Allahabad High Court
Sukhdev @ Deepak Deshwal vs State Of U.P. And Another on 15 November, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 09.11.2022 Judgment delivered on 15.11.2022 Court No. - 84 Case :- CRIMINAL REVISION No. - 2228 of 2022 Revisionist :- Sukhdev @ Deepak Deshwal Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ashutosh Pandey,Sr. Advocate Counsel for Opposite Party :- G.A.,Shashi Shekhar Mishra Hon'ble Saurabh Shyam Shamshery,J.
1. The revisionist is aggrieved by impugned order dated 17.01.2022 passed on an application filed under Section 319 Cr.P.C. by Additional Sessions Judge, Fast Track Court No.1, Mathura whereby he along with two more accused persons, viz., Qutubuddin and Maria have been summoned to face trial for an offence under Section 376 I.P.C. in Sessions Trial No. 615 of 2021 along with already charge sheeted accused namely, Durgesh.
2. Sri Dharmendra Singhal, Senior Advocate assisted by Sri Ashuthosh Pandey for revisionist has vehemently argued that :-
(i) F.I.R. was lodged by the victim's father only against named accused Durgesh, though there was reference of one female also for committing repeated rape at Mumbai and later on at Mathura as well as of taking her unsolicitated photographs and video clips.
(ii) The victim has narrated same version in her statement recorded under Section 161 Cr.P.C. and does not mention any involvement of revisionist.
(iii) The victim in her statement recorded under Section 164 Cr.P.C., for first time, disclosed name of the revisionist who accompanied her along with Durgesh as well as that revisionist and Qutubuddin, husband of Maria, also committed her rape at Mumbai, however, she did not mention any act of rape by applicant at Mathura.
(iv) The victim was unable to provide any detail about applicant Qutubuddin and Maria about their address to I.O., therefore their alleged role was not investigated by the I.O. and therefore they were not named in investigation or in charge sheet.
(v) The victim improved her version before the Court and stated in her examination of chief that Durgesh, applicant and Qutubuddin raped her at Mumbai and later on applicant, Durgesh again raped her at Mathura also. Maria helped them by giving her intoxicated drink.
(vi) In order to summon an accused, the trial Court has to make out an opinion which is more than prima facie case as exercised at the time of framing of charge, however, trial Court after a long order impugned opined only that a prima facie case was made out agaist the revisionist.
3. Sri Shashi Shekhar Mishra, learned counsel for opposite party No.2 and Sri Paritosh Kumar Malviya, learned A.G.A.-I along with Sri Deepak Kapoor, learned A.G.A. have opposed the above submissions that :-
(i) The victim has specifically narrated in her statement recorded under Section 164 Cr.P.C. about role of the revisionist that he has raped her along with Durgesh and Qutubuddin, when she was at Mumbai. Her Photographs and videos were made being in compromising position, however, the I.O. has not investigated this aspect.
(ii) The victim has narrated entire occurrence before the Court during trial that revisionist has raped her at Mumbai as well as Mathura, which was considered by the trial Court and summoned the revisionist and other two accused persons. There is no illegality in the order.
4. Before considering the rival submissions, it would be apt to refer few paragraphs from Sartaj Singh Vs. State of Haryana and another, (2021) 5 SCC 337 :-
"13.1. While considering the rival submissions, the law on the scope and ambit of Section 319 CrPC is required to be considered and for that few decisions of this Court are required to be referred to.
13.1.5. While answering Question (ii), namely, whether the word "evidence" used in Section 319(1) CrPC means as arising in examination-in-chief or also together with cross-examination, in the aforesaid decision, this Court has observed and held as under : (Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , SCC pp. 132-34, paras 86-92) "86. The second question referred to herein is in relation to the word "evidence" as used under Section 319 CrPC, which leaves no room for doubt that the evidence as understood under Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examination-in-chief. In Rakesh [Rakesh v. State of Haryana, (2001) 6 SCC 248 : 2001 SCC (Cri) 1090] , it was held that : (SCC p. 252, para 10) ''10. ... It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under Section 319 CrPC. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 319 should be exercised or not.'
87. In Ranjit Singh [Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554] , this Court held that : (SCC p. 156, para 20) ''20. ... it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.'
88. In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889] , it was held that the prerequisite for exercise of power under Section 319 CrPC is the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the cross-examination is over and that there would be no illegality in doing so. A similar view has been taken by a two-Judge Bench in Harbhajan Singh v. State of Punjab [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] . This Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2009) 16 SCC 785 : (2010) 2 SCC (Cri) 355] seems to have misread the judgment in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889] , as it construed that the said judgment laid down that for the exercise of power under Section 319 CrPC, the court has to necessarily wait till the witness is cross-examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 CrPC.
89. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.
90. As held in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889] and Harbhajan Singh [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] , all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words "such person could be tried" instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence.
91. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 CrPC, the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross-examine the witness(es) prior to passing of an order under Section 319 CrPC, as such a procedure is not contemplated by CrPC. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(es) is obliterating the role of persons already facing trial. More so, Section 299 CrPC enables the court to record evidence in the absence of the accused in the circumstances mentioned therein.
92. Thus, in view of the above, we hold that power under Section 319 CrPC can be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence."
(emphasis in original) 13.1.6. While answering Question (iv), namely, what is the degree of satisfaction required for invoking the power under Section 319 CrPC, this Court after considering various earlier decisions on this point, has observed and held as under : (Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , SCC p. 138, paras 105-06) "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.
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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."
(emphasis in original) 13.2. Considering the law laid down by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-in-chief of the witness concerned and the court need not wait till the cross-examination of such a witness and the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.
13.3. In S. Mohammed Ispahani v. Yogendra Chandak [S. Mohammed Ispahani v. Yogendra Chandak, (2017) 16 SCC 226 : (2018) 2 SCC (Cri) 138] , this Court has observed and held as under : (SCC p. 243, para 35) "35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."
13.4. In Rajesh v. State of Haryana [Rajesh v. State of Haryana, (2019) 6 SCC 368 : (2019) 2 SCC (Cri) 801] , after considering the observations made by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] referred to hereinabove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in the FIR but not implicated in charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused."
(emphasis supplied)
5. As observed above, while summoning an accused under Section 319 Cr.P.C., the Court has to consider the evidence recorded during trial and/or any material received by the Court after cognizance, therefore, this Court has to scrutinize the evidence of victim recorded before the Court and whether it was sufficient to make out a case against the revisionist to summon him under Section 319 Cr.P.C. i.e. more than a prima facie case.
6. Name of revisionist was mentioned by the victim in her statement recorded under Section 164 Cr.P.C. including allegation of rape also, however, I.O. has not conducted investigation in this regard.
7. The statement of victim (PW-2) before the trial Court was specific that revisionist and others were also involved in the offence and have committed rape, firstly at Mumbai and thereafter at Mathura along with other accused. Act was videographed also and under threat to viral it, she was again raped by revisionist and Durgesh in guest house at Mathura. Statement of victim before Court remained specific against the revisionist also.
8. The trial Court in the impugned order has considered factual and legal aspect of the case and law on Section 319 Cr.P.C. The Court came to a conclusion that revisionist and two other were also involved in the offence of rape.
9. The trial Court has come to a conclusion that prima facie case was made out to summon the revisionist. Only because the trial Court has used word ''prima facie' and not ''more than prima facie' may not be a sole ground to quash the order, ignoring law and facts of the present case and evidence of victim and discussion thereafter in the impugned order.
10. The Supreme Court in the case of Ghulam Hassan Beigh v. Mohd. Maqbool Magrey, 2022 SCC OnLine SC 913, has dealt with issue of framing of charge and after considering various judgments held that "All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would be suffice".
(emphasis supplied)
11. The statement of victim before the Court has narrated entire sequence of events that how she was enticed by Durgesh to accompany him to Mumbai and revisionist also joined who with the help of Maria along with Qutubuddin raped her. They also recorded the act of rape and under threat to viral it, applicant and Durgesh again raped her at guest house at Mathura. This statement is enough to presume that a strong suspicion exists, that revisionist has committed the offence of rape and it is a case where there is more than prima facie case against the revisionist i.e. there is a strong suspicion against revisionist. Therefore, there is no illegality in the impugned order dated 17.01.2022 passed by Additional Sessions Judge, Fast Track Court No.1, Mathura in Sessions Trial No. 615 of 2021 (State vs. Durgesh @ Durga) arising out of Case Crime No. 389 of 2020 under Sections 376, 328, 506 I.P.C., Police Station- Govind Nagar, District- Mathura.
12. Accordingly, the revision petition is dismissed.
13. Revisionist is directed to appear before the learned trial Court within a period of two weeks and face trial in accordance with law (See Babubhai Bhimabhai Bokhiria and another vs. State of Gujarat and others, (2013) 9 SCC 500).
Order Date :- November 15, 2022 Nirmal Sinha [Saurabh Shyam Shamshery, J.]