# Puneet Sharan Tiwari & Anr v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 1182
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-13
- **Case number:** Application U/S 482. No. 4744 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/puneet-sharan-tiwari-anr-v-state-of-u-p-anr-50515
- **Pages:** 4

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 323, 504, 506 & 308 - Code
of Criminal Procedure, 1973 - Section 161
- Against summoning order - Scope of -
Informant, P.W.-1 lodged first information
report against applicants and six other coaccused
persons,
alleging
they
were
illegally constructing toilet on their land -
When accused were prevented from doing
so, they started abusing him and beat
applicant with Lathi, Danda and fists,
when his mother reached for his rescue,
accused beat her causing fatal injuries -
After framing of charge, Court recorded
Statement of injured, P.W.-1, P.W.-2 and
eye
witness
P.W.-3
-
Considering
Statements of P.W.-1 to P.W.-3 recorded
in court in light of law laid down by
Hon'ble Apex Court regarding summoning
of persons who have not been named in
charge-sheet as accused u/s 319 Cr.P.C.,
thus, no illegality in impugned order
passed by trial court. (Para 2, 11, 13)

Application rejected. (E-14)

List of Cases cited:

## Text

1182 INDIAN LAW REPORTS ALLAHABAD SERIES
O R D E R

This application under Section
482 Cr.P.C is allowed and the entire
proceeding of the aforesaid case crime
number against the applicants is hereby
quashed.
----------
(2023) 8 ILRA 1182
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Application U/S 482. No. 4744 of 2023

Puneet Sharan Tiwari & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri K.S. Tiwari, Sri Vivek Tiwari

Counsel for the Opposite Parties:
G.A., Sri Surendra Kumar Chaubey

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 323, 504, 506 & 308 - Code
of Criminal Procedure, 1973 - Section 161
- Against summoning order - Scope of -
Informant, P.W.-1 lodged first information
report against applicants and six other coaccused
persons,
alleging
they
were
illegally constructing toilet on their land -
When accused were prevented from doing
so, they started abusing him and beat
applicant with Lathi, Danda and fists,
when his mother reached for his rescue,
accused beat her causing fatal injuries -
After framing of charge, Court recorded
Statement of injured, P.W.-1, P.W.-2 and
eye
witness
P.W.-3
-
Considering
Statements of P.W.-1 to P.W.-3 recorded
in court in light of law laid down by
Hon'ble Apex Court regarding summoning
of persons who have not been named in
charge-sheet as accused u/s 319 Cr.P.C.,
thus, no illegality in impugned order
passed by trial court. (Para 2, 11, 13)

Application rejected. (E-14)

List of Cases cited:

1. Naveen Vs St. of Har., passed in SLP (Crl) No.
3446 of 2022 on 01.11.2022

2. Manjeet Singh Vs St. of Har., 2021 AIR SC
4247

3. Hardeep Singh Vs St. of Punj. & ors., (2014)
3 SCC 92, (Para 105, 106)

4.
S.
Mohammad
Ispahani
Vs
Yogendra
Chandak, (2017) 16 SCC 226, (Para 35)

5. Rajesh Vs St. of Har., (2019) 6 SCC 368
(Delivered by Hon'ble Surendra Singh-I, J.)

1. Heard Shri K.S. Tiwari, learned
counsel for the applicants, Shri Surendra
Kumar Chaubey, learned counsel for
opposite party no. 2, Shri Prashant Saxena,
learned A.G.A. for the State and perused
the material available on record.

2. The present application under
section 482 Cr.P.C. has been filed for
quashing the order dated 07.01.2023 passed
by the Additional Sessions Judge-Ist,
Bhadohi at Gyanpur in S.T. No. 55 of
2019, State vs. Shaym Dhar Tiwari and
others, arising out of Case Crime No. 192
of 2017, under Sections 147, 323, 504, 506,
308
I.P.C.,
Police
Station
Koirauna,
District Bhadohi. Vide the impugned order,
the Trial Court has summoned applicants
under Section 319 Cr.P.C. for trial.

3. It has been submitted by the
learned counsel for the applicants that the
Trial Court has summoned them for trial
under the aforesaid sections without any
evidence. It has also been submitted that
8 All. Puneet Sharan Tiwari & Anr. Vs. State of U.P. & Anr.
1183
although they were named in the FIR but
the
Investigating
Officer
during
investigation did not find any evidence
against them and did not file charge sheet
against them. It has also been submitted
that in the FIR lodged by opposite party no.
2, Abhishek Tiwari against applicants and
six other accused persons, general role of
abusing and beating the informant has been
made against the applicants along with
other co-accused persons. No specific role
has been assigned to them. It is submitted
that applicants have been falsely implicated
due to previous enmity. It has also been
submitted that in the evidence recorded
under Section 161 Cr.P.C., the main role of
causing injury to opposite party no. 2 and
his mother, Meena Tiwari has been
assigned to co-accused Kripashankar and
applicants are not concerned with the
offence under Section 308 I.P.C. It has also
been submitted that there was no sufficient
evidence on record to summon applicants
for trial under Section 319 Cr.P.C. but the
Trial Court wrongly summoned them.

4. The applicants have place reliance
upon a judgment of the Apex Court in
Naveen vs. State of Haryana, passed in
SLP
(Crl)
No. 3446 of
2022 on
01.11.2022.

5. Learned counsel for opposite party
no. 2 as well as the learned A.G.A. have
opposed the application and submitted that
applicants are named in the FIR along with
six
other
co-accused
having
equally
participating in the offence. They have also
stated that the Investigating Officer had
wrongly dropped their names while filing
charge-sheet. It is submitted that after
framing of the charge, the prosecution
witnesses injured, P.W.-1-Abhishek Tiwari,
injured P.W.-2-Smt. Meena Tiwari and eye
witness P.W.-3-Jatashankar Tiwari have
supported the prosecution case and deposed
against the applicants as well as other coaccused of having complicity in the offence
during the course of which P.W.-1
Abhishek Tiwari and P.W.-2 Meena Tiwari
have received fatal injuries.

6. Learned counsel for opposite party
no. 2 have placed reliance upon the
judgment of Apex Court in Manjeet Singh
vs. State of Haryana, 2021 AIR SC 4247.

7. The scope and ambit of Section 319
Cr.P.C. has been well-settled by the
pronouncement of Constitution Bench of
the Hon'ble Apex Court in Hardeep Singh
Vs. State of Punjab and others, (2014) 3
SCC 92 and paras 105 and 106 which are
relevant for the purpose are reproduced
hereunder :

"105. Power under Section 319
Cr.P.C, 1973 is a discretionary and an
extraordinary 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
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
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., 1973. In Section 319 Cr.P.C.,
1973, 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., 1973 to
form any opinion as to the guilt of the
accused."

8. In S. Mohammad Ispahani Vs.
Yogendra Chandak (2017) 16 SCC 226,
this Court has observed and held as under :

"35. It needs to be highlighted
that when a person is named in the FIR by
the
complainant,
but
police,
after
investigation,
finds
no
role
of
that
particular person and files the charge-sheet
without implicating him, the Court is not
powerless, and at the stage of summoning,
if the trial court finds that a particular
person should be summoned as accused,
even though not named in the charge-sheet,
it can do so. At that stage, chance is given
to the complainant also to file a protest
petition urging upon the trial court to
summon other persons as well who were
named in the FIR but not implicated in the
charge sheet. Once that stage has gone, the
Court is still not powerless by virtue of
Section 319 of the Cr.P.C. However, this
section gets triggered when during the trial
some
evidence
surfaces
against
the
proposed accused."

9. In the case of Rajesh Vs. State of
Haryana
(2019)
6
SCC 368,
after
considering the observations made by this
Court in Hardeep Singh (supra) referred to
hereinabove,
this
Court
has
further
observed and held that even in a case where
the stage of giving opportunity to the
complainant to file a protest petition urging
upon the trial court to summon other
persons as well who were named in F.I.R.
but not implicated in the charge-sheet has
gone, in that case also, the Court is still not
powerless by virtue of Section 319 Cr.P.c.
and even those persons named in the F.I.R.
but not implicated in charge-sheet can be
summoned to face the trial provided during
the trial some evidence surfaces against the
proposed accused.

10. From the above rulings of Hon'ble
Supreme Court, it can be concluded that the
trial court can summon persons who have
been charge-sheeted as accused on the
basis of examination-in-chief of a witness.
It is not necessary that the witness should
be cross-examined before such person can
be summoned under Section 319 Cr.P.C.
The evidence required for summoning such
persons under Section 319 Cr.P.C. is more
than prima facie case but it is short of such
evidence which if not rebutted will result in
conviction of the persons summoned for
trial.

11. Informant, P.W.-1 Abhishek
Tiwari has lodged the first information
report giving rise to case crime no. 192 of
2017 against applications, Puneet Sharan
Tiwari and Amit Kumar and six other coaccused alleging that they were illegally
constructing the toilet on their land. When
the accused were prevented from doing so,
they started abusing him and beat the
applicant with Lathi, Danda and fists and
on being calling for help when his mother
reached for his rescue, the accused beat her
also
causing
fatal
injuries.
After
8 All. Furhe Khan @ Fakir Mohammad Khan & Ors. Vs. State of U.P. & Ors.
1185
investigation, charge sheet has been filed
against the applicants and other co-accused
persons. After framing of charge, the Court
recorded statement of injured, P.W.-1Abhishek Tiwari, injured P.W.-2-Smt.
Meena Tiwari and eye witness P.W.-3Jatashankar Tiwari.

12. From perusal of statements of
P.W.-1, P.W.-2 and P.W.-3 it transpires
that that on the alleged date, time and place
of occurrence applicants-accused along
with six other co-accused persons, in
furtherance of common intention hurled
abuses to the informant and his mother and
when he prevented them, they started
beating him and his mother with Lathi,
Danda and fists causing fatal injuries. The
incident
was
witnessed
by
P.W.-3
Jatashankar Tiwari.

13. Considering the impugned order
in light of the statements of P.W.-1, P.W.-2
and P.W.-3 recorded in the court in the
light of law laid down by the Hon'ble Apex
Court regarding the summoning of persons
who have not been named in the chargesheet as accused under Section 319 Cr.P.C.,
I
find
no
illegality,
irregularity
or
jurisdictional error in the impugned order
passed by the trial court.

14. The Trial Court has rightly passed
the impugned order dated 07.01.2023.
There is no error or illegality in the
impugned order and therefore, this Court
does not find any good ground to interfere
in the impugned order.

15. Accordingly, the application
under section 482 is rejected.

16. Interim order, if any, granted
earlier, stands vacated.
----------
(2023) 8 ILRA 1185
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.07.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 6461 of 2019

Furhe Khan @ Fakir Mohammad Khan &
Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Mohan Singh, Rajesh Singh

Counsel for the Opposite Parties:
G.A., Suresh Chandra Srivatava

Criminal Law - U. P. Revenue Code, 2006 -
Sections 116 & 207 - Code of Civil
Procedure, 1908 - Sections 94 & 151 -
Dispute concerning land likely to cause
breach of peace - Procedure - Scope of -
Land was in name of applicants and
opposite
party
no.
5,
co-sharers
in
property and property sold in favour of
opposite party no. 4, by registered sale
deed, dispute arose with apprehension
that applicants will make hindrance in
peaceful possession of opposite party no.
4 - Suit for partition instituted by
applicants no. 1 and 3 before SubDivisional Officer, decided in favour of
opposite party no. 4, thereafter appeal
filed, decided in favour of opposite party
no. 4, interim orders were in existence to
effect that parties shall maintain statusquo - Second appeal pending before Board
of Revenue, interim order continued -
Application u/s 145 (1), Cr.P.C. instituted
by opposite party no. 4, order passed by
Sub-Divisional
Magistrate
invoking
jurisdiction u/s 146 (1), Cr.P.C., property
attached ignoring earlier fact - If civil
dispute pending before court of civil
competence, with respect to any property,
no
justification
for
initiating
parallel