Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1349 of 2018
(arising out of SLP (Crl.) No.6392 /2018)
LABHUJI AMRATJI THAKOR & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF GUJARAT & ANR. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed by the appellants
challenging the judgment dated 30.04.2018 of High Court
of Gujarat by which judgment Criminal Revision
Application filed by complainant-respondent No.2 has
been allowed by setting aside the order dated
01.12.2016 of Additional District & Sessions Judge, who
had rejected the application filed by the prosecution
for proceeding against the appellants in Special POCSO
Case No. 10/2016.
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2. The brief facts of the case as emerged from the
material on record are as follows:-
2.1 The complainant-respondent No.2 lodged a
First Information Report on 27.05.2015 under
Sections 363 and 366 of Indian Penal Code
(hereinafter referred to as “I.P.C.”) and under
Sections 3 and 4 of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to
as “POCSO ACT”) that her daughter Parvati aged 14
years has been abducted by one Natuji Bachuji
Thakor between the night of 26.05.2015 and morning
hour of 27.05.2015. It was further alleged that
Natuji Bachuji Thakor used to visit my daughter
and has given a mobile phone to her, after coming
to know of which fact, complainant had warned
Natuji. After receiving the First Information
Report, Police conducted investigation and
submitted a Charge Sheet under Sections 363 and
366 of I.P.C. and Sections 3 and 4 of POCSO ACT
against Natuji Bachuji Thakor, the accused. The
statement of victim was also recorded by the
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Police, who, in her statement, had taken the name
of Natuji alone. Special POCSO Case No. 10/2016
was registered and trial proceeded against the
accused. The statement of PW3 Kanchanben, the
mother of victim was recorded. The statement of
victim was also recorded as PW4.
2.2 An application under Section 319 of the Code
of Criminal Procedure, 1973 (hereinafter referred
to as “Cr.P.C.”) was filed by the Additional Public
Prosecutor, where it was stated that in the
statement of victim, Pw4, she has taken name of
Labhuji, Shashikant and Jituji also, who had taken
the victim to Morbi in the jeep. Prayer was made
to proceed against the appellants also by
initiating appropriate legal proceedings. The
application was opposed by the appellants. It was
stated in the objection that in the statement,
which was recorded by Police on 03.07.2015, i.e.
immediately after the alleged incident, she
nowhere in her long statement has taken the name
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of the appellants and it was only in the statement,
which was recorded in the Court after more than
one year on 18.06.2016 that she has stated that
the appellants, the friends of accused were also
alongwith accused Natuji.
2.3 The learned POCSO Judge after considering
the submissions of the learned counsel for the
parties rejected the application. The POCSO Judge
also observed that prima facie it appears that with
mala fide intention, the names of the appellants
have been disclosed. The complainant filed a
Criminal Revision against the order dated
01.12.2016 rejecting the application, which has
been allowed by the High Court by impugned judgment
dated 13.04.2018. Aggrieved with the said
judgment, the appellants have come up in this
appeal.
3. Learned counsel for the appellants submits that
High Court without there being any valid reason for
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exercising Jurisdiction under Section 319 Cr.P.C. has
reversed the order of POCSO Judge rejecting the
application under Section 319 Cr.P.C. It is submitted
that there was no evidence on record on the basis of
which it can even be prima facie found that appellants
had also committed the offence. Learned counsel
submits that judgment of High Court does not take into
consideration the Constitution Bench judgment of this
Court in Hardeep Singh Vs. State of Punjab & Others,
(2014) 3 SCC 92 .
4. Learned counsel appearing for the respondent
refuting the submission of counsel for the appellants
contends that the name of the appellants having been
taken both by victim in her statement before the Court
as well as in the statement of the mother of the victim,
no error has been committed by the High Court in
reversing the order of POCSO Judge and directing the
Court below to proceed against the appellants.
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5. We have considered the submissions of the learned
counsel for the parties and have perused the records.
6. Section 319 Cr.P.C. provides that 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. The Court, thus,
during the trial on the basis of any evidence is fully
empowered to proceed against any person, whose name was
not even included in the F.I.R. or the Charge Sheet.
The parameters of exercise of power under Section 319
Cr.P.C has been explained by this Court time and again.
It is sufficient to refer to Constitution Bench
judgment in Hardeep Singh (supra) , where this Court had
considered the following issue amongst others:-
“6.4. (iv) What is the nature of the
satisfaction required to invoke the power
under Section 319 CrPC to arraign an accused?
Whether the power under Section 319(1) CrPC
can be exercised only if the court is
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satisfied that the accused summoned will in
all likelihood be convicted?”
7. The Constitution Bench judgment in the above
judgment has held that under Section 319 Cr.P.C. Court
can proceed against any person, who is not an accused
in a case before it. The Constitution Bench, however,
has held that the person against whom the Court decides
to proceed, “has to be a person whose complicity may
be indicated and connected with the commission of the
offence”.
8. Answering the Issue No.(iv) as noticed above, in
Paragraph Nos. 105 and 106 of the judgment, following
was laid down by the Constitution Bench:-
Power under Section 319 CrPC is a
“105.
discretionary and an extraordinary 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.
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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
for
any offence” is clear from the words “
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.”
9. The Constitution Bench has given a caution that
power under Section 319 Cr.P.C. is a discretionary and
extraordinary power, which should be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. The crucial
test, which has been laid down as noted above is “the
test that has to be applied is one which is more than
prima facie case as exercised at the time of framing
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of charge, but short of satisfaction to an extent that
the evidence, if goes unrebutted, would lead to
conviction.” The present is a case, where the trial
court had rejected the application filed by the
prosecution under Section 319 Cr.P.C. Further, in the
present case, the complainant in the F.I.R. has not
taken the names of the appellants and after
investigation in which the statement of victim was also
recorded, the names of the appellants did not figure.
After carrying investigation, the Charge Sheet was
submitted in which the appellants names were also not
mentioned as accused. In the statement recorded before
the Police, the victim has named only Natuji with whom
she admitted having physical relations and who took her
and with whom she went out of the house in the night
and lived with him on several places. The mother of
victim in her statement before the Court herself has
stated that victim girl returned to the house after one
and a half months. In the statement, before the Court,
victim has narrated the entire sequence of events. She
has stated in her statement that accused Natuji used
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to visit her Uncle’s house Vishnuji, where she met
Natuji. She, however, stated that it was Natuji, who
had given her mobile phone. Her parents came to know
about she having been given mobile phone by Natuji,
then they went to the house of Natuji and threatened
Natuji. After one month, Natuji gave another mobile
phone to the victim, who had taken it. She stated that
in the night at 12 ‘o’ clock, Natuji alongwith his
three friends had taken her to Morbi in a jeep. She
further stated that she and Natuji stayed for three
days at the said place and Natuji had intercourse with
her at the said place. When Natuji came to know about
lodging of complaint, he took her to Modasa in the
jeep. The jeep was given by Labhuji and other two
appellants were also in the jeep. She further stated
that Labhuji, Shashikant and Jituji came in the jeep
and took her and Natuji to the Police Station, where
the police interrogated her and she recorded her
statement. Natuji was charged with Sections 363 and
366 I.P.C. and Sections 3 and 4 of the POCSO Act.
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10. In the present case, there are not even suggestion
of any act done by appellants amounting to an offence
referred to in Sections 3 and 4 of the POCSO Act. Thus,
there was no occasion to proceed against the appellants
under POCSO Act.
11. Now, we come back to the reasons given by the High
Court in allowing the Criminal Revision and setting
aside the order of the POCSO Judge. The judgment of
the High Court runs into four paragraphs and the only
reason given by the High Court for allowing the
revision is contained in paragraph No.3, which is to
the following effect:-
“3. On going through the depositions of the
victim as well as her mother, some overtact
and participation on the part of the
respondent nos. 3 to 5 are clearly revealing.
But, this Court is not inclined to opine
either way as the said fact was not stated
before the police at the time of recording
of their statements. But, taking into
consideration the provision of Section 319
of the Criminal Procedure Code, this Court
deems it appropriate to summon them and put
them to trial…………………………”
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12. The High Court does not even record any
satisfaction that the evidence on record as revealed
by the statement of victim and her mother even makes
out a prima facie case of offence against the
appellants. The mere fact that Court has power under
Section 319 Cr.P.C. to proceed against any person who
is not named in the F.I.R. or in the Charge Sheet does
not mean that whenever in a statement recorded before
the Court, name of any person is taken, the Court has
to mechanically issue process under Section 319 Cr.P.C.
The Court has to consider substance of the evidence,
which has come before it and as laid down by the
Constitution Bench in has to
Hardeep Singh (supra)
apply the test, i.e., “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.” Although, the
High Court has not adverted to test laid down by the
Constitution Bench nor has given any cogent reasons for
exercise of power under Section 319 Cr.P.C., but for
our satisfaction, we have looked into the evidence,
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which has come on record before the trial court as
statements of PW3 and PW4. PW3 is mother of the victim,
who has clearly stated that her daughter has informed
that she was abducted by appellants and Natuji, who had
taken her to the Morbi in the vehicle of Labhuji. The
statement of mother of the victim was an hearsay
statement and could not have been relied for proceeding
against the appellants. Now, coming to the statement
of victim, PW4, she has only stated that Natuji, the
accused had come along with his three friends, i.e.
appellants and she was taken in the jeep to Morbi. She
does not even alleged complicity of the appellants in
the offence. Her further statement was that she was
taken to Morbi in the jeep driven by Labhuji and
subsequently was taken to Modasa from Morbi in the jeep
of Labhuji which also could not furnish any basis to
proceed against the appellants. The mere fact that the
jeep, in which she was taken to Modasa, the appellants
were also present cannot be treated to be any
allegation of complicity of the appellants in the
offence. The observations of the trial court while
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rejecting the application having that the application
appears to be filed with mala fide intention, has not
even been adverted by the High Court.
13. We are, thus, of the considered opinion that High
Court committed error in setting aside the order of the
trial court rejecting the application under Section 319
Cr.P.C. The High Court has not given sufficient reasons
for allowing the application under Section 319 Cr.P.C.
filed by prosecution. The impugned judgment of the
High Court is unsustainable and is hereby set aside.
The appeal is allowed.
......................J.
( A.K. SIKRI )
......................J.
( ASHOK BHUSHAN )
......................J.
( AJAY RASTOGI )
New Delhi,
November 13, 2018.
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