Allahabad High Court
Nisha Singh vs State Of U.P. And 3 Others on 16 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:114842 Reserved on: 21.05.2024 Delivered on: 16.07.2024 Court No. - 64 Case :- CRIMINAL REVISION No. - 1089 of 2023 Revisionist :- Nisha Singh Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Lal Mani Singh,Raghuvir Sharan Singh Counsel for Opposite Party :- G.A.,Seema Pandey Hon'ble Rajeev Misra,J.
1. Challenge in this criminal revision is to the order dated 02.11.2022 passed by Special Judge, POCSO Act/Additional Sessions Judge, Court No. 22 Kanpur Nagar in Special Sessions Trial No. 457 of 2019 (State Vs. Anurag and others ) under Sections 376 DA I.P.C. and Section 17 read with Sections 5/6 POCSO Act, Police Station Kakadev, District-Kanpur Nagar, whereby the application dated 19.08.2022, under Section 319 Cr.P.C. (Paper No. 9 Ka) filed by the prosecution/first informant has been allowed and consequently, revisionist Nisha Singh, who is a prospective accused (not named in the F.I.R.), has been summoned under Section 109 I.P.C. read with Section 376 DA I.P.C. and Section 17 read with Sections 5/6 POCSO Act to face trial in aforementioned Special Sessions Trial.
2. Perused the record.
3. I have heard Mr. L. M. Singh, the learned counsel for revisionist, the learned A.G.A. for State, opposite party-1 and Ms. Seema Pandey, Advocate, who has put in appearance on behalf of opposite party-3, High Court Legal Services Committee, Allahabad
4. Present Criminal Revision came up for admission on 17.03.2023 and this Court passed the following order:
" Heard.
Learned A.G.A. has accepted notice on behalf of State.
Issue notice to opposite party no. 2 to 4 returnable at an early date.
Put up this case in the week commencing 17.04.2023 as fresh.
Order Date :- 17.3.2023 "
5. As per office report dated 03.08.2023, notice has been served upon first informant/opposite party-2. However, in spite of service of notice neither any counter affidavit has been filed by opposite party-2 nor anyone has appeared on her behalf to oppose this criminal revision.
6. It transpires from record that in respect of an incident, which is alleged to have occurred on 25.12.2018, a delayed F.I.R. dated 26.12.2018 was lodged by first informant Smt. Mona Gaur (mother of the prosecutrix) and was registered as Case Crime No.381 of 2018 under Section 376D I.P.C. and Sections 3/4 POCSO Act, Police Kakadev, District-Kanpur Nagar. In the aforesaid F.I.R. four persons namely Anurag, Jaiki, Abhishek and Shubham have been nominated as named accused.
7. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Anurag enticed away the minor daughter of first informant namely X i.e. the prosecutrix and thereafter all the named accused dislodged her modesty by forcibly committing rape upon her one by one.
8. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C.. He recorded the statement of prosecutrix under Section 161 Cr.P.C., copy of which is on record at page 57 of the paper book. The prosecutrix in her aforesaid statement has fully supported the F.I.R. but she has not stated anything adverse against present revisionist Nisha Singh. For ready reference, the same is extracted herein under:-
"बयान पीडिता / मजरूब अन्तर्गत धारा 161 सी.आर.पी.सी.- बयान पीड़िता धारा 161 सी.आर.पी.सी. दिव्यांशी पुत्री राजकुमार सिंह गौर नि० कमरा नं० 101 थाना परिसर बाबूपुरवा कानपुर नगर सम्बन्धित मु० अ० सं० 381 / 18 धारा 376 डी आई० पी० सी० व 3/4 पाक्सो एक्ट थाना..... कानपुर नगर दिनांक 26.12.2018 प्रशन- आपका नाम पता उम्र व क्लास क्या है?
उत्तर - नाम दिव्यांशी गौर उम्र 15 साल फस्ट इयर मे पढ़ती हूँ। सनातन धर्म इण्टर कालेज कौशलपुरी मे नया राजकुमार सिंह गौर है। मे रहती है पापा का नाम प्रश्न- आप अपने घर से कहा और क्या बता कर निकली थी?
उत्तर मै अपने घर से 10 बजे निकली थी फ्रेन्ड के साथ घूमने निकली थी।
प्रश्न कौन सी फ्रेन्ड के साथ निकली थी?"
9. After aforesaid statement of the prosecutrix was recorded, her statement, under Section 164 Cr.P.C. was recorded on 04.01.2019. The same is on record at page 70 of the paper book. The prosecutrix, in her aforesaid statement, has departed from her previous statement recorded under Section 161 Cr.P.C. and has now alleged that she, named accused and the present revisionist, consumed coffee. However, she was offered another cup of coffee by revisionist Nisha Singh, whereafter, she started feeling dizzy. Except for the aforesaid recital occurring in her afore-mentioned statement, nothing else has been stated by the prosecutrix against present revisionist. It is, therefore, worthwhile to reproduce the statement of the prosecutrix recorded under Section 164 Cr.P.C. Accordingly, the same is reproduced herein below:-
"बयान अन्तर्गत धारा 164 सी.आर.पी.सी.
मु० अ० सं० 381/18 धारा 376 डी आई०पी०सी० व 3/4 पोक्सो एक्ट पीड़िता / मज़रूब दिव्यांशी उर्फ मिनी पुत्री राजकुमार गौर नि0 101 कैम्पस थाना बाबूपुरवा कानपुर नगर। सम्बन्धित थाना काकादेव कानपुर नगर। मेरे द्वारा पीड़िता को समझाया गया कि वो यह बयान बिना किसी भय के दे। उसने इस बात को समझा, तत्पश्चात यह बयान दिया कि- 25/12/18 को मै अपनी दोस्त निशा सिंह के साथ रेव मोती माल गयी थी। वहाँ पर निशा के 4 दोस्त आये और हमारे साथ घूमने लगे। अनुराग, जैकी, अभिषेक, शुभम उन चार लड़को के नाम है। इन्हे मै पहले से नही जानती। अनुराग निशा का दोस्त है बस यह जानती हूँ।"
10. In spite of the fact that statements of the prosecutrix were recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. yet for reasons best known to the Investigating Officer, he recorded the second statement of prosecutrix, under Section 161 Cr.P.C. on 18.02.2019 (Bayan Majeed), copy of which is on record at page 74 of the paper book. The prosecutrix, in her aforesaid statement, has not rejoined her previous statement recorded under Section 164 Cr.P.C. The prosecutrix has now alleged that coffee was prepared by the boys and she was offered coffee by Nisha Singh. However, after consuming the same, she started feeling dizzy. In order to add chronology to the statements of the prosecutrix, and for ready reference, the aforesaid statement of the prosecutrix is also noted herein under:-
"बयान पीड़िता कु० दिव्यांशी उर्फ मिनी पुत्री राजकुमर सिंह गौर नि० कमरा नं0 101 थाना परिसर बाबूपुरवा कानपुर नगर ने पूछताछपर बताया कि मेरी जन्मतिथि 2/11/2003 है दि0 25/12/2018 को मै अपनी सहेली निशा के साथ क्रिसमस डे के अवसर पर घूमने के लिये रेवमोती मॉल गयी थी वहा पर जब मै व निशा पेन्टालून के शेरूम मे थे तब निशा ने फोन करके अपने चार दोस्तो को बुला लिया जिनको मै पहले से नही जानती थी न ही देखा था निशा ने बताया कि वो लोग अनुराग, जैकी, शुभम व अभिषेक थे वहाँ पर निशा ने बताया कि आभा अर्पा० मे पार्टी है। वहाँ चलना है। मैने मना किया तब निशा ने कहा वहा और भी लोग होगें डरने की बात नही है। इसके बाद वह चारो लड़के वहा से पार्किंग की तरफ चले गये मै व निशा ऑटो से जी०टी०रोड होते हुये आभा अर्पा० पहुंचे आभा अर्पा० मे हम सब सेकण्ड फ्लोर पर एक फ्लैट मे पहुंचे जहा पर लड़के रहते थे। लड़को ने काफी बनाई और निशा ने मुझे काफी पिलाई कॉफी पीकर धुधला सा दिखने लगा तब अनुराग मुझे लेकर एक कमरे मे चला गया जहाँ पर अनुराग, जैकी, शुभम व अभिषेक ने मेरे साथ बारी-2 से गलत काम किया उस समय निशा वहाँ से चली गयी थी घटना के बाद मुझे काफी खून निकलने लगा मैने लड़को से घर छोड़ने के लिये कहा व रोने लगी लडको ने मुझे काफी डराया कि घर पर मत बताना फिर अनुराग अपनी बाईक से करीब 5 बजे शाम को काम करके मुझे छोड़ दिया और वापस चला गया सड़क पर मुझे मेरी मम्मी दिखायी पड़ी जो मुझे ढूढ़ रही थी उनके साथ मै कमरे पर अयी जहाँ पर मेरी तबियत काफी खराब हो गयी खून नही रूक रहा था मैने मम्मी को पूरी बात बतायी तब मम्मी मुझे लेकर मैरी गोल्ड अस्पताल नौबस्ता ले गयी थी जहाँ पर इलाज कराने के बाद हम लोग थाना काकादेव जाकर मुकदमा लिखाये। प्रश्न- आप घर से किस टाईम निकी थी?
उत्तर- सुबह 10 बजे घर से निशा के यहाँ जाने के लिये निकली प्रश्न- निशा कहाँ मिली?
उत्तर - निशा सिटी क्लब के सामने जीटी रोड पर मिली थी।
प्रश्न- आपने अपने बयान मे बतया है कि आप अनुराग आदि को नही जानती है? फिर 2 दिसम्बर 2018 को एक पार्टी मे आप अनुराग शुभम जैकी आदि के साथ मौजूद थी। उत्तर - कोई जवाब नहीं दिया।
प्रश्न- क्या आप अनुराग से घटना से पहले मोबाइल के माध्यम से बात चीत व चैटिंग करती थी,? उत्तर- हॉ प्रश्न- 2 दिसम्बर को पार्टी में कौन-2 था?
उत्तर- मुझे पता नही प्रश्न- घटना के बाद क्या आपकी अनुराग व निशा के साथ बात-चीत व चैटिंग हुयी थी?
उत्तर - कोई जवाब नही दिया। थोड़ी देर बाद हॉ करके रोने लगी।
नोट- मुझ महिला आरक्षी 4267 पूनम यादव द्वारा मजरूब / पीड़िता का बयान शब्द व शब्द अंकित किया गया ।"
11. Since the name of present revisionist had surfaced in the statements of the prosecutrix as noted above, Investigating Officer, therefore, recorded the statement of present revisionist, under Section 161 Cr.P.C. The same is on record at page 80 onwards of the paper book.
12. During course of investigation, Investigating Officer further recorded the statement of first informant Smt. Mona Gaur as well as father of the prosecutrix under Section 161 Cr.P.C. On the basis of above and other material collected by him during course of investigation, he came to the conclusion that complicity of only one of the named accused i.e. Anurag is fully established in the crime in question. Accordingly, Investigating Officer submitted the police report dated 17.03.2019 in terms of Section 173 (2) Cr.P.C., whereby named accused Anurag has been charge sheeted under Section 376 I.P.C. and Sections 3/4 POCSO Act.
13. After submission of above mentioned police report, cognizance was taken upon same by the concerned Special Judge in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. The concerned Sessions Judge, thereafter, proceeded with the trial. Accordingly, Court below in compliance of Section 211 Cr.P.C. framed charges against charge sheeted accused. The charges so framed by court below were denied by the charge sheeted accused, who pleaded innocence and demanded trial. Resultantly, the trial procedure commenced.
14. Prosecution in discharge of it's burden to bring home the charges so framed against charge sheeted accused adduced the prosecutrix as P.W.-1.
15. After the statement in chief of prosecutrix was recorded, prosecution/first informant filed an application dated 09.02.2021 under Section 319 Cr.P.C. alleging therein that since as per the deposition of prosecutrix i.e. P.W.-1, the complicity of other three accused named in the F.I.R. i.e. Jaiki, Abhishek and Shubham is also established in the crime in question, therefore, they be also summoned to face trial. This application came to be allowed by Court below, vide order dated 06.09.2021.
16. Subsequently, another application dated 19.08.2021 under Section 319 Cr.P.C. was filed by the prosecution/first informant to summon the revisionist Nisha Singh also to face trial as according to the prosecution/first informant, her complicity in the crime in question also stood established as per the deposition of P.W.-1 i.e. the prosecutrix. This application came to be registered as Paper No. 9 Ka.
17. Court below examined the allegations made in the aforementioned application (Paper No. 9-Ka) and evaluated the same in the light of statement-in-chief of PW-1 i.e. the prosecutrix. Having undertaken the aforesaid exercise, Court below came to the conclusion that as per the deposition of PW-1, prima-facie the prospective accused i.e. the revisionist (herein) has abetted in the commission of the crime in question, therefore, she is also liable to be summoned to face trial. Accordingly, Court below, vide order dated 02.11.2022, allowed the aforementioned application and consequently, summoned the revisionist Nisha Singh under Section 109 I.P.C. readwith Section 376 DA I.P.C. and Section 17 read with Section 5/6 POCSO Act to face trial in aforementioned sessions trial.
18. Thus feeling aggrieved by the above order dated 02.11.2022 passed by Special Judge, POCSO Act/Additional Sessions Judge, Court No. 22, Kanpur Nagar in Special Sessions Trial No. 457 of 2019 (State Vs. Anurag and others), the revisionist Nisha Singh approached this Court by means of an application under Section 482 Cr.P.C. No. 2937 of 2023 (Nisha Singh Vs. State of U.P. and another). Aforementioned application came to be dismissed, vide order dated 17.02.2023 with liberty to applicant to file a criminal revision. For ready reference, the order dated 17.02.2023 is extracted herein-under:-
"Heard learned counsel for the applicant and learned A.G.A. for the State. By means of the present 482 Cr.P.C. application the applicant is assailing the order dated 02.11.2022 whereby the non accused person Nisha Singh was summoned in the exercise of power under section 319 Cr.P.C. to face the trail in S.S.T. No. 457 of 2019. By this order remedy available to file revision before the appropriate Court. Under circumstances, this 482 application stands dismissed with liberty to file a proper revision within next 10 days. The registry shall consider the matter liberally and shall not put a hurdle with regard to the limitation. In the event the applicant shall file revision within next 10 days.
Order Date :- 17.2.2023 "
19. Subsequent to above order dated 17.02.2023, the present criminal revision has been filed.
20. Mr. L. M. Singh, the learned counsel for revisionist submits that order impugned in present criminal revision is not only illegal but also in excess of jurisdiction. Consequently, the same is liable to be set aside by this Court. In furtherance of aforesaid submission, he contends that revisionist is not named in the F.I.R. Though an F.I.R. is not the encyclopedia of the prosecution case but it must disclose the basic prosecution case. From perusal of the F.I.R. it is apparent that no allegation against the revisionist has been made therein. Admittedly, the F.I.R. was lodged upon disclosure made by the prosecutrix herself to first informant i.e. her mother. At the behest of the first informant, the investigation of concerned case crime number was transferred from police station Kakadev District Kanpur Nagar to Police Station Kotwali, District-Kannauj. The Investigating Officer had also recorded the statement of present revisionist under Section 161 Cr.P.C. However, during course of investigation, no such material was gathered by the Investigating Officer, on the basis of which even the complicity of the revisionist in the crime in question could be inferred. To the contrary, on the basis of material so gathered by the Investigating Officer, complicity of only one of the named accused i.e. Anurag was found to be established. Accordingly, Investigating Officer submitted the police report under Section 173 (2) Cr.P.C. against named accused Anurag, whereby he was charge sheeted under Section 376 I.P.C. and Section 3/4 POCSO Act. As such, the complicity of present revisionist is sought to be alleged in the crime in question over and above the basic prosecution case.
21. Apart from above, statement of the prosecutrix was recorded, under Section 161 Cr.P.C. followed by her statement under Section 164 Cr.P.C. and ultimately her second statement (Bayan Majeed) under Section 161 Cr.P.C. However, in none of the aforesaid statements, the prosecutrix has alleged anything adverse against the revisionist on the basis of which, the commission of an offence under Section 109 I.P.C. read with Section 376 DA I.P.C. and Section 17 read with Section 5/6 POCSO ACT could be gathered against the revisionist.
22. After the statement-in-chief of the prosecutrix was recorded, the prosecution/first informant filed an application dated 09.02.2021, under Section 319 Cr.P.C. for summoning the other three accused named in the F.I.R. to face trial. This application came to be allowed by court below on 06.09.2021. It is subsequent to above as an after thought that another application, under Section 319 Cr.P.C. dated 14.08.2021 was filed to summon the revisionsit to face trial in afore-mentioned special sessions trial. According to the learned counsel for revisionist, this application dated 19.08.2021, under Section 319 Cr.P.C., filed by the prosecution/first informant (Paper No. 9-Ka) is not the outcome of bona-fide but malafide on the part of the prosecution/first informant inasmuch as, no explanation has been offered by the prosecution/first informant for not mentioning the name of revisionist as a prospective accused in the first application filed under Section 319 Cr.P.C.
23. The prosecutrix in her deposition before Court below has stated that all the six persons had consumed coffee but another cup of coffee was offerred by the revisionist to the prosecutrix. According to the prosecutrix, after consuming the second cup of coffee, the prosecutrix started feeling dizzy. Drawing a parallel between the deposition of prosecutrix before Court below and her previous statements recorded under Sections 161, 164 Cr.P.C. and then again under Section 161 Cr.P.C., it is urged by the learned counsel for revisionist that the prosecutrix has not remained consistent, regarding the fact;- that all the six persons consumed coffee. She was offered another cup of coffee by the revisionist. After consuming the same, she started feeling dizzy. It is thus urged that in view of above, no credibility can be attached to the afore-mentioned statement occurring in the deposition of the prosecutrix before Court below. The complicity of the revisionist, in the crime in question, is sought to be alleged on the basis of a fact, which was already disclosed in her previous statements. As such, nothing new has emerged in the statement of the prosecutrix, so as to infer something more than mere complicity of the revisionist in the crime in question.
24. Learned counsel for revisionist has then invited the attention of Court to the SMS Chats in between the prosecutrix and the named and charge sheeted accused Anurag, who were in love relationship since long before. Same is on record from pages 15 to 39 of the supplementary affidavit dated 17.10.2023. On the above premise, he contends that the recital occurring in the deposition of the prosecutrix before Court below and her previous statements referred to above are not worthy of credit.
25. He also submits that subsequently, the prosecutrix lodged an F.I.R. dated 23.06.2019, which was registered as Case Crime No. 204 of 2019 under Section 67 of I.T. Act and 509 I.P.C. In the aforesaid F.I.R. five persons namely Shubham Chaubey, Abhishek, Jaiki Dubey, Vikas Sonkar and Nisha Singh, were nominated as named accused. However, upon investigation, the police submitted the police report under Section 173 (2) Cr.P.C., whereby the first informant has herself been charge sheeted under Section 67 I.T. Act.
26. On the cumulative strength of above, it is thus urged by the learned counsel for revisionist that since not even the complicity of the revisionist has emerged in the crime in question, therefore, no strong and cogent evidence could emerge against revisionist either, which may establish something more than mere complicity of the revisionist in the crime in question. As such, no prima-facie case can be said to be made out for summoning the prospective accused i.e. the revisionist in aforementioned Special Sessions Trial. Court below while passing the order impugned has clearly ignored the aforementioned aspect of the matter, which has vitiated the order impugned. In view of above, the order impugned in present criminal revision, whereby the revisionist has been summoned under Section 109 I.P.C. read with Section 396 DA I.P.C. and Section 17 read with Sections 5/6 POCSO Act to face trial cannot be sustained in law and fact. Consequently, the same is liable to be set aside by this Court.
27. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed this criminal revision. He submits that order impugned in present criminal revision is perfectly just and legal. Consequently, no interference is warranted by this Court in present criminal revision. The prosecutrix has deposed before court below as P.W.-1. The prosecutrix in her deposition before court below has clearly implicated the present revisionist in the crime in question. As such no illegality has been committed by court below in passing the order impugned. There is nothing on record to show or establish malafide against the prosecutrix at the behest of the present revisionist. From perusal of the deposition of the prosecutrix i.e. P.W.-1, it is apparent that present revisionist has actually co-operated in the commission of the crime in question. In view of above, court below has rightly came to the conclusion that as per the deposition of PW-1, the prospective accused i.e. the revisionist (herein) has abetted in the commission of the crime in question. Consequently, a prima-facie case is made out for summoning the prospective accused i.e. the revisionist. The court below while exercising it's jurisdiction under Section 319 Cr.P.C. is not required to return a finding that as per the material on record, it is the conviction of the prospective accused can be made. To the contrary, the Court while dealing with an application under Section 319 Cr.P.C. has to find out as to whether a prima-facie case for summoning the prospective accused is made out or not? It is thus contended that since as per the statement of PW-1, a prima-facie case is made out against the revisionist, therefore, Court below while passing the order impugned has neither committed a jurisdictional error nor has it exercised it's jurisdiction with material irregularity, which may vitiate the order impugned and warrant interference by this Court. As such, present criminal revision is liable to be dismissed.
28. Having heard Mr. L.M. Singh, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1, Ms. Seema Pandey, the learned counsel representing High Court Legal Services Committee, Allahabad and upon perusal of record, this Court finds that the primary issue, which arises for determination in present criminal revision revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C.? As a corollary to above, Court will also have to consider;-Whether the order impugned is within the established parameters or not?
29. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by the Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Five Judges Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Five Judges Bench) Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 Paragraphs 7, 8, 9, 15, 20, 21 and 22.
(iv) Jogendra Yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 Paragraph 13.
(v). Amrutbhai Shambhubhai Patel Vs. Suman Bhai Kantibhai Patel and Others, (2017) 4 SCC 177,
(vi) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vii) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(viii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(ix) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(x) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(xi) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xii) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xiii) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xiv) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xv) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17 (xvi) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xvi) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xviii) Saeeda Khatoon Arshi vs. State of Uttar Pradesh and Another, (2020) 2 SCC 323, (xix). Ajay Kumar @ Bittu and Another Vs. State of Uttarakhand and Another, (2021) 4 SCC 301 (xx) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xxi) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xxii) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741 Supreme Court remanded the matter before Sessions Judge for decision afresh. (xxiii). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxiv). Naveen Vs. State of Haryana and Others, (2022) 10 SCC 537 (xxv). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (Five Judges Bench), Paragraphs 7, 37, 38 and 41.
(xxvi). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxvii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxviii). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxix) Yashodhan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxx) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxxi). Aarif and Others Vs. State of Rajasthan and Another, 2023 SCC OnLine SC 1375 (xxxii). Gurdev Singh Bhalla Vs. State of Punjab and Others, (2024) 3 SCC 172 (xxxiii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174 (xxxiv). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.
30. With the aid of above, the Court now proceeds to examine the veracity of the impugned order dated 02.11.2022 passed by Special Judge, POCSO Act/Additional Sessions Judge, Court No.-22, Kanpur Nagar in Special Sessions Trial No. 457 of 2019 (State Vs. Anurag and others)), under Sections 376 DA I.P.C. and Section 17 read with Section 5/6 POCSO Act, Police Station-Kakadev, District-Kanpur Nagar, whereby revisionist has been summoned under Section 319 Cr.P.C. to face trial in above-mentioned Special Sessions Trial.
31. Before proceeding to do so, it must be noticed that following issues stand settled as per judgements mentioned herein above and, therefore, they are not required to be dealt with.
32. A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the prosecution witnesses to be recorded, so that non-charge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench Judgment in Dharam Pal (Supra).
33. Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra).
34. A prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness without getting his examination-in-chief recorded, vide Five Judges Bench judgment in Hardeep Singh (Supra).
35. The Court while summoning a prospective accused must come to the conclusion that a prima-facie case for summoning of a prospective accused is made out and in this regard, the Court must record it's satisfaction in consonance with the observation made in paragraph 106 of the judgment in Five Judges Bench judgment in Hardeep Singh (Supra).
36. Though in view of the law laid down by the Five Judges Bench in Hardeep Singh (Supra) that a prospective accused can be summoned on the basis of statement-in-chief of one prosecution witness but in case, if the statement of the witness, who has deposed before Court below, was also recorded under Section 161 Cr.P.C. then in such a circumstance, the Court must draw a parallel in between the deposition of the witness as well as his statement under Section 161 Cr.P.C. to find out whether something new has emerged in the deposition or not? vide Brijendra Singh (Supra).
37. The Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as it is a relevant material, vide Brijendra Singh (Supra).
38. A prospective accused can be summoned only if, an inference of guilt of the accused can be drawn as per the material on record, vide Brijendra Singh (Supra).
39. The power under Section 319 Cr.P.C. is an extraordinary discretionary power, which should be exercised sparingly, vide S Mohammad Ishpahani (Supra).
40. A prospective accused should not be summoned by a Court by exercising it's jurisdiction in a casual and cavalier fashion but diligently, vide S Mohammad Ishpahani (Supra).
41. Court can summon a prospective accused by exercising power under Section 319 Cr.P.C. only when some strong and cogent evidence has emerged against a prospective accused and not merely on the basis of his complicity in the crime in question, vide S Mohammad Ishpahani (Supra).
42. In the judgments referred to above, there is a common thread that the Court can scrutinize the evidence/material on record while exercising power under Section 319 Cr.P.C.
43. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly, vide paragraph 37 of judgement in Manjeet Singh (Supra).
44. An accused, who has been summoned by the Court in exercise of power under section 319 Cr.P.C., cannot claim discharge, vide S. Mohammaed Ispahani (Supra) and Vikas Rathi (Supra).
45. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh (Supra) requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
46. In Rajesh and Others (Supra), it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.
47. The reference made by a Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289. The Court held that "The power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.
48. A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him, vide Yashodhan Singh and Others (Supra).
49. In Sandeep Kumar (Supra), the Court after noticing paragraphs 95 to 106 of the Five Judges Bench judgment in Hardeep Singh (Supra), considered the ingredients of Section 149 IPC and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into at the stage of deciding an application under Section 319 Cr.P.C.
50. Having noted the settled position, it is now to be examined as to whether on the basis of deposition of PW-1, i.e. prosecutrix, the revisionist could have been summoned by court below? As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier fashion.?"
51. It is an undisputed fact that the FIR giving rise to present criminal proceedings was lodged by first informant Mona Gaur (mother of the prosecutrix) upon the disclosure made by the prosecutrix herself. However, in the FIR so lodged, neither the revisionist has been nominated as a named accused nor any allegation has been made against her in the body of the FIR. Apart from above, even the name of the revisionist does not find mention in the body of the FIR.
52. It is well settled that though FIR is not an encyclopedia of the prosecution case but it must disclose the basic prosecution case. Reference in this regard be made to the following judgments of the Supreme Court (i). Manoj and Others Vs. State of Maharashra, (1999) 4 SCC 268, (ii). Subhash Kumar Vs. State of Uttarakhand, (2009) 6 SCC 641 and (iii). Achhar Singh Vs. State of M.P. (2021) 5 SCC 543. It is thus apparent that as per the basic prosecution case, the revisionist was no where in the picture.
53. During course of investigation, the statement of the prosecutrix was recorded under Section 161 Cr.P.C., followed by her statement under Section 164 Cr.P.C. and ultimately, her second statement under Section 161 Cr.P.C. (Bayan Majeed). The name of present revisionist has surfaced in the statements of the prosecutrix referred to above. Accordingly, the Investigating Officer also examined the revisionist, under Section 161 Cr.P.C. but exculpated her.
54. The issue that the prosecutrix was offered a second cup of coffee by the revisionist and after consuming the same, she started feeling dizzy was disclosed by the prosecutrix during course of investigation i.e. in her statement under Section 164 Cr.P.C. Consequently, whether an offence under Section 328 IPC i.e. causing hurt by means of poison, etc., with intent to commit an offence was committed or not?, was also the subject matter of investigation. However, during the course of investigation, no such material emerged, so as to infer the commission of an offence under Section 328 IPC. As such, the summoning of prospective accused i.e. the revisionist is being sought on the basis of a non existent fact.
55. It is also apposite to mention here that the prosecutrix in her deposition before Court below as PW-1 has departed from the basic prosecution case as unfolded in the FIR. The prosecutrix in her statements under Sections 161, 164 Cr.P.C. and then again under Section 161 Cr.P.C. has stated contradictory facts regarding preparation of coffee, the consumption of coffee by all the six persons and the second cup of coffee having been offered by the present revisionist to the prosecutrix and after consuming the same, she started feeling dizzy. Undisputedly, the prosecutrix, in her aforesaid statements, has not stated anything clinching or adverse against the revisionist nor she has directly or indirectly implicated the revisionist for having abetted in commission of the crime in question. Therefore, the learned counsel for revisionist is right in his submission that in view of above and the attending circumstances as noted above, the statement of fact occurring in the deposition of PW-1 as noted herein above, is not worthy of credit.
56. The Court also finds that the prosecutrix and named accused Anurag were in love relationship with each other as is evident from the whatsapp chats, which is on record from pages 15 to 39 of the supplementary affidavit 17.10.2023. Therefore, it cannot be said that the occurrence giving rise to present criminal proceedings was on account of abetment on the part of present revisionist. Furthermore, the occurrence giving rise to present criminal proceedings is alleged to have occurred on 25.12.2018. Subsequent to above, an FIR dated 28.06.2019 was lodged by the prosecutrix against 5 persons namely (1) Shubham Chaubey, (2) Abhishek, (3) Jaiki Dubey, (4) Vikas Sonkar and (5) Nisha Singh. However, upon investigation, the police has itself submitted a charge sheet against the first informant i.e. the prosecutrix, whereby she has been charge sheeted under Section 67 of the I.T. Act. Looking into the conduct of the prosecutrix, prima-facie it cannot be concluded that the incident giving rise to the present criminal proceedings has occurred on account of the revisionist having abetted in the commission of the crime in question.
57. Apart from above, another peculiar fact that has emerged in the present case is that after the statement-in-chief of PW-1 was recorded, prosecution filed an application dated 09.02.2021, under Section 319 Cr.P.C. alleging therein that since as per the material on record/statement-in-chief of PW-1 i.e. the prosecutrix, the complicity of other three named accused is also established in the crime in question, therefore, they be also summoned to face trial. This application came to be allowed by Court below, vide order dated 06.09.2021. It is, thereafter, that another application dated 19.08.2021 was filed by the prosecution/first informant to summon the revisionist, a prospective accused as her complicity in the crime in question also stands established as per the statement-in-chief of PW-1. No explanation has come forward from the prosecution as to why the name of revisionist was not mentioned in the list of prospective accused sought to be summoned, vide earlier application dated 09.02.2021.
58. Having noted the peculiar facts of the case, which are not disputed, the Court now proceeds to examine the issue as to whether in the light of above, the revisionist could have been summoned on the basis of the deposition of PW-1 i.e. the prosecutrix? As an ancillary issue, the Court will also have to consider as to whether court below has exercised it's jurisdiction diligently or as termed by Apex Court in a "casual and cavalier fashion?".
59. A Five Judges Bench of the Supreme Court in Hardeep Singh (Supra), has held that a prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness. In the present case, the Court below has summoned the prospective accused i.e. the revisionist only after the statement-in-chief of PW-1 i.e. the prosecutrix was recorded and not after the entire prosecution evidence was recorded. In view of the law laid down by the Apex Court as noted above, no illegality can be said to have been committed by Court below in deciding the application under Section 319 Cr.P.C. filed by the prosecution/first informant on the basis of the deposition of PW-1 only.
60. The Bench, in aforementioned judgment, has also observed that a prospective accused can be summoned only when a prima-facie case is made out. However, in order to arrive at the conclusion that a prima-facie case is made out for summoning a prospective accused, the Court must record it's satisfaction. What will the nature and degree of satisfaction that is required to be observed before summoning a prospective accused is no longer shrouded in obscurity but stands crystallized in paragraph 106 of the report. For ready reference, the same is extracted herein under:-
"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."
61. In the light of the facts and circumstances of the case, as noted herein above, by no stretch of imagination, it can be said that the same degree of satisfaction as is required in law could be observed by Court below before summoning the prospective accused i.e. the revisionist. The Court below while passing the order impugned has simply referred to a particular statement occurring in the deposition of the prosecutrix before Court below and on basis thereof, has come to the conclusion that the prospective accused i.e. the revisionist has abetted in the commission of the crime in question but has ignored the attending circumstances, which clearly belie the said statement. Moreover, the Court below has not examined the deposition of the prosecutrix as a whole. It is here where the Court below has gone wrong and thus exercised it's jurisdiction not diligently but in a "casual and cavalier fashion".
62. Another issue which requires to be dealt with is whether the Courts while deciding an application under Section 319 Cr.P.C. are to be guided by the deposition of the prosecution witness or they are also required to consider the entire material collected by the Investigating Officer during course of investigation? The said issue is also no longer res-integra but stands concluded by the judgment of Supreme Court in Brijendra Singh (Supra), wherein Court has held that the material collected by the Investigating Officer during course of investigation should also be examined while dealing with an application under Section 319 Cr.P.C. as it is a relevant material. The said material can be looked into to find out as to whether something more than mere complicity of a prospective accused has emerged or not by virtue of the law laid down by the Apex Court in Brjendra Singh (Supra)? In the present case, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. followed by her statement under Section 164 Cr.P.C. and ultimately, her second statement under Section 161 Cr.P.C. (Bayan Majeed), wherein the prosecutrix has neither stated anything adverse or clinching against the revisionist nor has she made any allegations against the revisionist on the basis of which, it could be conclusively inferred that the revisionist has abetted in commission of the crime in question. Furthermore, the prosecutrix in her previous statements referred to above has herself not remained consistent with regard to the events, which preceded the actual occurrence i.e. dislodging the modesty of the prosecutrix.
63. When the entire gamut of the facts and circumstances of the present case are examined as a whole, it cannot be conclusively concluded that strong and cogent evidence has emerged against the prospective accused i.e. the revisionist than her mere complicity in the crime in question. As such, the caution given by the Apex Court in S. Mohammad Ishpahani (Supra), is fully attracted.
64. In view of the discussion made above, no inference regarding the guilt of the revisionist can be inferred either, inasmuch as, the prosecutrix in her deposition before Court below has made a statement on the basis of which, Court below has come to the conclusion that the revisionist has abetted in the commission of the crime in question. As already stated above, the statement so occurring in the deposition of the prosecutrix before Court below and is also the basis of the impugned order had also emerged in her previous statements under Section 161, 164 Cr.P.C. and her second statement under Section 161 Cr.P.C. (Bayan Majeed). As such, nothing new was stated by the prosecutrix in her deposition before Court below, on the basis of which, Court below could have drawn an adverse inference against the revisionist. As such, the caution given by the Apex Court in the case of Brijendra Singh (Supra) is also fully attracted. On the same evidence, the revisionist was exculpated by the Investigating Officer, whereas on the same evidence, she has been summoned by Court below.
65. As a result, the present criminal revision succeeds and is liable to be allowed.
66. It is, accordingly, allowed.
67. The order impugned dated 02.11.2022 passed by Special Judge, POCSO Act/Additional Sessions Judge, Court No. 22 Kanpur Nagar in Special Sessions Trial No. 457 of 2019 (State Vs. Anurag and others ) under Sections 376 DA I.P.C. and Section 17 read with Sections 5/6 POCSO Act, Police Station Kakadev, District-Kanpur Nagar, is, hereby, set aside.
68. Considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 16.07.2024 Vinay