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 28.7.2016, passed by the Additional Sessions Judge, Fast Track Court No.1, Rampur in Sessions Trial No.154/2015, State Vs. Padam Singh, arising out of Case Crime No.286C/2014, under Sections 452,376 and 506 I.P.C. P.S. Patwai, District-Rampur, whereby the learned trial court has allowed the application moved under Section 319 Cr.P.C. and has summoned the revisionist to face trial along with the main accused Padam Singh.
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.
In paragraph 13 of the affidavit filed in support of the revision, it has been submitted that the revisionist is a minor who is aged about 12 years at present and on the date of incident he was only 10 years old. However, the trial court without considering this fact, has mechanically summoned the revisionist under Section 319 Cr.P.C.
Learned A.G.A., has opposed the revision. He has drawn the attention of this Court to the statement of P.W.1/victim, recorded during the trial, copy whereof has been annexed as Annexure-5 to the affidavit and also to the statement of the victim recorded under Section 164 Cr.P.C., and 161 Cr.P.C. copies of which have been annexed, to show that she is throughout consistent about the involvement of the revisionist in the alleged crime assigning him a specific role of guarding at the door with a country made pistol in his hand at the time when the main accused Padam Singh was committing rape with the O.P. No.2/victim.
While drawing the attention of this Court to Annexure-7, which is the copy of the objection filed by the main accused Padam Singh against the application under Section 319 Cr.P.C., learned A.G.A. has argued that despite the fact that a detailed objection was filed against the application under Section 319 Cr.P.C., nothing was stated in the objection about the juvenility of applicant or that the Vinod was minor at the time of occurrence. Learned A.G.A., placing reliance on the law laid down by the Hon'ble Supreme Court in Hardeep Singh's case, 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. Learned A.G.A. has submitted that even assuming for the sake of arguments that the plea taken by the learned counsel for the revisionist that the revisionist was a minor at the time of incident, to be true, it is open for the revisionist to move an application before the trial court to send his file to the Juvenile Justice Board in accordance with law.
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 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?
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 victim in her statements recorded in court during trial, corroborated by her statements recorded under Sections 164 and 161 Cr.P.C. 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. In so far as the plea of juvenility, taken by the applicant is concerned, the applicant is at liberty to take such plea before the trial court, if so advised.
The revision is without any force and it is accordingly dismissed at the admission stage itself.
Order Date :- 28.9.2016 SB