Virendra and 2 Others v. State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 482 No. - 38787 of 2024 Court No. - 77 HON'BLE SAURABH SRIVASTAVA, J.

¶1Heard Sri Raj Kumar Singh, learned counsel for applicants and Sri O.P. Vishwakarma, Advocate holding brief of Sri Krishna Kant Yadav, learned counsel appearing on behalf of opposite party no.2 as well as learned AGA for the State.

¶2This application has been preferred for seeking quashing of order dated

09.10.2024 passed by learned Special Judge (POCSO Act) over the application preferred by opposite party no.2 under Section 319 Cr.P.C. (hereinafter referred to as the 'Code') in Special Case No.27 of 2024, arising out of Case Crime No.157 of 2023, under Section 363, 506 IPC and 16/17 of POCSO Act, P.S. Patai, District Rampur by which applicants were summoned to face trial.

¶3Backgrounds facts in a nutshell are that an FIR was lodged at the behest of opposite party no.2 on dated 22.12.2023 against applicants herein and one Dinesh in pursuance of offence under Section 363 and 366 IPC alleging that his minor daughter aged about 16 years, was abducted by accused Dinesh with the help of applicants herein. After registration of the FIR, inquiry was conducted and conclusion of the same, the concerned Investigating Officer submitted chargesheet only against co-accused Dinesh and applicants herein were exonerated. Learned court concerned took cognizance of offence upon the said chargesheet. During trial, examination-in-chief of informant (P.W.- 1) and the victim (P.W.-2) was recorded wherein it has been came out that applicants herein were helped the co-accused Dinesh in abducting the victim and on this fact, opposite party no.2 preferred application under Section 319 Cr.P.C. to summon the applicants herein which was allowed by learned court concerned vide impugned order dated 09.10.2024 by way of summoning the applicants herein under Section 363, 506 IPC and 16/17 of POCSO Act to Versus Counsel for Applicant(s) : Raj Kumar Singh Counsel for Opposite Party(s) : G.A., Krishna Kant Yadav Virendra And 2 Others .....Applicant(s) State of U.P. and Another .....Opposite Party(s) face trial.

¶4Learned counsel for applicants has submitted that applicants are innocent and they have falsely been implicated in the present case. Learned counsel for applicants has further submitted that impugned order has been passed against the weight of evidence produced before the concerned court which suffers from illegality. It has also been submitted by learned counsel for applicants that while passing the order impugned, learned court concerned ignored the statement of victim recorded under Section 161 and 164 Cr.P.C. wherein she had stated that she herself was went to house of her friend and she was never abducted or assaulted by accused persons and considering the said facts, they were not chargesheeted. Learned counsel for applicants has argued that only where strong and cogent evidence occurs against a person from the evidence, the power under Section 319 of the Code should be exercised and by bare perusal of the material available before learned court concerned, prima facie, no case is made against the applicants and as such, the impugned order may be set aside.

¶5Per contra, learned counsel appearing on behalf of opposite party no.2 and learned AGA vehemently opposed the prayer as made in the application and rebutted the stands taken up by learned counsel for applicants by way of submitting that in examination-in-chief, informant (P.W.-1) and the victim (P.W.-2) have clearly deposed that applicants herein were helped the co-accused Dinesh in abducting the victim and as such, it cannot be said that no prima facie offence is made out against the examination-in-chief of informant (P.W.-1) and the victim (P.W.-2) was recorded wherein it has been came out that applicants herein were helped the co-accused Dinesh in abducting the victim and the order impugned is just and proper. In support of their submissions, learned counsel for opposite no.2 placed reliance upon the judgment passed by Hon'ble the Apex court in the cases of Sartaj Singh Vs. State of Haryana and another [2021 (5) SCC 337] and Y. Saraba Reddy Vs. Puthur Rami Reddy and Another [2007 (4) SCC 773].

¶6Before coming to the merits of the case, it would be appropriate to extract Section 319 of the Code, which is as follows:-"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 afresh, and 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."

¶7The ambit and scope of the powers of the courts of law under Section 319 of the Code were considered in the Constitution Bench judgment of the Supreme Court in Hardeep Singh Vs. State of Punjab [(2014) 3 SCC 92], wherein it has been held that the object of the provision is that the real culprit should not get away unpunished and in a situation where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. It was stated thus :- "8. The constitutional mandate under Articles 20 and 21 of the Constitution of India, 1950 provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished.

¶9The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 Code of Criminal Procedure. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject matter of trial. xxx

¶12Section 319 Code of Criminal Procedure springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.

¶13It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC. xxx

¶17Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 Code of Criminal Procedure or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.

¶18The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution.

¶19The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence."

¶8As regards the degree of satisfaction required for invoking the powers under Section 319 of the Code, it was held that 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. It was observed as follows :- "105. Power under Section 319 Code of Criminal Procedure 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.

¶106Thus, 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 Code of Criminal Procedure. In Section 319 Code of Criminal Procedure 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 Code of Criminal Procedure to form any opinion as to the guilt of the accused."

¶9The question as to in what situations the power under the section can be exercised in respect of persons not named in the FIR or named in the FIR, but not charge-sheeted or discharged was also considered, and it was held that a person whose name does not appear even in the FIR or in the charge-sheet or whose name appears in the FIR and not in the charge-sheet, can still be summoned by the court provided the conditions under the section stand fulfilled. It was observed as follows :- "111. Even the Constitution Bench in Dharam Pal (CB) has held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet, once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the chargesheet or whose name appears in the FIR and not in the main part of the chargesheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 Code of Criminal Procedure can still be summoned by the court, provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled. xxx

117.6 A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Code of Criminal Procedure provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Code of Criminal Procedure has to be complied with before he can be summoned afresh. "

¶10The word 'evidence' as used under Section 319(1) of the Code was also considered and it was held as follows :- "84. The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 Code of Criminal Procedure. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial.

¶85In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Code of Criminal Procedure. The "evidence" is thus, limited to the evidence recorded during trial."

¶11The principles with regard to exercise of power by the court to summon an accused under Section 319 of the Code were reiterated in S. Mohammed Ispahani Vs. Yogendra Chandak and others [(2017) 16 SCC 226], and it was held that the power under Section 319 to summon even those persons who are not named in the charge-sheet to appear and face trial, is unquestionable. It was observed thus:- "28. Insofar as power of the Court Under Section 319 of the Code of Criminal Procedure, to summon even those persons who are not named in the charge sheet to appear and face trial is concerned, the same is unquestionable. Section 319 of the Code of Criminal Procedure, is meant to rope in even those persons who were not implicated when the charge sheet was filed but during the trial the Court finds that sufficient evidence has come on record to summon them and face the trial. In Hardeep Singh's case, the Constitution Bench of this Court has settled the law in this behalf with authoritative pronouncement, thereby removing the cobweb which had been created while interpreting this provision earlier. As far as object behind Section 319 of the Code of Criminal Procedure, is concerned, the Court had highlighted the same as under:

¶19The court is sole repository of justice and a duty is cast upon it to uphold the Rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an Accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence. '

¶12The power to proceed against persons named in FIR with specific allegations against them, but not charge-sheeted, was reiterated in Rajesh and others Vs. State of Haryana [(2019) 6 SCC 368], and it was held that persons named in the FIR but not implicated in charge-sheet can be summoned to face trial, provided during the trial some evidence surfaces against the proposed accused.

¶13In the case at hand, as per the FIR version as well as the testimony of two witnesses, complicity of the applicants could not be ruled out. The evidence before the trial judge shows complicity of the applicants, though not arraigned as accused in the charge-sheet, it was open to the trial court to form a view that the applicants be tried together with the accused, and for the said purpose, summoned the applicants in exercise of powers under Section 319 of the Code.

¶14The broad principles which have been laid down for exercise of powers under Section 319 of the Code underline the object of the enactment that the real perpetrator of the offence should not get away unpunished and in a situation where the investigating agency for any reason does not array the real culprit as an accused the court would not be powerless in calling the accused to face trial; rather it would be duty of the court to do justice by punishing the real culprit.

¶15The power to proceed under Section 319 of the Code has also been held to be exerciseable in respect of persons though named in the FIR but not charge-sheeted provided the court is satisfied that the conditions provided under the section stand fulfilled.

¶16The main ground which has been canvassed on behalf of the applicants to raise a challenge to the order of summoning under Section 319 of the Code, is that the statement of victim recorded under Section 161 and 164 Cr.P.C. wherein she had stated that she herself was went to house of her friend and she was never abducted or assaulted by accused persons and due to that, no charge-sheet was submitted against them.

¶17Section 319 (1) of the Code envisages that 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.

¶18The word evidence used under Section 319 (1) of the Code has been held to be understood to refer to the evidence recorded during trial, and also any material that has been received by the court after cognizance is taken and before the trial commences, to be utilized for corroboration and to support the evidence recorded by the court.

¶19The evidence recorded by the court during trial is thus to be accorded primacy and for the purpose of exercise of power under Section 319 of the Code would have to be given weight over the material which was collected during the course of investigation. The contention which has been sought to be raised placing reliance upon the material collected by the investigating officer during the course of investigation, for the purpose of exercise of powers under Section 319 of the Code, thus cannot be accepted.

¶20The power under Section 319 of the Code to summon even those persons who are not named in the charge-sheet to appear and face trial, being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scot-free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the evidence during the course of trial, the order passed under Section 319 of the Code summoning the applicants does not contain any material error so as to warrant inference.

¶21In view of the aforesaid observation, the instant application stands dismissed. September 19, 2025 Vivek Kr. (Saurabh Srivastava,J.) High Court of Judicature at Allahabad