Dismissed

Smt. Ranjana Chaudhari v. State of U.P. and Another

Allahabad HC3 Jan 2018CRLR/4162/2017

Case brief

AI extract

What is this about?

This is a criminal revision challenging an order under Section 319 Cr.P.C. summoning the appellant to face trial. The High Court held that the lower court correctly exercised its discretionary power based on witness statements recorded during evidence-in-chief showing the appellant threatened and abused the complainant, dismissing the revision.

What did the court decide?

The criminal revision filed against the order of summoning was dismissed, upholding the summion order under Section 319 Cr.P.C.

Smt. Ranjana Chaudhari Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2018)

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A.F.R.

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Court No. - 17

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Case :- CRIMINAL REVISION No. - 4162 of 2017

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Revisionist :- Smt. Ranjana Chaudhari Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Bachchu Lal Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Kumar Singh-I,J.

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This criminal revision has been filed under Section 397/401 Cr.P.C. against the order dated 23.9.2017 passed by Additional Session Judge, Court No. 1, Pilibhit, whereby he allowed the application of prosecution under Section 319 Cr.P.C. And summoned the revisionist to face trial for offences under Sections 323, 504 and 506 IPC in S.T. No. 10 of 2016 (State Vs. Sarvjeet Singh) under Sections 376, 504 and 506 IPC and ¾ POCSO Act, P.S. Sungarhi, District Pilibhit.

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It is stated in the grounds of revision that the impugned order has been passed absolutely against the spirit of the provision of Section 319 Cr.P.C. (to be referred as 'Code' in brief from here onwards). The first informant namely Shivani Gupta, her father Umesh Chandra Gupta and mother Smt. Poonam Gupta were produced under Section 311 of the Cr.P.C., only to falsely implicate the revisionist as all of them were interested witnesses who sought private vendetta with ulterior motive to pressurize the revisionist. The power under Section 319 of the Cr.P.C. is conferred on the court to be used very sparingly which requires compelling reasons to exist for taking cognizance. No such compelling/cogent reason has been mentioned by the learned court below to justify the summoning of the revisionist. No satisfaction has been recorded by

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the court below to the effect that the evidence, if un-rebutted, would lead to conviction of the revisionist under Sections 323, 504 and 506 IPC. The revisionist was falsely and maliciously not named by her name but was named as wife of Sarvjeet Singh with two other boys with unknown names in the First Information Report. On the basis of no sufficient material being collected during investigation, charge sheet was not submitted against revisionist and the two other unknown boys.

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Learned counsel for the revisionist has contended that Shivani Gupta/complainant was 18 years two months and 13 days old on the date of occurrence. Hence, she was major. In her statement under Section 164 Cr.P.C., she has stated that accused Sarvjeet Singh had given her false assurance that he would marry her and continued to sexually exploit her. Later on she came to know that he was a married person and had a child also. When she told him about this, he gave assurance that he would divorce his wife and as soon as she turnes 18 years old, he would marry her. On 6.9.2015 one lady along with 2-3 boys came to her house at about 10:00 pm in the night and told her to spare Sarvjeet Singh failing which she would get her murdered. She was abused and beaten also by her. After this occurrence, she told to her parents that for last one year Sarvjeet Singh was sexually exploiting her under the threat that he had made a video clip and the same would be placed on the internet and under this threat she gave her consent for being abused sexually.

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Referring to above statement it was contended by the learned counsel for the revisionist that the said statement reflects that she was consenting party. It was further contended that after investigation by police in Case Crime No. 1755 of 2015 under Section 376, 504 and 506 IPC and ¾ POCSO Act, P.S. Sungarhi, District Pilibhit, charge sheet was submitted only against accused Sarvjeet Singh under the aforesaid Sections while against other

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accused the investigation was shown pending. Further, the court's attention is drawn to the statement made by Shivani Gupta as PW-2 and by Umesh Chandra Gupta (father of Shivani Gupta) as PW-4 and of Smt. Poonam Gupta (mother of Shivani Gupta) as PW-9. In the statements these witnesses have stated that on 6.9.2015 in the night at about 10:00 pm the revisionist Smt. Ranjana Chaudhary reached house of Shivani Gupta and called her down stairs, abused her and had beaten her. She could not understand what was happening, at this Shivani Gupta was told by the revisionist that she should accept her request (to stay away from her husband) failing which she would have to pay with her life. At that time, she was accompanied by two boys also which were not known to her. On the basis of these statements recorded before court during trial proceedings the learned court below has found sufficient evidence on record to summon the revisionist to face trial under Sections 323, 504 and 506 IPC.

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Learned counsel for the revisionist has stated that this is cooked up story and to pressurize the revisionist these statements have been got recorded under Section 311 Cr.P.C. Of the Code. Hence, the impugned summoning order dated 23.9.2017 deserves to be quashed.

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It would be pertinent to refer provision under Section 319 Cr.P.C. which is as follows:-

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S. 319. Power to proceed against other persons appearing to be guilty of offence. -

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(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.

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(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.

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(3) Any person attending the court although not under arrest or upon a

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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.

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(4) Where the court proceeds against any person under sub-section (1), then-

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(a) The proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

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(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.

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The Supreme Court has made interpretation of this provision in Hardeep Singh Vs. State of Punjab and others, 2014 (1) ADJ 727 (SC) , wherein following has been held in paragraph 71, 80, 83, 84 and 98:-

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71. It is, therefore, clear that the word “evidence” in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation.

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80. In 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 319 Cr.P.C. The ‘evidence’ is thus, limited to the evidence recorded during trial.

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Q.(ii) Does the word ‘evidence’ in Section 319 Cr.P.C. means as arising in Examination-in-Chief or also together with CrossExamination?

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83. As held in Mohd. Shafi (Supra) and Harbhajan Singh (Supra), all that is required for the exercise of the power under 319 Cr.P.C. is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The pre-requisite for the exercise of this power is similar to the prima facie view which the magistrate must come to in order to take cognizance of the offence. Therefore, no straight-jacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence appearing in Examination-in-Chief, it can exercise the power under 319 Cr.P.C. and can proceed against such other person(s). It is essential to note that the Section also uses the words ‘such person could be tried’ instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a

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decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section 4 of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to cross examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of Examination- in-Chief, the Court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by Cross Examination, undoubtedly in itself, is an evidence.

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84. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross examine the witness(s) prior to passing of an order under 319 Cr.P.C., as such a procedure is not contemplated by the Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(s) is obliterating the role of persons already facing trial. More so, 319 Cr.P.C. enables the court to record evidence in absence of the accused in the circumstances mentioned therein.

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98. Power under 319 Cr.P.C. 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.

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It is apparent from the above interpretation that the court below was well within its power to summon the revisionist to face trial under Sections 323, 504 and 506 IPC because it had found sufficient evidence on record in the form of statements recorded during trial of the complainant Shivani Gupta and her parents namely Umesh Chandra Gupta and Smt. Poonam Gupta. All these three witnesses have supported the version that the revisionist had visited the house of complainant Shivani Gupta and had threatened her to stay away

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from her husband Sarvjeet Singh. She was abused and beaten by the revisionist. Ingredients of Section 323, 504 and 506 IPC were found made out from the evidence on record. There does not seem to be any infirmity in the impugned order. The same does not require any interference by this Court.

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Hence, this criminal revision deserves to be dismissed. It is, accordingly, dismissed . Order Date :- 3.1.2018 A.P. Pandey

Smt. Ranjana Chaudhari v. State of U.P. and Another

Case brief

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Smt. Ranjana Chaudhari v. State of U.P. and Another

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