Allahabad High Court
Sagar Shukla And 3 Others vs State Of Up And 3 Others on 23 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:72222 Court No. - 77 Case :- CRIMINAL REVISION No. - 1606 of 2024 Revisionist :- Sagar Shukla And 3 Others Opposite Party :- State Of Up And 3 Others Counsel for Revisionist :- Mohd Raghib Ali,Pankaj Kumar Ojha,Sharique Ahmed,Sr. Advocate Counsel for Opposite Party :- Anurag Shukla,Babita Upadhyay,G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Saghir Ahmad, the learned Senior Counsel assisted by Mr. Sharique Ahmed, the learned counsel for revisionists, the learned A.G.A. for State, Mr. Vinay Kumar Singh, Advocate, holding brief of Mr. Anurag Shukla, the learned counsel representing first informant-opposite party-2 and Mrs. Babita Upadhyay, the learned counsel representing opposite party-3.
2. Perused the record.
3. This criminal revision has been filed challenging the order dated 20.01.2024 passed by Additional Sepcial Judge POCSO Act/ Additional Sessions Judge, Court No.22, Kanpur Nagar in S.S.T. No. 1053 of 2020 (State Vs. Rishi Shukla and others) under Sections 376, 504, 506 I.P.C. and Section 3/4 POCSO Act Police Station Bithoor, District Kanpur Nagar, whereby court below in exercise of jurisdiction under Section 216 Cr.P.C. has allowed the application (Paper No. 25 Ka) filed by prosecution for alteration of the charges already framed against charge sheeted accused and further decided that additional charges shall be framed against the accused under Section 376D/34 and Section 5g/6 POCSO Act.
4. Mr. Saghir Ahmad, the learned Senior Counsel for revisionists contends that the order impugned in present criminal revision is manifestly illegal inasmuch as the same has been passed after taking into consideration non-existent fact. To buttress his submission, he has invited the attention of court to internal page 5 of the impugned order at page 42 of the paper book and on basis thereof, he contends that prosecutrix in her statement-in-chief before court below has alleged that after rape was committed upon her by two of the named accused i.e Rishi Shukla and Chhotu Agnihotri, the other two named accused sat on the front seat of the car. The second fact which has emerged in the statement of the prosecutrix and also relied upon by the Court below is that in fulfilment of the threat so extended by the accused to the prosecutrix, the brother of the prosecutrix was done to death by named accused.
5. According to the learned Senior Counsel it is this recital occurring in the order impugned which is factually incorrect. He has invited the attention of court to the recital occurring at page 183 of the paper book, wherein, the prosecutrix in her statement-in-chief before court below as PW-2 has stated that her brother was put to death by the named accused after one and a half months of the occurrence.
6. According to the learned Senior Counsel the statement of fact occurring in the statement-in-chief of the prosecutrix is incorrect. In support of above, he has invited the attention of court to page 192 of the paper book, wherein, the prosecutrix in her examination-in-chief has stated that upon the death of her brother, compensation to the tune of Rs. 5,00,000/- was paid by the company. After drawing a parallel in between recital occurring in the statement-in-chief of the prosecutrix as well as examination-in-chief of the prosecutrix, he contends that it is now proved fact that death of the brother of the prosecutrix is an accidental death and not on account of fulfilment of threat/extortion extended by the named accused as occurring in the statement of the prosecutrix.
7. On the above conspectus, the learned Senior Counsel contends that since non-existent fact has been taken into consideration by Court below for altering the charge, court below has not acted judiciously while exercising jurisdiction under Section 260 Cr.P.C. It is thus contended that since Court below has not exercised its jurisdiction diligently but in a casual and cavalier fashion the order impugned is unsustainable in law and fact. As such, the order impugned is liable to be set aside by this Court.
8. Per contra, the learned A.G.A. for State, the learned counsel representing first informant opposite party-2 have vehemently opposed this criminal revision. They submit that the order impugned is based upon two facts:-
A. Narration of the manner of occurrence as per the deposition of the prosecutrix before Court below.
B. Reliance upon the deposition of the prosecutrix extortion/threat was extended by the named accused after the commission of crime and in furtherance of the same the brother of the prosecutrix was murdered by the named accused.
9. Learned A.G.A. submits that even if the second ground relied upon by the court below when the murder of the brother of the prosecutrix is proved to be false as he died an accidental death for which compensation was paid by employer but another ground which is the basis of the order impugned still survives. Therefore, the order impugned is not liable to be interfered with. Learned A.G.A. contends that it is settled principle of jurisprudence that if the order impugned is based upon more than one ground then all the grounds taken by court below for passing the order impugned have to be demolished in order to set aside the order impugned. However, in the present case, one of the grounds relied upon by court below still survives. Therefore, the order impugned is not liable to be interfered with.
10. In rejoinder, the learned Senior Counsel only reiterated his earlier submissions raised by him in support of this revision.
11. Having heard, the learned Senior Counsel for revisionists, the learned A.G.A. for State, the learned counsel representing first informant opposite party-2, the learned counsel representing opposite party-3 and upon perusal of record, this Court finds that court below has altered the charges framed against charge sheeted accused in exercise of jurisdiction under Section 2/5 Cr.P.C. Admittedly, the charge sheet was submitted against accused on 07.07.2020. Thereafter, court below framed charges against charge sheeted accused vide framing of charge order dated 09.05.2022. After the statement of prosecutrix (PW-2) was recorded, prosecution filed an application for alteration of charges (Paper No. 35 Ka). Court below has allowed the said application and has altered the charges. Resultantly, charges under Sections 376 DA/34 and 3/4 POCSO Act have been framed against all the accused. The other charges have been altered by court below by taking into consideration the statement-in-chief/examination-in-chief of the prosecutrix. As per deposition, the prosecutrix recorded before court below, court concerned has considered the following two grounds.
A. As per deposition of the prosecutrix two named accused committed deliberate penetrative sexual assault whereas, the other two accused sat on the front seat of of the vehicle in which the crime was committed.
B. Prosecutrix in her statement-in-chief has stated that after the crime was committed threat was extended to her and in fulfilment of the threat which was initially extended the brother of the prosecutrix was murdered by the charge sheeted accused.
12. It is the second ground taken into consideration by court below which has been demolished by the learned Senior Counsel. However, the first ground taken by court below for altering the charges against charge sheeted accused still survives.
13. In view of above and settled law that if the impugned order is based on more than one ground then all the grounds mentioned in the order impugned have to be demolished but as one of the ground taken in the order impugned survives the order impugned is not liable to be interfered with.
14. As a result, this criminal revision fails and is liable to be dismissed.
15. It is accordingly dismissed.
16. Learned Senior Counsel submits that non-bailable warrants have been issued against revisionists by court below. Though, the revision has been dismissed, however, in case, sometime is granted to the revisionists to surrender before court below and apply for bail then interest of justice shall be served.
17. Learned A.G.A. and the learned counsel representing opposite party-2 do not oppose the prayer prayed for by the learned Senior Counsel for revisionists.
18. In view of above, it is hereby provided that revisionists 1, 3 and 4 shall appear/surrender before court below and thereafter apply for bail under Sections 376 DA I.P.C. and 5(g)/6 POCSO Act within a period of one month from today. Court below shall accordingly consider the bail application of revisionists 1, 3 and 4 in accordance with law.
19. Till 24.05.2024, no coercive action shall be taken against the revisionists.
Order Date :- 23.4.2024 Imtiyaz