Allahabad High Court
Rashida vs State Of U.P. & Another on 5 July, 2017
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 53
Case :- CRIMINAL REVISION No. - 2650 of 2010
Revisionist :- Rashida
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Gaurav Kakkar
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Harsh Kumar,J.
Heard Shri Gaurav Kakkar, learned counsel for the revisionist and learned A.G.A. and perused the record.
The present criminal revision has been filed against impugned order dated 22.5.2010 passed by Additional Sessions Judge/F.T.C. No.1, Bijnor in S.T. No.137 of 2010 (State vs. Mairaj) under Sections 376, 313 and 506 I.P.C. summoning the revisionist for trial together with accused Mairaj on application 10-B of prosecution under Section 319 Cr.P.C.
The learned counsel for the revisionist contended that the F.I.R. of the case was lodged after inordinate delay of about one year with the allegation that Mairaj established sexual relations with the opposite party no.2 and got her pregnancy terminated in connivance with his Bhabhi Smt. Rashida, the revisionist; that after investigation the charge sheet was submitted only against Mairaj and the revisionist was exonerated; that the case against Mairaj was committed to the sessions and the Additional Sessions Judge Fast Track committed mistake in passing the impugned order on an application moved by the prosecution, by placing reliance on the statement of first informant under Section 161 Cr.P.C. which has no evidentiary value; that the Sessions Judge could have considered the application under Section 319 Cr.P.C. only upon the evidence on oath of the prosecution witnesses or any of them and upon finding sufficient prima facie evidence could have summoned non charge sheeted accused for trial together under the provisions of section 319 Cr.P.C. and had no jurisdiction to pass such order on the basis of statements recorded under Section 161 Cr.P.C.
Per contra learned A.G.A. submitted that the revisionist was named in F.I.R. and could have been summoned under the provisions of section 319 Cr.P.C.
It is settled principle of law that the statements of witnesses recorded by investigating officer, under Section 161 Cr.P.C. may only be put before a witness for the purposes of contradictions , if any, and it may not take place of evidence. Under the provisions of Section 319 Cr.P.C. the court has to consider only the evidence which means documentary evidence as well as statement of witnesses on oath which may also consist cross examination.
In exercise of powers under Section 319 Cr.P.C. after committal of trial the sessions judge had no jurisdiction to summon a non-charge sheeted accused for trial together on the basis of statement of first informant under Section 161 Cr.P.C, without waiting for her statement on oath before the court. The learned trial court has passed the impugned order absolutely against law and the impugned order is absolutely wrong, illegal and incorrect. The revision is liable to be allowed and the impugned order is liable to be set aside.
Accordingly, the revision is allowed and the impugned order dated 22.5.2010 is hereby set aside.
Let a copy of this order be sent forthwith to Court below for ascertaining expeditious disposal of case, in accordance with law.
It is made clear that if the prosecution moves any fresh application under Section 319 Cr.P.C., the same will be considered on merits in accordance with law, on the basis of statements on oath to the prosecution witnesses as well as the evidence on record.
Order Date :- 5.7.2017
VS
