Allahabad High Court
Rafeeq & Another vs State Of U.P. & Another on 8 January, 2021
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 29
Case :- U/S 482/378/407 No. - 3243 of 2020
Applicant :- Rafeeq & Another
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Mohammad Mustafa Khan
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard Mohammad Mustafa Khan, learned counsel for petitioners as well as learned A.G.A. on behalf of State.
2. By means of the present applicant, the challenge has been made to the order dated 14.09.2017 as well as non-bailable warrants dated 09.02.2020 passed by Special Judge, POCSO Act/Additional District and Sessions Judge, Court No. 6, Barabanki in C.T. No. 43/2015 (State Vs. Izajur & others) arising out of Case Crime No. 181/2014, under Section 363, 366 I.P.C., Police Station Jahangeerabad, District Barabanki.
3. It has been submitted by learned counsel for petitioners that a first information report was lodged by respondent No. 2 on 14.12.2014 in Case Crime No. 181/2014 under Section 363, 366 A I.P.C., Police Station - Jahangeerabad, District Barabanki against four accused, namely, Izajul, Mohsina, Rafeeq (petitioner No. 1) and Akeel (petitioner No. 2) alleging that the daughter of informant aged about 14 years has been enticed away by the accused Izajul with the help of other co-accused persons.
4. During course of investigation, the prosecutrix was recovered by the police along with the co-accused Izajul and a statement under Section 161 and164 Cr.P.C. of the prosecutrix was also recorded. It has been submitted that the statement of the prosecutrix did not make any allegations with regard to the petitioners and therefore while filing the chargesheet the name of the petitioners was not included in the list of the accused.
5. The court taking cognizance of the chargesheet submitted by the Investigating Officer, the trial was committed to the sessions court and registered as CT No. 43 of 2015 (State Vs. Ezazul & others). During trial, the respondent No. 2 as well as prosecutrix were examined. In the statement made by respondent No. 2 whose statement was recorded as P.W.-1 has clearly stated that his daughter was enticed by petitioner No. 1. Similarly, the prosecutrix was examined as P.W. 2 where again she has in very unequivocal terms made allegation against the petitioner No. 1 and petitioner No. 2 and the role of enticing has been alleged by her.
6. In the aforesaid circumstances, an application under Section 319 Cr.P.C. was moved by respondent No. 2 and by means of impugned order dated 14.09.2017, the Additional District and Sessions Judge, Court No. 6, Barabanki has allowed the said application.
7. Assailing the aforesaid order, learned counsel for petitioners submitted that the law in this regard has been clearly spelt out by the Hon'ble Apex Court in various judgments. He submitted that the evidence against the proposed accused should be of such a nature which should be sufficient to secure a conviction against them. He submits that no such evidence was placed before the court and even a perusal of the statements made during the trial by P.W. 1 and P.W. 2 does not stand in the tests as laid down by Hon'ble Apex Court and therefore they have wrongly been summoned to join the trial and the application has been wrongly allowed under Section 319 Cr.P.C.
8. Learned A.G.A. on the other hand has vehemently opposed the said application. He has submitted that there was sufficient material available before the trial court for having allowed the application under Section 319 Cr.P.c. He has stated that the perusal of the statement made by complainant who is the father of the prosecutrix would clearly indicate that serious allegations have been levelled against the petitioner No. 1 and while a perusal of the statement of the prosecutrix would indicate and there are very clearly allegations of enticing were levelled by the prosecutrix herself. He further submits that the petition is liable to be dismissed at the very outset.
9. I have heard learned counsel for parties and perused the record.
10. The first information report was lodged by the respondent No. 2 wherein it was stated that the persons including the petitioners have enticed his minor daughter, subsequently the prosecutrix was recovered. It is true that during the statement recorded and Sections 161 Cr.P.C. and 164 Cr.P.C. there was no mention of the names of the petitioners. What is relevant at this stage to see the material available during trial against the petitioners. The statements of P.W. - 1 and P.W.-2 have been duly annexed along with the application. A perusal of the aforesaid statement clearly disclosed serious allegations with regard to the commission of an offence under Sections 363 and 366 A I.P.C. The P.W. - 1 has alleged role of the petitioners has enticed the minor daughter of the complainant.
11. It is further relevant to consider the judgment of the Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab, 201 CRI. L.J. 1118 wherein in paragraph No. 99, Hon'ble the Apex court has held as under:-
"99. 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."
12. From the aforesaid judgment, it is clear that at the stage of considering the application under Section 319 Cr.P.C. the trial court has to be satisfy itself from the evidence on record about the complicity of the proposed accused. It has been stated that the complicity of the proposed accused should make out a prima facia case but stronger evidence is required than what is required at the stage of taking cognizance.
13. Considering the judgment of the Hon'ble Apex Court along with the the statement of P.W.-1 and P.W.-2 as annexed by the petitioners, one cannot say that no offence is made out against the petitioners or there is no complicity has been mentioned with regard to them in the said statements. The learned trial court has also considered the statements of P.W.-1 and P.W.-2 and thereby recorded his satisfaction before allowing the application under Section 319 Cr.P.C.
14. In light of the above, I do not find any merit of the present petition under Section 482 Cr.P.C., accordingly, the same is dismissed.
(Alok Mathur, J.)
Order Date :- 8.1.2021/Ravi/
