# Siyaram & Anr v. State of U.P. Opp. Party

- **Citation:** (2014) 2 ILRA 672
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-06-16
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siyaram-anr-v-state-of-u-p-opp-party-42897
- **Pages:** 5

## Headnote

order-passed
under
section
319
on
application of prosecution-on ground in
view of provisions para 7.22(3) of
Chapter
II
of
U.P.
L.R.
ManualD.G.C.(Crl.) can not move application
without instruction of state governmentheld-misconceived-rejected.

Held: Para-15
I have gone through these provisions.
There is no such provision in it providing for
that the District Government Counsel
(Criminal) cannot appear or move an
application without having specific written
permission in a particular case by the State
Government. Once the District Government
Counsel
is
appointed
by
the
State
Government
to
conduct
the
legal
proceedings
on
behalf
of
the
State
Government either generally or specially by
the Government, he is free to move any
application necessary in the interest of
justice and expeditious disposal of the case
in discharge of his duty. Nowhere it is
provided in Legal Remembrancer's Manual
that the District Government Counsel is
required to seek permission from the State
government separately every time to move
any application.

Case Law discussed:
(2007) 14 SC 544; [2014(1)JIC 539 (SC)];
2001(2) JIC 757 (SC):AIR 2001 SC 2521; 2007
(2) JIC 490(SC).

## Text

672 INDIAN LAW REPORTS ALLAHABAD SERIES
will carry interest at the rate of 9% p.a. by
applying the law laid down in the case of
Municipal Council of Delhi v. Association of
Victims of Uphaar Tragedy5, for the reason
that the Insurance Company has been
contesting the claim of the appellants from
1992-2013 without settling their legitimate
claim for nearly about 21 years, if the
Insurance Company had awarded and paid
just and reasonable compensation to the
appellants the same could have been either
invested or kept in the fixed deposit, then the
amount could have earned five times more
than what is awarded today in this appeal.
Therefore, awarding 9% interest on the
compensation awarded in favour of the
appellants is legally justified."

7. Their Lordships' of Hon'ble
Supreme Court awarded an amount of
Rs.5,00,000/-
as
compensation.
The
compensation
awarded
by
Hon'ble
Supreme Court in the case of Kishan
Gopal (supra) seems to be squarely
covered the present case. The age of the
deceased (supra) was 10 years and
parents' age was 36 years, their Lordships'
held that the amount of Rs.4,50,000/- by
applying multiplier of 15 should be
awarded, in case where the age of the
deceased children is between 10-15 years.
Accordingly, the present case is squarely
covered by the aforesaid judgment. In the
present case, we also assess the notional
income at Rs.30,000/- per annum and by
applying
multiplier
of
15,
award
compensation of Rs.4,50,000/- for loss of
life.

Apart from Rs.4,50,000/-, under
conventional heads for loss of love and
affection, funeral expenses, last rites etc.
an amount of Rs.50,000/- is also awarded,
making total entitlement of the claimant
to the tune of Rs.5,00,000/-.

8. Accordingly, we allow the present
appeal and modify the impugned award to
the extent that the claimant shall be
entitled for the amount of Rs.5,00,000/-
along with 9% interest from the date of
filing of claim petition till the date of
payment. In terms of the judgment in the
case of Kishan Gopal (supra) we direct
the respondent- insurance company to
issue the demand draft drawn on any
nationalized bank along with interest in
pursuance to modify award, in favour of
the claimant and send it to the tribunal
within a period of two months and
tribunal shall hand over the demand draft
to the claimant expeditiously, say within a
period of one month.

Let the learned counsel for the
respondent-insurance
company
shall
inform
about
the
present
order
immediately to the insurer.

Accordingly, the present appeal is
allowed and the impugned award stands
modified.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.06.2014

BEFORE
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Revision No. 1713 of 2014.

Siyaram & Anr. ...Applicants
Versus
State of U.P. ...Opp. Party

Counsel for the Petitioner:
Sri
Akanksha
Yadav
2 All] Siyaram & Anr. Vs. State of U.P.
673
Counsel for the Respondents:
A.G.A.

Criminal
Revision-against
summoning
order-passed
under
section
319
on
application of prosecution-on ground in
view of provisions para 7.22(3) of
Chapter
II
of
U.P.
L.R.
ManualD.G.C.(Crl.) can not move application
without instruction of state governmentheld-misconceived-rejected.

Held: Para-15
I have gone through these provisions.
There is no such provision in it providing for
that the District Government Counsel
(Criminal) cannot appear or move an
application without having specific written
permission in a particular case by the State
Government. Once the District Government
Counsel
is
appointed
by
the
State
Government
to
conduct
the
legal
proceedings
on
behalf
of
the
State
Government either generally or specially by
the Government, he is free to move any
application necessary in the interest of
justice and expeditious disposal of the case
in discharge of his duty. Nowhere it is
provided in Legal Remembrancer's Manual
that the District Government Counsel is
required to seek permission from the State
government separately every time to move
any application.

Case Law discussed:
(2007) 14 SC 544; [2014(1)JIC 539 (SC)];
2001(2) JIC 757 (SC):AIR 2001 SC 2521; 2007
(2) JIC 490(SC).

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J)

1. Heard learned counsel for the
revisionists and learned AGA for the State
on the point of admission and perused the
record.

2. This criminal revision has been
filed against the order dated 05.05.2014
passed by learned Additional Session
Judge, (Special Judge, E.C. Act), Rampur
in S.T. No. 509 of 2012, under sections
307 read with 149 IPC, arising out of case
Crime No. 1583 of 2009, P.S. Shahabad,
District Rampur, State vs. Virendra Fauji
and
others,
whereby
the
learned
Additional Sessions Judge has allowed
the
application filed by
Additional
District Government Counsel (Criminal)
under section 319 Cr.P.C. and has
summoned the revisionists to face the
trial.

3.

Learned
counsel
for
the
revisionists has argued that the Additional
District Government Counsel (Criminal)
has no locus standi to move any such
application under section 319 Cr.P.C.
against any person, who has not been
charge-sheeted by the police or by the
investigating agency. The locus standi to
move such an application is with the
person aggrieved and not with the
ADGC(Crl.) who can not be termed as
aggrieved party.

4.

Learned
counsel
for
the
revisionists
has
filed the
copy
of
provisions contained in paragraph 7.22 (3)
of
Chpater
VII
the
U.P.
Legal
Remembrancer's Mannual which provide
that the District Government Counsel
(Crl.) shall inform the development of the
case arising in any sessions trial and seek
guidance of U.P. Legal Remembrancer's
for the prosecution of the case. Learned
counsel for the revisionists has argued
that in view of the aforesaid provisions,
the
District
Government
Counsel
(Criminal) is dis-entitled to file an
application under section 319 Cr.P.C. for
impleading a person as an accused
without having been instructed by the
674 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government to do so or without
having sought instructions from the
District
Magistrate
to
file
such
application, as provided in paragraph 7.20
(7)
of
Chapter
VII
U.P.
Legal
Remembrancer's Manual.

5. It has been further argued that the
impugned order has been passed by the
learned lower court without recording the
categorical finding that the evidence
available on record is sufficient to convict
the revisionists in the aforesaid session
trial.

6. One more ground, questioning the
legality of the order is that on earlier
occasion,
the
District
Government
Counsel (Crl.), Rampur has admitted the
fact that the revisionists have been falsely
implicated in this case, which is evident
from
perusal
of
the
order
dated
28.04.2011
passed
by
the
District
Magistrate Rampur, under section 17 of
Arms Act, which is annexed as Annexure1 to the revision. Hence it has been
argued that the District Government
Counsel (Crl.) is not entitled to blow hot
and cold at the same time regarding the
same case and he is barred by the
principle of estoppal.

7. On the aforesaid grounds, it has
been prayed that the impugned order
passed by the learned lower court without
application of mind and without keeping
in view the legal position be set aside.

8. In support of his arguments,
learned counsel for the revisionists has
placed reliance on the case of Mohd.
Shafi vs. Mohd. Rafiq and another (2007)
14 SCC 544 in which the Hon'ble Apex
Court has held that before exercising its
jurisdiction under Section 319 Cr.P.C., a
Court must arrive at the satisfaction that
there exists a possibility that the accused
so summoned, is in all likelihood would
be convicted. Such satisfaction can be
arrived at inter alia upon completion of
the cross-examination of the said witness
or if the court concerned may also like to
consider other evidence available before
it.

9. Per contra learned AGA has
opposed the prayer of the revisionists by
submitting
that
after
the
decision,
rendered by Constitution Bench of
Hon'ble Apex Court in Hardeep Singh's
case, the aforesaid case of Mohd. Shafi is
no longer a good law. The revision is
without any force and is liable to be
dismissed at the admission stage itself.

10. After hearing learned counsel for
the revisionists and learned AGA, I am of
the considered view that the instant
revision is liable to be dismissed at the
admission stage itself for the following
reasons:-

11. A Constitutional Bench consisting
of Five Judges of Hon'ble Supreme Court in
the case of Hardeep Singh vs. State of Punjab
and others [2014 (1)JIC 539 (S C)] has set at
rest the entire controversy with regard to the
scope and extent of Section 319 Cr.P.C.
which had arisen due to variety of views
having been expressed by several High
Courts and also by the Supreme Court.
Noticing the conflicting views between the
two judgements of the Hon'ble Supreme
2 All] Siyaram & Anr. Vs. State of U.P.
675
Court in the case of Rakesh vs. State of
Haryana, 2001 (2) JIC 757 (SC) : AIR 2001
SC 2521; and Mohd. Shafi vs. Mohd. Rafiq
& another, 2007 (2) JIC 490 (SC), a doubt
was expressed about the correctness of
Mohd. Shafi's case (supra) which led to the
framing of following five questions by
Constitutional Bench in Hardeep Singh
case:-

1.What is the stage at which power
under Section 319 Cr.P.C. can be
exercised?

2.Whether the word "evidence" used
in Section 319 (1) Cr.P.C. could only
mean
evidence
tested
by
crossexamination 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?

3.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?

4.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
convicted?

5.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?

Question No. 2 and 4 are relevant for
the present case.

12. Answering the aforesaid questions,
the
Hon'ble
Constitutional
Bench
of
Supreme Court expressed the clear view that
neither cross-examination of witness is
required before summoning an additional
accused under section 319 Cr.P.C., nor any
categorical finding to the affect that in all
likelihood the person summoned may be
convicted is necessary before exercising such
power. According to Hon'ble Apex Court:-

"What is required is not to have a minitrial at this stage by having examination and
cross-examination and thereafter rendering
a decision on the overt act of such person
sought to be added. In fact it is this mini-trial
that would affect the right of the person
sought to be arraigned as an accused rather
than not having any cross-examination at all,
for in light of sub section (4) of Section 319
Cr.P.C., the person would be entitled to a
fresh trial where he would have all the rights
including
the
right
to
cross-examine
prosecution witnesses. Therefore, even on
the basis of Examination-in-chief, the court
can proceed against a person as long as the
court is satisfied that the evidence appearing
against such person prima facie necessitates
bringing such person to face trial. In fact,
Examination-in-Chief untested by crossexamination, undoubtedly in itself, is an
evidence.

In view of the above, we hold that
power under Section 319 Cr.P.C. can be
676 INDIAN LAW REPORTS ALLAHABAD SERIES
exercised at the stage of completion of
examination-in-chief and Court does not
need to wait till the said evidence is tested
on cross-examination.......There is no
scope for the Court acting under Section
319 Cr.P.C. to form any opinion as to the
guilt of the accused...........

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."

13. In wake of the above cited case
law of five Judges Constitutional Bench
of Hon'ble Apex Court, there appears no
substance in the arguments advanced by
learned counsel for the revisionists that
the revisionists have been summoned
without cross-examination of witness and
without any express view of the court
below that there is likelihood of their
conviction.

14. The second ground challenging
the validity of impugned order also
appears baseless. Learned counsel for the
revisionists has filed a copy of Legal
Remembrancer's
Manual,
which
is
annexed as annexure-3 to the revision.

15. I have gone through these
provisions. There is no such provision in
it
providing
for
that
the
District
Government Counsel (Criminal) cannot
appear or move an application without
having specific written permission in a
particular case by the State Government.
Once the District Government Counsel is
appointed by the State Government to
conduct the legal proceedings on behalf of
the State Government either generally or
specially by the Government, he is free to
move any application necessary in the
interest of justice and expeditious disposal
of the case in discharge of his duty.
Nowhere
it
is
provided
in
Legal
Remembrancer's Manual that the District
Government Counsel is required to seek
permission from the State government
separately every time to move any
application.

16. Considering the aforesaid facts
and circumstances of the case and the
latest legal position, the revision is
dismissed at the admission stage itself.

17. A copy of this order be sent to
registry
forthwith
for
onward
communication to the court concerned.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.06.2014

BEFORE
THE HON'BLE RAJAN ROY, J.

U/S 482/378/407 No. 2433 of 2014

Vidya Singh ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Sanjay Kumar Pandey

Counsel for the Respondents:
Govt.
Advocate