# Nazma v. State of U.P - **Citation:** (2009) 3 ILRA 1108 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2009-12-23 - **Case number:** Criminal Misc. Application No. 33524 of 2009 - **Bench:** Vinod Prasad - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nazma-v-state-of-u-p-41391 - **Pages:** 2 ## Headnote ,J.N. Maurya, C.S.C. U.P. Secondary Education Service Selection Board Rules 1998-Rule-13-Life of penal of selected list-petitioner was given offer to join the post three times by the management-by one pretext to other petitioner refused to join-on life of panel confined to one year-can not be extended for endless period-attitude of petitioner being illogical against the larger interest of student-deserve no sympathy-can not be allowed to abuse such privilege. Held: Para 6 This exercise of seeking extension cannot be permitted endlessly, that too even after the expiry of the period of the panel itself. The Statute provides for a ## Text 1108 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 23.12.2009 BEFORE THE HON'BLE VINOD PRASAD, J. Criminal Misc. Application No. 33524 of 2009 Nazma ...Applicant Versus State of U.P. ...Opposite Party Counsel for the Applicant: Sri Pankaj Bharti Counsel for the Opposite Party: Govt. Advocate Code of Criminal Procedure-Section 319Application for summoning the accusednot named in FIR-on basis of evidence recorded under Section 244-refusal on ground that statement recorded is evidence can be considered by the Trail Court and can not be basis for summoning-held-illegal-word 'evidence' used under Section 319 means the statement recorded by Court in accordance with provisions of evidence Act while the word evidence used under Section 244 C.P.C.-as recorded by Court during Trail. Held: Para 3 The opinion by A.C.J.M. Court No. 1, Muzaffarnagar is wholly illegal. If a person has not been summoned under Section 204 Cr.P.C. and his name subsequently appears in statement recorded by the Court under Section 244 Cr.P.C. then application under Section 319 Cr.P.C. is maintainable. The statement under Section 244 Cr.P.C. recorded by the Court is an "evidence". The Court can always rely on such a statement and, therefore, prosecution can always utilize the said statement under Section 244 Cr.P.C. to add any person as an accused to stand trial along with the already trying accused. Merely because Sabina, who was desired to be summoned by the prosecution under Section 319 Cr.P.C., was not summoned under Section 204 Cr.P.C. is no ground not to summon her under Section 319 Cr.P.C. and ask her to stand trial. It is only the merit of the statement under Section 244 Cr.P.C. which is relevant for utilizing power under Section 319 Cr.P.C. (Delivered by Hon'ble Vinod Prasad, J.) 1. A.C.J.M. Court No. 1, Muzaffarnagar has passed an illegal order on 16.7.2009 in Case No. 3351/9 of 2008 (Nazma Vs Nawab Arshad) under Sections 406, 506 I.P.C., P.S. Kotwali Nagar, District Muzaffar Nagar. It has rejected the prayer of the prosecution to summon Shabina under Section 319 Cr.P.C. for the reason that under Section 204 Cr.P.C. she was not summoned. A.C.J.M. has observed that if a person has not been summoned under Section 204 Cr.P.C. then, if his/her name appears in statement under Section 244 Cr.P.C., then the application under Section 319 Cr.P.C. is not maintainable in his/her respect. 2. I have heard learned counsel for the applicant and learned A.G.A. 3. The opinion by A.C.J.M. Court No. 1, Muzaffarnagar is wholly illegal. If a person has not been summoned under Section 204 Cr.P.C. and his name subsequently appears in statement recorded by the Court under Section 244 Cr.P.C. then application under Section 319 Cr.P.C. is maintainable. The statement under Section 244 Cr.P.C. recorded by the Court is an "evidence". The Court can always rely on such a statement and, therefore, prosecution can always utilize the said statement under 3 All] Nazma V. State of U.P. 1109 Section 244 Cr.P.C. to add any person as an accused to stand trial along with the already trying accused. Merely because Sabina, who was desired to be summoned by the prosecution under Section 319 Cr.P.C., was not summoned under Section 204 Cr.P.C. is no ground not to summon her under Section 319 Cr.P.C. and ask her to stand trial. It is only the merit of the statement under Section 244 Cr.P.C. which is relevant for utilizing power under Section 319 Cr.P.C. 4. Phraseology of the said Section 319 Cr.P.C. clearly indicates that the power to summon any person as an accused to face the trial along with already trying accused clearly indicates that during trial if it appears from the evidence that any person not been an accused has committed any offence for which such person can be tried together with the accused, the Court may proceed against such person for the offence which he appears to have been committed. The word "evidence" as has been used in Section 319 Cr.P.C. means the statement recorded in the Court in accordance with the provisions of the Evidence Act. The statement under Section 244 Cr.P.C is one of such statement which is an "evidence" as it has been recorded by a Court during a trial. 5. In such a view, the impugned order dated 16.7.2009 passed by A.C.J.M. Court No. 1, Muzaffarnagar in Case No. 3351/9 of 2008 (Nazma Vs Nawab Arshad )under Sections 406, 506 I.P.C. cannot be sustained and has to be set aside. 6. I have not heard Sabina in this application for the reason that prior to her summoning, she has got no right to be heard. 7. This criminal miscellaneous application is allowed. The impugned order dated 16.7.2009 is set aside. Case is remanded back to the A.C.J.M. Court No. 1, Muzaffarnagar to re decide the prayer of the prosecution for summoning Sabina as an accused under Section 319 Cr.P.C. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 04.12.2009 BEFORE THE HON'BLE A.P. SAHI, J. Civil Misc. Writ Petition No. 65951 of 2009 Ashwarya Pal Singh ...Petitioner Versus State of U.P. and others ...Respondent Counsel for the Petitioner: Sri Rajjan Lal Counsel for the Respondent: ,J.N. Maurya, C.S.C. U.P. Secondary Education Service Selection Board Rules 1998-Rule-13-Life of penal of selected list-petitioner was given offer to join the post three times by the management-by one pretext to other petitioner refused to join-on life of panel confined to one year-can not be extended for endless period-attitude of petitioner being illogical against the larger interest of student-deserve no sympathy-can not be allowed to abuse such privilege. Held: Para 6 This exercise of seeking extension cannot be permitted endlessly, that too even after the expiry of the period of the panel itself. The Statute provides for a