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

- **Citation:** (2005) 4 ILRA 1198
- **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-40600
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section-319Evidence rendered during trail of casecan not be treated as evidence collected
during enquiring or trail-after recording
statements of two witness-three accused
named in FIR acquitted-but by the same
order learned session judge summond
the other-named accused including the
applicant-held-summoning
order
absolutely proper but the acquittal can
be recorded after the prosecution's
evidence
is
completed-hearing
of
prosecution and the defence completedaccordingly
the
order
of
4 All] Rajdhar V. State of U.P. and others
1199
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

1198 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
question of maintainability of this petition
is concerned, in the present case the
controversy in respect of the assessment
of the taxes is not involved but the
controversy of conversion of a private
vehicle into a maxi cab is involved. If the
vehicle is not legally converted into a
maxi cab, the taxes imposed by the
Transport authority are not permissible in
the eyes of law. Therefore, in this case it
is not required to approach the Transport
Commissioner
in
respect
of
the
assessment of tax, therefore, this petition
is maintainable.

14. In view of the above discussion
the impugned order dated 23.3.2004
passed by the learned Additional C.J.M. -
I Ballia and the judgment and order dated
29.5.2004 passed by the IVth Additional
Sessions
Judge,
Ballia
in
Criminal
Revision No. 139 of 2004 are not perfect
orders as they have not been passed after
considering the main controversy of
conversion of the vehicle into a maxi cab.
Therefore, the impugned orders are
hereby set aside and assessment of taxes
as Rs.1,79,809/- shall not be realized from
the petitioner.

15. But the vehicle of the petitioner
was intercepted by the transport authority
which was violating the provision of
section 66 of the Act because by that time
12 passengers were carrying by that
vehicle, therefore, the petitioner is liable
to pay the penalty as provided by section
207 of the Act. In the present case it has
come in evidence that prior the present
seizure of the vehicle, it was intercepted
on 27.3.1998 also and penalty of
Rs.3500/- was paid by the petitioner and
the vehicle was released by the A.R.T.O.
Ballia in his favour on 3.4.1998 with a
warning. Therefore, the petitioner is liable
to pay the penalty i.e. Rs.10,000/- as
provided under section 192 A of Motor
Vehicles Act, 1988.

16. Thereafter, it is directed that the
petitioner
shall
deposit
a
sum
of
Rs.10,000/- as penalty at the office of
A.R.T.O. Ballia, in case above penalty is
deposited, the vehicle in question i.e.
commander jeep bearing registration no.
U.P. 60-A/0919 shall be released in
favour of the petitioner forthwith.

Accordingly this petition is allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2005

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

Criminal Misc. Application No. 1808 of
2000

Rajdhar

...Applicants
Versus
State of U.P. and others...Opp. Parties

Counsel for the Applicants:
Sri A.K. Srivastava

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

Code of Criminal Procedure-Section-319Evidence rendered during trail of casecan not be treated as evidence collected
during enquiring or trail-after recording
statements of two witness-three accused
named in FIR acquitted-but by the same
order learned session judge summond
the other-named accused including the
applicant-held-summoning
order
absolutely proper but the acquittal can
be recorded after the prosecution's
evidence
is
completed-hearing
of
prosecution and the defence completedaccordingly
the
order
of
4 All] Rajdhar V. State of U.P. and others
1199
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
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 who the police submitted
charge sheet. On the basis of said
1200 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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 has
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 no 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.

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
4 All] Rajdhar V. State of U.P. and others
1201
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 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
1202 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2005

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 45102 of 2003

Rajendra Kumar Karanwal
...Petitioner
Versus
Smt. Kamlesh Garg and others

 ...Respondents

Counsel for the Petitioner:
Sri Some Narayan Mishra
Km. Rama Goel

Counsel for the Respondents:
Sri Manoj Kumar Sharma
Sri Namit Sharma

U.P. Urban Buildings (Regulation of
letting Rent and Eviction) Act 1972Section 30 (1)-Scope of Revision-Order
permitting
the
petitioner-tenant
to
deposit the rent in court-in case of
refusal to accept the rent by the land
lord-District
Judge
by
impugned
judgment-exercised its power of revision
and set-aside the order passed by the
Civil
Judge
(J.D.)-held-in
view
of
decision of Anwar Ali's case-Revisional
Court
acted
beyond
jurisdiction-No
appeal or Revision maintainable against
the order passed by Munsif under
Section 30 (1) of the Act.

Held: Para 4

In view of the provisions of Section 30
(1) and in view of the decision of Anwar
Ali (supra), in my opinion, the revisional
court has acted beyond jurisdiction in
entertaining the revision under Section
115 of the C.P.C.
Case law discussed:
2002 (2) ARC-562 relied on.
1964 ALJ-256

(Delivered by Hon'ble Anjani Kumar, J.)

1.

The
petitioner-tenant
has
challenged the order dated 24.3.2003
passed by the Special/Additional District
Judge, Saharanpur in Civil Revision No.
11 of 1997 (Annexure 6 to the writ
petition).

2. Smt. Pamod Kumari and two
minor children filed an application under
Section 30 (1) of the Act in the court of
Civil Judge (Junior Division), Saharanpur