Allahabad High Court
Vijendra Singh vs State Of U.P. And 3 Others on 23 November, 2022
Bench: Syed Aftab Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 9.11.2022
Judgment delivered on 23.11.2022
Court No. - 88
Case :- CRIMINAL REVISION No. - 3978 of 2014
Revisionist :- Vijendra Singh
Opposite Party :- State Of U.P. And 3 Others
Counsel for Revisionist :- Abhitab Kumar Tiwari
Counsel for Opposite Party :- Govt.Advocate,Nipun Singh
Hon'ble Syed Aftab Husain Rizvi,J.
1. Heard learned counsel for the revisionist, learned counsel for the O.P. Nos. 2 to 4 as well as learned A.G.A. for the State and perused the record.
2. This Criminal Revision has been filed against the order dated 29.9.2014 passed by Additional Session Judge, Court No. 1, Meerut in S.T. No. 694 of 2012 State Vs. Sonu, under section 363, 366, 376 IPC, P.S. Inchauli, District Meerut arising out of Crime No. 355 of 2012. By the impugned order learned Session Court has rejected application U/s 319 Cr.P.C. moved by the revisionist/complainant to summon O.P. Nos. 2 to 4 namely Jagdish, Chhotey and Smt. Sheela for trial.
3. Co-accused Sonu was being tried for offence under section 376 IPC in S.T. No. 694 of 2012. During the course of trial complainant Vijendra moved an application 30 Ka Under section 319 Cr.P.C. alleging therein that in the FIR Sonu, Jagdish, Chhotey and Smt. Sheela were named by the complainant. P.W. 1 the complainant in his statement under section 161 Cr.P.C. as well as in the examination-in-chief before the court has named the aforesaid accused. The I.O. has submitted charge-sheet only against one accused Sonu. The statement of the victim as P.W. 2 has also been recorded in the court, hence, in the interest of justice co-accused Jagdish, Chhotey and Smt. Sheela should be summoned for trial.
4. It is contended by the learned counsel for the revisionist that the impugned order dated 29.9.2014 is illegal, arbitrary and against the provisions of law. O.P. Nos. 2 to 4 were also named in the FIR and there was sufficient evidence against them but I.O. did not submit charge-sheet against them as he colluded with them. It is further contended that complainant examined as P.W. 1 has corroborated the allegation of the FIR and has named O.P. Nos. 2 to 4 as accused. The victim as P.W. 2 has also stated about the complicity of the O.P. Nos. 2 to 4. The trial court has not considered that the victim and first informant has not only disclosed the name of O.P. Nos. 2 to 4 but also made serious allegations against them. There is sufficient evidence against O.P. Nos. 2 to 4 on the basis of which they should have been summoned to face trial. It is further contended that the trial court has failed to consider that only on the basis of prima facie case a person should be summoned on the application U/s 319 Cr.P.C. It is next contended that victim was minor at the time of incident according to school certificate. Heinous offence under section 363, 366 IPC is made out against O.P. Nos. 2 to 4 but the trial court has rejected the application only on the ground that only allegation against O.P. Nos. 2 to 4 is that they took to the victim with accused Sonu. Learned trial court has not followed the settled law laid down by High Court as well as Apex Court while deciding the application U/s 319 Cr.P.C.
5. Learned counsel for the O.P. Nos. 2 to 4 as well as learned A.G.A. submitted that although O.P. Nos. 2 to 4 were named in the FIR but during course of investigation their complicity was not found so they were exonerated and charge-sheet was not submitted against them. There is no sufficient evidence against O.P. Nos. 2 to 4. Learned trial court has rightly rejected the application filed by the revisionist under section 319 Cr.P.C. There is no illegality in the impugned order. Learned counsel for the O.P. Nos. 2 to 4 also submitted that trial of co-accused Sonu has concluded.
6. Section 319 Cr.P.C. empowers the court to proceed against any person not mentioned as accused if it appears from the evidence that such person has committed an offence for which he could be tried together with the main accused against whom an inquiry or trial is being held. The power exercisable U/s 319 Cr.P.C. is an extraordinary power conferred on the Court to do real justice, it should be used with caution and only if compelling reasons exist for proceeding against a person against whom action has not been taken. The power of summoning U/s 319 Cr.P.C. is not to be exercised in a routine and mechanical manner. It is to be invoked when on consideration of all the materials available on record, the Court feels the necessity of impleading a person as accused.
7. The grounds taken are that complainant has been examined as P.W. 1 and he has corroborated the allegations of the FIR and has named O.P. Nos. 2 to 4 as accused. Further the victim as P.W. 2 has also stated about the complicity of the O.P. Nos. 2 to 4. The trial court has considered the aforesaid ground and has observed that complainant P.W. 1 in his examination-in-chief has stated that he has lodged the missing report after 4-5 days. He has not named any person in that report. In his cross-examination the witness has stated that he came to know after six days of the incident that his daughter was kidnapped by Sonu and others. This fact was told by Sheela, so the aforesaid evidence of P.W. 1 is hearsay. The learned trial court has further observed that the victim P.W. 2 in her examination-in-chief has stated that in the night of 3.4.2012 she was sleeping outside the room of her house. Her mother and father were sleeping under the ''Chappar'. Then Sonu, Smt. Sheela, Chhotey and Jagdish came there and took her away after smelling something. The witness has further stated that she has not seen them as she was sleeping. When she was awaken then she found herself in a room. The learned trial court has observed that this witness has also not given any direct evidence against the co-accused Jagdish, Chhotey and Smt. Sheela. He has specifically stated that she has not seen them. On the basis of aforesaid observation the learned trial court has given finding that there is no sufficient evidence on the record to summon the aforesaid accused persons under section 319 Cr.P.C. The aforesaid observation of the learned trial court is just, proper and is according to the evidence on record. The learned trial court has properly appreciated the evidence available on record and has drawn proper conclusion on its basis. There was no sufficient evidence on the record which can be the basis of summoning of the aforesaid accused persons under section 319 Cr.P.C. So there is no illegality in the impugned order.
8. The revision lacks merit and is hereby dismissed.
Order Date:- 23.11.2022
Masarrat
