# Km. Sandhya & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 365
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-10
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-sandhya-anr-revisionists-v-state-of-u-p-anr-44899
- **Pages:** 4

## Headnote

Law
-Code
of
Criminal
Procedure,1973 - Section 319 - application
- an additional accused can be summoned
even on the basis of examination-in-chief
of a single witness but it depends upon the
facts and circumstances of each individual
case-the
standards
of
sufficiency
of
evidence
which
may
justify
the
summoning of an additional accused under
section 319 Cr.P.C. is on higher footing.
Such a power must not be exercised in a
casual manner-summoning of the accused
reflects that neither the ratio nor the
obiter of the Constitution Bench of the
Apex Court has been followed in the right
spirit- in the instant case neither the crossexamination of the witness was allowed to
take place nor any further evidence had
been allowed to come that would have
given more material ot assess the worth
and credibility of the allegations that have
been brought against the two revisionistssummoning of revisionists is set-aside.
(Para 3,4, 6, 7, 8)

Revision allowed (E-6)

List of cases cited:-

## Text

3 All. Km. Sandhya & Anr. Vs. State of U.P. & Anr.
365
(2019)11ILR A365

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2019

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Revision No. 348 OF 2019

Km. Sandhya & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Sunil Kumar Singh, Sri Abhishek
Tripathi

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

A.
Criminal
Law
-Code
of
Criminal
Procedure,1973 - Section 319 - application
- an additional accused can be summoned
even on the basis of examination-in-chief
of a single witness but it depends upon the
facts and circumstances of each individual
case-the
standards
of
sufficiency
of
evidence
which
may
justify
the
summoning of an additional accused under
section 319 Cr.P.C. is on higher footing.
Such a power must not be exercised in a
casual manner-summoning of the accused
reflects that neither the ratio nor the
obiter of the Constitution Bench of the
Apex Court has been followed in the right
spirit- in the instant case neither the crossexamination of the witness was allowed to
take place nor any further evidence had
been allowed to come that would have
given more material ot assess the worth
and credibility of the allegations that have
been brought against the two revisionistssummoning of revisionists is set-aside.
(Para 3,4, 6, 7, 8)

Revision allowed (E-6)

List of cases cited:-
1. Hardeep Singh Vs. State of Punjab and Ors,
(2014) 3 SCC-92

2. Brijendra Singh and Ors Vs. State of
Rajasthan,(2017) LawSuit(SC) 484

(Delivered by Hon'ble Karuna Nand Bajpayee, J.)

1. This revision has been filed
seeking the quashing of impugned order
dated 12.12.2018 passed by Chief Judicial
Magistrate, Auraiya, as well as the entire
proceedings of Case No.1377 of 2014
(State vs. Radhey Shyam Batham and
others), under sections 354, 323, 504
I.P.C., Police Station- Dibiyapur, District-
Auraiya.

2. Heard learned counsel for the
revisionists.

3. Submission of the counsel is that
the implication of the revisionists has
been done on the basis of bad blood
which existed in between the parties. The
background of the case is that a plot was
purchased
by
the
mother
of
the
revisionists on 5.9.2013 but as the
opposite party was attempting to illegally
possess the plot and encroach upon the
same, a case in that regard was filed on
25.9.2013 as original suit no.455 of 2013
in the court of Civil Judge Senior
Division, Auraiya which is still pending.
When the other side came to know about
the legal proceedings initiated by the
family of the revisionists on 1.10.2013 the
opposite party no.2 along with certain
other family members became aggressive
and made an assault and attacked upon
the house of the revisionists as a result of
which mother of the revisionists sustained
injuries and a report in this regard was
lodged as N.C.R. No.97 of 2013 on
1.10.2013 in Police Station Dibiyapur.
Reliance in this regard was placed upon
366 INDIAN LAW REPORTS ALLAHABAD SERIES
Annexure No.2 of the revision. In this
matter a charge-sheet was submitted
under sections 323, 324, 452, 504, 506
I.P.C. Again because of the report lodged
against the opposite parties the other side
felt indignated and out of ire and
vengeance entered into confabulations in
order to bring an entirely false case
against the revisionists and their family
members. It was this reason that a number
of days after the said occurrence of
aggression made by the opposite side they
have lodged the present F.I.R. on
5.10.2013. There is hardly any good
explanation for this inordinate delay in
lodging the F.I.R. and the explanation
offered in this regard is quite unpalatable,
unconvincing
and
is
incapable
of
inculcating any belief in the same. After
lodging of F.I.R. against the revisionists
the investigation took place and it was
found that none of the accused persons of
the case had any complicity in the crime
and as a result of the same the final report
was submitted against all the accused
persons. Later on, further investigation
again took place and though the chargesheet was submitted against certain other
family members of the revisionists but the
complicity of the revisionist nos.1 and 2
both remained unsubstantiated on the
basis of material collected by the
investigation
which
included
the
statements of witnesses affirming the
absence of both the revisionists at the
place of occurrence at the time of the said
incident. Subsequently, when the trial
took place the examination-in-chief of
P.W.1 was recorded and as was expected
she repeated the same false allegations
made against revisionists. The application
under section 319 Cr.P.C. was moved and
both the revisionists who are brother and
sister, have been summoned by the court
without
even
allowing
any
crossexamination upon the victim. Submission
of the counsel is that though technically
speaking, it is permissible under law that
an additional accused can be summoned
even on the basis of examination-in-chief
of a single witness but it all depends upon
the facts and circumstances of each
individual case which have to be
considered
before
assessing
the
legitimacy of such exercise. In this
particular case where the fact was
apparent on the face of record that the
implication of both the revisionists was
found false by investigation and the
evidenciary material collected was highly
indicative about their innocence and even
their presence at the place of occurrence
was not substantiated and the allegations
to that effect was found false, and
repeatedly the final report was submitted
in their favour twice, it would have been a
better course and more advisable for the
trial Court to have at least allowed the
cross-examination of the witness so that
the actual worth of the testimony could be
better assessed. The Court could also, in a
case like this, have proceeded to summon
the additional accused after examining
more than one witness. According to the
counsel the ratio and obiter as has been
settled by the Constitution Bench of Apex
Court in the case of Hardeep Singh vs.
State of Punjab and others, 2014 (3)
SCC-92, the power to be exercised under
section 319 Cr.P.C. is qualitatively
different from the power to be exercised
under section 204 Cr.P.C. for summoning
the accused to face the trial. The
standards of sufficiency of evidence
which may justify the summoning of an
additional accused under section 319
Cr.P.C. is on the higher footing. Such a
power must not be exercised either in a
casual or caviller manner or in a routine
manner. There has to be some very
3 All. Km. Sandhya & Anr. Vs. State of U.P. & Anr.
367
serious circumspection before exercising
such power. It is also true that it is not
necessary that the Court should conclude
on the basis of evidence produced during
the course of trial that evidence is of such
nature that must entail the conviction of
the
accused.
That
is
never
the
requirement. Such a rigorous assessment
is not called for. Nevertheless, the
measure of the degree of sufficiency of
evidence that should persuade the Court
to summon an additional accused must be
of a convincing nature which may inspire
confidence. Submission is that the order
impugned reflects that it is a very casually
passed order in which the ipse dixit of the
victim who in the circumstances was not
expected to say anything other than what
she said earlier in the F.I.R. or could not
have been expected not to reiterate her
earlier
allegation
has
been
rather
credulously brought to serve and become
the sole basis to summon the revisionistsaccused. Her testimony could have been
allowed to be estimated on the anvil of
some questions at least in the background
of the fact that the false implication of the
aforesaid two accused was repeatedly
found and affirmed twice in the course of
investigations that took place earlier in
the
case.
Submission
is
that
the
summoning of the accused reflects that
neither the ratio nor the obiter of the
Constitution Bench of the Apex Court has
been followed in the right spirit and
therefore the impugned order is not
tenable in the eyes of law.

4. Counsel appearing for the
opposite party has submitted that once the
witness states about the complicity of a
particular accused and there is no
ambiguity about the same in her statement
then the material collected during the
course
of
investigation
is
wholly
irrelevant and does not deserve to be seen
at all. The cross-examination is not a
condition precedent to act upon the
testimony of a witness for the purpose of
exercising the power u/s 319 Cr.P.C. and
there is nothing illegal about it if the
accused-revisionists
have
been
summoned on the basis of a single
examination-in-chief of P.W.1. Therefore
there is nothing wrong in the order and
trial must go on against the additional
accused as such.

5. Heard learned A.G.A. and
perused the record.

6. After going through the entire
record of the case and considering the
Constitution Bench's decision in Hardeep
Singh (supra) and after considering the
Apex Court's decision given in Brijendra
Singh and Ors Vs. State of Rajasthan.
2017 LawSuit(SC) 484, this Court is of
the opinion that the trial Court did not act
in the right manner and the least that may
be said is that it was an order passed
almost in haste. The background of the
case which was apparently available to
indicate that the complicity of both the
accused
persons
was
found
unsubstantiated even when the case was
investigated
twice,
was
completely
ignored by the Court below. Even
otherwise, the role assigned to the lady
does not appear to be a very probable
allegation. But this Court does not
propose to enter into that aspect of the
case at any great length lest it may cause
prejudice to the trial either way. This
Court also finds some discrepancies in the
details of descriptions and also does not
feel very convinced about the nature of
allegations that have been made against
the revisionist no.2 specially when he has
368 INDIAN LAW REPORTS ALLAHABAD SERIES
been found to have been absent on the
spot. The revisionist no.2 summoned
under section 319 Cr.P.C. is said to be a
doctor employed in V.S.R. Memorial
Medical Institute, Rasulabad, Kanpur
Dehat. It may be clarified that this
observation of this Court must not be
construed to have any reflection upon the
ultimate merits of the case and the trial
Court shall be at liberty to proceed in the
matter
independently
remaining
completely
unprejudiced
by
the
observations of this Court. But as this
Court is dealing with the task of assessing
the legitimacy or the appropriateness of
summoning of the additional accused
some sort of reflections are bound to
come during the course of discussions.

7. At any rate, this Court is of the
considered opinion that the summoning of
the revisionists was, to speak the least, at
this stage a kind of hasty act resulting into
the passing of the impugned order in
question which cannot be called a very
mature or prudent order. Neither the
cross-examination of the witness was
allowed to take place nor any further
evidence had been allowed to come that
would have given more material to assess
the
worth
and
credibility
of
the
allegations that have been brought against
the two revisionists. The impugned order
is certainly not in keeping with the spirit
of the Constitution Bench's decision of
the Apex Court given in the case of
Hardeep Singh vs. State of Punjab and
others, 2014 (3) SCC-92. The trial court
would do well to keep in perspective the
sound age old principle that to have
power to do something is different from
having the judicial ability to know how
that power is to be exercised. This Court
therefore finds good reason to allow the
revision.

8. The impugned order dated
12.12.2018 is hereby set-aside. The
revision stands allowed. The summoning
of revisionists is also set-aside.

9. It may be observed that if at some
future stage more convincing and more
sufficient evidence is brought on record
which may justify the summoning of the
additional accused persons, the trial Court
shall be at liberty to proceed further in
accordance with law as it may deem fit to do.
----------
(2019)11ILR A368

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABD 10.07.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Revision No. 685 OF 2019

Om Prakash Pandey ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Vimlendu Tripathi

Counsel for the Opposite Parties:
A.G.A., Sri Himanshu Pandey

A. Criminal Law -Code of Criminal
Procedure,1973 - Section 133 - the
proceedings under section 133 of Cr.P.C.
are summary in nature and are meant
for the cases of imminent danger to the
public tranquillity and peace and the
same should not be used or rather
misused to scuttle the valuable right of
owner of property and that is why, the
legislature has in its wisdom used the
words "any reliable evidence" in support
of such denial, in the event and in case
of which he shall stay the proceedings
until the matter of the existence of such
right
has