# Kulwant Singh v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 421
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-01
- **Case number:** Criminal Misc. Case No.1003 of 2011
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kulwant-singh-v-state-of-u-p-and-others-41861
- **Pages:** 6

## Text

1 All] Kulwant Singh V. State of U.P. and others
421

15. The appellate authority has also
not applied its mind with regard to
aforesaid facts and circumstances while
dismissing
the
appeal
mechanically
without recording the finding with regard
to objection filed by the petitioner. On the
sole ground, the writ petition deserves to
be allowed leaving it open for the
Disciplinary Authority to consider the
same while passing a fresh order.

16. Supreme Court in a case
reported in A.I.R. 1974 SC 1589, Krishna
Chandra Tandon Vs The Union of India,
held that preliminary enquiry report is
material piece of of evidence, and its non
supply should be violative of principles of
natural justice. Hence, writ petition
deserves to be allowed.

17. A writ in the nature of certiorari
is issued quashing the impugned orders
dated 16-10-1992, 29-04-1993 and 13-031994, as contained in Annexure Nos. 3,5
& 6 to the writ petition, with all
consequential benefits with liberty to pass
fresh
order
keeping
in
view
the
observations made in the body of the
judgment.

18. Since, the petitioner has already
retired from service, let Disciplinary
Authority take a decision, in accordance
to law, after taking into account the
objection filed by the petitioner to the
enquiry report as well as evidence led by
the parties, expeditiously say preferably
within a period of three months from the
date of receipt of certified copy of this
order. No cost.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.04.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA,J.

Criminal Misc. Case No.1003 of 2011

Kulwant Singh

 ...Petitioner
Versus
State of U.P. and another ...Opp.parties

Code of Criminal Procedure-Section 319summoning order-although Magistrate
failed to record the reason of its
satisfaction
for
summoning
the
applicant-bare perusal of statement of
witness-summoning
order-held-properso far direction of separate Trail not
supported by any reasonable ground-to
this extent-application partly allowed.

Held: Para 14 and 16

In
the
present
case
the
learned
Magistrate has shown his satisfaction to
summon the petitioner for trial on the
basis of the statement of witnesses,
being satisfied that the petitioner is
liable to be tried. Though the learned
Magistrate had to record his satisfaction
in specific words as to what higher
standard he has adopted to satisfy
himself for summoning the petitioner,
but he has failed to do so, however,
keeping
in
view
the
statement
of
witnesses, I am of the view that the
petitioner has rightly been summoned
for trial, therefore, I do not feel it
appropriate to interfere in the order
impugned only on the ground that the
learned Magistrate has failed to disclose
the material of his satisfaction for
consideration of the application and for
summoning the petitioner for trial.

However, in light of the aforesaid facts, I
am of the view that the case is not such
a stage as it permits the separation of
petitioner's trial from other co-accused,
therefore, the direction of the learned
422 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Magistrate for separation of petitioner's
trial from other accused being not
supported with any reasonable ground,
is hereby quashed and it is observed that
the petitioner shall be tried together
with the co-accused. To this extent the
petition is allowed and for other reliefs
the petition is dismissed.
Case law discussed:
Crl. Misc. Case No. 2532 of 2010 (U/S 482);
(2009) 16 SCC 785; (2009) 13 SCC 608;
(2009) 16 SCC 46; (2007) 4 SCC 773; (1979) 1
SCC 345; (1983) 1 SCC 1; (2010) 1 SCC 250;
Criminal Misc Case No. 3907 of 2008

(Delivered by Hon'ble Shri Narayan Shukla,J.)

1. Heard Dr.Salil Kumar Srivastava,
learned
counsel
for
the
petitioner,
Mr.R.K.Singh,
learned
counsel
for
opposite party No.2 and Mr.Rajendra
Kumar
Dwivedi,
learned
Additional
Government Advocate for the State.

2. The petitioner has challenged the
order dated 11th of February, 2011,
passed by the learned Additional Sessions
Judge, Lakhimpur Kheri in Sessions Trial
No.297 of 2008, on the application moved
under Section 319 of the Code of
Criminal Procedure. By means of order
impugned, on the basis of statement of
P.W.1 Harjinder Singh (complainant) and
P.W.2 Jeet Singh (injured witness), the
petitioner, in exercise of power provided
under Section 319 of the Code of
Criminal Procedure, has been summoned
for trial and the case of trial has been
separated from other co-accused.

3. The petitioner has challenged the
order mainly on the ground that the
learned Trial court has not recorded any
finding to the effect that on the basis of
evidence on record there is possibility of
conviction of petitioner. It is stated that in
absence of any such finding, the order
passed by the learned Trial Court is
unsustainable in the eye of law. In support
of his submission he cited the following
cases decided by this court as well as by
the Hon'ble Supreme court:-

Rajol and others versus State of
U.P. And another, passed in Crl.Misc.
Case No.2532 of 2010 (U/s 482).

4. In the said case this court after
considering the several decisions on the
point held that the court considering the
evidence for the purpose of Section 319
Cr.P.C. is not legally required to evaluate
the evidence as it is ordinarily done while
rendering the final judgment, but the court
has to see whether or not, the evidence on
record appeals to the reason for the
purposes of Section 319 Cr.P.C. and the
story narrated by the witness, against the
person sought to be summoned, is not
improbable and absurd and a conviction is
possible on such statement, if uncontroverted.

5. In the case of Hardeep Singh
versus State of Punjab, reported in
(2009) 16 SCC 785, the Division Bench
of two Hon'ble Judges of the Supreme
Court has referred two questions for
consideration of a Bench of three Hon'ble
Judges. The second question is relevant in
the present case, which is reproduced
hereunder:-

(ii) What is the test and what are the
guidelines of exercising power under
Section 319(1) Cr.P.C.? Whether such
power can be exercised only if the court is
satisfied that the accused summoned in all
likelihood would be convicted?

The aforesaid referred question has
been noticed by the Hon'ble Supreme
1 All] Kulwant Singh V. State of U.P. and others
423
Court in the case of Harbhajan Singh
and another versus State of Punjab and
another, reported in (2009) 13 SCC
608, but it has been observed that "if a
judicious discretion exercised by the
Court had led it to pass an order under
Section 319 of the Code, the High Court
exercising a revisional jurisdiction would
interfere therewith, inter alia, in a case
where legal principles laid down by this
court had not been satisfied.

6. In the case of Sarabjit Singh and
another versus State of Punjab and
another, reported in (2009) 16 SCC 46,
the Division Bench of two Hon'ble Judges
of the Supreme court has also taken note
of the aforesaid reference and observed as
under:-

"21.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."

7. The Supreme Court further held
that the higher standard be set up for the
purpose of invoking the jurisdiction under
section 319 of the Code.

8. In the case of Y.Saraba Reddy
versus
Puthur
Rami
Reddy
and
another, reported in (2007) 4 SCC 773,
the Division Bench of three Judges of the
Hon'ble Supreme Court considered the
scope of Section 319 of the code of
Criminal Procedure and took note of
earlier decisions i.e. Joginder Singh
versus State of Punjab, reported in
(1979) 1 SCC 345 as well as the
Municipal Corporation of Delhi versus
Ram Kishan Rohtagi, reported in
(1983) 1 SCC 1. The relevant paragraph
10 and 11 of the case of Municipal
Corporation
of
Delhi
(Supra)
are
reproduced hereunder:-

"10. On a careful reading of Section
319 of the Code as well as the aforesaid
two decisions, it becomes clear that the
trial court has undoubted jurisdiction to
add any person not being the accused
before it to face the trial along with the
other accused persons, if the court is
satisfied at any stage of the proceeding on
the evidence adduced that the persons
who have not been arrayed as accused
should face the trial. It is further evident
that such person, even though had initially
been named in the FIR as an accused, but
not charge-sheeted, can also be added to
face the trial. The trial court can take such
a step to add such persons as accused only
on the basis of evidence adduced before it
and not on the basis of materials available
in the charge-sheet or the case diary,
because such materials contained in the
charge-sheet or the case diary do not
constitute evidence. Of course, as evident
from the decision in Sohan Lal v. State
of Rajasthan, reported in (1990) 4 SCC
580 the position of an accused who has
been discharged stands on a different
footing.

11. Power under Section 319 of the
Code can be exercised by the court suo
424 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
motu or on an application by someone
including the accused already before it. If
it is satisfied that any person other than
the accused has committed an offence he
is to be tried together with the accused.
The power is discretionary and such
discretion must be exercised judicially
having
regard
to
the
facts
and
circumstances of the case. 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 the evidence of
witnesses given in court. Under subsection (4)(b) of the aforesaid provision, it
is specifically made clear that it will be
presumed that newly added person had
been an accused person when the court
took cognizance of the offence upon
which
the
inquiry
or
trial
was
commenced. That would show that by
virtue of sub-section (4)(b) a legal fiction
is created that cognizance would be
presumed to have been taken so far as
newly added accused is concerned."

9. After considering the aforesaid
observations the Hon'ble Supreme Court
held that the trial court shall take steps for
proceeding against the respondents in
terms of Section 319 of the Code of
Criminal Procedure.

10. In the case of Suman versus
State
of
Rajasthan
and
another,
reported in (2010) 1 SCC 250, the
Hon'ble Supreme Court held as under:-

"27. In view of the settled legal
position as above, we hold that a person
who is named in the first information
report or complaint with the allegation
that he/she has committed any particular
crime or offence, but against whom the
police does not launch prosecution or files
charge-sheet or drops the case, can be
proceeded against under Section 319
CrPC
if
from
the
evidence
collected/produced in the course of any
inquiry into or trial of an offence, the
court is prima facie satisfied that such
person has committed any offence for
which he can be tried with other accused.
As a corollary, we hold that the process
issued against the appellant under Section
319 CrPC cannot be quashed only on the
ground that even though she was named
in the complaint, the police did not file
charge-sheet against her."

11. In view of the settled view of the
Hon'ble Supreme court as has been
discussed, here-in-above, it is not in
dispute that in dealing with the case under
Section 319 of the Code, the trial court
has been permitted to proceed in terms of
Section 319 of the Code. Section 319 of
the Code is extracted below:-

"319.Power to proceed against
other persons appearing to be guilty of
offence.-(1) Whether, 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 the Court, he may be arrested or
summoned, as the circumstances of the
case may require, for the purpose
aforesaid.
1 All] Kulwant Singh V. State of U.P. and others
425

(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 re-heard;

(b) subject to the provisions of clause
(a), the case may proceed as if such
persons had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced:"

12. As is evident from the aforesaid
provisions, it does not require anywhere
for the court to record any such finding as
against
the
person
who
has
been
summoned, the evidence is such as to lead
his conviction unless it is rebutted,
therefore, keeping in view the extra
ordinary power provided under this
Section, it can be said that the learned
Magistrate in exercising the power
provided under this very Section has to
take extra ordinary care, for which he can
adopt some higher standard to arrive at
satisfaction for calling upon the witness
under Section 319.

13. This court has already examined
the same question in the Criminal Misc.
Case No.3907 of 2008:Shankar and
another versus State of U.P. And
another and in Criminal Misc. Case
No.654
of
2011
(U/s.482
Cr.P.C.):Mohd.Arif and another versus
State of U.P.and another and has
observed that there is no restriction on the
learned Magistrate to summon any person
for trial, if at any stage of proceeding the
trial court is satisfied that on the basis of
evidence collected/produced in the course
of inquiry into or trial of the offence, that
such person has committed any offence,
for which he can be tried with other
accused.

14. In the present case the learned
Magistrate has shown his satisfaction to
summon the petitioner for trial on the
basis of the statement of witnesses, being
satisfied that the petitioner is liable to be
tried. Though the learned Magistrate had
to record his satisfaction in specific words
as to what higher standard he has adopted
to satisfy himself for summoning the
petitioner, but he has failed to do so,
however, keeping in view the statement of
witnesses, I am of the view that the
petitioner has rightly been summoned for
trial, therefore, I do not feel it appropriate
to interfere in the order impugned only on
the ground that the learned Magistrate has
failed to disclose the material of his
satisfaction for consideration of the
application and for summoning the
petitioner for trial.

15. So far as the separation of trial is
concerned, the learned counsel for the
respondent No.2 Mr.R.K.Singh, informs
that till date the petitioner has not
surrendered before the court below,
whereas the case of the other accused is at
the
stage
of
prosecution
evidence,
therefore, the petitioner's trial has rightly
been separated from the other co-accused.

16. However, in light of the
aforesaid facts, I am of the view that the
case is not such a stage as it permits the
separation of petitioner's trial from other
426 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
co-accused, therefore, the direction of the
learned Magistrate for separation of
petitioner's trial from other accused being
not
supported
with
any
reasonable
ground, is hereby quashed and it is
observed that the petitioner shall be tried
together with the co-accused. To this
extent the petition is allowed and for other
reliefs the petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.04.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Service Bench No. - 1186 of 2007

Ram Mohan Dayal

 ...Petitioner
Versus
State of U.P. Thru Prin. Secy. Irrigation
and another

 ...Respondent

Counsel for the Petitioner :
Umesh Kumar Srivastava

Counsel for the Respondent:
C.S.C.

Constitution of India, Article 226-Higher
Pay
Scale-denied
on
ground
the
petitioner
not
completed
18
years
continuous service as Asst. Engineer and
after retirement it can not be given-heldmisconceived-when
promotion
of
Petitioner
approved
by
Commission
against
vacancy
88-89-entitled
for
counting
the
period
of
national
promotion as such entitled for next
higher pay scale particularly when all the
juniors to petitioner have been givenpetitioner can not be discriminated on
his retirement .

Held: Para 15 and 16

The finding recorded by the Government
while dismissing the representation by
impugned order dated Ist May, 2007
seems to be incorrect appreciation of
law. Even if petitioner has been retired
from service and the U.P. Public Service
Commission has sent its approval after
the petitioner's age of superannuation,
the right available to petitioner in
accordance with the government order
dated
26th
Sept.,
1992
shall
not
extinguish. Petitioner shall be entitled
for higher pay scale in accordance with
the government order. More so, it has
been
submitted
by
the
petitioner's
counsel
that
all
other
Assistant
Engineers, whose services have been
regularized with due approval by the
order dated Ist Sept., 1992 have been
given higher pay scale. Accordingly, the
petitioner cannot be treated differently
from the persons who have been given
higher pay scale after regularization of
service
with
due
approval
of
the
Commission.

Keeping in view the order dated Ist
Sept., 1997, it appears that services of
several
persons
was
regularised
collectively hence the petitioner cannot
be treated differently. Petitioner also
falls in the same category of the
employees who have been regularized in
terms
of
approval
granted
by
the
Commission vide order dated Ist Sept.,
1997.
Giving
a
different
treatment
denying the promotional avenues or
higher
pay
scale
to
the
petitioner
amounts to hostile discrimination on the
part of the State authority.
Case law discussed:
2005 (23) LCD 173

(Delivered by Hon'ble Devi Prasad Singh,J.)

1. Heard learned counsel for the
parties and perused the record.

2. This writ petition under Article
226 of the Constitution of India has been
preferred against the impugned order
dated 1.5.2007 by which the petitioner's
representation has been rejected declining