High Court
Case Details
1 Court No. - 87 Case :- CRIMINAL REVISION No. - 210 of 2022 Revisionist :- Lokendra And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ram Bahadur Singh Counsel for Opposite Party :- G.A., Vipin Kumar Hon'ble Shekhar Kumar Yadav,J. 1. Heard learned counsel for the revisionists, Mr. P.K. Sahi, learned State Law Officer for the State, Mr. Jai Kishan Rajpoot, holding brief of Mr. Vipin Kumar Rajpoot, learned counsel for opposite party no.2 and perused the record. 2. The instant revision has been filed against the order dated 23.11.2021 passed by Additional Sessions Judge/Special Judge- Rape and POCSO, Second, Etah in Session Trial No.834 of 2020
Legal Reasoning
arising out of Case crime No.13 of 2020, under Sections 363, 366, 376 IPC and Section 4 POCSO Act at Police Station Sakeet, District Etah by which the court below has summoned the revisionists under Section 319 Cr.P.C to face trial. 3. Brief facts of the case are that the complainant Ram Veer Singh has lodged an FIR against revisionists Lokendra, Hariom and two unknown persons alleging that on 03.02.2020 at about 5.00 pm in the evening, his daughter, namely, Sarita aged about 15 years has been enticed away by Lokendra son of Gayadeen and his brother Hariom. After investigation, the Investigating Officer has submitted charge sheet only against Om Prakash on 23.07.2020 under Sections 363, 366, 376 IPC and Section 4 POCSO Act and exonerated the revisionists Lokendra and Hariom. The complainant Ram Veer Singh and prosecutrix 2 Sarita have been examined as PW-1 and PW-2 and their statements have been recorded before the court below on 18.02.2021 and 21.10.2021. After recording statements of PW-1 and PW-2, the complainant moved an application under Section 319 Cr.P.C. before Special Judge, POCSO Act, Etah on 27.10.2021, who vide order dated 23.11.2021 have summoned the revisionists, hence, this revision. 4.
Legal Reasoning
Learned counsel for the revisionists has submitted that the revisionist are innocent and have been falsely implicated in the present case although the impugned FIR has been lodged against the revisionists. As per medical report, no injury has been found on the body of the victim. The age of the victim Sarita, as narrated in the FIR, is about 15 years whereas as per medical report, the age of the victim is 17-18 years. He has further submitted that the statement of the victim has been recorded under Sections 164 Cr.P.C. in which she has given statement under the pressure of her father. There are material contradictions in the statement of witnesses. He has further submitted that in the second statement (majeed bayan) recorded under Section 161 Cr.P.C., the prosecutrix has not levelled any serious allegations against the revisionists in which the prosecutrix has specifically levelled allegation against Lokendra and Hari Om for committing rape upon her, therefore, during investigation, the police has exonerated the revisionists. He has further submitted that the learned Magistrate has not considered the fact that for the same incident, two first information reports have been lodged by the same complainant and only on the basis of statements, the revisionists have been 3 illegally summoned, which is illegal on the face of record and is not sustainable in the eyes of law, hence, the same is liable to be set aside. 5. In support of his submission, learned counsel for the revisionists has relied upon the judgment of Hon'ble Supreme Court in the cases of Ramesh Chadra Srivastava vs. The State of U.P and another passed in Criminal Appeal No.990 of 2021, LiveLaw 2021 SC 468 and Sagar vs. State of U.P. and another passed in Criminal Appeal No.397 of 2022, 2022 LiveLaw (SC) 265. 6. On the other hand, supporting the impugned order, Mr. P.K. Sahi, learned State Law Officer for the State, Mr. Jai Kishan Rajpoot, holding brief of Mr. Vipin Kumar Rajpoot, learned counsel for opposite party no. 2 have vehemently opposed and have submitted that the impugned order passed by Court below is perfectly just and illegal. Court below has exercised it's jurisdiction with due diligence and not with material irregularity. Court below has not committed a jurisdictional error in allowing application under section 319 Cr.P.C. filed by opposite party-2 Ramveer Singh. The prosecutrix in her statement recorded under Sections 161 and 164 Cr.P.C. has clearly stated that she is about 14 years and the revisionists Hariom and Lokendra have committed rape upon her. The victim has specifically levelled serious allegations against the revisionists, hence, the court below has rightly summoned the revisionists. The impugned order does not suffer from any, illegality, infirmity or jurisdictional error and is based upon relevant considerations and supported by cogent reasons, hence 4 requires no interference by this Court. 7. I have considered the rival submissions advanced by learned counsel for the parties and perused the material available on record. 8. The scope and ambit of Section 319 Cr.P.C. have been elucidated in the case of Hardeep Singh (supra) by the Hon'ble Apex Court. It has been held that, all that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, the person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It has further been held that though under Section 319 (4) (b) Cr.P.C., the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. 9. The trial Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned thus the court need not wait for the evidence of such witness to be tested by cross-examination. In case of Sartaj Singh (supra), Hon'ble the Apex Court held thus:- "7. Applying the law laid down by this Court in the aforesaid decisions to the case of the accused on hand, we are of the opinion that learned Trial Court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant – injured eye witness. As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination-in-chief of the witness and the Court 5 need not wait till his cross-examination. If on the basis of the examination-in-chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial. At this stage, it is required to be noted that right from the beginning the appellant herein – injured eye witness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR. But on the basis of some enquiry by the DSP they were not charge- heeted. What will be the evidentiary value of the enquiry report submitted by the DSP is another question. It is not that the investigating officer did not find the case against the private respondents herein and therefore they were not charge sheeted. In any case, in the examination-in-chief of the appellant injured eye witness, the names of the private respondents herein are disclosed. It might be that whatever is stated in the examination-in-chief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein – injured eye witness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions in the FIR and the statement before the Court. Therefore, as such, the learned Trial Court was justified in directing to issue summons against the private respondents herein to face the trial." 10. The aforesaid judgment in fact lay down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge sheet is filed by police against him and the accused can be summoned only on the basis of examination-in-chief of witness and need not wait for cross-examination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C., Court has said that test are same as applicable for framing charge. 11. In the case of S.Mohammed Ispahani Vs Yogendra Chandak, (2017) 16 SCC 226, Hon'ble the Apex Court in para 6 35 has observed and held as under: "35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge sheet, it can do so.” 12. Perusal of the impugned order reveals that the learned Court below has allowed the application under Section 319 Cr.P.C., only after being satisfied with the evidences placed before it. Impugned order also reflects that the revisionists are alleged to have been involved in the crime, and their role has been stated by the victim before the Investigating Officer in her statement under Section 161 Cr.P.C. as well as Section 164 Cr.P.C as also in her deposition before the Trial Court. Deposition of P.W.-1, who is father/complainant of the victim and P.W.-2 (victim) falls in the realm of strong and cogent evidence and satisfies the test laid down by Constitution Bench judgement in Hardeep Singh (Supra). Perusal of the impugned order clearly establishes complicity of revisionists in the crime in question. Thus, the impugned order is, therefore, based on sound reasoning and logical findings, and the same is passed by the learned Trial Court after appreciating relevant precedent laid down by the Hon'ble Apex Court. 13. This Court, therefore, finds that arraying of the parties to the trial in the Court below, under Section 319 Cr.P.C., is in accordance with the evidentiary findings and in accordance with the settled principles of law, and the same does not cause any prejudice to the revisionists. Thus, this Court, in light of the 7 above made observations, does not deem it a fit case warranting its interference. 14. On what has been said above, the order of the trial court dated 23.11.2021 does not suffer from any irregularity, illegality or impropriety. No interference is called for by this Court. 15. The revision devoid of merits and the same is hereby dismissed. The revision is, accordingly, dismissed.
Decision
16. No order as to costs. Order Date :- 17.5.2022 Ajeet (Shekhar Kumar Yadav,J.)