# Lallan Babu & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** Criminal Revision No. 70 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-07
- **Case number:** Criminal Revision No. 70 of 2018
- **Bench:** Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lallan-babu-anr-revisionists-v-state-of-u-p-anr-46290
- **Pages:** 6

## Headnote

A. Criminal law- Protection of children
from Sexual Offence Act,2012-Section 3⁄4-
Code of Criminal Procedure,1973-Section
397/401
&
Indian
Penal
Code,1860Sections 363,366,376 & - application-
Section 319- challenge to-summoning of
proposed accused for trial u/s 319 Cr.P.C.-
examination-in-chief is sufficient if it
satisfactorily proves the presence and role
of
accused in
the
crime-complainant
himself got examined on oath as PW-1
and victim as PW-2 statement is in
support of contents of the FIR-revisionists
actively participated in the commission of
crime by provoking the victim to go with
the accused-mere taking name is not
sufficient there must be something more
to show implication of person-on mere
probability of complicity revisionists have
not
been
summoned
but
there
is
appropriate material and evidence to
justify summons of revisionists-trial judge
has committed no error of law to summon
the revisionists for trial.(Para 5 to 17)

B. Accused subsequently impleaded is to
be treated as if he had been an accused
when the court initially took cognizance of
the offence-degree of satisfaction of Court
for summoning the accused ,the test are
3-5 All. Lallan Babu & Anr. Vs. State of U.P. & Anr.
1023
same
as
applicable
for
framing
charge.Power u/s 319 Cr.P.C. can be
exercised by Court against a person in FIR
no chargesheet is filed by Police against
him and the accused can be summoned
only on the basis of examination-in-chief
of witness and need not wait for crossexamination etc.(Para 10)

The revision is dismissed. (E-6)

List of Cases Cited:-

## Text

1022 INDIAN LAW REPORTS ALLAHABAD SERIES

13. In the case in hand, since no
direction was issued vide judgment and
order dated 2.5.2016 passed in Special
Appeal No.522 of 2012 nor any direction
was issued in special Appeal No.110 of
2013, therefore, in view of the law laid
down by Hon'ble Supreme Court in Sudhir
Vasudeva's case (supra), this court being
the Court of contempt cannot travel beyond
what has been ordered by the writ
Court/special appellate court and therefore,
I am not inclined to proceed against the
contemners for alleged non-compliance of
order dated 30.8.2019 passed by the
contempt court.

14. Having considered submission of
learned counsel for respondents and after going
through the judgments of V. Kanakarajan's case
(supra) and J.S. Parihar's case (supra) and after
taking note of the fact that in compliance of the
judgment and order dated 2.5.2016 and order
dated
7.9.2019
passed
by
the
State
Government, appointments to petitioners 2, 3,
4, 7, 8, 9, 10 and 13 have been given and the
petitioners 1, 5, 6, 11 and 12 could not be
appointed as per rules as they had already
retired, I am of the opinion that the order passed
by the District Magistrate declining to consider
the case of the petitioners 1, 5, 6, 11 and 12
gives rise to fresh cause of action to the said
petitioners for which they can avail the
appropriate remedy as advised.

15. No case for wilful and deliberate
disobedience has been made out. I am of the
opinion that sufficient compliance has been
made by the respondents and by no stretch, it
can be considered to be a deliberate and wilful
violation of the judgment and order dated
2.5.2016.

16. The contempt petition fails and is
accordingly dismissed.
----------
(2020)03-05ILR A1022
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2020

BEFORE

THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Revision No. 70 of 2018

Lallan Babu & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Pramod Kumar

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

A. Criminal law- Protection of children
from Sexual Offence Act,2012-Section 3⁄4-
Code of Criminal Procedure,1973-Section
397/401
&
Indian
Penal
Code,1860Sections 363,366,376 & - application-
Section 319- challenge to-summoning of
proposed accused for trial u/s 319 Cr.P.C.-
examination-in-chief is sufficient if it
satisfactorily proves the presence and role
of
accused in
the
crime-complainant
himself got examined on oath as PW-1
and victim as PW-2 statement is in
support of contents of the FIR-revisionists
actively participated in the commission of
crime by provoking the victim to go with
the accused-mere taking name is not
sufficient there must be something more
to show implication of person-on mere
probability of complicity revisionists have
not
been
summoned
but
there
is
appropriate material and evidence to
justify summons of revisionists-trial judge
has committed no error of law to summon
the revisionists for trial.(Para 5 to 17)

B. Accused subsequently impleaded is to
be treated as if he had been an accused
when the court initially took cognizance of
the offence-degree of satisfaction of Court
for summoning the accused ,the test are
3-5 All. Lallan Babu & Anr. Vs. State of U.P. & Anr.
1023
same
as
applicable
for
framing
charge.Power u/s 319 Cr.P.C. can be
exercised by Court against a person in FIR
no chargesheet is filed by Police against
him and the accused can be summoned
only on the basis of examination-in-chief
of witness and need not wait for crossexamination etc.(Para 10)

The revision is dismissed. (E-6)

List of Cases Cited:-

1. Anil Arya Vs. St. Of U.P.& ors, Crl. Revision
No. 1216 of 2005

2. Hardeep Singh Vs. St. Of Punjab &
ors.,(2014) 3 SCC 92

3. Dharam Pal & Ors. Vs. St. Of Hary. & anr.
(2004) 13 SCC 9

4. Brijendra Singh Vs. St. Of Raj. (2017) 7 SCC
706

5. Shiv Prakash Mishra Vs. St. Of U.P. & ors.
(2019) 7 SCC 806

6. Kailash Vs. St. Of Raj. & anr. (2008) 14 SCC
51

(Delivered by Hon'ble Rajendra Kumar-IV,
J.)

1. Heard Sri Pramod Kumar, learned
counsel for the revisionists, learned AGA
for the State and perused the material on
record.

2. This criminal revision has been
filed by accused revisionists Lallan Babu
and Smt. Rekha against the order dated
28.11.2017 passed by Additional Sessions
Judge / Special Judge, POCSO Act, Court
No. 1, Auraiya in Special Sessions Trial
No.388 of 2015, State vs. Raj @ Guddu
(Case Crime No. 150 of 2015), under
Sections 363, 366, 376 I.P.C. and 3/4
POCSO Act, P.S. Phaphund, District
Auraiya whereby trial court allowed the
application under Section 319 Cr.P.C.
made by prosecution and summoned the
accused-revisionists to face trial.

3. It has been contended by learned
counsel for the revisionists that accusedrevisionists are falsely implicated in the
present case. They committed no offence.
Investigating Officer during investigation
did not find any evidence against the
revisionists and he did not submit charge
sheet. It has been further submitted that
accused-revisionists are not named in F.I.R.
They have not been charge-sheeted. There
names have not come in the statement of
witnesses under Section 161 Cr.P.C. but
they have been summoned believing the
evidence of P.W.-2 Anju Mishra (Victim).
It has been further argued that trial Court
did not appreciate the evidence in right
perspective. The revisionists are the parents
of alleged main accused Raj @ Guddu.

4. On the other hand learned AGA
refuted the submission of learned counsel
for the revisionists and submitted that
accused-revisionists are parents of main
accused
Raj
@
Guddu. They
have
provoked the main accused to commit the
crime. PW-1 is not an eye witness. PW-2 is
the victim, who supported the prosecution
case and proved the involvement of
revisionists in the present crime.

5. Brief facts of the case are as under
:-

(a) An F.I.R. bearing Case Crime
No. 150 of 2015 was lodged by one
Awadhesh Kumar (Father of victim)
against the accused Raj @ Guddu under
Section 363 and 366 I.P.C. stating that his
minor daughter (name of victim is withheld
by me), aged about 15 years was seduced
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
and abducted by accused Raj @ Guddu on
3.4.2015 at about 1:00 PM. Matter was
investigated by Investigating Officer, who
submitted charge sheet against the accused
Raj @ Guddu.

(b) During the course of trial,
statement of PW-1 Informant and PW-2
victim were recorded. PW-2 supported the
prosecution
case
and
disclosed
the
involvement of revisionists.

(c) PW-2 in her statement has
stated that when she went to the shop of
accused Raj @ Guddu on 3.4.2015 at about
11:00 AM, his parents (present revisionists)
gave Rs.5000/- and provoked to go with
Raj @ Guddu to Gujrat, thereafter, she
went to Gujrat with Raj where she lived
with him for about 2 1⁄2 months.

(d)
PW-1
Awadhesh
Kumar
(Informant) moved an application 39-B under
Section 319 stating that victim PW-2 disclosed
the involvement of Lallan Babu and Smt.
Rekha in the present case and it is necessary to
summon them for trial, application was
objected by accused Raj @ Guddu by filing his
objection / application no. 39-B. After hearing
both parties and appreciating the entire record
as well as statement of PWs-1 and 2, trial court
allowed the application under Section 319
Cr.P.C. and summoned Lallan Babu and Smt.
Smt. Rekha for facing trial in the aforesaid
sections, relying the statement of PW-2 Victim.

6. Section 319 of The Code Of Criminal
Procedure, 1973 reads as under :-

"Section 319. 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 the 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 a fresh, and the
witnesses re- heard;

(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. In Anil Arya v. State of U.P. and
Others, Criminal Revision No. 1216 of
2005, decided on 09.09.2016, this Court
held as under :-

"Whether evidence is correct or
not or credible enough or not to sustain
conviction and punishment is a matter
which would be seen after revisionist put in
appearance, lead evidence and thereafter
Trial Court examine the entire evidence
and record its finding thereon, but at the
stage of summoning of revisionist on the
basis of aforesaid statement in Trial under
3-5 All. Lallan Babu & Anr. Vs. State of U.P. & Anr.
1025
Section 319 Cr.P.C., the probable defence
of accused summoned under Section 319
Cr.P.C. cannot be examined for the first
time in a revisional jurisdiction by this
Court."

8. In Hardeep Singh Vs. State of Punjab
and others 2014 (3) SCC 92, Court examined
following five questions:

"(i) What is the stage at which power
under Section 319 Cr.P.C. can be exercised?

(ii) Whether the word "evidence"
used in Section 319 (1) Cr.P.C. could only
mean evidence tested by cross-examination or
the court can exercise the power under the said
provision even on the basis of the statement
made in the examination-in-chief of the witness
concerned?

(iii) Whether the word "evidence"
used in Section 319(1) Cr.P.C. has been used in
a comprehensive sense and includes the
evidence collected during investigation or the
word "evidence" is limited to the evidence
recorded during trial?

(iv) What is the nature of the
satisfaction required to invoke the power
under Section 319 Cr.P.C. to arraign an
accused? Whether the power under Section
319(1) Cr.P.C. can be exercised only if the
court is satisfied that the accused summoned
will in all likelihood be convicted?

(v) Does the power under Section
319 Cr.P.C. extend to persons not named in
the FIR or named in the FIR but not charged
or who have been discharged?"

9. The aforesaid questions have been
answered in para 117 of judgment as under
:-

Question Nos. (i) and (iii)
A. In
Dharam Pal and Ors. v. State of Haryana and
Anr. 2004 (13) SCC 9, the Constitution Bench
has already held that after committal,
cognizance of an offence can be taken against a
person not named as an accused but against
whom materials are available from the papers
filed by the police after completion of
investigation. Such cognizance can be taken
under Section 193 Cr.P.C. and the Sessions
Judge need not wait till 'evidence' under Section
319 Cr.P.C. becomes available for summoning
an additional accused.

Section 319 Cr.P.C., significantly,
uses two expressions that have to be taken note
of i.e. (1) Inquiry (2) Trial. As a trial
commences after framing of charge, an inquiry
can only be understood to be a pre-trial inquiry.
Inquiries under Sections 200, 201, 202 Cr.P.C.;
and under Section 398 Cr.P.C. are species of
the inquiry contemplated by Section 319
Cr.P.C. Materials coming before the Court in
course of such enquiries can be used for
corroboration of the evidence recorded in the
court after the trial commences, for the exercise
of power under Section 319 Cr.P.C., and also
to add an accused whose name has been shown
in Column 2 of the charge-sheet.

In view of the above position the
word 'evidence' in Section 319 Cr.P.C. has to
be broadly understood and not literally i.e. as
evidence brought during a trial.

Question No. (ii)

A. Considering the fact that under
Section 319 Cr.P.C. a person against whom
material is disclosed is only summoned to face
the trial and in such an event under Section
319(4) Cr.P.C. the proceeding against such
person is to commence from the stage of taking
of cognizance, the Court need not wait for the
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence against the accused proposed to be
summoned to be tested by cross-examination.

Question No. (iv)

A. Though under Section 319(4)(b)
Cr.P.C. the accused subsequently impleaded is
to be treated as if he had been an accused when
the Court initially took cognizance of the
offence, the degree of satisfaction that will be
required for summoning a person under Section
319 Cr.P.C. would be the same as for framing a
charge. The difference in the degree of
satisfaction for summoning the original accused
and a subsequent accused is on account of the
fact that the trial may have already commenced
against the original accused and it is in the
course of such trial that materials are disclosed
against the newly summoned accused. Fresh
summoning of an accused will result in delay of
the trial therefore the degree of satisfaction for
summoning
the
accused
(original
and
subsequent) has to be different.

Question No. (v)

A. A person not named in the FIR or
a person though named in the FIR but has not
been charge-sheeted or a person who has been
discharged can be summoned under Section
319 Cr.P.C. provided from the evidence it
appears that such person can be tried along
with the accused already facing trial. However,
insofar as an accused who has been discharged
is concerned the requirement of Sections 300
and 398 Cr.P.C. has to be complied with before
he can be summoned afresh.

10. The aforesaid judgment in fact lay
down very clearly that power under Section 319
Cr.P.C. can be exercised by Court against a
person not named in First Information Report or
no charge-sheet is filed by Police against him
and the accused can be summoned only on the
basis of examination-in-chief of witness and
need not wait for cross-examination etc. With
regard to degree of satisfaction of Court for
summoning the accused under Section 319
Cr.P.C, Court has said that test are same as
applicable for framing charge.

11. The above view was followed in
Brijendra Singh and others Vs. State of
Rajasthan (2017) 7 SCC 706 holding:

" ... since it is a discretionary
power given to the court Under Section 319
Code of Criminal Procedure and is also an
extraordinary one, same has to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. 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 charge-sheet 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."

12. Recently in Shiv Prakash
Mishra Vs. State of Uttar Pradesh and
others (2019) 7 SCC 806, Court relying on
the above authorities as also Kailash Vs.
State of Rajasthan and another (2008) 14
SCC 51, held as under:

"The standard of proof employed
for summoning a person as an Accused
person under Section 319 Code of Criminal
Procedure is higher than the standard of
proof employed for framing a charge
against the Accused person. The power
Under Section 319 Code of Criminal
Procedure should be exercised sparingly.
As held in Kailash Vs. State of Rajasthan
and another (2008) 14 SCC 51, "the power
3-5 All. Gopal @ Ramgopal Vs. State of U.P.
1027
of summoning an additional Accused
Under Section 319 Code of Criminal
Procedure should be exercised sparingly.
The key words in Section are "it appears
from
the
evidence"."any
person"."has
committed any offence". It is not, therefore,
that merely because some witnesses have
mentioned the name of such person or that
there is some material against that person,
the discretion Under Section 319 Code of
Criminal Procedure would be used by the
court." (emphasis added)

13. In view of above, it is clear that in
order to summon a person under Section
319 Cr.P.C., mere taking of name is not
sufficient but there must be something
more to show implication of person who
has been sought to be summoned.

14. Aforesaid statement of Informant
and victim clearly show that revisionists
and co-accused Raj @ Guddu were
involved in the commission of crime and
they also participated in incident. Whether
evidence of witnesses is correct or not,
credible
enough
or
not
to
sustain
conviction, is a matter which would be seen
after revisionists put in appearance, lead
evidence
and
thereafter,
Trial
Court
examines the entire evidence and records
its finding thereon. At the stage of
summoning of the revisionists on the basis
of aforesaid statements for trial, probable
defence of accused-revisionists summoned
under Section 319 Cr.P.C. cannot be
examined for the first time under the
revisional jurisdiction by this Court.

16. Looking to the facts of this case
and in the light of exposition of law, as
discussed above, I find that here is not a
case where mere name of revisionists have
been taken but details of incident have been
given showing the manner in which
revisionists have acted and committed
crime. Hence, it cannot be said that there is
no material whatsoever and also that on
mere probability of complicity they have
been summoned but there is appropriate
material and evidence to justify summoning
of revisionists under Section 319 Cr.P.C.
and I find no manifest error in the order
passed by Court below.

17. The revision lacks merit and is
accordingly dismissed.
----------
(2020)03-05ILR A1027
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Revision Defective No. 117 of 2020

Gopal @ Ramgopal ...Revisionist (in Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Subedar Misra

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

A.
Criminal
law-Dowry
Prohibition
Act,1961- Sections 3/4-Code of Criminal
Procedure,1973-Section 397/401, 386 &
Indian Penal Code,1860-Sections 498-A,
323,506 & - challenge to-conviction and
enhancement
of
sentence-appeallate
court convicted the revisionist u/s 323
IPC,
after
reversing
judgement
of
acquittal erroneously-there must be an
appeal by State against the judgement of
acquittal-appellate court without issuing
notice and giving an opportunity convicted
the revisionist-it is misuse of process of
law -
 (Para 1 to 8)