# Rajdhar v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 668
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-11
- **Case number:** Criminal Misc. Application No.1808 of 2000
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajdhar-v-state-of-u-p-and-others-40517
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 319Evidence during trail of case-can not be
treated as evidence collected during
enquiry or trail-after recording evidence
of two witness-three accused named in
F.I.R. acquitted-but by the same order
learned session judge summoned the
other
name
accused
including
the
applicant-held-the summoning order is
absolutely proper but the acquittal can
be
recorded
after
the
prosecution
evidences
completed,-hearing
of
prosecution
and
the
defence
is
completed-accordingly
the
order
of
acquittal set-a-side direction issued to
summon those accused persons alsocomplete the trail within period of six
months.

Held: Para 4

It
is
thus
evident
that
after
the
prosecution evidence is completed and
the examination of the accused and
hearing of the prosecution and the
defence, only an order of acquittal can
be recorded whereas in the present case
after the evidence of two witnesses
namely P.W. 1 Chandrawati and P.W.2
Santosh Kumar, named accused were
summoned. Simultaneously, an order of
acquittal
has
been
passed
by
the
Sessions Judge, which is absolutely
illegal and cannot be left to stand. "The
evidence
envisaged
in
Section
319
Cr.P.C. is the evidence rendered during
trial of the case and the material placed
before the committal court cannot be
treated as evidence collected during
inquiry or trial". In the circumstances, if
the Sessions Judge was of the opinion on
the basis of the evidence recorded
during the trial that the named accused
should also be tried, he was absolutely
within his right to summon the named
accused including the present applicant
but he could not have recorded a finding
of acquittal in respect of those three
accused, who were facing the trial.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2005
668
required the learned Standing Counsel to
seek
instructions
from
the
District
Magistrate, Sonbhadra as to whether any
final enquiry in terms of Rule 8 (a) of
the Rules of 1997, in respect of the
proceedings
initiated
against
the
petitioner, Shiv Devi, Pradhan of village
Jhanmsheela, District Sonbhadra, has
been submitted till date or not. The
learned Standing Counsel has made a
statement before this Court today on the
basis of the instructions so received from
the office of the District Magistrate,
Sonbhadra
that
final
enquiry
was
conducted by the Commissioner of
Division against the petitioner and the
Commissioner, in its report has held that
the charges as have been levelled against
the petitioner are found to be corrected.

7. From the instructions so received
by the learned Standing Counsel, it is
apparently clear that final enquiry as
contemplated under the provisions of
Rules of 1997 by a nominated District
Level Officer has not been conducted
against the Pradhan till date nor any final
enquiry report referable to the statutory
rules have been obtained by the District
Magistrate, Sonbhadra. It is further
apparent
that
the
Commissioner
of
Division was not nominated by the
District Magistrate as the district level
officer, to conduct the final enquiry
against the Pradhan under the provisions
of Rule of 1997. A period of three years
have
been
elapsed,
since
the
administrative and financial powers of the
Pradhan under Section 95 (1) (g) proviso
of the Act of 1947 were ceased. Fresh
elections of the Gram Pradhan are to be
held in near future.

8. In such circumstances, this Court
is prima facie of the opinion that the
respondent-authorities have failed to act
in
conformity
with
the
statutory
provisions, by not getting a final enquiry
conducted
against
the
Pradhan
(petitioner), by a nominated officer within
reasonable time. Therefore, they not be
permitted to continue with the ceasation
of the financial and administrative powers
of the Pradhan.

9. The petitioner has made out a
prima facie case for grant of interim
order.

10. Till the next date of listing the
operation of the order dated 2nd June,
2005 passed by the District Magistrate,
Sonbhadra shall remain stayed and
respondents shall not interfere with the
administrative and financial powers of the
Pradhan (petitioner).

11. A copy of this order shall be
supplied to the learned counsel for the
petitioner on payment of usual charges by
27th July, 2005.Interim Order Passed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No.1808 of
2000

Rajdhar

...Applicant
Versus
State of U.P. & others ...Opposite parties

Counsel for the Applicant:
Sri A.K. Srivastava

Counsel for the Opposite Parties:
A.G.A.
2 All] Rajdhar V. State of U.P. and others 669
Code of Criminal Procedure-Section 319Evidence during trail of case-can not be
treated as evidence collected during
enquiry or trail-after recording evidence
of two witness-three accused named in
F.I.R. acquitted-but by the same order
learned session judge summoned the
other
name
accused
including
the
applicant-held-the summoning order is
absolutely proper but the acquittal can
be
recorded
after
the
prosecution
evidences
completed,-hearing
of
prosecution
and
the
defence
is
completed-accordingly
the
order
of
acquittal set-a-side direction issued to
summon those accused persons alsocomplete the trail within period of six
months.

Held: Para 4

It
is
thus
evident
that
after
the
prosecution evidence is completed and
the examination of the accused and
hearing of the prosecution and the
defence, only an order of acquittal can
be recorded whereas in the present case
after the evidence of two witnesses
namely P.W. 1 Chandrawati and P.W.2
Santosh Kumar, named accused were
summoned. Simultaneously, an order of
acquittal
has
been
passed
by
the
Sessions Judge, which is absolutely
illegal and cannot be left to stand. "The
evidence
envisaged
in
Section
319
Cr.P.C. is the evidence rendered during
trial of the case and the material placed
before the committal court cannot be
treated as evidence collected during
inquiry or trial". In the circumstances, if
the Sessions Judge was of the opinion on
the basis of the evidence recorded
during the trial that the named accused
should also be tried, he was absolutely
within his right to summon the named
accused including the present applicant
but he could not have recorded a finding
of acquittal in respect of those three
accused, who were facing the trial.

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

1. List is revised. No one is present
for the applicant. Learned A.G.A. appears
for the State.

2. The applicant Rajdhar has filed
this application invoking inherent powers
for quashing the order dated 15.4.1999
passed by the Sessions Judge Chitrakoot
in Session Trial No.33 of 1993 under
Section 302 I.P.C. The First Information
Report was registered on 24.5.1991 at
7:40 a.m. against the five accused namely
Rajdhar s/o Vijyanand, Premika s/o
Vijyanand, Vishnu Dayal s/o Raghuman,
Hemraj s/o Mahesh and Dhanpat s/o
Raghuman. According to the narration of
the F.I.R., the husband of the complainant
Malkhan @ Bulbul was done to death in
the middle of intervening night 2324.5.1991.

After
completion
of
investigation, charge sheet was submitted
against
three
accused
Lavelesh
s/o
Khuraki, Dafola @ Raja Bhai and Mohan
s/o Mahesh Chaubey; all of them were not
named in the F.I.R. The Session Trial
commenced against the said three accused
under Sections 302, 120 I.P.C. Smt.
Chandrawati wife of the deceased was
examined as P.W.1, Santosh Kumar son
of the deceased was examined as P.W.2.
The learned Sessions Judge, Chitrakoot
summoned the present applicant Rajdhar
along with other two accused under
Section 319 Cr.P.C. While summoning
the accused, the learned Sessions Judge
recorded a finding that the prosecution
witnesses had made clear allegations
against the named accused in the First
Information Report and also stated that
the
Investigating
Officer
did
not
investigate the matter under the influence
of the accused and submitted the charge
sheet against different persons, who are
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
670
not named in the First Information
Report. Two named accused Vishnu
Dayal and Hemraj had already died before
the trial could be completed as such three
accused including the present applicant
were summoned. Specific allegations
were leveled against the investigating
officer by the two witnesses and affidavits
were also given by them, which is
Exhibits Ka-2 and Ka-5. Eyewitnesses
have clearly exonerated the three persons
namely Lavlesh, Dafola @ Raja Bhai and
Mohan
against
whom
the
police
submitted charge sheet. On the basis of
said statement, the named accused were
summoned to face the trial by means of
the impugned order. Argument advanced
on behalf of the applicant is that Section
319 Cr.P.C. contemplates summoning and
trial of such other persons, who have not
been facing the trial and the court feels
from the evidence recorded during the
trial or inquiry that those person should be
tried together with the other accused for
the offence, it can proceed against such
persons. Provision of Section 319 Cr.P.C.
gives ample power to the court to take
cognizance and add "any person" not
being accused before it and try him along
with accused persons sent up for the trial.
It has emphatically been stated that since
the three accused, who were facing the
trial have been acquitted by means of
common order dated 15.4.1999, nothing
remains to be tried and, therefore, the trial
has come to an end and the impugned
order stands vitiated in law. Since no trial
is pending, the learned Session Judge
could not exercise powers under Section
319 Cr.P.C. Counter affidavit has been
filed by the Sub Inspector Bajrangi Singh
to which rejoinder affidavit has also been
filed. No counter affidavit has been filed
by the opposite party no.3. The order
sheet dated 9.8.2000 shows that notices
have been received back after due service
but no counter affidavit has been filed on
behalf of the complainant. In the present
case, the learned Sessions Judge had
passed a composite order under Section
319 Cr.P.C. as well as by the same order
he has recorded a finding of acquittal in
respect of accused Lavlesh, Dafola @
Raja Bhai and Mohan. After hearing
counsel for the applicant and learned
A.G.A. for the State, it is necessary to
examine Section 319 Cr.P.C., which is
reproduced below:
319. Power to proceed against the
persons appearing to be guilty of
offence.- (1) Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence which he appears to have
committed.
(2) Where such person is not attending the
Court, he may be arrested or summoned,
as the circumstances of the case may
require, for the purpose aforesaid.
(3) Any person attending the Court
although not under arrest or upon a
summons, may be detained by such Court
for the purpose of the inquiry into, or trial
of, the offence which he appears to have
committed.
(4) Where the Court proceeds against any
person under sub-section (1) then-
(a)
the proceedings in respect of such
person shall be commenced afresh, and
the witnesses re-heard;
(b)
subject to the provisions of clause
(a), the case may proceed as if such
person had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced.
2 All] Rajdhar V. State of U.P. and others 671
3. Section 319 (4) (a) prescribes that
the proceedings in respect of such
persons, who have been summoned
during course of the trial on the basis of
evidence shall be commenced afresh, and
the witnesses be re-heard. Sub clause (b)
of clause 4 of Section 319 Cr.P.C. entitles
the court to proceed against the newly
added accused as they were accused at the
time when the court took cognizance of
the offence. In the instant case, the
present accused Rajdhar along with four
other accused were named in the First
Information
Report
and
specific
allegations were leveled against them.
The learned Sessions Judge has very
categorically discussed the statement of
the two witnesses P.W. 1 and P.W.2. on
the basis of which, he had arrived at the
conclusion that the named accused should
also be tried. I do not think that there is
any illegality in that part of the judgment.
However,
the
Sessions
Judge
has
completely erred in law in acquitting the
three accused, who were sent up for trial
by means of common judgment and order
on the basis of evidence of P.W.1 and
P.W.2 alone. Perusal of the charge sheet
shows that there are as many as 34
witnesses
mentioned,
which
the
prosecution proposed to examine. In the
circumstances, before the prosecution has
completed its evidence and arguments are
advanced after an opportunity for defence
is afforded, the trial is still in progress and
it cannot be said to be completed. Learned
Sessions Judge erred in law in recording
the finding of acquittal even before the
trial was completed and that part of the
judgment
is
against
the
procedure
provided in Chapter XVIII of the
Criminal Procedure Code. This chapter
provides "trial before the court of sessions
which begins from the opening case of
prosecution". Section 232 Cr.P.C. defines
acquittal:-

If, after taking the evidence for the
prosecution, examining the accused and
hearing the prosecution and the defence
on the point, the Judge considers that
there is no evidence that the accused
committed the offence, the Judge shall
record an order of acquittal.

4. It is thus evident that after the
prosecution evidence is completed and the
examination of the accused and hearing of
the prosecution and the defence, only an
order of acquittal can be recorded whereas
in the present case after the evidence of
two
witnesses
namely
P.W.
1
Chandrawati and P.W.2 Santosh Kumar,
named
accused
were
summoned.
Simultaneously, an order of acquittal has
been passed by the Sessions Judge, which
is absolutely illegal and cannot be left to
stand. "The evidence envisaged in
Section 319 Cr.P.C. is the evidence
rendered during trial of the case and the
material placed before the committal
court cannot be treated as evidence
collected during inquiry or trial". In the
circumstances, if the Sessions Judge was
of the opinion on the basis of the evidence
recorded during the trial that the named
accused should also be tried, he was
absolutely within his right to summon the
named accused including the present
applicant but he could not have recorded a
finding of acquittal in respect of those
three accused, who were facing the trial.
Looking to the facts and circumstances of
the case, the application is finally
disposed of and the case is remanded to
the learned District and Sessions Judge,
Chitrakoot to issue notices to the three
accused, who were facing trial and have
been acquitted and thereafter commence
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
672
the trial afresh in respect of the present
applicant along with other two accused,
who have been summoned under Section
319 Cr.P.C. Learned Sessions Judge is
directed
to
afford
an
appropriate
opportunity to the prosecution to produce
as many witnesses as it thinks proper after
affording an opportunity to the defence
and after completion of the arguments, the
court shall pass final judgment. The order
dated 15.4.1999 passed in Session Trial
No.33 of 1993 is set aside to the extent of
acquittal of the three accused by means of
the common order. I am conscious of the
fact that the three accused namely
Lavlesh, Dafola and Mohan have not been
arrayed as a party as such I direct the
learned Sessions Judge to issue notice to
the three accused to face the trial but they
may not be taken into custody as they
were already on bail at the time when the
relevant order was passed on 15.4.1999.
Since the sureties were discharged, they
will only be required to furnish fresh
bonds.

5.

Learned
Sessions
Judge,
Chitrakoot is further directed to complete
the trial expeditiously preferably within a
period of six months from the date a
certified copy of this order is received.
Registry is directed to send a certified
copy of this order to the District Judge
Chitrakoot for compliance of this order so
that Session Trial No.33 of 1993 be
completed within the stipulated period.

6. With the aforesaid observations,
this application is finally disposed of and
the case is remanded for afresh trial in
accordance with the directions given
hereinabove.
Application finally disposed of.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No. 8049 of
1997

Ganga Ram Singh

...Applicant
Versus
State of U.P. and others ...Respondents

Counsel for the Applicant:
Sri Dev Raj

Counsel for the Respondents:
Sri Muktar Alam
A.G.A.

Code of Criminal Procedure S. 482readwith Negotiable Instrument ActSection 138-Cheque dishonored due to
paucity of funds-after recording the
statements under section 200 and 202
Cr.P.C.-accused
were
summoned-but
subsequently discharged on the ground
of pre mature-in revision also get the
same fate-held- both the courts below
committed great error-They should have
wait and allowed the complainant the
establish his case-cognigence should
have taken after expiry of the Stipulated
period-impugned
order
quashednecessary direction issued.

Held: Para 4

Looking
to
the
entire
facts
and
circumstances of the case and hearing
the counsel for respective parties, I feel
that in view of the decisions of the Apex
Court, the trial court should have waited
and allowed the complainant to establish
its case or cognizance should have been
taken after expiry of the stipulated
period,
instead
of
dismissing
the
complaint out right as premature. The
court should have taken cognizance only
after necessary period had lapsed in