# Smt. Shilpi Srivastava Revisionist v. State Of U.P. & Anr

- **Citation:** (2016) 7 ILRA 567
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-14
- **Bench:** Prabhat Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shilpi-srivastava-revisionist-v-state-of-u-p-anr-44139
- **Pages:** 5

## Headnote

This criminal revision has been filed for setting aside the order dated 28.04.2012 passed by the 6th Additional
Sessions Judge, Gautam Budh Nagar in Sessions Trial No. 12 of 2011 (Case Crime No. 446 of 2008), under
Section 306 I.P.C., Police Station Kasna, District Gautam Budh Nagar, whereby the revisionist has been
summoned under Section 319 Cr.P.C.It is submitted by learned counsel for the revisionist that a criminal
revision no. 542 of 2012 was filed by the opposite party no.2 before this Court against the order dated
25.01.2012 passed by the learned VIth Additional Sessions Judge, Gautambudh Nagar, whereby the
application filed by the prosecution under Section 319 Cr.P.C., for summoning the revisionist under Section
306 I.P.C., was rejected. The said revision was disposed of by a detailed order dated 24.02.2012 with the
direction to the Court below to consider the application of the prosecution after adducing of the evidence by
the complainant, thereafter, the application under Section 319 Cr.P.C., be decided,It is further submitted that
after passing of the order dated 24.02.2012, summoning order has been passed whereby the application
under Section 319 Cr.P.C., has been allowed. Learned counsel for the revisionist further contends that a bare
reading of the statements of P.W.2 and 3 as well as copy of the suicide note would go to show that no
offence under Section 306 I.P.C., is made out against the revisionist, who is the wife of the deceased. It is
thus contended that summoning of the revisionist under Section 319 Cr.P.C. is bad in law.I have gone through
the nature of the allegations made in the application under Section 319 Cr.P.C. and oral evidence of the
witnesses. It is alleged that the wife of the deceased Prabhat Srivastava has allegedly admitted premarital
illicit relationship and due to this, the deceased Prabhat Srivastava was compelled to commit suicide. The
learned Additional Sessions Judge while passing the impugned order has considered all the facts and
circumstances of the case and has rightly summoned the revisionist under Section 319 Cr.P.C. In view of the
above analysis, the impugned judgment and orders passed by both the courts below are perfectly legal and
there are no illegality or perversity in the same.
The revision lacks merits and accordingly deserves to be dismissed.

Held: Para-

Case Law discussed:
Sanju alias Sanjay Singh Sengar Vs. State of M.P., (2002) 5 Supreme Court Cases 371, Netai
Dutta Vs. State of W.B. (2005) 2 Supreme Court Cases 659 and State of Kerala and others Vs. S.
Unnikrishnan Nair and others, (2015) 9 Supreme Court Cases 639.
Sarojben Ashwin Kumar Shah Vs. State of Gujarat and another 2011 (74) ACC 951 has
considered the principles laid down in Michael Machado and another Vs. Central Bureau of
Investigation and another (2

## Text

7 All. Smt. Shilpi Srivastava Vs State Of U.P. & Anr.
567
section 28A did not apply, consequently the levy of penalty in terms of clause (o) of Section 15A
(1) was clearly unsustainable and unjustified.

7. While it is true that the proceedings for levy of penalty were instituted with reference to
clause (o) of Section 15A (1) alone, the case of the revisionist may be tested even on the pedestal of
Section 28B. It becomes pertinent to note that for violation of Section 28B or its provisions a like
penalty is provisioned for in clause (q) of Section 15A(1). The vehicle in question commenced its
journey in the State of Rajasthan and is stated to have been apprehended just before the check post
at Saiyan. The submission of the learned counsel for the revisionist that Saiyan was in fact the first
check post which the revisionist would cross in its passage of transit is not disputed. Now it needs
to be borne in mind that section 28B lays down the requirement of obtaining what may be called a
transit pass. This is a document which the person in charge of the vehicle must obtain at the time of
entry into the State and surrender upon exiting the State. The time at which this transit pass is to be
obtained and surrendered is prescribed to be "the first checkpost or barrier after his entry into the
State and deliver it to the officerincharge of the last checkpost or barrier before his exit from the
State". The statutory presumption of a sale having occurred within the State or a violation of
section 28B would come about only upon the failure on the part of the person to obtain the requisite
form and declaration upon crossing the first check post or barrier which fell after his entry into the
State. Here, the vehicle was apprehended before the first check post which fell upon entry into the
State. It was not the case of the Department that the vehicle of the revisionist had crossed the
Saiyan check post and was exiting the State of U.P. at which stage the goods were apprehended.
The provisions of section 28B were therefore not infringed. Consequently, the question of a levy of
penalty in terms of section 15A (1)(q) would also not arise. The Court therefore finds that the
orders of the authorized officer, first appellate authority as well as the Tribunal are clearly
unsustainable and arbitrary.

8. For the aforesaid reasons, this revision shall stand allowed. The orders dated 7 February
2000 and 30 May 2000 passed by authorized officer, 8 December 2000 passed by the first appellate
authority as well as the order dated 3 March 2005 passed by the Tribunal are hereby set aside.
----------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2016

BEFORE

THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

Criminal Revision No.- 1909 Of 2012

Smt. Shilpi Srivastava ...Revisionist
Versus
State Of U.P. & Anr. ...Opposite parties

Counsel for the Revisionist:
568 INDIAN LAW REPORTS ALLAHABAD SERIES

Manish Tiwari, Ashwini Kumar Awasthi, Vivek Prasad Mathur

Counsel for the Opposite parties:
Govt. Advocate, C.D. Mishra

This criminal revision has been filed for setting aside the order dated 28.04.2012 passed by the 6th Additional
Sessions Judge, Gautam Budh Nagar in Sessions Trial No. 12 of 2011 (Case Crime No. 446 of 2008), under
Section 306 I.P.C., Police Station Kasna, District Gautam Budh Nagar, whereby the revisionist has been
summoned under Section 319 Cr.P.C.It is submitted by learned counsel for the revisionist that a criminal
revision no. 542 of 2012 was filed by the opposite party no.2 before this Court against the order dated
25.01.2012 passed by the learned VIth Additional Sessions Judge, Gautambudh Nagar, whereby the
application filed by the prosecution under Section 319 Cr.P.C., for summoning the revisionist under Section
306 I.P.C., was rejected. The said revision was disposed of by a detailed order dated 24.02.2012 with the
direction to the Court below to consider the application of the prosecution after adducing of the evidence by
the complainant, thereafter, the application under Section 319 Cr.P.C., be decided,It is further submitted that
after passing of the order dated 24.02.2012, summoning order has been passed whereby the application
under Section 319 Cr.P.C., has been allowed. Learned counsel for the revisionist further contends that a bare
reading of the statements of P.W.2 and 3 as well as copy of the suicide note would go to show that no
offence under Section 306 I.P.C., is made out against the revisionist, who is the wife of the deceased. It is
thus contended that summoning of the revisionist under Section 319 Cr.P.C. is bad in law.I have gone through
the nature of the allegations made in the application under Section 319 Cr.P.C. and oral evidence of the
witnesses. It is alleged that the wife of the deceased Prabhat Srivastava has allegedly admitted premarital
illicit relationship and due to this, the deceased Prabhat Srivastava was compelled to commit suicide. The
learned Additional Sessions Judge while passing the impugned order has considered all the facts and
circumstances of the case and has rightly summoned the revisionist under Section 319 Cr.P.C. In view of the
above analysis, the impugned judgment and orders passed by both the courts below are perfectly legal and
there are no illegality or perversity in the same.
The revision lacks merits and accordingly deserves to be dismissed.

Held: Para-

Case Law discussed:
Sanju alias Sanjay Singh Sengar Vs. State of M.P., (2002) 5 Supreme Court Cases 371, Netai
Dutta Vs. State of W.B. (2005) 2 Supreme Court Cases 659 and State of Kerala and others Vs. S.
Unnikrishnan Nair and others, (2015) 9 Supreme Court Cases 639.
Sarojben Ashwin Kumar Shah Vs. State of Gujarat and another 2011 (74) ACC 951 has
considered the principles laid down in Michael Machado and another Vs. Central Bureau of
Investigation and another (2000) 3 SCC 262=2000 (40) ACC 795 (SC).

(Delivered by Hon'ble Prabhat Chandra Tripathi, J.)

1. Heard Sri Imran Ibrahim holding brief of Sri Manish Tiwari, learned counsel for the
revisionist, Sri Anand Kumar Tiwari, learned counsel for the opposite party no. 2 and learned
A.G.A. for the opposite party no. 1.

2. This criminal revision has been filed for setting aside the order dated 28.04.2012 passed
by the 6th Additional Sessions Judge, Gautam Budh Nagar in Sessions Trial No. 12 of 2011 (Case
7 All. Smt. Shilpi Srivastava Vs State Of U.P. & Anr.
569
Crime No. 446 of 2008), under Section 306 I.P.C., Police Station Kasna, District Gautam Budh
Nagar, whereby the revisionist has been summoned under Section 319 Cr.P.C.

3. It is submitted by learned counsel for the revisionist that a criminal revision no. 542 of
2012 was filed by the opposite party no.2 before this Court against the order dated 25.01.2012
passed by the learned VIth Additional Sessions Judge, Gautambudh Nagar, whereby the application
filed by the prosecution under Section 319 Cr.P.C., for summoning the revisionist under Section
306 I.P.C., was rejected. The said revision was disposed of by a detailed order dated 24.02.2012
with the direction to the Court below to consider the application of the prosecution after adducing
of the evidence by the complainant, thereafter, the application under Section 319 Cr.P.C., be
decided, copy of order dated 24.02.2012 is annexed as Annexure-7 to the affidavit accompanying
the revision. It is further submitted that after passing of the order dated 24.02.2012, summoning
order has been passed whereby the application under Section 319 Cr.P.C., has been allowed.
Learned counsel for the revisionist further contends that a bare reading of the statements of P.W.2
and 3 as well as copy of the suicide note would go to show that no offence under Section 306
I.P.C., is made out against the revisionist, who is the wife of the deceased. It is thus contended that
summoning of the revisionist under Section 319 Cr.P.C. is bad in law.

4. Learned counsel for the revisionist has relied upon three decisions of the Hon'ble Apex
Court in the cases of Sanju alias Sanjay Singh Sengar Vs. State of M.P., (2002) 5 Supreme Court
Cases 371, Netai Dutta Vs. State of W.B. (2005) 2 Supreme Court Cases 659 and State of Kerala
and others Vs. S. Unnikrishnan Nair and others, (2015) 9 Supreme Court Cases 639.

5. Learned counsel for the opposite party no. 2 and learned A.G.A. have opposed the
submissions raised by the learned counsel for the revisionist and contended that there are ample
evidence against the revisionist to summon the revisionist under Section 319 Cr.P.C., therefore, the
revisionist has been rightly summoned.

6. I have gone through the nature of the allegations made in the application under Section
319 Cr.P.C. and oral evidence of the witnesses. It is alleged that the wife of the deceased Prabhat
Srivastava has allegedly admitted premarital illicit relationship and due to this, the deceased
Prabhat Srivastava was compelled to commit suicide. The learned Additional Sessions Judge while
passing the impugned order has considered all the facts and circumstances of the case and has
rightly summoned the revisionist under Section 319 Cr.P.C.

7. The above decisions relied upon by the learned counsel for the revisionist are based on
different facts and they are not applicable in the present case.

8. The Apex court in the case of Sarojben Ashwin Kumar Shah Vs. State of Gujarat and
another 2011 (74) ACC 951 has considered the principles laid down in Michael Machado and
another Vs. Central Bureau of Investigation and another (2000) 3 SCC 262=2000 (40) ACC 795
(SC). In para 16 their Lordships of the Apex Court has held as under :-
570 INDIAN LAW REPORTS ALLAHABAD SERIES

"16. The legal position that can be culled out from the material provisions of
Section 319 of the Code and the decided cases of this court is this:

(i) The Court can exercise the power conferred on it under Section 319 of the Code
suo motu or on an application by someone.

(ii) The power conferred under Section 319 (1) applies to all Courts including the
Sessions Court.

(iii) The phrase "any person not being the accused" occurring in section 319 does
not exclude from its operation an accused who has been released by the police under Section 169
of the Code and has been shown in Column 2 of the charge-sheet. In other words , the said
expression covers any person who is not being tried already by the Court and would include person
or persons who have been dropped by the police during investigation but against whom evidence
showing their involvement in the offence comes before the Court.

(iv) The power to proceed against any person, not being the accused before the
Court, must be exercised only where there appears during inquiry or trial sufficient evidence
indicating his involvement in the offence as an accused and not otherwise. The word 'evidence' in
Section 319 contemplates the evidence of witnesses given in Court in the inquiry or trial. The Court
cannot add persons as accused on the basis of materials available in the charge-sheet or the case
diary but must be based on the evidence adduced before it. In other words, the Court must be
satisfied that a case for addition of persons as accused, not being the accused before it, has been
made out on the additional evidence let in before it.

(v) The power conferred upon the Court's although discretionary but is not to be
exercised in a routine manner. In a sense, it is an extraordinary power which should be used very
sparingly and only if evidence has come on record which sufficiently establishes that the other
person has committed an offence. A mere doubt about involvement of the other person on the basis
of the evidence let in before the Court is not enough. The Court must also be satisfied that
circumstances justify and warrant that other person be tried with the already arraigned accused.

(vi) The Court while exercising its power under Section 319 of the Code must keep
in view full conspectus of the case including the stage at which the trial has proceeded already and
the quantum of evidence collected till then.

(vii) Regard must also be had by the Court to the constraints imposed in Section
319 (4) that proceedings in respect of newly - added persons shall be commenced afresh from the
beginning of the trial.

(viii) The court must, therefore, appropriately consider the above aspects and then
exercise its judicial discretion."
7 All. Nasaruddin @ Nahni & Ors. Vs State Of U.P. & Anr.
571
9. In view of the above analysis, the impugned judgment and orders passed by both the
courts below are perfectly legal and there are no illegality or perversity in the same.

10. The revision lacks merits and accordingly deserves to be dismissed.

11. Dismissed.

12. Interim order, if any, stands vacated.
-----------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Criminal Revision No.- 2117 Of 2016

Nasaruddin @ Nahni & Ors. ...Revisionists
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Revisionists:
Mohd. Ayub

Counsel for Opposite Parties:
G.A

Code of Criminal Procedure, 1973 - Ss. 482, 397 | Indian Penal Code, 1860 - Ss. 307, 323, 34,
149 -- Revisional Court - Quashing of Summoning Order - Remand to Trial Court - Scope of
Directions - Judicial Discretion of Trial Court - Direction to Appear Before Court - Legality

Code of Criminal Procedure, 1973 - S. 397 - Revisional Court - Power upon quashing
summoning order and remanding matter to trial court - Direction to consider specific provisions
of IPC (Ss. 34 and 149) amounts to interference with judicial discretion of trial court - Such
direction erroneous and liable to be quashed - Trial court to pass fresh order independently in
accordance with facts and evidence - Where a revisional court quashes a summoning order and
remands the matter to the trial court with a direction to pass a fresh order in accordance with the evidence on
record, any further direction by the revisional court to the trial court to consider specific factual observations
made by it or to examine the applicability of particular provisions of law - in the present case Sections 34
and 149 IPC - would indirectly interfere with the judicial discretion of the trial court in passing such fresh
order. The revisional court, having assigned the responsibility of passing a fresh order to the trial court in
accordance with the facts of the matter, cannot simultaneously circumscribe or direct the exercise of that
judicial discretion by dictating particular legal considerations. Held: The direction of the revisional court to
pass the fresh order in the light of its factual observations and to specifically consider the applicability of
Sections 34 and 149 IPC was erroneous and is quashed. The direction of the revisional court quashing the