Dismissed

Sandeep Kumar v. State of U.P. Thru. Secy. Deptt. of Home Lko. and Another

Allahabad HC17 May 2023/523/2023

Case brief

AI extract

What is this about?

This criminal revision challenged the order summoning the revisionist as an additional accused under section 319 of the CrPC. The court examined if the trial court acted prematurely relative to the sentencing order and if sufficient evidence existed, finding the lower court's action sustainable.

What did the court decide?

The revision is dismissed; the impugned order summoning the revisionist is upheld.

Sandeep Kumar Vs State of U.P. Thru. Secy… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:34499 AFR

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Court No. - 28

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Case :- CRIMINAL REVISION No. - 523 of 2023 Revisionist :- Sandeep Kumar Opposite Party :- State Of U.P. Thru. Secy. Deptt. Of Home Lko. And Another Counsel for Revisionist :- Sudhir Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Shree Prakash Singh,J.

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Heard Sri Sudhir Kumar Singh, learned counsel for the revisionist, Sri Girijesh Dwivedi, learned A.G.A. for the State and perused the material placed on record.

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By means of the present application, prayer has been made to quash the impugned order dated 31.03.2023, passed by Additional Session Judge, court no. 4, Barabanki, Session Trial No. 273/2012, State of U.P. versus Rakesh, up to the extent of summoning of revisionist under section 319 of Criminal Procedure Code and to stay the operation and implementation of impugned order dated 31.03.2023, passed by the Kamal Kant Srivastava, Additional Session Judge, court no. 4, Barabanki, Session Trial No. 273/2012, State of U.P. versus Rakesh up to the extent of summoning of revisionist under section 319 of Criminal Procedure Code.

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Since, pure legal question is involved in this matter, thus, notice to the opposite party no. 2 is hereby dispensed with.

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Learned counsel appearing for the revisionist submits that initially the first information report was lodged against the present revisionist, including the other co-accused persons, wherein, after the investigation, the present revisionist was not found involved in committing offence and thus, his name has been expunged. He next added that thereafter, the trial commenced and at the time of conclusion of trial, on the date of the pronouncement of the judgment, the learned trial court while invoking its jurisdiction under section 319 of Cr.P.C. has summoned the present revisionist though, there was no substantial material against the revisionist to summon him under section 319 of Cr.P.C.

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Adding his arguments, he submits that during the course of the trial in the year only P.W.-1, P.W.-2 and P.W.-5 have named the present revisionist. He next added that in a very hurriedly

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manner and without recording the degree of satisfaction, the present revisionist has been summoned though, he was never involved in committing any offence and there is no material, which could show that there was more than prima facie or much stronger case is available against the revisionist.

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In support of his submission, he has drawn attention towards judgment reported in 2023 (1) Supreme Court Cases 289 Sukhpal Singh Khaira v. State of Punjab and has referred paragraph 39(1) and added that the constitutional bench of the Apex Court while answering a reference has held that power under section 319 of Cr.P.C. is to be invoked and exercised before the pronouncement of the order of sentence, where there is a judgment of conviction of the accused. It has further been held that if the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such, summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.

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Paragraph 39 (1) is quoted herein under:-

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Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?

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The power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day. it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.

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Referring the aforesaid, he submits that since there is no substantial evidence against the revisionist and the facts and circumstances for invoking the jurisdiction under section 319 of Cr.P.C. has not been discussed in the order impugned and therefore, the judgment and order passed dated 31.03.2023 is against the law enunciated by the Apex Court.

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Further, submission is that the impugned order dated 31.03.2023 may be set aside to the extent of summoning the

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revisionist-accused under section 319 of Cr.P.C.

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Learned counsel appearing for the State has vehemently opposed the submissions aforesaid and submits that the learned trial court has summoned the present revisionist under section 319 of Cr.P.C., after discussing in detail the facts and circumstances which itself is evident from the judgment and order dated 31.03.2023 started from internal page 22 of the judgment itself. He added that law is very clear on this point that the trial court can invoke its jurisdiction under section 319 of Cr.P.C. for summoning the accused, prior to the order of sentence, where, there is judgment of conviction of the accused. He also added that the case in hand is that the revisionistaccused has been summoned under section 319 of Cr.P.C. prior to the order of sentence. He has also drawn attention towards the constitution bench judgment in Sukhpal Singh Khaira v. State of Punjab Supra and added that while answering the reference, the Apex Court has also held that power under section 319 of Cr.P.C. can be invoked and exercised before the pronouncement of the order of sentence where, there is judgment of conviction of accused. He submits that the case aforesaid also supports the version of the prosecution.

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Concluding his arguments, he submits that there is no perversity or unlawfulness in the judgment and order dated 31.03.2023 and therefore, no interference is warranted.

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Having heard counsels for the parties and after perusal of material placed on record it transpires that a pea has been raised challenging the order dated 31.03.2023 that the learned trial court has erroneously invoked its jurisdiction under section 319 of Cr.P.C. while summoning the accused-revisionist. From perusal of the judgment and order, it transpires that prior to the order of sentence, the learned trial court while discussing the facts and circumstances on internal page 22 onwards of the judgment, has summoned the accused-revisionist under section 319 of Cr.P.C. The first set of argument of learned counsel for the revisionist was that on the date of the pronouncement, the trial court is not empowered to invoke its jurisdiction under section 319 of Cr.P.C. and the second set of argument is that there was no material evidence against the revisionist which could show that there was much stronger case to summon the revisionist while invoking its jurisdiction under section 319 of Cr.P.C.

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When this Court examines the first set of argument of learned counsel for the revisionist that the learned trial court has no jurisdiction to invoke its power under section 319 of Cr.P.C., at the time of pronouncement of the judgment, it is very much

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evident from the law propounded by the Apex Court in case of Sukhpal Singh Khaira v. State of Punjab, which was answered in paragraph 39(I) that power under section 319 of Cr.P.C. can be invoked and exercised before the pronouncement of the order of sentence and so far as the present revisionist's case is concerned, the learned trial court has exercised its jurisdiction under section 319 of Cr.P.C., prior to the order of sentence and thus, there is no erroneousness in the impugned judgment and order.

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So far as the second set of argument with respect to the nonapplication of mind regarding the material evidence of facts and circumstances discussed with the trial court is concerned, from page 22, there is detailed discussion of the evidences as well as the statement of the witnesses regarding the involvement of the revisionist in the offence and thus, there seems to be no unlawfulness in the judgment and order of the trial court regarding the application of mind to come to the conclusion that there was much stronger case available against the revisionist and therefore, there is no substance or force in the second set of argument of learned counsel for the revisionist.

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Resultantly, the instant revision has no merit and is hereby dismissed.

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Order Date :- 17.5.2023 Mayank

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Digitally signed by :- MAYANK PRATAP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Sandeep Kumar v. State of U.P. Thru. Secy. Deptt. of Home Lko. and Another

Case brief

What is this about?

What did the court decide?

Sandeep Kumar v. State of U.P. Thru. Secy. Deptt. of Home Lko. and Another

Case brief

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What did the court decide?

What the court decided

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