Allahabad High Court
Deependra And Anr. vs State Of U.P. And Anr. on 11 November, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- CRIMINAL REVISION No. - 4053 of 2019 Revisionist :- Deependra And Anr. Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Pramod Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
Supplementary affidavit filed today is taken on record.
Heard Sri Pramod Kumar Srivastava, learned counsel for the revisionist, Sri Attreya Dut Mishra, learned A.G.A. and perused the record.
The instant criminal revision has been preferred against the judgment and order dated 19.08.2019 passed by Special Judge, POCSO Act, Kaushambi in Criminal Case No. 374 of 2016 (State vs. Mandheer) arising out of Case Crime No. 223 of 2016 under sections 363, 366, 376D I.P.C. and section 4 POCSO Act, Police Station Paschim Sharira, District Kaushambi whereby Special Judge POCSO Act, Kaushambi allowed the application 34 (Kha) under section 319 CR.P.C. moved by the opposite party no. 2 and summoned the revisionist no. 1 under section 363, 366, 376D, 328, 368 IPC and section 4 POCSO Act and revisionist no. 2 under section 363, 366, 368, 328 IPC and section 4 POCSO Act, Police Station Paschim Sharira, District Kaushambi.
It is argued by the learned counsel for the revisionist that both the accused-revisionists have been falsely implicated. The accused revisionist no. 2 is father of the accused-revisionist no. 1. The names of both the accused-revisionist do not appear in the FIR. However, in the statement under section 164 Cr.P.C. the victim has stated that the accused-revisionist no. 2 was driver of the vehicle in which she was dragged away while in her statement as PW1 before the court has stated that the accused-revisionist no. 2 was sitting in the said vehicle. Therefore, the impugned order needs to be set aside as despite there being no sufficient evidence on record, the trial court has summoned them under section 319 Cr.P.C. The revisionist no. 1 along with other co-accused were summoned under section 363, 366, 376D, 328, 368 IPC and section 4 POCSO Act and the revisionist no. 2 was summoned under section 363, 366, 368, 328 IPC and section 4 POCSO Act.
Learned A.G.A. has vehemently opposed the prayer of quashing of the impugned order and has argued that the FIR was lodged by the father of the victim, hence the name of the revisionist could not be known. He could come to know the name of the accused only after recovery of the victim. He has further argued that in the statement under section 164 Cr.P.C. the victim has clearly stated that the accused-revisionist no. 2 was a driver of the vehicle in which she was dragged away and subsequently something was given her to eat by him and the accused-revisionist no. 1, Deependran has been stated to have committed gang rape along with other accused upon the victim and similarly same statement has been given by her in her statement before the Court as PW2. Therefore, summoning order does suffer from any infirmity.
I have gone through the impugned order and have also gone through the statements of PW1 and PW2 which have been supplied by filing the supplementary affidavit today.
I do not find any infirmity in the impugned order because in the statement of the victim as well as informant given before the trial court though the names of the accused-revisionist are said to be involved in giving effect this occurrence as the accused-revisionist no. 2 is said to be driver of the vehicle in which the victim was dragged away and accused-revisionist no.1 is said to be involved in commission of gang rape upon the victim. The Supreme Court in the case of Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 in paragraph nos. 105 and 106 has held as under:
"105. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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."
"106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ?it appears from the evidence that any person not being the accused has committed any offence? is clear from the words ?for which such person could be tried together with the accused.? The words used are not ?for which such person could be convicted?. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."
In view of the above law, it is apparent that for invoking section 319 there should be of more than a prima-facie case as exercised at the time of framing of charge but short of satisfaction to an extent that evidence, if not rebutted, may lead to conviction.
The revision deserves to be dismissed and is accordingly dismissed.
The revisionists shall appear before the courts below within 30 days from today and move application for bail. If such an application is moved with the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused revisionists in the aforesaid case. But if the accused-revisionist do not appear before the courts below, the courts below shall take coercive steps to procure their attendance.
Order Date :- 11.11.2019 AU