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

- **Citation:** (2005) 1 ILRA 204
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-03-02
- **Case number:** Criminal Revision No.770 of 2005
- **Bench:** K.N. Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionists-v-state-of-u-p-and-others-40426
- **Pages:** 4

## Headnote

Code
of
Criminal
Procedure-S-319offence under section 498-A/304 I.P.C.-
after framing charge sheet-on the basis
of statement made-prima-facie sufficient
material found to summon the accused
person to face the trial-although not
named in FIR, nor the name disclosed
during
investigation-issuing
the
summons is proper remedy-N.B.W. can
be issued if they failed to appear-positive
directions issued accordingly.

Held: Para 9 and 10

It is not evidence or infirmity of evidence
during the investigation which is the
basis to decide as to whether the case is
to be proceeded against the applicants
or not, but it is the evidence or
statement made after the charge is
framed, which is the basis for proceeding
against those accused against whom
charge sheet has not been submitted and
final report was submitted. Therefore
when there is clear statement of the
complainant
prima
facie
there
is
sufficient
evidence
to
summon
the
accused person to face the trial.

In the circumstances of the case issue of
summon was the proper remedy rather
than non-bailable warrant and upto this
extent impugned order deserves to be
modified.
Case law discussed:
AIR 1979 SC-339
1993 SCC Crl. 470
1994 Crl. Law Journal-3330
AIR SC 771
AIR 1978 SC-514
AIR 1964 (1) SCR 639
AIR 2004 (57) 390

## Text

http://www.allahabadhighcourt.nic.in

INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 204
and Rural Technology, Allahabad(Supra)
relied upon by the petitioner is concerned
it has no application to the facts of the
present case inasmuch as in the said
judgment the applicability of Rule 15-B
was not under consideration.

The writ petition is accordingly
dismissed.
Petition dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2005

BEFORE
THE HON'BLE K.N. OJHA, J.

Criminal Revision No.770 of 2005

Umesh Chand Verma and others

 ...Revisionists
Versus
State of U.P. and others

...Opposite Parties

Counsel for the Revisionists:
Sri G.S. Chaturvedi
Sri Nikhil Chaturvedi
Sri S.B. Kochar

Counsel for the Opposite Parties:
Sri D.N. Wali
Smt. Praveen Shukla
A.G.A.

Code
of
Criminal
Procedure-S-319offence under section 498-A/304 I.P.C.-
after framing charge sheet-on the basis
of statement made-prima-facie sufficient
material found to summon the accused
person to face the trial-although not
named in FIR, nor the name disclosed
during
investigation-issuing
the
summons is proper remedy-N.B.W. can
be issued if they failed to appear-positive
directions issued accordingly.

Held: Para 9 and 10

It is not evidence or infirmity of evidence
during the investigation which is the
basis to decide as to whether the case is
to be proceeded against the applicants
or not, but it is the evidence or
statement made after the charge is
framed, which is the basis for proceeding
against those accused against whom
charge sheet has not been submitted and
final report was submitted. Therefore
when there is clear statement of the
complainant
prima
facie
there
is
sufficient
evidence
to
summon
the
accused person to face the trial.

In the circumstances of the case issue of
summon was the proper remedy rather
than non-bailable warrant and upto this
extent impugned order deserves to be
modified.
Case law discussed:
AIR 1979 SC-339
1993 SCC Crl. 470
1994 Crl. Law Journal-3330
AIR SC 771
AIR 1978 SC-514
AIR 1964 (1) SCR 639
AIR 2004 (57) 390

(Delivered by Hon'ble K.N.Ojha, J.)

1. Heard Sri G.C. Chaturvedi
learned Senior Counsel assisted by Sri
Nikhil Chaturvedi for the applicants, Smt.
Praveen Shukla learned AGA for opposite
party No.1 State of U.P. and Sri D.N.
Wali learned counsel for opposite party
no.2 Arun Kumar Verma and have gone
through the record.

2. Instant criminal revision has been
filed against order dated 10.2.05 passed
by learned Addl. Sessions Judge, Fast
Track Court no.3 Agra in Sessions Trial
No. 455 of 2004 State v. Shyam Verma
whereby the applicants Umesh Chandra
Verma, Smt. Laxmi Verma, Smt. Mohini
Verma, Rishi Verma and Chanchal Verma
http://www.allahabadhighcourt.nic.in
1All]
Umesh Chand Verma and Others V. State of U.P. and others
205

 have been summoned under section 319
Cr.P.C. to face trial in Sessions Trial No.
455 of 2004 under section 498 A/304 B
IPC and section 3/4 Dowry Prohibition
Act, Police Station Bah, district Agra.
This Sessions Trial is already pending
against Shyam Verma.

3. According to the prosecution
opposite party no.2 complainant Arun
Kumar
Verma
lodged
FIR
against
applicants and Shyam Verma under
section 498 A/307 IPC and section 3/4
Dowry Prohibition Act on 6.4.2004. Later
on the death of Priti Verma daughter of
Arun Kumar Verma took place. After
investigation
the
charge
sheet
was
submitted under section 498A/304 B IPC
against Shyam Verma the husband only
but final report was submitted in respect
of father-in-law Umesh Chand Verma,
mother-in-law Smt. Laxmi Verma, Jeth
Rishi Verma, Jethani Smt. Mohini Verma
and Nanand Chanchal Verma on
22.4.2002. One son was born from the
wedlock of Priti Verma and Shyam
Verma in January, 2003 but demand for
Maruti car being not satisfied husband
and applicants used to cause torture to her
and they set her on fire on 5.4.2004 and
ultimately she died on 8.6.2004 from the
burn injuries received on 5.4.2004 at the
residence of applicants in Mohalla Sarai,
Town Bah, district Agra. After the charge
was framed against Shyam Verma the
husband the case proceeded and PW 1
Arun Kumar Verma father of the victim
made statement that applicants also used
to cause torture to her and set her on fire
therefore they also be summoned and
direction be made to face the trial. The
application moved under section 319
Cr.P.C was allowed and a direction was
made to issue non-bailable warrant
against the applicants to face trial under
section 498A/304B IPC and Section 4 of
Dowry Prohibition Act.

4. It is submitted by learned counsel
for the applicants that in dying declaration
Smt. Priti Verma had stated that husband
Shyam Verma had suspicion about her
character and therefore he set her on fire.
Only in statement recorded later on under
section 161 Cr.PC she stated that though
the applicants were present when she was
set on fire but she was not saved and her
dying declaration was made only against
husband because other family members
who carried her to hospital threatened her
not to carry her to hospital for medical
treatment in case she made statement
against the applicants. It is also submitted
that in evidence under section 161 Cr.PC
the witnesses have stated that due to
dispute between victim Smt. Priti Verma
and her husband Shyam Verma her-inlaws Jeth, Jethani and Nanand started to
live in Gwalior and they were present at
the time in Gwalior.

Section 319 of Cr.P.C. contemplates: -

"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 may proceed against
such person for the offence which he
appears to have committed."

5. In AIR 1979 SC 339 Joginder
Singh v. State of Punjab it has been held
by Hon. Apex Court that even the persons
who have been dropped by the Police
http://www.allahabadhighcourt.nic.in

INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 206
during investigation but against whom
evidence showing their involvement in
the offence comes before the criminal
court are included in the list of the
persons who can be summoned to face the
trial and once the case in respect of
offence is committed the cognizance of
the offence is taken and any person who is
involved in the crime even though charge
sheet has not been submitted can be
summoned under section 319Cr.PC to
face the trial with the accused already
facing the trial.

6. In 1993 SCC Crl. 470 Kishun
Singh v. State of Bihar it has been laid
down that section 319 Cr.P.C. can be
invoked by the court even though a
person is not named as offender in FIR or
charge sheet but whose complicity in the
crime comes to light from the evidence
and he can be summoned. When the
offence of the cognizance is taken
summoning any other accused involved in
the crime is part of the process of taking
cognizance. It was held that once the case
has been committed the bar of section 193
Cr.P.C. was removed and the court of
Sessions is vested with the fullest
jurisdiction to summon any individual
accused of the crime.

7. In 1994 Crl. Law Journal 3330
Dr. J. Jacab and others v. State it has
been held by Hon. Delhi High Court that
evidence under section 319 Cr.P.C. means
evidence recorded during enquiry or trial
and not during investigation by the Police.
AIR SCW 771; AIR 1978 SC 514 and
AIR 1964 (1) SCR 639 was relied on
while laying down the law.

8. In instant case after the charge
was framed. The complainant stated that
demand for dowry was made and his
daughter used to inform him that she
was being harassed because demand for
dowry
was
not
satisfied
and
she
apprehended that her life was in danger
and any happening could take place with
her. He also stated that cruelty was
exercised not only by husband but by
applicants also. In view of this statement
which the court below recorded after the
charge was framed, there appears prima
facie evidence to summon the accused.
Contradiction if any, in dying declaration
of the victim and her statement under
section 161 Cr.P.C. while lying in the
hospital or present residence of the
applicants
at
Gwalior
are
the
circumstances
which
are
to
be
considered at final stage of the case
when both parties are allowed to adduce
evidence but any such infirmity in the
prosecution evidence cannot be taken to
be sufficient at this stage to exclude the
evidence recorded after the charge is
framed wherein it has been stated that
cruelty was exercised by applicants also
on the victim.

9. Other witnesses of the family of
victim have also to make statement. It is
not evidence or infirmity of evidence
during the investigation which is the basis
to decide as to whether the case is to be
proceeded against the applicants or not,
but it is the evidence or statement made
after the charge is framed, which is the
basis for proceeding against those accused
against whom charge sheet has not been
submitted and final report was submitted.
Therefore when there is clear statement of
the complainant prima facie there is
sufficient
evidence
to
summon
the
accused person to face the trial.

10. It has been held by Full bench of
this Court in ALR 2004 (57) 390 Smt.
Amrawati and another v. State of U.P.
that even if cognizable offence is
disclosed the arrest of the accused is not
must and it is at the discretion of the
Sessions Judge or the Magistrate to
http://www.allahabadhighcourt.nic.in
1All]
Ram Das Gupta V. Bhajan Prakash Girhotra and others
207
consider as what process would be
suitable to procure the attendance of the
accused. In instant case when 3 out of 5
applicants are ladies and their case is that
due to dispute between husband and wife
applicants started to live in Gwalior and it
was proper that when application under
section 319 Cr.P.C. moved by the
complainant was allowed the attendance
of the applicants was to be procured by
summoning them rather than directly
issuing non-bailable warrant against them
and in case reasonable opportunity was
given to them to appear in court they
would have appeared, if they would have
not appeared then coercive process in the
nature of warrant can be issued but the
learned Addl. Sessions Judge while
allowing the application under section
319 Cr.P.C. passed orders for issuing of
non-bailable
warrant
against
the
applicants. In the circumstances of the
case issue of summon was the proper
remedy rather than non-bailable warrant
and upto this extent impugned order
deserves to be modified.

11. Revision is dismissed with the
modification that orders passed for
issuing of non-bailable warrant against
applicants Umesh Verma, Smt. Laxmi
Verma, Smt. Mohini Verma, Rishi Verma
and Chanchal Verma is set aside. They
are directed to appear in court of
Addl.Sessions Judge, Fast Track Court
no.3, Agra within a month and in case
they appear they will be given opportunity
to file bail bonds to the satisfaction of the
trial court to proceed with the case. In
case they do not appear only thereafter
coercive process may be issued against
them. If the court of Addl. Sessions
Judge, Fast Track Court No. 3, Agra is
not in existence the applicants have to
appear in court where the Sessions Trial
No. 455 of 2004 State v. Shayam Verma
as mentioned above is transferred by
learned Sessions Judge, Agra.
Revision dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2004

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Second Appeal No. 5 of 2004

Ram Das Gupta

 ...Appellant
Versus
Bhajan Prakash Girhotra and others

 ...Respondent

Counsel for the Appellants:
Sri R.P. Tewari

Counsel for the Respondents:
Sri G.N. Verma
Sri B.N. Agarwal
Sri Sanjay Agarwal
Sri A.N. Verma
Sri S.C. Srivastava

Transfer of Property Act-Section-60words Phrases-'Once Mortgage always
mortgage'-the
condition
specifying
period-failing to which the mortgage
shall be deemed as sale-held-illegalstatutory
rights
provided
to
the
mortgagor to redeem the property-can
not
be
denid-principle
behind
the
doctrine elog on redemption-explained.

Held: Para 4

If a transaction is not a sale in its origin
but is a mortgage in origin a condition
which provides that on the default of the
mortgagor to redeem the mortgage within
a stipulated time, the transaction would
become a sale, would be void for once a
mortgage always a mortgage.Section 60
of the Transfer of Property Act gives