# Vinod Kumar Gupta v. State of U.P

- **Citation:** (2023) 9 ILRA 938
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-18
- **Case number:** Application U/S 482 No. 58 of 2009
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-gupta-v-state-of-u-p-50809
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 376 & 120-B - Code of Criminal
Procedure, 1973 - Sections 319 & 482 -
Summoning of Additional Accused - Validity of
Order
-
FIR
lodged
on
01.08.2007
by
prosecutrix alleging rape by Asha @ Sanjana
and two unknown persons at a hotel near
Charbagh Railway Station. Chargesheet filed
against Asha @ Sanjana and Sagar Sinha under
Sections 376 and 120-B IPC. During trial,
prosecutrix filed an application under Section
319 Cr.P.C. to summon the applicant (Vinod
Kumar Gupta) & anr. as accused, alleging their
involvement in the rape. Trial court allowed the
application on 11.12.2008, based on an internal
inquiry
with
the
Railways
Department
confirming
the
applicant's
posting
as
a
Travelling Ticket Examiner at Charbagh Railway
Station and the prosecutrix's claim that she
could identify him. Applicant challenged the
order, arguing no evidence supported his
involvement, and the trial court exceeded its
jurisdiction
by
relying
on
unauthorized
correspondence and presumptions. Court held
that Section 319 Cr.P.C. requires strong
evidence, more than a prima facie case, to
summon additional accused, as per Hardeep
Singh. The trial court's reliance on railway
9 All. Vinod Kumar Gupta Vs. State of U.P.
939
correspondence was impermissible, and the
assumption that the prosecutrix could identify
the applicant was conjectural. No cogent
evidence linked the applicant to the offence.
Impugned order dated 11.12.2008 and related
criminal proceedings quashed. (Paras 6-8, 2226, 29)

Application allowed.

List of Cases Cited:

## Text

938 INDIAN LAW REPORTS ALLAHABAD SERIES
challenging
the
appointment
of
an
Arbitrator. The revisionist never challenged
appointment of the Arbitrator under section
20 thereof. Sections 30/33 and 37 of the
Arbitration Act, 1940, read with Article 119
of the Limitation Act, give provision for an
application to be filed within 30 days of
notice of award; however, no such
application within the said period was filed
by the revisionist.

23. The arbitration award by way
of friction is executed as decree, but it is
not a decree as defined under section 2(2)
of CPC and therefore, the objection under
section 47 of CPC, which was filed only in
execution of decree (as defined under
section 2(2) CPC), is not maintainable in
the proceedings seeking execution of
award."

47. This Court has again taken view
that arbitral award is not a decree under
Section 2(2) of CPC, therefore, objection
filed under Section 47 of CPC is not
maintainable.

48. To conclude this point on the basis
of undisputed fact, objection under Section
47 of CPC filed against the arbitral award
is not maintainable as the same is not a
decree under Section 2(2) of CPC. Further,
arbitral award can be executed invoking
Section 36 of New Act, 1996 alongwith the
provisions of CPC in the same manner as if
it is decree of the Court.

49. Therefore, in light of facts of the
case, provisions of law as well as
pronouncements made by the Apex Court
as well as this Court, I found no good
reason to interfere with the impugned
orders. Writ petition lacks merit and is,
accordingly, dismissed with the cost of
Rs.1,00,000/- to be paid by the petitioners
to respondent no.2.
----------
(2023) 9 ILRA 938
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.09.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 58 of 2009

Vinod Kumar Gupta ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
R.B.S. Rathaur, Aditya Vikram Singh, Arun
Sinha, Jeet Bahadur

Counsel for the Opposite Party:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 376 & 120-B - Code of Criminal
Procedure, 1973 - Sections 319 & 482 -
Summoning of Additional Accused - Validity of
Order
-
FIR
lodged
on
01.08.2007
by
prosecutrix alleging rape by Asha @ Sanjana
and two unknown persons at a hotel near
Charbagh Railway Station. Chargesheet filed
against Asha @ Sanjana and Sagar Sinha under
Sections 376 and 120-B IPC. During trial,
prosecutrix filed an application under Section
319 Cr.P.C. to summon the applicant (Vinod
Kumar Gupta) & anr. as accused, alleging their
involvement in the rape. Trial court allowed the
application on 11.12.2008, based on an internal
inquiry
with
the
Railways
Department
confirming
the
applicant's
posting
as
a
Travelling Ticket Examiner at Charbagh Railway
Station and the prosecutrix's claim that she
could identify him. Applicant challenged the
order, arguing no evidence supported his
involvement, and the trial court exceeded its
jurisdiction
by
relying
on
unauthorized
correspondence and presumptions. Court held
that Section 319 Cr.P.C. requires strong
evidence, more than a prima facie case, to
summon additional accused, as per Hardeep
Singh. The trial court's reliance on railway
9 All. Vinod Kumar Gupta Vs. State of U.P.
939
correspondence was impermissible, and the
assumption that the prosecutrix could identify
the applicant was conjectural. No cogent
evidence linked the applicant to the offence.
Impugned order dated 11.12.2008 and related
criminal proceedings quashed. (Paras 6-8, 2226, 29)

Application allowed.

List of Cases Cited:

1. Hardeep Singh Vs St.of Punjab & ors., (2014)
3 SCC 92

2. Labhuji Amratji Thakor & ors. Vs St.of Gujarat
& anr., (2019) 12 SCC 644

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Aditya Vikram Singh,
learned counsel for the applicant, Sri
Aniruddha Kumar Singh, learned A.G.A.-I
and Sri Sanjay Kumar Yadav, A.G.A. for
the State.

2. Instant application has been filed
with prayer to quash the order dated
11.12.2008 passed by Additional Sessions
Judge FTC(III), Lucknow, in S.T. Case No.
119 of 2008 ( State Versus Smt. Asha Alias
Sanjana and others), arising out of Case
Crime No. 271 of 2007, under section 376,
120 B IPC, Police Station Naka, district
Lucknow and further prayed that the
operation, implementation and effect of the
order dated 11.12.2008 passed by the
Additional Sessions Judge / FTC-III,
Lucknow may be stayed.

3. Factual matrix of the case is that
first information report was lodged bearing
case crime no. 271 of 2007, by the
victim/prosecutrix at police station-Naka,
District- Lucknow under section 376 of
IPC, wherein, Asha @Sanjana and two
unknown persons were implicated. It has
been alleged in the first information report
that the prosecutrix was traveling with one
Asha @ Sanjana on 27.07.2007 and while
reaching at Charbagh Railway Station, she
met with two other unknown persons,
though were known to Asha @ Sanjana and
they took away the prosecutrix along with
Asha to nearby hotel and thereafter, they
committed rape with her.

4. From perusal of the order sheet, it
is evident that on 20.10.2022, this Court
has passed the order and noted that from
perusal of the report dated 22.01.2020
submitted by the Chief Metropolitan
Magistrate, Kanpur Nagar reveals that the
victim in this case has changed her place of
residence and shifted to some other unknown place, which is not known to
anyone
and
under
the
aforesaid
circumstances, the notice could not be
served. Now this Court is proceeding in the
matter.

5. After thorough investigation in the
matter, the chargesheet was filed on
08.10.2007, under section 376 and 120B of
IPC, against Asha @ Sanjana and Sagar
Sinha and during course of the trial, which
was numbered as Sessions Trial No. 119 of
2008 (State Vs Smt Asha @ Sanjana and
others), an application was instituted by the
prosecutrix under section 319 of Cr.P.C., on
29.08.2008, with prayer to summon Manish
Dubey and Rajesh Yadav, as accused
persons, who basically said to have
committed rape upon prosecutrix, on the
date of the incident. The application moved
by the prosecutrix was allowed by the
Sessions
court,
vide
order
dated
11.12.2008, whereby, the applicant as well
as one other accused, has been summoned.
Therefore, the order dated 11.12.2008,
which was passed in application under
940 INDIAN LAW REPORTS ALLAHABAD SERIES
section 319 of Cr.P.C., is under challenge,
in the present matter.

6. Contention of learned counsel for
the applicant is that the learned trial court
summoned the applicant, without there
being any evidence against him, as from
bare perusal of order dated 11.12.2008, it
reveals that learned Sessions Judge, after
the application, moved by the prosecutrix
under section 319 of Cr.PC, conducted an
inquiry of his own by seeking internal
report from some officer of the department
of the Indian Railways and on the basis of
said internal communication between the
learned trial court and the Railways, the
applicant has been summoned.

7. Adding his arguments, he submits
that learned trial court travelled beyond its
jurisdiction
and
on
the
basis
of
presumption, has given its finding that
since the applicant was working as
Travelling Ticket Examiner (T.T.E.), on the
date of Incident and therefore, he must be
the person, who committed rape with the
prosecutrix and not actually the person who
are named in the first information report.
Further, has also been assumed by the trial
court that once the applicant would be
produced before the prosecutrix, she could
identify the present applicant as being
involved in the offence. He submits that so
far as the statement of the prosecutrix is
concerned, she initially named some other
accused namely, Sagar Sinha and thus,
there was no reason to believe that the
present applicant has committed rape, as
there was no evidence except apart the
statement of the prosecutrix, before the trial
court, for invoking its jurisdiction under
section 319 of Cr.P.C. So far as two
unknown accused persons said to be
involved in offence are concerned, the
Investigating Officer, found two persons,
other than the present applicant, for
committing rape with prosecutrix, though
the prosecution, ultimately failed to prove
its case beyond the reasonable doubt
against them.

8. Adding his argument, he submits
that learned trial court has exceeded to its
powers vested under section 319 of Cr.P.C.
and has erroneously passed the impugned
order, on the basis of personal opinion
regarding involvement of the present
applicant, in the matter.

9. Section 319 of Cr.P.C. is quoted
herein 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;
9 All. Vinod Kumar Gupta Vs. State of U.P.
941

(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.

10. Referring the aforesaid, he
submits that during course of inquiry or
trial of an offence, any person can be
summoned if appears to have committed
the
offence
and
therefore
after
pronouncement of the judgment, no person
can be summoned under the above-said
provisions.

11. In support of his contention, he
has placed reliance on the judgment
reported in (2014) 3 SCC page 92
Hardeep Singh Versus State of Punjab
and Others and has referred paragraphs
78, 95 and 105.

12. Paragraphs 78, 95 and 105 of the
judgment are quoted hereinunder:-

78. It is, therefore, clear that the
word "evidence" in Section 319 CrPC
means only such evidence as is made before
the court, in relation to statements, and as
produced before the court, in relation to
documents. It is only such evidence that
can be taken into account by the Magistrate
or the court to decide whether the power
under Section 319 CrPC is to be exercised
and not on the basis of material collected
during the investigation.

95.
At
the
time
of
taking
cognizance, the court has to see whether a
prima facie case is made out to proceed
against the accused. Under Section 319
CrPC, though the test of prima facie case is
the same, the degree of satisfaction that is
required is much stricter. A two- Judge
Bench of this Court in Vikas v. State of
Rajasthan [(2014) 3 SCC 321: (2013) 11
Scale 23]. held that on the objective
satisfaction of the court a person may be
"arrested"
or
"summoned",
as
the
circumstances of the case may require, if it
appears from the evidence that any such
person
not
being
the
accused
has
committed an offence for which such
person could be tried together with the
already arraigned accused persons,

105. Power under Section 319
CrPC
is
a
discretionary
and
an
extraordinary power. It is to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. It is
not to be exercised because the Magistrate
or the Sessions Judge is of the opinion that
some other person may also be guilty of
committing that offence. Only where strong
and cogent evidence occurs against a
person from the evidence led before the
court that such power should be exercised
and not in a casual and cavalier manner.

13. Placing reliance on above-said
judgment, he submits that it has been settled
that the Magistrate can invoke its power under
section 319 of Cr.P.C. while summoning an
accused, if there is much stronger evidence
than mere possibility of its complicity. It has
further been held that the test which has to be
applied, is that there is more than prima facie
case as it was at the time of exercising the
framing of charges and if it is not so, then
court should refrain to exercise its power
under section 319 of Cr.PC.

14. He has further placed reliance
rendered in case of Labhuji Amratji
Thakor and others Versus State of
Gujarat and another reported in (2019)
12 SSC page 644 and has referred
paragraphs 8 and 13 of the above-said
judgment. Paragraphs 8 and 13 of the
judgment are quoted hereinunder:-
942 INDIAN LAW REPORTS ALLAHABAD SERIES

"8. The Constitution Bench in the
above judgment in Hardeep Singh' has held
that under Section 319 CrPC court can
proceed against any person, who is not an
accused
in
a
case
before
it.
The
Constitution Bench, however, has held that
the person against whom the court decides
to proceed, "has to be a person whose
complicity may be indicated and connected
with the commission of the offence".

13. The High Court does not even
record any satisfaction that the evidence on
record as revealed by the statement of
victim and her mother even makes out a
prima facie case of offence against the
appellants. The mere fact that the Court
has power under Section 319 CrPC to
proceed against any person who is not
named in the FIR or in the charge-sheet
does not mean that whenever in a statement
recorded before the Court, name of any
person is taken, the Court has to
mechanically issue process under Section
319 CrPC. The Court has to consider
substance of the evidence, which has come
before it and as laid down by the
Constitution Bench in Hardeep Singh' has
to apply the test i.e. "more than prima facie
case as exercised at the time of framing of
charge, but short of satisfaction to an
extent that the evidence, if goes unrebutted,
would lead to conviction."

15. The Apex Court has reiterated the
principle which was laid down in Hardeep
Singh's Case and the test of more than
prima facie case has again been accepted,
for invoking the power under section 319
of Cr.P.C. Further so far as the Sessions
Trial No. 119 of 2008 (State Vs Smt Asha
@ Sanjana and others) is concerned that
was concluded and the judgment and order
was passed on 12.05.2014, wherein the
accused persons namely Asha@ Sanjana
and Sagar Sinha, have been acquitted.

16. Concluding his arguments, he
submits that the reasons for summoning the
present applicant mentioned in the order
dated 11.12.2008, goes against the settled
proposition of law rendered in case of
Hardeep Singh Versus State of Punjab and
Others and Labhuji Amratji Thakor and
others Versus State of Gujarat and another
(Supra), as the same has been passed on
conjuncture and surmises and that too on an
internal correspondence by the trial court to
the department of Railways, which is
impermissible under the law. He added that
except apart the aforesaid facts, there was
no stronger evidence against the applicant,
so as to substantiate the findings of learned
trial court in the order dated 11.12.2008.

17. Except apart the aforesaid
arguments, he has further submitted that the
applicant is no way involved in committing
the offence and he is about fifty-seven
years of age and is suffering with
carcinoma of advance stage, therefore,
further criminal proceedings against the
present
applicant
would
amount
to
harassment. Thus, submission is that the
impugned order dated 11.12.2008 may be
set aside and criminal proceedings against
the present applicant may be dropped.

18. Per contra, learned counsel for the
State
has
vehemently
opposed
the
submission aforesaid and argued that in fact
the prosecutrix could not identify the two
accused persons at the time of occurrence
of the offence and once the matter
proceeded then, she by way of filing an
application under section 319 of Cr.P.C.,
prayed for summoning the accused and also
prayed that the present applicant may be
tried together with other accused, who is
already named in the FIR. He added that in
fact there was no means with prosecutrix to
identify the present applicant and therefore,
9 All. Vinod Kumar Gupta Vs. State of U.P.
943
the persons to whom she could identify,
named him in the FIR and two unknown
persons were also told for committing rape
upon her.

19. He further contended that learned
trial court while passing the order dated
11.12.2008, has thoroughly discussed the
evidence which is evident from bare
perusal of the same, as apparently, there are
two grounds considered for invoking the
jurisdiction under section 319 of Cr.P.C.
Firstly, as discussed by the trial court that
since it was informed by the department
that on the date of the incident, the present
applicant including the other co-accused
was posted at the Charbagh Railway
Station and Secondly, the prosecutrix has
named the applicant including two other
unknown accused persons. The evidence
which have been discussed in the impugned
order dated 11.12.2008, is sufficient to
show more than the prima facie case
against the applicant, thus, submission is
that the order dated 11.12.2008 is lawful
and no interference is warranted.

20. Having heard learned counsels for
the parties and after perusal of material
placed on record, it transpires that initially
the FIR was lodged on 01.08.2007,
wherein, Asha @ Sanjana and two other
accused persons were named, though, the
Police filed the chargesheet against Sagar
Sinha, under section 376 of Cr.P.C.
Thereafter, the trial was concluded and the
accused persons, named in the FIR, namely
Asha @ Sanjana and Sagar Sinha, were
acquitted vide the judgment and order
dated 12.05.2014.

21. Fact remains that the application
under section 319 of Cr.P.C. was moved on
29.03.2008 before the trial court by the
victim herself and thereafter, the impugned
order was passed on 11.12.2008. The order
dated 11.12.2008 was challenged by the
applicant by way of the present application,
wherein, the interim order was passed on
16.04.2009 and since then, the matter is
pending before this Court, whereas, the
matter against other accused persons were
concluded on 12.05.2014, whereby, those
co-accused persons were acquitted.

22. From bare reading of the
impugned order, it emerges that the trial
court made some internal correspondence
to the department of railways, wherein, it
was intimated by the Railways Department
that the present applicant including one
other accused person, were posted at
Charbagh Railway station during the period
of alleged occurence. It seems that the trial
court on the presumption that since the
present applicant was also posted at
Charbagh Railway Station,therefore, he
would have involved in committing the
said offence, proceeded in the matter and
invoked the jurisdiction under section 319
of Cr.P.C., and summoned the applicant.

23.

Secondly,
the
ground
of
considering the victim's application under
section 319 of Cr.P.C., is that, if the
applicant including the other accused
persons shall be brought before the
prosecutrix, she would identify them,
which in fact based on conjecture and
surmises. The trial court has based its
finding on hypothesis as the evidence
which is expected to come into light in
future, was considered as one of the
strongest ground for summoning the
present applicant.

24. When this Court examines the
findings recorded by the trial court, in the
impugned order dated 11.12.2008, it
emerges that a letter which was sent to the
944 INDIAN LAW REPORTS ALLAHABAD SERIES
department
of
Railways,
seeking
information with respect to posting of the
applicant at Charbagh Railway Station and
further the response received thereof, are
unlawful as there is no such procedure
prescribed in Cr.P.C. or any other law for
the time being inforce, which could
empower the trial court to exchange any
internal correspondence to any of the
agency or institution for reaching upon any
conclusion and therefore, so far as the
present matter is concerned, the trial court
has wrongly proceeded, while referring the
matter, vide it's letter to the department of
Railways
thereby
seeking
certain
informations. Further such information
could not have been treated as an evidence,
at any stage of the trial.

25. This Court is also of considered
opinion that the provisions of criminal law
are stringent and that affects and curtails
the right to life and personal liberty of a
person and therefore, no order can be
passed on the basis of hypothesis unless
there is prima facie satisfaction of being
much stronger evidence. In the present
matter it has categorically been recorded in
the impugned order that 'if the applicant
shall
be
brought
before
the
prosecutrix/victim, she would identify the
accused who were involved in the offence.'
This clearly indicates that there is no
probability that the present applicant was
involved in committing offence.

26. It is trite law that nature of
satisfaction which is required for invoking
the power under section 319 of Cr.P.C. is
analogous to the degree of satisfaction as is
required for 'framing of charges' and
therefore, there requires much stronger
evidence than mere probability of the
complicity, but so far as the present case is
concerned, the trial court has failed to
follow the above-said test.

27. Further, there is un-rebutted
contention of counsel for the applicant that
the applicant is 57 years of age and he is
suffering with Carcinoma of advanced
stage. Though, the same do not have any
legal consequence, but it prima facie
corroborates the arguments.

28. This Court is also not unmindful
to the judgment of Apex Court rendered in
Hardeep Singh Versus State of Punjab and
Others and Labhuji Amratji Thakor and
others Versus State of Gujarat and another
(Supra), which also supports the version of
the applicant.

29. Consequently, the impugned order
dated 11.12.2008 is hereby set aside and the
criminal proceedings of Sessions Trial No.
Case No. 119 of 2008 ( State Versus Smt.
Asha Alias Sanjana and others) arising out
of Case Crime No. 271 of 2007 under
section 376, 120 B IPC, Police Station
Naka,
District
Lucknow,
are
hereby
quashed.

30. The application is allowed
accordingly.
---------
(2023) 9 ILRA 944
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 1663 of 2023

Mohan Lal Rathi ...Applicant
Versus
U.O.I. & Anr. ...Opposite Parties