Allahabad High Court
Upendra And Another vs State Of U.P. And Another on 11 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 90 Case :- CRIMINAL REVISION No. - 1416 of 2023 Revisionist :- Upendra And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ravikant Shukla Counsel for Opposite Party :- G.A.,Manvendra Singh Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Ravikant Shukla, learned counsel for the revisionists, Sri Manvendra Singh, learned counsel for the opposite party no.2 and learned AGA for the State.
2. By way of present revision, revisionists, who are two in numbers, have challenged the order dated 04.02.2023 passed by the learned Additional Sessions Judge/Special Judge (Rape and POCSO Act), Court No.1, Fatehpur in Special Sessions Trial No.101 of 2019, by which application of first informant (father of victim) under Section 319 Cr.P.C. was allowed and revisionists were summoned under Sections-506 and 376 D IPC read with Section-7/8 of Protection of Children From Sexual Offences, Act 2012 to face the trial.
3. Contention of learned counsel for the revisionists is that for the incident dated 25.02.2019, FIR was lodged on 06.03.2019 by the father of victim under Sections-363, 366 and 506 IPC in Case Crime No.83 of 2019 at Police Station-Bindki, District-Fatehpur, making allegations that co-accused, Pawan Raidas enticed away his 13 year daughter Renu Devi and present revisionists also helped him in the aforesaid crime. During investigation, statement of victim under Section-161 Cr.P.C. and thereafter, under Section-164 Cr.P.C. was recorded but victim did not make any allegations against the present revisionists. On the contrary, she admitted that she had run away with Pawan Kumar willingly for marriage because she likes Pawan. During investigation, medical examination of victim was also conducted in which no opinion about sexual assault was given and CMO by certificate dated 04.04.2019 mentioned the age of victim Renu Devi as 19 year on the basis of radiological examination. Thereafter, police submitted charge-sheet dated 01.06.2019 against the co-accused, Pawan Raidas and involvement of revisionists was found to be false. It is also submitted that during investigation co-accused, Pawan as well as the victim Renu Devi and also the present revisionists had also approached this Hon'ble Court by way of Criminal Misc. Writ Petition No.7322 of 2019 challenging the FIR of Case Crime No.83 of 2019 registered at Police Station-Bindki, District-Fatehpur. In that writ petition, the victim Renu Devi had filed an affidavit stating therein that she willingly run away with Pawan and got married with him. On the basis of aforesaid affidavit of victim Renu Devi, writ petition was disposed of by order dated 15.03.2019 granting interim protection to all the petitioners including the present revisionists from arrest till submission of chargesheet.
4. It is further submitted that all these documents were before the court below during inquiry and on the basis of the evidence available on record, charges were framed against co-accused Pawan Raidas. During trial, PW-1 (victim) had taken u-turn and had stated that the present revisionists along with the co-accused, Pawan forced her to sit in Baleno Car and threatened that she had to get married with Pawan. Thereafter, they kept her at Maharajpur and repeatedly raped her for many days and thereafter co-accused, Pawan forced her to sign on blank paper and then brought her to this Court and thereafter, when the police raided at their house then they left the victim at Bindki, Lalauli Chauraha where the police recovered her. It was further contended that the statement of PW-1 was recorded at the instance of her father who is the first informant because aunty of revisionists, namely, Gudiya Devi had moved an application under Section 156(3) Cr.P.C. on 13.11.2017 which was registered as complaint case no.57 of 2018 in which summoning order was also passed on 19.07.2022 summoning the father of PW-1 (Jai Karan Nishad) and thereafter charges were also framed on 19.07.2022, against the first informant, Jai Karan Nishad for the incident dated 18.09.2017 for outraging her modesty, beating and injuring her as well as her family members.
5. Learned counsel for the revisionists lastly submitted that there is no sufficient material to summon them under Section 319 Cr.P.C. on the basis of statement of PW-1 recorded before the Court on 03.11.2020 as there is not only a u-turn from her earlier statement recorded under Sections-161 and 164 Cr.P.C. but there was serious contradiction in the statement of PW-1, therefore, prayed for quashing of the impugned order.
6. On the other hand, learned counsel for the opposite party no.2 had stated that the alleged complaint filed by the aunty of revisionists was lodged subsequent to the FIR lodged by the first informant (father of victim) against the revisionists. It was further submitted that as per the school certificate as well as statement of PW-1, her date of birth is 15.01.2006. Therefore, at the time of incident, victim was minor, therefore, her statement recorded under Sections-161 and 164 Cr.P.C. has no evidentiary value.
7. Learned AGA also submitted that on the basis of statement of PW-1, there is sufficient material on record to summon the revisionists under Section-319 Cr.P.C., therefore, present revision deserves to be dismissed.
8. After hearing counsel for the parties and from perusal of record, the first question arises is whether the material available during inquiry which was collected during investigation like statement under Section-161 Cr.P.C. as well as under Section-164 Cr.P.C. and also the medical examination report as well as age determination certificate of CMO can be looked into while summoning the accused under Section 319 Cr.P.C., on the basis of statement recorded at the time of trial.
9. Second question arises is whether there is sufficient material available on the basis of statement of PW-1 during trial to summon the revisionists.
10. Hon'ble Supreme Court in the case of Hardeep Singh Vs State of Punjab (2014) 3 SCC 92 had observed in paragraph no.54, which is being quoted as below :
"54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 Cr.P.C."
11. From the observations of the Hon'ble Supreme Court in the above case, it is clear that the material available at the time of inquiry is also the evidence for the purpose of Section-319 Cr.P.C. It is also clear that during inquiry only material that could be available is the material collected by the Investigating Officer during investigation because at that time, no other material could be brought on record but question arises relevancy of this material available during inquiry for the purpose of exercising power under Section 319 Cr.P.C. on the basis of evidence comes during trial. This question was also answered by Hon'ble Supreme Court in paragraph no.85 of Hardeep Singh Vs State of Punjab (supra), which is quoted hereinunder:
"85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The ?evidence? is thus, limited to the evidence recorded during trial."
12. Therefore, for exercising power under Section 319 Cr.P.C. apart from the evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilized for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C.
13. The evidence is thus limited to evidence recorded during trial but same can be corroborated or supported by the evidence available during inquiry.
14. So far as second question regarding the availability of sufficient material for summoning the revisionists on the basis of statement of PW-1 recorded at the time of trial is concerned, for that purpose, Hon'ble Supreme Court has already issued detailed guidelines in Hardeep Singh Vs State of Punjab (supra) in paragraph nos.105 and 106 which are quoted as below :
"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."
15. Similarly, Hon'ble Supreme Court in Sagar Vs. State of U.P. (2022) 6 SCC 389 also observed regarding sufficiency of material as well as power under Section-319 Cr.P.C. Relevant paragraph no.9 of the said judgement is quoted as under:
"9. The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above 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. The learned Single Judge of the High Court has even failed to consider the basic principles laid down by this Court while invoking Section 319 of the Code, which has been considered by the learned trial Judge under its order dated 30 th January, 2018."
16. From Section 319 Cr.P.C., it is clear that power of summoning a person as accused can be exercised on the basis of material coming on record during inquiry or trial. For ready reference, Section 319 Cr.P.C. is being quoted as below:
"319. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
17. The purpose of Section 319 Cr.P.C. is to impose a duty to enable the court so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to get escort free by being not arraigned in the trial instead of the possibility of his complicity which can be gathered from the document presented by the prosecution. The court is sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such power with a court in a criminal justice system where it is not uncommon that real accused, at times, gets away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes effort at times to get himself absolved and even at the stage of investigation or inquiry, even though he may be connected with the commission of offence. Therefore, word evidence used in Section 319 Cr.P.C. has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. The court, therefore, should be understood to have power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such power cautiously on such material after evidence has been led during trial.
18. Now, we come to second question whether there is sufficient material on the basis of statement of PW-1 recorded during trial to summon the revisionists under Section 319 Cr.P.C. In her statement, PW-1 admitted that she was medically examined for the purpose of any assault as well as for the purpose of determination of her age and also her statement was recorded by Magistrate but she had stated that her statement under Section-164 Cr.P.C. was recorded under the threat of co-accused, Pawan and her father, Harilal. At one stage of her statement, PW-1 has stated that, only Pawan had been residing with her in room and no other person was there but subsequently, she stated all persons had been residing with her in room. In examination-in-chief, she stated that all persons committed rape upon her repeatedly but in cross-examination, PW-1 stated that except Pawan, only revisionist no.1 committed rape upon her and no other person committed rape upon her. During trial there was only statement of PW-1 which was basis of passing the impugned order and there was no other evidence on record showing that any other person has seen the above incident as stated by PW-1. On considering the totality of statement of PW-1 as well as its corroboration with the material available at the time of inquiry i.e. statement under Sections-161 and 164 Cr.P.C., evidence is not sufficient for summoning the revisionists because as per the established law by Hon'ble Supreme Court, the test is that material must be more than prima facie case as exercised at the time of framing of charges but short of satisfaction to the extent that evidence if goes unrebutted would lead to conviction. So far as contention of counsel for opposite party no.2 that as per school leaving certificate of victim, she is minor, therefore, her statement recorded under Sections-161 and 164 Cr.P.C. is not relevant, is concerned, that is also misconceived because if this reasoning is accepted then her statement during trial as PW-1 will also cannot be treated as evidence. Even otherwise, it is established position of law that minority of a witness itself cannot be a ground to reject his/her testimony if he/she is quite mature to understand his or her testimony.
19. Therefore, in totality considering the material collected by the prosecuting agency during investigation available at the time of inquiry as well as the statement of PW-1 recorded during trial is not sufficient for summoning the revisionists as additional accused in exercise of power under Section-319 Cr.P.C. to establish the complicity of revisionists in crime.
20. In view of the facts discussed above as well as the law laid down by the Apex Court in Hardeep Singh Vs State of Punjab (supra) as well as Sagar Vs. State of U.P. (supra), the impugned order dated 04.02.2023 is set aside and the present revision is allowed.
Order Date :- 11.4.2023 S.Chaurasia