# Lalaie @ Chandra Prakash Revisionist v. State of U.P. & Anr

- **Citation:** (2022) 5 ILRA 240
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-29
- **Case number:** Criminal Revision No. 97 of 1994
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalaie-chandra-prakash-revisionist-v-state-of-u-p-anr-48497
- **Pages:** 6

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 319- Summoning order- The
impugned order passed by the court below
under Section 319 CrPC was without
considering the material on record. The
Investigating Officer has not found any
material against the revisionist nor his
involvement in the instant case was
proved, therefore his name was dropped
in the charge sheet. This Court further
finds that earlier on the application of the
prosecution, the revisionist was ordered
to be summoned by the court under
Section
319
CrPC
by
order
dated
29.5.1991, but this Court vide order dated
8.10.1991 passed in Criminal Revision
No.1014 of 1991 quashed the said order of
summoning and as such the revisionist
cannot
again
be
summoned
on
the
application of the prosecution. Thereafter,
the opposite party no.2, informant filed an
application 48-Kha under Section 319
CrPC before the learned Sessions Judge,
Etawah, who without going through the
legal provisions contained under Section
319 CrPC summoned the revisionist and
others for facing the trial vide impugned
order dated 22.12.1993. The power under
Section 319 Cr.P.C. is a discretionary and
extraordinary power, which should be
sparingly used only in those cases where
the circumstances of the case so warrant
as held by the Hon'ble Apex Court.

Settled law that the power under section 319 of
the CrPc is to be exercised sparingly and not in
a routine manner and after considering the
material
collected
during
the
course
of
investigation as well as the testimony of the
witnesses during trial. (Para 14)

Criminal Revision allowed. (E-3)

Judgements / Case law relied upon:-

## Text

240 INDIAN LAW REPORTS ALLAHABAD SERIES
regard to reasoned order as well as law on
parity and desirability of consistency and
also considering specific role of applicant
in commission of the offence and keeping
in view the ingredients of Section 376(D)
IPC and offence under Section POCSO
Act, no case for bail is made out to allow
this second bail application.

17. Accordingly, the present bail
application is rejected.
----------
(2022)05ILR A240
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 97 of 1994

Lalaie @ Chandra Prakash ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Dileep Kumar, Sri Jitendra Kumar, Sri
Purushottam Dixit

Counsel for the Opposite Parties:
A.G.A., Sri Vinay Saran

Criminal Law- Code of Criminal Procedure,
1973- Section 319- Summoning order- The
impugned order passed by the court below
under Section 319 CrPC was without
considering the material on record. The
Investigating Officer has not found any
material against the revisionist nor his
involvement in the instant case was
proved, therefore his name was dropped
in the charge sheet. This Court further
finds that earlier on the application of the
prosecution, the revisionist was ordered
to be summoned by the court under
Section
319
CrPC
by
order
dated
29.5.1991, but this Court vide order dated
8.10.1991 passed in Criminal Revision
No.1014 of 1991 quashed the said order of
summoning and as such the revisionist
cannot
again
be
summoned
on
the
application of the prosecution. Thereafter,
the opposite party no.2, informant filed an
application 48-Kha under Section 319
CrPC before the learned Sessions Judge,
Etawah, who without going through the
legal provisions contained under Section
319 CrPC summoned the revisionist and
others for facing the trial vide impugned
order dated 22.12.1993. The power under
Section 319 Cr.P.C. is a discretionary and
extraordinary power, which should be
sparingly used only in those cases where
the circumstances of the case so warrant
as held by the Hon'ble Apex Court.

Settled law that the power under section 319 of
the CrPc is to be exercised sparingly and not in
a routine manner and after considering the
material
collected
during
the
course
of
investigation as well as the testimony of the
witnesses during trial. (Para 14)

Criminal Revision allowed. (E-3)

Judgements / Case law relied upon:-

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

2. Labhuji Amratji Thakor & ors. Vs The St. of
Guj. & anr, 2018 (0) Supreme (SC) 1147

3. Brijendra Singh & ors Vs St. of Raj., (2017) 7
SCC 706

4. Periyasami & ors. Vs S. Nallasamy, (2019) 4
SCC 342

(Delivered by Hon'ble Shamim Ahmed, J.)

1. This criminal revision has been
filed by the revisionist Lalia @ Chandra
Prakash against the judgment and order
dated 22.12.1993 passed by Sessions
Judge, Etawah summoning the revisionist
under Section 319 CrPC for facing the trial
in ST No.435 of 1990 under Section 307
5 All. Lalaie @ Chandra Prakash Vs. State of U.P. & Anr.
241
IPC and further issuing non bailable
warrant against the revisionist for his
appearance before the court below.

2. Heard Sri Purushottam Dixit,
learned counsel for the revisionist, learned
A.G.A. for the State and perused the
record.

3. Brief facts of the case are that on
14.5.1990 an FIR was lodged by the
informant
Ved
Prakash
that
accused
Surendra and others had injured his brother
Chandra Prakash by opening fire upon him.

4. Learned counsel for the revisionist
submits that after investigation the police
has submitted the police report against two
accused persons namely Surendra son of
Baburam and Babu Ram son of Charan Lal
only. However, as against the revisionist no
police report was filed and the investigation
against him was pending. He further
submits that thereafter the learned Sessions
Judge without perusing the papers on
record and without considering the fact of
pendency of investigation against the
applicant issued the process in exercise of
power under Section 319 CrPC and
summoned the revisionist.

5. Learned counsel for the revisionist
further submits that the Investigating
Officer has not found any material against
the revisionist nor found his involvement in
the instant case was proved. Therefore, his
name was dropped in the charge sheet.

6. Learned counsel for the revisionist
further
submits
that
earlier
on
an
application
of
the
prosecution,
the
revisionist was ordered to be summoned by
the court below under Section 319 CrPC by
order dated 29.5.1991 and the same was
challenged before this Court. This Court
vide order dated 8.10.1991 passed in
Criminal
Revision
No.1014 of
1991
quashed the said order of summoning and
as such the revisionist cannot again be
summoned on the application of the
prosecution.

7. Learned counsel for the revisionist
further submits that the opposite party no.2,
informant filed an application 48-Kha
under Section 319 CrPC before the learned
Sessions Judge, Etawah, who without going
through the legal provisions contained
under Section 319 CrPC summoned the
revisionist and others for facing the trial
vide impugned order dated 22.12.1993.

8. Learned counsel for the revisionist
further submits that power under Section
319
Cr.P.C.
is
a
discretionary
and
extraordinary power, which should be
sparingly used only in those cases where
the circumstances of the case so warrant. In
support of his argument, learned counsel
for the revisionist has placed reliance on
paragraph 105 and 106 of the Constitution
Bench judgment of the Hon'ble Apex Court
in the case of Hardeep Singh Vs. State of
Punjab & others, (2014) 3 SCC 92.
Paragraph 105 and 106 of the aforesaid
judgment is quoted as under:-

"105. Power under Section 319
CrPC
is
a
discretionary
and
an
extraordinary power. It is to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. It is
not to be exercised because the Magistrate
or the Sessions Judge is of the opinion that
some other person may also be guilty of
committing that offence. Only where strong
and cogent evidence occurs against a
person from the evidence led before the
court that such power should be exercised
and not in a casual and cavalier manner.
242 INDIAN LAW REPORTS ALLAHABAD SERIES

106. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied is
one which is more than prima facie case as
exercised at the time of framing of charge,
but short of satisfaction to an extent that
the evidence, if goes unrebutted, would lead
to conviction. In the absence of such
satisfaction, the court should refrain from
exercising power under Section 319 CrPC.
In Section 319 CrPC the purpose of
providing if "it appears from the evidence
that any person not being the accused has
committed any offence" is clear from the
words "for which such person could be
tried together with the accused". The words
used are not "for which such person could
be convicted". There is, therefore, no scope
for the court acting under Section 319
CrPC to form any opinion as to the guilt of
the accused."

9. Learned counsel for the revisionist
further submits that the above Constitution
Bench judgment was duly considered by
the Hon'ble Apex Court in the case of
Labhuji Amratji Thakor & others Vs.
The State of Gujarat and another, 2018
(0) Supreme (SC) 1147 and has placed
reliance on paragraph 9 of the aforesaid
judgment which is quoted as under:-

"9. The Constitution Bench has
given a caution that power under Section
319 Cr.P.C.
is
a
discretionary
and
extraordinary power, which should be
exercised sparingly and only in those cases
where the circumstances of the case so
warrant. The crucial test, which has been
laid down as noted above is "the test that
has to be applied is one which is more than
prima facie case as exercised at the time of
framing of charge, but short of satisfaction
to an extent that the evidence, if goes
unrebutted, would lead to conviction." The
present is a case, where the trial court had
rejected the application filed by the
prosecution under Section 319 Cr.P.C.
Further,
in
the
present
case,
the
complainant in the F.I.R. has not taken the
names
of
the
appellants
and
after
investigation in which the statement of
victim was also recorded, the names of the
appellants did not figure. After carrying
investigation,
the
Charge
Sheet
was
submitted in which the appellants names
were also not mentioned as accused. In the
statement recorded before the Police, the
victim has named only Natuji with whom
she admitted having physical relations and
who took her and with whom she went out
of the house in the night and lived with him
on several places. The mother of victim in
her statement before the Court herself has
stated that victim girl returned to the house
after one and a half months. In the
statement, before the Court, victim has
narrated the entire sequence of events. She
has stated in her statement that accused
Natuji used to visit her Uncle's house
Vishnuji, where she met Natuji. She,
however, stated that it was Natuji, who had
given her mobile phone. Her parents came
to know about she having been given
mobile phone by Natuji, then they went to
the house of Natuji and threatened Natuji."

10. Learned counsel for the revisionist
has further placed reliance on paragraph 13
and 15 of the judgment of the Hon'ble Apex
Court in the case of Brijendra Singh and
others vs. State of Rajasthan, (2017) 7
SCC 706, which is quoted as under:-

"13. In order to answer the
question, some of the principles enunciated
5 All. Lalaie @ Chandra Prakash Vs. State of U.P. & Anr.
243
in
Hardeep
Singh?s
case
may
be
recapitulated:

Power under Section 319 Cr.P.C.
can be exercised by the trial court at any
stage during the trial, i.e., before the
conclusion of trial, to summon any person
as an accused and face the trial in the
ongoing case, once the trial court finds that
there is some evidence against such a
person on the basis of which evidence it
can be gathered that he appears to be
guilty of offence. The evidence herein
means the material that is brought before
the Court during trial. Insofar as the
material/evidence collected by the IO at the
stage of inquiry is concerned, it can be
utilised for corroboration and to support
the evidence recorded by the Court to
invoke the power under Section 319 Cr.P.C.
No doubt, such evidence that has surfaced
in examination-in-chief, without cross-
examination of witnesses, can also be taken
into consideration. However, since it is a
discretionary power given to the Court
under Section 319 Cr.P.C. and is also an
extraordinary one,
same
has
to
be
exercised sparingly and only in those cases
where the circumstances of the case so
warrants. The degree of satisfaction is
more than the degree which is warranted at
the time of framing of the charges against
others in respect of whom chargesheet was
filed. Only where strong and cogent
evidence occurs against a person from the
evidence led before the Court that such
power should be exercised. It is not to be
exercised in a casual or a cavalier manner.
The prima facie opinion which is to be
formed requires stronger evidence than
mere probability of his complicity.

xx xx xx

15. This record was before the
trial court. Notwithstanding the same, the
trial court went by the deposition of
complainant and some other persons in
their examination-in-chief, with no other
material to support their so- called
verbal/ocular
version.
Thus,
the
?evidence? recorded during trial was
nothing more than the statements which
was already there under Section 161
Cr.P.C.
recorded
at
the
time
of
investigation of the case. No doubt, the
trial court would be competent to
exercise its power even on the basis of
such statements recorded before it in
examination-in-chief. However, in a case
like the present where plethora of
evidence was collected by the IO during
investigation which suggested otherwise,
the trial court was at least duty bound to
look into the same while forming prima
facie opinion and to see as to whether
?much stronger evidence than mere
possibility of their (i.e. appellants)
complicity has come on record. There is
no satisfaction of this nature. Even if we
presume that the trial court was not
apprised of the same at the time when it
passed the order (as the appellants were
not on the scene at that time), what is
more troubling is that even when this
material on record was specifically
brought to the notice of the High Court in
the
Revision
Petition
filed
by
the
appellants, the High Court too blissfully
ignored
the
said
material.
Except
reproducing the discussion contained in
the order of the trial court and expressing
agreement therewith, nothing more has
been done. Such orders cannot stand
judicial scrutiny."

11. Learned counsel for the revisionist
has further placed reliance on paragraph 14
and 15 of the judgment passed by the
Hon'ble Apex Court in the case of
Periyasami and others vs. S. Nallasamy,
(2019) 4 SCC 342 and has submitted that
the earlier judgment, referred above, was
244 INDIAN LAW REPORTS ALLAHABAD SERIES
duly considered in the present case.
Paragraph 14 and 15 of the aforesaid
judgment is quoted as under:-

"14. In the First Information
Report or in the statements recorded under
Section 161 of the Code, the names of the
appellants or any other description have
not been given so as to identify them. The
allegations in the FIR are vague and can be
used any time to include any person in the
absence of description in the First
Information Report to identify such person.
There is no assertion in respect of the
villages to which the additional accused
belong. Therefore, there is no strong or
cogent evidence to make the appellants
stand the trial for the offences under
Sections 147, 448, 294(b) and 506 of IPC
in view of the judgment in Hardeep Singh
case (supra). The additional accused
cannot be summoned under Section 319 of
the Code in casual and cavalier manner in
the absence of strong and cogent evidence.
Under Section 319 of the Code additional
accused can be summoned only if there is
more than prima facie case as is required
at the time of framing of charge but which
is less than the satisfaction required at the
time of conclusion of the trial convicting
the accused.

15. The High Court has set aside
the order passed by the learned Magistrate
only on the basis of the statements of some
of
the
witnesses
examined
by
the
Complainant. Mere disclosing the names of
the appellants cannot be said to be strong
and cogent evidence to make them to stand
trial for the offence under Section 319 of
the
Code,
especially
when
the
Complainant is a husband and has
initiated criminal proceedings against
family of his in-laws and when their names
or other identity were not disclosed at the
first opportunity."

12. Learned counsel for the revisionist
has submitted that in view of the law laid
down by the Hon'ble Apex Court and the
facts and circumstances, as narrated above,
and from the perusal of the record, the
impugned judgment and order dated
22.12.1993 passed by Sessions Judge,
Etawah summoning the revisionist under
Section 319 CrPC, is against the spirit and
directions issued by the Hon'ble Apex
Court.

13. Learned AGA has opposed the
argument raised by the learned counsel for
the revisionist and has submitted that the
impugned
order
dated
22.12.1993,
summoning the revisionist under Section
319 CrPC, was rightly passed.

14. Having heard learned counsel for
the parties and after perusal of material on
record, this Court is of the opinion that the
impugned order passed by the court below
under Section 319 CrPC was without
considering the material on record. The
Investigating Officer has not found any
material against the revisionist nor his
involvement in the instant case was proved,
therefore his name was dropped in the
charge sheet. This Court further finds that
earlier
on
the
application
of
the
prosecution, the revisionist was ordered to
be summoned by the court under Section
319 CrPC by order dated 29.5.1991, but
this Court vide order dated 8.10.1991
passed in Criminal Revision No.1014 of
1991 quashed the said order of summoning
and as such the revisionist cannot again be
summoned on the application of the
prosecution. Thereafter, the opposite party
no.2, informant filed an application 48-Kha
under Section 319 CrPC before the learned
Sessions Judge, Etawah, who without going
through the legal provisions contained
under Section 319 CrPC summoned the
5 All. Dod Ram Vs. State of U.P.
245
revisionist and others for facing the trial
vide impugned order dated 22.12.1993. The
power under Section 319 Cr.P.C. is a
discretionary and extraordinary power,
which should be sparingly used only in
those cases where the circumstances of the
case so warrant as held by the Hon'ble
Apex Court in the cases of Hardeep Singh,
Labhuji Amratji Thakor, Brijendra Singh
and Periyasami (supra).

15. Accordingly, the revision is
allowed.
The
impugned
order
dated
22.12.1993 passed by Sessions Judge,
Etawah summoning the revisionist under
Section 319 CrPC for facing the trial in ST
No.435 of 1990 under Section 307 IPC, is
hereby set aside.
----------
(2022)05ILR A245
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.04.2022

BEFORE

THE HON'BLE SHAMIM AHMED J.

Criminal Revision No. 351 of 1996

Dod Ram ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Vivek Varma, Sri Durvesh Kumar, Sri
Murli Dhar Mishra, Sri Shekhar Dwivedi

Counsel for the Opposite Parties:
G.A.

Criminal Law- Indian Penal Code , 1860-
Section 326- Conviction - Question of
Sentence- Maximum sentence provided to
the revisionist is three years for offence
under Sections 326 I.P.C- The impugned
judgment do not suffer from any illegality,
perversity or jurisdictional error which
may call for any interference by this Court,
hence the conviction and sentence of the
revisionists is hereby upheld. But taking in
account of the fact that revisionist has
already undergone sufficient period in jail
as under trial and after conviction by the
lower appellate court, his rest of the
sentence
be
converted
into
a
fine-
Revisionist is directed to pay and deposit
fine of Rs. 50,000/- in the court of C.J.M.
concerned out of which Rs. 40,000/- shall
be paid to the informant-Tara Chand P.W.
1 and 10,000/- shall go to the State.

Where the accused has undergone a substantial
part of the sentence, the remaining part of the
sentence can be converted into fine. ( Para 6,7)

Criminal Appeal partly allowed. (E-3)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Shekhar Dwivedi,
Advocate holding brief of Sri Durvesh
Kumar, learned counsel for the revisionist
and Sri Vinod Kant, learned Additional
Advocate General assisted by Sri Vinay
Prakash Shahu, learned counsel for the
opposite party.

2. The present criminal revision has
been preferred against the judgment and
order dated 26.02.1996 passed by Ist
Additional Sessions Judge Bareilly in
Criminal Appeal No. 202 of 1995: Dod
Ram Vs. State of U.P.,confirming the order
dated 17.08.1995 passed by the Judicial
Magistrate Ist, Bareilly in Criminal Case
No. 288/94 State Vs. Dod Ram and
Parmeshwari (Parmeshwari having died
case against him had abated) arising out of
Crime No. 173/89, under Section 326
I.P.C.,
Police
Station
Cantt,
District
Bareilly convicting and sentencing the
revisionist under Section 326 I.P.C. and
sentence for 3 years rigorous imprisonment
with fine of Rs. 500/-, in default of
payment
of
fine
further
rigorous