratap Singh Katiyar (nonaccused) to face the prosecution. Vide
order
dated
16.01.2019
the
said
application was allowed by the learned
Trial Judge summoning Pratap Singh
Katiyar under Sections 302, 307, 504, 506,
201, 34 I.P.C. and Section 3(2)(5) of
SC/ST Act. Aggrieved by the aforesaid
order, newly arrayed accused Pratap Singh
Katiyar preferred a Criminal Revision
No.806 of 2019, which was allowed by
this Court on 25.2.2019, quashing the
order dated 16.01.2019 and remanding the
matter to reconsider and revisit the entire
issue and decide the same in the light of
latest judgments of Hon'ble Apex Court
within a period of eight weeks. Pursuant to
the order dated 25.02.2019, learned
Session Judge again on 4.5.2019 passed a
detailed reasoned order taking into account
the guidelines laid down by Hon'ble Apex
Court in various judgments and summoned
the non accused Pratap Singh Katiyar to
face the trial. On the other hand, the coaccused Ashutosh Pratap Singh @ Anshu
has preferred a Criminal Appeal No.3383
of 2017 challenging the order dated
9.5.2017, whereby the learned Additional
Session Judge/Special Judge, SC/ST Act,
Kanpur Dehat had rejected the Bail
Application No.800 of 2017, arising out of
Case Crime No.368 of 2016, under
Sections 302, 307, 504, 506/34, 201 I.P.C.
and Section 3(2)(5) of SC/ST Act, P.S.-
Rura, District-Kanpur Dehat. The said
appeal was dismissed by a bench of this
Court by order dated 18.5.2018 with a
direction to the court below to decide the
trial within a period of nine months from
the date of production of a certified copy
of the order.

7. From the order impugned, it is
being borne out that in Special Session
2 All. Kailash Singh Vs. State of U.P. & Anr.
1585
Trial No.28 of 2017, in addition to all
witnesses of fact, as many as nine
witnesses were examined by the trial court
and at that stage the application u/s 319
Cr.P.C.
was
moved.
So
practically
speaking the trial has already reached to its
pinnacle and after passing the order
impugned, 26.11.2019 was the date fixed
for recording the statement u/s 313 of
Cr.P.C. At this juncture, it appears that it
was prayed by the accused persons that
they should be tried together with Pratap
Singh Katiyar, the newly arrayed accused,
which was turned down by the trial court
and files of both were ordered to be
segregated. Aggrieved by this order, the
present application u/s 482 Cr.P.C. has
been preferred.

8. To appreciate the controversy
involved, it is imperative to critically
analyze the provisions of Section -319
Cr.P.C. which reads thus :-

"319. Power to proceed against
other persons appearing to be guilty of
offence.

(1) 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.

(2) Where such person is not
attending the Court, he may be arrested or
summoned, as the circumstances of the
case may require,
for the purpose
aforesaid.

(3) Any person attending the
Court, although not under arrest or upon a
summons, may be detained by such Court
for the purpose of the inquiry into, or trial
of, the offence which he appears to have
committed.

(4) Where the Court proceeds
against any person under sub- section (1),
then-

(a) the proceedings in respect of
such person shall be commenced afresh,
and the witnesses re- heard;

(b) subject to the provisions of
clause (a), the case may proceed as if such
person had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced."

9. For the purposes of present
controversy the catch expression is "such
person could be tried together with the
accused" and in Section 319(4)(a) 'the
proceedings in respect of "such person"
shall be commenced afresh and the
witnesses re-heard. Thus, on the plain
reading of the Section 319 Cr.P.C., it is
explicit and clear that this privilege of
facing the trial afresh and witnesses be reheard, is given to the newly arrayed
accused. The accused persons who have
already faced the trial and their trial is at
the fag end, cannot take help of stalling the
trial or in other words their trial can not be
permitted to commence afresh. Therefore,
disassociation of trial of newly impleaded
accused Pratap Singh Katiyar from the rest
of the accused persons, is perfectly just
and valid and in consonance with the
scheme and spirit of Section 319 Cr.P.C. In
Section 319 Cr.P.C. "such person" is
indicative of a person who is non-accused
and has been summoned to face the
prosecution in the midst of the trial in
exercise of power u/s 319 Cr.P.C. In the
instant case, the applicant Kailash Singh,
who has already faced the trial and whose
trial is about to reach to the logical
conclusion, now is making application that
1586 INDIAN LAW REPORTS ALLAHABAD SERIES
he should be tried together with newly
impleaded accused Pratap Singh Katiyar,
which would amount to travesty of justice
and against the provisions of Section 319
Cr.P.C. Moreover, when the Coordinate
Bench of this Court has already given a
direction to conclude the trial within nine
months, this Bench should not pass any
order which is tangent to or to nullify the
aforementioned
order
of
Coordinate
Bench.

10. The second limb of argument
advanced by learned senior counsel for the
applicant is narrated in paragraph 14 of the
petition that separating the trial would
cause a serious prejudice to the applicant.
Learned counsel for the applicant has
relied
upon
certain
paragraphs
of
Constitution Bench judgment of Hon'ble
Supreme Court given in the case of
Hardeep Singh vs. State of Punjab, 2014
(2) SCC (Crl), 86, which are being quoted
hereinbelow :

"105. Power under Section 319
Cr.P.C. is a discretionary and an extra-
ordinary power. It is to be exercised
sparingly and only in those cases where
the circumstances of the case so warrant.
It is not to be exercised because the
Magistrate or the Sessions Judge is of the
opinion that some other person may also
be guilty of committing that offence. Only
where strong and cogent evidence occurs
against a person from the evidence led
before the court that such power should be
exercised and not in a casual and cavalier
manner.

106. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court not
necessarily tested on the anvil of CrossExamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied
is one which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to an
extent
that
the
evidence,
if
goes
unrebutted, would lead to conviction. In
the absence of such satisfaction, the court
should refrain from exercising power
under Section 319 Cr.P.C. In Section 319
Cr.P.C. the purpose of providing if ''it
appears from the evidence that any person
not being the accused has committed any
offence' is clear from the words "for which
such person could be tried together with
the accused." The words used are not ''for
which such person could be convicted'.
There is, therefore, no scope for the Court
acting under Section 319 Cr.P.C. to form
any opinion as to the guilt of the accused."

11. In order to buttress his
contentions,
learned
Senior
counsel
submitted that the above observations
made by Hon'ble Sureme Court in the case
of Hardeep Singh (supra) are being
regularly followed in the latest judgments
of the Hon'ble Apex Court in the case of
Labhu Ji Amratji Thakor vs. State of
Gujrat, 2019 AIR (SC), 734.

12. On a careful reading of above
excerpts of Hardeep Singh's judgment
(supra) would speak about the satisfaction
required to be recorded while the Court
should exercise this power sparingly and
under the circumstances if they warrant. It
is very this extraordinary power where
there is a definite, strong and cogent
evidence is available on record against the
person (non-accused), then only such
power could be exercised and not in a
casual or cavalier way. The expression of
Section 319 Cr.P.C. is self revealing. The
purpose and the object of providing if "it
appears from the evidence that any person
2 All. Kailash Singh Vs. State of U.P. & Anr.
1587
not being the accused has committed any
offence is clear from the words "for which
such person could be tried together. Thus
the words are not which such person tried
together.

13. Learned counsel for the applicant
has shown yet another authority of Hon'ble
Apex Court in the case of Delhi Cloth and
General Mills Co. Ltd. vs. State of
Madhya Pradesh and others, AIR 1996
SC 283. This case relates to the Prevention
of Food Adulteration Act and deals with
the Section 20(A) of the Act. Paragraph-7
of the judgment reads thus :

"7. A reading of Section 20-A
clearly indicates that during the course of
the trial for any of the offence under the
Act alleged to have been committed by any
person, if the evidence adduced before the
Court discloses that the manufacturer,
distributor or dealer is also concerned
with that offence, then the Court has been
empowered,
notwithstanding
anything
contained in sub-section (3) of s.319 of the
Code of Criminal Procedure (for short,
'the Code') to treat as if the manufacturer,
distributor
or
the
dealer
is
being
proceeded against under Section 20 of the
Act, as originally instituted thereunder.
The concept of vendor and vendee is
known to civil law and passing of the title
in the goods is alien to the prosecution for
an offence under the Act. It cannot,
therefore, be introduced in a trial for the
offence under the Act. The Act advisedly
made a person who sells adulterated
article of food liable to be prosecuted for
the offence of adulteration of the article of
food. During the trial when it comes to the
notice of the Magistrate, from the evidence
adduced, that the manufacturer, distributor
or dealer of that article of food, which is
the subject matter of adulteration, is also
concerned with the offence, then the court
has been empowered to proceed against
such manufacturer, distributor or dealer as
if prosecution has initially been instituted
against him under Section 20 of the Act. In
fact, for general offences,SEction 319 (1)
of the Code empowers the court where
during the course of enquiry or trial of an
offence, if it appears from the evidence
that any person not being accused has
committed any offence for which such
person could be tried together with the
accused, to proceed against such person
for the offence which he appears to have
committed. In view of the language of
Section 20-A of the Act, whatever is
contained in sub-section (3) of Section 319
of the Code, would not stand in the way of
the Magistrate to proceed at a trial against
any person, i.e., the original accused and
against others mentioned in Section 20-A.
In other words, joint trial for the same
offence is permitted. The object appears to
be that in a case where common evidence
discloses that the manufacturer, distributor
or dealer is also concerned with the
offence for which the prosecution was
launched against a person from whom the
article of food was purchased, to avoid
multiplicity of prosecution and also
keeping in view the doctrine of autrefois
acquit the Legislature introduced s.20A to
have joint trial."

14. While laying the stress upon the
aforesaid judgment, learned counsel for
the applicant submits and tried to draw a
parallel that the present accused should
also be tried with newly impleaded
accused as in the above case the accused
was required to be tried along with the
manufacturer, distributor or dealer of any
article of food, if the court is satisfied, on
the evidence adduced before it, that such
manufacturer, distributor or dealer is also
1588 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned with that offence. Learned
counsel further submits that according to
the Hon'ble Apex Court the object appears
to be that in a case where a common
evidence discloses that the manufacturer,
distributor or dealer is also concerned with
the offence for which the prosecution was
launched against a person from whom the
article of food was purchased, to avoid the
multiplicity of the prosecution and also
keeping in view the doctrine of autrefois
acquit, the legislature introduced Section
20A to have joint trial.

This Court has given its conscious
consideration to the arguments advanced by
learned counsel for the applicant but afraid to
follow the aforesaid ratio in the present case, as
in this case Laxmi Narayan the accused
resident of Joura was found selling Vanaspati
Ghee and on analysis it was found to be
adulterated and in consequence of same Laxmi
Narayan was prosecuted u/s 60 of Prevention
of Food Adulteration Act, 1954. Section 20A
of the aforesaid Act empowers like this :-

"20A. Power of court to implead
manufacturer, etc.--Where at any time during
the trial of any offence under this Act alleged
to have been committed by any person, not
being the manufacturer, distributor or dealer of
any article of food, the court is satisfied, on the
evidence adduced before it, that such
manufacturer, distributor or dealer is also
concerned with that offence, then, the court
may, notwithstanding anything contained in
sub-section (3) of section 319 of the Code of
Criminal Procedure, 1973 (2 of 1974)] or in
section 20 proceed against him as though a
prosecution had been instituted against him
under section 20."

15. Thus, Section 20A of the Act clearly
indicates that the concept of vendor and
vendee is known in civil law and passing of the
title in the goods is alien to the prosecution for
an offence under the Act. It cannot, therefore,
be introduced under a trial of the offence under
the Act. The facts of the aforesaid case is
entirely distinct and different from the set of
facts of the present case and to mind of this
Court, it would not be of any help to the
counsel for the applicant.

16. Per contra learned A.G.A. while
refuting the submissions advanced by
learned counsel for the applicant has cited
the judgment of Hon'ble Apex Court,
which touches the core issue of the present
controversy, in the case of Shashi Kant
Singh vs. Tarkeshwar Singh, 2002 (5)
SCC 738, where the Hon'ble Apex Court
has lucidly explained the import of
expression "could be tried together with
the accused". The relevant paragraph 9 of
the judgment is quoted herein below :

"9. The intention of the provision
here is that where in the course of any
enquiry into, or trial of, an offence, it
appears to the court from the evidence that
any person not being the accused has
committed any offence, the court may
proceed against him for the offence which
he appears to have committed. At that
stage, the court would consider that such a
person could be tried together with the
accused who is already before the Court
facing the trial. The safeguard provided in
respect of such person is that, the
proceedings right from the beginning have
mandatorily to be commenced afresh and
the witnesses re-heard. In short, there has
to be a de novo trial against him. The
provision of de novo trial is mandatory. It
vitally affects the rights of a person so
brought before the Court. It would not be
sufficient to only tender the witnesses for
the cross-examination of such a person.
They have to be examined afresh. Fresh
2 All. Kailash Singh Vs. State of U.P. & Anr.
1589
examination in chief and not only their
presentation for the purpose of the crossexamination of the newly added accused is
the mandate of Section 319(4). The words
'could be tried together with the accused'
in Section 319(1), appear to be only
directory. 'Could be' cannot under these
circumstances be held to be 'must be'. The
provision cannot be interpreted to mean
that since the trial in respect of a person
who was before the Court has concluded
with the result that the newly added person
cannot be tried together with the accused
who was before the Court when order
under Section 319(1) was passed, the
order would become ineffective and
inoperative, nullifying the opinion earlier
formed by the Court on the basis of
evidence before it that the newly added
person appears to have committed the
offence resulting in an order for his being
brought before the Court."

17. From the above, it is clear that
the mandate of law of fresh trial is
mandatory whereas the mandate that a
newly added accused could be tried
together with the accused whose trial is at
the fag end is directory. The words "could
be tried together with the accused" in
Section 319(1) Cr.P.C. cannot be said to be
capable of only one construction. If it was
so, the approach to be adopted would be
different since the intent of parliament is
to be respected despite the consequences
of interpretation. There is, however, a
scope of two possible constructions. That
being the position, a reasonable and a
common sense approach deserves to be
adopted and preferred rather than a
construction that would lead to absurd
results. Here in the instant case, accused
persons Ashutosh Singh @ Ashu and
Kailash Singh have already faced the trial
and their trial is almost at the verge of
culmination.
Now
accused-applicant
Kailash Singh wants at this stage that a de
novo trial may be ordered, keeping in view
that Pratap Singh Katiyar, a non-accused,
has been summoned in exercise of power
u/s 319 Cr.P.C. This is not permissible
under the law nor the provisions of Section
319 Cr.P.C. subscribe to this view.

18. Learned A.G.A. while refuting
the submissions advanced on behalf of
applicant has further relied upon another
judgment of Hon'ble Apex Court given in
the case of State of Rajasthan vs.
Ganeshi Lal reported in A.I.R. 2008 SC
690, wherein the Hon'ble Apex Court has
proceeded to observe :-

"11. Reliance on the decision
without
looking
into
the
factual
background of the case before it is clearly
impermissible. A decision is a precedent
on its own facts. Each case presents its
own features. It is not everything said by a
Judge while giving a judgment that
constitutes a precedent. The only thing in a
Judge's decision binding a party is the
principle upon which the case is decided
and for this reason it is important to
analyse a decision and isolate from it the
ratio decidendi. According to the wellsettled theory of precedents, every decision
contains three basic postulates (i) findings
of material facts, direct and inferential. An
inferential finding of facts is the inference
which the Judge draws from the direct, or
perceptible facts; (ii) statements of the
principles of law applicable to the legal
problems disclosed by the facts; and (iii)
judgment based on the combined effect of
the above. A decision is an authority for
what it actually decides. What is of the
essence in a decision is its ratio and not
every observation found therein nor what
logically
flows
from
the
various
1590 INDIAN LAW REPORTS ALLAHABAD SERIES
observations made in the judgment. The
enunciation of the reason or principle on
which a question before a Court has been
decided is alone binding as a precedent.
(See:State of Orissa v. Sudhansu Sekhar
Misra and Ors (AIR 1968 SC 647) and
Union of India and Ors. vs. Dhanwanti
Devi and Ors. (1996 (6) SCC 44). A case
is a precedent and binding for what it
explicitly decides and no more. The words
used by Judges in their judgments are not
to be read as if they are words in Act of
Parliament. In Quinn v. Leathem (1901)
AC 495 (H.L.), Earl of Halsbury LC
observed that every judgment must be read
as applicable to the particular facts
proved or assumed to be proved, since the
generality of the expressions which are
found there are not intended to be
exposition of the whole law but governed
and qualified by the particular facts of the
case in which such expressions are found
and a case is only an authority for what it
actually decides."

Thus,
learned
A.G.A.
has
submitted that the ratio laid down in the
case of Delhi Cloth and General Mills
Company Ltd. (supra) is not applicable
under the present scenario.

19. This Court has keenly perused
the order impugned and found that by
impugned order the file of newly added
accused Pratap Singh Katiyar was ordered
to be segregated. Merely separating the
file of an accused for the reason that he
failed to appear before the Court, is quite
different from separating the case of an
accused for other legal reasons. Former is
a procedural matter while the latter is a
legal one. In the instant case where a
person is being summoned in exercise of
power u/s 319 Cr.P.C., the accused persons
the trial of whom, is at the fag end cannot
claim parallelity with newly impleaded
accused. However, where, to avoid the
delay in trial, caused by continued long
absence of any one or more accused
persons, the file of absconded persons is
separated as a matter of procedural
convenience. Separating the file is not
equivalent to separating the session trial. It
is like two branches coming out of a same
stem and an analogy can be drawn by
following example. Where a person never
appears before the court or has been added
at the later stage, his file is separated, and
therefore, this Court at the loss to
appreciate the unfounded suspicion that
the accused-applicant would suffer a
serious prejudice, if file of the newly
added accused Pratap Singh Katiyar is
separated.

20. After thoroughly marshalling the
law and the facts of the present case, I do
not find any illegality or impropriety in the
order impugned and as such present
application u/s 482 Cr.P.C. being lacks
merit is hereby dismissed.

21. It is given to understand that the
trial of accused persons, namely, Ashutosh
Singh @ Ashu and Kailash Singh is at the
pinnacle and it is expected from the
learned Trial Judge to conclude the same
within a period of two months (maximum)
from the date of production of certified
copy of this order.
----------
(2020)02ILR A1590

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 45539 of 2019