# Kuldeep Singh Tomar . Revisionist v. State of U.P. and another Opp. Parties

- **Citation:** Criminal Revision No. 1954 of 2010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-25
- **Case number:** Criminal Revision No. 1954 of 2010
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-singh-tomar-revisionist-v-state-of-u-p-and-another-opp-parties-42945
- **Pages:** 7

## Headnote

Code of Criminal Procedure-Section 319.-
Summoning of Revisionist-who are brother
and sister of the husband of complainantgeneral allegation of demand of dowryadmittedly the revisionist got education in
Rajasthan working there since long-living
separately from the family of the husband
of
complainant-no
role
specified
in
statement of witness held-Court below
exceeded its jurisdiction-order quashed.

Held: Para-20 & 21
20: The present matter is also regarding
matrimonial
dispute
in
which
the
revisionist who is brother-in-law of the
deceased, has been dragged to face
prosecution
without
any
specific
allegations.
1 All Nupur Verma Vs. Central Ware Housing Corporation
555

## Text

554 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
qualification has not been satisfied, the
initial selection to under go training is
perse illegal.

22. In the case of Ashok Kumar
Sonkar vs. Union of India and others;
(2007) 4 SCC 54, the Hon'ble Apex Court
has held that possession of requisite
qualification is mandatory. A person not
holding requisite qualification is not
eligible for the post. Similar views were
expressed in the case of Mohd. Sartaj
and another vs. State of U.P. and
others; (2006) 3 SCC 315, where the
Hon'ble Apex Court observed that when
there is basic lack of qualification, the
candidate
could
not
have
been
appointment nor he could have been
continued and the candidate could not
hold any right over the post.

23. In the instant case, the candidate
did not possess the requisite qualification
and continuously she wrongly declared
her qualification as MBA (Marketing),
which was never possessing by her. The
equivalent qualification can be admitted
when the rules permit the same. In the
instant case, no rule has been brought to
the notice for the equivalent qualification.
Though, we have sympathy with the
candidate, but fact remains that her
services were terminated when she was
likely to complete her training i.e. within
seven months and after providing proper
opportunity where her entire submissions
have been considered as mentioned in the
termination
order.
Initially,
her
testimonials were verified by an out
source agency i.e. AIMA. When the
misrepresentation was deducted by the
employer
i.e.
Central
Warehousing
Corporation, her services were rightly
terminated.

24. In view of above, the impugned
termination order suffers no illegality and
the same is hereby sustained along with
the reasons mentioned therein.

25. In the result, the writ petition
filed by the petitioner is dismissed. No
cost.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Revision No. 1954 of 2010

Kuldeep Singh Tomar . ..Revisionist
Versus
State of U.P. and another ...Opp. Parties

Counsel for the Revisionist:
Sri K.S. Chauhan

Counsel for the Opposite Parties:
A.G.A., Sri Manoj Kumar Srivastava
Sri Rajeev Kumar Saini, Mrs. Archana Sing
Jadon

Code of Criminal Procedure-Section 319.-
Summoning of Revisionist-who are brother
and sister of the husband of complainantgeneral allegation of demand of dowryadmittedly the revisionist got education in
Rajasthan working there since long-living
separately from the family of the husband
of
complainant-no
role
specified
in
statement of witness held-Court below
exceeded its jurisdiction-order quashed.

Held: Para-20 & 21
20: The present matter is also regarding
matrimonial
dispute
in
which
the
revisionist who is brother-in-law of the
deceased, has been dragged to face
prosecution
without
any
specific
allegations.
1 All Nupur Verma Vs. Central Ware Housing Corporation
555
21. For the aforesaid reasons and in view
of guide lines laid down in para 16(v) of
Sarojben Ashwinkumar Shah (supra) I
come to the conclusion that learned
Court
below
has
exceeded
in
its
jurisdiction in summoning the revisionist
under Section 319 Cr.P.C.

Case Law discussed:
2011 (105) AIC 36(SC); 2012(7) ADJ 502;
2009 Criminal Law Journal 3978; (1983) 1 SCC
1; 2009 (65) ACC 768

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. Heard learned counsel for the
revisionist and learned AGA.

2. This criminal revision has been
filed against order dated 20.4.2010 passed
by Special Judge, Court No.7, District
Aligarh, by which the revisionist has been
summoned under Section 319 Cr.P.C. to
face the trial.

3.

Learned
counsel
for
the
revisionist has submitted that revisionist
does not resides with the family of other
accused persons and he is residing in
village Maulasar Tehsil Didwana District
Nagaur of Rajasthan regarding which the
certificate has been filed. It has also been
submitted that he had received his
education in Rajasthan and is also
working
in
Shri
Ramabai
Senior
Secondary
School,
Manglana
Road,
Makrana, Rajasthan since 1.7.2006. This
certificate has been alleged to have issued
on 25.3.2010.

4. It has also been submitted that the
allegations regarding revisionist are of
general nature and no specific role has
been assigned to him. It has also been
submitted that during the investigation,
the involvement of revisionist was not
found in the alleged suicidal death of the
deceased and it has also not been proved
that the deceased was given poison by the
revisionist. It has also been submitted that
another accused Braj Kumari who is the
mother-in-law of the deceased has not
been summoned on the ground that she is
a lady of unsound mind.

5. Learned AGA has defended the
impugned order.

6. After recording the evidence of
Brijendra Singh PW.1 and Munni Devi
PW.2, the prosecution had moved an
application under Section 319 Cr.P.C. to
summon Kuldeep and Braj Kumari.
Witness Brijendra Singh in his statement
has alleged that present revisionist was
also indulged in demanding extra dowry
from the deceased. Munni Devi has also
stated in her statement that her daughter
was being tortured by present revisionist
due to insufficient dowry and she was
administered poison by present revisionist
along
with
other
accused
persons.
Learned Court below after hearing both
the parties, has summoned the present
revisionist to face the trial for the offence
punishable under Section 306 IPC.

7. In Sarojben Ashwinkumar Shah
and others Vs. State of Gujarat and
another, 2011 (105) AIC 36(SC), the
Hon'ble Apex Court after taking note of
several pronouncements laid guidelines
for exercise of power under section 319
Cr.P.C. These guidelines have been
provided in paragraph 16 of its judgment,
which reads as follows:-

"16. The legal position that can be
culled out from the material provisions of
Section 319 of the Code and the decided
cases of this Court is this :
556 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

(i) The Court can exercise the power
conferred on it under Section 319 of the
Code suo motu or on an application by
someone.

(ii) The power conferred under
Section 319(1) applies to all courts
including the Sessions Court.

(iii) The phrase "any person not
being the accused" occurring in Section
319 does not exclude from its operation
an accused who has been released by the
police under Section 169 of the Code and
has been shown in Column 2 of the
charge-sheet. In other words, the said
expression covers any person who is not
being tried already by the court and would
include person or persons who have been
dropped by the police during investigation
but against whom evidence showing their
involvement in the offence comes before
the court.

(iv) The power to proceed against
any person, not being the accused before
the court, must be exercised only where
there appears during inquiry or trial
sufficient
evidence
indicating
his
involvement in the offence as an accused
and not otherwise. The word `evidence' in
Section 319 contemplates the evidence of
witnesses given in court in the inquiry or
trial. The court cannot add persons as
accused on the basis of materials available
in the charge- sheet or the case diary but
must be based on the evidence adduced
before it. In other words, the court must
be satisfied that a case for addition of
persons as accused, not being the accused
before it, has been made out on the
additional evidence let in before it.

(v) The power conferred upon the
court is although discretionary but is not
to be exercised in a routine manner. In a
sense, it is an extraordinary power which
should be used very sparingly and only if
evidence has come on record which
sufficiently establishes that the other
person has committed an offence. A mere
doubt about involvement of the other
person on the basis of the evidence let in
before the court is not enough. The Court
must also be satisfied that circumstances
justify and warrant that other person be
tried with the already arraigned accused.

(vi) The court while exercising its
power under Section 319 of the Code
must keep in view full conspectus of the
case including the stage at which the trial
has proceeded already and the quantum of
evidence collected till then.

(vii) Regard must also be had by the
court to the constraints imposed in
Section 319 (4) that proceedings in
respect of newly - added persons shall be
commenced afresh from the beginning of
the trial.

(viii) The court must, therefore,
appropriately consider the above aspects
and then exercise its judicial discretion."

8. This Court in Smt. Zeenat
Parveen and another Vs. State of U.P.
and another, 2012 (7) ADJ 502, has held
that the summoning order cannot be setaside on the ground that the statement of
the witnesses relied upon by the court for
passing the summoning order have not
been subjected to cross-examination.

9. In Sarabjit Singh and another
Vs. State of Punjab and another, 2009
Criminal Law Journal 3978, the Apex
Court has held that the provision of
Section 319 of the Code, on a plain
reading,
provides
that
such
an
extraordinary case has been made out
must appear to the court. Has the criterion
laid down by this Court in Municipal
Corporation of Delhi Vs. Ram Kishan
Rastogi, (1983) 1 SCC 1, been satisfied
is the question? Indisputably, before an
1 All Kuldeep Singh Tomar Vs. State of U.P. and another
557
additional accused can be summoned for
standing trial, the nature of the evidence
should be such which would make out
grounds for exercise of extraordinary
power. The materials brought before the
court must also be such which would
satisfy the court that it is one of those
cases where its jurisdiction should be
exercised sparingly.

10. In Hardeep Singh Vs. State of
Punjab and others, 2009 (65) ACC 768,
Hon'ble the Apex Court has considered
the
definition
of
word
"Evidence"
appearing in Section 319(1) Cr.P.C. and
has held that it is difficult to accept the
contention of learned counsel for the
appellants that the term "Evidence" used
in sub-section (1) of Section 319 Cr.P.C.
would mean evidence which is tested by
cross-examination. It has further been
held that the word "Evidence" occurring
in sub-section 1 of Section 319 is used in
comprehensive and broad sense which
would also include the material collected
by the Investigating Officer and the
evidence which comes before the Court
and from which the Court is satisfied that
person not arraigned before it is involved
in the commission of the crime.

11. Hon'ble the Apex Court in the
aforesaid case has considered the matter
from another angle also and has held as
follows:-

"The matter can still be looked at
from another angle. The Code has taken
care
by
sufficiently
protecting
and
safeguarding the interest of such added
accused. Sub-section (4) of section 319
expressly provides that where the Court
exercises power under sub-section (1) and
proceeds against a person not arrayed as
an accused, "the proceedings in respect of
such person shall be commenced afresh,
and witnesses reheard". Thus, after
exercise of power by the Court under
section 319(1), such added accused would
be placed in the same position as other
accused and will get all rights an accused
can get under the Code. The proceedings
against the added accused shall be
commenced afresh and witnesses will be
reheard. Their evidence, prior to addition
of the accused cannot be used against the
accused who was not there earlier. The
question of prejudice, hence, does not
arise at all."

12 In the present case, the revisionist
is the elder son of the father-in-law of the
deceased. The incident is said to have
taken place on 22.10.2006 and learned
counsel for the revisionist has submitted
that the revisionist is permanent resident
of Rajasthan from where he had received
his all education and is working at
Rajasthan
therefore,
there
was
no
occasion to demand or torture for any
dowry from the deceased. Moreover, he
was not the beneficiary of the alleged
dowry.

13. Learned counsel for the
revisionist has relied upon Sarabjit Singh
Vs. State of Punjab, AIR 2009 SC-2792
in which, the Hon'ble Apex Court has
held as under :-

"The provision of Section 319 of the
Code, on a plain reading, provides that
such an extraordinary case has been made
out must appear to the court. Has the
criterion laid down by this Court in
Municipal Corporation of Delhi (supra)
been
satisfied
is
the
question?
Indisputably, before an additional accused
can be summoned for standing trial, the
nature of the evidence should be such
558 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
which would make out grounds for
exercise of extraordinary power. The
materials brought before the court must
also be such which would satisfy the court
that it is one of those cases where its
jurisdiction should be exercised sparingly.
We may notice that in Y. Saraba Reddy v.
Puthur Rami Reddy and Anr. [JT 2007 (6)
SC
460],
this
Court
opined:
"?Undisputedly, it is an extraordinary
power which is conferred on the Court
and should be used very sparingly and
only if compelling reasons exist for taking
action against a person against whom
action had not been taken earlier. The
word
"evidence"
in
Section
319
contemplates that evidence of witnesses
given in Court?" An order under Section
319 of the Code, therefore, should not be
passed only because the first informant or
one of the witnesses seeks to implicate
other person(s). Sufficient and cogent
reasons are required to be assigned by the
court so as to satisfy the ingredients of the
provisions. Mere ipse dixit would not
serve the purpose. Such an evidence must
be convincing one at least for the purpose
of
exercise
of
the
extraordinary
jurisdiction.
For
the
aforementioned
purpose, the courts are required to apply
stringent tests; one of the tests being
whether evidence on record is such which
would reasonably lead to conviction of
the person sought to be summoned."

14. Learned counsel for the
revisionist has further relied upon Geeta
Mehrotra and another Vs. State of U.P.
and another, 2012 (10) ADJ 464 (SC) in
which, Hon'ble the Apex Court has held
as under :-

"In the case at hand, when the
brother and unmarried sister of the
principal
accused
Shyamji
Mehrotra
approached the High Court for quashing
the proceedings against them, inter-alia,
on the ground of lack of territorial
jurisdiction as also on the ground that no
case was made out against them under
Sections 498A,/323/504/506 including
Sections 3/4 of the Dowry Prohibition
Act, it was the legal duty of the High
Court to examine whether there were
prima facie material against the appellants
so that they could be directed to undergo
the trial, besides the question of territorial
jurisdiction. The High Court seems to
have overlooked all the pleas that were
raised and rejected the petition on the
solitary ground of territorial jurisdiction
giving liberty to the appellants to
approach the trial court.

15. The High Court in our
considered opinion appear to have missed
that assuming the trial court had territorial
jurisdiction, it was still left to be decided
whether it was a fit case to send the
appellants for trial when the FIR failed to
make out a prima facie case against them
regarding the allegation of inflicting
physical and mental torture to the
complainant demanding dowry from the
complainant. Since the High Court has
failed to consider all these aspects, this
Court as already stated hereinbefore,
could have remitted the matter to the High
Court to consider whether a case was
made out against the appellants to proceed
against them. But as the contents of the
FIR does not disclose specific allegation
against the brother and sister of the
complainant's husband except casual
reference of their names, it would not be
just to direct them to go through
protracted procedure by remanding for
consideration of the matter all over again
by the High Court and make the
unmarried sister of the main accused and
1 All Kuldeep Singh Tomar Vs. State of U.P. and another
559
his elder brother to suffer the ordeal of a
criminal case pending against them
specially when the FIR does not disclose
ingredients of offence under Sections
498A/323/504/506, IPC and Sections 3/4
of the Dowry Prohibition Act.

16. We, therefore, deem it just and
legally
appropriate
to
quash
the
proceedings
initiated
against
the
appellants Geeta Mehrotra and Ramji
Mehrotra as the FIR does not disclose any
material which could be held to be
constituting any offence against these two
appellants. Merely by making a general
allegation that they were also involved in
physical and mental torture of the
complainant-respondent
No.2
without
mentioning even a single incident against
them as also the fact as to how they could
be motivated to demand dowry when they
are only related as brother and sister of
the complainant's husband, we are pleased
to quash and set aside the criminal
proceedings in so far as these appellants
are concerned and consequently the order
passed by the High Court shall stand
overruled.
The appeal accordingly is allowed."

17. The present case also relates to
matrimonial dispute in which the first
information report was lodged against the
present revisionist. In the first information
report, there were general allegations
regarding all the accused persons and
those allegations were based on the
information received by the complainant
from someone else. It has not been
disclosed in the first information report
that by whom the complainant got the
information that present revisionist who is
elder son of the father-in-law of the
deceased was also engaged in demanding
additional
dowry
and
administering
poison to her. The complainant Brijendra
Singh in his statement on oath, has also
not stated clearly that the deceased was
tortured for the demand of dowry by the
present revisionist but has only said that
he was also involved in demand of dowry.
Munni Devi PW.2 has further developed
her statement alleging that she was
tortured by present revisionist.

18. The incident has taken place
within four months of marriage. It is the
specific case of the revisionist that he is
residing and working in Rajasthan. The
alleged allegation of causing physical and
mental torture to the deceased for demand
of dowry have not been made against the
revisionist. Moreover, the revisionist
cannot be said to be a beneficiary of
alleged dowry. In matrimonial dispute, it
is a common feature now a days that first
information report is lodged against all
the relatives and near relatives ignoring
the possibility whether actually they are
involved in the alleged crime or not.

19. In Geeta Mehrotra (supra) it has
been further held that :-

"However, we deem it appropriate to
add by way of caution that we may not be
misunderstood so at to incur that even if
there are allegation of overt act indicating
the complicity of the members of the
family named in the FIR in a given case,
cognizance would be unjustified but what
we wish to emphasize by highlighting is
that, if the FIR as it stands does not
disclose
specific
allegation
against
accused more so against the co-accused
specially in a matter arising out of
matrimonial bickering, it would be clear
abuse of the legal and judicial process to
mechanically send the named accused in
the FIR to undergo the trial unless of
560 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
course
the
FIR
discloses
specific
allegations which would persuade the
Court to take cognizance of the offence
alleged against the relatives of the main
accused who are prima facie not found to
have indulged in physical and mental
torture of the complainant-wife. It is the
well settled principle laid down in cases
too numerous to mention, that if the FIR
did not disclose the commission of an
offence, the Court would be justified in
quashing the proceedings preventing the
abuse
of
the
process
of
law.
Simultaneously, the Courts are expected
to adopt a cautious approach in matters of
quashing
specially
in
cases
of
matrimonial dispute whether the FIR in
fact discloses commission of an offence
by the relatives of the principal accused or
the FIR prima facie discloses a case of
over-implication by involving the entire
family of the accused at the instance of
the complainant, who is out to settle her
scores arising out of the teething problem
or skirmish of domestic bickering while
settling down in her new matrimonial
surrounding."

20. The present matter is also
regarding matrimonial dispute in which
the revisionist who is brother-in-law of
the deceased, has been dragged to face
prosecution
without
any
specific
allegations.

21. For the aforesaid reasons and in
view of guide lines laid down in para
16(v) of Sarojben Ashwinkumar Shah
(supra) I come to the conclusion that
learned Court below has exceeded in its
jurisdiction in summoning the revisionist
under Section 319 Cr.P.C.

22. The revision is allowed. The
impugned order dated 20.4.2010 is set
aside.

23. It is made clear that observations
made herein shall not affect the merits of
the trial against other accused persons.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.04.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Misc. Single No. 1956 of 2006.

Sadanand Mishra

 ...Petitioner
Versus
Regional Conciliation Officer & Ors.

 ...Respondents

Counsel for the Petitioner:
Sri
Pankaj
Verma,
Sri
Misra
Dr.
Dhirendraq Kumar

Counsel for the Respondents:
C.S.C., Sri R.P. Awasthi, Sri Ravi Prakash

U.P. Industrial Dispute Act 1947.- Section 4,
12- Power of Conciliation officer-only to
arrange
and
negotiate
the
difference
between employer and employee-rejection
of conciliation on ground of laches-heldwithout jurisdiction.

Held: Para-13
Thus, under the U.P. Industrial Disputes
Act,
1947
and
the
Rules
framed
thereunder
there
is
no
time
limit
prescribed for initiating the conciliation
proceedings and the Conciliation Officer
is vested with the power to mediate and
to bring about a settlement and with no
other
authority.
The
said
power
inherently includes the power to record a
failure but it does not confer any power
upon the Conciliation Officer to reject
the conciliation proceedings.