Allahabad High Court
Manoj And Another vs State Of U.P. And Another on 16 December, 2019
Author: Rajul Bhargava
Bench: Rajul Bhargava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 66 Case :- CRIMINAL REVISION No. - 4357 of 2019 Revisionist :- Manoj And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rajesh Kumar Mishra,Vimlendu Tripathi Counsel for Opposite Party :- G.A. Hon'ble Rajul Bhargava,J.
Heard Sri Vimlendu Tripathi and Sri Rajesh Kumar Mishra, counsel for the revisionists and learned AGA.
The present criminal revision has been filed against the impugned judgment and order dated 4.10.2019 passed by learned Additional District and Session Judge, Hapur on the application filed by opposite party no. 2 u/s 319 Cr.P.C. in Special Session Trial no. 45 of 2016 (State vs. Joni) arising out of Case Crime no. 120 of 2016, u/s 363, 366, 376 IPC, and Section ¾ POCSO Act, P.S. Babugarh, District Hapur.
The breif background of the case is that the revisionists were summoned u/s 319 Cr.P.C. vide order dated 13.12.2018 on the basis of statement of prosecutrix recorded during trial in which she has levelled allegation of gang rape against the revisionists and the said order was challenged by the revisionists in Criminal Revision no. 459 of 2019. The coordinate Bench of this Court quashed the order dated 13.12.2018 and remanded the matter back for fresh consideration after affording opportunity of hearing to both the parties strictly in the light of ratio laid down in Hardeep Singh's case etc. within a period of eight weeks. The order passed by the Court is as under:-
"Heard learned counsel for the revisionists and learned AGA for the State.
The instant Criminal Revision is on behalf of the revisionist Manoj and Raju @ Raj Kumar is targetted against the orders passed by Additional Sessions Judge, Hapur while deciding the application no. 30 kha under Section 319 Cr.P.C. so preferred by the accused informant.
Submission made by the counsel is that the informant Ashok Kumar lodged an FIR on 06.04.2016 under Sections 363 and 366 IPC, P.S. Babugarh, District Hapur against one Johny. The name of the revisionist was neither named in the FIR nor his name came during investigation. Submission furhter made by the counsel is that during investigation, the statement under Section 164 Cr.P.C. of the victim was recorded in which she has taken name of Raju @ Rajkumar and Manoj for extending threats to girl but, interestingly, ignoring 164 Cr.P.C. and collecting or attending material, the I.O. of the case in the fitness of the case of the circumstances has submitted under Section 173 (2) Cr.P.C. only against Johny and there was no whisper in the charge sheet regarding the complicity of Jitendra, Raju and Manoj (revisionists). Thereafter since the case was triable by the sessions court and consequently the matter was committed to the court of Sessions. The testimony of the victim was recorded on 21.06.2018 in which she has taken the name and attributed the role against the Johny son of Babloo, Jitendra son of Karan, Jitendra's uncle Raju @ Rajkumar and uncle of Johny, Manoj and has mentioned that all the four has out raged her modesty. Not only this the mother of the victim has also recorded her testimony on the same lines and thereafter it was prayed from the court learned trial court to exercise the power under Section 319 Cr.P.C. and summoned known accused persons (revisionists) and by impugned order learned trial judge has summoned the revisionist.
Learned counsel for the revisionists has assailed the order on the ground that the order impugned is in complete tangent of the ratio laid down by the Hon'ble Apex Court in the case of Brijendra Singh & others Vs. State of Rajasthan reported in (2017) 7 SCC 706, Hardeep Singh vs State Of Punjab & Ors reported in (2014)3 SCC 92, Labhuii Amratji Thakor & others Vs. State of Gujrat and another, (Criminal Appeal No. 1349 of 2018 arising out of SLP (Crl.) No. 6392 of 2018 decided on 13.11.2018.
In order to buttress his contention learned counsel for the applicant has relied upon Brijendra Singh's case in which Hon'ble Apex Court has categorically mentioned :-
"However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no sayisfaction of this nature."
On the similar lines in the recent judgment of Hon'ble Apex Court in Labhuji Amratji Thakor's case the court has opined that the power under Section 319 Cr.P.C. should be sparingly used and it should be very sparingly. More over under the circumstances it has been categorically mentioned that on the date and time of the incident, the revisionists Manoj Kumar was on Govt. duty and was residing in the Govt. accommodation and after 27.02.2016, he has not taken any leave and continuously remain present in the Chief Fire Extinguisher Office, District Bulandshahar and certified copy to this effect is annexed as Annexure-11 to the affidavit accompanying the revision. The revisionist no.1 is a Govt. Servant, all these factors has to be taken into account while recording the prima facie satisfaction.
After going through the impugned order, I am of the considered opinion that the order impugned is in the strak contrast with the ratio laid down by the above mentioned three judgements of Hon'ble Apex Court in which the Hon'ble Apex Court has provided the guidelines with regard to the summoning, the quantum of satisfaction, and the stage of using 319 Cr.P.C. application and thus under the circumstances in exercise of power under Section 397/401 Cr.P.C., I here quashed the order dated 13.12.2018 and remanded he matter back for fresh consideration after affording opportunity of hearing to both the parties strictly in the light of the ratio laid down in Hardeep Singh's case, Labhuji Amratji's case and Brijendra Singh's case within a period of eight weeks from the date of production of certified copy of thsi order.
With the aforesaid observation, this revision stands disposed of finally."
Since the entire facts of the case and evidence recorded during trial has already been discussed in the aforesaid order, I do not deem it fit to repeat the submission made by counsel for the revisionists onceagain as now even in the present petition argument advanced by learned counsel is the same and has assailed the impugned order dated 4.10.2019.
Learned counsel for the revisionists have assailed the impugned order on the ground that the trial judge has misinterpreted evidence on record and has recorded perverse finding about involvement of revisionists in the crime. Trial judge did not consider the material collected during investigation in respect of their plea of alibi which stood unrebutted and solely on the basis of conjectures and surmises summoned the revisionists to face trial.
Learned counsel for the revisionists submitted that in view the judgement of Hon'ble Apex Court in the case of Hardeep Singh Versus State of Punjab (2014) 3 SCC 92, the trial judge has not considered the evidence on record and has relied on extraneous material without recording satisfaction more than prima facie satisfaction sufficient for framing charges is required under the law and no such satisfaction to this effect has been recorded in the impugned order. Learned counsels have further place reliance on subsequent decision of the Hon'ble Apex Court in the case of Brijendra Singh and others Versus State of Rajasthan (2017) 7 SCC 706 and followed in the a recent judgement rendered by Hon'ble Apex Court in the case of Shiv Prakash Mishra Versus State of Uttar Pradesh and another passed in Criminal Appeal No.1105 of 2019 (arising out of S.L.P. (Crl.) No.2168 of 2019) dated 23.7.2019 wherein the plea of alibi was raised by the accused and accepted by Investigating Agency which led to filing of charge-sheet. The powers under Section 319 Cr.P.C. was invoked by the prosecution which led to allowing of the application which was assailed in the High Court whereafter the matter was preferred upto Supreme Court wherein challenge made by the accused therein was upheld by holding that a detailed inquiry has been conducted by the investigating agency where the plea of alibi was found to be true, the trial court was not correct in allowing the application under Section 319 Cr.P.C. in a perfunctory and cursory manner without applying its judicial mind to the exonerative evidence collected by the Investigating Officer during investigation.
Sri Pankaj Saxena, learned A.G.A. Appearing for the State has strongly opposed the prayer for quashing the impugned order and has relied upon the Constitution Bench decision of Hon'ble Apex Court in Hardeep Singh Versus State of Haryana.. He has further argued that the plea of alibi cannot be considered at the stage of taking cognizance or claiming discharge by the accused under Section 227 of Cr.P.C. and the trial court while exercising powers under Section 319 Cr.P.C. The trial judge has rightly placed reliance on the statement of PW 3 who is the victim of gang rape by the revisionists and two other which continued for about a month. Therefore, the instant revision deserves to be dismissed.
In order to deal with the submissions made by learned counsels for the revisionists, especially in respect of subsequent judgements rendered by the Hon'ble Apex Court in Brijendra Singh's and Shiv Prasad Mishra's cases, I would like to deal with legal aspect as to what material/evidence is to be considered under Section 319 Cr.P.C. as laid down in the judgements of the Hon'ble Apex Court in the Constitution Bench decision rendered in the case of Hardeep Singh (supra).
The Hon'ble Apex court in it's decision of Constitution Bench in the case of Hardeep Singh(supra) has considered the scope, ambit and sweep of Section 319 Cr.P.C. in detail and has framed several questions including question No.(iii) which is reproduced below:-
"Question (iii) - Whether the word "evidence" used in Section 319 (1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial ?"
The above said question has been answered in the following manner by the Apex Court:-
"85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilized only for corroboration and to support the evidence by the court to invoke the power under Section 319 Cr.P.C. The "evidence" is thus limited to the evidence during trial."
This Court, after carefully considering the Constitution Bench decision of Apex Court in the case of Hardeep Singh(supra) and subsequent decisions in Brijendra Singh's and Shiv Prakash Mishra's cases is of the opinion that a bare perusal of two Judges's Bench decision of Apex Court in the Brijendra Singh's case reveals that though earlier decision of Hardeep Singh was considered, however, the scope, ambit and sweep of expression "evidence" contained under Section 319 Cr.P.C. and explained in the para 85 in the judgement was not considered in the subsequent cases to the extent that any evidence collected during investigation either in favour of the prosecution or the accused cannot be taken into account while exercising the power under Section 319 Cr.P.C. In view of unambiguous interpretation to the word 'evidence'; it is limited to the evidence recorded by the trial court".
With profound respect and utmost humility at my command, I may record that it is well settled that authority/judicial precedent has to be understood in context of facts based on which the observation made therein are made. The ratio of a decision is generally secundum subjectam materiam.
In Quinn v. Leathem (1901) AC 495, Earls of Halsbury L.C. stated:
"...that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other case is only an authority for what it actually decides.
It is also well settled that a decision is precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgement that constitutes a precedent. The only thing in Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyze a decision and isolate from it the ratio decidendi.
This court indeed cannot comment on the decision of Hon'ble Apex Court in the Brijendra Singh and Shiv Prakash Mishra's cases(supra) but two conflicting views appeared to exist on the same point of meaning of expression ''evidence' used in Section 319 Cr.P.C., the decision of Hon'ble Apex Court in the case of Hardeep Singh rendered by Bench of larger composition shall prevail upon Brijendra Singh's and another decision.
In view of the above, this Court has no hesitation to hold that the expression "evidence" found in Section 319 Cr.P.C. is to be understood to mean the evidence collected during the trial in shape of oral and documentary evidence. However, the other evidence which has come on record between the stage of taking cognizance by the Court till the commencement of the trial can merely be used for corroborative purposes as laid down by the Apex Court in five Judge Bench decision in the case of Hardeep Singh. In other words, an application under Section 319 Cr.P.C. is maintainable only when implicative evidence of probative value more than strong suspicion comes on record in shape of documentary or oral evidence in trial. While considering such application under Section 319 Cr.P.C. the trial court can take assistance, for corroboration only, of any evidence which is already on record introduced between the stage of taking cognizance and the stage of commencement of trial. However, the trial court is not empowered to invoke Section 319 Cr.P.C. merely based on evidence which is part of investigation stage unless the same is already brought on record between the period of taking cognizance and before the trial begins.
Essentially, the main thrust of the learned counsels for the revisionists is to the plea of alibi which according to them was of an impeccable quality and thus the trial judge instead of rejecting the same on flimsy ground should have considered the same in this behalf statement of witnesses was also recorded by the Investigating Officer under Section 161 Cr.P.C. to record a positive finding that the revisionists could not have been present at the scene of commission of crime. It is well settled that statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of proviso to subsection (1) of Section 162 Cr.P.C., the statement can be used only with limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the trial judge was perfectly justified in not placing reliance on wholly inadmissible evidence of alibi collected during investigation and if he had relied upon the same it would squarely be against interpretation given by Constitution Bench of Hon'ble Apex Court in Hardeep Singh's case being extraneous material collected during investigation and could not be treated as an evidence for the purposes of exercise of powers under Section 319 Cr.P.C. Consideration of plea of alibi while exercising powers under Section 319 Cr.P.C. may also be looked into from another angle i.e. Section 103 of Evidence Act which stipulates that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is proved by any law that proof of that fact lies on a particular person. Second illustration to Section 103 of Evidence Act reads as under:
"B wishes the court to believe that at that time in question he was elsewhere, he must prove it."
This provision makes it obvious that burden of establishing plea of alibi of the revisionists before this Court lay squarely upon them. There is hardly any doubt regarding this legal proposition. Reference may be made to the cases of State of Haryana Versus Sher Singh, Manu SC/0236/1981, Gurcharan Singh Versus State of Punjab, Manu SC/0122/1955 and Chandrika Prasad Singh Versus State of Bihar Manu SC/0084/1971.
This could be done by leading evidence in trial court and not by relying on the material collected during investigation. In such a case the prosecution would have to be given an opportunity to cross-examine this witness can demonstrate that their testimony was not correct. The Court also in exercise of its inherent powers under Section 482 Cr.P.C. cannot consider the plea of alibi of an accused at the stage of taking cognizance, framing of charges or summoning the accused on the basis of evidence recorded during trial under Section 319 Cr.P.C. The revisionists accused will have ample opportunity to place their evidence at the appropriate stage. In this behalf the judgement of the Hon'ble Apex Court, rendered in the case of State of Orissa Versus Debendra Nath Padhi, 2004(8) Supreme Court Cases 568 be referred to. It was held:
" .....Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
The above judgement relates to the stage of claiming of discharge by the accused under Section 227 Cr.P.C. However, in view of well settled law that even at the stage of framing of charge, material in respect of plea of alibi cannot be relied upon to discharge the accused.
The power under Section 319 of the Code is conferred on the court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the Criminal Justice System is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred a power in the court to proceed against others not arrayed as accused in the circumstances set out by this Section. It is a salutary power enabling the discharge of a court's obligation to the society to bring to book all those guilty of a crime.
The facts of the present case are very alarming and grevious in nature inasmuch as a minor girl aged about 15 years has not only given detailed version of ordeal faced by her in the statement recorded u/s 164 Cr.P.C. but PW-3 victim has narrated that for a month she was confined in a room by the revisionists and two other co-accused and was continuously gang raped by them. The trial court while considering the entire evidence onceagain after being remanded by this Court has recorded finding that the plea of alibi of the revisionists cannot be examined inasmuch as the revisionist no. 1 was merely working in the office of Chief Fire Brigade Officer, Bulandshahar and the revisionist no. 2 was present in the Ashram of his Guru and location of his mobile was found continously at that place and both plea cannot be examined by him while exercising power u/s 319 Cr.P.C. The plea of both the revisionists as noted cannot be examined at this stage and besides it, as the prosecutrix was kept under illegal detention for a month and was continously raped by the accused including the revisionists the location of their mobile and certificate of Chief Fire Brigade Officer has no relevance at this stage, which at best can be scanned and examined when the revisionists lead defence evidence and prove the aforesaid documents in accordance with law.
In the light of aforesaid, the present revision is bereft of merit. The impugned order passed by trial judge is perfectly justified and well within the guidelines/ parameters laid down by Constitution Bench decision of Hon'ble Apex Court in the case of Hardeep Singh.
The revision is accordingly, dismissed.
Order Date :- 16.12.2019 Dhirendra/