Baby Tabassum vs State Of U.P. And 4 Others
2023 Latest Caselaw 21892 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Court No. - 50	Neutral Citation No. - 2023:AHC:165039
 
				                           Reserved on: 11.07.2023
 
						       Delivered on:16.08.2023
 

 
Case :- CRIMINAL REVISION No. - 1990 of 2020
 

 
Revisionist :- Baby Tabassum
 
Opposite Party :- State Of U.P. And 4 Others
 
Counsel for Revisionist :- Ashutosh Tripathi,Shiv Prakash
 
Counsel for Opposite Party :- G.A.,Ajay Kumar Pandey,Sheshadri Trivedi
 
Hon'ble Ram Manohar Narayan Mishra,J.

1. Instant criminal revision has been preferred by the revisionist against order dated 27.10.2020, passed by Additional District and Sessions Judge/F.T.C., Court No. 1, Moradabad in Sessions Trial No. 587 of 2019 (State Vs. Furkan Sir and others), under Sections 376-D, 313, 328, 120-B I.P.C., P.S.-Bhojpur, District- Moradabad arising out of case crime no. 160 of 2019, whereby the application 319 Cr.P.C. of the revisionist as paper no. 11 B has been rejected.

2. Heard Sri Shiv Prakash Tiwari, learned counsel for the revisionist, learned A.G.A. for the State as well as Sri Sheshadri Trivedi, learned counsel appearing for opposite party Nos. 2 to 5.

3. The factual matrix of the case relevant from present criminal revision are that the revisionist, who is informant in S.T. No. 587 of 2019 State Vs. Fukran and others under Section 373, 313, 328, 120B I.P.C., P.S.- Bhojpur, District- Moradabad arising out of Case Crime No. 160 of 2019. She moved an application at the stage of trial of the case under Section 319 Cr.P.C. for summoning the accused persons named in F.I.R. Fukran  s/o Ayyub, Shahnawaz @Shanu, Mohd. Gaus@ Guddu, Seema Bhatnagar, whose name was dropped in charge-sheet and I.O. filed charge-sheet only against two accused Fukran Sir and Shivanand Bhatanagar to face trial for prosecution for these charges. The informant/revisionist lodged F.I.R. at P.S. Bhojpur, District- Moradabad on 11.06.2019 on written report, which is addressed to S.P.(Rural Area), wherein she stated that applicant is resident of district Moradabad, her mother passed away and her father is suffering from paralysis. Accused Fukran Sir s/o Mukhtar Ahmad expressed sympathy to her and gave her an assurance that he will get her admitted in B.A. I and two years back he called her at the place of accused Shivanand Bhatnagar where she was made to consume an adulterated cold drink, she became intoxicated and 5 named accused persons and two unknown persons, who were present there committed gang-rape on her and they also prepared a video thereof. The accused-persons used to commit rape on her by keeping her in fear that if she would not concede to their demand, they will make the video viral. She got pregnant twice due to rape committed on her by these accused persons. They also got her abortion. On 25.05.2019, Fukran Sir even asked her to handover her younger sister to them otherwise her video will be made viral. She refused his demand and consequently, on 02.06.2019, she got a courier in which video film and C.D. was kept. She got  the video played and found that in said video C.D., accused Furkan Sir was committing rape on her. The informant is continuously being sexually exploited by accused persons and now they want to ruin the life of her younger sister also. The police investigated the case and recorded statement of the informant of the prosecutrix and other witnesses and filed a report of investigation under Section 153(2) Cr.P.C., wherein he concluded that the charge under Section 376D , 313, 328, 120B I.P.C. is made out against accused Fukran Sir son of Mukhtar Ahmad and Shivanand Bhatnagar but complicity of other named accused persons for said offences is not made out. During sessions trial statement of P.W.1 was recorded on 14.01.2020 and at the stage of cross-examination, she moved an application under Section 319 Cr.P.C. for summoning the named accused persons to face trial whose name was dropped during investigation.

4. The learned trial court after hearing the counsel for complainant and the learned ADGC(Criminal) considered the expediency of summoning the other accused-persons to face trial along with present accused persons under Section 319 Cr.P.C. and after considering evidence on record dismissed the application 11 B moved by de-facto complainant under Section 319 Cr.P.C. Feeling aggrieved by the impugned order, the prosecutrix filed present revision petition before this Court under Section 397/401 Cr.P.C.

5. Learned counsel for the revisionist submitted that the impugned order 27.10.2020, whereby the application under Section 319 Cr.P.C. moved by the revisionist for summoning 5 left over accused persons has been wrongly dismissed by the court below and the impugned order is against the evidence on record. The victim appeared before Trial Court and she was examined as P.W.1 on 14.01.2020 and on perusal of her statement, it is evident that the respondent Nos. 2 to 4 also committed rape on her one by one after administering her some toxic substance mixed in cold drink and respondent No. 5, who is a woman and wife of the charge-sheeted accused Shivanand Bhatnagar was also in collusion with other accused persons. The victim fully supported version of First Information Report before the Trial Court. Nevertheless, learned court below without considering the entire case and the law on subject of Section 319 Cr.P.C. committed a legal error while rejecting the application under Section 319 Cr.P.C. moved by the revisionist. The revisionist being victim of the case has consistently made allegations of rape against 5 named and two unnamed accused persons in F.I.R., in her statement under Section 161 Cr.P.C., in her statement under Section 164 Cr.P.C. as well as in her statement before the Court during trial. Learned court below has rejected application under Section 319 Cr.P.C. without proper application of mind and in mechanical manner. The accused persons in collusion of the I.O. falsely initiated a case against the revisionist vide Crime No. 211 of 2019, wherein one Ikram is also made accused with a view to exert pressure on revisionist to withdraw her complaint or compromise this case. The I.O. exonerated the respondents in the charge-sheet mainly on ground that for last one year no conversation is found to have taken place between victim and opposite party Nos. 2 to 5. The learned trial court has passed the order only on relying on objection of accused persons and ignored the evidence of prosecution while passing impugned order, which is not sustainable under eye of law. The finding given by learned trial court is perverse and is liable to be set aside.

6. Per contra, learned A.G.A. and learned counsel for respondent Nos. 2 to 4 and 5 supported the order passed by learned court below in their arguments and submitted that there is no legal or factual error in impugned order passed by learned court below.  Learned counsel for respondent nos. 2 to 5 submitted that the summoning of accused persons in question under Section 319 Cr.P.C. will be tantamount to abuse of process of law. He further submitted that F.I.R. in the case was lodged after two years of the alleged incident, which gave ample scope of after thought in variation and introduction of concocted facts. The respondent Seema Bhatanagar is stated to have sent some obscene video C.D. to the revisionist through C.T.D.C. courier but during investigation this fact emerged as that said courier was produced by one Ikram before courier operator on which the name of revisionist is shown as addressee. Ikram is co-accused along with present revisionist in another criminal case lodged by Crimr No. 211 of 2019 under Sections 120B, 388 and 195 I.P.C., P.S.- Bhojpur, District- Moradabad. The revisionist and Ikram had filed an application under Section 482 Cr.P.C. before the Court for quashing charge-sheet filed in that case against them, which was dismissed by this Court vide order dated 23.01.2020. Ikram is also an accused in case under Section 302 I.P.C. lodged vide Crime No. 250 of 2017 at P.S.-Bhojpur, District- Moradabad at the instance of Mobin son of Abdul Ahmad, said Mobin is father of respondent Guddu. In that case Yameen, the brother of informant Mobin was killed and respondent Mohd Gaus@ Guddu received serious injuries. The present revision is filed by the revisionist at the instance of said Ikram to create a pressure on respondent No. 2 to 4, the informant side of said murder case as the revisionist is in collusion with said Ikram and also with a view to blackmail the revisionist. Learned trial court exercised its jurisdiction properly while coming to satisfaction that there is no strong and cogent evidence against the proposed accused persons who are sought to be summoned under Section 319 Cr.P.C. as additional accused to face trial together with the accused, who are facing trial in the case. Therefore, the revision should be dismissed and impugned order is liable to be affirmed.

Section 319 of Cr.P.C. provides as under:-

319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

7. Hon'ble Apex Court in Constitution bench judgment Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92 held that power  under Section 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested by cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.

Para 71, 72 and 80 of the said judgment is hereby reproduced.

71. It is, therefore, clear that the word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation.

72. The inquiry by the court is neither attributable to the investigation nor the prosecution, but by the court itself for collecting information to draw back a curtain that hides something material. It is the duty of the court to do so and therefore the power to perform this duty is provided under the Cr.P.C.

80. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The 'evidence' is thus, limited to the evidence recorded during trial. 

8. In Hardeep Singh (supra) Hon'ble Supreme Court determined the test that has to be applied by trial court for exercising powers under Section 319 Cr.P.C. Paragraphs 98 and 99 of the said judgment are as under:

98. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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.

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.

9. So far as respondent No. 5, Seema Bhatnagar is concerned, no specific role has been assigned to her in F.I.R. The only role assigned to her in F.I.R. is that on 02.06.2019, the informant received a courier bearing her name as sender which contained a video C.D. and when she played that on system, accused Furkan Sir was found therein committing rape on her and all accused persons are committing rape on her by keeping her scared of that Video C.D. In statement under Section 161 Cr.P.C., recorded during investigation on 11.06.2019, it is stated that said video C.D. was sent to her address by Seema Bhatnagar as her name was mentioned on package of said courier. However, in statement under Section 164 Cr.P.C., she has not assigned any specific role to Seema Bhatnagar in the sequence of events mentioned therein. The photocopy of package of said courier is filed as Annexure No. 7 to present revision memo which bears name and address of the revisionist and name Seema Bhatnagar is mentioned as sender of said courier. The I.O. inquired this fact from concerned courier agency wherein an employee Bhawna Tyagi was examined, who stated that although, name of Seema Bhatanagar, wife of Shivanand Bhatnagar was on said courier envelope, but a male member visited her for depositing said courier on 29.05.2019 at around 1 to 2 P.M. on that day. The ticketing officer also stated that location of Seema Bhatnagar was not found on 29.05.2019 at the place, where office of said courier company C.T.D.C. situates. The I.O. has also reported that when photograph of suspect Iqram  Qureshi was shown to said Bhawna Tyagi, she confirmed that this was the person who visited her for depositing said courier, which was received by victim of the case. As regards other accused persons, there is consistent statement of victim in her F.I.R., statement under Section 164 Cr.P.C. and that recorded during trial by trial court as P.W.1 regarding complicity of these accused persons, namely, Furkan,  Shahnawaz @Shanu, Mohd. Gaus@ Guddu along with two accused, Furkan Sir and Shivanand Bhatnagar, who are facing trial in the case. The defence of respondent nos. 2 to 4 is that present F.I.R. was lodged by the informant at the behest of Mhd. Ikram, who is accused in murder case registered by Crime No. 250 of 2017 along with other persons and said F.I.R. was lodged by Mobin, who is father of respondent No. 4. Respondent No. 4 is also an injured in that case in which his uncle was killed. Said Mhd. Ikram is an accused along with other persons in Crime Case No. 250 of 2017, under Sections 147, 148, 149, 307, 302, 459, 323, 504, 506 I.P.C. The revisionist and Md. Iqram are accused in a case registered vide crime No. 211 of 2019 at same police station where present case was lodged under Section 195/120B, 388 I.P.C. Learned court below has rejected the application under Section 319 Cr.P.C. for summoning respondent Nos. 2 to 5 mainly on ground that the police investigated the role of named accused persons meticulously and in depth, the police not only recorded statement of independent witnesses, but also looked into C.D.R. of the concerned persons.

10. The Hon'ble Apex Court in Hardeep Singh Vs. State of Punjab and others (supra) held that the power under Section 319 Cr.P.C. should be exercised sparingly, the test that has to be applied is one which is more than prima facie case as exercised in the time of framing of charge. The learned trial court has narrated the statement of P.W.1, as stated in application u/s 319 Cr.P.C. the victim, in her examination-in-chief, wherein she has assigned role of commission of rape on accused persons, who are facing trial as well as respondent nos. 2 to 4 on various occasions by keeping her scared and fearful due to recording of video of commission of rape on her. In her statement, she also stated that on first occasion, for the first time when she was raped by five accused persons by administering some adulterated cold drink with some intoxicant, Seema Bhatnagar left her to her home. She has also stated that when she got pregnant, the accused persons had got her abortion. Learned Additional Sessions Judge has dismissed the application under Section 319 Cr.P.C. moved by revisionist without passing a reasoned and speaking order.

11. After discussing the submissions of both sides and citing judgment of Hon'ble Apex Court in Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92 and Labhuji Amratji Thakor vs The State Of Gujarat A.I.R. 2019 SC 734 and giving a finding that after testing the facts and circumstances of the case at the touchstone of legal principles laid down

by Hon'ble Apex court in said judgment's evidence, the court below has prima facie observed that satisfaction desirable for summoning the proposed accused persons under Section 319 Cr.P.C., is not found on record and thus, rejected the application moved by the revisionist.

12. Although, in medico-legal examination dated 11.06.2019, of the victim no external or internal injury was found on her person, yet the doctor has reported that two pregnancies were aborted, one about one year back and the other about 5 month back which corroborates the version of P.W.- 1, the victim that she was forced to get aborted her pregnancy which she carried; being victim of sexual exploitation by accused persons. The I.O. has dropped name of present revisionist in charge-sheet, mainly, on ground that no conversation was found between left out 4 named accused persons and the victim for last one year on the basis that C.D.R. of their mobile phone.

13. On the basis of foregoing discussions, this Court is of considered opinion that learned trial court has dismissed the application moved by the revisionist for summoning the remaining named accused persons, whose name was dropped in charge-sheet without disclosing any cogent reason and discussing their complicity in the offence as alleged by the revisionist in F.I.R., during investigation as well as during trial. Thus, learned trial court has committed an irregularity and illegality by rejecting the application under Section 319 Cr.P.C. in cursory manner without analyzing the facts of the case in proper perspective, thus, the impugned order is not sustainable under law.

14. The revision stands allowed, the impugned order passed by learned trial court dated 27.10.2020, is set aside and the matter is remanded to the court below for hearing the application under Section 319 Cr.P.C. afresh after giving opportunity of hearing to the revisionist and deciding the same in accordance with law, in the light of observations made in present revisional order.

Order Date: 16.08.2023

Nitika Sri.