Ganga Prasad & 2 Others vs State Of U.P. & Another
2016 Latest Caselaw 3973 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 16
 
A.F.R.
 

 
Case :- CRIMINAL REVISION No. - 1574 of 2016
 

 
Revisionist :- Ganga Prasad & 2 Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Bipin Pal Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

Challenging its legality and correctness, the revisionists have prayed to set aside the order dated 9.5.2013 passed by the Additional Session Judge, Court No. 1, Pilibhit in S.T. No. 02 of 2015 ( State Vs. Umashankar) arising out of Case Crime No. 490 of 2015 under Sections 363, 366, 376, 504 and 506 I.P.C. and 11/12 POCSO Act, P.S. Jahanabad, district Pilibhit on the application under Section 319 Cr.P.C. whereby the revisionists have been summoned to face trial under the aforesaid sections. 

Heard learned counsel for the revisionists and the learned A.G.A. Perused the record.

Learned counsel for the revisionists has submitted that the revisionists are innocent and they have wrongly been summoned by learned trial court on the application under Section 319 Cr.P.C.; the police after completion of investigation had not submitted charge-sheet against them however, the court below, after allowing the application under Section 319 Cr.P.C. has summoned the revisionists without considering the fact that there is no evidence on record to implicate them in the aforesaid offence. Learned counsel has drawn the attention of this Court to the statement of the victim recorded during trial before the court in which she has not uttered even a single word against the revisionists about the commission of rape on her or about any such fact on the basis of which Sections 11 and 12 of POCSO Act could have been made out against them. Learned counsel has further submitted that with malafide intention to unnecessarily harass the revisionists, who all are real brothers and father of main accused Uma Shankar, the complainant/opposite party no. 2 has involved them in the aforesaid offence. The contention of learned counsel is that the learned trial court while treating all the accused alike, has wrongly summoned all of them without considering the fact that their roles are entirely different from the main accused Uma Shankar. It is further contended that the radiological age of the prosecutrix has been found to be between 17 to 19 years as has been stated by P.W. 4 Dr. Smt. Santosh Rana. There is no iota of evidence against the revisionist that they committed any of the acts coming within the purview of Sections 11 and 12 of POCSO Act. Hence the summoning of the revisionists under aforesaid sections appears to be without any basis and against the law.

Learned A.G.A. has opposed the revision but he failed to point out any relevant material showing the involvement of the revisionists in the offences under Section 376 of I.P.C. and Sections 11 and 12 of POCSO Act.

Considered the submissions

The victim, neither in her statement recorded before the Magistrate under Section 164 Cr.P.C. nor in her statement recorded during trial, has made any allegation of committing rape against the revisionists. 

So far as Sections 11 and 12 of POCSO Act are concerned, both of these provisions are reproduced here as under : 

"Section 11. A person is said to commit sexual harassment upon a child when such person with sexual intent -

(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or

(ii) makes a child exhibit his body or any part of his body so as it is seen by such perwson or any other person; or

(iii) shows any object to a child in any form or medial for pornographic purposes; or

(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or

(vi) entices a child for pornographic purposes or gives gratification therefor.

Section 12- Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine."

There is no iota of evidence on record that any of the revisionists has done any such act so as to attract the culpability under the aforesaid sections. Moreover, as per the statement of lady doctor, the radiological age of the prosecutrix was between 17 to 19 years. There is no allegation of rape against any of the revisionists.

Considering the peculiar facts and circumstances of this case there does not appear any sense in keeping this revision pending  any further and it deserves to be finally disposed of at the admission stage itself.

Keeping in view the facts and circumstances as discussed above and the fact that the case of present revisionist is entirely distinguishable from the case of Uma Shankar, who is the main accused, the summoning of the revisionists so far as it relates to the offence under Section 376 I.P.C. and 11/12 of POCSO Act deserves to be set aside.

Accordingly the revision is partly allowed and impugned summoning order so far as it relates to the offence under Section 376 I.P.C. and 11/12 of POCSO Act is set aside.

So far as the remaining sections of I.P.C. under which the revisionists have been summoned are concerned, on the basis of prima facie material, it cannot be said that no offence is made out against them. It is well settled that at the stage of summoning, only prima facie evidence is to be looked into. 

Hence, the prayer for setting aside the summoning order under remaining sections i.e. Sections 363, 366, 504 and 506 I.P.C. is refused.

However, it is directed that if the revisionists appear before the courts below and apply for bail within 30 days from today under the aforesaid remaining sections, the court below shall make all endeavour to decide their bail applications keeping in view the observations made by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).

For the aforesaid period of 30 days no coercive action shall be taken against the revisionists.

With the aforesaid observations this revision is finally disposed off.

Order Date :- 8.7.2016

S.B.