# Naseem v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 1094
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-07
- **Case number:** Application u/s 482 No. 771 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naseem-v-state-of-u-p-anr-opp-parties-51234
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Sections
302, 307, 147, 148, 149, 34, 504 & 506 -
2 All. Naseem Vs. State of U.P. & Anr.
1095
murder, rioting, criminal intimidation, and
other offenses - Section 319 - Power to
proceed against other persons appearing
to be guilty of offence - Power under
Section 319 CrPC is discretionary and
extraordinary, to be exercised sparingly - To
assign the reason and giving subjective satisfaction
while passing any order is the first and for most
requirement of the order passed by any Court or
the Competent Authority in as much as the reasons
and satisfaction of the court concerned is backbone
of any order, without which, such order may not
stand - Any order bereft of the reasoning would be
nullity in the eyes of law.
 (Para - 5,10)

Trial court summoned petitioner under Section 319 CrPC -
not named in FIR or charge sheet - based on examination
of injured witness - summoning order under challenge - trial
court failed to provide reasons and subjective satisfaction for
summoning - hence petition.
(Para - 3 to 5)

HELD: - Impugned order summoning petitioner under
Section 319 CrPC set aside due to lack of reasoning and
subjective satisfaction. Matter remanded back to trial court
to pass fresh order strictly in accordance with law. Trial court
must provide reasons and subjective satisfaction if invoking
Section 319 CrPC. Petitioner's right to fair trial and natural
justice is upheld.(Para - 10,11)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:

## Text

1094 INDIAN LAW REPORTS ALLAHABAD SERIES
merely wants that she should be given the
same respect by her husband and his family
members as was given during the lifetime
of the grandfather of the applicant no.1 but
the uncle of the applicant no.1 keeps on
threatening her because of his high political
position. In the counter affidavit filed
before this Court, the opposite party no.2
has stated that even after she was turned
out of her matrimonial home, she was
hopeful of improvement in the behaviour of
her husband and his family members. The
applicant no.1 used to repetitively talk to
her through mobile phone and assure that
he will take her back to her matrimonial
home. When the applicant no.1 did not take
the opposite party no. 2 to his home, she
tried to lodge a report. During oral
submissions also, she has submitted that
she merely wants restitution of her
matrimonial relationship and she is making
every
endeavour
with
the
aforesaid
objective.

30. From the aforesaid facts, it
appears that the opposite party no.2 has
filed the application under Section 156 (3)
Cr.P.C. merely to put pressure on the
applicants and other members of their
family for restitution of her matrimonial
relationship
with the applicant no.1.
However, she had filed a suit under Section
9 of the Hindu Marriage Act with the same
objective, which has been dismissed by the
Family Court. Criminal prosecution cannot
be allowed to be misused for ulterior
objective to put undue pressure on the
husband, his family members and relatives
for restitution of conjugal rights.

31. The foundation of a strong
matrimonial relationship is mutual love and
respect and the sustainability and quality of
matrimonial relations restored under threat
of criminal prosecution is to be pondered
by the opposite party no. 2 herself and this
Court is refraining from making any
observation in this regard.

32. In view of the aforesaid
discussion, this Court is of the considered
view that the continuance of the criminal
proceedings against the applicants will be a
gross abuse of the process of law and will
result in the failure of justice to the
applicants.

33. Accordingly, the application is
allowed and the order dated 08.11.2023
passed by the court of Additional Chief
Judicial
Magistrate,
Room
No.
27,
Lucknow
along
with
the
criminal
proceedings of Complaint Case No. 9780
of 2022 in Miscellaneous Case No.
325/2022, which was an application filed
under Section 156(3) Cr.P.C, is hereby
quashed.
----------
(2024) 2 ILRA 1094
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.02.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application u/s 482 No. 771 of 2024

Naseem ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Anand Mani Tripathi, Yugal Kishor Tripathi

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Sections
302, 307, 147, 148, 149, 34, 504 & 506 -
2 All. Naseem Vs. State of U.P. & Anr.
1095
murder, rioting, criminal intimidation, and
other offenses - Section 319 - Power to
proceed against other persons appearing
to be guilty of offence - Power under
Section 319 CrPC is discretionary and
extraordinary, to be exercised sparingly - To
assign the reason and giving subjective satisfaction
while passing any order is the first and for most
requirement of the order passed by any Court or
the Competent Authority in as much as the reasons
and satisfaction of the court concerned is backbone
of any order, without which, such order may not
stand - Any order bereft of the reasoning would be
nullity in the eyes of law.
 (Para - 5,10)

Trial court summoned petitioner under Section 319 CrPC -
not named in FIR or charge sheet - based on examination
of injured witness - summoning order under challenge - trial
court failed to provide reasons and subjective satisfaction for
summoning - hence petition.
(Para - 3 to 5)

HELD: - Impugned order summoning petitioner under
Section 319 CrPC set aside due to lack of reasoning and
subjective satisfaction. Matter remanded back to trial court
to pass fresh order strictly in accordance with law. Trial court
must provide reasons and subjective satisfaction if invoking
Section 319 CrPC. Petitioner's right to fair trial and natural
justice is upheld.(Para - 10,11)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:

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

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

3. Yashodhan Singh & ors. Vs St. of U.P. & anr., (2023) 9
SCC 108

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri A.M. Tripathi, learned counsel for
the petitioner and Sri Aniruddha Kumar Singh,
learned Additional Government Advocate-I for the
State.

2. In view of the order proposed to be passed,
the notice to opposite party No.2 is hereby dispensed
with.

3. By means of this petition filed under Section
482 Cr.P.C., the petitioner has prayed for the
following reliefs:-

"(i) Wherefore, it is most respectfully
prayed that this Hon'ble Court may kindly be pleased
to quash/ set aside the impugned order dated
15.12.2023 passed by the learned Additional
Sessions Judge, Court No.1, Pratapgarh in S.T.
No.271 of 2022 (State vs. Mustaq and others) in
Case Crime No.336 of 2021, under Sections 302,
307, 147, 148, 149, 34, 504 & 506 I.P.C., Police
Station-Mandhata, District-Pratapgarh against the
applicant/ petitioner, so for as it relates to the present
petitioner (Annexure No.1).

(ii) And it is further prayed that this
Hon'ble Court may kindly be pleased to stay the
operation and implementation of the impugned
order dated 15.12.2023 passed by the learned
Additional
Sessions
Judge,
Court
No.1,
Pratapgarh in S.T. No.271 of 2022(State vs.
Mustaq and others) in Case Crime No.336
of 2021, under Sections 302, 307, 147, 148,
149, 34, 504 & 506 I.P.C., Police StationMandhata, District-Pratapgarh against the
applicant/ petitioner, so for as it relates to
the present petitioner, during prendency of
the aforesaid petition, in the interest of
justice."

4. Sri A.M. Tripathi, learned counsel
for the petitioner has stated that since the
gravity of Section 319 Cr.P.C. is treated to
be on a high pedestal and as per the trite
law, the learned trial court may exercise
such powers sparingly and in a rare
circumstances, unless the trial court finds
that there is cogent and relevant material
available on the record which suggest that
the allegations against a person is such, he
may be summoned under Section 319
Cr.P.C. The person who is summoned under
Section 319 Cr.P.C. is a person against
whom the F.I.R. has not been lodged and
the charge-sheet has not been filed.
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
Therefore, as per Sri Tripathi, the Apex
Court has held that while summoning such
person invoking powers under Section 319
Cr.P.C.
the
specific
reason
of
his
summoning should be indicated in the
order passed under Section 319 Cr.P.C. and
it should have also been indicated in that
order clearly as to what are those sections
for which he has been summoned so that at
the time of affording an opportunity of
hearing, she/ he can defend herself/ himself
properly.

5. In support of his aforesaid
arguments, Sri Tripathi, has drawn attention
of this Court towards paras-105 & 106 of
the dictum of Apex Court rendered in the
case in re: Hardeep Singh vs. State of
Punjab reported in (2014) 3 SCC 92. The
relevant paras-105 & 106 read as under:-

"105. Power under Section 319
Cr.P.C. is a discretionary and an extra-
ordinary 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.

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 Cr.P.C.
In Section 319 Cr.P.C. 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
Cr.P.C. to form any opinion as to the guilt
of the accused."

6. Sri Tripath, has also drawn
attention of this Court towards para-15 of
the dictum of Apex Court rendered in the
case in re: Brijendra Singh and others vs.
State of Rajasthan reported in (2017) 7
SCC 706. The relevant paras-11, 13, 14
&15 read as under:-

"11. In Hardeep Singh case, the
Constitution Bench has also settled the
controversy on the issue as to whether the
word "evidence" used in Section 319 (1)
Cr.P.C. has been used in a comprehensive
sense and indicates the evidence collected
during investigation or the word "evidence"
is limited to the evidence recorded during
trial. It is held that it is that material, after
cognizance is taken by the Court, that is
available to it while making an inquiry into
or trying an offence, which the court can
utilise or take into consideration for
supporting reasons to summon any person
on the basis of evidence adduced before the
Court. The word "evidence" has to be
understood in its wider sense, both at the
stage of trial and even at the stage of
inquiry. It means that the power to proceed
against any person after summoning him
can be exercised on the basis of any such
material as brought forth before it. At the
2 All. Naseem Vs. State of U.P. & Anr.
1097
same time, this Court cautioned that the
duty and obligation of the Court becomes
more onerous to invoke such powers
consciously on such material after evidence
has been led during trial. The Court also
clarified that "evidence" under Section 319
Cr.P.C. could even be examination-in-chief
and the Court is not required to wait till
such
evidence
is
tested
on
crossexamination, as it is the satisfaction of the
Court which can be gathered from the
reasons recorded by the Court in respect of
complicity of some other person(s) not
facing trial in the offence.

13. In order to answer the
question, some of the principles enunciated
in
Hardeep
Singh
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 the 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 crossexamination 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
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 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.

14.
When
we
translate
the
aforesaid principles with their application
to the facts of this case, we gather an
impression that the trial court acted in a
casual and cavalier manner in passing the
summoning order against the appellants.
The appellants were named in the FIR.
Investigation was carried out by the police.
On the basis of material collected during
investigation, which has been referred to by
us above, the IO found that these
appellants were in Jaipur city when the
incident took place in Kanaur, at a distance
of 175 kms. The complainant and others
who supported the version in the FIR
regarding
alleged
presence
of
the
appellants at the place of incident had also
made statements under Section 161 Cr.P.C.
to the same effect. Notwithstanding the
same, the police investigation revealed that
the statements of these persons regarding
the presence of the appellants at the place
of occurrence was doubtful and did not
inspire
confidence,
in
view
of
the
documentary and other evidence collected
during the investigation, which depicted
another story and clinchingly showed that
the appellants' plea of alibi was correct.

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"
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

7. Sri Tripathi has further submitted
that the learned trial court concerned has
itself indicated para-99 (para-106 in the
aforesaid
reported
judgment)
in
the
impugned order dated 15.12.2023 wherein
the Apex Court has categorically observed
that at least satisfaction of the court should
be indicated while invoking power under
Section 319 Cr.P.C. Therefore, as per Sri
Tripathi,
the
impugned
order
dated
15.12.2023 is non-speaking and unreasoned
order and the court concerned has not
recorded its satisfaction as to why the
petitioner should be summoned under
Section 319 Cr.P.C. and if the court
summons, what are those sections under
which his trial would be required, so the
aforesaid impugned order is liable to be set
aside on the aforesaid technical ground
alone.

8. Sri Aniruddha Kumar Singh,
learned Additional Government Advocate-I
has fairly submitted that so far as the
technical ground was raised by Sri Tripathi,
learned counsel for the petitioner that the
impugned order dated 15.12.2023 is nonspeaking and unreasoned order where the
trial court has not indicated its subjective
satisfaction as to why the petitioner should
be summoned under Section 319 Cr.P.c.
and what are those sections under which his
trial would be required, he has nothing to
say and on that submission any appropriate
order may be passed in the interest of
justice.

9. However, he has submitted that if
the merits of the present case is touched, it
is visible in the impugned order itself that
on the basis of examination of the injured
witness the power under Section 319
Cr.P.C. has been invoked by the learned
trial court and the testimony of the injured
witness is also considered on high pedestal
and such testimony of the injured witness
should not be ignored by the learned trial
court. He has also submitted that if
pursuant to the impugned summoning order
the petitioner appears before the court
concerned and convinces the court that he
has been falsely implicated and during the
course of investing nothing incriminating
material / evidences have been found,
rather, as per the CCTV Footage and the
statement of other persons his implication
is false, he may establish before the court
2 All. Bahori Lal Vs. State of U.P. & Anr.
1099
and the trial court may pass appropriate
order, but at least, the testimony of the
injured witness should not be ignored. In
support of his aforesaid arguments, Sri
Aniruddha
Kumar
Singh,
learned
Additional Government Advocate-I has
placed reliance upon the dictum of Apex
Court rendered in the case in re:
Yashodhan Singh and others vs. State of
U.P. and another reported in (2023) 9 SCC
108.

10. Having heard learned counsel for
the parties and having perused the material
available on record as well as having regard
to the dictums of Apex Court as considered
above, I find that the learned trial court
while passing the impugned order dated
15.12.2023 has not indicated its subjective
satisfaction as to why the petitioner should
be summoned under Section 319 Cr.P.C.
and under which sections the trial of the
petitioner would be required. To assign the
reason and giving subjective satisfaction
while passing any order is the first and for
most requirement of the order passed by
any Court or the Competent Authority
inasmuch as the reasons and satisfaction of
the court concerned is backbone of any
order, without which, such order may not
stand. At the same time, if the person
summoned under Section 319 Cr.P.C. is not
apprised as to what are those sections under
which his trial would be required, he would
be failed to defend himself properly and in
that case the principles of natural justice of
that person would be frustrated. Any order
bereft of the reasoning would be nullity in
the eyes of law. Therefore, on the aforesaid
ground alone the impugned order dated
15.12.2023 is not liable to be sustained,
hence, the same is set aside and quashed.

11. Since the aforesaid order has been
quashed for the reason that the impugned
order is bereft of the reasoning and the
subjective
satisfaction
of
the
court
concerned,
therefore,
the
matter
is
remanded back to the learned trial court to
pass a fresh order, strictly in accordance
with law and in the light of the aforesaid
dictums of Apex Court.

12. It is needless to say that if the
learned trial court wishes to invoke powers
under Section 319 Cr.P.C. in this case, he
may
pass
appropriate
order
with
expedition, preferably, within a period of
one month from the date of receipt of a
certified copy of this order, strictly in
accordance with law.

13. In view of the aforesaid
observations and directions, the instant
petition is allowed.

14. No order as to the costs.
----------
(2024) 2 ILRA 1099
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 780 of 2024

Bahori Lal ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Rizwanul Haque Ansari, Santi

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Section