Court No. - 49
Case :- MATTERS UNDER ARTICLE 227 No. - 4415 of 2018 Petitioner :- Dipika Dwivedi Respondent :- State Of U.P. Counsel for Petitioner :- Sarvesh Counsel for Respondent :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
The present petition has been filed against the order dated 22.02.2018 passed by the A.C.J.M., Kanpur Dehat in Case No. 408 of 2015 as well as order dated 31.05.2018 passed by the Sessions Judge, Ramabai Nagar (Kanpur Dehat) in Criminal Revision No. 32 of 2018 by which the learned Court below has rejected the application filed by the applicant under Section 319 Cr.P.C. seeking to summon one Rajeev Mishra in the criminal trial.
Besides the allegations made in the FIR, it appears that the victim had got her statement recorded under Section 164 Cr.P.C. which has been reiterated during trial wherein she had made allegation of rape committed on her by the husband of her sister-in-law on 02.05.2015 while she was living at her matrimonial home along with her husband.
The FIR arose on 02.07.2015, upon the victim having been allegedly recovered by the police on her calling the police at number 100.
Learned counsel for the petitioner submits that, at this stage, only the evidence that had been led during the trial could have been examined and no other material or plea raised by the defence could have been gone into. He therefore submits that the learned Court below has erred in rejecting the application filed by the petitioner on the plea of alibi set up on behalf of the said Rajeev Mishra.
Further, reliance has been placed on a recent decision of learned Single Judge of this Court in the case of Bhure & Others Vs. State of U.P. & Another reported in 2018 (2) JIC 77 (All). Paragraph nos. 6 and 7 of the said judment reads as below:
"6. In view of aforesaid observations of Hon'ble Apex Court, it is abundantly clear the the statements recorded under Section 161 Cr.P.C. and the material collected during investigation cannot be taken into account as an evidence for summoning any accused and it is only the evidence recorded during trial which can form basis for exercise of powers under Section 319 Cr.P.C.
7. With due respect, I may record that in judgement rendered by the Apex Court in Brijendra Singh (supra), the case was decided on its own merits and it does not lay down a ratio that plea of alibi or the evidence/material collected during investigation can be treated as part of evidence which can be taken into account in exercise of powers under Section 319 Cr.P.C. The law in this behalf has been settled by the Constitution Bench of the Apex Court in Hardeep Singh Versus State of Punjab (2014) 3 SCC 92."
Sri Nagendra Kumar Srivastava, learned AGA on the other hand submits that though no other material other than evidence received during trial could have been looked into, however, at this stage, it does not imply that the learned Court below had no discretion while exercising its power under Section 319 Cr.P.C. upon a statement received in evidence. Also, the fact that the learned Court below has at present rejected the application filed by the petitioner under Section 319 Cr.P.C. does not imply that such summoning may not be sought or be directed by that Court at a later stage, if sufficient evidence arises subsequently.
Having considered the arguments so advanced by learned counsel for the parties, in the first place though it cannot be disputed the scope of enquiry was limited but it did not necessarily mean that the learned Court below was bound to summon the said Rajeev Mishra as an accused, at this stage itself. It would remain for the learned Court below to form a strong satisfaction before it could proceed to summon a person as an accused.
Perusal of the FIR that has been relied upon by learned counsel for the petitioner and the statement recorded under Section 164 Cr.P.C. reveals that there is no dispute to the fact that the allegation of rape is of the date 02.05.2015. It is not the case of victim that she has been forcibly confined inside a locked room continuously or for any period from 02.05.2015 to 02.07.2015. In fact, the allegation appears to be otherwise. It thus appears, at this stage that it was alleged by the victim that she had been raped by the husband of her sister-in-law on 02.05.2015 in which crime her husband had actively abetted, but that she continued to live at her matrimonial home till 02.07.2015 of her own free will without lodging any complaint. Only when she was assaulted and locked in a room on 02.07.2015 (but not raped) that she ring up the police at the number 100 and that she was recovered therefrom.
She appears to have been medically examined on 22.08.2015 that is more than a month and half after the FIR was lodged. In such circumstances, the prayer for summoning of the said Rejeev Mishra as an accused, at this stage appears merely on such a statement of the victim to be pre-mature. Admittedly, the trial is still proceeding and the prosecution evidence is being led. If upon leading of further sufficient evidence, such summoning would become necessary, it would be open to the learned Court below to consider the same either of its own or on another application that may be filed by the victim in that regard, at that stage.
However, at present, it does not appear that a strong satisfaction that too of a degree higher than that required for framing charge could be reached to summon the said Rajeev Mishra as an accused. Insofar as the judgment that has relied upon by the learned counsel for the petitioner, it would apply to a case where the summoning under Section 319 Cr.P.C. was being challenged on the basis of material existing on the case diary including certain statements recorded under Section 161 Cr.P.C. whereby the plea of alibi may be set up. Though the learned Court below appears to have also considered the plea of alibi, however, the order is not based solely on such consideration but also on the consideration of the facts and circumstances mainly that general and vague allegations are being made against all family members of the husband in such cases arising out of matrimonial discord. Though learned counsel for the applicant is right in his submission that specific allegation of rape has been made in this case, however, in view of the facts as have been noted above, it appears that, at this stage, the summoning of the said Rajeev Mishra as an accused would be pre-mature as a strong satisfaction is difficult to reach, at this stage, in the undisputed facts of the case noted above.
With the aforesaid observation, the present petition is disposed of.
Order Date :- 21.8.2018 Abhilash