# Krishna Pal Singh Yadav v. State of U.P

- **Citation:** (2008) 3 ILRA 765
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-04
- **Case number:** Criminal Misc. Application No. 9241 of 2008
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-pal-singh-yadav-v-state-of-u-p-41175
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 319 -
summoning order-challenged on ground
solitary statement of P.W. 5 cannot be
basis for summoning-held-statement of
P.W. 5 is sufficient to prove the chargecannot
be
interfered
on
technical
ground.

Held: Para 13

The above three judgments relied upon
by the counsel for the applicant does not
farther of the case of the applicant at all.
All those judgments reiterate the same
law that the power under Section 319
Cr.P.C. should be exercised sparingly and
that too in the cases where the chances
of conviction are not remote. From the
facts discussed above, I have held that
the evidence of PW5 is sufficient to
frame the charge against the applicant
and therefore, the power exercised by
the trial Judge cannot be said to be de
horse the law.
Case law discussed:
AIR 2006 Supreme Court (11)892, (2005) 12
Supreme Court Cases 327, (2005) 12 SCC 432

## Text

3 All] Krishna Pal Singh Yadav V. State of U.P.
765
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2008

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No. 9241 of
2008

Krishna Pal Singh Yadav
...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri. Rajkumar

Counsel for the Opposite Party:
Sri. P.C. Pathak
A.G.A.

Code of Criminal Procedure-Section 319 -
summoning order-challenged on ground
solitary statement of P.W. 5 cannot be
basis for summoning-held-statement of
P.W. 5 is sufficient to prove the chargecannot
be
interfered
on
technical
ground.

Held: Para 13

The above three judgments relied upon
by the counsel for the applicant does not
farther of the case of the applicant at all.
All those judgments reiterate the same
law that the power under Section 319
Cr.P.C. should be exercised sparingly and
that too in the cases where the chances
of conviction are not remote. From the
facts discussed above, I have held that
the evidence of PW5 is sufficient to
frame the charge against the applicant
and therefore, the power exercised by
the trial Judge cannot be said to be de
horse the law.
Case law discussed:
AIR 2006 Supreme Court (11)892, (2005) 12
Supreme Court Cases 327, (2005) 12 SCC 432

(Delivered by Hon'ble Vinod Prasad, J.)

1. Heard learned counsel for the
applicant and learned A.G.A.

2. Learned counsel for the applicant
criticized the impugned summoning order
of the applicant under Section 319 Cr.P.C.
dated 7.4.2008 passed by Special Judge
(SC/ST Act) Gautam Budh Nagar in S.T.
NO.624 of 2006, P.S. Sector-24, District
Gautam Budh Nagar primarily for three
reasons. Firstly, that the applicant is not
named in the first information report as an
accused. Secondly, that he had got no
motive to participate in the incident of
committing the murder and lastly that
PW-5, on whose statement in the Court,
the applicant has been summoned to stand
the trial, is an interested witness and he
colluded with the main accused persons
and to save his skin. He has made a U
turned in his statement and implicated the
present applicant. Learned counsel for the
applicant has further contended that
solitary statement of P.W. 5 by itself is
not sufficient to hold the applicant guilty
and hence exercise of power under
Section 319 Cr.P.C. by the trial Judge to
summon the applicant as an accused is not
in consonance with law as well as various
pronouncements by the Apex Court.
Some of those pronouncements which
have been relied upon by the learned
counsel for the applicant are Lokesh Ram
Vs. Nihal Singh & another AIR 2006
Supreme Court (11)892 (para 12),
Palanisamy Gounder and another Vs.
State representated by Inspector of
Police (2005) 12 Supreme Court Cases
327
(para
13)
and
Kavuluri
Vivekananda Reddy and another Vs.
State of A.P. and another (2005) 12
SCC 432 (para 2). Learned counsel for
the applicant has further submitted that in
766 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
any view of the matter the impugned
order of summoning dated 7.4.2008 is bad
in law and deserves to be quashed and this
application deserves to be allowed.

3. Sri S.L. Kersarwari, learned AGA
and Sri P.C. Pathak learned counsel for
the respondent, per contra, contended that
there is no infirmity in the impugned
summoning order and therefore, this
application being bereft of any merit
deserves to be dismissed.

4. I have cogitated over rival
contentions and have gone through the
record of this Criminal Misc. Application
along with the appended annexures, with
special attention to the statement of
witness PW5, Mukesh Kumar, recorded
in the concerned Sessions Trial No.624/06
State Vs. Krishna Pal Singh Yadav and
others.

5.

The
controversy
in
this
application lies in a very narrow compass.
The question which has been mooted for
consideration and judicial determination
is as to whether power under Section 319
Cr.P.C. has been exercised by the Special
Judge (SC/ST Act) G.B. Nagar in
consonance with the statutory provision
and the law laid down by the Apex Court
or not in respect of Section 319 Cr.P.C.?

6. For a ready reference section 319
Cr.P.C. is reproduced below:-

"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
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 reheard;
(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.

7. A perusal of the aforesaid section
admits no exception so far as power to
summon any person as accused to stand
the trial along with already being tried
accused persons are concerned.

8. During the course of any trial,
from the evidence recorded during the
said trial if the evidence comes against
any person that he has also committed any
offence for which the said person could
be tried along with the already being tried
accused then that person can also be
summoned as accused to stand trial along
with the already being tried accused and if
such an evidence is brought forth then
there is no impediment on the power of
the trial Judge to add any person as an
accused in the said trial and summon him.
Section 319 Cr.P.C. has got two important
3 All] Krishna Pal Singh Yadav V. State of U.P.
767
ingredients firstly, that there should be
some evidence against the person who is
not facing trial that he has committed any
offence for which he could be tried along
with already being tried accused and
secondly that the persons concerned who
is desired to be summoned is not be
facing trial in the concerned trial. But for
the aforesaid two ingredients there is no
other requirement for the trial Judge to
exercise power under Section 319 Cr.P.C.

9. Section 319 has been subjected to
various judicial pronouncements both by
this Court as well as by the Apex Court
and hence the controversy which has been
agitated
before
me
today
in
this
Application no longer remains res integra.
From the judgments, which has been
relied upon by learned counsel for the
applicant himself, referred to above, it is
dear that the law which has now being
expounded by the Apex Court is that
power under Section 319 Cr.P.C. should
be exercised by the trial Judge only for
very compelling reasons in rarest of rare
cases and only in those cases where the
evidence led before it is prima facie
sufficient to frame charges at least. Thus,
what comes out from the aforesaid
decisions of the Apex Court is that no
body should be summoned only to face
the trial. Power under Section 319 Cr.P.C.
should be exercised only when there is
possibility of conviction of the person
desired to be summoned from the
evidence led in the trial.

10. From such an exposition of law
when I examine the facts of the present
case it comes out that the incident
occurred in day light inside a Maruti car.
Motivated
murder
was
committed
actuated by the fact that the one of the
deceased who was the principal namely
Jaswant Singh Tyagi was an injured
witness in an earlier murder case in which
his son Rajiv Tyagi had lost his life. The
earlier murder of the son had occurred
inside the Chamber of Jaswant Singh
Tyagi. Jaswant Singh Tyagi was to
depose in that sessions trial regarding the
murder of his son. The accused persons
were pressurizing him not to give any
evidence and when they failed in their
endeavour of pressure tactics then they
hatched up a conspiracy and murdered
Jaswant Singh Tyagi while he was
proceeding towards Noida Development
Authority in a Maruti Car which was
driven by the present applicant. The
movement of the deceased to Noida
Development
Authority
was
a
fact
unknown to the real assailant of the
earlier murder case and the applicant. The
aforesaid fact was in the knowledge of
only 4 persons, the present applicant,
Jaswant Singh Tyagi deceased his gunner
Murtza Ali who was accompanying him
along with Manager of the institution.
According to the statement of PW-5, the
applicant who was driving the car
intentionally stopped it at that very place
at the fixed time where the other
assailants were waylaying to murder the
deceased witness. Such an evidence is
sufficient to summon the applicant to face
trial as the said evidence by PW 5 if taken
to be correct on the face of it, then it can
be safely held that the applicant is also
guilty of murder.

11. Another reason for which I am
not inclined to interfered with the
impugned order is that in a post
occurrence conduct the present applicant
threatened PW 5 not to state about the
incident to anybody as has been deposed
by him. According to the case of PW 5 he
did inform the real incident to SP and SSP
768 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
but he was rebuffed by them as SP Noida
was a relative of the present applicant.
Whether the version of PW 5 in respect of
post occurrence conduct is correct or not
has to be judged by the trial judge but if
his evidence is taken to be correct, there is
no gain saying that the applicant can be
held to be guilty of murder and at present
there is sufficient evidence to frame
charges against him. Whether PW 5 has
taken a U-turn is a matter to be
adjudicated by the trial Judge.

12. Without making any further
observations, as it may prejudice the case
of the applicant, at this stage I dont find
any reason to interfere with the impugned
order as in my view it does not suffer
from any infirmity of law or of fact. The
applicant will have full opportunity to
lead his defence and plead his case at the
stage of framing of charge under Sections
227 and 228 Cr.P.C. or later on in the trial
but so far as the impugned summoning
order of the applicant under Section 319
Cr.P.C. is concerned the said order does
not suffer from any infirmity of law.

13. The above three judgments
relied upon by the counsel for the
applicant does not farther of the case of
the applicant at all. All those judgments
reiterate the same law that the power
under Section 319 Cr.P.C. should be
exercised sparingly and that too in the
cases where the chances of conviction are
not remote. From the facts discussed
above, I have held that the evidence of
PW5 is sufficient to frame the charge
against the applicant and therefore, the
power exercised by the trial Judge cannot
be said to be de horse the law.

14. This application is merit less and
it is dismissed as such. Interim order
dated 29.4.2008 stands vacated. Since the
trial is very old and the attempt in this
case was to tamper with the evidence of
the earlier murder case, I direct the trial
Court to decide the case expeditiously in
accordance with law as provided under
Section 309 Cr.P.C. and make an
endeavour to conclude it preferably
within 6 months from the date production
of certified copy of this order.

15. So far as the bail prayer of the
applicant is concerned, I also consider it
appropriate to direct the trial Court to
dispose it on the same day if possible, as
the entire material against the applicant is
available with it.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2008

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 56102 of 2006

U.P. State Handloom Corporation Ltd.

...Petitioner
Versus
U.P.
Handloom
Sanyukta
Karmchari
Sangh and another
 ...Respondents

Counsel for the Petitioner:
Sri. Shiv Nath Singh
Sri. Satyam Singh

Counsel for the Respondents:
Sri Rajesh Tiwari
S.C.

U.P. State Handloom Corporation (Ltd) (
Officer
and
Staff)
Rules
1981-Rule
23(2)(1)
Promotion-criteria
for
promotion-performance of workman-16
persons junior to workman promoted on
two
different
stages-ignoring
the
claimant-even
denying
the