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2023 DIGILAW 257 (ALL)

Ibrar @ Raju v. State of U. P.

2023-01-25

SYED AFTAB HUSAIN RIZVI

body2023
JUDGMENT : 1. Heard Mr Anil Kumar, learned Senior Advocate, assisted by Mr Ram Bahadur and Mr Vishal Srivastava, learned counsel for the revisionist, Mr Preet Pal Singh Rathore, learned counsel for opposite party no.2 as well as the learned A.G.A. and perused the material placed on record. 2. The revisionist, by way of filing the present revision, has sought to quash the order dated 15.09.2022 passed by Additional Session Judge/Fast Track Court No.1, Allahabad in Sessions Trial No.132 of 2020 (State Vs. Mahfooz) arising out of Case Crime No. 331 of 2018 under Sections 354, 452, 376-D and 506 I.P.C., Police Station Nawabganj, District Allahabad. By the impugned order, learned trial court, on an application filed by the prosecution under Section 319 Cr.P.C., has summoned the revisionist to face trial. 3. An F.I.R. was lodged on 20.07.2018 by opposite party no.2 (prosecutrix) alleging therein that her neighbours Israr alias Raju son of Harun alias Babu and Mahfooz son of Shamum had evil eyes on her. On 05.07.2018 at about 2 p.m. when prosecutrix was returning home from Mansoorabad, they teased her in front of Fatehpur. The prosecutrix made a complaint on 100 Dial, but no action was taken. On 08.07.2018 at about 1.00 a.m. (in night) aforesaid two persons with two unknown companions entered into the house from the roof. The prosecutrix was sleeping opening the door due to hot weather. Meanwhile, all the four persons gagged her mouth and on point of country-made pistol, they all committed rape wit her. They also threatened her not to disclose it to anyone, otherwise she and her mother will be killed. The prosecutrix gave information of the incident in the morning at Police Station Nawabganj, but no action was taken, hence an application is being moved to Inspector General of Police, Allahabad. After investigation charge-sheet was submitted on 17.4.2019 against Mahfooz son of Shamum. Thereafter vide CD Parcha dated 11.08.2019, the two accused Israr alias Raju and Bablu alias Sharif were exonerated. After investigation charge-sheet was submitted on 17.4.2019 against Mahfooz son of Shamum. Thereafter vide CD Parcha dated 11.08.2019, the two accused Israr alias Raju and Bablu alias Sharif were exonerated. During trial after statement of two witnesses, prosecutrix PW 1 and Anwari Bano PW 2, an application under Section 319 Cr.P.C. was filed by the prosecution alleging therein that the report of prosecutrix was not registered at Police Station Nawabganj, she moved an application dated 12.07.2018 to Inspector General of Police, Prayagraj and on this application Case Crime No. 331 of 2018 under Sections 354, 452, 376-D and 506 I.P.C. was registered against Israr alias Raju son of Harun alias Babu and Mahfooz son of Shamum. After narrating the averments of the F.I.R., it is further alleged that statement of the victim was recorded under Section 164 Cr.P.C. in which she has taken the names of Ibrar alias Raju son of Khalil alias Babu and Sharif alias Bablu son of Haneef. In statement recorded under Section 161 Cr.P.C. she has taken the names of the aforesaid accused persons. The applicant has also moved an application for amendment before the High Court. Her statement has been recorded by the trial court in which she has implicated Ibrar alias Raju and Sharif alias Bablu and has reiterated that they have committed rape with her. Statement of Anwari Bano was also recorded and she has also narrated the entire incident that Ibrar alias Raju son of Khalil alias Babu and Sharif alias Bablu son of Haneef have committed rape on her. On the aforesaid grounds, prayer was made to summon the accused. Learned trial court has allowed aforesaid application and summoned the revisionist-accused and Bablu alias Sharif. 4. It is contended by learned counsel for the revisionist that in the F.I.R. revisionist was not named. The F.I.R was registered against Israr alias Raju son of Harun alias Babu and Mahfooz son of Shamum and their two unknown companions. The statement of the complainant was recorded under Section 161 Cr.P.C. in which she has reiterated the version of the F.I.R. and has named Israr alias Raju and Mahfooz son of Shamum as accused persons who have committed offence. The statement of the complainant was recorded under Section 161 Cr.P.C. in which she has reiterated the version of the F.I.R. and has named Israr alias Raju and Mahfooz son of Shamum as accused persons who have committed offence. The same statement has been reiterated by the prosecutrix in statement recorded under Section 164 Cr.P.C. When it came to the notice of the complainant that Israr alias Raju was not present in the village at the time of the incident and he was at Mumbai, then she falsely implicated Ibrar. The name of Ibrar has come for the first time in the statement of the prosecutrix recorded before the trial court. It is also contended that charge-sheet was submitted against Mahfooz son of Shamum. Co-accused Israr alias Raju and Sharif alias Bablu were not arrested during investigation and investigation was kept pending against them. The independent witnesses have stated that a dispute regarding drainage has taken place and the complainant called the police who pacified the parties. No other incident has happened. On 25.10.2019 last Parcha was prepared by the Investigating Officer with averment that during investigation complicity of Israr alias Raju and Bablu alias Sharif has been found false, hence no charge-sheet was submitted against them. It is also contended that learned trial court without taking into consideration that even from the date of registration of the F.I.R. and till submission of charge-sheet neither the revisionist was named nor any allegation was made against him. Whatsoever allegation is there, it is against only Israr alias Raju, but the trial court has summoned the revisionist. The impugned order is totally illegal, arbitrary and has been passed by the trial court without considering the evidence and material on record. It is next contended that revisionist and opposite party no.2 are neighbours and their houses are situated in front of each other. The impugned order is totally illegal, arbitrary and has been passed by the trial court without considering the evidence and material on record. It is next contended that revisionist and opposite party no.2 are neighbours and their houses are situated in front of each other. Because of village partibandi their relations are not cordial and due to this reason for the first time on 28.06.2022 the name of the revisionist has been disclosed after about three and half years of registration of the F.I.R. Learned counsel has further submitted that Apex Court in the case of Ramesh Chandra Srivastava Versus State of U.P. in Criminal Appeal No.990 of 2021 vide order dated 13.09.2021 while adjudicating the powers of the court under Section 319 Cr.P.C. has held that: "The test as laid down by the Constitution Bench of this Court for invoking power under Section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence, the power under Section 319 Cr.P.C. should be exercised. The power cannot be exercised in a casual and cavalier manner. The test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges." 5. It is further contended that the Apex Court in Periyasami and others Versus Nallasamy (2019) 4 SCC 342 , has held as follows: "The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can not be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused." 6. It is also contended that learned trial court was under an obligation to go through the entire material and evidence collected by the Investigating Officer during the trial, and so far as the application filed by opposite party no.2 under Section 319 Cr.P.C. is concerned that should not have been taken into consideration which is contrary to the entire evidence. It is also contended that learned trial court was under an obligation to go through the entire material and evidence collected by the Investigating Officer during the trial, and so far as the application filed by opposite party no.2 under Section 319 Cr.P.C. is concerned that should not have been taken into consideration which is contrary to the entire evidence. In absence of any credible evidence upto three and half years from the date of registration of the First Information Report, the revisionist-applicant can not be implicated in the present case only to satisfy the ego of the opposite party no.2. It is next contended that it is a clear case of false implication of the revisionist-applicant due to family dispute and partibandi of the village and in absence of any credible evidence, false implication of the applicant-revisionist cannot be ruled out. It is also contended that learned trial court while summoning the revisionist-applicant has not applied his judicial mind rather in a most mechanical manner summoned the revisionist. The learned trial court while summoning the revisionist has miserably failed to appreciate the fact that no offence is made out against the revisionist from the First Information Report as well as the statements recorded before it. 7. Learned counsel for the opposite party no.2 and learned A.G.A. appearing for State contended that revisionist-accused was named from very beginning. In the application dated 12.07.2018 addressed to Inspector General of Police, Ibrar alias Raju was named, but a confusion was created by the people of accused side and on their behest name of Ibrar was changed by Israr while nickname Raju was the same. It is further contended that Ibrar and Israr are actually one person. Raju the nickname is common and Babu the nickname of father is also common. Learned counsels also contended that police in collusion with the accused have developed the story that dispute between the parties is with regard of drainage on account of which false implication has been made which is highly improbable. A lady will not put her prestige on stake. It is also contended that revisionist and other co-accused and their associates were pressurizing the prosecutrix and her family members not to lodge the F.I.R. The prosecutrix came to her parental home just before few days of the incident. A lady will not put her prestige on stake. It is also contended that revisionist and other co-accused and their associates were pressurizing the prosecutrix and her family members not to lodge the F.I.R. The prosecutrix came to her parental home just before few days of the incident. She knew the revisionist by his nickname Raju and father's nickname Babu and she was confused about his real name Ibrar or Israr. She moved application before higher authorities on 12.07.2018. The revisionist and other co-accused are very influential person. They adversely affected the investigation of the case. The prosecutrix preferred a Writ-C (Criminal) No. 24381 of 2018 before this Court for fair and impartial investigation. The Investigating Officer was not conducting fair investigation and prosecutrix has to move an application dated 23.01.2019 before the Circle Officer that revisionist and his father were named under their nicknames i.e. Raju and Babu that is why she has scribed their name in the F.I.R. Now they have prepared their Aadhar card under the name of Ibrar alias Raju son of Khalil alias Babu, so the name be corrected accordingly. Thereafter, the revisionist moved surrender application on 29.01.2019 before the court below under the name of Israr son of Khalil alias Babu. The police submitted a report on 02.02.2019 stating therein that revisionist is wanted in aforesaid case. After seeing the report dated 02.02.2019, the revisionist did not appear before the court below, consequently, his surrender application was rejected vide order dated 02.03.2019. Thereafter, the complainant moved another application on 11.03.2019 before the Investigating Officer stating therein that correct name of accused is Ibrar alias Raju instead of Israr alias Raju. Despite this, Investigating Officer was not taking any action against the revisionist, then she preferred Criminal Misc. Application (U/S 482 Cr.P.C.) No.30986 of 2019 before this Court which was disposed of with a direction to the complainant to move an application before the Investigating Officer. Thereafter, she submitted complaint dated 03.10.2019 before the Investigating Officer but the Investigating Officer not complied with the order of this Court, then a contempt application was also moved. The revisionist was named in the F.I.R. since very beginning. He is also one of the main culprits. Thereafter, she submitted complaint dated 03.10.2019 before the Investigating Officer but the Investigating Officer not complied with the order of this Court, then a contempt application was also moved. The revisionist was named in the F.I.R. since very beginning. He is also one of the main culprits. The error in his name has occurred only on account of confusion of name by which he is addressed in the village.It is further contended that the prosecutrix in her statement before the trial court has clearly implicated the revisionist showing his complicity in the incident. He is main culprit who has committed rape with the victim. Other witnesses produced before the trial court has also narrated entire evidence. From their testimony the involvement of the revisionist-accused is fully established. The trial court after considering evidence and material on record has found that there is sufficient and cogent evidence against the revisionist and has passed the summoning order. Therefore, there is no illegality in the the impugned summoning order. 8. The perusal of record transpires that in the F.I.R. one of the accused is named as Israr alias Raju son of Harun alias Babu while revisionist is Ibrar alias Raju son of Khalil Ahmad. From the allegations of the F.I.R. it is also clear that the complainant and accused are neighbours. There may be confusion in the name, Israr and Ibrar, but here in the case in hand there is also difference in the parentage. In the F.I.R., parentage of named accused Israr is Harun while parentage of revisionist Ibrar is Khalil Ahmed and not Harun. The difference of parentage is prominent one. There is no plausible explanation regarding this difference. After investigation charge-sheet was submitted against Mahfooz. During further investigation the Investigating Officer has recorded statements of a number of independent witnesses who have stated about the incident dated 05.07.2018 and have put up a different story. They have not corroborated the allegations of the F.I.R. in this respect. The name of revisionist Ibrar has been disclosed by the complainant and prosecutrix at a very late stage. The Investigating Officer has also observed that when it came to the notice of prosecutrix that at the alleged time of incident Israr was at Mumbai and he will be exonerated, then she changed the name and implicated Ibrar. The name of revisionist Ibrar has been disclosed by the complainant and prosecutrix at a very late stage. The Investigating Officer has also observed that when it came to the notice of prosecutrix that at the alleged time of incident Israr was at Mumbai and he will be exonerated, then she changed the name and implicated Ibrar. In the F.I.R., in the statement recorded under Section 161 and in the statement under Section 164 Cr.P.C. the name disclosed is Israr alias Raju. 9. The Apex Court in Hardeep Singh Versus State of Punjab, 2014(3) SCC 92 has held as follows: "Power under Section 319, Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. Thus, we hold that though only a prima face 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 Cr.P.C." 10. In Brijendra Singh and another Versus State of Rajasthan (2017) 7 SCC 706 , the Apex Court has made following observations: "13. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C." 10. In Brijendra Singh and another Versus State of Rajasthan (2017) 7 SCC 706 , the Apex Court has made following observations: "13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated : Power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity." 11. The power conferred to the trial court to summon an accused under Section 319 Cr.P.C. is although a discretionary power, but it is an extraordinary power and it should be exercised sparingly and with cautious approach. There must be cogent and sufficient evidence. In the present case, the trial court has completely ignored the grounds on which the revisionist-accused was exonerated by the Investigating Officer. There must be cogent and sufficient evidence. In the present case, the trial court has completely ignored the grounds on which the revisionist-accused was exonerated by the Investigating Officer. The revisionist-accused was not named in the F.I.R. His name also did not surface either in the statement of victim recorded under Section 161 Cr.P.C. or 164 Cr.P.C. At a very late stage, the name of revisionist-accused has been introduced while there is prominent difference in the parentage of the accused. The trial court has committed illegality in allowing the application filed by the prosecution under Section 319 Cr.P.C. The standard of evidence required for exercising the powers under Section 319 Cr.P.C. is lacking. The trial court while deciding the application under Section 319 Cr.P.C. has completely ignored the material available on record. It is on account of above that trial court has failed to record some degree of satisfaction which is required to summon an accused under Section 319 Cr.P.C. Resultantly, court below has recorded an erroneous finding and has failed to exercise its jurisdiction in accordance with the parameters laid down by the Apex Court. The impugned order is not sustainable in the eye of law and, therefore, the impugned order is liable to be set aside. 12. Accordingly, this criminal revision is allowed. The impugned order dated 15.09.2022 passed by Additional Session Judge/Fast Track Court No.1, Allahabad in Sessions Trial No.132 of 2020 (State Vs. Mahfooz) arising out of Case Crime No. 331 of 2018 under Sections 354, 452, 376-D and 506 I.P.C., Police Station Nawabganj, District Allahabad is hereby set aside.