# Sudhakar Singh @ Bhannu Singh Pradhan v. State of U.P. and another

- **Citation:** (2010) 2 ILRA 457
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-02-20
- **Case number:** Criminal Application No. 1895 of 2010
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sudhakar-singh-bhannu-singh-pradhan-v-state-of-u-p-and-another-41586
- **Pages:** 7

## Headnote

Code of Criminal Procedure, Section 319
Summoning order-offence under Section
307 I.P.C.-on basis of statement made by
three prosecution witnesses-Trials Judge
not
recorded
basis
of
satisfaction
regarding conviction of applicant-and
the
evidence
adduced
remains
uncontroverted-absence
of
such
findings-Summoning
order-can
not
Sustainble.

Held: Para 23

In the instant case the court below while
passing the order under section 319
CrPC, has not recorded any specific
finding as to whether or not the evidence
adduced under section 319 CrPC if
unrebutted, would be sufficient to record
a conviction against the petitioner. In
absence of such finding, the impugned
order can not be sustained
Case law discussed:
(1983 (1) SCC 1), 2001 SCC (Crl) 1090,
(2007) 4 SCR 1023, 2008 (16) SCALE 276,
(2007) 4 SCC 773, 2009 (66) ACC 32,
458 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
2009 (66) ACC 273, (2000) 3 SCC 262,
2004 (7) SCC 792, 2009 (13) SCC 608,
(1979) 1 SCC 345).

## Text

2 All] Sudhakar Singh @ Bhannu Singh Pradhan V. State of U.P. and another
457
appreciate the submission is whether the
proceeding would culminate in the event
of acceptance of the objection raised
against the order. If the proceeding would
continue even after acceptance of the
objection,
the
order
would
be
interlocutory
but
in
the
event
of
acceptance of the objection if the
proceedings of the case culminate, the
order will not be an interlocutory order. If
this test is applied in the present case, the
summoning order can not be said to be an
interlocutory order because if the revision
filed by the petitioner had been allowed
and the summoning order had been
quashed, the proceedings initiated on
complaint filed by the respondent no.2
would have culminated. Therefore, the
learned Special Judge has committed
manifest error of law in treating the
summoning order as interlocutory order
and dismissing the revision as not
maintainable.

6. The petition under section 482
CrPC is allowed. The impugned order
dated 20.2.2009 passed by the revisional
court is set aside and the matter is
remanded to the learned Special Judge for
a fresh decision in accordance with law.

7. The revisional court is directed to
dispose of the revision expeditiously. The
learned
counsel
for
the
petitioner,
however, submitted that the trial court
may be directed not to proceed with the
criminal case till the disposal of the
revision by the learned Special Judge. It is
not necessary to pass any order in this
regard. The petitioner may move an
application for stay before the revisional
court and if any such application is
moved, the same may be considered and
disposed of in accordance with law.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.05.2010

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Application No. 1895 of 2010
Case: U/S 482/378/407

Ram Rang Bharti

 ...Petitioner
Versus
State of U.P. And Another ...Respondent

Counsel for the Petitioner:
Surya Narayan Mishra

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure, Section 319
Summoning order-offence under Section
307 I.P.C.-on basis of statement made by
three prosecution witnesses-Trials Judge
not
recorded
basis
of
satisfaction
regarding conviction of applicant-and
the
evidence
adduced
remains
uncontroverted-absence
of
such
findings-Summoning
order-can
not
Sustainble.

Held: Para 23

In the instant case the court below while
passing the order under section 319
CrPC, has not recorded any specific
finding as to whether or not the evidence
adduced under section 319 CrPC if
unrebutted, would be sufficient to record
a conviction against the petitioner. In
absence of such finding, the impugned
order can not be sustained
Case law discussed:
(1983 (1) SCC 1), 2001 SCC (Crl) 1090,
(2007) 4 SCR 1023, 2008 (16) SCALE 276,
(2007) 4 SCC 773, 2009 (66) ACC 32,
458 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
2009 (66) ACC 273, (2000) 3 SCC 262,
2004 (7) SCC 792, 2009 (13) SCC 608,
(1979) 1 SCC 345).

(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. Heard the learned counsel for the
petitioner and the learned AGA for the
respondent
no.1
and
perused
the
impugned judgment and order.

2. With the consent of the learned
counsel for the parties, this petition is
being disposed of finally at the stage of
admission.

3. It appears that the petitioner Ram
Rang Bharti has been summoned under
section 319 CrPC to face trial in regard to
the offence under section 307 IPC in
S.T.No. 358/2009 State vs. Vishnu
Prasad, vide the order dated 27.4.2010
passed by the Additional Sessions Judge,
Court No.5, Gonda.

4. During the trial, three witnesses
PW-1, PW-2 and PW-3 were examined,
who have deposed in regard to complicity
of the petitioners along with the chargesheeted accused. The learned lower court
placing reliance on the statements of the
witnesses, has passed the impugned order
summoning the petitioner.

5. The learned counsel for the
petitioner submitted that the learned
Additional
Sessions
Judge
has
not
recorded any satisfaction that on the basis
of the evidence adduced, there was a
possibility of conviction of the petitioner,
therefore, the summoning order is bad. It
was also submitted that petitioner was
named in the FIR but he was left in the
charge sheet.

6. The learned Additional Sessions
Judge has passed the summoning order
only on the basis of the statements of the
aforesaid witnesses without examining
other witnesses and getting them crossexamined.

7. In Joginder Singh v. State of
Punjab (1979) 1 SCC 345), the Apex
Court while dealing with the ambit and
scope of section 319 CrPC, held that the
court has power to add any person as
accused if there is sufficient evidence
indicating his involvement in the offence.

8. In Municipal Corporation of
Delhi v. Ram Kishan Rohtagi (1983 (1)
SCC 1) the Apex Court after referring to
the decision of Joginder Singh's case
(supra) observed that the power under
section 319 CrPC is an extra ordinary
power, which should be used very
sparingly only if compelling reasons
exists for taking cognizance against the
other person against whom some action
has not been taken.

9. In the case of Rakesh & another
vs. State of Hariyana, 2001 SCC (Crl)
1090, the Apex Court extended the
meaning of the term 'evidence' used in
section 319 CrPC to include not only the
evidence given during the inquiry or trial
but also the evidence collected during the
investigation and forming part of the case
diary. The Apex Court overruled the
submission that the term 'evidence' used
in section 319 CrPC would mean
"evidence which is tested by cross-
examination' by holding that the question
of
testing
the
evidence
by
crossexamination would arise only after
addition of the accused.
2 All] Ram Rang Bharti V. State of U.P. and Another
459
10. But in the case of Mohd. Shafi
v. Mohd. Rafiq & Anr., (2007) 4 SCR
1023, the Apex Court expressed a
contrary opinion and propounded that the
trial judge in terms of Section 319 CrPC
was required to arrive at his satisfaction
only after the cross-examination of the
witnesses is over with no exception.

11. Another Division Bench of the
Apex Court in the case of Hardeep Singh
vs. State of and Punjab and another
2008 (16) SCALE 276, doubted the
correctness of the judgment rendered in
the case of Mohd. Shafi v. Mohd. Rafiq &
another (supra) and referred the following
two questions to a Larger Bench:

(i) When the power under subSection (1) of section 319 of the Code of
addition of accused can be exercised by a
Court? Whether application under section
319 is not maintainable unless the crossexamination of the witness is complete?

(ii) What is the test and what are the
guidelines of exercising power under subsection (1) of section 319 of the Code?
Whether such power can be exercised only
if the Court is satisfied that the accused
summoned in all likelihood would be
convicted?

12. However, in Hardeep Singh's
case (supra) the Apex Court held that at
the stage of issuing summons or process,
a court has to see whether there is a prima
facie case against the person sought to be
summoned or against whom process is
sought to be issued.

13. In regard to necessity of cross
examination of the prosecution witnesses
before invoking section 319 CrPC 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 CrPC
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.

14. A Three Judge Bench of the
Apex Court in the case of Y. Saraba
Reddy vs. Puthur Rami Reddy (2007) 4
SCC 773, propounded that the term
evidence
under
section
319
CrPC
contemplates the evidence of witnesses
given in the court and not the materials
contained in the charge sheet or the case
diary. In this way, the Three Judge Bench
of the Apex Court has taken a view which
is different from the view expressed in the
case of Rakesh (supra) by a Two Judge
Bench of the Apex Court. Therefore, the
view expressed in Y. Saraba Reddy's case
would prevail.

15. In the case of Sarabjit Singh
and another vs. State of Punjab and
another 2009 (66) ACC 32, which was
decided much after the decision rendered
in the cases of Rakesh (supra), Mohd.
Shafi (supra) and Hardeep Singh (supra),
another Division Bench of the Apex Court
held
that
indisputably,
before
an
additional accused can be summoned for
standing trial, the nature of the evidence
should be such which would make out
460 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
grounds for exercise of extraordinary
power. The materials brought before the
court must also be such which would
satisfy the court that it is one of those
cases where its jurisdiction should be
exercised sparingly. The Apex Court
further observed that an order under
section 319 CrPC, therefore, should not
be passed only because the first informant
or one of the witnesses seeks to implicate
other person. Sufficient and cogent
reasons are required to be assigned by the
court so as to satisfy the ingredients of the
provisions. Mere ipse dixit would not
serve the purpose. Such an evidence must
be convincing one at least for the purpose
of
exercise
of
the
extraordinary
jurisdiction.
After
making
these
observations, the Apex Court further held
that the courts are required to apply
stringent tests; one of the tests being
whether evidence on record is such which
would reasonably lead to conviction of
the person sought to be summoned.

16. In Sarabjeet Singh's case, the
Apex Court further observed that mere
existence of a prima facie case may not
serve the purpose. Different standards are
required to be applied at different stages.
Whereas the test of prima facie case may
be sufficient for taking cognizance of an
offence at the stage of framing of charge,
the Court must be satisfied that there
exists a strong suspicion. While framing
charge in terms of section 227 CrPC, the
court must consider the entire materials
on record to form an opinion that the
evidence if unrebutted would lead to a
judgment of conviction. Whether a higher
standard be set up for the purpose of
invoking the jurisdiction under section
319 CrPC is the question. The answer to
these questions should be rendered in the
affirmative. Unless a higher standard for
the purpose of forming an opinion to
summon a person as an additional accused
is laid down, the ingredients thereof, viz.,
(I) an extraordinary case and (ii) a case
for sparingly exercise of jurisdiction,
would not be satisfied.

17. Another Division Bench of the
Apex Court in the case of Brindaban Das
and others vs. State of West Bengal,
2009 (66) ACC 273, propounded the same
principle and held that in matters relating
to invocation of powers under section 319
CrPC, the Court is not merely required to
take note of the fact that the name of a
person who has not been named as an
accused in the FIR has surfaced during
the trial, but the Court is also required to
consider whether such evidence would be
sufficient to convict the person being
summoned. The Apex Court further
observed that the fulcrum on which the
invocation of section 319, CrPC rests is
whether the summoning of persons other
than the named accused would make such
a difference to the prosecution as would
enable it not only to prove its case but to
also secure the conviction of the persons
summoned.

18. In the case of Michael Machado
&
Anr.
V.
Central
Bureau
of
Investigation & Anr., (2000) 3 SCC 262,
the Apex Court propounded that power
under section 319 CrPC vested in the
Court should be used sparingly and the
evidence on which the same was to be
invoked should indicate a reasonable
prospect of conviction of the person
sought to be summoned.

19. The prospects of conviction as
one of the requirement for summoning a
person as accused under section 319 CrPC
has been propounded even in the case of
2 All] Ram Rang Bharti V. State of U.P. and Another
461
Krishnappa vs. State of Karnataka, 2004
(7) SCC 792. It has been held in that case
that invocation of the power under section
319 CrPC should not have been resorted
to, since the chances of conviction on the
basis of the evidence on record was
remote. Applying the principles laid down
in the cases of Ram Kishan Rohtagi and
Michael Machado, the Apex Court
further ruled that the power to summon an
accused
is
an
extraordinary
power
conferred on the Court and it should be
used
very
sparingly
and
only
if
compelling reasons exist for taking
cognizance against the person other than
the accused.

20. In the case of Harbhajan Singh
& Another Versus 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:

"13. 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.

..... 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 crossexamination is over."

21. A survey of the aforesaid
decisions clearly reveals that the power
under section 319 CrPC 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 CrPC 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 (supra). The view
expressed in the case of Sarabjeet Singh
(supra) has also been expressed in the
case of Rakesh (supra), Hardeep (supra)
and Harbhajan (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
462 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Bench but another Division Bench of the
Apex Court in Harbhajan Singh's case
(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 CrPC,
therefore, he has no right to cross-examine
the witnesses being examined for the
purpose of section 319 CrPC. 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 CrPC. In this view of the
matter, there is no compulsion to get part
or full cross-examination of the witnesses
done before passing a summoning order
under section 319 CrPC. 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 CrPC can not be quashed only
on the ground that the witnesses have not
been cross examined.

22. In the cases of Sarabjeet (Supra),
Brindawan Das, Michael Machado (supra)
and Krishnappa (supra), it has been clearly
held that summoning order should be
passed only when the evidence, if
uncontroverted, is of such a nature as to
reasonably lead to conviction of the person
sought to be summoned. The standard of
evidence required for summoning an
additional accused should be higher than
the evidence required for framing charges
because the jurisdiction under section 319
CrPC is to be exercised sparingly in an
extra ordinary situation. Whether or not
any evidence is of such a quality as to
record
conviction
if
it
remains
uncontroverted, is a variable question
depending
upon
the
facts
and
circumstances of each case and no hard
and fast rule can be laid down in this
regard. However, the court considering the
evidence for the purpose of section 319
CrPC is not legally required to evaluate the
evidence as it is ordinarily done while
rendering the final judgment but the court
has to see whether or not, the evidence on
record appeals to the reason for the
purposes of section 319 CrPC and the story
narrated by the witnesses against the
person sought to be summoned is not
improbable and absurd and a conviction is
possible
on
such
statements,
if
uncontroverted. A non observance of this
legal
requirement
would
render
the
summoning order illegal.

23. In the instant case the court below
while passing the order under section 319
CrPC, has not recorded any specific
finding as to whether or not the evidence
adduced under section 319 CrPC if
unrebutted, would be sufficient to record a
conviction against the petitioner. In
absence of such finding, the impugned
order can not be sustained.

24. For the reasons discussed above,
the petition under section 482 CrPC is
2 All] Ram Rang Bharti V. State of U.P. and Another
463
allowed. The impugned order dated
27.4.2010 is set aside. The matter is
remanded to the learned trial court to
reconsider the application under section
319 CrPC in the light of the aforesaid
observations and pass an appropriate
order
in
accordance
with
law
expeditiously.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.05.2010

BEFORE
HON'BLE SHRI KANT TRIPATHI, J.

Criminal Application No. 2162 of 2010
Case: U/S 482/378/407

Ghan Shayam

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Abdul Rafey Siddiqui
Rehan Ahmad Siddiqui

Counsel for the Respondent:
G.A.

Code of Criminal Procedure- Section 482dismissal of Criminal Appeal in default-in
absence of counsel for Appellant-the
Lower appellate to fallow the procedure
prescribed under section 385 and 386even in absence of counsel for appellant
the court is bound to peruse the record
and the impugned judgement-then pass
appropriate
order
on
merit-heldimpugned
order
not
only
causing
miscarriage of justice but amounts to
abuse
the
process
of
court
order
quashed with consequential directions.
Held: Para 9

In view of the aforesaid reasons, the
impugned dismissal order has not only
occasioned in causing miscarriage of
justice but also amounts to abuse of the
process of the court, therefore, it seems
to be just and expedient to exercise
inherent power under section 482 of the
Code and to quash the dismissal order
dated 05.09.2008.
Case law discussed:
[1996 (4) SCC 720], [AIR 2008 SC 920], [AIR
1987 SC 1500]

(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. This petition under section 482 of
the Code of Criminal Procedure has been
filed to quash the impugned order
05.09.2008 passed by the Additional
Sessions
Judge,
Ambedkarnagar
in
Criminal Appeal No. 17 of 2007.

2. Heard learned counsel for the
applicant and the learned AGA and
perused the impugned order.

3. It appears that the applicant Ghan
Shyam was convicted and sentenced
under section 7/16 of the Prevention of
Food Adulteration Act by the Chief
Judicial Magistrate, Ambedkarnagar vide
the judgement and order dated 11.10.2007
rendered in Criminal Case No. 340 of
1999. The applicant preferred a criminal
appeal questioning the order of conviction
and sentence but the learned Additional
Sessions Judge, Ambedkarnagar instead
of dismissing the appeal on merit,
dismissed the same in default of the
applicant on 05.09.2008. The dismissal
order is being reproduced as follows:

"Case called out.
Appellant absent.
Today case fixed for argument.
Appellant neither present nor move an
adjournment application.
exemption application moved by appellant
but none is present to press,
hence rejected.
Call repeated