Ram Mahesh v. State of U.P. and 3 Others

Court No. - 79 Case :- CRIMINAL REVISION No. - 3461 of 2023 Revisionist :- Ram Mahesh Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Vikas Singh Counsel for Opposite Party :- G.A.,Shivakant Hon'ble Vipin Chandra Dixit,J. Heard Sri Vikas Singh, learned counsel for the revisionist, learned AGA for the State and Sri Shivakant, learned counsel appearing on behalf of opposite party nos.2. This criminal revision has been filed by the revisionist against the order dated

3.1.2023 passed by Additional Session Judge/Special Judge(Rape & POCSO Act), Court No.1, Fatehpur in Special Session Trial No. 110 of 2017(State vs. Chhottan Nishad) arising out of Case Crime No.382 of 2017 under Section 363, 366 IPC and Section 7/8 POCSO Act, Police Station Ashothar, District Fatehpur by which application filed by the informant under Section 319 Cr.P.C. was allowed and the revisionist was summoned to face trial. Brief facts of the case are that the FIR was lodged by informant/opposite party no.2 on 7.6.2017 with the allegation that accused persons Chhottan Nishad,Indraz, Khutul, Shiv Prakash and Ram Mahesh(present revisionist) have enticed away minor daughter of informant who is aged about 14 years. The report was registered as Case Crime No. 382 of 2017 under Section 363, 366 IPC and Section 8 of POCSO Act. The statement of the informant was recorded under Section 161 Cr.P.C. in which she has supported the prosecution case. The statement of victim was also recorded under Section 164 Cr.P.C. in which she has stated that she went to the house of her friend namely, Pooja Devi and there was no allegation against any of the accused persons. The statement of other witnesses were also recorded by the Investigating Officer during investigation. The Investigating Officer, after completing investigation, had submitted charge sheet only against Chhottan Nishad under section 363, 366 IPC and Section 8 POCSO Act and other accused persons were exonerated by the Investigating Officer. During trial, informant appeared as P.W.-1 and victim appeared as P.W.-2. Both the prosecution witnesses had supported the prosecution case. The victim in her statement had named all five accused persons and said that they have committed rape with her. After statement of victim, the informant moved an application under Section 319 Cr.P.C. which was allowed by the trial court vide order dated 3.1.2023 which is impugned in the present criminal revision. It is submitted by learned counsel for the revisionist that the revisionist is innocent and has been falsely implicated in this case by the informant on account of village enmity. It is further submitted that the Investigating Officer after recording statement of victim and other witnesses had not found sufficient material against the revisionist, as such, the revisionist and other three accused persons were exonerated by the Investigating Officer and charge-sheet was submitted only against co-accused Chhottan Nishad. Lastly, it is submitted that there are severe contradictions in the statements of informant as well as victim. The prosecution has failed to prove the involvement of the revisionist in the present case. The trial court has committed gross illegality in allowing the application under Section 319 Cr.P.C. On the other hand, learned counsel appearing on behalf of opposite party no.2/informant has submitted that the revisionist was named in the FIR and the informant and the victim who appeared as P.W.-1 and P.W.-2 before the Court have named the revisionist and other co-accused persons and it was specifically stated that all the five accused persons have committed rape with her. Lastly, it is submitted that the learned trial court after considering the entire evidence and material which are available on record has recorded its satisfaction and has rightly summoned the revisionist to face trial. Before considering the merits of the contention of rival parties it is necessary to refer Section 319 Cr.P.C. which reads 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." By bare reading of Section 319 Cr.P.C. it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with other accused. The provisions of Section 319 Cr.P.C. have been enacted in the Code of Criminal Procedure with a view to achieve objective that the real culprit should not get away unpunished and the court is empowered to proceed against any person not shown as an accused if it appears from the evidence that such person has committed any offence then he may be summoned to face the trial along with other co-accused. The Full Bench of Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others reported in 2014 (1) JIC 539 (SC) has laid down the principles in respect of summoning the persons who were not charge-sheeted during investigation but from the evidence they were found guilty for committing such an offence. The relevant paragraphs 96, 97, 107, 108 are quoted hereunder:- "96. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judges Bench of this Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

¶97In Rajendra Singh (Supra), the Court observed: "Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not."

¶107Power 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.

¶108Thus, 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." The power of trial court under Section 319 Cr.P.C. in respect to arraign any person as an accused during the course of enquiry or trial is also dealt with by Hon'ble the Apex Court in the case of Babubhai Bhimabhai Bokhiria and another Vs. State of Gujarat and others, reported in (2014) 5 SCC 568, the relevant paragraph 8 is quoted hereunder:- "8. Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher." From perusal of impugned order dated 3.1.2023, it is apparent that the learned trial court after considering the averments of FIR, the statements of informant and victim recorded during investigation as well as statements before the Court had recorded its prima facie satisfaction that there are sufficient material regarding involvement of the revisionist for committing rape with the victim and after considering the entire evidence and material which are available, has allowed the application under Section 319 Cr.P.C. and summoned the revisionist to face trial under Section 363/34, 366/34, 376-D IPC and Section 5/6 POCSO Act. No ground for interference is made out. The criminal revision being devoid of merit is liable to be dismissed. The criminal revision is dismissed accordingly. Interim order, if any, stands discharged. Order Date :- 12.10.2023 P.P. High Court of Judicature at Allahabad