State A of U.P v. Sonu and others) under Section
Case Details
Neutral Citation No. - 2025:AHC:76103 Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 4673 of 2025 Applicant :- Raj Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- G.A.,Jitendra Pal Singh,Siddharth Singh Hon'ble Rajeev Misra,J.
Legal Reasoning
12. Upon perusal of impugned order, this Court finds that the parameters laid down by Apex Court for summoning a prospective accused as noted above, are fully satisfied in the present case. Once the prosecutrix in her deposition before court below has clearly and categorically implicated the applicant for conspiring with the other co-accused for committing the crime in question, no illegality can be said to have been committed by Court below in summoning the applicant. Reference in this regard be made to the judgement of Supreme Court in Akhilesh VS. State of U.P. and Others, 2025 SCC Online SC 727. As such, prima facie no interference is warranted by this Court in present application. 13. When confronted with above, the learned counsel for applicant could not overcome the same. 15. Having heard the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, and upon perusal of record, this Court finds that no good groud has been made out to interfere with the order impugned. 16. As a result, the present application fails and is liable to be dismissed. Digitally signed by :- IMTIYAZ AHMAD High Court of Judicature at Allahabad 17. It is, accordingly, dismissed. Order Date :- 7.5.2025/Imtiyaz
Arguments
1. Heard Mr. Jitendra Pal Singh, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1. 2. Perused the record. 3. On the matter being taken up, the learned counsel for applicant submits that due to inadvertence, the High Court Legal Services Committee, High Court, Allahabad and the District Legal Services Committee, Aligarh, who are necessary and proper parties in this application under Sectioin 528 BNSS as it challenges the proceedings under POCSO Act also could not be impleaded as party respondents in present application. He, therefore, seeks permission of Court to amend the cause title of this application by party impleading respondents/opposite parties 3 and 4. aforementioned authorities as 4. Prayer made by the learned counsel for applicant is bona-fide. Same is not opposed by the learned A.G.A. 5. Accordingly, it is allowed. 6. Let necessary amendment/correction in the cause title of this application be carried out by the learned counsel for applicant during course of the day by impleading, the High Court Legal Services Committee, High Court, Allahabad and the District Legal Services Committee, Aligarh as party respondents/opposite parties 3 and 4. 7. Applicant- Raj Kumar, who was initially a prospective accused, and has now been summoned by Court below in exercise of jurisdiction under section 319 Cr.P.C, has approached this Court by means of present application under Section 528 BNSS with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present application and quash the impugned order dated 06.11.2024 passed in Session Case No. 2363 of 2023 (State A of U.P. Vs. Sonu and others) under Section 376D read with Section 120-B I.P.C., in Case Crime No. 131 of 2023, Police Station -Chandaus, District -Aligarh, pending in the Court of learned Special Judge (POCSO Act) Additional District & Sessions Judge, Aligarh, summoning the applicant for trial in the aforesaid case under Section 319 Cr.P.C. It is, further prayed that this Hon'ble court may be pleased to stay the effect and operation of the impugned Case order dated 06.11.2024 passed in Session Case No. 2363 of 2023 (State of U.P. Vs. Sonu and others) under Section 376D read with Section 120-B I.P.C., in Case Crime No. 131 of 2023, Police Station -Chandaus, District -Aligarh, pending in the Court of learned Special Judge (POCSO Act) Additional District & Sessions Judge, Aligarh, during pendency of present case, otherwise the applicant shall suffer irreparable loss and injury. And/or pass such other and further order as this Hon'ble court may deem fit and proper under the facts and circumstances of the present case." 8. Record shows that in respect of an incident, which is alleged to have occurred on 31.05.2023, a prompt FIR dated 31.05.2023 was lodged by first informant opposite party-2 Mohan Shyam and was registered as Case Crime No. 131 of 2023, under Sections 363, 366 IPC, Police Station -Chandaus, District -Aligarh,. In the aforesaid FIR, four persons namely (1) Sonu (2) Tinku (3) Rinku and (4) Raj Kumar were nominated as named accused. 9. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. During course of investigation he examined the first informant and other witnesses including the prosecutrix under Section 161 Cr.P.C. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. On the basis of above and other material collected by him during course of investigation he came to the conclusion that complicity of only three of the named accused namely Sonu, Tinku and Raj kumar is established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet/police report dated 29.6.2023 in terms of section 173(2) Cr.P.C. As per the aforesaid charge sheet/police report, aforementioned three named accused were charge sheeted under Sections 363, 366, 376, 506 I.P.C. and 5/6 POCSO Act, whereas applicant was exculpated by the Investigating Officer. 10. After submission of aforesaid charge sheet/police report cognizance was taken upon same by the Court concerned in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. Thereafter, court below framed charges against charge sheeted accused. They denied the charges so famed and demanded trial. Resultantly the trial procedure commenced. 11. Prosecution in discharge of it's burden to bring home the the charges so framed against charge sheeted accused adduced two prosecution witnesses namely PW-1 Mohan Shyam and PW-2 prosecutrix upto this stage. 12. After the depositions of aforesaid prosecution witnesses were recorded, prosecution/first informant filed an application dated 6.6.2024 under Section 319 Cr.P.C. praying therein that since as per the depositions of PW-1 and PW-2 the complicity of named but not charge sheeted accused Raj Kumar the applicant herein is also established in the crime in question, therefore, he be also summoned to face trial in aforementioned Sessions trial. It appears that no objection to the aforementioned application was filed by the charge sheeted accused to the aforesaid application. Court below upon appraisal and appreciation of the averments made in the application under Section 319 Cr.P.C. in the light of the the material on record came to the conclusion that as per the deposition of prosecutrix P.W.2 the complicity of applicant in the crime in question has clearly emerged. Court below came to the aforesaid conclusion on the basis of finding recorded by it that as per the deposition of PW-2 i.e prosecutrix the element of conspiracy on the part of the prospective accused i.e. applicant herein in committing the crime in question is prima facie established. 13. The law regarding summoning of a prospective accused stands crystallized by the Five Judges Bench judgement of the Supreme Court in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC, 92. Subsequently two different 2 Judges Bench judgements 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 the summoning of a prospective accused. On a conjoint reading of the aforesaid judgements the following parameters stand crystalized: (A) a prospective accused can be summoned on the statement-in-chief of one prosecution witness, (B) irrespective of above, the Court dealing with an application under Section 319 Cr.P.C. must consider the plethora of evidence, which has emerged during the course of investigation as it is an important material to conclude the complicity/innocence of a prospective accused, (C) The Court should draw a parallel in between the statement of the prosecution witness examined up to that stage as recorded under Section 161 Cr.P.C. as well as his deposition before Court below to find out whether somethig new has emerged in the deposition of a prosecution witness from what was stated by him in his statement under Section 161 Cr.P.C., (D) a prospective accused cannot be summoned merely on the basis of his complicity in the crime in question, only if an inference of guilt of the prospective accused can be inferred as per the evidence up tho this stage, (E) the power under Section 319 Cr.P.C. is an extra-ordinary power which must be exercised sparingly. Furthermore, Court should exercise it's jurisdiction under Section 319 Cr.P.C. diligently and not in a "casual and cavalier" fashion, (F) only when some strong and cogent evidence has emerged against a prospective accused rather than his mere complicity in the crime in question can a prospective accused be summoned and (G) Court can summon a prospective accused only when on the basis of material on record, it can record the same degree of satisfaction as observed in paragraph 106 of the judgment in Hardeep Singh (Supra).