Allahabad High Court
Iqbal Ahmad vs State Of U.P. And 4 Others on 29 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:98002
Court No. - 77
Case :- CRIMINAL REVISION No. - 4485 of 2023
Revisionist :- Iqbal Ahmad
Opposite Party :- State Of U.P. And 4 Others
Counsel for Revisionist :- Manindra Mohan Pandey,Pankaj Dwivedi
Counsel for Opposite Party :- G.A.,Sudhir Kumar Tripathi
Hon'ble Rajeev Misra,J.
1. Heard Mr. M.M. Pandey, the learned counsel for revisionist, the learned A.G.A. for State/opposite party-1 and Mr. Kailash Chaudhary, Advocate, holding brief of Mr. Sudhir Kumar Tripathi, the learned counsel representing opposite parties-2,3,4 and 5.
2. Perused the record.
3. This criminal revision has been filed challenging the order dated 22.5.2023, passed by Additional Sessions Judge/Special Sessions Judge (POCSO Act), Court No.4, Gorakhpur in Special Sessions Trial No. 1228 of 2021 (State Vs. Balwan Yadav) under sections 363, 366, 376 (3) IPC and Sections 3/4 POCSO Act, Police Station- Shahjanwa, District Gorakhpur, whereby the application dated 3.4.2023, under section 319 Cr.P.C. filed by the prosecution/first informant/revisionist to summon the prospective accused (named but not charge sheeted accused) to face trial in aforesaid sessions trial, has been rejected.
4. Record shows that in respect of an incident, which is alleged to have occurred on 22.3.2021, a belated F.I.R. dated 23.3.2021 was lodged by Iqbal Ahmad, father of the prosecutrix and registered as Case Crime No. 0105 of 2021, under section 363 IPC, Police Station- Sahjanwa, District- Gorakhpur. In the aforesaid F.I.R., four persons namely, Balwan Yadav, Shashikant Yadav, Ashwani Yadav and Ashutosh Yadav have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Balwan Yadav with the aid of other named accused enticed away the minor daughter of first informant namely, X. who is a student of Class-VIII. The F.I.R. further records that cash and Jewellery (as detailed in the F.I.R.), kept in the house, were also taken away by the prosecutrix.
6. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 08.06.2021. Thereafter the statement of the prosecutrix was recorded under section 161 Cr.P.C. which is on record at page 34 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary, she has stated that she herself accompanied named accused Balwan Yadav. No other person was present at the time when she accompanied Balwan Yadav. She has further stated that she has solemnized marriage with Balwan Yadav. Thereafter, both lived together as husband and wife. Accordingly, physical relations were maintained between the parties. Subsequent to above, the statement of the prosecutrix was recorded under section 164 Cr.P.C. which is on record at page 36 of the paper book. The prosecutrix in her aforesaid statement has departed from her previous statement under section 161 Cr.P.C. and has now alleged criminality against named accused Balwan Yadav. She has also alleged that other named accused exhorted the prosecutrix for demanding payment of money from her parents. She has also stated that other named accused accompanied Balwan yadav and the prosecutix up to Kanpur. As per the document occurring at page 37 of the paper book, the prosecutrix was requested for her medical examination. However, the complete documents regarding above have not been brought on record. Investigating Officer examined the first informant and other witnesses under section 161 Cr.P.C. On the basis of above and other maerial collected by him during the course of investigation, and the mitigating circumstances that emerged during course of examination, he came to the conclusion that complicity of only one of the named accused i.e. Balwan Yadav is established in the crime in question. He, accordingly, submitted the police report dated 5.7.2021 in terms of Section 173 (2) Cr.P.C., whereby aforesaid named accused has been charge sheeted under sections 363, 366, 376 (3) IPC and Sections 3/4 POCSO Act, whereas the other named accused were exculpated.
7. Upon submission of aforesaid Police report, cognizance was taken upon same by the concerned Sessions Judged/Special Judge in exercise of jurisdiction under section 190 (1)(B) Cr.P.C. Thereafter the concerned Sessions Judge proceeded with the trial. He, accordingly, framed charges against charge sheeted accused Balwan Yadav who denied the same and pleaded innocence. Resultantly, the trial procedure commenced.
8. The prosecution in discharge of it's burden to bring home the charges so framed against charge sheeted accused Balwan yadav, adduced two prosecution witnesses namely, P.W.1 Iqbal Yadav, (first informant/father of the prosecutrix) and P.W.2 namely X, (the prosecutrix).
9. After the statements-in-chief/examination in chief of aforesaid prosecution witnesses was recorded, the prosecution/first informant/revisionist filed an application dated 3.4.2023, under section 319 Cr.P.C. alleging therein that since complicity of prospective accused (named but not charge sheeted) has also emerged in the crime in question, as per the depositions of aforementioned prosecution witnesses, therefore, they be also summoned to face trial in above mentioned sessions trial.
10. Court below examined the allegations made in the application under section 319 Cr.P.C. in the light of the material on record. The said allegations were evaluated particularly in the light of the depositions of P.W.1 and P.W,.2. After having undertaken aforementioned exercise, Court below came to the conclusion that no prima facie case to summon the prospective accused is made out inasmsuch as except for the complicity of the prospective accused, nothing more has emerged against them. On the above foundation, Court below by means of order dated 22.5.2023, rejected the application dated 3.4.2023, under section 319 Cr.P.C. filed by prosecution/first informant/revisionist.
11. Thus feeling aggrieved by the order dated 22.5.2023, revisionist, who is first informant and also the father of the prosecutrix, has now approached this Court by means of present criminal revision.
12. Mr. M.M. Pandey, the learned counsel for revisionist, in support of this revision submits that the order impugned in present criminal revision is not only illegal but also without jurisdiction. Therefore, the same is liable to be set aside by this Court. He submits that once the complicity of the prospective accused (named in the F.I.R. but not charge sheeted) i.e. opposite parties 2,3,4 herein stood established in the crime in question as per the depositions of P.W.1 and P.W.2,. Court below has erred in rejecting the application under section 319 Cr.P.C. filed by revisionist. He also submits that at the time of deciding an application under section 319 Cr.P.C., the Court is not required to conduct a mini trial but only undertake such exercise to find out whether any prima facie case for summoning the prospective accused is made out or not inasmuch the court is not required to return a conclusive finding that as per the material on record the prospective accused can be convicted. Since as per material on record, as well as the deposition of P.W.1 and P.W.2, the complicity of prospective accused named in the F.I.R. but not charge sheeted stood established in the crime in question, therefore, Court below ought to have allowed the application under section 319 Cr.P.C. The view taken to the contrary by Court below, therefore, cannot be sustained in law and fact. As such, the order impugned in present criminal revision is liable to be set aside by this Court.
13. Per contra, the learned A.G.A. for State and the learned counsel representing the prospective accused i.e. opposite parties 2,3 and 4 herein have vehemently opposed this revision. They submit that order impugned in present revision is perfectly just and legal. Court below while rejecting the application dated 3.4.2023, under section 319 Cr.P.C. filed by prosecution for summoning the prospective accused has recorded clear and cogent finding on the basis of which, Court below has concluded that no prima facie case for summoning the prospective accused is made out. The findings so recorded by Court below in support of the conclusion so drawn, could not be dislodged by the learned counsel for revisionist as being illegal, perverse or erroneous. Once the findings cannot be dislodged, the conclusion cannot be altered. They further submit that so far as the deposition of P.W.1 is concerned, he is not an eye witness of the occurrence and therefore, his deposition is based of hearsay evidence. Except for establishing the fact that his daughter went missing on 22.3.2021, his statement is not worthy of credit with regard to the other allegations made in the F.I.R. This witness in his statement before Court below has alleged that prospective accused have abetted in the commission of crime. An offence of abatement has to be construed as per the not only provisions contained in section 107 IPC. Reference has then been made to following judgements of the Supreme Court :
(i). Sarvesh Vs. State of U.P. 2018 ADJ Online 0163,
(ii).Gurcharan Singh Vs. State of Pubjab, (2020) 10 SCC 200,
(iii). Kanchan Sharma Vs. State of U.P. and Another 2021 SCC OnLine SC 737,
(iv). Mirza Iqbal alias Golu and Another Vs. State of U.P. and Another 2021 SCC OnLine SC 1251,
(v) Mariano Anto Bruno and Another Vs. Inspector of Police 2022 SCC OnLine SC 1387, &
(vi) Kashibai and Others Vs. State of Karnataka, 2023 SCC OnLine SC 575.
14. With reference to above, it is urged that only if the parameters laid down in aforementioned judgement stand satisfied can abatement be inferred against the prospective accused. However as the deposition of P.W.1 on the point of abetment on the part of prospective accused is an sketchy one, the same is not even prima facie established. It is thus contended that as per deposition of P.W.1, no abatement can be said to have been committed by prospective accused. As such, no case for summoning the prospec tive accused is made out as per the deposition of P.W.1.
15. It is then submitted that the prosecutrix in her statement under section 161 Cr.P.C., before the Doctor, who medically examined her, in her statement under section 164 Cr.P.C. and ultimately, in her deposition before Court below as P.W.2 has been inconsistent. Though the names of the prospective accused in the crime in question has emerged in the statement of prosecutrix recorded under section 164 Cr.P.C. as well as in her depositions before court below but what exact role was played by prospective accused in abetting the crime in question has not been clearly spelt out in the deposition of P.W.2. It is thus contended that even as per statement of prosecutrix before Court below as P.W.2 nothing more than mere complicity of the prospective accused has emerged in the crime in question. Mere complicity of a prospective accused in the crime in question is by itself not sufficient to summon a prospective accused. In view of above, it cannot be said that Court below has failed to exercise it's jurisdiction vested in it. No illegality has been committed by Court below in rejecting the application under section 319 Cr.P.C. filed by prosecution inasmuch as not even a prima facie case for summoning the prospective accused is made out, as per material on record. On the above premise, it is thus urged by the learned A.G.A. and the learned counsel representing the prospective accused that no good ground for interference by this Court in present revision is made out. As such, present revision is liable to be dismissed.
16. Having heard the learned counsel for revisionist, the learned A.G.A. for State/opposite party-1 and Mr. Kailash Chaudhary, Advocate, holding brief of Mr. Sudhir Kumar Tripathi, the learned counsel representing opposite parties-2,3,4 and 5, this Court finds that application under section 319 Cr.P.C. filed by prosecution/first informant/revisionist was decided by Court below on the basis of deposition of two prosecution witnesses namely, P.W.1, P.W.2 only. Admittedly, the examination-in-chief of the aforesaid witnesses has taken place. As such, the deposition of above mentioned prosecution witnesses shall fall in the realm of legal evidence. Further in view of the law laid down by Five Judges Bench of Supreme Court in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92, an application 319 Cr.P.Can be decided on the basis of statement-in-chief of one prosecution witness. As such, no illegality can be said to have been committed by Court below in deciding the application under section 319 Cr.P.C. filed by prosecution/first informant, without the entire prosecution evidence having been recorded and on the basis of deposition of two prosecution witness.
17. Five Jduges Bench in aforesaid judgement has also held that the Court before summoning a prospective accused in exercise of jurisdiction under section 319 Cr.P.C. has to record its satisfaction that a prima facie case for summoning the prospective accused is made out. What will be the nature and degree of such satisfaction that is required to be recorded by Court before summoning a prospective accused now stands crystalized in paragraph 106 of the report in Hardeep Singh (Supra). For ready reference, the same is extracted herein under:
"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."
18. When the order impugned is examined in the light of above as well as the material on record, this Court finds that in the statement of P.W.1 i.e. first informant/father of the prosecutrix, the only fact that has emerged against prospective accused is that they have abetted in the crime in question. However, the said fact does not stand established against the prospective accused as per the statement of P.W.1. The prosecutrix in her statements recorded under section 161 Cr.P.C. and 164 Cr.P.C. and before the Doctor as well as in her deposition before Court below has not remained consistent. Though in the statement of prosecutrix recorded under section 164 Cr.P.C. as well as in her deposition before Court below, the complicity of the prospective accused in the crime in question has emerged inasmuch as it is alleged that when the prosecution and Balwan Yadav were going together, the prospective accused met on the way and accompanied them to Kanpur but no such, evidence has come on record to establish the exact role played by the prospective accused in the commission of crime. As such, except for mere complicity of the prospective accused nothing more has emerged in the deposition of P.W.2.
19. In view of above, it cannot be said that Court below could have recorded its satisfaction that prima facie case for summoning the prospective accused which is in line with the caution given by five Judges Bench in Hardeep (Supra) could have been recorded. The parameters regarding exercise of jurisdiction under section 319 Cr.P.C. were initially settled by the Five Judges Bench in Hardeep Singh (Supra). However, subsequently, two different Two Judges Bench of Supreme Court in Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 and S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 have narrowed down the scope for interference by Court while exercising jurisdiction under section 319 Cr.P.C. by providing measure which are in favour of prospective accused. Another Five Judges Bench of Suprme Court in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 has redefined the parameters regarding exercise of jurisdiction under section 319 Cr.P.C. On a conjoint reading of the judgment of Suprme Court in Brijendra Singh (Supra), and S Mohammed Ispahani (Supra) the following mandate stands emerged:
"(a) a prospective accused can be summoned under Section 319 Cr.P.C. upon consideration of the statement-in-chief of one prosecution witness. As such, Court concerned need not wait for the entire prosecution evidence to be recorded.
(b) the plethora of evidence collected by the Investigating Officer during course of investigation is required to be looked into by a Court dealing with an application under Section 319 Cr.P.C. as it is relevant material.
(c) Court while dealing with an application under Section 319 Cr.P.C. must examine the statement of the witness recorded under Section 161 Cr.P.C. and thereafter, draw a parallel to find out whether something new has emerged in the deposition of such a witness.
(d) a prospective accused cannot be summoned simply on the basis of his mere complicity in the crime in question
(e) Court can summon a prospective accused in exercise of jurisdiction under Section 319 Cr.P.C. only if, an inference of guilt of the prospective accused can be gathered from the material on record.
(f) jurisdiction under Section 319 Cr.P.C. is an extra-ordinary discretionary jurisdiction and should be exercised sparingly.
(g) Court should exercise it's jurisdiction under Section 319 Cr.P.C. diligently and not in a casual and cavalier fashion.
(h) a prospective accused can be summoned only when some strong and cogent evidence has emerged against him and not merely on the basis of his complicity in the crime in question."
20. When the order impugned is examined in the light of above, the inescapable conclusion is that as per deposition of P.W.2, it is only the mere complicity of the prospective accused in the crime in question that has emerged. No strong and cogent evidence has yet emerged on record, which may establish something more than mere complicity of the prospective accused in the crime in question. As such, no interference regarding the guilt of prospective accused can be drawn. In view of above, Court below could not have been recorded it's satisfaction which is in conformity with the observation made in paragraph 106 of the judgement of Supreme Court in Hardeep Singh (Supra), a prima facie case for summoning the prospective accused could have been recorded. As such, no illegality can be said to have been committed by Court below.
21. In view of the discussions made herein above, this Court finds that court below while passing the order impugned has neither committed a jurisdictional error nor has it exercised it's jurisdiction with material irrgularity so as to vitiate the order impugned.
22. As a result, the present criminal revision fails and is liable to be dismissed.
23. It is accordingly dismissed.
Order Date :- 29.5.2024
Arshad
