Allahabad High Court
Bhudev Singh vs State Of U.P. And Another on 18 March, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:42549 Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 7547 of 2025 Applicant :- Bhudev Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sikandar Raza Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Sikandar Raza, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.
2. Perused the record.
3. Applicant-Bhudev Singh, who is a non-charge sheeted accused but has now been summoned by Court below in exercise of jurisdiction under Section 319 Cr.P.C. to stand his trial, has approached approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned order dated 17.01.2025, passed by the Additional Session Judge / Fast Track Court No. 1st, District Moradabad, in Session Trial No. 1385 of 2023 (State of U.P. Vs. Rahul Sharma and others), arising out of Case Crime No. 560 of 2023, Under Section 376D and 506 I.P.C., Police Station Civil Lines, District Moradabad.
It is further be pleased to stay the further proceedings of the Session Trial No. 1385 of 2023 (State of U.P. Vs. Rahul Sharma and others), arising out of Case Crime No. 560 of 2023, Under Section 376D and 506 I.P.C., Police Station Civil Lines, District Moradabad. Else the applicant shall suffer irreparable loss and injury."
4. Record shows that in respect of an incident, which is alleged to have occurred on 28.06.2023, a delayed F.I.R. dated 01.07.2023 was lodged by the prosecutrix-first informant-opposite party-2 Rozi and was registered as Case Crime No. 0560 of 2023, under Sections 376-D and 506 IPC, Police Station-Civil Lines, District-Moradabad. In the aforesaid F.I.R., 3 persons namely (1) Rahul Sharma, (2) Bhudev and (3) Sachin were nominated as named accused whereas an unknown person was also arraigned as an accused.
5. Gravamen of the allegations made in the F.I.R. is to the effect that named accused deliberately and forcibly dislodged the modesty of the prosecutrix by committing rape upon her.
6. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned crime number in terms of Chapter XII Cr.P.C. He first recorded the statement of prosecutrix under Section 161 Cr.P.C. Copy of the same is on record at page 23 of the paper book. The prosecutrix in her aforesaid statement has fully supported the prosecution story as unfolded in the FIR. Subsequent to above, the Investigating Officer recorded the statements of other witnesses under Section 161 Cr.P.C. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. Copy of same is on record at page 26 of the paper book. The prosecutrix in her aforesaid statement has rejoined her earlier statement under Section 161 Cr.P.C. and thus implicated all the named accused in the crime in question.
7. However, Investigating Officer in the light of material collected by him, during course of investigation, came to the conclusion that complicity of only one of the named accused i.e. Rahul Sharma and not named accused Arun is established in the crime in question. He, accordingly, submitted the charge sheet/police report dated 05.08.2023 in terms of Section 173(2) Cr.P.C., whereby and whereunder aforementioned accused were charge sheeted under Sections 376-D and 506 I.P.C., whereas the other two named accused i.e. Bhudev Singh (applicant herein) and Sachin were exculpated.
8. After submission of aforementioned charge sheet/police report, cognizance was taken upon same by the Jurisdictional Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. Simultaneously, the charge sheeted accused were summoned. However, as offence complained of is triable exclusively by the Court of Sessions, therefore, the concerned Magistrate after complying with the provisions of Section 207 Cr.P.C. i.e. supply of documents to accused and thereafter in line with Section 209 Cr.P.C. committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 1385 of 2023 (State Vs. Rahul Sharma and Others), under Sections 376-D, 506 IPC, Police Station-Civil Lines, District-Moradabad came to be registered and is now pending in the Court of Additional District and Sessions Judge, FTC-I, Moradabad.
9. Concerned Sessions Judge proceeded with the trial. He, accordingly, in complinace of Section 228 Cr.P.C., framed charges against the charge sheeted accused, who denied the same, pleaded innocence and demanded trial. Resultantly, the trial procedure commenced.
10. Prosecution in discharge of it's burden to bring home the charges so framed against charge sheeted accused, adduced PW-1 Rozi i.e. first informant/prosecutrix/opposite party-2. Her deposition was duly recorded before Court below.
11. After the statement-in-chief/examination-in-chief of PW-1 Rozi i.e. the prosecutrix/first informant/opposite party-2 was recorded before Court below, prosecutrix i.e. first informant/opposite party-2 filed an application dated 04.10.2024 under Section 319 Cr.P.C. praying therein that since complicity of named but not charge sheeted accused Bhudev Singh and Sachin is also established in the crime in question as per her deposition, therefore, they be also summoned to face trial in above-mentioned Sessions Trial. This application came to be registered as Paper No. 9-B. It appears that aforementioned application was not opposed by charge sheeted accused.
12. Court below considered the aforementioned application dated 04.10.2024 under Section 319 Cr.P.C. filed by the first informant-prosecution. It, accordingly, evaluated and examined the grounds raised in aforementioned application in the light of material on record i.e. the papers accompanying the charge sheet/police report and also the deposition of PW-1 before Court below. Having undertaken the aforesaid exercise, Court below came to the conclusion that a prima-facie case for summoning the prospective accused i.e. Bhudev Singh and Sachin (named in the FIR but not charge sheeted) to stand their trial is made out. Accordingly, Court below, vide order dated 17.01.2025 allowed aforementioned application under Section 319 Cr.P.C. and simultaneously summoned Bhudev Singh (applicant herein) and Sachin, who are prospective accused i.e. named in the FIR but exculpated in the charge sheet/police report submitted by the Investigating Officer to face trial in above-mentioned trial.
13. Perusal of order impugned dated 17.01.2025 passed by Court below will go to show that Court below has recorded the following findings in support of the conclusion drawn by it;-
(i). In respect of the incident, which is alleged to have occurred on 28.06.2023, a written report dated 30.06.2023 was given by the prosecutrix/first informant/opposite party-2 at the concerned Police Station, wherein Rahul Sharma, Bhudev and Sachin were nominated as named accused, whereas an unknown person was also arraigned as an accused.
(ii). The prosecutrix in her statements under Sections 161 and 164 Cr.P.C. has clearly implicated the named accused i.e. Rahul, Bhudev and Sachin as well as the not named accused for having dislodged her modesty by committing rape upon her one after the other.
(iii). The prosecutrix in her deposition before Court below as PW-1 has clearly and categorically implicated the named accused for committing the crime in question i.e. dislodging the modesty of the prosecutrix deliberately and forcibly one after the other.
(iv). Court below examined the papers accompanying the police report. It referred to CD Parcha No.-3 and CD Parcha No.-9 of the case diary and noted the contents of the same in the order impugned.
(v). As per the recital occurring in aforesaid documents i.e. CD Parcha No.-3 and CD Parcha No.-9, Court below concluded that as per the CCTV footage, apart from the presence of named and charge sheeted accused Rahul, the presence of three other persons is also evident. However, no attempt was made by the Investigating Officer to get the identity of aforesaid persons other than named accused Rahul established by the prosecution.
(vi). The plea of alibi was raised by named accused Rahul that at the time of occurrence, he was not present at the place of occurrence but at his village. However, the prosecutrix in her deposition before Court below has clearly implicated accused Rahul also in the crime in question.
(vii). Accused Bhudev in his statement under Section 161 Cr.P.C. also raised a plea of alibi, wherein it was stated that he had gone to meet his son, who resides in District-Ghaziabad and another son, who resides in Gurgaon. Toll was paid by this accused at Toll Plaza Zoa Garhmukteshwar and at Dasna Toll Plaza. However, no attempt was made by the Investigating Officer to collect the CCTV footage of aforementioned Toll Plazas. No evidence of any person of the college at Ghaziabad was adduced to establish the presence of applicant nor the CCTV footage of the college was filed, on the basis of which, it could be conclusively concluded that accused-Bhudev was not present at the time and place of occurrence.
(viii). Court below referred to the Five Judges Bench judgment of Supreme Court in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 and relied upon the following observations made therien;-
When the investigating agency for any reason does not array one of real culprits as an accused, the Court is not powerless in calling the said accused to face trial.
(ix). Court below then referred to the judgment of this Court Nafe Vs. State of U.P., 2004 Cr.L.J. 3571, wherein it has been held that for deciding an application under Section 319 Cr.P.C. only prima-facie evidence is to be looked into. In case of rape, if the prosecutrix has deposed against an accused, he can be summoned to face trial.
(x). On the above findings, Court below concluded that since the prosecutrix in her deposition before Court below as well as in her statements under Sections 161 and 164 Cr.P.C. has clearly implicated all the named accused and the not named accused in the commission of crime against her i.e. rape by dislodging her modesty deliberately and forcibly, a prima-facie case to summon the prospective accused Bhudev and Sachin to stand their trial is made out.
14. Thus feeling aggrieved by the above order dated 17.01.2025, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.
15. Mr. Sikandar Raza, the learned counsel for applicant in challenge to the order impugned dated 17.01.2025, submits that the order impugned passed by Court below is manifestly illegal and in excess of jurisdiction. Consequently, the same is liable to be quashed by this Court.
16. In furtherance of aforesaid submission, the learned counsel for applicant took the Court to the various documents appended along with present application and on basis thereof, he submits that the innocence of applicant is prima-facie established from the record. As such, no illegality was committed by Investigating Officer in exculpating the applicant, who was nominated as named accused in the FIR.
17. It is then contended by the learned counsel for applicant that in view of the law laid down by the Apex Court in Brijendra Singh and others Vs State of Rajasthan, (2017) 7 SCC 706, the material collected by the Investigating Officer during course of investigation is a relevant material and therefore, irrespective of the observations made in the Five Judges Full bench judgment in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 that a prospective accused can be summoned on the basis of statement-in-chief of one witness only yet the Court is required to evaluate the same. Since the said exercise has not been undertaken by Court below while deciding the application under Section 319 Cr.P.C., the order impugned is not only illegal but also erroneous. As such, the same is liable to be quashed by this Court.
18. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present application. Learned A.G.A. submits that the order impugned in present application is perfectly just and legal. As such, no interference is warranted by this Court in present application. Referring to the order impugned, the learned A.G.A. submits that Court below has recorded cogent findings in support of the conclusion drawn by it. Elaborating the said submission, the learned A.G.A. contends that in spite of the fact that sufficient material was available on record, no attempt was made by the Investigating Officer to get the identity of persons appearing in CCTV footage established from the prosecutrix. As such, the applicant, who has been nominated as a named accused in the FIR, was exculpated by the Investigating Officer not in diligent conduct of investigation but in a casual and cavalier fashion. Since something more than mere complicity of applicant in the crime in question has emerged, no illegality can be said to have been committed by Court below in summoning the applicant and another to stand their trial. The same is in confirmity with the judgment of Supreme Court in S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226. Apart from above, since prima-facie satisfaction has been recorded by Court below, which satisfaction is in consonance with the observations made in paragraph 106 of the Five Judges Bench judgment of Surpeme Court in Hardeep Singh (Supra), therefore, the test laid down by the Apex Court in aforementioned Five Judges bench judgment that court before summoning a prospective accused has to record a prima-facie satisfaction stands satisfied. For ready reference, paragraph 106 of the aforesaid report is reproduced herein under:-
106. Thus, we hold that though only a prima facie 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 view of above, it is thus urged by the learned A.G.A. that no illegality has been committed by Court below in passing the order impugned. As such, no interference is warranted by this Court in present application.
19. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that Court below has summoned the present applicant on the finding that there is absolutely no material in the case diary, on the basis of which, it can be conclusively concluded that complicity of applicant in the crime in question is not established. To the contrary, Court below, upon evaluation of the papers accompanying the police report, has returned clear and categorical findings that no attempt was made by the Investigating Officer to get the identity of other persons appearing in the CCTV footage established from the prosecutrix. Furthermore, the plea of alibi raised on behalf of applicant is subject to trial evidence. The innocence of applicant cannot be inferred on the basis of material relied upon by him, copies of which are on record as Annexure-6 to the affidavit. Furthermore, the Apex Court in the case of Omi alias Omkar Rathore and Another Vs. State of Madhya Pradesh and Another, 2025 SCC OnLine SC 27, held that prospective accused can be summoned only with reference to the statements of the witnesses, who have deposed before Court below and not on the basis of material collected by Investigating Officer during course of investigation. In spite of the fact that the prosecutrix/first informant/opposite party-2 was cross-examined at length on behalf of charge sheeted accused yet nothing adverse could be culled out in her statements so as to dislodge her credibility and reliability. In view of above, this Court does not find any illegality or perversity in the order impugned.
20. As a result, the present application fails and is liable to be dismissed.
21. It is, accordingly, dismissed.
Order Date :- 18.3.2025 Vinay