Dismissed

Pushpraj Singh Chauhan v. State of Uttarakhand

Uttarakhand HC2 Sept 2021CRLR/60/2021

Case brief

AI extract

What is this about?

The High Court dismissed the revision petition challenging the trial court's order summoning additional accused under Section 319 CrPC. The Court held that evidence recorded during the trial supported their complicity, making the summoning lawful.

What did the court decide?

Revision petition dismissed; order dated 24.02.2021 upholding summons of additional accused under Section 319 CrPC affirmed.

Pushpraj Singh Chauhan Vs State of Uttarakhand — Uttarakhand HC (2021) — LawSathi Research

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Reserved Judgment

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Revision No.60 of 2021 (U/s 397/401 of the Code of Criminal Procedure)

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Pushpraj Singh Chauhan 2. Manoj Kumar

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……. Revisionists

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Versus

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State of Uttarakhand 2. Sunita W/o Mukesh Kumar

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..…. Respondents

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Date when Reserved: August 25, 2021 Date of Pronouncement: September 02, 2021

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Mr. Abhishek Verma, Advocate, for the revisionists. Mr. Rohit Dhyani, learned Brief Holder for the State-respondent no.1. Mr. Bhupesh Kandpal, Advocate, for respondent no.2.

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Hon’ble R.C. Khulbe, J .

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This revision, preferred under Sections 397/401 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as ‘the Cr.P.C’) is directed against the order dated 24.02.2021 passed by learned Special Judge (POCSO)/Additional Sessions Judge, Haridwar in an application moved by the complainantrespondent no.2 (Paper No.38Kha) under Section 319 of the Cr.P.C. in Special Sessions Trial No.179 of 2019, State v. Naveen Kumar.

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Facts necessary to resolve the controversy involved in this revision are that respondent no.2 gave a report on 29.08.2019 at P.S. Bhagwanpur against the accused Naveen Kumar. On the basis of said application,

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FIR No.0383 of 2019 was registered against the said accused Naveen Kumar. In the report, it was alleged that the informant’s daughter was pursuing Class X education from C.M.D. Inter College, Churiyala, Tehsil Bhagwanpur, District Haridwar. Near about the first week of December, 2018, the informant’s family noticed that her daughter remained scared and absent minded, and every day, she would refuse to go to school. However, the informant, after persuading her daughter, would send her to the school. On 10.12.2018, informant found a mobile phone kept in an almirah. When the informant asked about the said phone from her daughter, she replied that it was given to her by her Social Science Teacher namely Naveen Kumar after intimidating her. On further asking her, she disclosed that for last six months, accused Naveen Kumar was teasing, molesting and humiliating her. She further informed that the accused had threatened her that in case she would disclose this fact to anyone, he would send her father to the jail using his influential links. It is further mentioned in the FIR that when the accused Naveen Kumar was alone in the staffroom, other teachers namely Manoj and Pushpraj (revisionists herein) would coerce her daughter to go to the accused Naveen Kumar on one pretext or the other. With these averments, the FIR was lodged.

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After registration of the FIR, statement of prosecutrix was recorded under Section 164 of the Cr.P.C. before the Third Judicial Magistrate, Haridwar. On culmination of investigation, a charge-sheet was submitted by the Investigating Officer against the

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accused Naveen Kumar for the offences under Section 354 IPC as well as under Section 9(f)/10 of the POCSO Act. The cognizance was taken by learned Special Judge (POCSO), Haridwar, and charges were framed against the accused.

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The prosecution, in order to prove its case, produced the victim as PW1 whereas her mother (informant) was examined as PW2.

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During pendency of trial, an application (paper no.38-kha) was moved by the complainant under Section 319 of the Cr.P.C. The learned Special Judge (POCSO), Haridwar, vide the impugned order dated 24.02.2021, has allowed the said application and summoned the present revisionists, namely, Manoj Kumar and Pushpraj Singh Chauhan to face the trial. Being aggrieved and dissatisfied with the said order passed by the Court below, the present revision has been preferred before this Court.

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I have heard learned Counsel for the respective parties at length and also carefully perused the entire material available in the record of this case.

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Learned counsel for the revisionists has argued that the revisionists are not named in the FIR; even there was no evidence which could be collected by the I.O. during investigation against them, and for this very reason, charge-sheet was submitted only against the accused Naveen Kumar; even the prosecutrix, in her statement recorded u/s 164 Cr.P.C., did not take the name of revisionists; it is a subsequently developed story; the revisionists have wrongly been summoned, as in

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order to summon a person u/s 319 Cr.P.C., there must be availability of cogent evidence against him, which, in the present case, is missing; the Trial Court thus fell into error in summoning the accused; and hence, the order under challenge deserves to be set aside.

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On the other hand, learned State Counsel as also learned Counsel appearing on behalf of respondent no.2-informant have vehemently opposed the revision and submitted that in the FIR, there is a clear cut allegation against the revisionists; in the evidence also, the prosecutrix has unequivocally deposed that both the revisionists would tease her in the school time; and there is no illegality in the impugned order.

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Before any discussion is made further, it would be expedient to reproduce Section 319 of the Code, which reads as under:-

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“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.

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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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Section 319 of the Code springs out from the dictum judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted). Section 319 is an enabling provision which can be invoked by the Court only if evidence surfaces in the course of an inquiry or trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it. Section 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded in the course of an inquiry or trial. This may happen not merely in cases where despite the name of a person figuring in the course of investigation the investigating agency does not send him up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the inquiry or trial. Once the purport of Section 319 is so understood it is obvious that the scope of its operation or the area of its play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the inquiry or trial. Thus the section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court,

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as held by Hon’ble Supreme Court in the case of Kishun Singh & others v. State of Bihar reported in (1993) 2 SCC 16.

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A Constitution Bench of the Hon’ble Supreme Court in the case of Hardeep Singh v. State of Punjab and others reported in (2014) 3 SCC 92, while considering the scope of Section 319 Cr.P.C., has held as under:

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“ 54 . In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 CrPC.

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55 . Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove.

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56 . There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 CrPC i.e. provisions of Sections 200, 201, 202, etc. CrPC applicable in the case of complaint cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint case is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872 (hereinafter referred to as “the Evidence Act”) comes before the court. There does not seem to be any restriction in the provisions of Section 319 CrPC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the trial (sic or) for the purpose of Section 319 CrPC, if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 CrPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 CrPC at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses are being recorded.

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58 . To answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers under Section 319 CrPC, the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts and material that come up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence. The words as used in Section 319 CrPC indicate that the material has to be “where … it appears from the evidence” before the court.

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59 . Before we answer this issue, let us examine the meaning of the word “evidence”. According to Section 3 of the Evidence Act, “evidence” means and includes:

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“( 1 ) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

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( 2 ) all documents including electronic records produced for the inspection of the court; such documents are called documentary evidence.”

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78 . It is, therefore, clear that the word “evidence” in Section 319 CrPC 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

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the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation.

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85 . 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 Section 319 CrPC. The “evidence” is thus, limited to the evidence recorded during trial.”

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From the law laid down by Hon’ble Apex Court in Hardeep Singh’s case ( supra ), it emerges that- (i) the Court can exercise power under Section 319 Cr.P.C. even on the basis of the statement made in examination-inchief of witnesses concerned; and (ii) Court need not wait till the cross examination of such a witness and the Court need not wait for the evidence against accused proposed to be summoned to be tested by cross examination and to a person not named in the FIR or a person so named in the FIR, but, to have not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C., provided from the evidence it appears that such person can be tried along with accused already facing trial.

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In S. Mohammed Ispahani v. Yogendra Chandak and others reported in (2017) 16 SCC 226, the Hon’ble Supreme Court has held in paragraph no.35 as under: -

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“35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused.”

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Similarly, in the case of Rajesh and others v. State of Haryana reported in (2019)6 SCC 368, the Apex Court has held that even in a case where protest petition stage has gone, in that case also, the Court is not powerless vide Section 319 Cr.P.C., and 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 proposed accused.

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In a recent judgment in the case of ‘ Sartaj Singh v. State of Haryana and another ’ reported in (2021) 5 SCC 337, the Apex Court has discussed in detail the object and purpose of Section 319 Cr.P.C.; the scope and ambit of powers of Magistrate; as to when the additional accused may be added and ‘evidence’ on basis of which they may be added.

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The same Bench of the Hon’ble Apex Court, of-late, in Manjeet Singh v. State of Haryana and others (Criminal Appeal No.875 of 2021 decided on 24.08.2021, relying upon the aforementioned judgments, has held that: -

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“At the stage of exercising the powers under Section 319 of the Cr.P.C., the Court is not required to appreciate and/or enter on the merits of the allegations of the case. The powers under Section 319 Cr.P.C. can be exercised at any stage from commencing of the trial and recording of evidence/ deposition and before the conclusion of the trial at any stage.”

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Now, coming back to the facts of this case, from a perusal of the FIR lodged by PW2 on 29.08.2019, the informant has specifically mentioned the name of both the revisionists i.e. Manoj Kumar and Pushpraj. Although, serious allegations in the FIR have been levelled against accused Naveen Kumar, however, it has clearly been stated in the report that both the revisionists would send the prosecutrix to the accused Naveen Kumar in the staffroom for one reason or the other.

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Although, the prosecutrix did not mention the above facts before the Magistrate where her statement u/s 164 Cr.P.C. was recorded but in the witness box before the Trial Court, the victim has appeared as PW1 where in unequivocal terms, she has stated that both the revisionists i.e. Manoj and Pushpraj would send her to the accused Naveen Kumar.

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She has also stated that both the revisionists used to tease her and they both used to touch her private parts.

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The informant (mother of prosecutrix) also appeared as PW2 before the Trial Court. In her statement, she has fully corroborated the prosecution case and has clearly stated that her daughter (prosecutrix) disclosed to her that both the revisionists Manoj and Pushpraj were teasing her for last six months and at times, they would also touch her breasts.

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On a perusal of the aforesaid statements of PW1 and PW2, it is clear that there exist sufficient evidence for the trial Court to arrive at the satisfaction that revisionists also appear to be guilty of the offence. The trial Court has given cogent reasons for summoning the revisionists.

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Accordingly, applying the law laid down by Hon’ble Supreme Court to the facts of the case in hand, this Court is of the considered opinion that in the facts and circumstances of the case, the trial Court has not committed any error in summoning the revisionists, herein, to face the trial along with accused-Naveen Kumar.

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For the aforementioned reasons, I do not find any illegality, perversity or incorrectness in the order dated 24.02.2021 passed by the Trial Court in an application (Paper No.38Kha) moved by the informantrespondent under Section 319 of the Cr.P.C. in SST No.179 of 2019.

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The revision fails and the same is, accordingly, dismissed.

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However, it is specifically observed that the observations made hereinabove are only prima facie for the purpose of exercising the powers under Section 319 CrPC and the trial Court is directed to decide and dispose of the trial in accordance with the law and on its own merits and on the basis of the evidence to be laid before it.

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All pending application(s) stands disposed of.

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Registry is directed to send a copy of this order to the Court below for compliance.

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(R.C. Khulbe, J.)

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Rdang

Pushpraj Singh Chauhan v. State of Uttarakhand

Case brief

What is this about?

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Pushpraj Singh Chauhan v. State of Uttarakhand

Case brief

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