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2016 DIGILAW 1966 (ALL)

AZHAR v. STATE OF U. P.

2016-05-20

VIJAY LAKSHMI

body2016
JUDGMENT : Hon'ble Mrs. Vijay Lakshmi,J. By means of this revision, the revisionist has challenged the legality and correctness of the order dated 30.1.2010 passed by Additional Sessions Judge/F.T.C. No. 2, Saharanpur in Sessions Trial No. 500 of 2009 ( Strate Vs. Chand and others) under Sections 376 I.P.C., Police Station Mandi, Saharanpur whereby the learned trial court has allowed the application moved under Section 319 Cr.P.C. for summoning the revisionist as accused under Section 376 I.P.C. in the aforesaid sessions trial. The submission of learned counsel for the revisionist is that the learned court below, without applying its judicial mind and without considering the entire evidence on record, has passed the impugned order for summoning the revisionist. Learned counsel has further submitted that the revisionist is innocent and he has been falsely implicated in this case; there is not a single evidence available against him on record; Section 376 I.P.C. is not made out against him. Hence he has prayed that the impugned order which is totally illegal, arbitrary and against the law be set aside. Learned A.G.A. has opposed the revision by submitting that the trial court has rightly summoned the revisionist and there is no illegality in the order impugned. Heard and perused the record. Some background facts in brief are that on the basis of an F.I.R. lodged on 28.3.2009 by the mother of the prosecutrix against three accused persons namely (i) Chand (ii) Zeeshan and (iii) Alla Diya alleging gang rape of her 12 - 13 years old daughter by all of them. A criminal case was registered against the aforesaid 3 accused under Sections 363, 366 and 376 I.P.C. and after investigation the police submitted charge-sheet against the aforesaid three accused persons. The trial commenced against them and during trial, the name of revisionist was also surfaced in the statement of prosecutrix who assigned him the specific role of committing rape. In her statement recorded under Section 164 Cr.P.C. also, she named the revisionist alleging that he committed rape several times with her. After the testimony of the prosecutrix, an application was moved under Section 319 Cr.P.C. by the prosecution that the revisionist should also be summoned to face trial alongwith other accused persons. In her statement recorded under Section 164 Cr.P.C. also, she named the revisionist alleging that he committed rape several times with her. After the testimony of the prosecutrix, an application was moved under Section 319 Cr.P.C. by the prosecution that the revisionist should also be summoned to face trial alongwith other accused persons. The trial court after hearing both the parties and considering the facts and circumstances summoned the revisionist Azhar to face trial as an accused under Section 376 I.P.C. Aggrieved by the aforesaid order, the revisionist has preferred this revision praying that the impugned order be set aside. In support of his arguments, learned counsel for the revisionist has placed reliance on the case of Mohd. Shafi vs. Mohd. Rafiq and another (2007) 14 SCC 544 in which the Hon'ble Apex Court has held that before exercising its jurisdiction under Section 319 Cr.P.C., a Court must arrive at a satisfaction that there exists a possibility that the accused so summoned, in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness or the court concerned may also like to consider other evidence available before it. Per contra learned AGA has opposed the prayer of the revisionist by submitting that after the decision, rendered by Constitution Bench of Hon'ble Apex Court in Hardeep Singh's case, the aforesaid case of Mohd. Shafi is no longer a good law. The revision is without any force and is liable to be dismissed at the admission stage itself. The learned A.G.A. has drawn the attention of this Court to the statements of the prosecutrix and has contended that she has categorically stated that the revisionist had committed rape several times, therefore, the court below has not committed any mistake by summoning the revisionist to face trial alongwith other co-accused persons. The learned A.G.A. has drawn the attention of this Court to the statements of the prosecutrix and has contended that she has categorically stated that the revisionist had committed rape several times, therefore, the court below has not committed any mistake by summoning the revisionist to face trial alongwith other co-accused persons. Having heard learned counsel for the revisionist and learned A.G.A. and keeping in view the facts and circumstances of the case, this Court is of the considered view that the instant revision is liable to be dismissed at the admission stage itself for the following reasons:- A Five Judges bench of Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others [2014 (1)JIC 539 (S C)] has set at rest the entire controversy with regard to the scope and extent of Section 319 Cr.P.C. which had arisen due to variety of views having been expressed by several High Courts and also by the Supreme Court. Noticing the conflicting views between the two judgements of the Hon'ble Supreme Court in the case of Rakesh vs. State of Haryana, 2001 (2) JIC 757 (SC) : AIR 2001 SC 2521 ; and Mohd. Shafi vs. Mohd. Rafiq & another, 2007 (2) JIC 490 (SC), a doubt was expressed about the correctness of Mohd. Shafi's case (supra) which led to the framing of following five questions by Constitutional Bench in Hardeep Singh case:- 1.What is the stage at which power under Section 319 Cr.P.C. can be exercised? 2.Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? 3.Whether the word "evidence" used in Section 319 (1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? 4.What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood convicted? 4.What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood convicted? 5.Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged? Question No. 2 and 4 are relevant for the present case. Answering the aforesaid questions, the Hon'ble Constitutional Bench of Supreme Court expressed its clear view that neither cross-examination of witness is required before summoning an additional accused under section 319 Cr.P.C., nor any categorical finding to the affect that in all likelihood the person summoned may be convicted, is necessary before exercising such power. According to Hon'ble Apex Court:- "What is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub section (4) of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses. Therefore, even on the basis of Examination-in-chief, the court can proceed against a person as long as the court is satisfied that the evidence appearing against such person prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by cross-examination, undoubtedly in itself, is an evidence. In view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination-in-chief and Court does not need to wait till the said evidence is tested on cross-examination. There is no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused. There is no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused. Though under Section 319 (4) (b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge." In wake of the above cited legal position and the guidelines of Hon'ble Supreme Court quoted above, there appears no substance in the arguments advanced by learned counsel for the revisionists that the revisionist has been wrongly summoned without cross-examination of witnesses and without any express view by the court below that there is likelihood of his conviction. Therefore, the revision has no force and it is accordingly dismissed. However, considering the submissions advanced by learned counsel for the revisionists, it is directed that in case the revisionist appears before the court concerned within thirty days from today and apply for bail, the same shall be heard and disposed of expeditiously by the courts below in view of the settled law laid by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2005 Cr.L.J. 755 and affirmed by Hon'ble Apex Court in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.