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2014 DIGILAW 1801 (ALL)

Raksha Ram v. State of U. P.

2014-05-30

ARVIND KUMAR TRIPATHI II

body2014
JUDGMENT Hon'ble Arvind Kumar Tripathi (II), J. 1. Heard Shri Rajeev Kumar Mishra, learned counsel for the revisionists and Shri Sharad Dixit, learned AGA for the State respondent. 2. This criminal revision has been filed by Raksha Ram and Gudiya Devi challenging the order dated 14.11.2013 passed by the learned Sessions Judge, Balrampur in ST No.27 of 2013 arising out of case crime no.146 of 2013, under Sections 363, 366, 376 IPC, Police Station Sadulla Nagar, District Balrampur by which the application filed by the revisionists under Section 319 Cr.P.C. was partly allowed and application for summoning the accused persons, namely, Anoop Kumar Shukla, Ram Niranjan and Kapoor Chandra was rejected. Being aggrieved by the order of rejection of application for summoning Anoop Kumar Shukla, Ram Niranjan and Kapoor Chandra to face trial, this criminal revision has been filed. 3. As per factual matrix of the case, FIR was lodged by Raksha Ram against Sheo Kumar alias Budhe Shukla, Raju Verma and Raju Badhai, under Sections 363, 366 IPC. During trial, the victim was examined and in her statement, she has named Raju Sharma, Ram Charitra, Ram Niranjan, Anoop Kumar Shukla and Kapoor Chandra. After her statement in the court, an application under Section 319 Cr.P.C. was moved for summoning Raju Badhai, Ram Charitra, Ram Niranjan, Anoop Kumar Shukla and Kapoor Chandra for facing trial. The learned Sessions Judge, after hearing the parties, summoned Raju Badhai and Ram Charitra to face trial, but application was rejected for Anoop Kumar Shukla, Ram Niranjan and Kapoor Chandra on the ground that their names did not find place either in the FIR or in the statement under Section 161 Cr.P.C. 4. It was submitted by the learned counsel for the revisionists that the evidence, which is to be considered by the court while deciding application under Section 319 Cr.P.C., is the evidence in court, and only such evidence can be taken into account by the court to decide whether power under Section 319 Cr.P.C. is to be exercised or not. It was further submitted that when on the same set of evidence the court below has summoned Raju Bhadhai and Ram Charitra to face trial, then the court should have summoned Anoop Kumar Shukla, Ram Niranjan and Kapoor Chandra also. 5. It was further submitted that when on the same set of evidence the court below has summoned Raju Bhadhai and Ram Charitra to face trial, then the court should have summoned Anoop Kumar Shukla, Ram Niranjan and Kapoor Chandra also. 5. In the case of Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92 the Apex Court has held in para 52 that "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 Cr.P.C. acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 Cr.P.C. 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 Cr.P.C. at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses is being recorded." 6. In para 71 the Apex Court has further held that "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." 7. The only reason for rejecting the application for Anoop Kumar Shukla, Ram Niranjan and Kapoor Chand is that the names of these accused persons do not find place either in the FIR or in the statement under Section 161 Cr.P.C. This reason is not sufficient to reject the application for summoning them, as the statement under Section 161 Cr.P.C. is not to be considered while deciding the application under Section 319 Cr.P.C., as has been held by the Apex Court in the case Hardeep Singh (supra). 8. 8. For the reasons stated above, the criminal revision is liable to be allowed, and is hereby allowed. The impugned order dated 14.11.2013 passed by the learned Sessions Judge, Balrampur in ST No.27 of 2013 is quashed so far as it relates to Anoop Kumar Shukla, Ram Niranjan and Kapoor Chand. The matter is remanded back to the court below for deciding the same afresh in the light of the observations made above.