SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Vikash Maurya vs State Of U.P. And Another on 23 July, 2021

Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 49

Case :- CRIMINAL REVISION No. – 1575 of 2021

Revisionist :- Vikash Maurya

Opposite Party :- State of U.P. and Another

Counsel for Revisionist :- Madhu Ranjan Pandey

Hon’ble Vivek Agarwal,J.

1. Sri Madhu Ranjan Pandey, learned counsel for the revision-petitioner – Vikash Maurya.

2. Petitioner has assailed order dated 10.2.2021 passed by learned Special Judge (POCSO Act), Additional Sessions Judge, Pilibhit in Special Sessions Case No. 316 of 2019, Case Crime No. 41 of 2019, whereby court below has allowed application under section 319 Cr.P.C. to arraign the present petitioner Vikash Maurya as accused.

3. Counsel for the petitioner submits that initially FIR was registered under the provisions of Section 354 and 354 (A) IPC. After 27 days of the incident, statements of the prosecution were recorded under section 164 CrP.C, where she narrated facts of commission of rape by the present petitioner and co-accused Anil Verma. It is submitted that two of the prosecution witness PW-1 and PW-2 have been cross examined. Therefore, at this stage order by the same court to summon accused is bad in law.

4. Reliance is placed on the judgment of the Supreme Court in case of Hardeep Singh and others Vs. State of Punjab and others; (2014) 3 SCC 92 and also the judgment of Supreme Court in case of Babubhai Bhimabhai Bokhiria and another Vs. State of Gujrat and others; (2014) 5 SCC 568. Placing reliance on these two judgments, it is submitted that court has to record a satisfaction when person who have been added as accused is erroneously omitted or has deliberately been excluded from the investigation agency and that satisfaction has to be made on the basis of the evidence so led through trial court.

5. In the present case, it is submitted that though applicant was named as accused in the FIR for an offence under section 354 (A) and 354 IPC, but should not be summoned to face a trial under section 376 IPC. It is suggested that as right to cross examine the witness, who have already been examined, will not be available adversely affecting case of the petitioner. Reliance is place on para-88, 98 and 99 of the judgment rendered by the Supreme Court in case of Hardeep Singh (Supra). However, plain reading of the cited paragraphs reveal that even the Supreme Court has held that power under section 319 Cr.P.C. is discretionary and extra ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is held 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 of ‘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.

6. Fact of the matter is that accused who has been summoned exercising power under section 319 Cr.P.C. will have right to cross examine witness of the prosecution who have already been examined and cross-examine because if that would have been barred then that will violate the principles of natural justice qua person who has been summoned as accused exercising power under Section 319 Cr.P.C.

7. Secondly, what is to be seen in this case is that it is not that applicant was not named in the FIR. the only charge is that police failed to record version of the prosecutrix in regard to commission of rape on her and later when she appeared before the learned Magistrate to record her statement under section 164 Cr.P.C., she stated that she was subjected to rape and on such statement being taken into consideration, the Magistrate has exercised his authority to summon present accused for trial for offence under section 376 IPC as well.

8. Sri Vikas Goswami, learned AGA for the State at this stage submits that the judgment of the Supreme Court in case of Rajendra Singh Vs. State of UP and others; AIR 2007 SC 2786 is relevant, where in it is observed that court could not exercise its power under Section 319 Cr.P.C. on the basis of material available in the charge sheet or the case diary because such material contained in the charge sheet or in the case diary do not constitute evidence. The word ‘evidence’ in Section 319 Cr.P.C. contemplates the evidence of witness given in the court. Thus placing reliance on such judgment of the Supreme Court in case of Rajendra Singh (Supra), it is submitted that once PW-1 and PW-2 were examined before the court of law and court concerned was of the opinion that there is sufficient material to proceed against present applicant then he has been summoned exercising power under section 319 Cr.P.C.

9. When facts of the present case are tested on the tough stone of the law laid down by the Supreme Court in case of Hardeep Singh and others (Supra), Babubhai Bhimabhai Bokhiria and another, then it is evident that it is true that while exercising power under section 319 such powers spring out of doctrine of judex damnatur cum nocens absolvitur i.e. every word to be given its full effect. Powers to add new accused can be exercised during recording of evidence and such powers are limited to addition in column 2 of charge-sheet or person who has turned accomplice – Court may consider material collected during inquiry for arriving at satisfaction to exercise powers under Section 319 Cr.P.C. to add new accused. In the present case prosecutirx has given her statement under section 164 Cr.P.C and has shown involvement of the present accused. In case of Hardeep Singh (Supra) itself it is mentioned that as Court may exercise such powers when examination-in-chief has been completed and need not wait tilI cross examination is completed – such satisfaction would be more than prima facie satisfaction. Therefore, in the light of such pronouncement in case of Hardeep Singh and others (Supra) and also law laid down in case of Rajendra Singh (Supra), I am of the opinion that there is no illegality in the impugned order inasmsuch as prima facie there is material which when remains unrebutted will be sufficient to convict the present applicant under section 376 IPC. Therefore, there being no illegality or infirmity in the impugned order, it does not call for any interference. Revision fails and is dismissed.

Order Date :- 23.7.2021

S.K.S.

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link
MyNation Times Magzine


All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

Recent Comments

STUDY REPORTS

Copyright © 2024 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation