# Rajesh Singh & Ors Revisionists v. The State of U.P. & Anr

- **Citation:** (2014) 1 ILRA 393
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-21
- **Case number:** Criminal Revision No. 154 of 2014
- **Bench:** Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-singh-ors-revisionists-v-the-state-of-u-p-anr-42784
- **Pages:** 5

## Headnote

Cr. P.C. Section 319-Summoning without
recording
satisfaction-applicant
being
natural father having no concern with
family
of
adopted
son-allegation
surrounded with demand of dowry only by
adopted son-non consideration thereof-
394 INDIAN LAW REPORTS ALLAHABAD SERIES

vitiated-order quashed direction for fresh
consideration given.

Held:Para-9
A perusal of the evidence reveals that it has
been accepted by P.W.1 that Pravesh Singh
was adopted by Bachachu Singh. It has also
come in evidence that there was demand of
motorcycle and Rs.50,000/-only. No other
persons was beneficiary of the demand of
the motorcycle except Pravesh Singh. These
facts should have been considered by the
trial Court while passing under Section 319
Cr.P.C.

Case Law Discussed:
[2014(1)SCALE 241]; 2013(11)SCALE 23; AIR 2009
SC 2792; AIR 2009 SC 1248; AIR 2000 SC 1127.

## Text

1 All] Rajesh Singh & Ors. Vs. The State of U.P. & Anr.

393

(3) the amendment should not cause
such prejudice to the other side which
cannot be compensated adequately in
terms of money;

(4) refusing amendment would in
fact lead to injustice or lead to multiple
litigation;

(5) whether the proposed amendment
constitutionally or fundamentally changes
the nature and character of the case; and

(6) as a general rule, the court should
decline amendments if a fresh suit on the
amended claims would be barred by
limitation on the date of application.

These are some of the important
factors which may be kept in mind while
dealing with application filed under Order
6 Rule 17. These are only illustrative and
non exhaustive.""

23. As regards the belated amendment is
concerned the said issue is also no more res
integra. The Supreme Court in a long line of
decisions has already held that a belated
amendment can also be considered subject to the
certain conditions. In J. Samuel and others v.
Gattu Mahesh and others, (2012) 2 SCC 300;

"23. Though the counsel for the
appellants have cited many decisions, on
perusal, we are of the view that some of
those cases have been decided prior to the
insertion of Order 6 Rule 17 with proviso or
on the peculiar facts of that case. This Court
in various decisions upheld the power that in
deserving cases, the Court can allow delayed
amendment by compensating the other side
by awarding costs. The entire object of the
amendment to Order 6 Rule 17 as introduced
in 2002 is to stall filing of application for
amending a pleading subsequent to the
commencement of trial, to avoid surprises
and that the parties had sufficient knowledge
of other's case. It also helps checking the
delays in filing the applications. [Vide
Aniglase
Yohannan
v.
Ramlatha3,
Ajendraprasadji N. Pandey v. Swami
Keshavprakeshdasji N4, Chander Kanta
Bansal v. Rajinder Singh Anand5, Rajkumar
Gurawara v. S.K. Sarwagi and Co. (P) Ltd.6,
Vidyabai v. Padmalatha7, and Man Kaur v.
Hartar Singh Sangha8.]"

24. Bearing the aforesaid principle
in the mind, the reasons mentioned by the
trial court and the revisional court
rejecting the amendment application on
the ground of the delay and the limitation
is unsustainable. Accordingly, both the
orders dated 06.11.2006 and 27.09.2007
are set aside. The matter is remitted to the
Trial Court to consider the amendment
application afresh in accordance with law.

25. Thus, the writ petition is allowed.

26. No order as to costs.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.04.2014

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Criminal Revision No. 154 of 2014

Rajesh Singh & Ors.... Revisionists
Versus
The State of U.P. & Anr. .....Opposite Parties

Counsel for the Revisionists:
Shiv Pal Singh

Counsel for the Opposite Parties:
G.A.

Cr. P.C. Section 319-Summoning without
recording
satisfaction-applicant
being
natural father having no concern with
family
of
adopted
son-allegation
surrounded with demand of dowry only by
adopted son-non consideration thereof-
394 INDIAN LAW REPORTS ALLAHABAD SERIES

vitiated-order quashed direction for fresh
consideration given.

Held:Para-9
A perusal of the evidence reveals that it has
been accepted by P.W.1 that Pravesh Singh
was adopted by Bachachu Singh. It has also
come in evidence that there was demand of
motorcycle and Rs.50,000/-only. No other
persons was beneficiary of the demand of
the motorcycle except Pravesh Singh. These
facts should have been considered by the
trial Court while passing under Section 319
Cr.P.C.

Case Law Discussed:
[2014(1)SCALE 241]; 2013(11)SCALE 23; AIR 2009
SC 2792; AIR 2009 SC 1248; AIR 2000 SC 1127.

(Delivered by Hon'ble Arvind Kumar
Tripathi (II), J.)

1. Heard Sri Shiv Pal Singh learned
counsel for the revisionists and learned
AGA for the State.

2. This criminal revision has been
preferred by revisionists challenging the
order
dated
31.3.2014
by
which
application under Section 319 Cr.P.C.
moved by the informant was partially
allowed and revisionists were summoned
for facing trial under Section 319 Cr.P.C.

3. It was submitted by learned
counsel for the revisionists that Pravesh
Kumar Singh was adopted by late
Bachchu Singh and was living with his
adoptive father separately from his natural
father, mother and brothers. In this way,
there was no occasion for the relatives of
natural father demanding dowry.

4. As per factual matrix of the case a
first information report was lodged by the
opposite party no.2 (Umesh Singh) in Police
Station-Kotwali Dehat, District- Bahraich on
6.9.2005 at about 8.15 p.m. against Pravesh
Singh, Raja Singh son of Shiv Mangal Singh,
Rajesh Singh son of Shiv Mangal Singh, wife
of Raja Singh, wife of Shiv Mangal Singh and
Rajendra Singh, under Section 498-A, 304B,201 I.P.C.and 3/4 Dowry Prohibition Act.
After
investigation
charge-sheet
was
submitted against Pravesh Singh only. After
taking cognizance, the case was committed
and the Sessions Court after framing of the
charge recorded evidence. During evidence of
P.W.1 Umesh Singh son of Narendra Pal
Singh and P.W.2 Narendra Pal Singh son of
Harihar Singh and an application was moved
for summoning, Raja Singh, Rajesh Singh,
Munni Devi, Rajendra Singh, learned court
below has after gone though the evidence on
record summoned the revisionists except
Kaladevi wife of Shiv Mangal, Rajendra to
face trial. Feeling aggrieved this criminal
revision has been filed.

5. Learned AGA argued in favour of
the impugned order.

7. Section 319 Cr.P.C. as it exists
today, is quoted hereunder:

"319 Cr.P.C. - Power to proceed
against other 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
1 All] Rajesh Singh & Ors. Vs. The State of U.P. & Anr.

395
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."

8. Section 319 Cr.P.C. springs out of
the doctrine judex damnatur cum nocens
absolvitur (Judge is condemned when
guilty is acquitted) and this doctrine must
be used as a beacon light while explaining
the ambit and the spirit underlying the
enactment of Section 319 Cr.P.C.

6. It is the duty of the Court to do
justice by punishing the real culprit.
Where the investigating agency for any
reason does not array one of the real
culprits as an accused, the court is not
powerless in calling the said accused to
face trial. The question remains under
what circumstances and at what stage
should the court exercise its power as
contemplated in Section 319 Cr.P.C.?

9. Section 319 Cr.P.C. allows the
court to proceed against any person who
is not an accused in a case before it. Thus,
the person against whom summons are
issued in exercise of such powers, has to
necessarily not be an accused already
facing trial. He can either be a person
named in Column 2 of the chargesheet
filed under Section 173 Cr.P.C. or a
person whose name has been disclosed in
any material before the court that is to be
considered for the purpose of trying the
offence, but not investigated. He has to be
a person whose complicity may be
indicated
and
connected
with
the
commission of the offence.

10. What is essential for the purpose of
the section is that there should appear some
evidence against a person not proceeded
against and the stage of the proceedings is
irrelevant.
Where
the
complainant
is
circumspect in proceeding against several
persons, but the court is of the opinion that
there appears to be some evidence pointing to
the complicity of some other persons as well,
Section 319 Cr.P.C. acts as an empowering
provision enabling the court/Magistrate to
initiate proceedings against such other persons.
The purpose of Section 319 Cr.P.C. is to do
complete justice and to ensure that persons who
ought to have been tried as well are also tried.
Therefore, there does not appear to be any
difficulty in invoking powers of Section 319
Cr.P.C. at the stage of trial in a complaint case
when the evidence of the complainant as well
as his witnesses is being recorded.

11. It is, therefore, clear that the
word "evidence" in Section 319 Cr.P.C.
means only such evidence as is made
before the court, in relation to statements,
and as produced before the court, in
relation to documents. It is only such
evidence that can be taken into account by
the Magistrate or the Court to decide
whether power under Section 319 Cr.P.C.
is to be exercised and not on the basis of
material collected during investigation.

12. In the case of Hardeep Singh v.
State of Punjab and others [2014 (1)
SCALE 241] the Apex Court has held
that:
396 INDIAN LAW REPORTS ALLAHABAD SERIES

"86.
Section
319
(1)
Cr.P.C.
empowers the court to proceed against
other persons, who appear to be guilty of
offence, though not an accused before the
court."

7. The word "appear" means "clear
to the comprehension", or a phrase near
to, if not synonymous with "proved". It
imparts a lesser degree of probability than
proof.

88. At the time of taking cognizance,
the court has to see whether a prima facie
case is made out to proceed against the
accused. Under Section 319 Cr.P.C., though
the test of prima facie case is the same, the
degree of satisfaction that is required is much
stricter. A two Judges' Bench of this Court in
Vikas v. State of Rajasthan, 2013 (11)
SCALE 23, held that on the objective
satisfaction of the court a person may be
'arrested'
or
'summoned',
as
the
circumstances of the case may require, if it
appears from the evidence that any such
person not being the accused has committed
an offence for which such person could be
tried together with the already arraigned
accused persons.

89. In Rajendra Singh (Supra), the
Court observed:

"Be it noted, the court need not be
satisfied that he has committed an
offence. It need only appear to it that he
has committed an offence. In other words,
from the evidence it need only appear to it
that someone else has committed an
offence, to exercise jurisdiction under
Section 319 of the Code. Even then, it has
a discretion not to proceed, since the
expression used is "may" and not "shall".
The legislature apparently wanted to leave
that discretion to the trial court so as to
enable it to exercise its jurisdiction under
this section. The expression "appears"
indicates an application of mind by the
court to the evidence that has come before
it and then taking a decision to proceed
under Section 319 of the Code or not."

90. In Mohd. Shafi (Supra), this
Court held that it is evident that before a
court
exercises
its
discretionary
jurisdiction in terms of Section 319
Cr.P.C., it must arrive at a satisfaction
that there exists a possibility that the
accused so summoned in all likelihood
would be convicted.

91. In Sarabjit Singh & Anr. v. State
of Punjab & Anr., AIR 2009 SC 2792,
while explaining the scope of Section 319
Cr.P.C., a two Judges' Bench of this Court
observed:

"....For the aforementioned purpose, the
courts are required to apply stringent tests; one
of the tests being whether evidence on record is
such which would reasonably lead to
conviction of the person sought to be
summoned......Whereas the test of prima facie
case may be sufficient for taking cognizance of
an offence at the stage of framing of charge, the
court must be satisfied that there exists a strong
suspicion. While framing charge in terms of
Section 227 of the Code, the court must
consider the entire materials on record to form
an opinion that the evidence if unrebutted
would lead to a judgment of conviction.
Whether a higher standard be set up for the
purpose of invoking the jurisdiction under
Section 319 of the Code is the question. The
answer to these questions should be rendered in
the affirmative. Unless a higher standard for the
purpose of forming an opinion to summon a
person as an additional accused is laid down,
the ingredients thereof viz. (i) an extraordinary
case, and (ii) a case for sparingly (sic sparing)
exercise of jurisdiction, would not be satisfied."
(Emphasis
added)"
1 All] Gaurav Nigam Vs. Smt. Tripti Nigam

397

92. In Brindaban Das & Ors. v. State of
West Bengal, AIR 2009 SC 1248, a twoJudge Bench of this Court took a similar
view observing that the court is required to
consider whether such evidence would be
sufficient to convict the person being
summoned. Since issuance of summons
under Section 319 Cr.P.C. entails a de novo
trial and a large number of witnesses may
have
been
examined
and
their
reexamination could prejudice the prosecution
and delay the trial, the trial court has to
exercise such discretion with great care and
perspicacity.

8. A similar view has been reiterated
by this Court in Michael Machado & Anr.
v. Central Bureau of Investigation & Ors.,
AIR 2000 SC 1127.

"99. 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 Cross-Examination, 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 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."

9. A perusal of the evidence reveals
that it has been accepted by P.W.1 that
Pravesh Singh was adopted by Bachachu
Singh. It has also come in evidence that
there was demand of motorcycle and
Rs.50,000/-only. No other persons was
beneficiary of the demand of the
motorcycle except Pravesh Singh. These
facts should have been considered by the
trial Court while passing under Section
319 Cr.P.C.

10. In view of this, and also
considering the fact that Magistrate has not
recorded his satisfaction as has been
envisaged in the decision of Hardeep Singh
v. State of Punjab and others [2014 (1)
SCALE 241], this criminal revision is liable
to be allowed and is hereby allowed. Order
dated 31.3.2014 is quashed. .

11. The matter is remanded back to
the trial court for deciding the application
under Section 319 of the Code of
Criminal Procedure afresh in the light of
the observations made above.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2014

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE NAHEED ARA MOONIS, J.

First Appeal No.251 of 2014

Gaurav Nigam... Appellant
Versus
Smt. Tripti Nigam..... Respondent

Counsel for the Petitioner:
Sri M.D. Singh 'Shekhar', Sri R.D.Tiwari

Counsel for the Respondent:
Sri C.M. Rai, Ms. Rajni Ojha, Sri R.N. Chaubey

First Appeal- Against order of granting
interim maintenance as Rs. 32000/-per
month without considering objection and
expenses-occurred during medical care of
the parents of husband/appellant-held-in
absence of any documentary evidence
regarding expenses-considering salary slip
of appellant as Rs. 1,26,000/-amount of
interim maintenance-not excessive-appeal
dismissed.

Held:Para-9
The income of the appellant, undoubtedly is
Rs. 1,26,000/- and odd, and as per the salary