# Revisionist v. State of U.P. and Anr

- **Citation:** (2013) 3 ILRA 1312
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-16
- **Case number:** Criminal Revision No. 441 of 2010
- **Bench:** Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-and-anr-42695
- **Pages:** 6

## Headnote

G.A.,
Sri
Shafat
Ullah
Khan
3 All] Pawan Kumar Vs. State of U.P. and Anr.
1313
Cr.P.C.-Section-319-
summoning
of
accused-not named in FIR-during trail on
basis of examination of P.W. I-challenged
on
ground
unless
cross
examined
completed-can
not
be
considered
for
exercising
power-held-in
view
of
law
developed by Apex Court-Trail Court can
not wait for cross examination-even on
material disclosed in examination-in-chiefcan be summoned-provided with clear cut
finding-the
un-rebutted
testimony
are
sufficient for conviction-in case in hand no
such finding recorded-order vitiated-set-aside.

Held: Para-12 & 14

## Text

1312 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In the case of Brij Mohan Singh
Vs. Priya Brat Narain Sinha and Others,
AIR 1965 Supreme Court 282 the Apex
Court has held that :

"An objection was faintly raised by
Mr. Agarwal as regards the admissibility
of Ex.2 on the ground that the register is
not an official record or a public register.
It is unnecessary to consider this question
as the fact that such an entry was really
made in the admission register showing
the appellant's date of birth as October
15,1935 has all along been admitted by
him. His case is that this was an incorrect
statement made at the request of the
person who went to get him admitted to
the school. The request was made, it is
suggested to make him appear two years
younger than he really was so that later in
life he would have an advantage when
seeking public service for which a
minimum age for eligibility is often
prescribed. The appellant's case is that
once this wrong entry was made in the
admission register it was necessarily
carried forward to the Matriculation
Certificate and was also adhered to in the
application for the post of a Sub-Inspector
of Police. This explanation was accepted
by the Election Tribunal but was rejected
by the High Court as untrustworthy.
However much one may condemn such an
act of making a false statement of age
with a view to secure an advantage in
getting public service, a judge of facts
cannot ignore the position that in actual
life this happens not infrequently. We find
it impossible to say that the Election
Tribunal was wrong in accepting the
appellant's explanation. Taking all the
circumstances into consideration we are
of the opinion that the explanation may
very well be true and so it will not be
proper for the court to base any
conclusion about the appellant's age on
the entries in these three documents, viz,
Ex.2, Ex.8 and Ex.18."

12. In the case of Dharma Chandra
Vs. State of U.P. and Anothers 2002 (2)
JIC 984 (AII) this court has held that the
age given by the parents of the revisionist
in the School Register cannot be held to
be reliable because basis of the said
entries has not been given.

13. In the instant case, court below
has not considered this aspect regarding
the age mentioned in School Leaving
Certificate and its evidentiary value and
has not given any finding about the same.

14. In view of above discussion and
the
reasons
mentioned
above,
this
criminal revision is liable to be allowed
and is hereby by allowed. Impugned order
is quashed. The matter is remanded back
to the Court below to decide the matter
afresh, after giving opportunity to the
revisionist to adduce all such evidence
which he wants to adduce, within a period
of six months.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.09.2013

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

Criminal Revision No. 441 of 2010

Pawan Kumar

 ...Revisionist
Versus
State of U.P. and Anr.
 ...Opp. Parties

Counsel for the Petitioner:
Sri Ajai Krishna

Counsel for the Respondents:
G.A.,
Sri
Shafat
Ullah
Khan
3 All] Pawan Kumar Vs. State of U.P. and Anr.
1313
Cr.P.C.-Section-319-
summoning
of
accused-not named in FIR-during trail on
basis of examination of P.W. I-challenged
on
ground
unless
cross
examined
completed-can
not
be
considered
for
exercising
power-held-in
view
of
law
developed by Apex Court-Trail Court can
not wait for cross examination-even on
material disclosed in examination-in-chiefcan be summoned-provided with clear cut
finding-the
un-rebutted
testimony
are
sufficient for conviction-in case in hand no
such finding recorded-order vitiated-set-aside.

Held: Para-12 & 14
12. In the case of Rakesh v. State of
Haryana (supra) the Apex Court has
ruled that "an application under Section
319 Cr.P.C. is maintainable as even
without completion of cross examination
of a witness. If the court is satisfied on
the basis of cross examination in chief of
a witness that a person not shown to be
an accused appears to have committed
an offence".

14. A perusal of above decisions of the
Apex Court clearly reveals that before
summoning any person as an accused for
facing trial under Section 319 Cr.P.C. there
must be a finding of the court that the
evidence is such that the accused so
summoned is, in all likelihood, would be
convicted.

Case Law discussed:
2009(13) SCC 608; (2010) 2 SCC (Crl.) 141;
(2001) 6 SCC 248-2001 SCC (Crl.); (2000) 3
SCC 262; (2004) 7 SCC 792; (2007) 14 SCC
544.

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

1. This criminal revision has been
filed by Pawan Kumar against the order
dated 4.10.2010 passed by the learned
Additional Sessions Judge, Unnao by
which the application of the prosecution
under Section 319 Cr.P.C. was allowed.

2. The facts in nut shell are that FIR
was lodged by Smt. Sarvari naming Brijpal,
Jagdish, Arvind, Sushil and Pawan. After
investigation charge sheet was submitted
leaving the name of Pawan. After committal
of the case PW-1 was examined, but before
her cross examination an application under
Section 319 Cr.P.C. was moved, which was
allowed by the impugned order. Feeling
aggrieved, this criminal revision has been
filed.

3. It was submitted from the side of
the revisionist that the trial court has, on
the basis of uncross examined the
testimony
of
PW-1
summoned
the
revisionist Pawan Kumar, which is not
permitted in view of the decision of the
Apex Court in the case of Mohd. Safi v.
Mohd. Rafiq, (2007) 14 SCC 544. It was
also submitted that the court below has
not given any finding that unrebutted
testimony of the witness is sufficient for
conviction of the revisionist. In view of
this the order passed by the is wrong.

4. Learned AGA argued that the trial
court has passed the order according to
the evidence and now, there is no
requirement that the order under Section
319 may be passed only after cross
examination.

5. Section 319 of the Code of
Criminal Procedure reads as under: -

"319. 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
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
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 a fresh, 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."

6. In regard to necessity of cross
examination of the prosecution witnesses
before invoking section 319 Cr.P.C. the
Apex Court observed in Hardeep Singh's
case that it is, thus, difficult to accept the
contention of the learned counsel for the
appellants that the term 'evidence' used in
sub-section (1) of section 319 of Cr.P.C.
would mean evidence which is tested by
cross examination. The question of testing
the evidence by cross-examination would
arise only after addition of the accused.
There is no question of cross-examining
the witness prior to adding such person as
accused. Section does not contemplate an
additional stage of first summoning the
person and giving him an opportunity of
cross-examining the witness who has
deposed against him and thereafter
deciding whether such person should or
should not be added as accused.

7. In the case of Harbhajan Singh &
Another v. State of Punjab & another,
2009 (13) SCC 608, a division bench of
the Apex Court has held that only because
the correctness of a portion of the
judgment in the case of Mohd. Shafi
(supra) has been doubted by another
bench, the same would not mean that we
should wait for the decision of the larger
bench, particularly when the same instead
of assisting the appellants runs counter to
their contention. The Division Bench
further held that decision of this Court in
the case of Mohd. Shafi (supra), therefore,
in our opinion, is not an authority for the
proposition that in each and every case
the Court must wait till the crossexamination is over. The observation of
the Apex Court in this regard is
reproduced as follows: -

"We would assume that in all cases
the court may not wait till crossexamination is over for the purpose of
exercising
its
jurisdiction.
In
the
aforementioned decision, the learned
Judges had referred to a judgment of this
Court in the case of Rakesh & Anr. v.
State of Haryana (2001) 6 SCC 248
wherein it was held that even without
cross-examination on the basis of a prima
facie material which would enable the
Sessions Court to decide whether the
power under Section 319 of the Code
should be exercised or not stating that at
that stage evidence as used in Section 319
of the Code would not mean evidence
which is tested by cross-examination.
3 All] Pawan Kumar Vs. State of U.P. and Anr.
1315

.............. The decision of this Court
in the case of Mohd. Shafi (supra),
therefore, in our opinion, is not an
authority for the proposition that in each
and every case the Court must wait till the
cross-examination is over." (para 13)

8. A survey of the aforesaid
decisions clearly reveals that the power
under section 319 Cr.P.C. is an extra
ordinary power, which may be used very
sparingly only if compelling or cogent
reasons exist against the person sought to
be summoned. The term 'evidence' used in
section 319 Cr.P.C. does not necessarily
mean the evidence which is tested by
cross examination. The view expressed in
the case of Mohd. Shafi (supra) in this
regard,
has
not
been
subsequently
followed by the Apex Court in the cases
of Sarabjeet Singh and another v. State of
Punjab and another, (2010) 2 SCC (Crl.)
141. The view expressed in the case of
Sarabjeet Singh (supra) has also been
expressed in the case of Rakesh v. State
of Haryana, (2001) 6 SCC 248 = 2001
SCC (Crl.) 1090, Hardeep Singh (supra)
and Harbhajan Singh and another (supra),
therefore, a summoning order can not be
set aside on the ground that the statements
of the witnesses relied on by the court for
passing the summoning order, have not
been subjected to cross examination. It is
true that a Division Bench of the Apex
Court in Hardeep Singh's (supra) has
referred
the
questions
specified
in
paragraph 11 of this judgment to a Larger
Bench but another Division Bench of the
Apex Court in Harbhajan Singh's (supra)
has observed that the same would not
mean that we should wait the decision of
the Larger Bench. The accused sought to
be summoned, has no right to be heard on
the application under section 319 Cr.P.C.,
therefore, he has no right to crossexamine the witnesses being examined for
the purpose of section 319 Cr.P.C. The
accused already facing the trial may or
may not like to make cross-examination
of the witnesses in regard to the
complicity of the person sought to be
summoned. Sometimes such accused may
act even contrary to the interest of such
persons. However, the court may, in its
discretion, allow the accused already
facing the trial to cross examine the
witness or witnesses in relation to the
complicity of the person sought to be
summoned so as to enable it to render a
just and proper order under section 319
Cr.P.C. In this view of the matter, there is
no compulsion to get part or full crossexamination of the witnesses done before
passing a summoning order under section
319 Cr.P.C. In appropriate cases if the
complicity of a person not facing the trial
and is not before the court as accused,
comes in light in the statement of a
witness, it is also open to the court to put
relevant questions to the witness to
ascertain prima facie correctness of the
statement regarding complicity of that
person. The Trial Judges and Magistrates
have to play pivotal roles in the matter
and should not act mere as silent
spectators. Therefore, the summoning
order under section 319 Cr.P.C. can not
be quashed only on the ground that the
witnesses have not been cross examined.

9. In para 11 of the case of Michael
Machado v. CBI, (2000) 3 SCC 262
considering the basic requirement of
Section 319 Cr.P.C. the Apex Court has
held that "the basic requirements for
invoking the above section is that it
should appear to the court from the
evidence collected during trial or in the
inquiry that some other person, who is not
arraigned as an accused in that case, has
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
committed an offence for which that
person could be tried together with the
accused already arraigned. It is not
enough that the court entertained some
doubt, from the evidence, about the
involvement of another person in the
offence. In other words, the court must
have reasonable satisfaction from the
evidence already collected regarding two
aspects, first is that the other person has
committed an offence, second is that for
such offence that other person could as
well be tried along with the already
arraigned accused".

10. Highlighting the underlying
object of the provision, the Apex Court
proceeded to state in para 12 that "But
even then, what is conferred on the court
is only a discretion as could be discerned
from the words 'the court may proceed
against such person'. The discretionary
power so conferred should be exercised
only to achieve criminal justice. It is not
that the court should turn against another
person whenever it comes across evidence
connecting that another person also with
the offence. A judicial exercise is called
for, keeping a conspectus of the case,
including the stage at which the trial has
proceeded already and the quantum of
evidence collected till then, and also the
amount of time which the court had spent
for collecting such evidence. It must be
remembered that there is no compelling
duty on the court to proceed against other
persons".

11. In the case of Krishnappa v.
State of Karnataka, (2004) 7 SCC 792 the
Apex Court ruled that power to summon
an accused is an extraordinary power
conferred upon the court, and it should be
used very sparingly, and only if the
compelling reasons exist for taking
cognizance against the person other than
the accused.

12. In the case of Rakesh v. State of
Haryana (supra) the Apex Court has ruled
that "an application under Section 319
Cr.P.C. is maintainable as even without
completion of cross examination of a
witness. If the court is satisfied on the
basis of cross examination in chief of a
witness that a person not shown to be an
accused appears to have committed an
offence".

13. In the case of Mohd. Safi v.
Mohd. Rafiq, (2007) 14 SCC 544 the
Apex Court has further held as under: -

"The Trial Judge, as noticed by us, in
terms of Section 319 of the Code of
Criminal Procedure was required to arrive
at his satisfaction. If he though that the
matter
should
receive
his
due
consideration
only
after
the
crossexamination of the witnesses is over, no
exception thereto could be taken far less
at the instance of a witness and when the
State was not aggrieved by the same."
(para 12)

14. A perusal of above decisions of
the Apex Court clearly reveals that before
summoning any person as an accused for
facing trial under Section 319 Cr.P.C.
there must be a finding of the court that
the evidence is such that the accused so
summoned is, in all likelihood, would be
convicted.

15. From the above discussions, it is
clear that in the absence of any clear cut
finding of the trial court that the
unrebutted
testimony
of
PW-1
is
sufficient to convict the revisionist, the
order
is
vitiated.
3 All] Padam Gupta Vs. The State of U.P. and Anr.
1317

16. In view of the above, this
revision is liable to be allowed, and is
hereby
allowed.
The
order
dated
4.10.2010 is set aside. The matter is
remanded back to the trial court for
deciding afresh the application under
Section 319 Cr.P.C. in the light of the
Apex Court decisions mentioned above.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2013

BEFORE
THE HON'BLE BHARAT BHUSHAN, J.

Criminal Revision No. 446 of 2011

Padam Gupta
 ...Petitioner
Versus
State of U.P. and Anr. ...Respondents

Counsel for the Petitioner:
Sri J.P. Pandey, Sri Saurabh Pathak

Counsel for the Respondents:
A.G.A., Sri B.M. Singh
Sri M.B. Singh, Sri Sudhanshu Kumar
Singh

Criminal Revision-Against summoning orderMagistrate after recording statement under
section 200 and 202 passed impugned
order-offence u/s 138 of N.I. Act-without
ascertaining
the
correct
fact-revisionist
neither possess any accommodation nor had
occasion to issue cheque-in absence of
prospective accused-Magistrate require to
ensure precise and fair enquiry-impugned
order not reflect participation of revisionist
before the Magistrate impugned summoning
order quashed.

Held: Para-21
Thus, in view of the aforesaid legal
position,
it
is
incumbent
upon
Magistrates to ensure that the judicial
process should not be an instrument of
needless harassment. In complaint cases
no one is present to watch the interest of
prospective accused at initial stage.
Therefore, it is duty of the Magistrates to
ensure precise and fair enquiry in order
to arrive at reasonable conclusion. His
energetic participation at initial stage is
required in order to obviate or reduce
false implications. Impugned order does
not reflect required participation by the
Magistrate
before
summoning
the
revisionist to face the trial for the
offence under Section 138 of the N.I.
Act.

(Delivered by Hon'ble Bharat Bhushan, J.)

1. This criminal revision is directed
against the order dated 26.10.2010 passed
by
learned
Addl.
Chief
Judicial
Magistrate Ist, Firozabad in Criminal
Complaint Case No. 4251 of 2010
(Surendra Kumar Jain Vs Padam Gupta)
under
Section
138
of
Negotiable
Instruments Act 1881 (in short N.I. Act),
P.S. Tundla, District Firozabad.

2. The facts of the case are that
opposite party no. 2/complainant lodged a
criminal complaint under Section 138 of
N. I. Act in the court of learned ACJM Ist,
Firozabad alleging therein that he was
tenant of a shop in a market situated at
Tundla Crossing, belonging to the father
of revisionist. It is alleged that some
portion of the market was demolished on
account
of
road
widening
and
constructions of four lane road by the
National Highway Authority. Revisionist
asked the complainant for vacating the
said shop, promising to restore back the
shop after reconstruction. It is also alleged
that the complainant was also paid Rs.
1,50,000/- as compensation for the period
of closure of the shop. The revisionist is
said to have drawn a cheque under his
signature being Cheque No. 622350 dated
20.6.2010 for Rs. 1,50,000/- in favour of
the complainant payable at SBI Branch