# Km. Rehana & Anr. Revisionists v. State of U.P. & Anr. 292 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 11 ILRA 291
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-22
- **Case number:** Criminal Revision No. 596 of 2020
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-rehana-anr-revisionists-v-state-of-u-p-anr-292-indian-law-reports-allahabad-45397
- **Pages:** 5

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section 397/401 - Indian
Penal Code, 1860-Sections 498-A, 304-B -
Dowry Prohibition Act, 1961-Section 3/4 -
application- Section 319- challenge tosummoning of proposed accused for trial
u/s 319 Cr.P.C.-examination-in-chief is
sufficient if it satisfactorily proves the
presence and role of accused in the crimerevisionists actively participated in the
commission of crime-mere taking name is
not sufficient there must be something
more to show implication of person-on
mere probability of complicity revisionists
have not been summoned but there is
appropriate material and evidence to
justify summons of revisionists-trial judge
has committed no error of law to summon
the revisionists for trial.(Para 3 to 6)

B. An inquiry can be conducted by the
Magistrate or court at any stage during
the proceedings before the court. This
power is preserved with the court and has
to be read and understood accordingly.
The outcome of any such exercise should
not be an impediment in the speedy trial
of the case. Though the facts so received
by the Magistrate or the court may not be
evidence, yet it is some material that
makes things clear and unfolds concealed
or deliberately suppressed material that
may facilitate the trial. In the context of
Section 319 CrPC it is an information of
complicity. Such material therefore, can
be used even though not an evidence in
stricto sensu, but an information on
record collected by the court during
inquiry itself, as a prima facie satisfaction
for exercising the powers as presently
involved.(Para 5)

The revision is dismissed. (E-6)

List of Cases Cited:-

## Text

11 All. Km. Rehana & Anr. Vs. State of U.P. & Anr.
291
the complaint under Section 204 (4). Once
the summons was already sent, there was
no necessity of paying further court fees.
The non presence of the accused should
have been sought to be procured by way of
invoking procedure as per provisions of
Section 87 of the Cr.P.C. Instead of that,
the learned Judge has dismissed the
complaint of the present revisionist which
shows that the order is perverse. The said
order is required to be quashed and set
aside.

7. The respondents accused shall be
forthwith dealt with by the learned Magistrate
and their presence shall be procured even if it
has to be procured by way of non bailable
warrant to be served through Superintendent of
Police.

8. The order passed by the learned Judge
below dismissing the case is absolutely cryptic.
The stage was for appearance of the accused
who was evading summons and was aware that
summoning order was passed. The accused is
shield by Superintendent of Police, Moradabad
as after notice, no action is taken by him. The
revision filed by the accused was also dismissed
on 5.2.2018. All these factual aspect ought to
have been taken care of by the Magistrate. At
stage of seeking the presence of accused, the
presence of the complainant was not at all
necessary.

9. In view of the above, this revision is
allowed. The order impugned in this petition is
set aside. The learned Magistrate shall proceed
from the stage, summons was issued and
accused is aware of the summons the presence
of the accused be procured first and thereafter
the presence of the complainant be insisted
upon.

10. The learned Magistrate has the duty
cast to see that there is no misuse of the Court
proceedings. In this case, there is a clear misuse
of process of law by the accused who even after
coming to know that summons were issued
against them and their revision were dismissed,
did not appear before the Court below and
strange
enough
the
learned
Magistrate
dismissed that matter of the complainant at the
stage of issuance of bailable warrant as accused
had not appeared before it pursuant to the
summons already issued. There was no
question of affixing process fees and, therefore,
the dismissal under Section 204 of Cr.P.C. is
bad.

11. A copy of this order be sent to the
Superintendent of Police, Moradabad who shall
explain to this Court as to what action he had
taken pursuant to the notice dated 12.7.2016.

12. This judgment be circulated to the
Trial Court Judge not to insist for the presence
of complainant at the stage of service of
summons/warrants and/as their presence would
not be required for any adjudicatory purpose.

13. Once the process fees has been
affixed, it is the duty of the police authority
through the Court to procure the presence of the
accused unless orders otherwise are passed. The
compliance be filed in the Registry of the High
Court
on
or
before
25.10.2020
by
Superintendent of Police, Moradabad and the
learned Magistrate concerned.
----------
(2020)11ILR A291
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.09.2020

BEFORE
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Revision No. 596 of 2020

Km. Rehana & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties
292 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionists:
Sri Pradeep Kumar Pal, Sri S.I. Jafri, Sri
Gufran Ahmad Khan, Sri Ram Sunder
Yadav, Sri N.I. Jafri

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,1973-Section 397/401 - Indian
Penal Code, 1860-Sections 498-A, 304-B -
Dowry Prohibition Act, 1961-Section 3/4 -
application- Section 319- challenge tosummoning of proposed accused for trial
u/s 319 Cr.P.C.-examination-in-chief is
sufficient if it satisfactorily proves the
presence and role of accused in the crimerevisionists actively participated in the
commission of crime-mere taking name is
not sufficient there must be something
more to show implication of person-on
mere probability of complicity revisionists
have not been summoned but there is
appropriate material and evidence to
justify summons of revisionists-trial judge
has committed no error of law to summon
the revisionists for trial.(Para 3 to 6)

B. An inquiry can be conducted by the
Magistrate or court at any stage during
the proceedings before the court. This
power is preserved with the court and has
to be read and understood accordingly.
The outcome of any such exercise should
not be an impediment in the speedy trial
of the case. Though the facts so received
by the Magistrate or the court may not be
evidence, yet it is some material that
makes things clear and unfolds concealed
or deliberately suppressed material that
may facilitate the trial. In the context of
Section 319 CrPC it is an information of
complicity. Such material therefore, can
be used even though not an evidence in
stricto sensu, but an information on
record collected by the court during
inquiry itself, as a prima facie satisfaction
for exercising the powers as presently
involved.(Para 5)

The revision is dismissed. (E-6)

List of Cases Cited:-

1. Hardeep Singh etc. Vs St. of Panj. & ors.
etc., (2014) 3 SCC 92

2. Amrawati & anr. Vs St. of U.P. (2004) 57 ALR
290

3. Lal Kamlendra Pratap Singh Vs St. of U.P.
(2009) 3 ADJ 322 (SC)

(Delivered by Hon'ble Gautam Chowdhary, J.)

1. Heard Sri N.I. Jafri, Senior
Advocate assisted by Sri Gurfan Ahmad
Khan, learned counsel for the revisionists,
learned A.G.A. for the State of U.P. and
perused the record.

2. The present criminal revision has
been filed with a prayer to allow the
revision and set aside the judgement and
order dated 07.01.2020 passed by learned
Sessions Judge, Badaun, in Sessions Trial
No. 62 of 2019 (State Vs. Mushrarat Khan
& others) in Case Crime No. 446 of 2018,
under sections 498-A, 304-B IPC readwith
section 3/4 Dowry Prohibition Act, Police
Station- Wazir Ganj, District- Budaun upon
application filed under section 319 Cr.P.C.
filed by opposite party no. 2 which is
pending in the court of Sessions Judge,
Badaun.

3. In short brief facts of the case are
that the revisionists of the said case were
exonerated during investigation and no
charge-sheet was submitted against them.
The first information report of the incident
was lodged by the father of the deceased
Anish Khan/opposite party no.2. According
to the statement of P.W.1, prior to the
incident, it was told to the informant by the
daughter of the deceased that her husband
Mushrarat Khan, her in-laws being fatherin-law
Maisar
Khan,
mother-in-law,
11 All. Km. Rehana & Anr. Vs. State of U.P. & Anr.
293
Sahida, devar Nasrat Khan and nanad
Rihana used to physically and mentally
torture her for dowry. It was also told that
all the above accused demanded a new car
and they also asked for 14 tola gold and
one lakh rupees cash. According to the first
information report, on 28.10.2016 the
deceased, Maijveen was harassed and
beaten up by her in-laws for demanding the
said dowry and on 29.10.2016 it came
within the knowledge of the first informant
by his relative that her daughter Maijveen
had been killed by her in-laws by
poisoning. The body of the deceased was
kept on the boundary of her house and all
the in-laws had escaped from the house. He
reported the incident at Police Station-
Wazirganj against husband, Mushrarat
Khan, father-in-law, Maisar Khan, motherin-law, Sahida, devar, Nasrat Khan and
nanad, Rihana but the co-accused Nasrat
Khan and Rihanna got exonerated during
investigation and the charge-sheet was not
submitted against them, while the lower
court found that Nasrat Khan and Rihanna
were the participants of the said incident
and therefore they needs to be summoned.

4. Revisionist's counsel has tried to
point out certain infirmities in the evidence
which has been made the basis to summon
the accused-revisionists under Section 319
of Cr.P.C. The factual controversies have
been raised and certain submissions which
are more in the nature of ultimate defense
that the accused may finally take to show
their innocence, have also been made. The
plea that the accused-revisionist has been
falsely implicated, has also been taken.
Learned counsel for the revisionist has not
been able to point out any such illegality or
impropriety or incorrectness which may
persuade this Court to interfere in the
impugned order. There is no abuse of
court's process perceptible in the same. The
relevant law also have been taken into
consideration by the lower court. This
Court also does not see any such element of
perversity in the impugned order. The
evidence as has been produced during the
course of trial appears to have been
sufficient to justify the summoning of the
revisionists.

5. At this stage, reference may also be
made to the five judges judgement of Apex
Court in the Case of Hardeep Singh etc.
etc. Vs. State of Punjab and Ors etc. etc.,
reported in 2014 (3) SCC 92, wherein the
Apex Court has also considered the words
'Inquiry, 'Trial', the relevance of the
material collected during the course of
inquiry
and
its
evidentiary
value.
Paragraphs 27, 29, 34, 39, 41, 81, 82, 83 of
the said judgement are relevant for the
controversy in hand and are therefore,
reproduced herein below:

"27.
The
stage
of
inquiry
commences, insofar as the court is
concerned, with the filing of the chargesheet and the consideration of the material
collected by the prosecution, that is
mentioned in the charge-sheet for the
purpose of trying the accused. This has to
be understood in terms of Section 2(g)
CrPC, which defines an inquiry as follows:

"2(g)
'inquiry'
means
every
inquiry, other than a trial, conducted under
this Code by a Magistrate or court."

29. Trial is distinct from an
inquiry and must necessarily succeed it.
The purpose of the trial is to fasten the
responsibility upon a person on the basis of
facts presented and evidence led in this
behalf. In Moly v. State of Kerala [(2004) 4
SCC 584 : 2004 SCC (Cri) 1348] , this
Court observed that though the word
"trial" is not defined in the Code, it is
clearly
distinguishable
from
inquiry.
294 INDIAN LAW REPORTS ALLAHABAD SERIES
Inquiry must always be a forerunner to the
trial.

34. In Common Cause v. Union of
India [(1996) 6 SCC 775 : 1997 SCC (Cri)
42 : AIR 1997 SC 1539] , this Court while
dealing with the issue held: (SCC p. 776,
para 1)

"1. II (i) In cases of trials before
the Sessions Court the trials shall be
treated to have commenced when charges
are framed under Section 228 of the Code
of Criminal Procedure, 1973 in the cases
concerned.

(ii) In cases of trials of warrant
cases by Magistrates if the cases are
instituted upon police reports the trials
shall be treated to have commenced when
charges are framed under Section 240 of
the Code of Criminal Procedure, 1973
while in trials of warrant cases by
Magistrates when cases are instituted
otherwise than on police report such trials
shall be treated to have commenced when
charges are framed against the accused
concerned under Section 246 of the Code of
Criminal Procedure, 1973.

(iii) In cases of trials of summons
cases by Magistrates the trials would be
considered to have commenced when the
accused who appear or are brought before
the Magistrate are asked under Section 251
whether they plead guilty or have any
defence to make." (emphasis supplied)

39.Section 2(g) CrPC and the
case laws referred to above, therefore,
clearly envisage inquiry before the actual
commencement of the trial, and is an act
conducted under CrPC by the Magistrate
or the court. The word "inquiry" is,
therefore, not any inquiry relating to the
investigation
of
the
case
by
the
investigating agency but is an inquiry after
the case is brought to the notice of the
court on the filing of the charge-sheet. The
court can thereafter proceed to make
inquiries and it is for this reason that an
inquiry has been given to mean something
other than the actual trial.

41.In
a
somewhat
similar
manner, it has been attributed to the word
"course" the meaning of being a gradual
and continuous flow advanced by journey
or passage from one place to another with
reference to period of time when the
movement is in progress. (SeeState of
Travancore-Cochin
v.Shanmugha
Vilas
Cashewnut Factory [AIR 1953 SC 333].

81.An inquiry can be conducted
by the Magistrate or court at any stage
during the proceedings before the court.
This power is preserved with the court and
has to be read and understood accordingly.
The outcome of any such exercise should
not be an impediment in the speedy trial of
the case. Though the facts so received by
the Magistrate or the court may not be
evidence, yet it is some material that makes
things clear and unfolds concealed or
deliberately suppressed material that may
facilitate the trial. In the context of Section
319 CrPC it is an information of
complicity. Such material therefore, can be
used even though not an evidence in stricto
sensu, but an information on record
collected by the court during inquiry itself,
as a prima facie satisfaction for exercising
the powers as presently involved.

82.This pre-trial stage is a stage
where no adjudication on the evidence of
the offences involved takes place and
therefore, after the material along with the
charge-sheet has been brought before the
court, the same can be inquired into in
order to effectively proceed with framing of
charges. After the charges are framed, the
prosecution is asked to lead evidence and
till that is done, there is no evidence
available in the strict legal sense of Section
3 of the Evidence Act. The actual trial of
the offence by bringing the accused before
11 All. Ramesh Vs. State of U.P. & Ors.
295
the court has still not begun. What is
available is the material that has been
submitted before the court along with the
charge-sheet. In such situation, the court
only has the preparatory material that has
been placed before the court for its
consideration in order to proceed with the
trial by framing of charges.

83.It
is,
therefore,
not
any
material that can be utilised, rather it is
that material after cognizance is taken by a
court, that is available to it while making
an inquiry into or trying an offence, that
the
court
can
utilise
or
take
into
consideration for supporting reasons to
summon any person on the basis of
evidence adduced before the court, who
may be on the basis of such material,
treated to be an accomplice in the
commission of the offence. The inference
that can be drawn is that material which is
not exactly evidence recorded before the
court, but is a material collected by the
court, can be utilised to corroborate
evidence already recorded for the purpose
of summoning any other person, other than
the accused. This would harmonise such
material with the word "evidence" as
material that would be supportive in nature
to facilitate the exposition of any other
accomplice whose complicity in the offence
may have either been suppressed or
escaped the notice of the court."

6. In view of the discussions made
herein above, the submissions made by the
learned counsel for the revisionists are not
found to be cogent enough to quash the
order impugned in the present revision.
Consequently, the present revision is
accordingly dismissed.

7. However, it is observed that if the
bail has not been obtained as yet, the
accused-revisionist may appear before the
court below and apply for bail within two
months from today. The court below shall
make an endeavour to decide the bail
application
keeping
in
view
the
observations made by the Court in the Full
Bench decision of Amrawati and another
Vs. State of U.P. 2004 (57) ALR 290 and
also in view of the decision given by the
Hon'ble Supreme Court in the case of Lal
Kamlendra Pratap Singh Vs. State of
U.P. 2009 (3) ADJ 322 (SC).

8. In the aforesaid period or till the
date of appearance of the accused in the
court below, whichever is earlier, no
coercive measures shall be taken or given
effect to.
----------
(2020)11ILR A295
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2020

BEFORE
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Criminal Revision No. 661 of 2017

Ramesh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Anil Kumar

Counsel for the Opposite Parties:
A.G.A., Sri Shiv Badan Singh, Sri Vijay
Bahadur Shivhare

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401 - Indian
Penal Code, 1860- Sections 147, 148, 149,
342, 302, 504, 506 & SC/ST Act, 1989Sections
3(1)(x),
3(2)(v)-applicationrejection-Challenge
to-rejection
order
regarding
summoning
of
other
four
accused u/s 319-Investigating officers
had not found any reliable evidence