Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3324 (ALL)

Rajesh Yadav v. State of U. P.

2016-09-28

VIJAY LAKSHMI

body2016
JUDGMENT Mrs. Vijay Lakshmi,J. Heard learned counsel for the applicant and learned A.G.A. for the State. Perused the records. This revision has been preferred against the judgment and order dated 30.6.2016, passed by the Additional Sessions Judge, Court No.1, Chandauli in Sessions Trial No.15/2015, State Vs. Lalta @ Pintu Yadav &Ors, arising out of Case Crime No.44/2015, under Sections 363,366,376-Gha,323 I.P.C. and Section 4 of POCSO Act, whereby the learned trial court has allowed the application moved by the O.P. No.2, under Section 319 Cr.P.C. and has summoned the revisionist to face trial along with the co-accused Sonu Yadav. Learned counsel for the revisionist has submitted that the learned court below has passed the impugned order in an unjust, improper and arbitrary manner without any application of mind, the revisionist has not committed the alleged crime. It is further submitted that the prosecutrix was having wilful illicit relations with main accused Lalta @ Pintu Yadav since long and she was pregnant on the date when the first information report was lodged. With a desire to live with Lalta @ Pintu Yadav, she had gone to Cantt.Station for going to Rajasthan, where on the Railway Station she was caught. Learned A.G.A. has opposed the revision by drawing the attention of this Court to the statement of P.W.1 the complainant i.e. father of the prosecutrix and P.W.2, the prosecutrix herself, recorded during the trial, copy whereof has been annexed as Annexure-5 to the affidavit and also to the statement of the prosecutrix recorded under Section 164 Cr.P.C., copy whereof has been annexed as Anexure-4. In both these statements she has categorically stated about the actual participation of the revisionist, in committing her rape along with Pintu Yadav and Sonu one after another. Placing reliance on the law laid down by the Hon'ble Supreme Court in Hardeep Singh's case Learned A.G.A. has submitted that at the stage of summoning an additional accused under Section 319 Cr.P.C. only that much evidence is required which is required at the stage of framing charge. Placing reliance on the law laid down by the Hon'ble Supreme Court in Hardeep Singh's case Learned A.G.A. has submitted that at the stage of summoning an additional accused under Section 319 Cr.P.C. only that much evidence is required which is required at the stage of framing charge. 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 in some earlier decisions. 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's 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 and 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." Considering the facts as narrated by the prosecutrix in her statement recorded in court during trial, corroborated by her statement recorded under Section 164 Cr.P.C. and in wake of the above cited legal position, there appears no substance in the arguments advanced by learned counsel for the revisionist that the revisionist has been wrongly summoned without application of mind. The revision lacks merit and is liable to be dismissed at the admission stage itself. The revision is accordingly dismissed.