# Vijai Pandey and others Revisionists v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 876
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-06
- **Case number:** Criminal Revision No. 2457 of 2004
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijai-pandey-and-others-revisionists-v-state-of-u-p-and-others-41551
- **Pages:** 4

## Headnote

Code of criminal Procedure-section-309-
during trail of case under section 147,
148, 323, 325, 504, 506,IPC- on mere
application of prosecution framed charge
additional for defense under section 302,
307,IPC-framed held- illegal- without
taking
any
evidence-
No
additional
charges can be framed -order liable to
set a side.

Held: Para 8

Therefore, in my opinion, in present case
also, after framing charges against the
accused persons, the court below was
not justified to frame additional charges
under section 302/149 and 307/149,
without taking any evidence.
Case law discussed:
2007 (1) ALL JIC 37, 2002 CBC 354.

## Text

876 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
is urged that the Gram Pradhan of the
village is the 'Chachiya Sas' of the
respondent no. 7. Translated this means
that the Gram Pradhan is the wife of the
Uncle-in-law of the respondent no. 7. The
enumeration of relatives which have been
mentioned in Clause 3 of the Government
Order, are exhaustive, inasmuch as, the
word relative is followed by a transitive
verb "means", the objects whereof are the
specific relations defined therein.

3. In view of the same there is no
scope for this Court to include any other
relative apart from those defined in the
said Clause 3.

4. The pronouncement of this Court
in the case of Gyan Pratap Singh Vs. State
of U.P. and others reported in 2005 (2)
ESC 1199 and in the case of Sher Singh
Vs. State of U.P. and others reported in
2006 (1) ESC 4 support the aforesaid
conclusion drawn by the Court.The
Government Order under consideration
was presumably brought about to clarify
the meaning of the word 'relative' as the
earlier Government Order on the subject
issued in the year 1999 was subjected to
challenge the validity whereof was upheld
by this Court in the decision reported in
2002 (4) AWC 3065 Rashmi Dwivedi Vs.
State of U.P. and others.

5. Accordingly there is no merit in
the contention raised on behalf of the
petitioner and the writ petition is
accordingly dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Revision No. 2457 of 2004

Vijai Pandey and others ...Revisionists
Versus
State of U.P. and others ...Respondents

Counsel for the Revisionists:
Sri P.N. Tripathi
Sri M. Sarwar Khan

Counsel for the Respondents:
Sri Bijendra Kumar Mishra
A.G.A.

Code of criminal Procedure-section-309-
during trail of case under section 147,
148, 323, 325, 504, 506,IPC- on mere
application of prosecution framed charge
additional for defense under section 302,
307,IPC-framed held- illegal- without
taking
any
evidence-
No
additional
charges can be framed -order liable to
set a side.

Held: Para 8

Therefore, in my opinion, in present case
also, after framing charges against the
accused persons, the court below was
not justified to frame additional charges
under section 302/149 and 307/149,
without taking any evidence.
Case law discussed:
2007 (1) ALL JIC 37, 2002 CBC 354.

(Delivered by Hon'ble Vijay Kumar Verma, J.)

1. By means of this revision under
section 397 of the Code of Criminal
Procedure (in short 'the Cr.P.C.'), dated
19.05.2004, passed by Spl. Judge (E.C.
Act), Jaunpur, in S.T. No. 462 of 1999
3 All] Vijai Pandey and others V. State of U.P. and another
877
(State vs. Vijay Pandey & others), under
section 147, 148, 149, 323, 325, 304, 504,
506 IPC has been challenged.

2. By the impugned order, the
learned court below has allowed the
application 45-B moved on behalf of
complainant to frame alternate charge
under section 302 & 307 IPC.

3. The facts leading to the filing of
this revision, in brief, are that an FIR was
lodged on 02.06.1998 by Rajesh Kumar
(O.P. No.2 herein) at P.S. Pawara, District
Jaunpur, where a case at crime No. 82 of
1998, under sections 147, 148, 149, 323,
504, 506, 304 IPC was registered against
Vijay Pandey, Akhilesh @ Lala, Vimlesh,
Subhash,
Chintamani,
Sankatha,
Shatrughan and Lakshmi Kant. The
allegations made in the FIR, in brief, are
that the accused persons having lathi,
danda and hockey came on the door of the
house of the complainant on 02.06.1998,
at about 5.00 p.m. and caused marpeet,
thereby causing injuries to the father of
the complainant, due to which he died in
the hospital. Injuries are said to have been
caused to the complainant, his brother
Rakesh and mother Smt. Ladawati also.
After investigation, charge sheet was
submitted under aforesaid sections. On
the case being committed to the court of
session for trial, S.T. No. 462 of 1999 was
registered,
in
which
charges
under
sections 147, 148, 323/149, 325/149,
304/149, 504 & 506 IPC were framed
against
the
accused
persons
on
07.11.2000. Prior to leading any evidence,
an application was moved on behalf of
complainant that alternate charge under
section 302 and 307 IPC be framed
against the accused persons. The court
below vide impugned order has allowed
that application and order to frame
additional charge under section 302/149
and 307/149 IPC in the alternative has
been passed. Hence this revision.

4. I have heard arguments of Sri
M.S. Khan, Advocate, appearing for the
revisionists, Sri V.K. Mishra, counsel for
the O.P. No. 2 and AGA for the State.

5. The main submission made by
learned counsel for the revisionists was
that without taking any evidence the court
below could not frame additional charge
under section 302/307 read with section
149 IPC and hence the impugned order
being illegal, deserves to be quashed. For
this submission, reliance has been placed
on Ishwarchand Amichand Govadia vs.
State of Maharashtra & another 2007 (1)
ALL JIC 37 and Munna Lal Agrawal vs.
State of U.P. & others 2002 CBC 354.

6. In response, it was submitted by
learned counsel for the complainant and
AGA that charge can be altered or added
at any stage before pronouncing the
judgment and hence interference by this
Court in the impugned order would not be
justified, as the said order does not suffer
from any illegality or jurisdictional error.

7. I have given my thoughtful
consideration to the submissions made by
learned counsel for the parties and
perused the entire material on record. As
stated herein-above, on the basis of the
material available in the case diary, the
court below had framed charge under
section 147, 148, 323/149, 325/149,
304/149, 504, 506 IPC, vide order dated
07.11.2000 passed in S.T. No. 462 of
1999 (State vs. Vijay Pandey & others).
The record shows that without leading
any evidence by the prosecution in
support of the charges framed against the
878 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
accused persons, an application was
moved on 14.10.2003 on behalf of the
prosecution to frame alternate charges
under section 302 and 307 IPC. On the
basis of that application, the impugned
order has been passed to frame additional
charges under section 302/149 and
307/149 in the alternative without any
additional
evidence
or
material.
Therefore, in view of the observations
made by this Court in the case of Munna
Lal Agrawal vs. State of U.P. (supra) the
impugned order can not be said to be
justified. The following observations
made in para 5 are worth-mentioning:-

"Regarding Section 216 and 323
together it appears that Magistrate is
empowered to alter or add any charge at
any stage of the case or may commit the
case to the Court of Sessions before the
judgment is pronounced. However, it does
not mean that the charge can be altered
or added or the case can be committed
without any additional evidence or
without any additional circumstance.
Once the charge is framed, in my opinion
there must be some additional evidence of
additional circumstance to alter or add
the charge or to order that the case may
be committed to the Court of Sessions.
The additional circumstance, for example
may be that there may be clerical mistake,
accidental omission or mistake apparent
on the face of the record in framing of the
charge. If it is so the charge can be
altered or added under section 216
Cr.P.C. and the case may also be
committed under Section 323 Cr.P.C."

8. In the case of Ishwarchand
Amichand
Govadia
vs.
State
of
Maharashtra
(supra),
charge
under
section 304B IPC was added without
examination of doctor. The charge was
held to be unjustified by the Hon'ble Apex
Court. Therefore, in my opinion, in
present case also, after framing charges
against the accused persons, the court
below
was
not
justified
to
frame
additional charges under section 302/149
and
307/149,
without
taking
any
evidence.

9. Consequently, the revision is
allowed and impugned order dated
19.05.2004 is set aside. However, the
court below is at liberty to alter or add
charge after taking evidence of doctors.

10. The trial court concerned is
directed to conclude the trial of the
accused persons within a period of six
months applying the provisions of section
309 Cr.P.C. and avoiding unnecessary
adjournments. In case the accused persons
do not co-operate and cause delay in trial,
then their bail may be cancelled and after
sending them to jail, sincere efforts will
be made to conclude the trial within
aforesaid period.

11. SSP Jaunpur also is directed to
depute special messenger to procure the
attendance of witnesses after obtaining
their summons from the court concerned
and it must be ensured that all the
witnesses are produced for evidence in
S.T. No. 462 of 1999 without causing any
delay.

12. The Office is directed to send a
copy of this order within a week to the
trial court concerned and SSP Jaunpur for
necessary action.
---------
3 All] Abdul Raheem @ Kalloo V. State of U.P. and another
879
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.10.2009

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Revision No. 4151 of 2009

Abdul Raheem @ Kalloo ...Revisionists
Versus
State of U.P. and another ...Respondent

Counsel for the Revisionists:
Sri Shahroze Khan

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 319Summoning Order-offence under Section
304/34
IPC-contentions
that
what
stated
in
FIR
by
informant-totally
different facts hence stated during cross
examination- summoning order badheld-death caused in side the house-in
post mortem report-cause of death
reported as result of smothering-onus lie
upon all the accused persons including
revisionist
only
consideration
for
summoning requires "which he appears
to have committed" nothing more-No
illegality in summoning order pointed
out- can not be interfered.

Held: Para 9

In such circumstances, it is not very
material if some doubts are cast about
whether the witness has been able to
establish that he was an eyewitness of
the incident. Also under section 319
Cr.P.C., it has basically to be seen from
the evidence where a person not being
an accused could be tried with another
for an offence "which he appears to have
committed."
The
section
requires
nothing more.
Case law discussed:
(2009) 1 SCC (Cri) 844, (2008) 1 SCC (Cri)
708, (2009) 1 SCC (Cri) 1006, 2009(1) JIC 362
(SC), (2007)1 SCC (Cri) 80, (2007) 10 SCC
433.

(Delivered by Hon'ble Amar Saran, J.)

1. Heard learned counsel for the
revisionist
and
learned
Additional
Government Advocate.

2. By means of this criminal revision
the revisionist has challenged an order
dated
11.9.2009
passed
by
the
Special/Additional
Sessions
Judge,
Siddharthnagar summoning the revisionist
in a case under section 304/34 IPC in
exercise of powers under section 319
Cr.P.C.

3. It is argued by the learned counsel
for the revisionist that as per the FIR there
was
no
sufficient
evidence
for
summoning the revisionist because as per
the FIR the informant was not an
eyewitness as he has stated that when he
reached the home of the revisionist and
the co-accused Nafis, when he received
information on mobile that his daughter
had died, but he falsely stated in Court in
his examination-in-chief that when he
reached the place, then he saw quarrel
taking place and Rahim, the revisionist
was kicking the deceased, Shakir Jahan,
whilst Reshma had given fist blow and
initially
summoned
accused
Nafis
pressing her neck. By the time, he
reached, the deceased had died and the
revisionist and co-accused had left the
dead body and had disappeared from
there.

4. Learned counsel has placed
reliance upon the decisions of Hon'ble
Apex Court in Lal Suraj alias Suraj
Singh
and
another
Vs.
State
of
Jharkhand, (2009) 1 SCC (Cri) 844, Anil