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2022 DIGILAW 167 (UTT)

Sarabjeet v. State of Uttarakhand

2022-06-28

RAVINDRA MAITHANI

body2022
JUDGMENT : 1. The challenge in this revision is made to the order dated 09.05.2022, passed in Special Sessions Trial No. 48 of 2021, State vs. Ravish Kumar, by the Court of learned F.T.C./Additional Sessions Judge/Special Judge, POCSO, Rudrapur, District Udham Singh Nagar. By the impugned order, an application filed by the prosecution under Section 319 of the Code of Criminal Procedure, 1973 (“the Code”) has been allowed, and the revisionist no. 2 Jagdish and revisionist no. 3 Shiv Kumar have been summoned under Sections 313, 34, 506 of IPC and Section 16/17 of the Protection of Children from Sexual Offences Act, 2012 (“the Act”). Revisionist no. 4 Dinesh has been summoned under Sections 313, 34, 506, 323 of IPC and Section 16/17 of the Act. The Revisionists Reeta, Neetu, Nisha, Nidhi and Naveen have been summoned under Section 323 IPC and Section 16/17 of the Act. 2. Heard learned counsel for the parties and perused the records. 3. Facts necessary to appreciate the controversy are in very short compass, they are as follows. The victim lodged an FIR at Police Station Madho Tanda, District Pilibhit under Section 376 IPC against Ravish Kumar, it was registered as FIR No. 281 of 2020. According to it, the victim and Ravish Kumar befriended in the year 2017, when they were in college. Ravish Kumar proposed the victim. Ravish Kumar established physical relations with the victim for three years, under the pretext of marriage. He also spoke to the father and other family members of the victim; but, subsequently Ravish Kumar declined to marry and demanded dowry. This FIR, was subsequently transferred to the Police Station Khatima, District Udham Singh Nagar. It was lodged as FIR No. 283 of 2022 against Ravish Kumar. After investigation, charge-sheet was submitted against Ravish Kumar, for the offence punishable under Section 376 IPC and Section 3/4 of the Act, which is the basis of Special Sessions Trial No. 48 of 2021. 4. On 30.10.2020, charge under Section 376 IPC and Section 3/4 of the Act, was framed against Ravish Kumar, to which he denied and claimed trial. In the trial, statement of the victim as PW1 was recorded on 18.11.2021. It is thereafter an application under Section 319 of the Code was moved by the prosecution, which has been allowed by the impugned order. 5. In the trial, statement of the victim as PW1 was recorded on 18.11.2021. It is thereafter an application under Section 319 of the Code was moved by the prosecution, which has been allowed by the impugned order. 5. Learned counsel for the revisionists would submit that the order is bad in the eyes of law. According to him, initially when the FIR was lodged in District Pilibhit, there were no allegations against the revisionists. When the matter was still within the District Pilibhit, the victim was examined by the Investigating Officer (“the IO”). Then also, the victim only reiterated the version of the FIR and levelled allegations against Ravish Kumar only. But, it is argued that, soon after the FIR was transferred and lodged at Police Station Khatima, District Udham Singh Nagar, when the victim was again interrogated by the IO on 11.11.2020, she named the revisionists also as the persons who demanded dowry, aborted the foetus of the victim and did marpeet with her. 6. It is argued that despite charge-sheet having been submitted against Ravish Kumar, the victim in the court again, named the revisionists as the persons who aborted her foetus and demanded dowry. It is argued that the statements are without any medical support and there is no documentary evidence. 7. Learned counsel for the revisionists would also submit that, in fact, the victim was blackmailing the family members of Ravish Kumar and was demanding land to close the matter. The revisionist no. 3, Shiv Kumar, who happens to be the uncle of Ravish Kumar had also moved an application under Section 156 (3) of the Code, in which he had also enclosed a telephonic conversation, which reveals that, in fact, the victim had demanded land in return to close the matter. 8. It is argued that it is not a case in which the revisionists could have been summoned under Section 319 of the Code. The evidence of PW1, the Victim does not meet the standard of satisfaction, as required to summon a person under Section 319 of the Code. 9. On the other hand, learned State Counsel would submit that PW1, the Victim has stated about the revisionists and the order impugned is in accordance with law. The evidence of PW1, the Victim does not meet the standard of satisfaction, as required to summon a person under Section 319 of the Code. 9. On the other hand, learned State Counsel would submit that PW1, the Victim has stated about the revisionists and the order impugned is in accordance with law. He would also submit that whatever transcript or telephonic conversation has been referred to on behalf of the revisionists that cannot be taken into consideration at this stage because it has yet to be proved in the trial. 10. The scope of 319 of Code has to be examined. Under Section 319 of the Code, the Court may proceed against any other person, who appears to be guilty of an offence. This Section reads as follows: “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 sub-section (1), then— (a) the proceedings in respect of such person shall be commenced afresh, and the 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.” 11. A bare reading of Section 319 of the Code reveals that it is a kind of satisfaction, which may be derived from the evidence adduced at the trial that drives a Court to summon any other person to face trial along with the existing accused. What would be that satisfaction? 12. In a criminal trial, there are different stages to proceed against an accused. What would be that satisfaction? 12. In a criminal trial, there are different stages to proceed against an accused. Initially, when an accused is summoned to face the trial, the satisfaction required is prima facie case. 13. Subsequent thereto, at the stage of framing of charges, the level of satisfaction is slightly different as given under the provisions of the Code and finally at the time of judgment, the standard is proof beyond reasonable doubt. 14. This question has come up for discussion before the Hon’ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others; (2014) 3 SCC 92 . In that case, the Hon’ble Supreme Court posed various questions. Question no. (iv) deals with the question at hand. Question no. (iv) is “what is the nature of the satisfaction required to invoke the power under Section 319 of 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?” In para 106 of the judgment in the case of Hardeep Singh (supra), the Hon’ble Supreme Court answered this question. It is as follows: “106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried 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 CrPC to form any opinion as to the guilt of the accused.” 15. The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.” 15. Bare perusal of the above reveals that the test that has to be applied is one which is more than prima facie case as exercised at the time of initial summoning of an accused, but sort of satisfaction to the extent that, if the evidence remains unrebutted, it could lead to conviction. In fact, this observation was made by the Hon’ble Supreme Court in the midst of the judgment and the end of it, when the Hon’ble Supreme Court answered all the questions, in para 117.5, the ratio has further been laid down, It is as hereunder: “117.5. Though under Section 319(4)(b) CrPC 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 CrPC would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.” 16. In the instant case, admittedly when the FIR was lodged at District Pilibhit, the allegations were only against Ravish Kumar. It may be noted that all the revisionists are family members of Ravish Kumar. Subsequently, when the FIR was transferred to Police Station Khatima, District Udham Singh Nagar and lodged as FIR No. 283 of 2020, the same averments were there in the FIR. In fact, it was a transferred FIR. When in District Pilibhit, the victim was interrogated by the IO, she simply reiterated the version of FIR. But, when the same FIR was further interrogated by the IO in District Udham Singh Nagar, the victim named other persons also. In fact, it was a transferred FIR. When in District Pilibhit, the victim was interrogated by the IO, she simply reiterated the version of FIR. But, when the same FIR was further interrogated by the IO in District Udham Singh Nagar, the victim named other persons also. At that stage, she has told to the IO that, in fact, the uncle of Ravish Kumar and others had got aborted her foetus. They demanded dowry. She had then told to the IO that on 10.10.2020, the revisionists, namely, Reeta, Nisha, Nidhi and Sarabjeet did marpeet with her and they abused her also. She has also stated about revisionist Sarabjeet and Jagdish as the persons, who demanded dowry from her. 17. It may be noted that the FIR was lodged initially at Police Station Madho Tanda, District Pilibhit on 29.09.2020. It was lodged at Police Station Khatima, District Udham Singh Nagar on 06.11.2020. It shows that, in fact, when subsequently interrogated by the IO at Police Station Khatima, the victim had stated about some incident, which allegedly took place post lodging of the FIR at Police Station Madho Tanda, District Pilibhit on 29.09.2020. 18. Not only this, again the victim was examined under Section 164 of the Code, there also, she had stated that the revisionists, namely, Jagdish, Sarabjeet, Shiv Kumar and Dinesh forced her for abortion. She has also stated that the revisionists Jagdish, Sarabjeet, Shiv Kumar, Dinesh, Reeta, Neetu, Nisha, Nidhi and Naveen demanded dowry. Then she also narrated as to what had happened on 04.02.2020, 07.02.2020 and 10.06.2020. It may also be noted here that in her statement recorded under Section 164 of the Code, the victim did not reveal anything that she had revealed in her statement given under Section 161 of the Code to the IO on 11.11.2020 with regard to an incident of 10.10.2020. 19. The evaluation of the statement of the victim is slightly deeper, but the Court still continues with this scrutiny in order to find out as to whether the evidence of PW1, the victim may give satisfaction to the level so as to summon the revisionists. 20. In the court also, PW1, the victim has further stated about the role of revisionists. According to her, the revisionists Sarabjeet, Jagdish, Shiv Kumar and Dinesh forced her to take medicines for abortion. 20. In the court also, PW1, the victim has further stated about the role of revisionists. According to her, the revisionists Sarabjeet, Jagdish, Shiv Kumar and Dinesh forced her to take medicines for abortion. A reading of the statement of PW1, the victim, reveals that it had happened some time in the year 2017. She has stated that about Ravish Kumar that he established physical relations on multiple occasions at various places with her. She also speaks against revisionists that they demanded dowry. In para 27 of her statement, she has stated about it. In para 31 of the statement of PW1, the victim has told that on 10.06.2020, she was beaten up by the revisionists Sarabjeet, Reeta, Nisha, Nidhi, Shiv Kumar and others. 21. A bare perusal of the statement of the victim made at various stages of the investigation or at trial makes it abundantly clear that her statement is wavering. The FIR is against Ravish Kumar alone. Subsequently, she assigned roles to family members of Ravish Kumar. The allegations against Ravish Kumar is with regard to rape under the pretext of marriage and subsequently declining to marry. 22. Initially, when interrogated by the IO at Police Station Madho Tanda, District Pilibhit, the victim did not level any allegation against the revisionists. With regard to the abortion, for the first time, she spoke on 11.11.2020 in her statement recorded under Section 161 of the Code. Admittedly, there is no medical evidence. With regard to marpeet, the victim on 11.11.2020 told that it was done on 10.10.2020, but subsequently, she has changed the date to 10.06.2020. 23. It may be noted that during investigation also PW1, the victim, had levelled allegations against the revisionists, but the IO did not find any truth in it; he declined to submit any charge-sheet against the revisionists and he had then perhaps reasons to do so. Cognizance was taken against Ravish Kumar alone. “Prima facie” case as such is nowhere defined. It is inferred when it is alleged that some offence is committed and there are grave doubts that the persons accused are involved in it. But, for summoning a person under Section 319 of the Code, mere prima facie case is not enough. The standard of satisfaction should be above than mere prima facie case as held in the case of Hardeep Singh (supra). But, for summoning a person under Section 319 of the Code, mere prima facie case is not enough. The standard of satisfaction should be above than mere prima facie case as held in the case of Hardeep Singh (supra). It should be the same as is required at the time of framing of charge, which means, if the evidence given in support of application under Section 319 of the Code goes unrebutted, it may lead to conviction, only then any other person under Section 319 of the Code may be summoned. 24. Having considered the statement of PW1, the victim, this Court is of the view that her statement does not reveal even prima facie case against the revisionists. It is even below the standard of prima facie case. What to speak of the higher standard as required in view of the judgment in case of Hardeep Singh (supra). 25. In view of the above, this Court is of the view that the court below has committed an error in law in summoning the revisionists under Section 319 of the Code. The application under Section 319 of the Code filed by the prosecution ought to have been rejected. Accordingly, the impugned order deserves to be set aside and the criminal revision deserves to be allowed. 26. The revision is allowed. The order dated 09.05.2022 is set aside. The application filed by the prosecution under Section 319 of the Code is rejected.