Court No. - 49
Case :- CRIMINAL REVISION No. - 997 of 2021
Revisionist :- Babita
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Ishwar Chandra Tyagi,Ashish Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Sri V.K. Ojha, learned counsel for revisionist/petitioner and Sri Gambhir Singh, learned AGA for the State.
2. This petition has been filed by the present petitioner being aggrieved of order dated 19.01.2021 passed by learned Additional District and Sessions Judge/Special Judge (POCSO Act), Court No. 1, Amroha in Session Trial No. 02 of 2019 whereby an application, moved by the complainant-Shalu Sharma under Section 319 Cr.P.C., to summon the present petitioner, has been allowed.
3. Learned counsel for petitioner submits that learned court below has erred in not appreciating the law laid down in case of Brijendra Singh and Others vs. State of Rajasthan; (2017) 7 SCC 706, where in reliance is placed on the law laid down in case of Hardeep Singh vs. State of Punjab and Others; (2014) 3 SCC 92. It is held that the 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 the 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 person on the basis of which evidence it can be gathered that he appears to be guilty of offence.
4. Placing reliance on the judgment of the Supreme Court in case of Brijendra Singh and Others (supra), learned counsel for petitioner submits that learned court below was obliged to not only take into consideration the statements of the complainant, but also the affidavits, which have been filed and collected during the investigation, supporting the case of the present petitioner that she was not present at the place of the incident and also every material, as was produced before the Investigating Officer and thus, the court below has committed an error in passing the impugned order, summoning the petitioner in exercise of power under Section 319 Cr.P.C.
5. Learned AGA, in his turn, submits that petitioner has not enclosed statements of the complainant, as was recorded before the court under Section 164 Cr.P.C. He cleverly omitted to enclose such statement and is now trying to read from the cross- examination of the complainant to alleged motive and supply omission to the statements, so to derive a benefit.
6. It is submitted that in fact, in case of Brijendra Singh and Others (supra), the Supreme Court has held that material/evidence, collected by the Investigating Officer at the stage of inquiry, can be utilised for corroboration and support the evidence, recorded by the court to invoke the power under Section 319 Cr.P.C. It is submitted that learned Magistrate has sifted the statements of the complainant, recorded under Section 161 Cr.P.C., so also of other witnesses, which were recorded by the police and has also taken into consideration that the charge on Babita of using a firearm and also indulging in outraging her modesty or of any kind of harassment, are not made out. Court has categorically recorded a finding that the statements of the witnesses reveal presence of the applicant, who was given clean chit by the Investigating Officer on the basis of certain affidavits, filed on behalf of the accused party.
7. After hearing learned counsel for parties and going through the record, it is evident that case is pending before the concerned court under Sections 147, 148, 149, 452, 323, 352, 504, 506, 342, 325 IPC. Magistrate for the present, was only required to ensure as to whether there is corroborative evidence on record to demonstrate presence of the present applicant and action on her part. It is only required to be seen that whether she was member of an unlawful assembly or not. Averments made in the evidence, collected by the Investigating Officer and also before the court, prima facie, reveal that present applicant was exonerated by the Investigating Officer, merely on the basis of certain affidavits, filed by the accused persons, holding that she was not present at the place of the incident overlooking the evidence, produced by the complainant's side.
8. In view of such facts, when the principles of law, are settled and as has been held in case of Hardeep Singh (supra), that doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C., is taken into consideration, then on such touchstone, impugned order cannot be faulted with calling for any interference in exercise of revisional jurisdiction of this Court. Therefore, petition fails and is dismissed.
Order Date :- 27.7.2021/Vikram/-