Allahabad High Court
Buddhan And Another vs State Of U.P. And 2 Others on 27 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:74657 Court No. - 77 Case :- CRIMINAL REVISION No. - 4810 of 2023 Revisionist :- Buddhan And Another Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Ravindra Prakash Srivastava Counsel for Opposite Party :- G.A.,Sheetala Prasad Pandey Hon'ble Rajeev Misra,J.
1. Heard Mr. R.P. Srivastava, the learned counsel for revisionist, the learned A.G.A. for State and Mr. Ashutosh Pandey, Advocate, holding brief of Mr. S.P. Pandey, the learned counsel representing first informant-opposite party-2.
2. Perused the record.
3. This criminal revision has been filed challenging the order dated 08.06.2023, passed by Additional Sessions Judge/Special Judge (Exclusive Court) (POCSO Act), Basti in Special Sessions Case No. 363 of 2019 (State Vs. Ali Husain and Others), under Sections 363, 366 IPC and Sections 7/8 POCSO Act, Police Station-Lalganj, District-Basti, whereby the application dated 13.12.2022 (Paper No. 12-Kha) under Section 319 Cr.P.C. filed by the prosecution has been allowed and consequently, the revisionists, who are prospective accused have been summoned by Court below to face trial under Sections 363, 366, 504 IPC in aforementioned Special Sessions Case.
4. Record shows that in respect of an incident, which is alleged to have occurred on 04.07.2019, a delayed FIR dated 05.07.2019 was lodged by first informant-Insan Ali (father of the prosecutrix) and was registered as Case Crime No. 0143 of 2019, under Sections 363, 366 IPC and Sections 7/8 POCSO Act, Police Station-Lalganj, District-Basti. In the aforesaid FIR, three persons namely (1) Ali Husain, (2) Budhan and (3) Mother of Ali Husain have been nominated as named accused.
5. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix, who are three in number, were recovered. Thereafter, the statements of the prosecutrix were recorded by the Investigating Officer under Section 161 Cr.P.C. The same are on record at pages 40, 43 and 45 of the paper book. Thereafter, the prosecutrix-X was requested for her internal medical examination but the same was refused. As per the medical opinion, the age of the prosecutrix-X was determine to be 18 years. The prosecutrix-Y also refused for her internal medical examination. As per the medical opinion, her age was determined to be 16 years. The prosecutrix-Z was also requested for her internal medical examination, which was refused by her. As per the medical opinion, she was said to be aged about 9 years. Subsequent to above, the statements of all the three prosecutrix were recorded under Section 164 Cr.P.C., which are on record at pages 106 and 107 of the paper book. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that the complicity of only one of the named accused namely Ali Husain and not named accused Habiburrahman is established in the crime in question. He, accordingly submitted the police report dated 21.08.2019 in terms of Section 173(2) Cr.P.C., whereby aforementioned named accused Ali Husain and not named accused Habiburrahman have been charge sheeted under Sections 363, 366 IPC and Sections 7/8 POCSO Act, whereas the other named accused were exculpated.
6. After submission of aforementioned police report, cognizance was taken upon same by the Special Judge. Consequently, Special Sessions Case No. 363 of 2019 (State Vs. Ali Husain and Others), under Sections 363, 366 IPC and Sections 7/8 POCSO Act, Police Station-Lalganj, District-Basti came to be registered in the Court of Additional Sessions Judge/Special Judge (Exclusive Court) (POCSO Act), Basti.
7. The concerned Special Judge framed charges against the charge sheeted accused vide framing of charge order dated 18.02.2021. Separate charges were framed under Sections 363, 366 IPC and Sections 7/8 POCSO Act.
8. Charge sheeted accused denied the charges so framed against him and pleaded innocence. Consequently, the trial procedure commenced.
9. Prosecution in discharge of it's burden to bring home the charges so framed against charge sheeted accused adduced PW-1, Insan Ali (first informant) and PW-2 (one of the prosecutrix) up to this stage. After the statement-in-chief/examination-in-chief of aforementioned prosecution witnesses were recorded, prosecution i.e. the first informant filed an application dated 13.12.2022 under Section 319 Cr.P.C. alleging therein that since the complicity the other two named accused i.e. parents (father and mother) of charge sheeted accused is also established in the crime in question, therefore, they be also summoned to face trial in aforementioned Special Sessions Case. This application came to be registered as Paper No. 13-Kha.
10. Aforementioned application was opposed by the charge sheeted accused, who filed his objections to the same.
11. Court below upon evaluation of the allegations made in the application dated 13.12.2022 and the objections raised by charge sheeted accused in the light of the depositions of the prosecution witnesses examined up to this stage, came to the conclusion that since complicity of the prospective accused (named but not charge sheeted) is also established in the crime in question, therefore, Court below allowed the same vide order dated 08.06.2023.Accordingly, the prospective accused i.e. parents of the charge sheeted accused (father and mother) have now been summoned under Sections 363, 366-A and 504 IPC by Court below to face trial in aforementioned Special Sessions Case.
12. Thus feeling aggrieved by the order dated 08.06.2023 passed by Court below, revisionists, who were prospective accused (named but not charge sheeted) but have now been summoned by Court below to face trial have approached this Court by means of present criminal revision.
13. Mr. R.P. Srivastava, the learned counsel for revisionists submits that the order impugned in present criminal revision is manifestly illegal and in excess of jurisdiction. Consequently, the same is liable to be set aside by this Court. Challenging the very credibility of the prosecution story as unfolded in the FIR, the learned counsel for revisionists contends that in the present case, the criminality alleged to have been committed by the charge sheeted accused as well as the prospective accused now summoned by Court below to face trial is not against single prosecutrix but three prosecutrix. He contends that it is impossible to abduct or kidnap three prosecutrix forcibly. As such, the prosecution story is highly improbable and therefore, unworthy of reliance.
14. It is next contended that parameters regarding exercise of jurisdiction under Section 319 Cr.P.C. now stand crystallized by the Five Judges Bench judgment of Supreme Court in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92. The Bench first formulated the questions that arose for adjudication and thereafter, answered the same. Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6 of the report are relevant.
15. Learned counsel for revisionists referred to paragraph 106 of aforementioned judgment and on basis thereof, it is urged with vehemence that Court while deciding an application under Section 319 Cr.P.C. is required to record it's satisfaction, which should be in consonance with the observations made by the Bench in paragraph 106 of aforementioned judgment. For ready reference, paragraph 106 of the report is extracted hereinunder:-
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.
16. Referring to the statements of the prosecution witnesses examined up to this stage i.e. PW-1 and PW-2, the learned counsel for revisionists contends that on the basis of the depositions of aforesaid prosecution witnesses, Court below could not have recorded the same degree of satisfaction as is required to be recorded in the light of the observations made in paragraph 106 of aforementioned report. It is thus urged that Court below has summoned the prospective accused without complying with, the direction issued by the Five Judges Bench noted herein above. As such, the order impugned is unsustainable in law. Consequently, the same is liable to be set aside by this Court.
17. According to the learned counsel for revisionist though the law with regard to exercise of jurisdiction under Section 319 Cr.P.C. was fairly crystallized by the Five Judges Bench judgment in Hardeep Singh (Supra) but subsequently, the Apex Court in the case of Brijendra Singh Vs. State of Rajsthan, (2017) 7 SCC 706 and S Mohammad Ishpahani Vs. Yogendra Chandak (2017) 16 SCC 22 has redefined the parameters regarding exercise of jurisdiction under Section 319 Cr.P.C. On a conjoint reading of the aforementioned judgments, it is apparent that the Court upon consideration of the law laid down in Hardeep Singh (Supra) has gone steps further and limited the scope with regard to exercise of jurisdiction under Section 319 Cr.P.C. by formulating;- (a) a prospective accused can be summoned on the statement-in-chief of one prosecution witness (b) however, in a case, where an accused is named in the F.I.R. but exculpated by the Investigating Officer in the police report, then Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as the said material is a relevant material (c) before summoning a prospective accused on the basis of the deposition of prosecution witness, the Court must draw a parallel in between the statement of such witness recorded under Section 161 Cr. P. C. and his deposition before Court below to find out whether something new has emerged in the deposition of the prosecution witness than what was stated by him in his statement under Section 161 Cr.P.C., (d) the prospective accused cannot be summoned merely on the basis of his complicity in the crime in question but only if, an inference of guilt of prospective accused can be gathered from the evidence up to that stage, (e) the power under Section 319 Cr. P. C. is an extraordinary power and should be exercised sparingly and not in a routine manner, (f) the Courts should exercise their jurisdiction diligently and not in a "casual and cavalier" fashion, (g) it is only when strong and cogent evidence has emerged against a prospective accused, which is much more than mere complicity of a prospective accused in the crime in question can he be summoned under Section 319 Cr.P.C.
18. It is thus urged by the learned counsel for revisionists that when the aforesaid tests are applied to the facts and circumstances of the case, it is apparent that the tests aforementioned are not satisfied in the present case. The prosecution story that one of the named accused abducted/kidnapped three prosecutrix aged about 18 years, 16 years and 9 years respectively is unworthy of reliance. It is in support of the aforesaid prosecution story that it has been alleged by the prosecution witnesses examined up to this stage that at the time of occurrence the named but not charge sheeted accused i.e. the revisionist herein were also present at the time of occurrence. It is merely on the basis of above that the complicity of present revisionists is sought to be alleged in the crime in question. Prima-facie, the prosecution case as noted above, itself does not inspire confidence so as to infer the guilt of the prospective accused. Furthermore, in the absence of any active or passive role assigned to the prospective accused in the commission of crime in question, it cannot even be conclusively concluded that the complicity of the prospective accused i.e. the revisionists herein is established in the crime in question.
19. On the above conspectus, the learned counsel for revisionists contends that the order impugned cannot be sustained and is therefore, liable to be set aside by this Court.
20. Per contra, the learned A.G.A. and the learned counsel representing first informant-opposite party-2 have vehemently opposed this criminal revision. They submit that order impugned in present criminal revision is perfectly just and legal. Court below has not committed any illegality in passing the order impugned. From the perusal of the depositions of the prosecution witnesses examined up to this stage i.e. PW-1 and PW-2, the complicity of the prospective accused is fully established in the crime in question. As such, Court below has rightly summoned the prospective accused i.e. the revisionists herein to face trial in aforementioned Special Sessions Case. Plea raised on behalf of revisionists that in view of the contradiction, exaggeration and embellishment occurring in the depositions of the prosecution witnesses as their depositions before Court below is in sharp contrast to their statements recorded under Sections 161/164 Cr.P.C. is an issue which can be considered more appropriately at the time of trial. As such, the order impugned is not liable to be interfered with.
21. Having heard the learned counsel for revisionist, the learned A.G.A. for State, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that the primary question, which arises for consideration in present revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C. As a corollary to above, Court will also have to consider;- Whether the order impugned is in confirmity within the established parameters or not.
22. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by Apex Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench) Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 Paragraphs 7, 8, 9, 15, 20, 21 and 22.
(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 Paragraph 13.
(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xiii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17
(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xix) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741 Supreme Court remanded the matter before Sessions Judge for decision afresh. (xx). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxi). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (5 Judges), Paragraphs 7, 37, 38 and 41.
(xxii). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxiii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxiv). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxv) Yashonandan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxvi) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxvii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174
23. With the aid of above, this Court now proceeds to examine the veracity of impugned order dated 08.06.2023, passed by Additional Sessions Judge/Special Judge (Exclusive Court) (POCSO Act), Basti in Special Sessions Case No. 363 of 2019 (State Vs. Ali Husain and Others), under Sections 363, 366 IPC and Sections 7/8 POCSO Act, Police Station-Lalganj, District-Basti, whereby the application dated 13.12.2022 under Section 319 Cr.P.C. filed by the prosecution has been allowed.
24. Before proceeding to do so, it must be noticed that following issues stand settled as per the judgements of the Supreme Court mentioned herein above and, therefore, the same are not required to be dealt with, by this Court.
25. A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the witnesses to be recorded so that non-charge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench Judgment in Dharam Pal (Supra).
26. Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra).
27. Summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).
28. The nature of satisfaction required for summoning a non charge-sheeted accused to face trial, has been summarized in paragraph-106 of the Constitution Bench judgement in Hardeep Singh (supra), wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of a solitary prosecution witness of fact. The only requirement is that such statement discloses 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.
29. A prospective accused cannot be summoned under Section 319 Cr.P.C. to face trial merely on the basis of his complicity in the crime in question but only when strong and cogent evidence has emerged against him vide S. Mohammed Ispahani (supra).
30. The power under Section 319 Cr.P.C. is an extra ordinary power which should be exercised sparingly. Courts should exercise their jurisdiction not in a "casual and cavalier" fashion but diligently vide S. Mohammed Ispahani (Supra).
31. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra).
32. The trial Court is competent to exercise it's power under section 319 Cr.P.C. on the basis of statements recorded before it in examination-in-chief. However, in a case, where plethora of evidence is collected by investigating Officer during course of investigation, which suggests otherwise, the trial Court is 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 complicity has come on record vide Brijendra Singh (Supra).
33. The Court, thus, has to find out as to whether something new has been stated in the deposition of witnesses than what was stated in their statements under section 161 Cr.P.C (vide paragraph 15 of judgement in Brijendra Singhs's Case (Supra)).
34. An accused who has been summoned by the Court in exercise of power under section 319 Cr.P.C., cannot claim discharge vide S. Mohammaed Ispahani (Supra) and Vikas Rathi (Supra).
35. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's (Supra) case requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
36. In Rajesh and Others (Supra), it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.
37. The reference made by a Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289. The Court held that "The power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.
38. A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him vide Yashodhan Singh and Others (Supra).
39. In Sandeep Kumar (Supra), the Court after noticing paragraphs 95 to 106 of the Five Judges Bench judgment in Hardeep Singh (Supra), considered the ingredients of Section 149 and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into at the stage of deciding an application under Section 319 Cr.P.C.
40. Having noted the settled position, the Court is now required to consider whether on the basis of depositions of PW-1, Insan Ali (first informant) and PW-2 (one of the prosecutrix), the prospective accused i.e. the revisionists herein could have been summoned by court below? As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier manner.?"
41. As already noted above, the prosecution has alleged in the FIR that the named accused have kidnapped/abducted three daughters of the first informant. After the FIR was lodged, Investigatiing Officer came to the conclusion that the complicity of only one of the named accused i.e. Ali Husain is established in the crime in question. It is subsequent to the submission of police report that the prosecution has come up with a case that the other two accused, who are no one else but the parents of Ali Husain be also suummoned to face trial inasmuch as, it is alleged that they were also present at the time of occurrence. A single accused cannot kidnap/abduct three fairly grown up girls aged about 18 years, 16 years and 9 years. The prsecution story is itself highly improbable and therefore, unworthy of reliance.
42. Apart from above, this Court finds that the statements of all the three prosecutrix were recorded under Section 161 Cr.P.C. From the statements of the prosecutrix so recorded, it is apparent that all the three prosecutrix willingly accompanied the charge sheeted accused inasmuch as, neither any force was exerted upon them nor any stupyfing susbtance was administered to abduct or kidnap the prosecutrix. Subsequently, the statements of the prosecutrix were recorded under Section 164 Cr.P.C., wherein they have rejoined their earlier statements under Section 161 Cr.P.C. All the three prosecutrix, in their statements, have not stated that any active role was performed by the prospective accused (parents of Ali Husain i.e. the revisionits herein) in the commission of the crime in question. However, PW-2 (one of the prosecutrix) in her deposition before Court below has alleged that the prospective accused exclaimed that the third prosecutirx be also taken by them otherwise, she shall raise hue and cry. Simply on the basis of aforesaid statement, which in fact, is a departure from the previous statement recorded under Sections 161 and 164 Cr.P.C., no inference regarding the guilt of the prospective acccused can be drawn.
43. Court below has thus summoned the revisionists without recording the same degree of satisfaction as is required to be recorded as per the observations made in paragraph 106 of the Five Judges Bench judgment in Hardeep Singh (Supra). The order impugned is, therefore, arbitrary and therefore, liable to be set aside by this Court inasmuch as, Court below was not exercised it's jurisdiction diligently but in a casual and cavalier fashion.
44. Parameters regarding summoning of a prospective accused in exercise of jurisdiction under Section 319 Cr.P.C. that have emerged as per the judgments of the Supreme Court in Brijendra Singh (Supra) and S. Mohammad Ishpahani (Supra), which have already been noted herein above, same do not stand satisfied in the present case. Consequently, no cost iron case for summoning of the prospective accused was made out.
45. PW-1, Insan Ali (the first informant) is not an eye witness of the occurrence, therefore, his deposition before Court below is not decicive for considering the complicity of the prospective accused, if any, in the crime in question. PW-2 in her deposition before Court below has for the first time stated that Budhan and Rubiya i.e. the prospective accused/revisionists herein were present at the place of occurrence and exclaimed that the third prosecutrix be also taken away otherwise, she shall raise hue and cry. Simply on the basis of above, it cannot be said that such strong and cogent evidence, which is more than mere complicity of the prospective accused has emerged in the crime in question so as to summon the prospective accused. Except for the above, nothing else has emerged agaisnt the prospective accused i.e. the revisionists herein in the statement of the prosecutrix.
46. Furthermore, as per the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C., they themselves accompanied the two charge sheeted accused. There is nothing to suggest that any active role was played by the prospective accused in the commission of crime. As such, no good ground for summoning the prospective accused i.e. the revisionists herein was made out before Court below.
47. In view of the discussion made above, the present criminal revision succeeds and is liable to be allowed.
48. It is, accordingly, allowed.
49. The impugned order dated 08.06.2023, passed by Additional Sessions Judge/Special Judge (Exclusive Court) (POCSO Act), Basti in Special Sessions Case No. 363 of 2019 (State Vs. Ali Husain and Others), under Sections 363, 366 IPC and Sections 7/8 POCSO Act, Police Station-Lalganj, District-Basti is hereby set aside.
50. In the facts and circumstances of the case, parties shall bear their own costs.
Order Date :- 27.4.2024/Vinay