# Mohd. Arif and another v. State of U.P. and another

- **Citation:** (2011) 1 ILRA 148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-22
- **Case number:** Sitapur in Sessions Trial No. 562 of 2006
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-arif-and-another-v-state-of-u-p-and-another-41812
- **Pages:** 5

## Text

148 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(2) Sukhwasi son of Hulasi versus
State of Uttar Pradesh, reported in 2007
(59) ACC 739 (DB) (All).

(3)
Joseph
Mathuri
alias
Vishveshwarananda and another versus
Swami Sachidanand Harisakshi and
another reported in 2001 (Suppl.) ACC
957 (SC).

(4) Smt. Mona Panwar versus The
Hon'ble High Court of Judicature at
Allahabad and others, Criminal Appeal
No.298 of 2011, decided on February 02,
2011.

4. The controversy raised in the matter
has already been settled by the Hon'ble
Supreme Court recently in the case of
Rameshbhai Pandurao Hedau versus
State of Gujarat reported in 2010 (4)
SCC 185, in which the Hon'ble Supreme
Court has expressed the opinion as under:-

"25.The
power
to
direct
an
investigation to the police authorities is
available to the Magistrate both under
Section 156(3) Cr.P.C. and under Section
202 Cr.P.C. The only difference is the stage
at which the said powers may be invoked.
As indicated hereinbefore, the power under
Section 156(3) Cr.P.C. to direct an
investigation by the police authorities is at
the pre-cognizance stage while the power to
direct a similar investigation under Section
202 is at the post-cognizance stage.

26. The learned Magistrate has chosen
to adopt the latter course and has treated the
protest petition filed by the appellant as a
complaint under Section 200 of the Code
and has thereafter proceeded under Section
202 Cr.P.C. and kept the matter with
himself for an inquiry in the facts of the
case. There is nothing irregular in the
manner in which the learned Magistrate has
proceeded and if at the stage of sub-section
(2) of Section 202 the learned Magistrate
deems it fit, he may either dismiss the
complaint under Section 203 or proceed in
terms of Section 193 and commit the case to
the Court of Session.

5. In the light of the aforesaid
observations, I am of the view that the
learned Magistrate has not committed any
error in taking cognizance in the matter and
proceeding for enquiry. Therefore, the
petition is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.02.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Criminal Misc. Case No. 654 of 2011 (U/S
482, Cr.P.C.)

Mohd. Arif and another ...Petitioners
Versus
State of U.P. and another ...Opposite parties

Code of Criminal Procedure-Section 319Power of Magistrate to Summon such
person even not charge-sheeted-solely
depends
upon
the
satisfaction
of
Magistrate-likelihood of conviction on
basis of material/evidence so collect-for
rail
alongwith
other
accused-order
impugned perfectly justified.

Held: Para 9

In the present case on the application
moved by the complainant, the learned
Magistrate has found it proper and in the
interest
of
justice
to
summon
the
petitioners for trial, which shall be
treated
his
satisfaction
regarding
1 All] Mohd. Arif and another V. State of U.P. and another
149
necessity the trial of the petitioners
along with other accused.
Case law discussed:
AIR 2008 Supreme Court 1564; [2007 AIR
SCW 6258]; AIR 2010 Supreme Court 518

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

1. Heard learned counsel for the
petitioners as well as Sri Rajendra
Kumar Dwivedi, learned Additional
Government Advocate.

2. The petitioners have challenged
the order dated 10th of November, 2010
passed by the Additional Sessions Judge,
Sitapur in Sessions Trial No. 562 of 2006
on the ground that the order is absolutely
without application of mind.

3. By means of order impugned, the
petitioners have been summoned for trial
in exercise of power provided under
Section 319 of the Code of Criminal
Procedure. Though they were named
along with other two accused, but after
investigation police submitted chargesheet only against other two accused
namely Jiyaul son of Shaif Ali and
Munnu son of Jiyaul, thus, the petitioners
were not charge-sheeted, but now they
have been summoned for trial under the
order impugned without application of
mind.

4. The learned counsel for the
petitioners cited a case i.e. Kailash vs.
State of Rajasthan & Anr., AIR 2008
Supreme Court 1564, in which the
Hon'ble Supreme Court held that; for
exercise of discretion under Section 319
of the Code of Criminal Procedure all
relevant factors have to be kept in view
and an order is not required to be made
mechanically merely only on the ground
that the some evidence had come on
record implicating the person sought to
be added as an accused." In this case,
Hon'ble Supreme Court has relied upon
the case of Mohd. Shafi v. Mohd. Rafiq
& Anr. [ Judgemet tdoay 2007 (5) SC
562], in which the Hon'ble Supreme
Court has held that; before a court
exercises its discretionary jurisdiction in
terms of Section 319 of the Code of
Criminal Procedure, it must arrive at the
satisfaction that there exists a possibility
that the accused so summoned in all
likelihood would be convicted. Such
satisfaction can be arrived at inter alia
upon
completion
of
the
crossexamination of the said witness. For the
said purpose, the court concerned may
also like to consider other evidence.

5. The another case is Y. Saraba
Reddy vs Puthur Rami Reddy & Ors.
[2007 AIR SCW 6258]. The relevant
paragraph 13 of which is reproduced
hereinunder:-

13. Power under Section 319 of the
Code can be exercised by the Court suo
motu or on an application by someone
including accused already before it. If it
is satisfied that any person other than
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 that evidence of witnesses
be given in Court. Under sub-section
150 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(4)(1) (b) of the aforesaid provision, it is
specfically made clear that it will be
presumed that newly added person had
been an accused person when the Court
took congnizance of the offence upon
which
the
inquiry
or
trial
was
commenced. That would show that by
virtue of sub-section (4) (1) (b) a legal
fiction is created that cognizance would
be presumed to have been taken so far as
newly added accused is concerned."

6. He also cited a case i.e. Suman
vs State of Rajasthan & Anr AIR 2010
Supreme Court 518, in which the scope
of Section 319 of the Code of Criminal
Procedure has been discussed by the
Hon'ble Supreme Court. The relevant
paragraphs 11 & 14 is reproduced
hereinunder:-

11."Section 319, Cr.P.C. applies to
all the Courts including the Sessions
Court. It empowers the Court to add any
person, not being the accused before it,
but against whom there appears during
trial sufficient evidence indicating his
involvement in the offence, as an accused
and direct him to be tried along with
other accused. If such person is not
attending the Court, he can be arrested
or summoned. If he is attending the
Court, although not under arrest or upon
a summons, he can be detained by such
Court for the purpose of inquiry into, or
trial of, the offence which he appears to
have committed. Sub-section (4) lays
down that where the Court proceeds
against any person under Sub-section
(1), the proceedings in respect of such
person shall be commenced afresh and
witnesses are re-heard. A reading of the
plain language of sub-section (1) of
Section 319, Cr.P.C. makes it clear that
a person not already an accused in a
case can be proceeded against if in the
course of any inquiry into, or trial of an
offence, it appears from the evidence that
such person has also committed any
offence and deserves to be tried with
other accused. There is nothing in the
language of this sub-section from which
it can be inferred that a person who is
named in the FIR or complaint but
against whom charge-sheet is not filed
by the police, cannot be proceeded
against even though in the course of any
inquiry into or trial of any offence, the
Court finds that such person has
committed any offence for which he
could be tried together with the other
accused."

14. In Lok Ram v. Nihal Singh and
another (2006) 10 SCC 192, the Court
examined the correctness of the direction
given by the High Court for impleading
the appellant as an accused in terms of
Section 319, Cr.P.C.. The facts of that
case were that two daughters of Nihal
Singh (the complainant) were married to
two sons of the appellant-Lok Ram. One
of the daughters of Nihal Singh, namely,
Saroj
died
on
14.09.2001.
Soon
thereafter, Nihal Singh filed complaint at
Police Station Fatehabad (Haryana)
alleging commission of offence under
Section 406 read with Section 34, IPC.
During
investigation,
the
appellant
claimed that he was serving in a school
at the time of the death of Saroj. His plea
was 1 accepted by the Investigating
Officer and he was not charge-sheeted.
During trial, the complainant filed an
application under Section 319, Cr.P.C..
By an order dated 6.9.2002, the learned
Sessions Judge rejected the application.
That order was reversed by the High
Court and a direction was given to the
trial court to proceed against the
1 All] Mohd. Arif and another V. State of U.P. and another
151
appellant by summoning him. Before this
Court, it was argued that the appellant
could not be summoned under Section
319, Cr. P.C. because even though he
was named in the FIR as an accused, the
police did not find any evidence against
him and was not charge-sheeted. While
rejecting
the
argument,
the
Court
referred to the judgments in Joginder
Singh and another v. State of Punjab and
another (supra), Municipal Corporation
of Delhi v. Ram Kishan Rohtagi and
others (supra), Michael Machado and
another
v.
Central
Bureau
of
Investigation and another (2003)3 SCC
262, and observed:

"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 chargesheet or the case diary do not constitute
evidence. Of course, as evident from the
decision in Sohan Lal v. State of
Rajasthan, the position of an accused
who has been discharged stands on a
different footing."

Power under Section 319 of the
Code can be exercised by the court suo
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
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 sub-section (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."
(Emphasis supplied)

7. After going through the decisions
referred above, I find that there is no
restriction upon the learned Magistrate to
summon any person for trial either he
was not named in the FIR or was named,
but not charge-sheeted, if at any stage of
proceeding the trial court is satisfied that
on
the
basis
of
evidence
collected/produced in the course of
enquiry into or any trial of the offence
that such person has committed any
152 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
offence, for which he can be tried with
other accused.

8. So far as in terms of evidence is
concerned, it is defined under the Indian
Evidence Act as under:-

"Evidence" - "Evidence" means
and includes -

(1) all statements which the Court
permits or requires to be made before it
by witnesses, in relation to matters of
fact under inquiry;

Such statements are called oral
evidence;

(2)
all
documents
including
electronic record produced for the
inspection of the Court."

9. In the present case on the
application moved by the complainant,
the learned Magistrate has found it
proper and in the interest of justice to
summon the petitioners for trial, which
shall be treated his satisfaction regarding
necessity the trial of the petitioners along
with other accused.

10. Therefore, I do not find error in
the order impugned dated 10th of
November,
2010
passed
by
the
Additional Sessions Judge, Sitapur in
Sessions Trial No. 562 of 2006.

The petition is dismissed.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.02.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 1057 (MS) of 2011 (CRL.)

Ikram Husain

 ...Petitioner
Versus
State of U.P. and others ...Opp. Parties.

Code
of
Criminal
Procedure-Section
173(8)-re-investigation-after considering
Final
Report-Magistrate
directed
for
investigation-challenge made on ground
there can be further investigation but
cannot
be
re-investigation-held
misconceived-direction for investigation
amounts to further investigation-order
passed by Magistrate-held justified.

Held: Para 13

Similarly, in this case also, the court has
issued direction for investigation which
is
a
direction
for
only
further
investigation and not for re-investigation
of the case. Therefore, I am of the view
that the impugned order dated 3rd
December, 2010, passed by the Judicial
Magistrate, Mohammadi, District Kheri
does not suffer from any error and the
petition is liable to be dismissed.
Case law discussed:
Air 1998 SC 2001; AIR 1968 SC 117; (1985) 2
SCC 537; (2008) 2 SCC (Cri.) 631; (1999) 5
SCC 740; (2009) 6 Supreme Court Cases 346;
(2009) 7 Supreme Court Cases 685; (1999) 5
Supreme Court Cases 740; (2009) 9 Supreme
Court Cases 129; (2008) 2 Supreme Court
Cases 383; 2006 (7) scc 296; AIR 1998 SC
,2001

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

1. Heard Mr. K.S.Rastogi, learned
counsel for the petitioner as well as Mr.
Rajendra
Kumar
Dwivedi,
learned