Allahabad High Court
Sandeep @ Sandeep Singh vs State Of U.P. And 3 Others on 3 January, 2023
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 65
Case :- CRIMINAL REVISION No. - 3812 of 2022
Revisionist :- Sandeep @ Sandeep Singh
Opposite Party :- State Of U.P. And 3 Others
Counsel for Revisionist :- Keshari Nandan Singh
Counsel for Opposite Party :- G.A.,Dev Prakash Sharma,Priyanka Devi
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the revisionist, Sri Brijesh Kumar Pandey holding brief of Ms. Priyanka Devi, learned counsel for the opposite party No. 4 and perused the record.
This criminal revision has been filed against the judgment and order dated 5.8.2022 passed by the Addl. Sessions Judge/Special Judge (POCSO Act), Mahoba in Special Case No. 31 of 2021 (State of U.P. vs. Vikas Singh) arising out of Case Crime No. 145 of 2020, under Sections 363, 366, 376 IPC and Section 4 of Protection of Children from Sexual Offences Act, P.S. Kharela, District- Mahoba.
Brief facts giving rise to this application are that an FIR was registered at the instance of one Raju Singh @ Sukhnandan on 19.11.2020, under Sections 363 and 366 IPC nominating Vikas Singh and Vijay and one unknown person. The revisionist is not named in the first information report. The allegation in the first information report is that in the intervening night of 17/18.11.2020 at about 2 a.m., informant's daughter after taking Rs. 90,000/- in cash and jewellery fled away to some unknown destination. Subsequently, it was revealed that nominated accused Vikas Singh and his brother in-law Vijay have enticed away the girl. The victim was eventually recovered on 10.12.2020 and thereafter her statement was recorded under Sections 161 and 164 Cr.P.C., a copy of which has been annexed and Annexure No. 2 and 6 to this application.
Perusal of the aforesaid statements recorded under Sections 161 and 164 Cr.P.C. shows that there is not a whisper against the applicant in her statement. As per High School Certificate, the age of the victim is 7.7.2005 on the date of incident and admittedly was a minor.
The police after concluding the investigation, had submitted charge sheet only against Vikas Singh under Sections 363, 366, 376, 120-B IPC and Section 4 of POCSO Act. Thereafter trial court framed charges against Vikas Singh, who did not plead guilty and was put to trial. During the course of trial, the statement of victim has been recorded as P.W.-2 wherein for the first time the involvement of the revisionist has been pointed out.
Learned counsel for the revisionist has submitted that during the course of investigation, neither in the first information report nor in the statement of the victim recorded under Section 161 and 164 Cr.P.C., there was any whisper about the involvement of the applicant in the present case. However, subsequently only during the course of trial for the first time, the complicity of the revisionist has been pointed out. Thus, it is evident that implication of the revisionist in the present case is nothing but an after thought just to implicate him in the present case, however trial court by completely ignoring the statement of the victim recorded under Section 161 and 164 Cr.P.C., has summoned the applicant to face trial by allowing the application under Section 319 Cr.P.C., which order cannot be sustained in the eyes of law.
It is well settled principle of law laid down by the Hon'ble Apex Court in several cases, wherein it has been held that the power under Section 319 Cr.P.C. is an extraordinary power, but is to be exercised sparingly and only when cogent evidence is available, the test to be applied is the one which is more than a prima facie case as examined at the time of framing charge, but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused. The additional accused cannot be summoned under Section 319 Cr.P.C. in a casual and cavalier manner, unless there is strong and cogent evidence against him.
Thus, the said impugned order dated 5.8.2022 passed by the Addl. Sessions Judge/Special Judge (POCSO Act), Mahoba is set aside 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 a period of eight weeks positively from the date of production of certified copy of this order.
With the aforesaid observations, the present criminal revision stands allowed.
Order Date :- 3.1.2023
KU
