Allahabad High Court
Lallan Babu And Another vs State Of U.P. And Another on 8 January, 2020
Author: Rajendra Kumar-Iv
Bench: Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 80 AFR Case :- CRIMINAL REVISION No. - 70 of 2018 Revisionist :- Lallan Babu And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Pramod Kumar Counsel for Opposite Party :- G.A. Hon'ble Rajendra Kumar-IV,J.
1. Heard Sri Pramod Kumar, learned counsel for the revisionists, learned AGA for the State and perused the material on record.
2. This criminal revision has been filed by accused revisionists Lallan Babu and Smt. Rekha against the order dated 28.11.2017 passed by Additional Sessions Judge / Special Judge, POCSO Act, Court No. 1, Auraiya in Special Sessions Trial No.388 of 2015, State vs. Raj @ Guddu (Case Crime No. 150 of 2015), under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, P.S. Phaphund, District Auraiya whereby trial court allowed the application under Section 319 Cr.P.C. made by prosecution and summoned the accused-revisionists to face trial.
3. It has been contended by learned counsel for the revisionists that accused-revisionists are falsely implicated in the present case. They committed no offence. Investigating Officer during investigation did not find any evidence against the revisionists and he did not submit charge sheet. It has been further submitted that accused-revisionists are not named in F.I.R. They have not been charge-sheeted. There names have not come in the statement of witnesses under Section 161 Cr.P.C. but they have been summoned believing the evidence of P.W.-2 Anju Mishra (Victim). It has been further argued that trial Court did not appreciate the evidence in right perspective. The revisionists are the parents of alleged main accused Raj @ Guddu.
4. On the other hand learned AGA refuted the submission of learned counsel for the revisionists and submitted that accused-revisionists are parents of main accused Raj @ Guddu. They have provoked the main accused to commit the crime. PW-1 is not an eye witness. PW-2 is the victim, who supported the prosecution case and proved the involvement of revisionists in the present crime.
5. Brief facts of the case are as under :-
(a) An F.I.R. bearing Case Crime No. 150 of 2015 was lodged by one Awadhesh Kumar (Father of victim) against the accused Raj @ Guddu under Section 363 and 366 I.P.C. stating that his minor daughter (name of victim is withheld by me), aged about 15 years was seduced and abducted by accused Raj @ Guddu on 3.4.2015 at about 1:00 PM. Matter was investigated by Investigating Officer, who submitted charge sheet against the accused Raj @ Guddu.
(b) During the course of trial, statement of PW-1 Informant and PW-2 victim were recorded. PW-2 supported the prosecution case and disclosed the involvement of revisionists.
(c) PW-2 in her statement has stated that when she went to the shop of accused Raj @ Guddu on 3.4.2015 at about 11:00 AM, his parents (present revisionists) gave Rs.5000/- and provoked to go with Raj @ Guddu to Gujrat, thereafter, she went to Gujrat with Raj where she lived with him for about 2 ½ months.
(d) PW-1 Awadhesh Kumar (Informant) moved an application 39-B under Section 319 stating that victim PW-2 disclosed the involvement of Lallan Babu and Smt. Rekha in the present case and it is necessary to summon them for trial, application was objected by accused Raj @ Guddu by filing his objection / application no. 39-B. After hearing both parties and appreciating the entire record as well as statement of PWs-1 and 2, trial court allowed the application under Section 319 Cr.P.C. and summoned Lallan Babu and Smt. Smt. Rekha for facing trial in the aforesaid sections, relying the statement of PW-2 Victim.
6. Section 319 of The Code Of Criminal Procedure, 1973 reads as under :-
"Section 319. Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2)Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
7. In Anil Arya v. State of U.P. and Others, Criminal Revision No. 1216 of 2005, decided on 09.09.2016, this Court held as under :-
"Whether evidence is correct or not or credible enough or not to sustain conviction and punishment is a matter which would be seen after revisionist put in appearance, lead evidence and thereafter Trial Court examine the entire evidence and record its finding thereon, but at the stage of summoning of revisionist on the basis of aforesaid statement in Trial under Section 319 Cr.P.C., the probable defence of accused summoned under Section 319 Cr.P.C. cannot be examined for the first time in a revisional jurisdiction by this Court."
8. In Hardeep Singh Vs. State of Punjab and others 2014 (3) SCC 92, Court examined following five questions:
"(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
(ii) Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
(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?
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"
9. The aforesaid questions have been answered in para 117 of judgment as under :-
Question Nos. (i) and (iii) A. In Dharam Pal and Ors. v. State of Haryana and Anr. 2004 (13) SCC 9, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.
In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question No. (ii) A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question No. (iv) A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No. (v) A. 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 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.
10. The aforesaid judgment in fact lay down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge-sheet is filed by Police against him and the accused can be summoned only on the basis of examination-in-chief of witness and need not wait for cross-examination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C, Court has said that test are same as applicable for framing charge.
11. The above view was followed in Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC 706 holding:
" ... since it is a discretionary power given to the court Under Section 319 Code of Criminal Procedure and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."
12. Recently in Shiv Prakash Mishra Vs. State of Uttar Pradesh and others (2019) 7 SCC 806, Court relying on the above authorities as also Kailash Vs. State of Rajasthan and another (2008) 14 SCC 51, held as under:
"The standard of proof employed for summoning a person as an Accused person under Section 319 Code of Criminal Procedure is higher than the standard of proof employed for framing a charge against the Accused person. The power Under Section 319 Code of Criminal Procedure should be exercised sparingly. As held in Kailash Vs. State of Rajasthan and another (2008) 14 SCC 51, "the power of summoning an additional Accused Under Section 319 Code of Criminal Procedure should be exercised sparingly. The key words in Section are "it appears from the evidence"."any person"."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion Under Section 319 Code of Criminal Procedure would be used by the court." (emphasis added)
13. In view of above, it is clear that in order to summon a person under Section 319 Cr.P.C., mere taking of name is not sufficient but there must be something more to show implication of person who has been sought to be summoned.
14. Aforesaid statement of Informant and victim clearly show that revisionists and co-accused Raj @ Guddu were involved in the commission of crime and they also participated in incident. Whether evidence of witnesses is correct or not, credible enough or not to sustain conviction, is a matter which would be seen after revisionists put in appearance, lead evidence and thereafter, Trial Court examines the entire evidence and records its finding thereon. At the stage of summoning of the revisionists on the basis of aforesaid statements for trial, probable defence of accused-revisionists summoned under Section 319 Cr.P.C. cannot be examined for the first time under the revisional jurisdiction by this Court.
16. Looking to the facts of this case and in the light of exposition of law, as discussed above, I find that here is not a case where mere name of revisionists have been taken but details of incident have been given showing the manner in which revisionists have acted and committed crime. Hence, it cannot be said that there is no material whatsoever and also that on mere probability of complicity they have been summoned but there is appropriate material and evidence to justify summoning of revisionists under Section 319 Cr.P.C. and I find no manifest error in the order passed by Court below.
17. The revision lacks merit and is accordingly dismissed.
Order Date :- 8.1.2020 Manoj