Bharti vs State Of U.P. And Another
2022 Latest Caselaw 4708 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 86
 

 
Case :- APPLICATION U/S 482 No. - 5264 of 2022
 

 
Applicant :- Bharti
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rama Shankar Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Gautam Chowdhary,J.

Heard Sri R.K. Mishra, learned counsel for the applicant and learned A.G.A. for the State and perused the record.

This application has been filed for quashing the order dated 22.09.2021 passed by the Additional Sessions Judge (POSCO Act), Bulandshahar in Special Trial No. 1057 of 2019 (State Vs. Ajit), under sections 363 IPC and 17/16 POCSO Act, Police Station Jahangirpur, District Bulandsahar, whereby applciation under under 319 Cr.P.C. filed by the informant has been allowed and the applicant has been summoned to face trial under the charged Sections.

The present application is being filed by the known accused Bharti assailing the legality and validity of the order dated 22.09.2021.

Learned counsel for the applicant assail the order impugned and in its rebuttal learned A.G.A. make a long arguments.

Since it is the matter relates to purely a legal question as to the applicability of section 319 Cr.P.C. in present scenario of the case whereby accused Bharti was summoned in the exercise of power under section 319 Cr.P.C by the learned Trial Court allowing the application 37-B under Section 319 Cr.P.C. by passing the impugned order.

Before coming to the facts of the case it is imperative give a skeleton facts of the case which has given rise to the present case. The present F.I.R. was got registered on 23.12.2018 for the incident said to have been taken place on 17.12.2018 under section 363 IPC by one Pappu @ Raj Kumar (the informant) against as many as six named accused persons. It is evident that applicant is named in the F.I.R. The allegation is that the informant's daughter Ms. 'A' (the victim) having date of birth 16.09.2003 was enticed away by the named accused persons while she was going to the school. Her alleged kidnapping was witnessed by Ram Pal Singh and Raj Kumar. When the daughter did not return back, a search was made then on 20.12.2018 a Gumsudgi report was lodged whereby it was informed by the police. The girl was eventually recovered on 22.12.2018 and the present F.I.R. came into existence on 23.12.2018.

Submission made by learned counsel for the applicant is that in 161 Cr.P.C. statement was recorded of the victim on 24.12.2018 and she was put for the medical examination test on 23.12.2018 at 7:00 p.m. In both these statements i.e. 161 Cr.P.C recorded on 24.12.2018 and statement before the Doctor she did not make any allegation against the applicant. Belatedly when she was put for a 164 Cr.P.C. recorded on 02.01.2019 she for the first time have mentioned, that the named accused persons have taken her to Bulandshahar and kept her in a house belonging to the revisionist, who too have committed rape with her.

After thrashing the evidence on 04.02.2019 the Investigating Officer of the case has submitted a chargesheet under sections 363/376 IPC and 3/4 POCSO Act only against the solitary accused Ajit.

However, the S.S.P. concerned have directed the Investigating Officer to hold a further investigation pursuant to the 173 (8) Cr.P.C. Subsequent Parcha No. S.C.D. (viii) the Investigating Officer of the case has categorically mentioned that after threshing all the material available on the record as well as call details report it was found that the complicity of Km. Bharti, Jagjit @ Jaggi, Kapil, Manoj @ Kalua and Km. Tanu were found false, though there is no formal report under section 173 (2) Cr.P.C. was not submitted.

Interestingly once again in exercise of power under section 173 (8) Cr.P.C. the D.I.G. Meerut to have further investigation into the matter and the statement of victim once again recorded on 09.10.2019 and thereafter on 25.11.2019. In these two statements she has inserted the name of applicant in her 'Majeed Bayan' but the Investigating Officer of the case has not filed any report. The Investigating Officer of the case concluded his investigation in the same fashion as he has already given the report on 25.04.2019. Thus it is clear that at no point of time the name of applicant has figured up any of the police report prepared after 25.04.2019.

It is contended by counsel is that the matter was threshed number of times and all the times the Investigating Officer has come to the conclusion that the complicity of applicant alongwith the others accused persons were found false and no chargesheet has been submitted till the end of the investigation and the co-accused Ajit was facing the trial.

It is further contended by counsel is that as mentioned above that the co-accused Ajit is facing the S.T. No. 1057 of 2019 (State of U.P. Vs. Ajit) in which two witnesses namely Ms. A was recorded as a PW-1 where Sri Pappu @ Raj Kumar was recorded as a PW-2 and soon thereafter an application under section 319 Cr.P.C. was moved on 20.12.2019 which was eventually allowed by passing the impugned order.

I have perused the order impugned and allegations levelled against the revisionist based on wild suspicion and conjunctures the revisionist resides separately in adjacent domestic unit, moreover learned trial Judge has not even whisper, circumstances the police has finally dropping the name of the applicant from the charge sheet.

Learned counsel for the applicant has relied upon the latest judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C. :

"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

Learned counsel for the applicant has further drawn the attention of the Court to para-12 of the above judgement:

"12. Provision contained in section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one,is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes uncontroverted, would lead to be conviction of the accused."

Learned counsel for the applicant has further submitted that after thorough investigation the police has dropped the name of the applicant from the chargesheet and the learned Magistrate has summoned the applicant exercising his power u/s 319 Cr.P.C. in a cavalier fashion and without having any cogent evidence against them. Learned counsel for the applicant in this regard has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019, in which it has been held that :

"The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused."

Moreover, in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017, it has been stated that,"Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the I.O. during investigation which suggested otherwise, the trial court was 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 (i.e. revisionists) complicity has come on record".

I have perused the order impugned and I am of the considered opinion that the order dated 22.09.2021 passed by the Additional Sessions Judge/Additional Judge POSCO Act, Bulandshahar is de-horse of the law laid down by Hon'ble the Apex Court in the aforesaid judgment.

Thus, perusing the impugned order, I have got no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above), therefore, impugned order is hereby quashed and the matter is remanded back to learned trial Judge with a direction to re-consider and re-visit the entire matter once again and decide the same in the light of the ratio laid down in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92; Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839; Labhuji Bhai Amratji Thakor & others Vs. State of Gujrat, AIR 2019 SC 734; Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 and Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 by passing a well reasoned order within 8 weeks from today after hearing both the parties and the laws laid down by Apex Court in this regard.

With the aforesaid observations, the present application stands disposed off.

Order Date :- 31.5.2022

Abhishek Singh