Allahabad High Court
Neeru And Another vs State Of U.P. And Another on 10 July, 2019
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 58 Case :- CRIMINAL REVISION No. - 648 of 2015 Revisionist :- Neeru And Another Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Shailesh Kumar Tripathi,Abhilasha Singh,Anjani Dubey,Ashutosh Yadav,Shyam Lal Counsel for Opposite Party :- Govt.Advocate Hon'ble Virendra Kumar Srivastava,J.
1. This revision has been filed against the order dated 5.2.2015 passed by Addl. Session Judge, Court no. 4, Bulandshahr, in Special Case no. 65 of 2014 (State of U.P. Vs. Prem Dutta) arising out of Case Crime No. 20 of 2014, u/s 363, 366, 376 IPC and 4 POCSO Act, P.S. Pahasoo, Distt. Bulandshahr whereby the learned Judge allowed the application filed by O.P. no. 2 u/s 319 Code of Criminal Procedure, (Code) and the revisionists have been summoned for trial.
2. Heard learned counsel for both the parties and perused the record.
3. The brief facts of this case are that O.P. no. 2 Ravi Kiran lodged an FIR on 5.2.2014 at 10:15 am at P.S. Pahasoo Distt. Bulandshahar alleging that on 1.2.2014 at 12:00 pm her daughter (prosecrutrix) had gone to her college but did not return. His brother Kanchan Singh told him that Prem Datta, Krishna Gopal, revisionists Neeru and Shushil @ Boby had enticed her away. On 6.2.2014 the prosecutrix was recovered. Her statement u/s 164 of the Code was recorded and after investigation charge sheet was filed only againt Prem Datta. During trial, the statement of victim was recorded and an application was filed u/s 319 of the Code for summoning the revisionists for trial along with co-accused. The trial Court vide impugned order allowed the said application and summoned the revisionist for trial along with other accused. Aggrieved by the aforesaid impugned order this revision has been filed.
4. Learned counsel for the revisionist has submitted that revisionists are innocent and have committed no offence. They have been exonerated by the investigating officer as no evidence against them was found during investigation. The prosecutrix is above than 19 years. It has further been submitted that the prosecutrix had eloped with Prem Datta. Her parents used to beat her up and due to which she had left her home suo moto on the pretext of going for taking tuition. It has further been submitted that after passing the impugned order the prosecutrix has filed an affidavit in 2017 wherein she has retracted from her statement given before the Magistrate as well as trial Court. The said Case No. 65 of 2014 (State of U.P. Vs. Prem Dutta) has been concluded and culminated into conviction of co-accused Prem Dutt vide impugned order dated 6.1.2018 passed by the learned trial Court and, therefore, the revisionist cannot be tried together with accused Prem Dutt as required u/s 319 (1) of the Code. The impugned order is perverse, illegal, unjustified in the eye of law and is liable to be set aside and revision be allowed.
5. Learned AGA vehemently opposed the submission made by the learned counsel for the revisionist and submitted that there is no illegality or perversity in the impugned order passed by the trial Judge and the said impugned order cannot be held illegal only on the ground that on subsequent occasion prosecutrix has filed an affidavit against the revisionist.
6. Section 319 of the Code which deals with the power to proceed against other persons appearing to be guilty for offence during the course of any enquiry or trial of an offence, is as under:-
"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. Thus the provision of this section empowers the trial Court to implead any person as accused if it appears to the Court from evidence available on record that any person who is not being tried and has committed an offence with the accused who is being tried, the Court may summon such person and may proceed against him for such offence which he appears to have committed.
8. In this case the revisionists accused Neeru and Sushil @ Boby are named in the FIR. During investigation the statement of prosecutrix was recorded by the Magistrate u/s 164 of the Code wherein she had specifically stated as under:-
"जब मैं स्कूल से लगभग बारह बजे अपने घर के लिए आ रही थी पहासू निकलने के बाद पुल के पास मुझे नीरू मिली मैं पैदल आ रही थी नीरू ने मुझसे कहा की मेरे बुआ के लड़के बर्फी लाए है तू खा ले पहले मैंने मना किया फिर मैंने बर्फी खा ली बर्फी खाने के बाद मुझे चक्कर आ रहा था फिर पुल के पास वैन के पास प्रेमदत्त और सुशील खड़े थे जिन्होंने मुझे गाड़ी में डालकर ले गये मैं बेहोश हो गयी थी फिर मुझे गांव में ले जा कर मुझे एक घर में रखा और मुझे इंजेक्शन लगाकर बेहोसी की हालत में रखा और नशे की गोलियां जबरजस्ती खिलायी और मेरे साथ बुरा काम किया मेरे पैर सूज रहे है मेरे दोनों बाहों में भी दर्द है मेरी गर्दन में भी दर्द है मेरे साथ दोनों ने प्रेमदत्त व् सुशील ने बलात्कार किया था बलात्कार का मतलब मैं जानती हूँ मतलब शादी के बाद पति जो अपनी पत्नी के संग करता है. कृष्ण गोपाल मेरे साथ कुछ नहीं किया था. क्योंकि कृष्णा गोपाल प्रेमदत्त व् बॉबी के साथ नहीं आया था. "
9. This witness was examined during trial as P.W. 1. Again she supported the prosecution case, her statement u/s 164 CrPC as well as version of the FIR and nothing has come out from her examination against the prosecution. Hon'ble Supreme Court in Y. Saraba Reddy Vs. Puthur Rami Reddi and others, (2007) 4 SCC 773 while dealing with the scope of power conferred u/s 319 of the Code has held as under:-
"12. On a careful reading of Sec. 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence. Of course, as evident from the decision reported in Sohan Lal and others v. State of Rajasthan, (AIR 1990 SC 2158) the position of an accused who has been discharged stands on a different footing.
13. Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court. Under Sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub- section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned."
10. So far as the submission of learned counsel for revisionists that the trial of co-accused has been concluded and he has been convicted hence the revisionists accused cannot be tried in pursuance of impugned order is concerned, the law relating to this point has been settled by the Hon'ble Supreme Court in Rajendra Singh Vs. State of U.P. & another, AIR 2007 SC 3 796 held as under:-
10. .....................The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed under Section 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shasikant Singh v. Tarkeshwar Singh (2002) 5 SCC 738. and it was held as under in para 9 of the report :
"9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person.
They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."
Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge on 26.5.2005 as infructuous."
11. Thus in view of the aforesaid law laid down by the Hon'ble Supreme Court, the submission of the learned counsel for revisionist that trial of the co-accused has been concluded hence the impugned order passed by the learned trial Court summoning the revisionist accused is illegal, has no force.
12. So far as submission of learned counsel for revisionist that revisionist has filed an affidavit alleging that no offence was committed, is concerned, from perusal of record it transpires that the impugned order has been passed on 5.2.2015 whereas the revisionist has filed the affidavit on 22.3.2017. In my view only on the ground that any affidavit has been filed by the revisionist against her statement recorded during trial, which was filed subsequent to the impugned order, passed by the Trial Court, the impugned order, which is valid in the eye of law, cannot be held illegal or perverse.
13. In the light of aforesaid discussion I am of the view that the impugned order passed by the learned Trial Judge is legal and justified. It requires no interference.
14. The revision lacks merit and is accordingly dismissed.
Order Date :- 10.7.2019 Vandana