Dismissed

Hari Shankar v. State of U.P. Thru. Prin. Secy. Home Deptt. Lucknow and Another

Allahabad HC18 Sept 2024CRLR/1136/2024

Case brief

AI extract

What is this about?

The High Court rejected a revision challenging the trial court's dismissal of a Section 319 Cr.P.C. application. The revisionist argued the High Court erred in a previous order by entertaining an alibi claim. The High Court held that since its earlier judgment was final and considered the alibi facts, the trial court correctly relied on it to reject the summons application.

What did the court decide?

Criminal Revision No. 1136 of 2024 is dismissed, affirming the trial court's order rejecting the application under Section 319 Cr.P.C.

Hari Shankar vs State of U.P. Thru. Prin… — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:64353

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Court No. - 11

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Case :- CRIMINAL REVISION No. - 1136 of 2024 Revisionist :- Hari Shankar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lucknow And Another Counsel for Revisionist :- Ashish Raman Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Abdul Moin,J.

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Vakalatnama filed today by Shri Akhilesh Tripathi, Advocate, on behalf of respondent no. 2 is taken on record.

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Heard learned counsel for the revisionist, learned A.G.A. and Shri Akhilesh Tripathi, learned counsels for the respondents.

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Under challenge is the order dated 15.06.2024 passed by learned Additional District and Session Judge / F.T.C. First, Bahraich in Session Trial No. 235 of 2017 in re: State vs Swasti Devi and others. By the said order the application under Section 319 Cr.P.C. filed by the revisionist for summoning Shri Ravindra Nath Mishra has been rejected.

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The contention of learned counsel for the revisionist is that daughter of revisionist was married with son of respondent no. 2 on 13.07.2013 and was burnt on 04.05.2017. Thereafter FIR had been lodged in which respondent no. 2 had also been named in the capacity of being father in law of deceased in which chargesheet has been filed by the authorities after statement of prosecution witnesses namely the revisionist and his wife in which the name of respondent no. 2 did not find place. Being aggrieved, an application under Section 319 Cr.P.C. was filed which was allowed by learned trial court vide order dated 03.09.2019, a copy of which is annexure 22 to the revision. By the said order the respondent no. 2 had been summoned. Being aggrieved the respondent no. 2 filed an application under Section 482 Cr.P.C. No. 6936 of 2019 in re: Ravindra Nath Mishra vs State of U.P. and another before this Court. This Court vide judgement an order dated 22.03.2022, a copy of which is annexure 23 of the revision, set aside the summoning order dated 03.09.2019 and the matter was remanded back to learned trial court to pass a fresh order under Section 319

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Cr.P.C.

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Incidentally while allowing the application this Court had considered that the name of respondent no. 2 herein had been dropped while filing the chargesheet on the ground that on the date of incident i.e on 04.05.2017 he was at wheat purchasing center as he was working as Secretary at Sadhan Sahkari Samiti, Jhigha and it is only when he received information regarding death of his daughter in law when he was present at the wheat purchasing center that he went on the spot. Alongwith the application he also filed attendance register as well as certified copies of purchase orders. The Court had also considered the attendance register as well as certificate of the purchase orders that had been collected by the investigating officer.

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Considering the aforesaid this Court was of the view that when respondent no.2 herein / the applicant in the aforesaid application was at the wheat purchasing center when he received information about death of his daughter in law consequently this aspect of the matter should have been considered by learned trial court while passing order on the application under Section 319 Cr.P.C. which aspect of the matter had not been considered. Subsequent thereto learned trial court considering the observations as have been made by this court vide judgement and order dated 22.03.2022 has rejected the application filed by the revisionist under Section 319 of the Code considering the presence of respondent no. 2 herein on 04.05.2017 at the purchase center and considering the documents that had been produced in support thereof.

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Raising a challenge to the said order the instant revision has been filed.

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The argument of learned counsel for the applicants is that at the stage of considering an application under Section 319 Cr.P.C. the plea of alibi could not have been seen and as such this Court while passing judgement and order dated 22.03.2022 has patently erred in law in considering the said plea of alibi as raised by learned counsel for the respondent no. 2 while filing the aforesaid application.

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In this regard reliance has been placed on the judgement of Hon'ble Supreme Court in the cases of Rajendra Singh vs State of U.P. and others, (2007) 7 SCC 378 and Lok Ram vs Nihal Singh and another, (2006) 10 SCC 192 as well as the judgement dated 16.07.2024 of this Court in the case of Chetram vs State of U.P. and another passed in Criminal Revision No. 809.

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The aforesaid argument merits to be rejected outrightly. The reason is that this Court while passing the judgement and order dated 22.03.2022 has in fact considered the alibi which was raised by respondent no. 2 of he not being present on the spot on the date of incident and this Court observed that the attendance register, purchase orders etc, which should have been considered by the trial court, had not been considered which made the order unsustainable in the eyes of law. It is not the case of the revisionist that the said judgement of this Court has been challenged before Hon'ble Supreme Court and thus for all practical purposes the said judgement has attained finality.

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Once this Court has in fact considered the aforesaid aspect consequently this Court while sitting in a coordinate jurisdiction is not expected to comment upon a final judgement passed by this Court.

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Keeping in view the observations of this Court learned trial court vide order impugned has considered the presence of respondent no. 2 including the attendance register etc and had thereafter rejected the application filed under Section 319 Cr.P.C. Once the observations of this Court vide judgement and order dated 22.03.2022 have been considered by learned trial court which in fact was considered by this Court and the order of this Court has attained finality as such learned trial court while following the directions of this Court has not committed any illegality in passing the impugned order.

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Keeping in view the aforesaid discussion, the arguments raised by learned counsel for the revisionist are found to be patently misconceived.

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Accordingly, the criminal revision is dismissed.

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Order Date :- 18.9.2024/J. K. Dinkar

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Digitally signed by :- JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

Hari Shankar v. State of U.P. Thru. Prin. Secy. Home Deptt. Lucknow and Another

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Hari Shankar v. State of U.P. Thru. Prin. Secy. Home Deptt. Lucknow and Another

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