# Km. Mona and others Revisionists v. State of UP and another

- **Citation:** (2007) 1 ILRA 266
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-17
- **Case number:** Criminal Revision No. 4674 of 2006
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-mona-and-others-revisionists-v-state-of-up-and-another-40856
- **Pages:** 6

## Headnote

Code of Criminal Procedure-Section 319Power of Trail Court-an extra ordinary
one-to be exercised ex-debito justiceonly when reasonable possibility of
conviction-un married handicapped girl
suffering
deformity
in
her
leg-no
possibility of her involvements-should
not be harassed merely because of the
relative of husband of the deceasedconsequential directions issued.

Held: Para 10 & 11

Power under section 319 Cr.P.C. is an
extraordinary power given to the court
to be exercised ex- debito justice. It
should be exercised sparingly only when
it is required most. Summoning any body
as an accused at the stage of trial after
the evidence had started in the case
should be resorted to only when there is
reasonable possibility of his conviction.
Asking some body to fact the ordeal of
trial only to be acquitted is not the law
but is his harassment.

On the facts of the present case I find
that revisionist no.1 is an unmarried girl
who is handicapped and has deformity in
her leg. Her involvement in the offence is
a remote possibility. So far as two other
revisionists are concerned they are a
married couple resident of different
places. Merely because they are relatives
of the husband they should not be
harassed without any specific allegation
against them. They have got two infant
daughters and it very unlikely that they
will indulge in the demand of dowry and
torture. There is no specific allegation
against them and their names are
mentioned as a matter of course in the
statements, which in my view was not
sufficient to anoint any charge on them.
1 All] Km. Mona and others V. State of U.P. and another
267

## Text

266 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
20. So far as the two decisions of the
Delhi High Court are concerned, we find
that under the provisions of the Act, the
Income Tax Officer is not required to
record his satisfaction in a particular
manner or reduce it in writing. It can be
gathered from the assessment order itself.
In D.M. Mansavi (supra) the Apex Court
has clearly held that the Income Tax
Officer should be satisfied during the
course of the assessment proceeding that
the assessee had concealed his particulars
of income or has furnished inaccurate
particulars
of
such
income.
The
satisfaction can be gathered from the
assessment order. In the present case, we
find that the Income Tax Officer had
material before him for being satisfied
that the applicant has concealed the
particulars of his income and, therefore,
penalty proceeding have rightly been
initiated. We are, therefore, with great
respect unable to persuade ourselves to
follow the view taken by the Delhi High
Court in the aforesaid two cases.

21. In view of the foregoing
discussions, we answer the question
referred to us in the affirmative, i.e., in
favour of the Revenue and against the
assessee. There shall be no order as to
costs.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.11.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Revision No. 4674 of 2006

Km. Mona and others ...Revisionists
Versus
State of UP and another ...Respondents

Counsel for the Revisionists:
Sri Rahul Chaturvedi

Counsel for the Opposite Parties:
A.G.A.
Sri K.K. Nirkhi

Code of Criminal Procedure-Section 319Power of Trail Court-an extra ordinary
one-to be exercised ex-debito justiceonly when reasonable possibility of
conviction-un married handicapped girl
suffering
deformity
in
her
leg-no
possibility of her involvements-should
not be harassed merely because of the
relative of husband of the deceasedconsequential directions issued.

Held: Para 10 & 11

Power under section 319 Cr.P.C. is an
extraordinary power given to the court
to be exercised ex- debito justice. It
should be exercised sparingly only when
it is required most. Summoning any body
as an accused at the stage of trial after
the evidence had started in the case
should be resorted to only when there is
reasonable possibility of his conviction.
Asking some body to fact the ordeal of
trial only to be acquitted is not the law
but is his harassment.

On the facts of the present case I find
that revisionist no.1 is an unmarried girl
who is handicapped and has deformity in
her leg. Her involvement in the offence is
a remote possibility. So far as two other
revisionists are concerned they are a
married couple resident of different
places. Merely because they are relatives
of the husband they should not be
harassed without any specific allegation
against them. They have got two infant
daughters and it very unlikely that they
will indulge in the demand of dowry and
torture. There is no specific allegation
against them and their names are
mentioned as a matter of course in the
statements, which in my view was not
sufficient to anoint any charge on them.
1 All] Km. Mona and others V. State of U.P. and another
267
(Delivered by Hon'ble Vinod Prasad, J.)

1. Aggrieved by their summoning
order dated 15.7.2006, under section 319
Cr.P.C., passed by Additional Chief
Judicial Magistrate, Court No. 1, Mathura
in criminal case no. 1312 of 2005 State
versus Gajendra Pal Singh And Others,
the three revisionists- Km. Mona, Smt
Poonam
and
Balvir
Singh
have
approached this court in it's revisional
jurisdiction
under
sections
397/401
Cr.P.C. with the prayer that the said order
of summoning them in the aforesaid case
be quashed. Their interim prayer is for
stay of further proceeding of the said case
no. 1312 of 2005 State versus Gajendra
Pal Singh And Others interregnum.

2. In short the factual matrix of the
case are that a FIR was lodged by
Raghunath Prasad against Veeri Singh,
his wife Smt Prabha, his two sons
Gajendra Singh and K.P. Singh and two
daughters Km. Mona, Smt. Poonam and
one Balbir Singh at police station
Govardhan District Mathura as crime
number 270 of 2003 under sections 498A,
323 IPC and 3⁄4 D.P. Act in respect of an
incident dated 26.11.2001 to 14.7.2003.
The narration of incident in the said FIR
were that Kusum Singh,daughter of the
informant Raghunath Prasad Pali was
married to Gajendra Singh son of Veeri
Singh on 26.11.2001.In the marriage the
informant had spent Rs. 5 lakhs which
included one lakh fifty thousand cash, one
Hero Honda Motor Cycle, 20 Tolas of
gold 1 1⁄2 KG of silver ornaments fridge,
Washing Machine and other house hold
articles. The accused were no satisfied
with the dowry given in the marriage and
started torturing Smt. Kusum for bring a
car. For the fulfillment of the said demand
Kusum was assaulted also and was
subjected to torture. Kusum made a
complaint of the said demand to the
informant
and
other
relatives.
The
informant tried to pacify the in laws but of
no avail. There was a conciliatory
meeting also in which the accused had
said that they will not demand the dowry
henceforth. On 18.7.2003 the accused
persons accompanied with Kusum came
to do Govardhan Parikrama on a jeep and
then while returning they dropped Smt
Kusum near Agra Canal at 1.30 AM in
the night of 14.7.2003 and went away
warning her that she will not bring the car
they will accept her back. Smt. Kusum
tried to plead that her parents were poor
and they will not be able to fulfill the car
demand she was assaulted as well. This
incident
was
witnessed
by
Pooran,
Banwari Lal, Pritam Singh, Bhagwan
Das, who all saved Kusum. The accused
then left for Mathura. The informant tried
to lodge the report on 14.7.2003 and
17.7.2003
but
the
same
was
not
registered. At last he filed a written FIR to
Senior Superintendent Of Police Mathura
on 18.7.2003 and on his direction his FIR
was registered on 16.10.2003 at 8.30 PM
at PS Govardhan District Mathura as
crime number 270 of 2003 under sections
498A, 323, IPC and 3⁄4 D.P. Act. The
police
investigated
the
matter
and
ultimately submitted a charge sheet
against rest of the accused persons but for
the revisionist against whom the police
did not find offence being committed by
them. The submission of charge sheet was
succeeded by trial in the court of Ist
Additional
Chief
Judicial
Magistrate
Mathura as case number 1312 of 2005
State versus Gajendra Pal And Others. In
the trial during the examination of PW 2
Smt. Kusum an application, 27 Ba, was
filed by the prosecution to summon the
revisionists under section 319 Cr.P.C. but
268 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the same was rejected by the trial court
vide it's order dated 6.6.2006 on the
grounds that the three revisionist are
married Nanad and Nandoi and she used
to reside in her in laws house and that
merely because they were named in the
statement they should not be summoned.
More over the cross examination of PW.2
was continuing and therefore till her
cross-examination is over there was no
reason to summon the revisionists vide
annexure no. 3 to the affidavit filed in
support of this revision. How ever from
the record it transpires that after the
examination of PW 2 Kusum, the wife
was over on 9.6.2006 the prosecution
filed another application for summoning
the revisionist under section 319 Cr.P.C.
vide paper no. 48 A. which was allowed
by the trial court vide it's impugned order
dated 15.7.06 which order is under
challenge in this revision.

3. I have heard Sri Rahul Chaturvedi
learned counsel for the applicant in
support of this revision and the learned
AGA as well as Sri K.K.Nirkhi, Learned
counsel for the victim Smt. Kusum.

4. Sri Rahul Chaturvedi contended
that the summoning order under section
319 Cr.P.C. is illegal and deserves to be
quashed. He contended that on the earlier
occasion the trial court had rightly
rejected the prayer for summoning the
revisionists by passing a well-reasoned
and well-considered order on 6.6.2006.
He further contended that the revisionist
no. 1 Km. Mona is unmarried girl and is
handicapped and therefore her implication
is false. He further contended that rest of
the two revisionists Smt Poonam and her
husband
Balvir
are
residents
of
Bulandshahr
and
therefore
their
summoning order is also bad in law. He
also contended that there are no specific
allegations against the revisionists and
they are named in the statements only to
be harassed. He contended that during the
course of investigation the complicity of
the revisionist was found to be false and
therefore on the same evidence the
revisionist should not be summoned. He
further contended that the summoning
order is illegal and deserves to be set
aside.

5. Learned AGA as well as learned
counsel for the victim contended that
since the revisionist are named in the
statements therefore they are liable to be
summoned and there is no illegality in the
impugned order which deserves to be up
held. They further submitted that the
demand of the car or of RS. Two lakhs in
lieu thereof was made by all the accused
and therefore the summoning order is not
bad in law. They also contended that once
a person is named in the statement
recorded in court as an accused the court
has no option but to summon him for trial.
In their submission the revision lacked
merit and deserved to be dismissed.

6. In view of rival contentions and
keeping the facts of the case into
consideration when I examine the matter
it transpired that the revisionist were
named in the FIR. There was no specific
allegation against them but they were
named in a casual way. The investigating
officer after the investigation found their
complicity in the crime not established
and hence no charge sheet was submitted
in
their
respect. At the stage of
summoning on objection was raised
regarding
non-charge
sheeting
the
revisionist by the informant or the victim.
During the trial PW 1 Aghast oath Prasad
had admitted that Gajendra husband had
1 All] Km. Mona and others V. State of U.P. and another
269
filed a case of restitution of conjugal
rights in Oligarchy much before the
present
case.He
also
admitted
the
revisionist no. 1 Mona is unmarried and
she is handicapped by one leg. He further
admitted that revisionist no, 2 was
married prior to the marriage of Kusum.
He intentionally concealed stating the age
of Mona and regarding children of Smt.
Poonam and her husband. In his statement
he has no said any thing against the
revisionist specifically but has only said at
times "Sasural Wale". At rest of the
places he has stated "All accused" without
making any specification. His whole
statement read to gather indicates that
there is a dispute between husband and
wife read-only far statement of victim
Kusum PW 2 is concerned her statement
also does no improve upon the merit of
prosecution case. She is an educated lady
and is postgraduate. She has also admitted
that Mona has got a deformity in her one
leg. She has admitted that the application
under section 9 of Hindu Marriage Act
1955 was filed by Gajendra (husband) in
2002 being AP No. 1105/ 02. She even
does not remember as the demand was
made for which car. She admitted that the
revisionist no. 3 is posted in Narora and
both revisionist no. 2 and 3 Poonam and
Balvir had two daughters Shikha and
Sonu aged
about
4 and
2
years
respectively. She has also admitted that
but for her husband and father in law no
other accused has assaulted her. Thus
from the above gist of her statement it is
clear that the material on record is
insufficient to try the revisionist. At this
stage a glimpse of law laid down by the
apex court may be taken to be the guiding
factor. It has been held by the apex court
in the case of Ramesh And Others
versus State of Tamil Nadu : AIR 2005
SC 1989 as follows:-
"6. Before we proceed to deal with
the two contentions relating to limitation
and territorial jurisdiction, we would like
to consider first the contention advanced
on
behalf
of
the
appellant-Gowri
Ramaswamy. Looking at the allegations
in the F.I.R. and the contents of charge
sheet, we hold that none of the alleged
offences, viz. Sections 498-A, 406 of the
I.P.C. and Section 4 of the Dowry
Prohibition Act are made out against her.
She
is
the
married
sister
of
the
informant's husband who is undisputedly
living in Delhi with her family. Assuming
that during the relevant time, i.e. between
March and October, 1997, when the 6th
respondent (informant) lived in Mumbai
in her marital home, the said lady stayed
with them for some days, there is nothing
in the complaint which connects her with
an offence under Section 498-A or any
other offence of which cognizance was
taken. Certain acts of taunting and illtreatment of informant by her sister-inlaw (appellant) were alleged but they do
not
pertain
to
dowry
demand
or
entrustment and misappropriation of
property belonging to the informant. What
was said against her in the F.I.R. is that
on some occasions, she directed the
complainant to wash W.C. and she used
to abuse her and use to pass remarks such
as 'even if you have got much jewellery,
you are our slave'. It is further stated in
the report that Gowri would make wrong
imputations to provoke her husband and
would warn her that nobody could do
anything to her family. These allegations,
even if true, do not amount to harassment
with a view to coercing the informant or
her relation to meet an unlawful demand
for any property or valuable security. At
the most, the allegations reveal that her
sister-in- law Gowri was insulting and
making derogatory remarks against her
270 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
and behaving rudely against her. Even
acts of abetment in connection with
unlawful demand for property/dowry are
not alleged against her. The bald
allegations made against her sister-in-law
seem to suggest the anxiety of the
informant to rope in as many of the
husband's relations as possible. Neither
the F.I.R. nor the charge-sheet furnished
the legal basis to the Magistrate to take
cognizance of the offences alleged against
the appellant-Gowri Ramaswamy. The
High Court ought not to have relegated
her to the ordeal of trial. Accordingly, the
proceedings against the appellant-Gowri
Ramaswamy are hereby quashed and her
appeal stands allowed."

7. Further in the case of Michael
Machado
v.
Central
Bureau
of
Investigation: AIR 2000 SUPREME
COURT 1127 the apex court has held as
follows:-

"11. The basic requirements for
invoking the above section is that it
should appear to the Court from the
evidence collected during trial or in the
inquiry that some other person, who is not
arraigned as an accused in that case, had
committed an offence for which that
person could be tried together with the
accused already arraigned. It is not
enough that the Court entertained some
doubt, from the evidence, about the
involvement of another person in the
offence. In other words, the Court must
have reasonable satisfaction from the
evidence already collected regarding two
aspects. First is that the other person has
committed an offence. Second is that for
such offence that other person could as
well be tried along with the already
arraigned accused.

12. But even then, what is conferred
on the Court is only a discretion as could
be discerned from the words "the Court
may proceed against such person". The
discretionary power so conferred should
be exercised only to achieve criminal
justice. It is not that the Court should turn
against another person whenever it comes
across evidence connecting that another
person also with the offence. A judicial
exercise
is
called
for
keeping
a
conspectus of the case, including the
stage at which the trial has proceeded
already and the quantum of evidence
collected till then, and also the amount of
time which the Court had spent for
collecting such evidence. It must be
remembered that there is no compelling
duty on the Court to proceed against
other persons."

8. The Supreme court in Municipal
Corporation of Delhi v. Ram Kishan
Rohtagi, AIR 1983 SC 67 has held that: -

"But we would hasten to add that this
is really an extraordinary power which is
conferred on the Court and should be
used
very
sparingly
and
only
if
compelling reasons exist for taking
cognizance against the other person
against whom action has not been taken."

9. It has been further held by the
apex court in the case of Michael
Machado (Supra):-

"14. The Court while deciding
whether to invoke the power under
Section 319 of the Code, must address
itself about the other constraints imposed
by the first limb of sub-section (4), that
proceedings in respect of newly added
persons shall be commenced afresh and
the witnesses re-examined. The whole
1 All] Pujari Yadav V. Ram Briksh Yadav
271
proceedings must be re-commenced from
the beginning of the trial, summon the
witnesses once again and examine them
and cross-examine them in order to reach
the stage where it had reached earlier. If
the witnesses already examined are quite
a large in number the Court must
seriously consider whether the objects
sought to be achieved by such exercise is
worth wasting the whole labour already
undertaken. Unless the Court is hopeful
that there is reasonable prospect of the
case as against the newly brought
accused ending in conviction of the
offence concerned we would say that the
Court should refrain from adopting such
a course of action."

10. Thus from the above law laid
down by the apex court it is evident that
no body should be summoned under
section 319 Cr.P.C. only to face the trial.
There should be possibility of his
conviction as well. Power under section
319 Cr.P.C. is an extraordinary power
given to the court to be exercised ex-
debito justice. It should be exercised
sparingly only when it is required most.
Summoning any body as an accused at the
stage of trial after the evidence had started
in the case should be resorted to only
when there is reasonable possibility of his
conviction. Asking some body to fact the
ordeal of trial only to be acquitted is not
the law but is his harassment.

11. On the facts of the present case I
find that revisionist no.1 is an unmarried
girl
who
is
handicapped
and
has
deformity in her leg. Her involvement in
the offence is a remote possibility. So far
as two other revisionists are concerned
they are a married couple resident of
different places. Merely because they are
relatives of the husband they should not
be
harassed
without
any
specific
allegation against them. They have got
two infant daughters and it very unlikely
that they will indulge in the demand of
dowry and torture. There is no specific
allegation against them and their names
are mentioned as a matter of course in the
statements, which in my view was not
sufficient to anoint any charge on them.

Resultantly
in
view
of
the
discussions made above I find force in
this revision, which deserves to be
allowed.

12. This revision is allowed. The
impugned order dated 15.7.2006, under
section 319 Cr.P.C., passed by Additional
Chief Judicial Magistrate, Court No. 1,
Mathura in criminal case no. 1312 of
2005 State versus Gajendra Pal Singh
And
Others
summoning
the
three
revisionists- Km. Mona, Smt Poonam and
Balvir Singh is here by set aside. The trial
court is directed to proceed with the case
against rest of the accused and conclude
the same if possible within five months.
Revision allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2006

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE RAN VIJAI SINGH, J.

Second Appeal No. 1291 of 1981

Pujari Yadav ...Plaintiff-Respondent-
Appellant
Versus
Ram Briksha Yadav ...Defendant-
Appellant-Respondent

Counsel for the Appellant:
Sri N.P. Mishra