# Rajendra Nath Bajpai v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-20
- **Case number:** U/S 482/378/407 No. 3665 of 2010
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-nath-bajpai-v-state-of-u-p-anr-45634
- **Pages:** 6

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 319 - Scope-
Power under Section 319 Cr.P.C. can be
exercised by Court against a person not named
in First Information Report or no charge-sheet
is filed by Police against him and the accused
can be summoned only on the basis of
examination-in-chief of witness and the Court
need not wait for cross-examination.
A person not named in the FIR or in the
chargesheet can be summoned by the Court
u/s 319 Cr.Pc only on the basis of examination-
in- chief of the witness.

B.
Criminal
Law-Code
of
Criminal
Procedure, 1973- Section 319- Degree of
satisfaction of Court for summoning the
accused under Section 319 Cr.P.C- the tests
are not only same as applicable for framing
charge, but a little more in degree. Mere taking
of name is not sufficient to exercise power
under Section 319 Cr.P.C. but there must be
something more i.e. evidence must be such
wherefrom on judicious consideration, Court
must be satisfied that such person can be tried
alongwith accused already facing trial. It
cannot be said that Trial Court, in the case in
hand, has exercised jurisdiction casually or in a
cavalier manner and there is no appropriate
and reasonable evidence to summon applicant.
Name of the person who has filed the
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
Application is different from the name of the
person summoned by means of the impugned
order.
Therefore,
this
application,
even
otherwise, is not sustainable. (Para 12,13,15)

Application u/s 482 rejected.

Case law discussed: -

## Text

2 All. Rajendra Nath Bajpai Vs. State of U.P. & Anr.
1151
and stated that the Act provided a
limitation of five years for the declaration
of any candidate as incapable. Alongwith
the written submissions which have been
made a part of the record of the case,
learned counsel submitted a certified copy
of the order sheet of the case and stated
that the question of limitation could not
have been raised in the manner the
petitioner had raised and, therefore,
submitted that the order passed by the
Election Tribunal was absolutely correct.

11. Having heard the learned counsel
for the parties, I am of the view that an
Election Petition could not have been filed
beyond the Limitation provided. This has
also been held in the judgement reported in
2013 (2) AWC 1649 Smt. Sharda Devi vs.
State of U.P. Further, I am of the view that
even if the defence of limitation is not taken,
under Section 3(1) of the of the Limitation
Act the Court itself could have looked into
the question of limitation and could have
refused to proceed with the Election Petition.
Still further, I am of the view that a question
of limitation is a question of jurisdiction and
could have been raised at any point of time
while the case was being proceeded with.

12. Under such circumstances, the
order dated 3.12.2019 by which the
application no. 111C was rejected and the
order dated 21.7.2016 by which the delay in
filing the Election Petition was condoned
both are being quashed.

13. Since the order dated 21.7.2016 is
being set aside, the Election Petition being
Election Petition No. 43 of 2016 cannot now
be further proceeded with.

14. With the above observation, the
writ petition stands allowed.
----------
(2020)02ILR A1151

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

U/S 482/378/407 No. 3665 of 2010

Rajendra Nath Bajpai ...Applicant
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Applicant:
Kapil Misra

Counsel for the Opposite Party:
Govt. Advocate

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 319 - Scope-
Power under Section 319 Cr.P.C. can be
exercised by Court against a person not named
in First Information Report or no charge-sheet
is filed by Police against him and the accused
can be summoned only on the basis of
examination-in-chief of witness and the Court
need not wait for cross-examination.
A person not named in the FIR or in the
chargesheet can be summoned by the Court
u/s 319 Cr.Pc only on the basis of examination-
in- chief of the witness.

B.
Criminal
Law-Code
of
Criminal
Procedure, 1973- Section 319- Degree of
satisfaction of Court for summoning the
accused under Section 319 Cr.P.C- the tests
are not only same as applicable for framing
charge, but a little more in degree. Mere taking
of name is not sufficient to exercise power
under Section 319 Cr.P.C. but there must be
something more i.e. evidence must be such
wherefrom on judicious consideration, Court
must be satisfied that such person can be tried
alongwith accused already facing trial. It
cannot be said that Trial Court, in the case in
hand, has exercised jurisdiction casually or in a
cavalier manner and there is no appropriate
and reasonable evidence to summon applicant.
Name of the person who has filed the
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
Application is different from the name of the
person summoned by means of the impugned
order.
Therefore,
this
application,
even
otherwise, is not sustainable. (Para 12,13,15)

Application u/s 482 rejected.

Case law discussed: -

1. Hardeep Singh Vs. St. of Pun. & ors. (2014)
3 SCC 92

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

3. Shiv Prakash Mishra Vs. St. of U.P & ors
(2019) 7 SCC 806

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Sri Jyotindra Misra, Senior
Advocate, assisted by Sri Kapil Misra,
Advocate has appeared for applicant and
learned A.G.A. for State of U.P. Opposite
party 2 was issued notice and as per report
dated 29.11.2010 submitted by Chief
Judicial Magistrate, Bareilly, notice has
been served upon opposite party 2 but he
has not chosen to appear either in person
or through counsel. In fact opposite party 2
is an officer of Police Department, hence
learned A.G.A. stated that he represent
both
opposite
parties.
In
the
circumstances, I have heard the matter
finally and this application is being
decided by this judgment.

2. This is an application filed under
Section 482 Cr.P.C. with the prayer to
quash order dated 03.9.2004 passed by Sri
Shamshad
Ali,
Additional
Sessions
Judge/F.T.C. No.2, Lakhimpur Khiri in
Sessions Trial No.610 of 2001 arising
from Case Crime No.135 of 1998
summoning applicant under Section 319
Cr.P.C., for trial in offence under Section
271, 201 IPC.

3. Facts giving rise to this application
are that a First Information Report
(hereinafter referred to as "FIR") being
Case Crime No.135 of 1998 dated
14.01.1997 was registered at Police
Station Kotwali, Lakhimpur Khiri, under
Sections 218, 201, 217 IPC on the
information given by Surendra Singh
Dongari,
Inspector
Mahila
Sahayata
Prakoshth, Apraadh Anusandhan Vibhag,
Zonal
Office,
Bareilly
alleging
that
investigation in Case Crime No.35/97
under Section 498A, 304B IPC read with
3/4 Dowry Prohibition Act was conducted
by Informant against accused Anil Kumar
son of Hari Nandan Prasad, Hari Nandan
Prasad son of Jhamman Lal, Mahendra
Pratap son of Rajendra Prasad and
Rajendra Prasad son of Jhamman Lal
resident of Village Sakethu, Police Station
Neemgaon, District Lakhimpur Khiri.
Informant Investigting Officer found that
Sunita alias Anita Devi daughter of
Jayendra
Singh,
who
was
Complainant/Informant of FIR, registered
as Case Crime No.35 of 1997 was
admitted in Government Hospital, Sadar,
Lakhimpur Khiri on 14.01.1997 for
treatment of burn injuries. Dr. A.V.Singh
of the Hospital sent a written memo
through Ward Boy Shri Ram for recording
statement of Smt. Sunita Devi, victim,
which was entered by Constable No.33
Manmohan Dayal in G.D. No.5 dated
14.01.1997 at 1:15 A.M. As per opinion of
Dr. A.V.Singh, victim was burnt at the
level of Grade 1-C and Grade-III and at
that time she was whispering something.
Head
Constable
Manmohan
Dayal
informed the then Additional Tehsildar Sri
Chhote Lal for recording her statement
through Home Guard Shiv Kumar at 2:15
A.M., but, Chhotey Lal, Additional
Tehsildar reached hospital with delay of
almost 10 hours i.e. at 11.30 A.M. and at
2 All. Rajendra Nath Bajpai Vs. State of U.P. & Anr.
1153
that time, Dr. S.M.Malik was on duty. The
aforesaid Additional Tehsildar recorded
statement
of
victim
without
having
medical certificate of condition of victim
from aforesaid doctor and also did not
record statement as spoken by her i.e. Smt.
Sunita Devi (the victim) with an intention
to help accused persons and recorded
wrong dying declaration. FIR, therefore,
was lodged against Sri Chhotey Lal,
Tehsildar for committing offence under
Sections 218, 201, 217 IPC. After
investigation, charge sheet was submitted,
against Chhotey Lal who, by that time, had
retired, vide charge sheet no.135/98 under
Sections 217, 218, 201 IPC and criminal
case was registered as Sessions Trial
No.610 of 2001.

4. In respect of Case Crime No.35 of
1997 also charge sheet was submitted
against Anil Kumar and others under
Section 304-B IPC and criminal case was
registered as Sessions Trial No. 349 of
1998. At the relevant time Chhotey Lal
was Additional Tehsildar, Lakhimpur
Khiri and D.N.Bajpai was Tehsildar Sadar,
Lakhimpur Khiri.

5. Trial Court found that information
sent by Head Constable Manmohan Dayal
Verma at 1.15 A.M. on 14.01.1997 was
forwarded to Tehsildar Sadar, Lakhimpur
Khiri, which was served upon him through
Home
Guard
Shiv
Kumar.
After
communicating information, his (Shiv
Kumar) return was registered in Report
No.5 at 2.15 a.m. on 14.01.1997. These
documents were before Trial Court. Thus,
information
for
recording
dying
declaration was received by the then
Tehsildar Sadar, Lakhimpur Khiri between
1.15 to 2.15 A.M. on 14.01.1997 and at
that time Sri D.N.Bajpai was Tehsildar
Sadar,
Lakhimpur
Khiri.
In
these
circumstances, Trial Court found that
partisan stand was taken by authorities to
help D.N.Bajpai and to implicate Chhotey
Lal, Additional Tehsildar. Since Chhotey
Lal also could not have escaped from
culpability for the reason that he, when
informed, was also responsible to reach
hospital for recording statement at the
earliest but he also delayed the matter and
recorded a wrong statement. In the
circumstances, Trial Court, on the basis of
evidence on record, found D.N.Bajpai, the
then Tehsildar Sadar, Lakhimpur Khiri and
Dr. S.K.Malik also guilty of offence under
Section 217 and 201 IPC hence summoned
both of them vide impugned order dated
03.09.2004.

6. Learned counsel for applicant
contended that when Investigating Officer
found only Chhotey Lal, Additional
Tehsildar guilty for offence under Sections
217, 218, 201 IPC, summoning of
applicant for the offence under Section
217, 201 IPC is illegal and founded on no
evidence whatsoever.

7. Learned counsel for parties,
however, could not dispute that the
question, whether during trial if Trial
Court found any material, can summoned
a person not named in charge sheet in
exercise of power under Section 319
Cr.P.C., has been subject matter of
consideration before a Constitution Bench
in Hardeep Singh Vs. State of Punjab
and others 2014 (3) SCC 92, in which
Court examined following five questions:

"(i) What is the stage at which
power under Section 319 Cr.P.C. can be
exercised?

(ii) Whether the word "evidence"
used in Section 319 (1) Cr.P.C. could only
mean
evidence
tested
by
cross-
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
examination or the court can exercise the
power under the said provision even on
the basis of the statement made in the
examination-in-chief
of
the
witness
concerned?

(iii)
Whether
the
word
"evidence" used in Section 319(1) Cr.P.C.
has been used in a comprehensive sense
and includes the evidence collected during
investigation or the word "evidence" is
limited to the evidence recorded during
trial?

(iv) What is the nature of the
satisfaction required to invoke the power
under Section 319 Cr.P.C. to arraign an
accused? Whether the power under
Section 319(1) Cr.P.C. can be exercised
only if the court is satisfied that the
accused summoned will in all likelihood be
convicted?

(v) Does the power under
Section 319 Cr.P.C. extend to persons not
named in the FIR or named in the FIR but
not
charged
or
who
have
been
discharged?"

8. The aforesaid questions have been
answered in para 117 of judgment as
under:

"Question Nos. (i) and (iii)

A. In Dharam Pal and Ors. v.
State of Haryana and Anr. 2004 (13) SCC
9, the Constitution Bench has already held
that after committal, cognizance of an
offence can be taken against a person not
named as an accused but against whom
materials are available from the papers
filed by the police after completion of
investigation. Such cognizance can be
taken under Section 193 Cr.P.C. and the
Sessions Judge need not wait till 'evidence'
under Section 319 Cr.P.C. becomes
available for summoning an additional
accused.

Section
319
Cr.P.C.,
significantly, uses two expressions that
have to be taken note of i.e. (1) Inquiry (2)
Trial. As a trial commences after framing
of charge, an inquiry can only be
understood to be a pre-trial inquiry.
Inquiries under Sections 200, 201, 202
Cr.P.C.; and under Section 398 Cr.P.C.
are species of the inquiry contemplated by
Section 319 Cr.P.C. Materials coming
before the Court in course of such
enquiries can be used for corroboration
of the evidence recorded in the court after
the trial commences, for the exercise of
power under Section 319 Cr.P.C., and
also to add an accused whose name has
been shown in Column 2 of the chargesheet.

In view of the above position the
word 'evidence' in Section 319 Cr.P.C.
has to be broadly understood and not
literally i.e. as evidence brought during a
trial.

Question No. (ii)

A. Considering the fact that
under Section 319 Cr.P.C. a person
against whom material is disclosed is only
summoned to face the trial and in such an
event under Section 319(4) Cr.P.C. the
proceeding against such person is to
commence from the stage of taking of
cognizance, the Court need not wait for
the
evidence
against
the
accused
proposed to be summoned to be tested by
cross-examination.

Question No. (iv)

A.
Though
under
Section
319(4)(b)
Cr.P.C.
the
accused
subsequently impleaded is to be treated as
if he had been an accused when the Court
initially took cognizance of the offence, the
degree of satisfaction that will be
required for summoning a person under
Section 319 Cr.P.C. would be the same as
for framing a charge. The difference in
2 All. Rajendra Nath Bajpai Vs. State of U.P. & Anr.
1155
the degree of satisfaction for summoning
the original accused and a subsequent
accused is on account of the fact that the
trial may have already commenced
against the original accused and it is in
the course of such trial that materials are
disclosed against the newly summoned
accused. Fresh summoning of an accused
will result in delay of the trial therefore
the degree of satisfaction for summoning
the accused (original and subsequent) has
to be different.

Question No. (v)

A. A person not named in the
FIR or a person though named in the FIR
but has not been charge-sheeted or a
person who has been discharged can be
summoned under Section 319 Cr.P.C.
provided from the evidence it appears that
such person can be tried along with the
accused already facing trial. However,
insofar as an accused who has been
discharged is concerned the requirement
of Sections 300 and 398 Cr.P.C. has to be
complied with before he can be summoned
afresh." (Emphasis added)

9. The aforesaid judgment in fact
lays down very clearly that power under
Section 319 Cr.P.C. can be exercised by
Court against a person not named in First
Information Report or no charge-sheet is
filed by Police against him and the
accused can be summoned only on the
basis of examination-in-chief of witness
and need not wait for cross-examination
etc. With regard to degree of satisfaction
of Court for summoning the accused under
Section 319 Cr.P.C, Court has said that
test are not only same as applicable for
framing charge, but a little more in degree.

10. The above view was followed in
Brijendra Singh and others Vs. State of
Rajasthan (2017) 7 SCC 706 holding:

" ... since it is a discretionary
power given to the court Under Section
319 Code of Criminal Procedure 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
charge-sheet 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." (Emphasis added)

11. Recently in Shiv Prakash
Mishra Vs. State of Uttar Pradesh and
others (2019) 7 SCC 806, Court relying
on the above authorities as also Kailash
Vs. State of Rajasthan and another
(2008) 14 SCC 51 held as under:

"The
standard
of
proof
employed for summoning a person as an
Accused person under Section 319 Code
of Criminal Procedure is higher than the
standard of proof employed for framing a
charge against the Accused person. The
power Under Section 319 Code of
Criminal Procedure should be exercised
sparingly. As held in Kailash Vs. State of
Rajasthan and another (2008) 14 SCC 51,
"the power of summoning an additional
Accused Under Section 319 Code of
Criminal Procedure should be exercised
sparingly. The key words in Section are "it
appears
from
the
evidence"."any
person"."has committed any offence". It
is not, therefore, that merely because
some witnesses have mentioned the name
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
of such person or that there is some
material
against
that
person,
the
discretion Under Section 319 Code of
Criminal Procedure would be used by the
court." (Emphasis added)

12. The exposition of law, discussed
above, clearly shows that mere taking of
name is not sufficient to exercise power
under Section 319 Cr.P.C. but there must
be something more i.e. evidence must be
such
wherefrom
on
judicious
consideration, Court must be satisfied that
such person can be tried alongwith
accused already facing trial.

13. As I have already discussed, from
the material available Trial Court has
referred to reliable evidence, the fact that
information was actually conveyed to the
then Tehsildar Sadar Lakhimpur Khiri i.e.
Sri
D.N.Bajpai
and
evidence
was
sufficient to show that he did not exercise
due care to reach hospital immediately and
without wasting time that too in a serious
matter where a married woman, sustained
burn injuries, was admitted in hospital and
considering her condition, doctor had
already sent memo for recording her
statement by Magistrate. Thus, it cannot be
said that Trial Court, in the case in hand,
has exercised jurisdiction casually or in a
cavalier
manner
and
there
is
no
appropriate and reasonable evidence to
summon applicant.

14. In view thereof, objection in
challenge to summoning order, raised by
learned Senior Counsel that there is no
evidence whatsoever, has no force and
rejected.

15. There is another aspect of the
matter. Applicant's name is Rajendra Nath
Bajpai, but, I find from record that it is
D.N.Bajpai who was the then Tehsildar,
Sadar and has been summoned by means
of impugned order dated 03.9.2004 passed
by Additional Sessions Judge/Fast Track
Court-2, Lakhimpur Khiri. Certified copy
of impugned order also mention the name
of the then Tehsildar Sadar Lakhimpur
Khiri as 'D.N.Bajpai'. I do not find any
order of summoning passed on 03.9.2004
to Rajendra Nath Bajpai, who has filed this
application. Therefore, this application, at
the instance of Rajendra Nath Bajpai, in
my
view,
even
otherwise,
is
not
sustainable.

16. Application is accordingly
rejected.
----------
(2020)02ILR A1156

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.

Application U/S 482 Cr.P.C. No. 44382 of 2019

Shikher Bhandari ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Arvind Srivastava

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

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 482 - Prayer for
quashing F.I.R- Maintainability - Issue
regarding the maintainability of quashing of
FIR in exercise of powers under Section 482
Cr.P.C. by this Court was referred and decided
by a Full Bench of this Court in the case of Ram
Lal Yadav Vs. State of U.P. wherein it has been
categorically held that unless there is a matter
pending before the subordinate court, no