Allahabad High Court
Jagdish Yadav vs State Of U.P. And 2 Ors. on 25 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2567
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 1 Case :- CRIMINAL REVISION No. - 2205 of 2020 Revisionist :- Jagdish Yadav Opposite Party :- State Of U.P. And 2 Others. Counsel for Revisionist :- Abhishek Yadav, Tulsi Singh Yadav Counsel for Opposite Party :- G.A. Ashutosh Kumar Pandey Hon'ble J.J. Munir,J.
Heard Mr. Abhishek Yadav, learned Counsel for the revisionist and Mr. Vinod Kant, the learned Additional Advocate General assisted by Mr. Shashi Shekhar Tiwari, learned Additional Government Advocate on behalf of the State of Uttar Pradesh.
2. This revision has been preferred, challenging an order dated 04.12.2020 passed by the Additional Sessions Judge (POCSO Act), Chandauli, in Misc. Case No. 287 of 2020 (arising out of Case Crime No. 73 of 2020) under Section 363 of the Indian Penal Code, 18601, Police Station - Balua, District - Chandauli.
3. It appears that the said case had arisen on an application made by the first informant, seeking a direction to the Superintendent of Police, Chandauli to undertake further investigation. This application has been made at a stage when Sessions Trial No. 73 of 2020, arising from the First Information Report giving rise to the crime, is pending on the basis of cognizance taken of a charge-sheet submitted by the Investigating Officer, charging opposite party no. 2 Sonu Kumar Gaud alone of offences punishable under Sections 363, 366, 376 of the Penal Code and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012. However, the Investigating Officer exculpated the other co-accused opposite party no. 3, Satish Kumar Gaud and co-accused Sonu Kumar Gaud, against whom, offence of gang rape, punishable under Section 376-D of the Penal Code, has been alleged by the prosecutrix, as would appear from her statement under Section 164 of the Code of Criminal Procedure, 19732 recorded by the Magistrate. The Trial Judge, before whom the application seeking a direction to further investigate the case was made, has rejected it by means of the impugned order, on the reasoning that the Police, after investigation, have submitted a charge-sheet in the case against one of the accused. In the opinion of the Trial Court, the Investigating Officer has taken into consideration the statement of the prosecutrix under Section 161 of the Code, her additional statement also under Section 161, her statement under Section 164, statement of the informant under Section 161, besides the medico-legal report and the school-leaving certificate, both relating to the prosecutrix, while submitting a charge-sheet against opposite party no. 2 alone and exculpating opposite party no. 3.
4. Before this Court, much was contended on behalf of the revisionist to the effect that the prosecutrix's statement under Section 164, that clearly discloses a case of gang rape against opposite party nos. 2 and 3, acting in concert, has been ignored by the Police to extend undue favour to the accused, particularly opposite party no. 3, Satish Kumar Gaud. It was emphasized that Satish Kumar Gaud was a member of the Zila Panchayat and had political influence that he has brought upon the Police to exculpate him. It was also submitted on behalf of the revisionist during the course of hearing that the prosecutrix and her family members were threatened by opposite party no. 3 with dire consequences, in case they did not withdraw from the prosecution. It was also alleged during the course of hearing that the revisionist was being threatened to withdraw the present revision, else he would face injury to his life and/or limb. The Police of Police Station - Balua, District - Chandauli were also alleged to be building up pressure upon the prosecutrix to withdraw from prosecution of the case.
5. This Court, taking note of all these facts, ordered impleadment of the Superintendent of Police, Chandauli, the Station House Officer, Police Station - Balua, District - Chandauli, Satyendra Yadav, and Investigating Officer, Sub-Inspector Lallan Ram, on the revisionist's application, to be impleaded as opposite party nos. 4, 5 and 6. Thereafter, this Court passed the following order on 20.01.2021 :
Impleadment application is allowed in part.
Let the Superintendent of Police, Chandauli, the Station House Officer, Police Station Balua, Satendra Yadav and the Investigating Officer, Sub Inspector, Lallan Ram Bind be impleaded as opposite party nos. 4,5 and 6 during the course of the day.
By the impugned order, the revisionist, who is the complainant of the crime and the father of the prosecutrix has made an application for further investigation which has been rejected vide order dated 04.12.2020. It is urged before the Court that opposite party Nos. 2 and 3, who are accused in the crime, are extending threats to the complainant and the prosecutrix to withdraw from the prosecution else they would be eliminated. On the other hand, it is pointed out that the impugned order, declining further investigation so as to bring home the complicity of Satish Kumar Gaud, opposite party no. 3 has been made ignoring from consideration the statement of the prosecutrix recorded under Section 164 Cr.P.C. and other material evidence in the case diary. The offence, according to the learned counsel for the revisionist, involves gang rape which has not been taken cognizance of. It is submitted further that the impugned order passed by the learned Special Judge, POCSO Act is bad because he has ignored from consideration material appearing against opposite party no. 3 on ground that cognizance has already been taken against the second opposite party for the offences charged and, therefore, no further investigation is possible.
A prima facie case is made out.
Admit.
Issue notice to respondent nos. 2 to 6 returnable on 28.01.2021.
Notice to the respondents shall be caused to be served by all means of communication which shall be caused to be served by the Chief Judicial Magistrate, Chandauli.
List in the additional cause list on 28.01.2021.
In the meanwhile, it shall be the responsibility of the Superintendent of Police, Chandauli to ensure that the revisionist or the prosecutrix are not harmed in life or limb or otherwise threatened in any manner.
Let this order be communicated to the Chief Judicial Magistrate, Chandauli and the Superintendent of Police, Chandauli by the Joint Registrar (compliance) today.
6. Notice was issued to opposite party nos. 2 and 3 vide order dated 05.01.2021. The Superintendent of Police, Chandauli filed his personal affidavit dated 03.02.2021 in Court on 04.02.2021, which was very disillusioning. He did not show the required concern, which the case merited. The material part of the S.P.'s affidavit dated 03.02.2021 is extracted below :
5. That it is relevant to mention here that the above noted criminal revision against the impugned order is arising out of Case Crime No. 73 of 2020 Under Section 363 IPC, registered at Police Station Baluwa, District Chandauli in which after due investigation charge-sheet has been submitted on 13.08.2020 upon which the learned Court below has taken cognizance on 17.08.2020. It may be added here after cognizance taken by the Magistrate, the Protest Application no. 287 of 2020 in Case Crime No. 73 of 2020 has been filed by the revisionist before court below which was rejected by the learned Additional Session Judge by vide impugned order dated 04.12.2020.
6. That in compliance of order dated 20.01.2021 the deponent has made deep inquiry regarding life and liberty of revisionist or the prosecutrix during the course of inquiry it came in the light that the revisionist is working as IVth class employees in the police department and at present he is posted as E.O.W. (Economic Offences Wing), District Varanasi office of Superintendent of Police and prosecutrix is living with her parents at Village Matiyara Police Station Baluwa District Chandauli, during the course of inquiry it is also found that the father of victim is notified history sheeter. For kind perusal of this Hon'ble Court a copy of history sheet of father of prosecutrix is being filed herewith and marked as ANNEXURE NO.1 to this affidavit.
7. That the from the perusal of order dated 28.01.2021 it appears that the revisionist under taken before this Hon'ble Court that he is threatened by Satish Kumar Gaud asking him to withdraw the present revision and prosecutrix by local police of Police Staton Baiuwa District Chandauli, which is without any basis and prove, the present criminal revision filed by the revisionist challenging the impugned order is pending before this Hon'ble Court for adjudication. on purely question of law, The charge-sheet has already been submitted in the present case and matter is sub-judice before Trial Court.
7. This Court proceeded to pass the following order on 04.02.2021 :
A personal affidavit of the Superintendent of Police, Chandauli has been filed. He has stated amongst other things in paragraph no. 8 of the affidavit that the revisionist is posted in the Economic Offences Wing in the police department and at present police personnel are deployed for the security of the prosecutrix and her father at their house. It is also said that this arrangement has been made so that they may not come to any harm.
This Court is not much impressed with the personal affidavit filed by the Superintendent of Police, Chandauli. It will be the duty of the Superintendent of Police to ensure that no harm comes to the victims of the crime or her family at the hands of respondents or anyone acting at their behest.
A personal affidavit has been filed on behalf of respondent no. 3. He has detailed the criminal history of the victim's father. The revisionist may file a rejoinder to the said affidavit, which is virtually a counter affidavit on behalf of respondent no. 3, within ten days.
State's counter affidavit and any further affidavit which respondent no.3 wishes to file shall be filed by the date next fixed.
List this matter in the additional cause list again on 22.02.2021.
8. A recall/modification application dated 22.02.2021, supported by an affidavit of one Prem Chandra, the Additional Superintendent of Police, Chandauli was filed, asking this Court to modify the interim order dated 20.01.2021, by which protection was provided to the prosecutrix and her father. It was alleged that the prosecutrix's father, Suresh Yadav, was misusing the liberty of Police security and was flaunting it in public to gain unfair advantage. Together with this affidavit, a criminal history of the prosecutrix's father was attached, which has a detail of eight cases. It must be recorded that three of these are challan in security proceedings under Section 110 of the Code. The others are also mostly trivial offences and span in time from the year 2001 to the year 2009. There is neither any heinous offence registered against the prosecutrix's father nor one that is within the period of ten years antedating the occurrence. Even if the prosecutrix's father were a hardened criminal, this Court fails to understand as to how that would be relevant to deny police protection to the prosecutrix or her father in connection with a heinous offence, where opposite party no. 2 is facing trial and opposite party no. 3 is sought to be arraigned. The prosecutrix and her father claim to be receiving threats from the accused to withdraw from the prosecution. The prosecutrix and her father have to be protected, irrespective of the fact whether the prosecutrix's father has a criminal history. It is, by no means, the law that a man with a criminal history is to be exposed to the depredations of another criminal, with the State being absolved of its responsibility to protect his life, merely because he has a criminal history to his credit. The State, in its obligation to protect human life, cannot discriminate on the ground of one facing the threat, carries behind him a history of crime. That apart, the prosecutrix has to be protected in all events, so long as the trial continues or a real and potent threat perception persists.
9. Later on, three counter affidavits were filed - one on behalf of Satyendra Yadav, the Station House Officer, Police Station - Balua, District - Chandauli dated 09.03.2021, another also dated 09.03.2021 on behalf of Lallan Ram Bind, the Investigating Officer of the case. Both these affidavits have done not much credit to explain the moot question why the statement of the prosecutrix under Section 164 of the Code was ignored. The affidavits were nothing more than affirmations of their action by the Station House Officer and the Investigating Officer concerned. Another affidavit that has to be taken note of is the counter affidavit filed on behalf of the State by Prem Chandra Bind, the Additional Superintendent of Police, Chandauli. Various parts of the Case Diary have been referred to and annexed to this affidavit, again to justify that the prosecutrix's statement under Section 164 of the Code is not of much consequence and that the C.D.R. details relating to Satish Kumar Gaud, opposite party no. 3, were conclusive about the fact that his location close to the victim during the dates between 19.06.2020 to 05.07.2020 is not established.
10. This Court must also take note of a further personal affidavit filed by the Superintendent of Police, Chandauli in compliance with the order of this Court dated 04.03.2021 passed during the hearing of this revision. The following material averments find place there :
2. That, after studying the Statement of Prosecutrix recorded U/s 164 Cr.P.C, in the Case Diary, it is discernible that the name of two persons namely Sonu and Satish Kumar came in the light with allegation of committing offence of rape upon the Prosecutrix and after permission granted by the then competent supervisory Police Officer charge sheet was filed only against the person Sonu Gaud.
3. That, it appears that the investigating officer further proceeded investigation after statement of Prosecutrix recorded U/s 164 Cr.P.C, but without carefully evaluating the worth of statement of prosecutrix against Satish Kumar and accordingly the investigation was concluded. The Investigation Officer ought to have verified the correctness and genuineness of statement of Prosecutrix recorded U/s 164 Cr.P.C. against Satish Kumar with further corroborative, credible and material evidence, which renders possibility of some failure and slack-ness appearing in the investigation.
4. That in view of above facts and circumstances, show cause notice against the Investigating Otficer has been issued, calling for his explanation in writing. A correct copy of Show Cause Notice dated 13.3.2021 is hereby annexed as ANNEXURE NO. 1 for kind perusal of this Hon'ble Court
5. That, thereafter Investigating Officer has been placed under suspension contemplating enquiry proceeding in accordance with law for further course of action. A correct copy of Suspension order is hereby annexed and marked as ANNEXURE NO. 2 for kind perusal of this Hon'ble Court.
11. What this Court fails to understand is the fact that it might have been a strategy with the Police to collect the C.D.R. details, but, on that basis, to exculpate the accused during the investigation, contrary to the statement of the prosecutrix recorded before the Magistrate under Section 164 of the Code, virtually amounts to jumping fence from investigation into the arena of adjudication. During the hearing of this case, much was made on behalf of the State to say that if any material were to surface against opposite party no. 3, it would figure during the prosecutrix's testimony in the dock. If a case is disclosed against opposite party no. 3 and opposite party no. 2 involving gang rape, the Court can well exercise its power under Section 319 of the Code to summon the third opposite party. Learned Counsel for the revisionist has contended all through that flaws in investigation cannot be remedied later, during the hearing. The investigation here has been one-sided, unfair and biased, where material appearing against opposite party nos. 2 and 3, showing a case of gang rape, have been ignored by the Police, to put in a challan against opposite party no. 2 alone, exculpating opposite party no. 3.
12. This Court has keenly considered the matter and perused the record. There are two facets of the case, as it now stands. One is about the merits of the investigation, where the revisionist says that opposite party no. 3 has been wrongly exculpated and opposite party no. 2 and 3 together have been wrongly not charge-sheeted for an offence of gang rape; the other is the issue about the security of life and limb of the prosecutrix, her father and the first informant, who is the prosecutrix's uncle. So far as the merits of the case are concerned, gleaning through the Case Diary and the stand taken by the Police before this Court, this Court is convinced that not much would come out of requiring the Police to investigate further. The statement of the prosecutrix is already a part of the Case Diary and it is material on which the Court can always act. More than that, it is the evidence of the prosecutrix during the trial that indeed is evidence alone in the case. Whatever the Police have collected during investigation is but material, that could be galvanised into evidence at the trial, depending the way that material is affirmed by the testimony of witnesses and other evidence led. After all, the Police are no more than parties. It is a criminal prosecution, and they cannot be compelled to say something which they do not wish to say. This, however, does not mean that the Police can be given a freehand to suppress material by doing an unfair investigation. But here, whatever material had to be collected, is there in the form of the prosecutrix's statement under Section 164 of the Code, recorded by a Judicial Magistrate.
13. What is, therefore, necessary is that the testimony of the prosecutrix, her father and the first informant are all recorded as promptly as possible by the Trial Judge. After the testimony of these three witnesses of fact has been recorded, the Trial Court shall examine whether a case to summon the third opposite party is made out or not, in the exercise of its powers under Section 319 of the Code. If the third opposite party is summoned by the Trial Court under Section 319 of the Code, the Trial Court shall further consider framing of appropriate charges against opposite party nos. 2 and 3, including a charge under Section 376D of the Penal Code.
14. This Court must hasten to add that it is not our adjudication that such a charge should be framed; or even that the third opposite party should be summoned. It is for the Trial Court to decide, both upon the matter of summoning the third opposite party to stand his trial, in exercise of its power under Section 319 of the Code and further to decide upon what charges ought to be framed, if the third opposite party is summoned. This would be done by the Trial Court without being influenced by anything said in this judgment.
15. So far as the security of the prosecutrix is concerned, this Court is of opinion that the Superintendent of Police, Chandauli would always remain responsible to ensure that the prosecutrix, her father or the first informant do not come to any harm during the trial or, in any case, on account of testifying in Court the way they do against anyone, including opposite party nos. 2 and 3. The precise manner in which the Superintendent of Police, Chandauli chooses to ensure the safety and security of life and limb of the prosecutrix, her father and the first informant is up to the Officer to decide. But, any lapse that occurs in ensuring the safety and security of the prosecutrix, the informant or her father, that leads to injury to the life or limb of any of them in connection with the prosecution, would render the Superintendent of Police, Chandauli personally answerable to this Court.
16. In the result, this revision stands disposed of in terms of the following orders :
(i) The Trial Judge shall proceed to record the testimony of the prosecutrix, the first informant and her father, if he is a witness cited by the prosecution, within one month next, in Sessions Trial No. 73 of 2020, State v. Sonu Kumar Gaud, pending before the Additional Sessions Judge (POCSO Act) Chandauli, if the evidence of these witnesses has already not been recorded.
(ii) If the evidence of all these witnesses has already been recorded or comes to be recorded and concluded hereinafter, the learned Trial Judge shall proceed to consider in the first instance and before proceeding with the trial further, whether a case to summon the third opposite party, Satish Kumar Gaud, in the exercise of powers under Section 319 of the Code is made out or not.
(iii) If the third opposite party is summoned to stand his trial along with co-accused Sonu Kumar Gaud, the Trial Judge shall proceed to consider framing of the appropriate charge(s) against the accused in accordance with law, before proceeding to trial. After the stage of reframing/further framing of charges, if any, is over, the Trial Court shall proceed with the trial expeditiously, fixing one date every week and endeavour to conclude the same within three months of its commencement.
17. The Superintendent of Police, Chandauli shall act to ensure the safety of the prosecutrix, her father and the first informant in the manner ordered hereinabove.
18. Let this order be communicated to the learned Additional Sessions Judge (POCSO Act), Chandauli through the learned Sessions Judge, Chandauli and the Superintendent of Police, Chandauli by the Registrar (Compliance).
Order Date :- August the 25th, 2021 I. Batabyal