Allahabad High Court
Smt. Parmawati @ Parmal vs State Of U.P. Thru. Prin. Secy. ... on 23 March, 2023
Bench: Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- CRIMINAL REVISION No. - 273 of 2023
Revisionist :- Smt. Parmawati @ Parmal
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Revisionist :- Kailash Nath Mishra,Rahul Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Ajai Kumar Srivastava-I,J.
Heard Sri Kailash Nath Mishra, learned counsel for the revisionist and Sri Alok Saran, learned A.G.A. for the State.
The instant criminal revision has been filed by the revisionist for setting aside the impugned order dated 14.02.2023 passed by learned Additional Session Judge/Fast Track Court 1st, Additional POCSO, Gonda in Special Sessions Trial No.20 of 2019, "State vs. Nanhey @ Narendra Singh" arising out of Case Crime No.174 of 2018, under Sections 363, 376, 506 I.P.C. and 3/4 POCSO Act, Police Station Umari Begumganj, District Gonda.
It is submitted by learned counsel for the revisionist that initially a first information report came to be lodged against the two accused persons including the present revisionist. However, after conclusion of evidence, charge sheet came to be filed against the present revisionist only. The present revisionist was not charge sheeted initially due to want of evidence against her. His further submission is that subsequently, the present revisionist came to be summoned on an application moved under Section 319 Cr.P.C. by means of the impugned order dated 14.02.2023 passed by learned trial Court. His further submission is that while passing the impugned order, learned trial Court failed to appreciate the facts of this case and also failed to appreciate that there was no evidence to, prima facie, constitute the offences under Sections 363 and 366 I.P.C. against the present revisionist. It is also submitted by learned counsel for the revisionist that the victim, in her statements recorded under Sections 161 and 164 Cr.P.C., has stated to be major, therefore, there was no question that the victim would be enticed away by the present revisionist, who is a married lady.
Learned counsel for the revisionist has also submitted that the law in respect of summoning any other accused person to face trial under Section 319 Cr.P.C. is clearly settled in view of law laid down by Hon'ble Supreme Court in Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 and Brijendra Singh v. State of Rajasthan, (2017) 7 SCC 706.
His further submission is that the impugned order does not record the kind of satisfaction, which is a condition precedent to summon an accused person under Section 319 Cr.P.C. as held by Hon'ble Supreme Court in Hardeep Singh (supra) and Brijendra Singh (supra), therefore, he submits that the impugned order is palpably illegal and deserves to be set aside.
Per contra, learned A.G.A. has vehemently opposed the submission advanced by learned counsel for the revisionist and has submitted that the impugned order has been passed by the learned trial Court on an application moved under Section 319 Cr.P.C. and mainly relying on the statement of victim recorded under Section 164 Cr.P.C., who has vividly portrait the role of present revisionist.
His further submission is that in view of aforesaid evidence, learned trial Court has come to pass the impugned order which is well discussed and reasoned wherein no interference by this Court is warranted in exercise of power under Section 401 Cr.P.C. He has also submitted that the on the basis of evidence available on record, it cannot be said that the same is not efficient to clinch conviction, therefore, the argument of learned counsel for the revisionist as to unavailability of evidence which is capable of clinching conviction in the facts of this case is not tenable. He therefore, submits that the instant criminal revision lacks merit and deserves to be dismissed.
The kind of satisfaction which is required to be recorded by the learned trial Court before summoning an accused person to face the trial in exercise of its power under Section 319 Cr.P.C. is stated in paragraph nos.105 & 106 of the judgment rendered by Hon'ble Supreme Court in the case of Hardeep Singh (supra), which are quoted below:-
"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.
106. 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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."
Having heard learned counsel for the revisionist, learned A.G.A. for the State and upon perusal of the record, this Court finds that initially a first information report came to be lodged under Sections 363, 376, 506 I.P.C. and 3/4 D. P. Act against two accused persons including the present revisionist. However, after conclusion of evidence, charge sheet came to be filed against the present revisionist only. The charge sheet was not filed against the present revisionist at the outset. Subsequently, it is an admitted case of the revisionist that she has been summoned under Section 319 Cr.P.C. on an application moved by the first informant.
From a perusal of first information report, it appears that there was an allegation against the present revisionist that she enticed away the victim, a child as defined under POCSO Act. The victim, in her statement recorded under Section 164 Cr.P.C., has stated that the present revisionist took her away from her house on the date of incident and handed her over to the co-accused, Nanhe @ Narendra Singh, who committed rape upon the victim. The first informant, Ram Pher and the victim have been examined as P.W.-1 and P.W.-2 before the learned trial Court in Special S.T. No.20 of 2019. The victim, in her statement, has clearly stated that on the date of incident, she was enticed away by the present revisionist, who handed her over to the co-accused, Nanhe @ Narendra Singh.
Thus, in view of consistent stand which has been taken by the victim in respect of role assigned to the present revisionist, who, therefore, appears to have been rightly summoned to stand trial for the offences under Sections 363 and 366 I.P.C.
Having regard to the aforesaid overall facts and circumstances of the case, this Court does not find any illegality, material irregularity or perversity in the impugned order dated 14.02.2023, therefore, the instant criminal revision lacks merit and deserves to be dismissed.
However, it is needless to mention that if the revisionist applies for grant of bail, the court below shall consider and decide the same expeditiously, in accordance with law laid down by the Hon'ble Supreme Court in Satender Kumar Antill Vs. Central Bureau of Investigation and another reported in 2022 SCC OnLine SC 825.
With the aforesaid observations, the instant criminal revision is finally disposed of.
Order Date :- 23.3.2023
Mahesh
