Allowed

Nanhe and 5 Others v. State of U.P. and Anr.

Allahabad HC10 Jul 2023/146/2018

Case brief

AI extract

What is this about?

This revision appeals a summoning order against five individuals under Section 319 Cr.P.C. The revision court held that the Trial Court failed to record cogent evidence linking the appellants to the crime of abduction and enforced restraint. Relying on Supreme Court precedents stating Section 319 is extraordinary, the court found the summoning irrational and set aside the order.

What did the court decide?

The impugned summoning order dated 18.01.2018 passed by the Additional Sessions Judge/Fast Track Court-I, Bahraich is hereby set-aside, and the present revision is allowed.

Nanhe and 5 Others Vs State of U.P. and Anr. — Criminal Trial and Appeal | Allahabad HC (2023)

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Court No. - 29

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Case :- CRIMINAL REVISION No. - 146 of 2018

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Revisionist :- Nanhe And 5 Others

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Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Bal Krishna Shukla Counsel for Opposite Party :- Govt. Advocate,Manoj Kumar Singh

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Hon'ble Mrs. Renu Agarwal,J.

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Heard Mr. Bal Krishna Shukla, learned counsel for the revisionists, Mr. Manoj Kumar Singh, learned counsel for opposite party No. 2 and learned AGA for the State.

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Instant revision is preferred under Section 397/401 Cr.P.C. against the impugned summoning order dated 18.01.2018 passed by Additional Sessions Judge/Fast Track Court-I, Bahraich in Sessions Trial No. 345 of 2014 (State Vs. Ramu) in case crime No. 463 of 2013, under Section 363, 366, 376 I.P.C. Police Station-Kotwali Dehat, District-Bahraich summoning the revisionists under Section 319 Cr.P.C. to face the trial.

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It is submitted that impugned summoning order dated 18.01.2018 is illegal, arbitrary and malafide and is passed without application of judicial mind. There is no evidence which goes to show that revisionists were involved in the alleged crime. Prosecutrix is major girl aged about 19 years, according to the medical examination. Hence, no case under Section 363, 366 I.P.C. is made out against them. It is next submitted that there is sharp contradiction in the statement of

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prosecutrix recorded under Section 161 and 164 Cr.P.C. It is further submitted that initially F.I.R. was lodged against the revisionists as well as main accused Ramu and general allegations were levelled against revisionist. After thorough investigation, Investigating Officer did not find any cogent and credible evidence against the revisionists and the Investigating Officer dropped the name of revisionists and no charge-sheet was filed against the revisionists. In the statement recorded under Section 164 Cr.P.C., prosecutrix made no allegations against revisionists, hence there is no evidence available on record to summon the revisionists in exercise of the extraordinary power under Section 319 Cr.P.C., therefore, it is prayed to set-aside the impugned order.

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On the contrary, learned counsel for opposite party No. 2 submitted that in the statement recorded during the trial, P.W.-1 and P.W.-2 deposed in court and submitted that revisionists were also involved in the crime and they assisted main accused Ramu.

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I perused the record and heard the rival submissions advanced by learned counsel for the revisionists, learned counsel for opposite party No. 2 and learned AGA for the State. From the contents of F.I.R., it goes to show that the sister of complainant was missing, when he inquired about the whereabouts of his sister from Nanhe at the gate of jail, he told

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that Ramu and prosecutrix have gone together. Then complainant reached to the in-laws of Nanhe and inquired about the sister of complainant from Shyamu and his wife. There is no allegation against the present revisionists in F.I.R. except that they did not cooperate in the search of the sister of complainant. Prosecutrix’s, in the statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C., submitted that main accused Ramu enticed her away towards School and he brought her to Lucknow from Bus. There is no allegation against anyone except Ramu. It is specifically mentioned by prosecutrix in her statement recorded under Section 161 Cr.P.C. that none other than Ramu assisted in her abduction. In her statement recorded under Section 164 Cr.P.C., prosecutrix named revisionist Sunita and Sanju for the first time. The role of revisionists Sunita and Sanju, as disclosed in her statement, that they brought her to the house of Ramu pretending to take her to her house. There is no allegation that revisionists Sunita and Sanju handed over prosecutrix to Ramu, she was left alone in the courtyard of main accused Ramu. There is no allegation against revisionist Nanhe, Jagat Ram, Shyamu and Komal in the statement of prosecutrix recorded under Section 161 Cr.P.C. and 164 Cr.P.C. for the first time in the statement recorded during trial. P.W.-1 stated on oath in his statement that prosecutrix told him that Ramu, Sunita, Sanju, Komal, Jagat Ram, Nanhe and Shyamu assisted

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in her abduction. Prosecutrix in her statement recorded during trial stated that when she accompanied Ramu, Jagat Ram, Sunita, Shyamu, Komal, Nanhe and Sanju and many other persons were present. Mere presence at the time when she went with main accused Ramu do not presupposes that they assisted or planned the abduction of prosecutrix.

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Learned Trial Court did not consider the evidence procured during investigation and merely on the basis of statement of P.W.-1 and P.W.-2 summoned the present revisionist invoking the jurisdiction under Section 319 Cr.P.C. which is reproduced herein below:-

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“ 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 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 a fresh, and the 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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Hon’ble Apex Court in case of Vikas Rathi vs. The State Of Uttar Pradesh reported in 2023 LiveLaw SC 172 held that the court should not exercise the extraordinary power casually. Hon’ble Apex Court held in case of Hardeep Singh vs State Of Punjab & Ors. reported in 2014 (3) SCC 92 held that line for border understanding of evidence and application of Section 319 Cr.P.C. during inquiry should be taken in the correct perspective to be exclusively exercised when strong and cogent evidence is available. In Sukhpal Singh Khaira Vs. State of Punjab, the Constitution Bench refreshed the guidelines that the competent court must follow while exercising power under Section 319 Cr.P.C. It was ruled that :

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"(i) if the competent court finds evidence or if application under Section 319 Cr.P.C. is filed, regarding involvement of any other person in committing the offence based on evidence “recorded at any stage in the trial” before passing of the order on acquittal or sentence, it shall pause the trial at that stage and the Court shall proceed to decide the fate of the application under Section 319 Cr.P.C.;

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(ii) if the Court decides to summon an accused under Section 319 Cr.P.C.,

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such summoning order shall be passed before proceeding further with the

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trial in the main case and depending upon the stage at which the order is passed, Trial Court shall apply its mind to the fact as to whether such summoned accused is to be tried along with other accused or separately; and

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(iii) if the power under Section 319 Cr.P.C. is not invoked or exercised in the main trial till its conclusion and if there is a splitup case, such power can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the spiltup (bifurcated trial)."

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Hon’ble Apex Court through joint reading of above matters concluded that power of summoning under Section 319 Cr.P.C. should not be exercised in a routine manner, more over prima facie case is sine-qua-none for summoning an additional accused. Adverting to the present matter the present revisionists are not named in the F.I.R. only it is referred that when the complainant was inquiring about his sister, the revisionists were not found in their house and during investigation, no specific allegation of abetting or assisting by present revisionist is mentioned, only the presence of revisionist is mentioned by victim and she remained with main accused Ramu for about one month.

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Learned Trial Court did not consider the fact that for the first time in the evidence during trial, prosecutrix mentioned the presence of present revisionist, however, in her statement under Section 161 Cr.P.C., she specifically stated that none other than

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Ramu was present at that time.

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Learned Trial Court did not pay any heed to the fact that prosecutrix remained with main accused Ramu for one month. Learned Trial Court did not give the cogent reason to summon the revisionist to face the trial, hence, the order of Trial Court suffers from irregularity and illegality and the impugned order dated 18.01.2018 is liable to be set-aside.

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In view of the discussions as above, present revision is allowed .

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Order dated 18.01.2018 passed by Additional Sessions Judge/Fast Track Court-I, Bahraich in Sessions Trial No. 345 of 2014 in case crime No. 463 of 2013 under Sections 363, 366, 376 I.P.C. Police Station-Kotwali Dehat, District-Bahraich is hereby set-aside.

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(Renu Agarwal,J.)

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Order Date :- 10.7.2023 Karan

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Digitally signed by :- KUMAR KARAN RAO High Court of Judicature at Allahabad, Lucknow Bench

Nanhe and 5 Others v. State of U.P. and Anr.

Case brief

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Nanhe and 5 Others v. State of U.P. and Anr.

Case brief

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