# Smt. Kamla Devi & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 856
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-07
- **Case number:** Criminal Revision No. 2045 of 2017
- **Bench:** Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamla-devi-ors-revisionists-v-state-of-u-p-anr-45738
- **Pages:** 5

## Headnote

A.G.A., Sri Birendra Singh, Sri Niklank
Kumar Jain, Sri Pardeepta Kr. Shahi, Sri
Pradeep Kumar

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section 397/401 & Indian
Penal Code, 1860-Sections 307,326,504 &
Code of Criminal Procedure,1973-Section
319-accused subsequently impleaded is to be
treated as if he had been an accused when
the court initially took cognizance of the
offence-degree of satisfaction of Court for
summoning the accused ,the test are same as
applicable
for
framing
chargeHence,dismissed.(Para 11 to 14)

B. Power u/s 319 Cr.P.C. can be exercised by
Court against a person in FIR r no
chargesheet 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.(Para
11)
Criminal Revision dismissed. (E-6)

List of Cases Cited:-

## Text

856 INDIAN LAW REPORTS ALLAHABAD SERIES
juvenile. He will keep away him from the
company of known criminals and will try
to improve his future. In case of default,
the Board would be competent to cancel
the bail of revisionist
after giving
opportunity of hearing to him.
----------
(2020)02ILR A856

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.01.2020

BEFORE
THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Revision No. 2045 of 2017

Smt. Kamla Devi & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Udai Karan Saxena, Sri A.K. Singh
Solanki, Sri Pashali Slolanki

Counsel for the Opposite Parties:
A.G.A., Sri Birendra Singh, Sri Niklank
Kumar Jain, Sri Pardeepta Kr. Shahi, Sri
Pradeep Kumar

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section 397/401 & Indian
Penal Code, 1860-Sections 307,326,504 &
Code of Criminal Procedure,1973-Section
319-accused subsequently impleaded is to be
treated as if he had been an accused when
the court initially took cognizance of the
offence-degree of satisfaction of Court for
summoning the accused ,the test are same as
applicable
for
framing
chargeHence,dismissed.(Para 11 to 14)

B. Power u/s 319 Cr.P.C. can be exercised by
Court against a person in FIR r no
chargesheet 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.(Para
11)
Criminal Revision dismissed. (E-6)

List of Cases Cited:-

1. Anil Arya Vs. St. Of U.P. & Ors., Cr.Rev. No.
1216 of 2005

2. Hardeep Singh Vs. St. Of Punjab & Ors.
(2014) 3 SCC 92

3. Dharam Pal & Ors. Vs. St. Of Haryana & Anr.
(2004) 13 SCC 9

(Delivered by Hon'ble Rajendra KumarIV, J).)

1. Heard Sri A.K. Singh Solanki,
learned counsel for revisionists and Sri
Pradeep Kumar, learned counsel Opposite
Party No.2 and learned AGA for State and
perused the material available on record.

2. Revision is directed against the
impugned order dated 11.05.2017, passed
by Additional District and Sessions Judge,
Court No.3, Etah, in Sessions Trial No. 9
of 2016 (Crime No. 630 of 2014) State v.
Sher Bahadur, whereby Trial Court
invoking jurisdiction under Section 319
Cr.P.C. allowed the application paper No.
20(A)
and
summoned
the
accusedrevisionist for facing trial in Crime No.
630 of 2014 under Sections 307, 326 and
504 IPC, Police Station Aliganj, District
Etah.

3. Brief facts giving rise to present
revision are that Informant-Pravendra
Singh submitted a written Tehrir before
the Police Station Aliganj, District Etah
stating that on 22.10.2014 accused-Kamla
Devi provoked other co-accused to open
fire with intention to kill when Shakti
Singh, Bhakti Singh and Sher Bahadur
came there. Accused-Shakti Singh and
Bhakti Singh opened fire on victim
2 All. Smt. Kamla Devi & Ors. Vs. State of U.P. & Anr.
857
Shailendra Singh and Informant. Accused
Sher Bahadur, Shakti Singh and Bhakti
Singh chased them. Victim Shailendra
Singh received serious gun shot injuries
whereas informant got injured.

4. On the basis of written Tehrir,
case was registered as Case Crime No. 630
of 2014, under Sections 307 and 504 IPC
against four persons including the accused
revisionists. Medical of injured persons
were
done
on
22.10.2019.
After
investigation,
Investigating
Officer
submitted charge-sheet against one Sher
Bahadur Singh only exonerating accusedrevisionists. During trial PW-1 (Pravendra
Singh), PW-1 (Shailendra) were recorded
and on the application of Informant, Trial
Court passed impugned order.

5. Feeling aggrieved and dissatisfied
with the impugned order, present revision
is filed.

6. Learned Counsel for revisionist
submits that revisionists have been falsely
implicated on account of enmity; all the
four persons are of one family; revisionist
Nos. 2 and 3 are serving outside and on
this count only, they have been implicated
in the FIR. Investigating Officer did not
find any evidence against the revisionist,
therefore, exonerating them he filed
charge-sheet only against one accused i.e.
Sher Singh. It is further contended by him
that accused persons are innocent, Trial
Court did not appreciate evidence in the
right perspective and there is no evidence
to connect him with the present case. He
pointed out on some documents in support
of his contention.

7. On the other hand, learned counsel
for respondents supported the impugned
order and submitted that accused is named
in the FIR. On the application of
Informant, under Section 319 Cr.P.C. Trial
Court rightly summoned the accusedrevisionist for facing trial with other coaccused. During trial, PW-1 and PW-2
supported the prosecution case in the
Court. Statement of PW-1 and 2 are not
annexed by the revisionist but as per
impugned order it clearly shows the
involvement of accused-revisionist in the
incident and they have active participation
in the crime.

8. Section 319 of The Code Of
Criminal Procedure, 1973 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
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;
858 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

9. In Anil Arya v. State of U.P. and
Others, Criminal Revision No. 1216 of
2005, decided on 09.09.2016, this Court
held as under :-

"Whether evidence is correct or
not or credible enough or not to sustain
conviction and punishment is a matter
which would be seen after revisionist put
in appearance, lead evidence and thereafter
Trial Court examine the entire evidence
and record its finding thereon, but at the
stage of summoning of revisionist on the
basis of aforesaid statement in Trial under
Section 319 Cr.P.C., the probable defence
of accused summoned under Section 319
Cr.P.C. cannot be examined for the first
time in a revisional jurisdiction by this
Court."

10. In Hardeep Singh Vs. State of
Punjab and others 2014 (3) SCC 92,
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
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?

(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?"

11. 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
2 All. Smt. Kamla Devi & Ors. Vs. State of U.P. & Anr.
859
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 charge-sheet.

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 crossexamination.

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 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.

12. The aforesaid judgment in fact lay
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 same as
applicable for framing charge.

13. From the above discussion, it is
clear that order of summoning has been
passed by Court below in view of evidence
placed before it in the form of statement of
informant-PW-1 and PW-2 along with other
material. I, therefore, do not find any legal or
otherwise error in the impugned summoning
order warranting interference in this criminal
revision.

14. Dismissed.

15. Interim order, if any, stands
vacated.

16. Certify this judgment to the lower
Court immediately.
----------
860 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A860

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Revision No. 2226 of 2019

Madan Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Kamal Dev Rai

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Sections 397/401 &
Setion
156(3),203-complaint
dismissed-Magistrate is
empowered
either for dismissal of the complaint
or summoning of accused persons on
the basis of evidence collected in the
inquiry, by way of application of
judicial
mind-in
the
instant
case
dismissal of complaint is well within
jurisdiction of the Magistrate-Hence,
dismissed.(Para 6 to 10)

Criminal Revision dismissed.(E-6)

List of Cases Cited:

1. Ram Babu Gupta Vs. St. Of U.P. & Ors,
(2001) 43 ACC 50

2. Sukhwasi Vs. St. Of U.P.,(2007) 59 ACC 739

3. Suresh Chandra Jain Vs. St. Of M.P. &
Anr,(2001) 42 ACC 459

4. Aleque Padamsee & Ors Vs. UOI & Ors,
(2007) 6 SC 171

(Delivered by Hon'ble Ram Krishna
Gautam, J).)

1. As per office report, opposite
parties were served with notice, but no
counter affidavit got filed.

2. Heard learned counsel for
revisionist as well as learned A.G.A. for
State.

3. This criminal revision under
Section 397/401 Cr.P.C. has been filed by
Madan Singh with a prayer for setting
aside impugned order dated 11.03.2019,
passed
by
learned
Additional
Chief
Judicial
Magistrate,
Court
No.
8,
Farrukhabad, in Complaint Case No. 1756
of 2019 (Madan Singh Versus Jagdish and
others), under Section 203 Cr.P.C. and
thereby direction to court concerned for
reconsidering at the point of summoning.

4. Learned counsel for revisionist
argued that in application under Section
156(3) Cr.P.C. was moved for registration
and investigation of case. It was treated as
complaint,
wherein
statements
under
Section 200 and 202 Cr.P.C. were got
recorded.
Thereafter,
complaint
was
dismissed under Section 203 Cr.P.C.,
whereas statements were fully intact and
cognizable offence was made out. The
complainant
Madan
Singh
came
in
interaction with Jagdish, father-in-law of
his nephew Rohit, who was there to attend
his first marriage anniversary ceremony,
on 22.11.2016, along with his relative Raja
Ram and his daughter-in-law Kiran. They
pursued for marriage of Mohit with
Sheetal.
Under
their
persuasion,
complainant
along
with
his
family
members visited home of accused persons
at village Kankapur on 13.12.2016, but
they were pressurized for seeing Km.
Sheetal in that very night and after it
proposal was refused. But a threat of
coercion was exercised, whereupon a