Revision against a trial court order summoning the school owner under Section 319 CrPC on the application of the co-accused, in a case of sexual assault of a five-year-old pupil. The victim's statements identified a second person wearing spectacles. The High Court held the summoning was proper and dismissed the revision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Reserved Judgement
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision (CRLR No. 89 of 2019)
Mani Pushpak Joshi … Revisionist Versus State of Uttarakhand … Respondents
Present: Mr. Ramji Srivastava, Advocate for the revisionist Mr. A.K. Sah, AGA along with Mr. Sachin Panwar, Brief Holder for the State of Uttarakhand.
Reserved on : 27.02.2019 Delivered on : 03.04.2019
Hon’ble Sharad Kumar Sharma, J.
This is a Criminal Revision, which has been preferred by the revisionist as being aggrieved against the order dated 20.02.2019, as rendered by the Fast Tract Court/Additional Sessions Judge, POCSO, Haldwani, whereby the learned Sessions Judge while exercising his powers under Section 319 of the Code of Criminal Procedure, has summoned the revisionist for his alleged involvement in the commission of an offence under Section 376(2) of IPC to be read with Section 5/6 POCSO Act. Before going into the controversy and as argued by the learned counsel for the revisionist, certain essential facts are required to be dealt with so as to come to a logical conclusion with regard to the propriety of the summoning order under challenge dated 20.02.2019.
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teacher, working in a school, being run and managed by Ankit Joshi are said to have been involved in physically molesting a minor girl student of only 5½ years age, of the school run under the name and style of “Aurum The Global School, Haldwani”.
**c;ku ihfM+rk gjyhu dkSj mQZ ckuh D/o ckuh gjizhr flag R/O fu;j PWD xsLV gkml uSuhrky jksM gY}kuh ftyk&uSuhrky mez lk<s ikaWp lky us iwNus ij crk;k fd vkaVh eSa vkSje n Xykscy Ldwy gY}kuh esa Dykl QLVZ esa i<rh gWwaA eSa tc dy Ld **w** y x;h Fkh ¼fn0 18@04@17 dks½ rks eSaus viuk Ldwy cSx lqcg viuh Dykl esa j[[k blds ckn eSa okW”k:e pyh x;hA okW”k:e esa dksbZ ugha Fkk mlh le; ogkWa cCyw fc’V vady vk;s mUgksaus esjk Cywej ¼isUVh½ uhps iSajks ds ikl rd mrkjh vkSj esjh LdVZ Hkh mrkjh vkSj mlds ckn mUgksaus esjs iwjs “kjhj Nkrh ij] cxy esa] dku ds ikl iSjksa esa isV esa vius gkFkksa ls Nqvk o esjh ;ksuh esa ¼vius gkFk ls viuh ;ksuh dh rjQ b”kkjk dj cksyh viuh vaqxyh Mkyus yxs] mUgksaus vaxqyh vanj ckgj dh ,slk mUgksaus dbZ ckj fd;k eq>s dkQh nnZ gqvk ij eq>s muls Mj
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yxrk gSA dqN feuV ckn vady okW”k:e ls pys x;s fQj eSaus VkW;ysV dh o vius diM+s [kqn gh igus vkSj viuh Dykl esa vk x;hA eSaus ;s ckr viuh DyklVhpj “khuk eSe dks Hkh crk;h] mUgksaus fQj irk ugha fdldks crk;k “khuk eSe cCyw vady dks <wa< jgh Fkh ij oks ugha feys fQj irk ugha D;k gqvk fQj eSa i<kbZ djus yx x;h eq>s dkQh nnZ gks jgk FkkA tc eSa ?kj ij vk;h rks eSa jks jgh Fkh rc ikik us iwNk rks eSaus vius ikik dks cCyw vady dh lkjh ckr crk;h ogkWa ij eEek Hkh Fkha vkaVh cCyw vady igys Hkh esjs lkFk ,slk gh djrs Fks rhu fnu igys Hkh mUgksaus ,slk gh fd;k Fkk tc ls QLVZ Dykl esa vk;h gwa rhu ckj ,slk gh dj pqds gSa**
Wherein, in her statement, she has submitted that she is a student of class-1 and she has stated that the said incident of physical exploitation had been continued on her by the accused persons for couple of months together. The statement of victim was also recorded under Section 164 of Cr.P.C. as recorded before the learned Magistrate on 24.04.2017 which is
reproduced hereunder:-
us c;ku fn;k fd eSa Ldwy igqWphA viuk cSx j[kkA viuh cksry j[khA eSaus FkksM+h nsj Dykl esa cSBhA eSaus gkFk vkxs djds eSMe ls iwN “Mam Can I go to washroom?” fQj eSa okl:e x;hA eSa gSUMokl dj jgh FkhA fQj eSa Dykl:e esa x;hA fQj oks nksuksa vk;s FksA eq>s uke ugha ;kn vk jgkA ,d fcuk specs okyk Fkk vkSj ,d specs okyk FkkA oks nksuksa eq>s ys dj x;sA fQj specs okys us eq>s gkFk iSj ls idM+kA fQj fcuk specs okys us eq>s touch fd;kA fcuk specs okyk eqys okyk touch djrk jgkA eq>s mlus lq&lq (private parts) dh txg touch fd;kA esjh frock mrkj dj lq&lq dh txg touch fd;kA fcuk specs okys us vk/kk M.Mk dkV dj vUnj ckgj lq&lq dh txg ij fd;k ftlls eq>s cgqr rst nnZ gq;hA mlds lkeus gh eSaus frock iguhA fQj fcuk specs okys us esjh Belt yxk;hA fQj fcuk specs okys us esjh Buttons [kksy dj T-Shirt mrkjh vkSj lhuk press fd;kA (Demeanour – while stating above, the girl was pointing towards her chest/breast and showed how the concerned person was pressing her chest, basically nipples area.) fcuk specs okys us eq>s T-shirt iguk nhA fQj fcuk specs okys us lq&lq okyh txg vkSj lhus dks touch fd;kA fQj eSa cgqr tksj ls ph[kh rks lkjh eSe vk x;hA fQj oks nksuksa Mj ds ekjs Hkkx x;sA oks nksuksa Hkh esjs lkFk ph[k jgs FksA fQj esjh eSe vk;h vkSj eq>s ys dj pyh x;ha Dykl esaA eSaus dgk Help! Help! Cgqr rst dgk fQj lkjh eSae vkdj eq>s ys x;hA mu nksuksa us eq>s THREE DAYS LION dh rjg Mjk;kA oks dgrs Fks fd rw lksrh jguk jkst] eSa rsjs HkkbZ dks vkdj ekj nwaxk pqi pkiA mu nksuksa us eq>s igys Hkh touch fd;k FkkA fcuk specs okys us M.Ms ls vkSj maxyh (Fingers) ls lq&lq okyh txg ij fd;kA eq>s rst nnZ gqvkA cgqr rst dj jgk Fkk oksA eSaus eEeh&ikik dks ?kj ij vkdj crk;kA oks 5 times ,slk djrs FksA [kkyh esjs lkFk Nqi&Nqi ds fd;kA oks yksx Ground esa Nqi ds djrs FksA fcuk specs okys us esjh eyes esa cgqr rst viuh fingers vUnj ckgj djhA eq>s cgqr nnZ gqvkA mUgksus rod dk M.Mk tSlk FkkA
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She has reiterated the nature of allegations and the offences as narrated in the FIR, as well as in her statement recorded under Section 161 Cr.P.C. Her statement under Section 164 was certified by Court concerned. However, this Court on reading the statement of the victim under Section 161 Cr.P.C. and under Section 164 Cr.P.C. there had been no inconsistency about the set of allegation levelled by her against the accused persons.
“i. The IO deliberately did not conduct the TI Parade.
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statement under Section 164 Cr.P.C., the victim has stated that there were two persons and the one, who was putting on the specs, was too involved in commission of the said offence.
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offence so as to arrive at a rightful conclusion so that complete justice be done, and all other accused who irrespective of they being influential person may not succeed to escape trial and hence he had submitted that the Court has been bestowed with sufficient powers under Section 319 of the Code of Criminal Procedure, wherein the Court, after going through the material on record, if the Court comes to a conclusion that there has been even remotest possibility of involvement of another person who can be equally responsible for the commission of offence, though may not have been named in the FIR or may not have been charge sheeted he too could be summoned by the Court.
“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 subselection (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.”
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of the possibility of the involvement of the another person in the commission of an offence, it is always that after the satisfaction being recorded by the Court, it may proceed against such person by summoning him under Section 319 of Cr.P.C. so as to do complete justice, though Section 319 of the Cr.P.C. may be circumscribed with certain restrictions.
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to ultimately ventured and find out the involvement of the actual accused persons so that the truth may prevail and the accused persons may not escape trial due to their social influence which they exercise.
“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.
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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.
Q.(v) In what situations can the power under this section be exercised: Not named in FIR; Named in the FIR but not charge-sheeted or has been discharged?”
“2. In this case, appellant is aggrieved because a counsel engaged by him was not allowed by the High Court to conduct prosecution in spite of obtaining a consent from the Public Prosecutor concerned. First respondent was the accused in the sessions trial wherein appellant wanted his counsel's active role to be played. Appellant and respondent are advocates practicing at the same station. The grievance of the appellant developed in the following fact situation:
Appellant is the brother of five sisters, and the youngest among them, Suman, had secured creditable academic laurels. She was given in marriage to Dr. Dinesh Kumar Gupta (the son of the respondent). But about 4 months after her marriage she met with a tragic death by burns. On a complaint lodged by the appellant, FIR under Section 302 and 120-B of the Indian Penal Code (IPC) was registered by the local police against the respondent. But after completion of the investigation a charge-sheet was laid against him for the offence under Section 304-B of the Indian Penal Code.
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engaged by any private party. It limits his role to act in the court during such prosecution "under the directions of the Public Prosecutor". The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the Court permits him to do so.
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be engaged by the prosecution in spite of obtaining the consent from the public prosecutor conducting the case.
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“9. Following the rationale of judgments of Supreme Court extracted herein above and expressing our agreement with the view informed in the decision reported in 2001 Crl. LJ 4370, this Court would direct as follows:
(i)The order of learned Judicial Magistrate IV Salem, passed in C.M.P.No.2423 of 2010 in CC.No.161 of 2009 on 14.10.2010, is set aside.
(ii)It would be open to first respondent/de facto complainant to move a petition u/s.301 Cr.P.C. to assist the prosecution. Such application shall be considered by Court below on merits.
(iii)In the event of first respondent/de facto complainant being permitted to assist the prosecution, it would be open to her to bring to the notice of the Public Prosecutor the need for moving a petition u/s.319 Cr.P.C. It would then be for the Public Prosecutor to move such petition. In the event of the Public Prosecutor being of the view that it is not a fit case for moving a petition u/s.319 Cr.P.C., the remedy for respondent/de facto complainant would be by way of filing a petition u/s.482 Cr.P.Cinforming her grievance.
(iv)If and when Court below decides to exercise powers u/s.319 Cr.P.C. on petition made before it or suo motu, it would be duty bound to follow the procedure informed therein.”
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complainant would be by way of filing of C482 application. In fact, this judgement too was not dealing with the issue and the ratio as involved in the present case with regard to the entitlement of the accused/applicant for filing of an application under Section 319 of Cr.P.C. which was altogether based on different facts as involved in the instant case.
“6. Firstly, he has contended that no permission was taken by the private counsel from the court to move an application under Section 319 Cr.P.C. which is violation of the provisions of section 301 Cr.P.C. and for this reliance has been placed upon the Judgment of Dhariwal Industries Limited Vs. Kishore Wadhwani and others 2017 (1) SCC (Cri) 116.
15. By a bare reading of this provision, it is apparent that, if any, private person instructs his pleader/counsel to prosecute any person in any court, he shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor and not directly. In the above citation relied upon by the learned counsel for the revisionists, it is made clear that role of the complainant is limited under Section 301 of the Code. He cannot be allowed to take over control of the prosecution by directly addressing the Court, but he shall act under the direction of A.P.O., in-charge of the case. There is no denying the fact that in Sessions Trial Cases, the Government Advocate is known as D.G.C. (Crl.) who conducts the prosecution and in case, the complainant of the case wants to engage a private counsel, such a counsel will have right to proceed in the case only through the learned D.G.C. (Crl.) and not directly. In the estimation of this Court, this position of law is
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affirmed by the above citation relied upon by the learned counsel.”
Even if para 7 of the said judgement is taken into consideration, yet too it could be inferred that it is not create an absolute bar in entertaining the application under Section 319 but only lays down certain parameters which are to be followed by the trial Court for summoning of any person whom during the course of the trial and based on the evidence and material on record comes to the conclusion that there is a probability of conviction of the person so sought to be summoned in a particular case. If the rational of the para 7 of the said judgement is made applicable in the light of the surrounding circumstances of the present case, when the accused applicant moved an application for summoning the revisionist
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whose presence was shown to have been depicted by the victim in her statement under Sections 161 and 164 Cr.P.C. it is not that the Court has straightaway considered the application and had passed the impugned order. Rather to the contrary, records reveal that the Court has placed the application under Section 319 pending to be considered for passing of an appropriate order only after the appraisal of the evidence on record and their necessity to summon the person. Meaning thereby, that here too the Court had apply its mind, considered the evidence and the circumstances and in particular, the statement of victim, who was a small girl of 5½ years of age, who has, in her statement consistently maintained her stand that the present revisionist too was present at the time when the offence under Section 372(2) was committed on her. Hence also, the impugned order do not suffer from the defect pertaining to taking of cognizance of an application under Section 319 filed by the accused/applicant because this Court is of the view that the source of the information would not be relevant in order to arrive at a logical conclusion and in order to meet the intention of the legislature that any person who could be convicted for commission of an offence should not be left scot-free. Hence, summoning the revisionist by the trial Court cannot be faulted with. Hence, this ratio as propounded in para 7 of the said judgement is of no assistance for the revisionist.
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commission of an offence and also as per the statement of the father of the victim i.e. PW-1 who while referring on the statement of the victim under Section 164, has also supported the stand with regard to the presence of the second person who was putting on the specs and he has submitted that he was the owner of the School i.e. present revisionist. The learned trial Court, while considering the statements of PW-1 and PW-2 i.e. the victim and the complainant, in fact, had before passing any order on the application under Section 319 had considered the statement to the effect of the victim herself and has identified the present revisionist through his photographs which were placed on record.
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Court for the necessity to summon the revisionist cannot be faulted, because this Court is of the view that the learned trial court has got all wisdom and power under Section 319 that for a conclusion of a logical trial it has right to call upon any person whom the Court feels that there could be a possibility, and could be a person guilty of the commission of an offence, source of information would obviously depend on the material placed before the Court, which is quite apparent in the present case that from the finding recorded that there were sufficient material before the trial Court which were considered in quite detail and with reasons, to exercise its power under Section 319 of Code of Criminal Procedure. To controvert and to question the validity of the judgement impugned in the revision, the learned counsel for the revisionist has submitted that so far as the language under Section 319 is concerned for the purposes of the initiation of the proceedings for summoning of an accused not named in the chargesheet and for being tried for an offence it cannot be initiated on the basis of an application filed by the complainant/accused for summoning the accused who is not named in the FIR or in the chargesheet.
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not being an accused apparently seems to have committed an offence, he could be summoned by the Court based on the evidence which is produced before the Court.
“6. Section 319 Cr.P.C. provides 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. The Court, thus, during the trial on the basis of any evidence is fully empowered to proceed against any person, whose name was not even included in the F.I.R. or the Charge Sheet. The parameters of exercise of power under Section 319 Cr.P.C has been explained by this Court time and again. It is sufficient to refer to Constitution Bench judgment in Hardeep Singh (supra), where this Court had considered the following issue amongst others:-
“6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?”
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Labhuji and other two Appellants were also in the jeep. She further stated that Labhuji, Shashikant and Jituji came in the jeep and took her and Natuji to the Police Station, where the police interrogated her and she recorded her statement. Natuji was charged with Sections 363 and 366 Indian Penal Code and Sections 3 and 4 of the POCSO Act.
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having that the application appears to be filed with mala fide intention, has not even been adverted by the High Court.”
(Sharad Kumar Sharma, J.) 03.04.2019
Mahinder/
3 issues framed by the court
Whether the trial court can summon a person not named in the FIR or chargesheet under Section 319 CrPC on an application moved by a co-accused.
Whether the source of the information that triggers the court's power under Section 319 CrPC is relevant.
Whether the trial court's summoning order under Section 319 CrPC read with Section 33(1) POCSO Act warrants interference in revision.
Colour shows how this judgement treated each authority
Hardeep Singh v. State of PunjabRelied on¶14
Hardeep Singh Vs. State of Punjab and others, AIR 2014 (3) SCC 92 · Who else cites this
Shiv Kumar v. Hukam ChandDistinguished¶18
(1999) 7 Supreme Court Cases 467
Murugesan and others v. Malathi and othersDistinguished¶21
Crl. R.C. No. 1164 of 2010
Pankaj Kumar Ra v. State of U.P. and AnotherDistinguished¶24
Criminal Revision No. 2300 of 2013
Labhuji Amratji Thakor v. State of GujaratDistinguished¶33
2018 SCC Online 2547 · Who else cites this
4 provisions across 3 enactments
Mani Pushpak Joshi
State of Uttarakhand
Sharad Kumar Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
