Allahabad High Court
Smt. Lata vs State Of U.P. And Anr. on 17 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On: 09.01.2023 Delivered On: 17.01.2023 Case :- CRIMINAL REVISION No. - 2340 of 2013 Revisionist :- Smt. Lata Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- A.K.S. Bais Counsel for Opposite Party :- Govt. Advocate,Mohd. Aslam,Saurabh Kumar Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the revisionist, learned AGA for the State and learned counsel for opposite party no.2.
This criminal revision is filed against the order dated 02.08.2013 passed by Principal Judge, J.J. Board Saharanpur in case no.200 of 2010 (State vs. Monu) arising out of case crime no.92 of 2006, P.S. Titro, District Saharanpur. By the impugned order, the learned court below on an application of prosecution U/s 319 Cr.P.C. has summoned the revisionist to face trial for the offence U/s 313 IPC and simultaneously the co-accused Ghanshyam to face trial for the offence U/s 376, 506 & 323 IPC.
The opposite party no.2 lodged an FIR on 14.10.2006 alleging therein that on 13.10.2006 her minor daughter suddenly became ill and suffered from pain. When the wife of the complainant enquired from her then she started weeping and told that his neighbour Monu has called her at his house where Dr. Smt. Lata who runs Radhika Nursing Home at Gangoh, gave her some pills to swallow and inserted some pills inside her body, since then, she is suffering from unbearable pain, she also told that Monu is committing rape with her since last several months. He has also threatened not to disclose it to anyone otherwise her father and brothers will be killed. The FIR was registered U/s 376 & 506 IPC against Monu. Charge-sheet was submitted. During the course of trial, two witnesses, complainant (P.W.-1) and the victim P.W.-2 were examined. At this stage, an application U/s 319 Cr.P.C. was filed by the prosecution alleging therein that in the FIR lodged by the complainant Monu and Dr. Smt. Lata were named but the S.O. has arrayed only Monu as an accused. Then the complainant presented an application dated 21.11.2006 before S.S.P. Saharanpur in which Ghanshyam and Dr. Smt. Lata were implicated as an accused and which is true and correct. The police has neither recorded the statement of victim under section 161 Cr.P.C. nor get recorded her statement U/s 164 Cr.P.C. The victim has deposed before the court today and in her statement, she has stated about the complicity of all the three accused Sonu, Ghanshyam and Dr. Smt. Lata and they are equally responsible. It is prayed that Ghanshyam and Dr. Smt. Lata be also summoned U/s 319 Cr.P.C. Learned trial court after hearing both the parties has passed the impugned summoning order.
It is contended by learned counsel for the revisionist that victim in her statement recorded U/s 161 Cr.P.C has not disclosed the name of the revisionist accused Dr. Smt. Lata. Before the trial court two witnesses, complainant P.W.-1 and the victim P.W.-2 have been examined, the victim P.W.-2 in her statement before the court has not taken the name of revisionist-accused Dr. Smt. Lata. Only the complainant P.W.-1 in his statement has stated about the complicity of the revisionist-accused in the incident. The oral statement of complainant P.W.-1 is hearsay while the victim who is best witness of the incident has not disclosed about the complicity of the accused in her statement before the trial court. In this way, there is no evidence against the revisionist-accused. No prima-facie case is made out against her. The learned court below has failed to consider the testimony of the victim. It is further contended that the revisionist is a house wife and not a doctor. The allegations is wholly false and manipulated and has been made only to harass her. The learned trial court only on the basis of examination-in-chief P.W.-1 and upon the application U/s 319 Cr.P.C. has passed the summoning order. The learned trial court has not applied its judicial mind. The revisionist has been summoned only on the basis of testimony of P.W.-1, the learned trial court has not taken into consideration the testimony of the victim. Hence the impugned order is not just and proper and bad in the eye of law.
Learned AGA and learned counsel for the first informant/ opposite party no.2 submitted that revisionist was named as an accused in the FIR but the police in collusion not mentioned his name in the column of accused. Specific allegations have been made against her in the FIR. The victim has narrated the entire facts to her parents and complainant is the father of the victim. In his statement before the trial court, he has stated about the involvement of revisionist-accused in the incident. The Investigating Officer has not properly conducted the investigation. No statement of the victim U/s 164 Cr.P.C. was recorded and in a casual manner after completing the investigation, charge-sheet has been submitted only against one accused Monu while co-accused Dr. Smt. Lata, the revisionist and Ghanshyam are also involved in the offence. The victim has corroborated the prosecution version and the complainant P.W.-1 in his testimony before the trial court has clearly stated about the complicity of the revisionist-accused and the role played by her in the incident. The learned trial court analysing the material on record and being satisfied that there is sufficient material has summoned the revisionist accused for the offence U/s 313 IPC. There is no illegality in the impugned summoning order.
It is settled law that power U/s 319 Cr.P.C. can be exercised by the trial court at any stage before the conclusion of the trial court, once the trial court finds that there is some evidence against such a person on the basis of which it can be gathered that he appears to be guilty of the offence. The "evidence" means the material that is brought before the court during trial. In so far as the material/ evidence collected by the Investigating Officer is concerned, it can be utilized for corroboration and to support the evidence recorded by the court to invoke the power U/s 319 Cr.P.C. The power vested U/s 319 Cr.P.C. is a discretionary power and also an extra-ordinary one, the 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 strong and cogent evidence occurs against the 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 satisfaction which is to be formed requires stronger evidence than that mere probability of his complicity.
The Apex Court in the case of Hardeep Singh Vs. State of Punjab AIR 2014 SC 1400 has prescribed the standard of evidence required for exercising powers under section 319 Cr.P.C. The relevant paras 98 and 99 are as follows:
"98. Power under Section 319, Cr.P.C. is a discretionary and an extra-ordinary 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.
99. Thus, we hold that though only a prima face 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."
In this case, there was allegations against the revisionist accused that at the house of Monu, she inserted some pills inside the body of the victim for abortion, this fact is narrated on the basis of information provided by the victim. In statement of the victim recorded U/s 161 Cr.PC. no role has been assigned to the revisionist accused. In her statement before the trial court again the victim has not assigned any role to the revisionist accused. She has not taken the name of the revisionist accused in her statement before the trial court while the victim is the most important witness, and the entire prosecution case, rests on her testimony. It is true that complainant P.W.-1 in her statement before the trial court has attributed the role of inserting pills inside the body of the victim for abortion but this statement of the witness is based on the information as given by the victim. Except the statement of complainant P.W.-1, at this stage there is no other evidence against the revisionist-accused. So it cannot be said that at this stage there is sufficient evidence against the revisionist accused which can be the basis of exercising the powers under Section 319 Cr.P.C. to summon the revisionist. The trial court has acted in a casual and cavalier manner in passing the summoning order against the revisionist accused. The trial court has failed to appreciate the evidence and other material on record. The evidence on record is certainly not of the standard required for summoning an accused in exercise of powers U/s 319 Cr.PC.
From the above discussion, it is clear that the impugned order is not sustainable in the eye of law and, therefore, is liable to be set aside.
Accordingly, the revision is hereby allowed and the impugned order dated 02.08.2013 in respect of revisionist accused Dr. Smt. Lata is hereby set aside.
However, it is made clear that if at any subsequent stage a fresh application is moved on some additional grounds and evidence, the trial court may consider it and pass appropriate orders on it without being swayed with the fate of this revision.
Order Date :- 17.1.2023 C. MANI