# Suresh Kumar Singh v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 1162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-02
- **Case number:** Application u/s 482 No. 4695 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-kumar-singh-v-state-of-u-p-anr-opp-parties-51314
- **Pages:** 4

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Section
363, 366 & 376 - Trial court has power to
summon persons under Section 319 CrPC
if necessary, during trial - Exercise of
power under Section 319 CrPC must be
sparing and on higher pedestal - Person
summoned under Section 319 CrPC cannot
avail remedy of discharge under Section 227
CrPC.(Para -13)

Applicant seeks to set aside order passed by trial
court - not named in FIR or charge-sheet -
prosecutrix had levelled specific allegation against
petitioner while recording her statement under
Section 164 Cr.P.C - summoned under Section 319
CrPC - Applicant filed discharge application - rejected
by trial court. (Para - 2 to 4,14 )
HELD: - Court upheld impugned order, rejecting
discharge
application
of
applicant
who
was
summoned under Section 319 CrPC, finding no
infirmity or illegality in the trial court's decision. Nonbailable warrant issued against applicant kept in
abeyance. Applicant granted liberty to appear before
trial court to participate in proceedings. Trial court to
expedite trial proceedings.
(Para - 14 to 17)

Application u/s 482 Cr.P.C. disposed off
(admission stage). (E-7)

List of Cases cited:

## Text

1162 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court as well as the direction contained
in the judgments referred to above.

23. Before parting with, I appreciate
the efforts, research and drafting work
prepared by Sri Piyush Tripathi, Research
Associate attached with me, in finding out
the relevant case laws applicable in the
present case.
----------
(2024) 2 ILRA 1162
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.02.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application u/s 482 No. 4695 of 2023

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

Counsel for the Applicant:
Janardan Singh, Madan Gopal Tripathi

Counsel for the Opp. Parties:
G.A., Vishva Nath Pratap Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Section
363, 366 & 376 - Trial court has power to
summon persons under Section 319 CrPC
if necessary, during trial - Exercise of
power under Section 319 CrPC must be
sparing and on higher pedestal - Person
summoned under Section 319 CrPC cannot
avail remedy of discharge under Section 227
CrPC.(Para -13)

Applicant seeks to set aside order passed by trial
court - not named in FIR or charge-sheet -
prosecutrix had levelled specific allegation against
petitioner while recording her statement under
Section 164 Cr.P.C - summoned under Section 319
CrPC - Applicant filed discharge application - rejected
by trial court. (Para - 2 to 4,14 )
HELD: - Court upheld impugned order, rejecting
discharge
application
of
applicant
who
was
summoned under Section 319 CrPC, finding no
infirmity or illegality in the trial court's decision. Nonbailable warrant issued against applicant kept in
abeyance. Applicant granted liberty to appear before
trial court to participate in proceedings. Trial court to
expedite trial proceedings.
(Para - 14 to 17)

Application u/s 482 Cr.P.C. disposed off
(admission stage). (E-7)

List of Cases cited:

1. Jogender Yadav Vs St. of Bihar & ors., 2015 ALLMR (Cri).3707 (SC)

2. Hardeep Singh Vs St. of Punj. & ors., (2014) 3 SCC
92

3. Bhuboni Sahu Vs King, AIR 1949 PC: (1949) Cri LJ
872

4. Yashodhan Singh & Ors. Vs St. of U.P. & anr.,
(2023) 9 SCC 108

5. Sukhpal Singh Khaira Vs St. of Punj., (2023) 1 SCC
289: (2023) 1 SCC (Cri) 454

6. Brijedra Singh Vs St. of Raj., (2017) 7 SCC 706:
(2017) 4 SCC (Cri) 144

7. Dharam Pal Vs St. of Har., (2014) 3 SCC 306:
(2014) 2 SCC (Cri) 159

(Delivered by Hon'ble Rajesh Singh Chauhan,
J.)

1. Heard Mr. Madan Gopal Tripathi,
learned counsel for the applicant, Mr. Anirudh
Kumar Singh, learned A.G.A.-I appearing for
the State and Mr. Vishva Nath Pratap Singh,
learned counsel for the opposite party no.2.

2. The instant application under
Section 482 Cr.P.C has been filed by the
applicant to set aside the impugned order
dated 12.04.2023 passed by Additional
Session Judge, (P.O.C.S.O.-I), Ambedkar
Nagar in Session Trial No.23 of 2020 under
2 All. Suresh Kumar Singh Vs. State of U.P. & Anr.
1163
Section 363, 366 & 376 I.P.C. at Police
Station-
Ahirauli,
District-
Ambedkar
Nagar.

3. Learned counsel for the applicant
has contended that despite the fact that the
applicant was not named in the F.I.R. nor in
the charge-sheet though on the application
of the complainant filed under Section 319
Cr.P.C. (Annexure No.19), the learned trial
Court summoned the applicant vide order
dated 20.08.2015.

4. Learned counsel for the applicant
has informed the Court that challenging the
order dated 20.08.2015, the applicant has
filed a petition before this Court i.e. U/S
482/378/407 No.2023 of 2019 (Suresh
Singh Vs. State of U.P. and Another) and
this Court vide order dated 14.03.2019
granted liberty to the applicant therein to
file a discharge application before the Court
concerned. In compliance of the aforesaid
order dated 14.03.2019, the applicant filed
discharge application before the learned
trial Court and that application was rejected
by the learned trial Court vide impugned
order dated 12.04.2023.

5. Learned counsel for the applicant
further submitted that in the meantime, the
applicant appeared before the learned trial
Court and he has been enlarged on bail.

6. Learned counsel for the applicant
has contended that by means of impugned
order dated 12.04.2023, the learned trial
Court has observed that in view of the
dictum of the Hon'ble Apex Court in re:
Jogender Yadav Vs. State of Bihar &
Ors.,
reported
in
2015
ALL-MR
(Cri).3707
(SC),
the application for
discharge under Section 227 Cr.P.C. is not
maintainable, therefore, the same has been
rejected.

7. Learned counsel for the applicant
has referred the dictum of the Hon'ble Apex
Court in re: Hardeep Singh Vs. State of
Punjab & Others, (2014) 3 SCC 92 to
submit that the power to summon under
Section 319 Cr.P.C should be invoked by
the trial Court sparingly in as much as
exercise of power under Section 319 Cr.P.C
is placed on higher pedestal. He has further
submitted that if there being no cogent
material/evidence is available on record
against the person, he/she should not be
summoned under Section 319 Cr.P.C.

8. Learned counsel for the applicant
has also placed reliance upon the judgment
and order dated 16.1.2019 passed by the
Division Bench of this Court in Misc.
Bench No.28660 of 2018 (Haider Ali Vs.
State of U.P. and other), whereby, the
Division Bench of this Court has followed
the various dictum of the Hon'ble Apex
Court as well as of the Privy Council. The
Division Bench has referred the judgement
in re: Bhuboni Sahu Vs. King, AIR
1949 PC: (1949) Cri LJ 872, wherein,
the Privy Council has held that the
statement made under Section 164
Cr.P.C. can never be used as substantive
evidence of the fact stated but it can be
used to support or challenge evidence
given in Court by the person who made
his statement.

9. Therefore, in view of the aforesaid
judgement, the learned counsel for the
applicant has stated that the application
under Section 319 Cr.P.C was allowed only
for the reasons that during the course of
investigation, the prosecutrix had recorded
her statement under Section 164 Cr.P.C.
wherein she had levelled allegations against
the present applicant. So, on the basis of
such statement of the prosecutrix, the
application under Section 319 Cr.P.C.
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
should not have been allowed at that stage
of the trial.

10. Per contra, Mr. Anirudh Kumar
Singh, learned A.G.A.-I has submitted that
the law relating to Section 319 Cr.P.C. has
been developed by the Hon'ble Apex Court
firstly, in Hardeep Singh (supra) and later
on in re: Yashodhan Singh and Others
Vs. State of U.P. and Another, (2023) 9
SCC 108. In the judgement of Yashodhan
Singh (supra), the details of Hardeep
Singh (supra), Sukhpal Singh Khaira Vs.
State of Punjab, (2023) 1 SCC 289:
(2023) 1 SCC (Cri) 454, Brijedra Singh
Vs. State of Rajasthan, (2017) 7 SCC 706
: (2017) 4 SCC (Cri) 144 and Dharam
Pal Vs. State of Haryana, (2014) 3 SCC
306 : (2014) 2 SCC (Cri) 159 have been
followed.

11. Mr. Anirudh Kumar Singh,
learned A.G.A.-I has further submitted that
he is unable to comprehend as to why the
Investigating Officer has not filed chargesheet against the present applicant when
there was the statement of the prosecutrix
recorded
under
Section
164
Cr.P.C.
wherein,
she
has
levelled
specific
allegations against the present applicant.
He has further submitted that on the basis
of statement of the prosecutrix recorded
under Section 164 Cr.P.C, the present
applicant could have been summoned under
Section 319 Cr.P.C.

12. Mr. Anirudh Kumar Singh,
learned A.G.A.-I referring to the aforesaid
judgement has stated with vehemence that
this has been the consistent view of the
Hon'ble Apex Court that the persons who
are not named in the F.I.R. nor named in
the charge-sheet or who have been
discharged before framing of the charges
may be summoned under Section 319
Cr.P.C.

13. Having considered the material
placed on record and having regard to the
dictum of the Hon'ble Apex Court (supra), I
am of the considered opinion that if the
learned trial Court finds it necessary during
the course of trial that any person who was
not named in the F.I.R. or was also not
named in the charge-sheet but there are
some material/evidence to suggest that
he/she is also responsible in committing
such offence, he/she may be summoned
under Section 319 Cr.P.C. It is trite that
there is no finality attached to Section 319
Cr.P.C. Further, it is also trite that exercise
of power under Section 319 Cr.P.C. must be
placed on higher pedestal. The accused
summoned under Section 319 Cr.P.C. are
entitled to invoke the remedy under the law
against an illegal and improper exercise of
power under Section 319 Cr.P.C but that
cannot have the effect of the order being
undone by seeking a discharge under
Section 227 Cr.P.C., therefore, the Hon'ble
Apex Court in re: Jogendra Yadav (supra)
has held that a person, who is summoned
under Section 319 Cr.P.C. cannot avail the
remedy of discharge under Section 227
Cr.P.C.

14. In the present case, the petitioner
has been summoned under Section 319
Cr.P.C. for the reason that the prosecutrix
had levelled specific allegation against the
petitioner while recording her statement
under Section 164 Cr.P.C. during course of
investigation, hence, I do not find any
infirmity or illegality in the impugned order
dated 12.04.2023 whereby the discharge
application of the petitioner has been
rejected in view of dictum of Apex Court in
re: Jogendra Yadav (supra).
2 All. Harish Gulla & Anr. Vs. State of U.P. & Ors.
1165

15. At this stage, learned counsel for
applicant has confined his prayer to the
effect that the non-bailable warrant which
has been issued against the applicant vide
order dated 10.01.2024 may be kept in
abeyance and he shall participate in the
proceedings. He has also submitted that
the applicant has already been enlarged
on bail and due to inadvertence and
compelling circumstances, he could not
appear before the Court concerned,
therefore, the Court has issued nonbailable warrant dated 10.01.2024.

16. Considering the aforesaid
submissions advanced by learned counsel
for the parties and without interfering the
impugned order dated 12.04.2023, I
hereby
disposed
of
this
instant
application filed under Section 482
Cr.P.C., finally, at the admission stage
giving liberty to the applicant/petitioner
to appear before the Court concerned on
the
date
fixed
i.e.
08.02.2024
to
participate in the proceedings and he
shall
further
participate
in
the
proceedings
and
shall
not
take
unnecessary adjournments.

17. If the applicant appears before
the learned trial Court on 08.02.2024 i.e.
the date fixed, the non-bailable warrant
dated
10.01.2024
shall
not
be
executed against him. In case, the
applicant does not appear before the
Court concerned on the date fixed, the
learned trial Court would be at liberty
to take steps against him strictly in
accordance with law.

18. It is needless to say that the
learned trial Court shall expedite the trial
proceedings strictly in accordance with
law by affording opportunity of hearing to
all the parties concerned.
----------
(2024) 2 ILRA 1165
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.02.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application u/s 482 No. 6922 of 2022

Harish Gulla & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicants:
Dr. Pooja Singh, Abhinav Trivedi, Lalta Prasad
Misra

Counsel for the Opp. Parties:
G.A., Pranjal Krishna

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Sections
406, 419, 420, 506, 467, 468, 471 - Mens
Rea
is
an
essential
ingredient
for
composition of offence and all civil wrongs
cannot be termed as an offence - Facts of
each and every case are to be examined
while reaching to the conclusion that
whether, a wrong act comes under the
purview of offence? (Para -35)

Applicants entered an MoU with opp. no. 2 - for
development of Hi-Tech Township City Project -
Dispute
arose
regarding
non-transfer
of
land/plots - FIR lodged under various IPC
sections - Applicants arrested, released on bail,
and entered into settlement agreement -
UPRERA imposed ban on transfer of M/s Ansal
API properties - Court examined settlement
agreements, MoU, and UPRERA notices.(Para -
32 ,33 )

HELD: - Dispute is commercial in nature, and
mens rea (guilty mind) is missing. Applicants are
willing to transfer the remaining properties.
Allowing further criminal proceeding would
amount to harassment of applicants and
therefore the criminal proceedings against the