MANI PUSHPAK JOSHI versus STATE OF UTTARAKHAND & ANR. on 17 October 2019

1. The challenge in the present appeal is to an order passed bythe High Court of Uttarakhand at Nainital on April 3, 2019 whereby,revision against an order of summoning of appellant under Section 319of the Code of Criminal Procedure, 1973[1] remained unsuccessful.

2. An FIR was lodged by Harpreet Singh, father of prosecutrix(aged about 6 years), on April 19, 2017 at 1:23 p.m., about sexual assaulton her daughter. The FIR reads as under:

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A“My daughter xxxx who is 6 years old has been mentally andphysically harassed for 4-5 months in her school Aurum the GlobalSchool Haldwani. My daughter was very upset mentally forseveral days and would cry bitterly when asked to go to School.On my asking several times, she told me and my wife that inher School a teacher touched her private parts deliberately. HeBwould take her to the bathroom, close her eyes and then wouldinsert a stick like object in her vagina. This teacher had frightenedher and he had instigated her not to talk about this matter toanyone. My daughter even told me that, whenever she went tothe bathroom, he would follow her, and molest her there. Today,Cwe showed the picture of this teacher to our daughter by themedium of facebook, she recognized him, and as a result we cameto know that the name of this teacher is Bablu Bisht. Sir, theowner of the School Ankit Joshi, Principal Gauri Vohra and ClassTeacher Nameeta Joshi are equally guilty (at fault) in this case.It is there pleaded of you, to kindly take stern action against theDculprits.”

3. After FIR was lodged, the statement of the victim wasrecorded by the Investigating Officer under Section 161 of the Codeon April 19, 2017. Some of the relevant extracts from the statementread as under:E

“When father enquired so I told my father about Bablu Uncle'sincident, my mother was also there. Bablu Uncle did these thingsearlier also - 3 days earlier he did the same thing. Ever since, Icame to class first, he has done the same thing thrice.

Question: Do you recall any earlier instance when Bablu Uncleor somebody from house or school did something like this withyou?

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Answer: Aunty when I study in lkg and ukg then also sometimesBablu Uncle did these things with me, apart from this nobodyGelse has ever done anything with me.”

4. Later, another statement of the prosecutrix was recordedunder Section 161 of the Code on April 22, 2017 wherein, she statedthat after she returned from washroom, two Uncles came and pickedher away. In response to another question, the child responded thatHthese two persons work outside school. In respect of a question whether she has seen these persons earlier, the answer was that they used toroam in the School. Relevant extract of the statement read as under:

“On showing print photographs, which were taken from schoolwebsite by the parents of the kid, the girl said yes to the photoof Bablu Bisht and pointed towards one more photograph ofanother person. When we asked her whether she has told to hermadam about this incident, she replied that she has told fourtimes.”

5. It is thereafter, statement of the prosecutrix was recordedunder Section 164 of the Code on April 24, 2017 where she deposed,for the first time, that after she returned to her classroom, two mencame; one of them wore spectacles and other did not. They took herout from there. She deposed that two men had touched her before also.She also deposed that she has told her parents about the incident andthat two persons assaulted her five times earlier secretly in the garden.The appellant is said to be the person who was wearing spectacles.On the basis of the evidence collected by the investigating team, chargesheet was filed against Bablu Bisht alias Balwant Singh. The prosecutionhas examined Harpreet Singh, father of the prosecutrix as PW-1 whohas deposed as under:

"When I asked her what had happened, she did not tell anything.After I took her in confidence and asked her what had happened,she asked me to promise that I would not take her to the schooland on this she told me that in school one teacher uncle harassedher and touched her in her private parts (place of urination) andinserts and exerts a rod like object in my place of urination.Saying this, the witness said that I had nothing left to consoleher. I assured her that we would not be sending her to thatschool now. After this, I and my family wept for a long time.(stating the above matter, the witness wept in the court as well).

After this, my wife took my daughter to a separate place, whileI searched the profile of the male members of the school. Fourmale members were found. I enlarged these photos individuallyand showed it to my child; three of these people she refused andwhen the photo of Bablu Bisht was shown to her, she would notspeak and become silent (quite). When I asked her again, sheagain insisted that she will not go to school, only then with fearshe said that he harassed her.

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AAfter this I did not speak further to my daughter on this matter.I talked to her about other things to assure her that we wouldnot send her to that school. After this I went to my brotherManpreet Singh's house and told him everything about theincident that had happened with Harleen. Then I registered acomplaint report about the incident in Haldwani police station onB19.04.2017.

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The witness on seeing the document no. 3A/2, a printed complaint,said that this report was prepared by me and I had submitted itin the police station after putting my signatures on this. Thewitness endorsed his signature on this document. This documentwas marked as exhibit A-1. After this, keeping her security inconsideration we sent her to another school for her studies.

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The witness himself stated today that the invigilator had askedhim to bring the print out of the photographs taken out from theface book. On this, we extracted the picture of the teacher,owner and the principal, and showed them to the child, she saidthat the man wearing spectacles also held her hands and harassedher. The man in spectacles was the owner of the school."

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6. The prosecutrix appeared as PW-2. The witness identified twopersons, one with spectacles when the photographs were shown to her.

7. Supreet Kaur (PW-10), mother of the prosecutrix, stated thather daughter told her that two persons troubled her, one of them waswearing spectacles.

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8. Gauri Vohra (PW-11) is the Principal of the School in whichthe prosecutrix was the student. The extract from her statement relevantfor the present controversy reads as under:

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"I called the Grievance cell members, which is comprised ofmyself, Vice Principal Mrs. Ashu Pant and Priyanka. TheVictim's family members asked us to call Balwant and other staffmembers. When I asked Pandeyji about Balwant then he repliedthat he was on leave that day. After this, I informed Mani Sir,who is the Manager of our School, about the entire incident overphone.

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Just then, the victim's father entered the office and startedshouting at us. Although I assured them that I would be the firstperson to file a report against Balwant. In response, the familymembers of the victim got furious alleging that we had helped H

Balwant Singh to escape from there and wanted to speak to ManiSir.

I told them that Mani Sir was in Dehradun at that moment andwas returning back from there. Meanwhile several peoplegathered in the School. Many of whom had come to take theirchildren back home. The family members of the victim nowstarted inciting these people. We requested them to let the childrengo back home safely. But the victim's family started shouting thatwe won't let the children go back home. Very soon, DeepakBalutia and Sumit Tikku came to the School. Soon after this, thevictim's family members and the mob started breaking andvandalizing the school property."

9. The father of the prosecutrix filed an application to summonthe person who wears spectacles, as identified by the victim. Suchapplication was allowed by the learned Trial Court on February 20, 2019which order was not interfered with by the High Court in a revisionpetition.

10. Learned counsel for the appellant argued that the prosecutrixhas improved her statement time and again. The appellant is identifiedby the Spectacles from the photograph taken from the website of theSchool or from the Facebook though the appellant is not a member ofthe teaching faculty but part of the Management. The FIR has beenlodged after the details of occurrence have been shared by theprosecutrix with her father. The allegations in the first version areagainst only one person. In the first statement recorded under Section161 of the Code, again the allegations are against one person. In fact,the prosecutrix has stated categorically that except Bablu, nobody elsehas ever done anything to her. In the second statement under Section161 of the Code, recorded after three days, the assailants became twoand that both work outside the School. She identifies the photo of Bablutaken from the website of the School and points out one photograph ofanother person. It is thereafter in her statement under Section 164 ofthe Code recorded on April 24, 2017, the other person is said to bewearing spectacles.

11. A Constitution Bench of this Court in Hardeep Singh v. Stateof Punjab & Ors.[2]while examining the scope of Section 319 of theCode, held as under:

2 (2014) 3 SCC 92

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“100. However, there is a series of cases wherein this Court whiledealing with the provisions of Sections 227, 228, 239, 240, 241,242 and 245 CrPC, has consistently held that the court at thestage of framing of the charge has to apply its mind to thequestion whether or not there is any ground for presuming thecommission of an offence by the accused. The court has to seeas to whether the material brought on record reasonably connectthe accused with the offence. Nothing more is required to beenquired into. While dealing with the aforesaid provisions, the testof prima facie case is to be applied. The court has to find outwhether the materials offered by the prosecution to be adducedas evidence are sufficient for the court to proceed against theaccused further. ………

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105. Power under Section 319 CrPC is a discretionary and anextraordinary power. It is to be exercised sparingly and only inthose cases where the circumstances of the case so warrant. Itis not to be exercised because the Magistrate or the SessionsJudge is of the opinion that some other person may also be guiltyof committing that offence. Only where strong and cogentevidence occurs against a person from the evidence led beforethe court that such power should be exercised and not in a casualand cavalier manner.

106. Thus, we hold that though only a prima facie case is to beestablished from the evidence led before the court, not necessarilytested on the anvil of cross-examination, it requires much strongerevidence than mere probability of his complicity. The test thathas to be applied is one which is more than prima facie case asexercised at the time of framing of charge, but short ofsatisfaction to an extent that the evidence, if goes unrebutted,would lead to conviction. In the absence of such satisfaction, thecourt should refrain from exercising power under Section 319CrPC. In Section 319 CrPC the purpose of providing if "it appearsfrom the evidence that any person not being the accused hascommitted any offence" is clear from the words "for which suchperson could be tried together with the accused". The words usedare not "for which such person could be convicted". There is,therefore, no scope for the court acting under Section 319 CrPCto form any opinion as to the guilt of the accused.”

12. In Labhuji Amratji Thakor and Others v. State of Gujaratand Others[3], this Court held that the Court has to consider substanceof the evidence, which has come before it and has to apply the test,i.e., “more than prima facie case as exercised at the time of framingof charge, but short of satisfaction to an extent that the evidence, ifgoes unrebutted, would lead to conviction. It was held as under:-

“The High Court does not even record any satisfaction that theevidence on record as revealed by the statement of victim andher mother even makes out a prima facie case of offence againstthe appellants. The mere fact that Court has power under Section319 Cr.P.C. to proceed against any person who is not named inthe F.I.R. or in the Charge Sheet does not mean that wheneverin a statement recorded before the Court, name of any personis taken, the Court has to mechanically issue process underSection 319 Cr.P.C. The Court has to consider substance of theevidence, which has come before it and as laid down by theConstitution Bench in Hardeep Singh (supra) has to apply thetest, i.e., "more than prima facie case as exercised at the timeof framing of charge, but short of satisfaction to an extent thatthe evidence, if goes unrebutted, would lead to conviction."Although, the High Court has not adverted to test laid down bythe Constitution Bench nor has given any cogent reasons forexercise of power under Section 319 Cr.P.C., but for oursatisfaction, we have looked into the evidence, which has comeon record before the trial court …………………Theobservations of the trial court while rejecting the applicationhaving that the application appears to be filed with mala fideintention, has not even been adverted by the High Court.”

13. Having heard the learned counsel for the parties at somelength, we find that the order summoning the appellant for the offencesunder Section 376(2) of the Indian Penal Code, 1860[4] read with Sections5/6 of the Protection of Children from Sexual Offences Act, 2012[5] isnot sustainable in law.

14. The prosecutrix is a small child. It is parents of the child whohave taken the photographs either from the website of the School or 3 AIR 2019 SC 734

4 for short, ‘IPC’5 for short, ‘POCSO Act’

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Afrom the Facebook to introduce a person with spectacles as an accused.The initial version of the father of the prosecutrix and of the prosecutrixherself, as disclosed by her father in the FIR, is assault by one person.But in view of statement of Gauri Vohra (PW-11), the anger wasdirected against the Management of the School of which the appellantis a part. Even if the father of the child has basis to be angry with theBManagement of the School but, we find that no prima facie case ofany active part on the part of the appellant is made out in violating thesmall child. The involvement of other persons on the statement of thechild of impressionable age does not inspire confidence that the appellantis liable to be proceeded under Section 319 of the Code. In fact, it isCsuggestive role of the family which influences the mind of the child toindirectly implicate the appellant.

15. Obviously, the father of the child must have anger againstthe Management of the School as his child was violated when she wasstudying in the School managed by the appellant but, we find that theDanger of the father against the Management of the School includingthe appellant is not sufficient to make him to stand trial for the offencespunishable under Section 376(2) of the IPC read with Sections 5/6 ofthe POCSO Act.

16. The statement of the child so as to involve a person wearingEspectacles as an accused does not inspire confidence disclosing morethan prima facie to make him to stand trial of the offences. Therefore,we hold that the order of summoning the appellant under Section 319of the Code is not legal. The fact, that the prosecution afterinvestigations has found no material to charge the present appellant isalso cannot be ignored. The heinous crime committed should not beFled into prosecuting a person only because he was part of theManagement of the School. We have extracted the evidence led bythe prosecution only to find out if there is any prima facie case againstthe appellant. We are satisfied that there is no prima facie case againstthe appellant, which warrants his trial for the offences pending beforethe Court.G

17. Consequently, the appeal is allowed. The order passed bythe Trial Court to summon the appellant under Section 319 of the Codeis set aside and the application is dismissed.

HDivya Pandey