State of Uttar Pradesh v. Dan Singh and Others

1. Heard Mr. Abhay Singh, the learned counsel for applicants and Sri Shashi Dhar Pandey learned A.G.A. for State and perused the record.

2. This application under section 482 Cr.P.C. has been filed by applicant who has been summoned by Court below has approached this Court with the following prayer: It is therefore most respectfully prayed that this Hon'ble Court may Hon'ble Court may graciously be pleased to allow this application and quash the entire proceedings of the Special Case No. 127 of 2023 "State of Uttar Pradesh Vs. Dan Singh and Others" under Sections 363, 366, 376 I.P.C.-1860 and Section 3, 4 of the Protection of Children from Sexual Offences Act, 2012 P.S. Shergarh, District Bareilly arising out of case crime no. 96 of 2020 pending in the court of Special Judge (POCSO Act), Court No. 3/ Additional Sessions Judge, Bareilly and the impugned order dated 05- 09-2024 passed by the learned Special Judge (POCSO Act), Court No. 3/ Additional Sessions Judge, Bareilly in Special Case No. 127 of 2023 "State of Uttar Pradesh Vs. Dan Singh and Others". It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of proceedings of the Special Case No. 127 of 2023 "State of Uttar Pradesh Vs. Dan Singh and Others" under Sections 363, 366, 376 I.P.C.-1860 and Section 3, 4 of the Protection of Children from Sexual Offences Act, 2012 P.S. Shergarh, District Bareilly arising out of case crime no. 96 of 2020 pending in the court of Additional Sessions Judge, Court No.-12, Bareilly and the impugned order dated 05-09-2024 passed by the learned Special Judge (POCSO Act), Court No. 3/ Additional Sessions Judge, Bareilly in Special Case No. 127 of 2023 "State of Uttar Pradesh Vs. Dan Singh and Others" and further direct the authorities not to take any coercive steps as against the Applicants during the pendency of the present application or to pass any order which this Hon'ble Court may think fit and proper in the circumstances of the case.

3. It transpires from record that in respect of an incident which is alleged to have occurred on 7.6.2020, a delayed F.I.R. dated 21.6.2020 was lodged by first informant Smt. Naraniya, mother of the prosecutrix and was registered as Case Crime No. 96 of 2020 under Sections 363, 366, 376 IPC, P.S. Shergarh, District Bareli. In the aforesaid F.I.R. five persons namely Dansingh, Chaman, Kasiram, Chotelal, and Kumarsen have been nominated as named accused.

4. Pursuant to aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of aforesaid Case Crime Number in terms of Chapter XII Cr. P. C. During course of investigation, Investigating Officer examined first informant/prosecutrix and other witnesses under section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of three of the named accused i.e. Dan Singh, Chaman, Kasiram accused is established in the crime in question. He, therefore, exculpated the present applicant in the charge sheet dated 23.7.2020.

5. Upon submission of aforesaid charge-sheet/police report, cognizance was taken upon same by Court concerned. Trial Court, framed charges against the charge sheeted accused, who denied the same and pleaded innocence. As a result, the trial procedure commenced. Prosecution in discharge of it's burden to bring home the charges framed against charge sheeted accused, adduced P.W.1 i.e. first informant and P.W.2.

6. After the deposition of aforesaid witness were recorded, prosecution filed an application dated 23.8.2024 under section 319 Cr.P.C, alleging therein that since complicity of prospective accused i.e named but not charge sheeted has also emerged in the crime in question, therefore, they be also summoned to face trial.

7. Court below by means of order dated 5.9.2024 has allowed the aforesaid application.

8. Consequently, applicants who are prospective accused have now been summoned by Court below to face trial, have now approached this Court by means of present application under section 482 Cr.P.C.

9. Learned counsel for applicant submits that the order impugned is not illegal only but also in excess of jurisdiction. Consequently, the same is liable to be quashed by this Court. In furtherance of aforesaid submission, the learned counsel for applicant submits that parameters with regard to exercise of jurisdiction under section 319 Cr.P.C. now stand crystalized by a five judges Bench judgement of Supreme Court in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92. The Bench after considering the entire gamut of case law ultimately opined that a prospective accused cannot be summoned merely on the basis of his complicity in the crime in question. Court below has to record its prima facie satisfaction which is something more than mere complicity of the prospective accused in the crime in question. Furthermore such satisfaction should be more than what is required at the time of taking cognizance and little less than what is required to record conviction. The impugned order does not show that any such exercise was taken by Court below. It is then contended by the learned counsel for applicant that subsequently, two different two Judges Bench of Supreme Court in Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 and S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 have reformulated the parameters regarding exercise of jurisdiction under section 319 Cr.P.C. but in favour of prosecutrix-accused. On a conjoint reading of the aforesaid judgments of Supreme Court the following mandate stands emerged: "(a) a prospective accused can be summoned under Section 319 Cr.P.C. upon consideration of the statement-in-chief of one prosecution witness. As such, Court concerned need not wait for the entire prosecution evidence to be recorded. (b) the plethora of evidence collected by the Investigating Officer during course of investigation is required to be looked into by a Court dealing with an application under Section 319 Cr.P.C. as it is relevant material. (c) Court while dealing with an application under Section 319 Cr.P.C. must examine the statement of the witness recorded under Section 161 Cr.P.C. and thereafter, draw a parallel to find out whether something new has emerged in the deposition of such a witness. (d) a prospective accused cannot be summoned simply on the basis of his mere complicity in the crime in question (e) Court can summon a prospective accused in exercise of jurisdiction under Section 319 Cr.P.C. only if, an inference of guilt of the prospective accused can be gathered from the material on record. (f) jurisdiction under Section 319 Cr.P.C. is an extra-ordinary discretionary jurisdiction and should be exercised sparingly. (g) Court should exercise it's jurisdiction under Section 319 Cr.P.C. diligently and not in a casual and cavalier fashion. (h) a prospective accused can be summoned only when some strong and cogent evidence has emerged against him and not merely on the basis of his complicity in the crime in question."

10. When the aforesaid test is applied, to the facts of the present case it is apparent that Court below has not exercised its jurisdiction diligently, but in a casual and caviliar fashion. No strong and cogent evidence has emerged against applicant which is something more than mere complicity of applicant in the crime in question. In view of above, the order impugned is liable to be set aside by this Court.

11. Per contra, the learned A.G.A has opposed the present application. However, he could not dislodge the legal submission urged by the learned counsel for applicant with reference to the record at this stage.

12. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of the record, this Court finds that the matter requires consideration.

13. Notice on behalf of opposite party - 1 has been accepted by the learned A.G.A.

14. Issue notice to opposite party -2.

15. All the opposite parties may file their respective counter affidavits on or before the date fixed in the notice.

16. Tag and list along with Application U/S 482 No. 38658 of 2024.

17. Considering the facts and circumstances of the case and also the submissions urged by learned counsel for applicants iin support of this application as noted herein above, as an interim measure, it is hereby provided that until further orders of this Court, the effect and operation of the order dated 5.9.2024, passed by Special Judge (POCSO act) Court NO.3/Additional Sessions Jude, Bareilly in Case No. 127 of 2023 "State of Uttar Pradesh Vs. Dan Singh and Others" under Sections 363, 366, 376 I.P.C.-1860 and Section 3, 4 of the Protection of Children from Sexual Offences Act, 2012 P.S. Shergarh, District Bareilly, shall remain stayed. Order Date :- 4.7.2025

1. Heard Mr. Abhay Singh, the learned counsel for applicants and Sri Shashi Dhar Pandey learned A.G.A. for State and perused the record.

2. This application under section 482 Cr.P.C. has been filed by applicant who has been summoned by Court below has approached this Court with the following prayer: It is therefore most respectfully prayed that this Hon'ble Court may Hon'ble Court may graciously be pleased to allow this application and quash the entire proceedings of the Special Case No. 127 of 2023 "State of Uttar Pradesh Vs. Dan Singh and Others" under Sections 363, 366, 376 I.P.C.-1860 and Section 3, 4 of the Protection of Children from Sexual Offences Act, 2012 P.S. Shergarh, District Bareilly arising out of case crime no. 96 of 2020 pending in the court of Special Judge (POCSO Act), Court No. 3/ Additional Sessions Judge, Bareilly and the impugned order dated 05- 09-2024 passed by the learned Special Judge (POCSO Act), Court No. 3/ Additional Sessions Judge, Bareilly in Special Case No. 127 of 2023 "State of Uttar Pradesh Vs. Dan Singh and Others". It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of proceedings of the Special Case No. 127 of 2023 "State of Uttar Pradesh Vs. Dan Singh and Others" under Sections 363, 366, 376 I.P.C.-1860 and Section 3, 4 of the Protection of Children from Sexual Offences Act, 2012 P.S. Shergarh, District Bareilly arising out of case crime no. 96 of 2020 pending in the court of Additional Sessions Judge, Court No.-12, Bareilly and the impugned order dated 05-09-2024 passed by the learned Special Judge (POCSO Act), Court No. 3/ Additional Sessions Judge, Bareilly in Special Case No. 127 of 2023 "State of Uttar Pradesh Vs. Dan Singh and Others" and further direct the authorities not to take any coercive steps as against the Applicants during the pendency of the present application or to pass any order which this Hon'ble Court may think fit and proper in the circumstances of the case.

3. It transpires from record that in respect of an incident which is alleged to have occurred on 7.6.2020, a delayed F.I.R. dated 21.6.2020 was lodged by first informant Smt. Naraniya, mother of the prosecutrix and was registered as Case Crime No. 96 of 2020 under Sections 363, 366, 376 IPC, P.S. Shergarh, District Bareli. In the aforesaid F.I.R. five persons namely Dansingh, Chaman, Kasiram, Chotelal, and Kumarsen have been nominated as named accused.

4. Pursuant to aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of aforesaid Case Crime Number in terms of Chapter XII Cr. P. C. During course of investigation, Investigating Officer examined first informant/prosecutrix and other witnesses under section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of three of the named accused i.e. Dan Singh, Chaman, Kasiram accused is established in the crime in question. He, therefore, exculpated the present applicant in the charge sheet dated 23.7.2020.

5. Upon submission of aforesaid charge-sheet/police report, cognizance was taken upon same by Court concerned. Trial Court, framed charges against the charge sheeted accused, who denied the same and pleaded innocence. As a result, the trial procedure commenced. Prosecution in discharge of it's burden to bring home the charges framed against charge sheeted accused, adduced P.W.1 i.e. first informant and P.W.2.

6. After the deposition of aforesaid witness were recorded, prosecution filed an application dated 23.8.2024 under section 319 Cr.P.C, alleging therein that since complicity of prospective accused i.e named but not charge sheeted has also emerged in the crime in question, therefore, they be also summoned to face trial.

7. Court below by means of order dated 5.9.2024 has allowed the aforesaid application.

8. Consequently, applicants who are prospective accused have now been summoned by Court below to face trial, have now approached this Court by means of present application under section 482 Cr.P.C.

9. Learned counsel for applicant submits that the order impugned is not illegal only but also in excess of jurisdiction. Consequently, the same is liable to be quashed by this Court. In furtherance of aforesaid submission, the learned counsel for applicant submits that parameters with regard to exercise of jurisdiction under section 319 Cr.P.C. now stand crystalized by a five judges Bench judgement of Supreme Court in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92. The Bench after considering the entire gamut of case law ultimately opined that a prospective accused cannot be summoned merely on the basis of his complicity in the crime in question. Court below has to record its prima facie satisfaction which is something more than mere complicity of the prospective accused in the crime in question. Furthermore such satisfaction should be more than what is required at the time of taking cognizance and little less than what is required to record conviction. The impugned order does not show that any such exercise was taken by Court below. It is then contended by the learned counsel for applicant that subsequently, two different two Judges Bench of Supreme Court in Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 and S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 have reformulated the parameters regarding exercise of jurisdiction under section 319 Cr.P.C. but in favour of prosecutrix-accused. On a conjoint reading of the aforesaid judgments of Supreme Court the following mandate stands emerged: "(a) a prospective accused can be summoned under Section 319 Cr.P.C. upon consideration of the statement-in-chief of one prosecution witness. As such, Court concerned need not wait for the entire prosecution evidence to be recorded. (b) the plethora of evidence collected by the Investigating Officer during course of investigation is required to be looked into by a Court dealing with an application under Section 319 Cr.P.C. as it is relevant material. (c) Court while dealing with an application under Section 319 Cr.P.C. must examine the statement of the witness recorded under Section 161 Cr.P.C. and thereafter, draw a parallel to find out whether something new has emerged in the deposition of such a witness. (d) a prospective accused cannot be summoned simply on the basis of his mere complicity in the crime in question (e) Court can summon a prospective accused in exercise of jurisdiction under Section 319 Cr.P.C. only if, an inference of guilt of the prospective accused can be gathered from the material on record. (f) jurisdiction under Section 319 Cr.P.C. is an extra-ordinary discretionary jurisdiction and should be exercised sparingly. (g) Court should exercise it's jurisdiction under Section 319 Cr.P.C. diligently and not in a casual and cavalier fashion. (h) a prospective accused can be summoned only when some strong and cogent evidence has emerged against him and not merely on the basis of his complicity in the crime in question."

10. When the aforesaid test is applied, to the facts of the present case it is apparent that Court below has not exercised its jurisdiction diligently, but in a casual and caviliar fashion. No strong and cogent evidence has emerged against applicant which is something more than mere complicity of applicant in the crime in question. In view of above, the order impugned is liable to be set aside by this Court.

11. Per contra, the learned A.G.A has opposed the present application. However, he could not dislodge the legal submission urged by the learned counsel for applicant with reference to the record at this stage.

12. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of the record, this Court finds that the matter requires consideration.

13. Notice on behalf of opposite party - 1 has been accepted by the learned A.G.A.

14. Issue notice to opposite party -2.

15. All the opposite parties may file their respective counter affidavits on or before the date fixed in the notice.

16. Tag and list along with Application U/S 482 No. 38658 of 2024.

17. Considering the facts and circumstances of the case and also the submissions urged by learned counsel for applicants iin support of this application as noted herein above, as an interim measure, it is hereby provided that until further orders of this Court, the effect and operation of the order dated 5.9.2024, passed by Special Judge (POCSO act) Court NO.3/Additional Sessions Jude, Bareilly in Case No. 127 of 2023 "State of Uttar Pradesh Vs. Dan Singh and Others" under Sections 363, 366, 376 I.P.C.-1860 and Section 3, 4 of the Protection of Children from Sexual Offences Act, 2012 P.S. Shergarh, District Bareilly, shall remain stayed. Order Date :- 4.7.2025