High Court
Case Details
Court No. - 65 Case :- CRIMINAL REVISION No. - 3579 of 2021 Revisionist :- Sharafat And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Devashish Mitra Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
Legal Reasoning
"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. 105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. Learned counsel for the revisionists has further drawn the attention of the Court to para-12 of the above judgement: "12. Provision contained in section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes uncontroverted, would lead to be conviction of the accused." Learned counsel for the revisionists has further submitted that the revisionists even not named in the F.I.R. and after thorough investigation the police too has not included the name of the revisionists in the chargesheet, even then the learned Magistrate has summoned the revisionists exercising his power u/s 319 Cr.P.C. in a cavalier fashion and without having any cogent evidence against them. Learned counsel for the revisionists in this regard has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019, in which it has been held that : "The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused." Learned counsel for the revisionists laid much emphasis in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017, wherein it has been held by the Hon'ble Apex Court that,"Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the I.O. during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. revisionists) complicity has come on record". I have perused the order impugned and I am of the considered opinion that the same is dehors of the law laid down by Hon'ble the Apex Court in the aforesaid judgment. Thus, perusing the impugned order, I have got no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above), therefore, impugned order dated 01.12.2021 is hereby set aside and the matter is remanded back to learned trial Judge with a direction to re-consider and re-visit the entire matter once again and decide the same in the light of the ratio laid down in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92; Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839; Labhuji Bhai Amratji Thakor & others Vs. State of Gujrat, AIR 2019 SC 734; Nallasamy, Periyasami MANU/SC/0375/2019 and Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 by passing a well reasoned order within a period of eight weeks from the production of certified copy of this order. and others Vs. S.
Arguments
Heard Shri Devashish Mitra, learned counsel for the revisionists as well as learned A.G.A. for the State and perused the record. The instant criminal revision has been filed against the impugned order dated 01.12.2021 passed by the Special Judge, POCSO Act/Additional Sessions Judge, Court No.II, Bareilly in application under section 319 Cr.P.C. in Criminal Case No.187 of 2020 (State Vs. Parvej and others), arising out of case crime no.72 of 2016, under Sections 363, 366 I.P.C. and Section 17 of POCSO Act, Police Station-Nawabganj, District-Bareilly, whereby non-accused/revisionists have been summoned to face the trial. Contention raised by learned counsel for the revisionists is that the revisionists are not named in the F.I.R., which was lodged by one Omkar u/s 363, 366 I.P.C. and Section 17 of POCSO Act on 16.2.2016 against one Parvej and his family members, with the allegation that informant's minor daughter was enticed away during intervening night 14/15.2.2016. The informant found that her daughter is missing from his home in the morning hours of 14.2.2016 and the informant raised suspicion that Parvej with the help of his family members has taken away his minor daughter. It is also alleged in the F.I.R. that while going his girl has taken way jwellery of Rs.1 lac and cash amount Rs.7,000/- along with her. After recovery of the girl, her statement u/s 161 Cr.P.C. was recorded, in which she added the name of revisionists but the main allegation of kidnapping has been attributed to Parvej and Chandan. She states that she was carried by Parvej and Chandan to Jaipur, where they have assaulted upon her and committed rape with her. In her statement u/s 164 Cr.P.C., which was recorded on 27.2.2016, the girl has taken the name of Sharafat, Masrur, Chandan and Parvej with the allegation that they have stuffed her mouth and taken away to Jaipur through roadways bus and at Jaipur, Parvej has assaulted upon her and ravished her and thereafter left her to Bareilly. After thrashing the material on record, the I.O. of the case submitted charge sheet on 18.4.2016 only against Parvej s/o Puttan and Chandan S/o Rajendra Rastogi u/s 363, 366 I.P.C. and Section 17 of POCSO Act. Since the said offences are cognizable by the court of Session, therefore, the matter was remitted to the Special Judge, POCSO Act, Bareilly where the testimony of victim girl has been recorded, in which she declared her age as 20 years. I have perused the testimony of victim girl from which it is clear that the allegation of kidnapping and rape has been attributed to accused Parvej and Chandan. When the victim girl was confronted with her 164 statement given before the Magistrate, she also supported her. Thereafter, when the victim girl was put for cross-examination on 16.9.2021, the true story unfolded and from this it reveals that on her own she came out from her residence in the morning of 14.10.2016 and came from her village to Nawabganj on motorcycle of Parvej and Chandan and from Bareilly they came to Jaipur and remained there in seclusion for two good days. After the aforesaid testimony, an application u/s 319 Cr.P.C. was moved which was allowed by the impugned order and the revisionist have been summoned to face the trial. Learned counsel for the revisionists submits that the revisionists were neither named in the F.I.R. nor during the course of investigation also, their complicity was not found by the I.O. of the case and consequently, he has submitted charge sheet only against accused Parvej and Chandan. Thereafter, when the trial commenced, the testimony of victim girl was recorded as P.W.- 1, in which she taken the name of the revisionists. Thereafter, the informant has moved an application u/s 319 Cr.P.C. and the learned Magistrate vide impugned order dated 01.12.2021 has in a cavalier fashion summoned the revisionists in exercise of power under section 319 Cr.P.C. to face trial under Sections 363, 366 I.P.C. and Section 17 of POCSO Act. Learned counsel for the revisionists in this regard has relied upon the latest judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C. :
Decision
With the aforesaid observations, the present revision stands disposed off. Order Date :- 14.3.2022 M. Kumar/Madhurima Digitally signed by MANISH KUMAR Date: 2022.03.31 10:24:23 IST Reason: Location: High Court of Judicature at Allahabad