Dismissed

Nasim v. State of U.P. and Another

Allahabad HC12 Jul 2022A482/8197/2022

Case brief

AI extract

What is this about?

In an application under Section 482 CrPC, the High Court refused to quash a lower court order summoning the applicant under Section 319 CrPC. The Court held that the prosecutrix's consistent and strong testimony established sufficient grounds for summons.

What did the court decide?

Application dismissed; no interference with the order summoning the applicant to face trial.

Nasim Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 80

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Case :- APPLICATION U/S 482 No. - 8197 of 2022

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Applicant :- Nasim Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pavan Kumar Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Pavan Kumar Mishra, the learned counsel for applicant and the learned A.G.A. for State.

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Present application under Section 482 Cr.P.C. has been filed challenging order dated 16.11.2019 passed by Special Additional District Judge, (POCSO Act), Muzaffar Nagar in Sessions Trial No. 1429 of 2013 (State Vs. Imran), under Section 376D I.P.C. and Section 6 POCSO Act, P.S. Kotwali, District- Shamli arising out of Case Crime No. 181 of 2013, under Section 376D I.P.C. and Section 06 POCSO Act, P.S. Kotwali, District Shamli, whereby application under section 319 Cr.P.C. filed by first informant/opposite party-2 has been allowed and simultaneously applicant has been summoned by court below to face trial in aforementioned sessions trial as well as the entire proceedings of aforementioned sessions trial now pending in the court of Special Additional District Judge, (POCSO Act), Muzaffar Nagar.

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3. Perused the record.

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Record shows that in respect of an incident, which is alleged to have occurred on 10.06.2013, a prompt F.I.R. dated 10.06.2013 was lodged by first informant/opposite party-2, Abdul Harun, father of prosecutrix Ms. Rabiya, and was registered as Case Crime No. 181 of 2013, under Section 376D I.P.C. and Section 06 POCSO Act, P.S. Kotwali, District Shamli. In the aforesaid F.I.R., two persons namely Imran and

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brother-in-law of Imran have been nominated as named accused, whereas one unknown person has also been arraigned as an accused.

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The gravamen of the allegations made in the F.I.R. is to the effect that nominated accused dislodged the modesty of the daughter of first informant namely Ms. Rabiya (prosecutrix) by forcibly committed rape upon her.

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After registration of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer examined the prosecutrix, first informant/opposite party-2 and other witnesses under Section 161 Cr.P.C. Subsequently, prosecutrix was medically examined. Ultimately, statement of prosecutrix was recorded under Section 164 Cr.P.C. Prosecutrix in her aforesaid statement under section 164 Cr.P.C. has supported the prosecution story as unfolded in F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, which in the opinion of the Investigating Officer substantially adverse to some of the accused, Investigating Officer concluded that complicity of some of the nominated accused is established in the crime in question. He, accordingly, submitted the charge-sheet dated 21.07.2013, whereby and where-under named accused namely Imran and brother-in-law of Imran i.e. Manroo have been charge-sheeted under Section 376D I.P.C. and Section 6 POCSO Act

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Subsequent to submission of aforementioned charge-sheet, cognizance was taken upon same by court concerned. Thereafter, court below framed distinct and separate charges against each of the charge-sheeted accused. Charge-sheeted

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accused denied the charges so framed. Resultantly, burden fell upon prosecution to lead evidence to bring home the charges so framed. Prosecution in discharge of aforesaid burden, adduced P.W.-1, Ms. Rabiya (prosecutrix). After the statement-inchief/examination-in-chief of the prosecutrix was recorded before court below, the first informant/opposite party-2 moved an application dated 14.11.2019 in terms of Section 319 Cr.P.C. praying therein that non-charge-sheeted accused namely Nasim, be also summoned to face trial in aforementioned criminal case as his complicity in the crime in question is clearly established as per the testimony of the prosecutrix Ms. Rabiya (P.W.-1).

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Aforesaid application filed by prosecution was not opposed by charge-sheeted accused. Court below after hearing the counsel for the prosecution/defence and upon consideration of the material on record, allowed the aforesaid application by means of order dated 16.11.2019 and simultaneously, summoned the applicant under Section 376D I.P.C. and Section 6 POCSO Act to face trial in above-mentioned case crime number.

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Thus, feeling aggrieved by above, applicant has now approached this Court by means of present application under section 482 Cr.P.C.

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Mr. Pawan Kumar Mishra, the learned counsel for applicant submits that impugned order dated 16.11.2019, passed by court below is manifestly illegal and without jurisdiction. Court below has allowed the application under section 319 Cr.P.C. filed by first informant/opposite party-2 on conjectures and surmises. It is then submitted that application under section 319 Cr.P.C. was moved by first informant/opposite party-2 Abdul Harun and not by D.G.C. Criminal i.e. prosecution.

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Consequently, same was not maintainable. Applicant is not named in the F.I.R. Investigating Officer during the course of investigation examined first informant and other witnesses. On the basis of above and other material collected by Investigating Officer during the course of investigation, the complicity of applicant was not found established in the crime in question. No application was filed by first informant/opposite party-2 before concerned Magistrate or Senior Police Officer expressing his dissatisfaction with the manner of investigation or the failure on the part of Investigating Officer in not examining relevant witness. It is also contended that no protest petition was filed by first informant/opposite party-2 against the charge-sheet submitted by police, complaining therein that as per the papers accompanying the police report, complicity of applicant is also established in the crime in question, therefore, he be also summoned to face trial. Application under section 319 Cr.P.C. was filed with an oblique and ulterior motive to harass the applicant. The statement of the Investigating Officer who had investigated the crime in question has not yet been recorded. In the absence of above, court below has pre-empted the disposal of the application under section 319 Cr.P.C. inasmuch as, Investigating Officer alone can explain as to on what material the complicity of applicant was not found to be established in the crime in question. As such, serious prejudice has been caused to the applicant. No new material has come in the statement of the prosecutrix on the basis of which something more than complicity of applicant can be said to be established in the crime in question. The oral testimony of prosecutrix is reiteration of her statement under section 164 Cr.P.C. Court below has not recorded any finding in the light of law laid down by Constitution Bench in Hardeep Singh and others Vs. State of Panjab and others 2014, 3 SCC 92 . No attempt has been

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made by court below to examine the material on record in the light of observations made by Apex Court in Brijendra Singh and Others Vs. State of Rajasthan (2017) SCC 706 It is, thus, urged that court below has failed to exercise its jurisdiction diligently. Accordingly, court below has summoned applicant in a "casual and cavalier manner" even when no "strong and cogent evidence" exists against applicant on the record of above mentioned Sessions Trial. On the aforesaid premise, it is thus, urged by learned counsel for applicant that order impugned dated 16.11.2019, passed by court below cannot be sustained in law and fact. Consequently, same is liable to be quashed and the application be allowed.

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Per contra, the learned A.G.A. has opposed this application. Learned A.G.A. contends that impugned order passed by Court below is perfectly just and illegal. Court below has exercised it's jurisdiction with due diligence and not with material irregularity. Court below has not committed a jurisdictional error in allowing the application under section 319 Cr.P.C. filed by first informant/opposite party-2, Abdul Harun. However, in the present case, the application under section 319 Cr.P.C. was filed after P.W.1 Ms. Rabiya (prosecutrix) had been cross examined. As such, her testimony falls in the realm of legal evidence. Consequently, no illegality has been committed by Court below in placing reliance upon same for deciding application under section 319 Cr.P.C., as per Constitution Bench judgement in Hardeep Singh (Supra). Police report submitted by Investigating Officer is not conclusive proof of innocence of revisionist. No irregularity or illegality has been committed by court below, in passing impugned order dated 16.11.20191 either. Even though applicant was exculpated by Investigating Officer, same cannot be taken as a ground to urge that applicant cannot be subsequently summoned to face trial. Applicant will

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have adequate opportunity to prove his innocence before court below by adducing evidence as well as Investigating Officer as a defence witness. The statement of the prosecutrix i.e. Ms. Rabiya as recorded by Investigating Officer under section 161 Cr.P.C. has not been brought on record. As such, no parallel can be drawn with the statements of prosecutrix recorded under section 161 Cr.P.C. and her deposition before court below to find out whether something new was stated by her than what was stated in her statement under section 161 Cr.P.C. In view of above, no benefit can be claimed by applicant on the basis of the judgement of Supreme Court in Brijendra Singh and Others Vs. State of Rajasthan (2017) SCC 706. Impugned order passed by court below is in conformity with the principles laid down by Constitution Bench in Hardeep Singh (supra) , wherein court has defined the manner in which jurisdiction under Section 319 Cr.P.C. is to be exercised as well as the nature of evidence required to summon a prospective accused. As per testimony of P.W.-1, something more than complicity of applicant in the crime in question stands established. On the aforesaid premise, it is thus urged by learned A.G.A. that no indulgence be granted by this Court in favour of applicant.

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1 2 . Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of record, this Court finds that the issue, which arises for determination in present applicant is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C. As a corollary to above, Court will also have to consider;-Whether the order impugned is within the established parameters or not.

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Parameters regarding exercise of jurisdiction by Courts under section 319 Cr.P.C. has been considered time and again by Supreme Court. The chronology of same is as under:

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(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)

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(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench)

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(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568

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(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCC 244

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(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706

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(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226

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(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393

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(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329

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(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342

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(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556

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(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368

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(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638

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(xiii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806

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(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805

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(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390

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(xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644

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(xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337

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(xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632

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(xix). Criminal Appeal No. 990 of 2021 (Umesh Chandra Srivastava Vs. The State of U.P. and another)

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Before proceeding to do so, it must be noticed that following issues stand settled as per judgements mentioned herein above and, therefore, they are not required to be dealt with.

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Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra) .

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Summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra) .

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The nature of evidence required for summoning a non charge-sheeted accused to face trial, has been summarised in paragraph-106 of the Constitution Bench judgement in Hardeep Singh (supra) , wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of a solitary prosecution witness of fact. The only requirement is that such statement discloses 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 un-rebutted would lead to conviction. The second test laid down

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therein is that such person could be tried with other accused. In paragraph- 36 of the judgement in S. Mohammed Ispahani (supra) , Court held that a non charge sheeted accused can be summoned only on the basis of "strong and cogent evidence".

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The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra) .

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The trial Court is competent to exercise its power under section 319 Cr.P.C. on the basis of statements recorded before it in examination-in-chief. However, in a case, where plethora of evidence is collected by investigating Officer during course of investigation which suggests otherwise the trial Court is at least duty bound to look into the same, while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their complicity has come on record. The Court, thus, has to find out as to whether something new has been stated in the deposition of witnesses than what was stated in their statements under section 161 Cr.P.C (vide paragraph 15 of judgement in Brijendra Singhs's Case (Supra) ).

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An accused who has been summoned by the Court in exercise of power under section 319 Cr.P.C., cannot claim discharge vide S. Mohammaed Ispahani (Supra) .

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In Sukhpal Singh Khaira (Supra) , a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's Case requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameter regarding the exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.

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In Rajesh and Others (Supra) , it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.

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Having noted the settled legal position, the Court is now required to consider whether on the basis of testimony of P.W.-1 Ms. Rabiya (prosecutrix), applicant could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier manner."

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The prosecutrix, Ms. Rabiya in her statement under Section 164 Cr.P.C. has clearly implicated the applicant also in the commission of the crime. The identity of the applicant was not in the knowledge of the prosecutrix and first informant at the time of lodging of F.I.R., the statement of prosecutrix under Section 161 Cr.P.C. as well as her subsequent statement under Section 164 Cr.P.C. However, the prosecutrix in her statement under Section 164 Cr.P.C. has categorically stated that her modesty was dislodged by three accused serially and forcibly.

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When the prosecutrix was examined by court below as P.W.-1, she has reiterated her earlier statement under Section 164 Cr.P.C. As such, the prosecutrix has remained consistent. The prosecutrix has also been cross-examined by defence but no such material could be culled out from her, on the basis of which, her credibility and reliability could be dislodged.

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No malafide has been alleged against the prosecutrix either. As such, there is no material before the Court on the basis of which it could be inferred that prosecutrix has attempted to falsely implicate the applicant in the crime in question. The

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testimony of prosecutrix is prima-facie devoid of any exaggeration, embellishment or contradiction. When the testimony of the prosecutrix as recorded before court below is examined alongwith her previous statement under Section 164 Cr.P.C. it is apparent that the prosecutrix has remained consistent about the manner in which criminality was committed upon her. It is thus clear that in view of the statement of prosecutrix something more than mere complicity of applicant is established in the crime in question.

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When the testimony of the prosecutrix is examined in the manner, as adopted by Court in judgements referred to above, this Court has not come across any such material to conclude that Court below has not exercised it's jurisdiction "diligently" or applicant has been summoned by Court below in a "casual and cavaliar manner" . Testimony of P.W.1, Ms. Rabiya (prosecutrix) falls in the realm of legal evidence inasmuch as P.W.1 has also been cross-examined. Her evidence is "strong and cogent " and satisfies the twin tests laid down by Constitution Bench in paragraph 106 of the judgement in Hardeep Singh (Supra) . Something more than mere complicity of applicant in the crime in question clearly stands established as per testimony of P.W.1.

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For the facts and reasons noted above, this Court does not find any good ground to interfere in this application. Court below has not committed any jurisdictional error in passing the impugned order. Resultantly present application lacks merit and is, therefore, liable to be dismissed.

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It is, accordingly, dismissed. Cost made easy.

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Order Date :- 12.7.2022/YK

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Digitally signed by YASHWANT KUMAR Date: 2022.07.21 10:37:30 IST Reason: Location: High Court of Judicature at Allahabad

Nasim v. State of U.P. and Another

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Nasim v. State of U.P. and Another

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