# N.E. Railway, Gorakhpur and others v. Jamait Ram Khatanani and others

- **Citation:** (2007) 3 ILRA 854
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-29
- **Case number:** Crl. Misc. Application No. 26851 of 2007
- **Bench:** Shiv Charan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/n-e-railway-gorakhpur-and-others-v-jamait-ram-khatanani-and-others-41097
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 482Summoning order under Section 319-on
the basis of statements examination inchief of P.W. 1-Magistrate can not based
in consideration upon the statement and
material
collected
by
investigating
officer-but the satisfaction is paramount
consideration-held-impugned order need
no interference.

Held: Para 9

On the basis of the above, I am of the
opinion the trial court based the order of
summoning u/s 319 Cr.P.C. after being
satisfied from the statement of Mohd.
Asif P.W.1 after examination in chief and
it all depends upon the satisfaction of
the trial court in order to pass the order
of summoning on the basis of the
statement of this witness. Hence there is
no illegality and irregularity in the order.
The application u/s 482 Cr.P.C. deserves
to be dismissed.
Case law discussed:
J.T. 2007 (5) SC-562
2007(4) SCC 773
2006 (1) SCC (Criminal) 568

## Text

854 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
decision rendered in General Manager.
N.E. Railway, Gorakhpur and others
Vs. Jamait Ram Khatanani and others.
1975 IFLR Vol.31 page-246. In that case
the Court held that once an employee is
transferred and posted to a particular
place acceptance of the transfer order by
that employee is immaterial. Even though
he may not join his duties or physically
may not go to the new place of posting he
will continue to be posted there in the eye
of law. His place of posting cannot be
deemed to have changed merely because
he disobeys the order of his transfer.

10. In this view of the matter the
services
of
the
petitioners
having
transferred to the State of Uttaranchal
only
the State of Uttaranchal has
territorial jurisdiction in the matter.

11. The writ petition is accordingly
dismissed. No order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2007

BEFORE
THE HON'BLE SHIV CHARAN, J.

Crl. Misc. Application No. 26851 of 2007

Mustakim

...Applicant
Versus
State of U.P. & another..Opposite Parties

Counsel for the Applicant:
Sri Mohit Singh

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

Code of Criminal Procedure-Section 482Summoning order under Section 319-on
the basis of statements examination inchief of P.W. 1-Magistrate can not based
in consideration upon the statement and
material
collected
by
investigating
officer-but the satisfaction is paramount
consideration-held-impugned order need
no interference.

Held: Para 9

On the basis of the above, I am of the
opinion the trial court based the order of
summoning u/s 319 Cr.P.C. after being
satisfied from the statement of Mohd.
Asif P.W.1 after examination in chief and
it all depends upon the satisfaction of
the trial court in order to pass the order
of summoning on the basis of the
statement of this witness. Hence there is
no illegality and irregularity in the order.
The application u/s 482 Cr.P.C. deserves
to be dismissed.
Case law discussed:
J.T. 2007 (5) SC-562
2007(4) SCC 773
2006 (1) SCC (Criminal) 568

(Delivered by Hon'ble Shiv Charan J.)

The present application has been
moved u/s 482 Cr.P.C. for quashing the
order dated 24.10.2007 passed by Addl.
Sessions Judge Court no.4 Etawah in S.T.
No.158/05 u/s 147,302 IPC.

2. A perusal of the documents shows
that FIR was lodged by Mohd Asif on
20.5.2007 at about 9.45 pm against
Mustkim applicant and four other accused
persons registered at Crime no.71 of 2005
u/s 147,302 IPC P.S. Ekdil, District
Etawah. The matter was investigated by
the police and charge sheet was submitted
against the accused persons except the
applicant
Mustkim.
Afterwards
the
statement of Mohd. Asif P.W.1 was
recorded and on the basis of the statement
of examination in chief of this witness,
application was moved for summoning
the applicant Mustakim for the offence u/s
3 All] Mustakim V. State of U.P. and another
855
147 and 302 IPC u/s 319 Cr.P.C. and
learned Sessions Judge being satisfied
from the evidence of Mohd. Asif
summoned the applicant to face trial for
the offence and this order passed u/s
319Cr.P.C.
is
challenged
by
this
application.

3. It has been argued by learned
counsel for the applicant that learned
Sessions Judge committed gross illegality
in passing the order of summoning on the
basis of the evidence recorded by the 10
in the case diary and also on the basis of
the statement of the examination in chief
of Mohd. Asif P.W.1. That learned
Sessions Judge was not justified in
considering the evidence recorded by the
IO in the case diary for the purpose of
passing the order u/s 319Cr.P.C. Learned
Sessions Judge also committed illegality
in passing the order of summoning only
on the basis of the statement of
examination in chief of Mohd. Asif . That
in view of the judgement of Hon'ble Apex
Court this was the most unjustified act
and order is illegal hence the order is
liable to be set aside.

4. Learned AGA opposed the
argument of learned counsel for the
applicant and argued that passing the
order u/s319 Cr.P.C. the satisfaction of
trial court is of prime importance and in
the present case learned Sessions Judge
after being satisfied from the statement of
Mohd.
Asif
passed
the
order
of
summoning and there is no illegality in
the order.
5. I have considered all the facts and
circumstances of the case. In view of
Section 319 Cr.P.C. learned Sessions
Judge is fully competent to pass the order
of summoning if the court is satisfied in
course of any enquiry and trial for an
offence that any person not being the
accused had committed any offence for
which such persons should be tried
together with the accused and such person
can be summoned on the basis of the
evidence. I agree with this argument of
learned counsel for the applicant that the
evidence recorded by the IO in the case
diary cannot be a basis for passing the
order u/s 319 Cr.P.C. Although it is a fact
that in the impugned order learned
Sessions Judge considered the evidence
recorded by the IO in the case diary
during investigation. But learned Sessions
Judge also considered the evidence of
P.W.1 recorded in the court. If this part of
the order in which the trial court placed
reliance on the evidence recorded by the
IO in the case diary for the purpose of
passing the order u/s 319 Cr.P.C. is to be
ignored then whether there is sufficient
material before Sessions Judge to pass the
order of summoning under this provision
is to be considered. Because learned
Sessions Judge has passed the order
u/s319
Cr.P.C.
after
recording
the
statement of Mohd. Asif P.W. l and
Sessions Judge has also relied upon the
statement of P.W. l for the purpose of
summoning the applicant. The legal
matter involved in the present case is as to
whether the learned Sessions Judge is
satisfied in placing reliance on the
statement of examination in chief of
P.W.1. And whether it is the requirement
of the law that the entire statement of a
witness
including
cross
examination
should be recorded prior to passing the
order u/s 319 Cr.P.C and in that
circumstance the statement of such
witness should be considered. In this
context the learned counsel for the
applicant cited judgement of Hon'ble
Apex Court reported in Judgement Today
856 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
2007(5) SC page 562 Mohd. Shafi Vs.
Mohd. Rafiq and
another. The Hon'ble Apex Court held as
follows:

"12. The Trial Judge as noticed by
us, in terms of Section 319 of the Code of
Criminal Procedure was required to arrive
at his satisfaction if he thought that the
matter
should
receive
his
due
consideration
only
after
the
crossexamination of the witnesses is over, no
exception thereto could be taken far less
at the instance of a witness and when the
State was not aggrieved by the same. "

6. In view of this judgement of
Hon'ble Apex Court it is the satisfaction
of the Court concerned to pass the order
u/s 319 Cr.P.C. and if the court is not
satisfied for passing the order u/s 319
Cr.P.C. for summoning the accused then
the Court can require that this application
shall be considered after recording the
evidence of witness. But Hon'ble Apex
Court has not laid down that the order u/s
319Cr.P.C. shall be passed only after
recording the entire statement of the
witness including cross-examination also.
It is evident from the facts of the case
before Hon'ble Apex Court that learned
Sessions Judge deferred the disposal of
the application u/s 319 Cr.P.C. till the
cross-examination of the witnesses was
recorded and in this context the Hon'ble
Apex Court held that it is satisfaction of
the court concerned for passing the order
u/s 319 Cr.P.C. and if the court
considered that the matter is required
received due consideration only after
cross examination of the witness is over
then it cannot be said that the court acted
illegally. But if the position is that the
learned
Sessions
Judge
after
being
satisfied from the examination in chief of
the witness for summoning the accused
u/s 319 Cr.P.C. then it cannot be said that
the learned Sessions Judge acted illegally
in passing order without recording crossexamination. The main thing is the
satisfaction of the court concerned and in
the present case the Sessions Judge was
satisfied with the examination in chief of
the witness and hence the order was
passed for summoning of the accused
applicant to face trial.

7. Learned counsel for the applicant
placed reliance on para 13 of the above
judgement of Apex Court. It has been
held in this para:

"13. From the decisions of this
Court, as noticed above, it is evident 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 cross-examination
of the said witness. For the said purpose,
the court concerned may also like to
consider
other
evidence.
We
are,
therefore, of the view that the High Court
has committed an error in passing the
impugned judgement "

8. And on the basis of this part of
the judgement of Apex Court the
applicant's counsel argued that while
passing the order u/s 319 Cr.P.C. the trial
Court must be satisfied that there exists a
possibility that the accused so summoned
in all likelihood will be convicted and
such satisfaction can be arrived at inter
alia
of
completion
of
the
crossexamination of the said witness. Learned
counsel for the applicant stated that
3 All] Mustakim V. State of U.P. and another
857
learned Sessions Judge has not stated in
the order that on the basis of the statement
of P.W.1 conviction can be based of the
applicant and moreover for placing
reliance on the statement of the witness
for the purpose of conviction the entire
statement
including
cross-examination
must be recorded. Learned counsel also
argued that in this connection Section 33
of the Evidence Act is also material. And
if the person subsequently failed to appear
in the Court due to any reason for crossexamination
than
no
conviction
is
possible hence in all circumstances for
summoning the applicant u/s 319Cr.P.C.
The entire statement including crossexamination of the witness is to be
recorded and the finding must be
recorded. But in para 12 of the judgement
Hon'ble Apex Court held that it is the
satisfaction of the court concern for
passing the order of summoning and if the
court required that the order will be
passed
only
after
recording
crossexamination also then it cannot be said
that the Sessions Judge acted illegally.
Because ultimately the satisfaction of the
court is essential. But it has also been held
that the cross-examination must be
recorded of such a witness. In the present
case the trial court was satisfied on the
basis of examination in chief of the
witness to pass the order of summoning.
Learned counsel for the applicant also
cited 2007(4) SCC page 773 Y.Saraba
Reddy Vs. Puthur Rami Reddy and
another. But in this judgement the Hon'ble
Apex Court held that while passing an
order u/s 319 Cr.P.C. the evidence
recorded by the IO in case diary shall not
be taken into consideration. In the present
case the trial court besides placing
reliance on the statement of Mohd. Asif
recorded in the court also placed reliance
on the statement recorded by the IO but I
have stated above that this portion of the
order is not to be looked into and it is to
be seen whether ignoring this evidence
the learned Sessions Judge was justified
in passing the order of summoning on the
statement of Mohd. Asif. Hence learned
Sessions Judge was justified in placing
reliance on the statement of Mohd. Asif.
Learned counsel for the applicant also
cited
2006(1)
SCC(Cri)
page
508
Palanisamy Gounder and another Vs.
State represented by Inspector of Police.
In this case also the Hon'ble Apex Court
held that the court must be satisfied that
there is reasonable prospect of case
against such accused in his conviction and
in the present case there is the statement
of Mohd. Asif who is an eyewitness.
Hence the solitary statement of one
witness is sufficient to base conviction.

9. On the basis of the above, I am of
the opinion the trial court based the order
of summoning u/s 319 Cr.P.C. after being
satisfied from the statement of Mohd.
Asif P.W.1 after examination in chief and
it all depends upon the satisfaction of the
trial court in order to pass the order of
summoning on the basis of the statement
of this witness. Hence there is no
illegality and irregularity in the order. The
application u/s 482 Cr.P.C. deserves to be
dismissed.

10. The application u/s 482 Cr.P.C.
is dismissed accordingly.
---------
858 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2007

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Second Appeal No.492 of 1980

Brij Gopal Binnani (since deceased

...Plaintiff-Appellant
Versus
Smt. Rukmini Devi and others

 ...Defendants-Respondents

Counsel for the Appellant:
Sri Yasharth
Sri Pankaj Lal
Sri Gyan Prakash

Counsel for the Respondents:
Sri V.K.S. Chaudhary, Sri Ranjeet Saxena,
Sri M.K. Gupta, Sri V.K. Goel, Sri Kundan
Rai, Sri Deepak Chaudhary, Sri Ajai Kumar
Singh, Sri Deepak Singh

Code of Civil Procedure-Section 100Second Appeal-Suit for possession-on
payment of Rs.2205/-towards cost of
Construction-defendant
denied
and
pleaded as co-owner and not as tenantalternatively if the cost of construction
of Rs.6505 and paid-dismissal of suit in
1940-can
defendant
claim
adverse
possession-'No'-plea of Res-judicata also
denied-suit
decreed
on
payment
of
Rs.6505 with 12% simple interest.

Held: Para 21

The-litigation initiated in the year 1927
has not ended as yet. Taking into
account the admissions made by the
defendant first set in Original Suit No.1
of 1949 decided on 11th August, 1952,
the Court find that a sum of Rs.6505 and
7 ana 6 paisa with simple interest at the
rate of 12% per annum would be the fair
and
reasonable
cost
with
interest
compensating the capital expenses. The
Court is not taking into consideration
any improvement as no such plea was
taken by the defendant nor any evidence
was led by the defendant to prove the
same. The constructions must be old but
then no such argument was advanced by
learned counsel for the appellant to
reduce the cost of constructions claimed
by the defendant-respondent.
Case law discussed:
1977 Alld.-469, 1995 (4) SCC-496, 2004 (2)
AWC-1685, 1977 AIR (All.) 458, 2004 (2)
JCLR-755, 1993 PCJ (SC)-1198, 1997 ACJ
(SC), 1990 (4) SCC-706, 1994 (6) SCC-591,
2006 (7) SCC-570

(Delivered by Hon'ble Sunil Ambwani, J.)

1. The order dated 4.8.2006
dismissing the second appeal for want of
prosecution was recalled on 17.4.2007.
On
the same day the substitution
application of Shri Satyendra son of Shri
Sri Gopal Binnani, appellant No.l/l was
allowed, and Shri Babu Gopal Binnani
son of Late Shri Brij Gopal Binnani
respondent No.4 was transposed as
appellant on the ground, that he had
succeeded to the estate of his father. The
parties were heard and the judgment was
reserved.

2. This second appeal arises out of
judgment and decree dated 31.7.1978
decreeing the suit filed by late Shri Brij
Gopal Binnani, the plaintiff-appellant for
possession over the property in suit on
payment of Rs.2054.13 towards costs of
constructions or such amount as the Court
determines. The Civil Appeal No.354 of
1978 filed by Smt. Rukmini Devi &
others, the defendants against the decree
was allowed by the District Judge,
Azamgarh
on
17.10.1979
with
the
findings that the defendant 1st set
appellants have perfected their rights by
adverse possession.