# Mohan Lal and others v. State of U.P. & another

- **Citation:** (2008) 2 ILRA 632
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-06-25
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-lal-and-others-v-state-of-u-p-another-41059
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 319summoning order-merely on the basis of
examination-in-chief-without
cross
examination-held-illegal.

Held: Para 4

Learned counsel for the applicants cited
before me a ruling of Hon. Supreme
Court in Mohd. Shafi vs. Mohd. Rafiq,
2007 (58) ACC 254. In this case the trial
court on the basis of examination-inchief of witness had summoned the
accused appellant under Section 319
Cr.P.C. The order was challenged and the
Hon. Supreme Court held that the order
summoning the accused applicant could
not
be
passed
on
the
basis
of
examination-in-chief of the witness, but
the court concerned for ascertaining the
veracity of the witness should have
permitted his cross examination first and
2 All] Mohan Lal and others V. State of U.P. and another
633
then the court should have taken a
decision as to whether the appellants
should be summoned as an accused or
not under Section 319 Cr.P.C.
Case Law discussed:
2007 (58) ACC 254.

## Text

632 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the stage of regular enquiry before
passing
final
order
of
removal,
opportunity of hearing is to be extended.
Similar view was expressed by a Division
Bench of this Court in the case of Moti
Lal Vs. District Magistrate, Lalitpur &
@ others, 2003 (1) UPLBEC 736,
wherein their Lordships having taken note
of the provisions contained in Rules 3 & 4
and proviso to Section 95 (1)(g) of the
Act, held that while holding preliminary
enquiry the Enquiry Officer is not obliged
to give opportunity to the appellant nor
the rule requires holding of preliminary
enquiry in the presence of the appellant.
We, with respect endorse the above view.
Therefore, we do not find any substance
in the contention that the impugned order
has been passed in violation of the
principles of natural justice nor we find
any violation of prescription of law
calling for interference in the impugned
order.

14. Therefore, there is no fault in the
judgment of the Hon'ble Single Judge
assailed in this appeal.

15. No other point is urged before
us.

16. However, looking to the facts of
the case, we are of the view that the
formal enquiry initiated under Rule 5 of
the Rules requires early disposal. We,
therefore, direct that the formal enquiry
initiated against the petitioner shall be
concluded
expeditiously,
preferably
within a period of three months from the
date of production of a certified copy of
this order. We further provide that the
enquiry officer or the District Magistrate
while taking final decision shall not be
influenced or prejudiced in any manner by
the observations made by this Court in the
writ petition and in this appeal as it was
only for the purpose of deciding the
validity of the order passed under proviso
to Section 95 (1) (g) of the Act.

17. With the above observations the
special appeal stands dismissed but
without costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.06.2008

BEFORE
THE HON'BLE R.K. RASTOGI. J.

Criminal Misc. Application 14872 of 2008

Mohan Lal and others
...Applicants
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicant:
Sri. S.R. Singh

Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Section 319summoning order-merely on the basis of
examination-in-chief-without
cross
examination-held-illegal.

Held: Para 4

Learned counsel for the applicants cited
before me a ruling of Hon. Supreme
Court in Mohd. Shafi vs. Mohd. Rafiq,
2007 (58) ACC 254. In this case the trial
court on the basis of examination-inchief of witness had summoned the
accused appellant under Section 319
Cr.P.C. The order was challenged and the
Hon. Supreme Court held that the order
summoning the accused applicant could
not
be
passed
on
the
basis
of
examination-in-chief of the witness, but
the court concerned for ascertaining the
veracity of the witness should have
permitted his cross examination first and
2 All] Mohan Lal and others V. State of U.P. and another
633
then the court should have taken a
decision as to whether the appellants
should be summoned as an accused or
not under Section 319 Cr.P.C.
Case Law discussed:
2007 (58) ACC 254.

(Delivered by Hon'ble R.K. Rastogi, J.)

1. This is an application moved
under Section 482 Cr.P.C. to quash the
order
dated
19.3.2008
passed
by
Additional Sessions Judge/ F.T.C. Court
no.1, Jalaun at Orai in S.T.No.112 of
2007,
State
vs.
Praveen
Kumar
summoning the applicants as accused
persons under Section 319 Cr.P.C.

2. The relevant facts for disposal of
this application are that aforesaid S.T. is
pending
against
co-accused
Praveen
Kumar under Sections 363,366 and 376
I.P.C . Applicants were named as accused
persons in the F.I.R. but no charge-sheet
was
submitted
against
them.
After
investigation
the
charge-sheet
was
submitted against Praveen Kumar only.
The case was committed to the court of
Sessions Judge and during trial of the case
the statement of Km. Poonam Soniya,
prosecuterix was recorded as P.W.2 and
in that statement she named accused
applicants Mohan Lal, Dinesh Kumar, Raj
Kumar and Satish mentioning their
respective
roles
in
the
incident.
Thereafter, the prosecution moved an
application for summoning the above
accused applicants and that application
was allowed by the trial court. Aggrieved
of
that
order
the
present
accused
applicants filed this application under
Section 482 Cr.P.C .

3. Heard Sri S. R. Singh, learned
counsel for the applicants and learned
A.G.A. at the stage of admission on
merits also and now I am deciding it on
merits
without
calling
any
counter
affidavit as the point involved is legal
one.

4. Learned counsel for the applicants
cited before me a ruling of Hon. Supreme
Court in Mohd.Shafi vs. Mohd. Rafiq,
2007 (58) ACC 254 . In this case the trial
court on the basis of examination-in-chief
of witness had summoned the accused
appellant under Section 319 Cr.P.C . The
order was challenged and the Hon.
Supreme Court held that the order
summoning the accused applicant could
not be passed on the basis of examinationin-chief of the witness, but the court
concerned for ascertaining the veracity of
the witness should have permitted his
cross examination first and then the court
should have taken a decision as to
whether
the
appellants
should
be
summoned as an accused or not under
Section 319 Cr.P.C.

5. He submitted that above the
ruling applies with full force. to the
present
case
where
the
court
has
summoned the applicants as accused
persons, only on the basis of examinationin-chief of Km.Poonam Soniya without
her cross examination. So the order
passed by Additional Sessions Judge
should be set aside. I agree with his
contention.

6. The application under Section 482
Cr.P.C. is therefore, allowed to this extent
that the order passed by Additional
Sessions Judge summoning the applicants
as accused persons on the basis of
examination-in-chief of Km. Poonam
Soniya is set aside. It is, however,
directed that the court below may, after
her cross examination, reconsider the
634 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
matter of summoning the applicants as
accused persons, if so, prayed by the
prosecution.

7. The application under Section 482
Cr.P.C. is disposed of accordingly subject
to above observations.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition 17846 of 2008

Shri Ram

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Singh Yadav

Counsel for the Respondents:
Sri. Anuj Kumar
Sri. Janardan Singh Yadav
Sri. A.K. Singh
Constitution
of
India,
Article
226Settlement of Fisheries Rights-petitioner
belonging to S.C. Candidate of the same
village granted lease-on complaint of
respondent no. 5 cancelled on the
ground the settlement made without
publication in two newspapers-secondly
contrary
to
in
order
of
preference
contained
in
G.O.
17.10.95-heldnormally the proviso not construed as
nullifying enactment-Para 5(i) of the
G.O. cannot be construed as changing
the
preference-person
belonging
to
Machhua Community may be of the same
village-Nyay
Panchyat
or
Block-a
Scheduled Caste candidate belonging to
same village cannot be preferred over
the
person
belonging
to
Machhua
Community of the Block.

Held- Para 18
Paragraph 5(1) at best can be read as
proviso to the preferences as indicated in
the Government Order. A proviso is
normally not construed as nullifying the
enactment or as taking away completely
a right conferred by the enactment.
Thus,
paragraph
5(1)
cannot
be
construed as changing the preferences
as mentioned in the Government Order.
Persons
belonging
to
Machhua
Community be that of (a) same village
concerned
(b)
concerned
Nyaya
Panchyat or concerned Block are in the
first
category
and
they
will
take
precedence over a member of Schedule
Caste who is in second category, thus,
the petitioner who belongs to Schedule
Caste, cannot be preferred to a person
belonging
to
Machhua
Community
although of concerned Block. Thus the
submission of the learned counsel for the
petitioner that respondent No. 5 could
not have been given preference over the
petitioner, cannot be accepted.
Case Law Discussed:
2006 (1) ALJ 376

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Ashok Kumar Singh
Yadav learned counsel for the petitioner,
Sri Janardan Singh Yadav learned counsel
appearing for respondent No.4, Sri A.K.
Singh,
Advocate,
appearing
for
respondent NO.5 and learned Standing
Counsel.

2. By the consent of the learned
counsel for the parties, the writ petition is
being finally decided.

3. By this writ petition, the
petitioner has prayed for quashing the
order dated 10th March, 2008 passed by
the
Sub
Divisional
Officer,
Mohammadabad, Ghazipur, withdrawing
the approval granted in favour of
petitioner dated 3rd June 2006 and the
order dated 1st April 2008 and 4th April