LABHUJI AMRATJI THAKOR & ORS. versus THE STATE OF GUJARAT & ANR. on 13 November 2018

SUPREME COURT REPORTS

[2018] 13 S.C.R.

ALABHUJI AMRATJI THAKOR & ORS.

v.

THE STATE OF GUJARAT & ANR.

(Criminal Appeal No. 1349 of 2018)

B NOVEMBER 13, 2018

[A. K. SIKRI, ASHOK BHUSHAN AND AJAY RASTOGI, JJ.]

Code of Criminal Procedure, 1973:

s. 319 – Power under – Scope of – Application under s. 319,Calleging complicity of the appellants in a case trying offences u/ss.363 and 366 IPC and u/ss. 3 and 4 of Protection of Children fromSexual Offences Act, 2012 – Application was rejected – In RevisionHigh Court allowed the application – On appeal, held: Power u/s.319 is discretionary and extraordinary, which should be exercisedsparingly – The test to be applied is one which is more than primaDfacie case as exercised at the time of framing of charge, but short ofsatisfaction to the extent that the evidence if rebutted would lead toconviction – High Court has not adverted to the above test nor hasgiven any cogent reason for exercise of power u/s. 319 – From theevidence of the witnesses, complicity of the appellants in the offenceEis not made out – Application u/s. 319 was rightly rejected by trialcourt.

Allowing the appeal, the Court

HELD: Under Section 319 Cr.P.C. Court can proceedagainst any person, who is not an accused in a case before it. TheFperson against whom the Court decides to proceed, “has to be aperson whose complicity may be indicated and connected withthe commission of the offence”. Power under Section 319 Cr.P.C.is a discretionary and extraordinary power, which should beexercised sparingly and only in those cases where theGcircumstances of the case so warrant. [Paras 7 and 9][826-D-E;827-D]

2. The High Court does not even record any satisfactionthat the evidence on record as revealed by the statement of victimand her mother, even makes out a prima facie case of offenceHagainst the appellants. The mere fact that Court has power under

Section 319 Cr.P.C. to proceed against any person who is notnamed in the F.I.R. or in the Charge Sheet does not mean thatwhenever in a statement recorded before the Court, name of anyperson is taken, the Court has to mechanically issue processunder Section 319 Cr.P.C. The Court has to consider substanceof the evidence, which has come before it and has to apply thetest, i.e., “more than prima facie case as exercised at the time offraming of charge, but short of satisfaction to an extent that theevidence, if goes unrebutted, would lead to conviction.” The HighCourt has not adverted to the above test nor has given any cogentreasons for exercise of power under Section 319 Cr.P.C. Thestatement of mother of the victim (PW3)was an hearsay statementand could not have been relied for proceeding against theappellants. PW4, in her statement does not even allege complicityof the appellants in the offence. The mere fact that the jeep, inwhich she was taken, the appellants were also present, cannotbe treated to be any allegation of complicity of the appellants inthe offence. The observations of the trial court while rejectingthe application holding that the application appears to be filedwith mala fide intention, has not even been adverted by the HighCourt. The High Court committed error in setting aside the orderof the trial court rejecting the application under Section 319Cr.P.C. [Paras 12 and 13][828-G-H; 829-A-F]

3. In the present case, there are not even suggestion ofany act done by appellants amounting to an offence referred to inSections 3 and 4 of the Protection of Children from SexualOffences Act, 2012. Thus, there was no occasion to proceedagainst the appellants under the 2012 Act. [Para 10][828-D]

Hardeep Singh v. State of Punjab & Others (2014) 3SCC 92 : [2014] 2 SCR 1 – referred to.

Case Law Reference

[2014] 2 SCR 1referred toPara 3

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1349 of 2018.

From the Judgment and Order dated 30.04.2018 of the High Courtof Gujarat at Ahmedabad in Criminal Revision Application No. 277 of2017.

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AD. N. Ray, Dillip Kumar Nayak, Ms. Disha Ray, Mrs. SumitaRay, Advs. for the Appellants.

Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Puja Singh,Ms. Vishakha Advs. for the Respondents.

The Judgment of the Court was delivered by B

ASHOK BHUSHAN, J. 1. This appeal has been filed by theappellants challenging the judgment dated 30.04.2018 of High Court ofGujarat by which judgment Criminal Revision Application filed bycomplainant-respondent No.2 has been allowed by setting aside the orderdated 01.12.2016 of Additional District & Sessions Judge, who hadCrejected the application filed by the prosecution for proceeding againstthe appellants in Special POCSO Case No. 10/2016.

2. The brief facts of the case as emerged from the material onrecord are as follows:- D2.1 The complainant-respondent No.2 lodged a First InformationReport on 27.05.2015 under Sections 363 and 366 of Indian PenalCode (hereinafter referred to as “I.P.C.”) and under Sections 3and 4 of the Protection of Children from Sexual Offences Act,2012 (hereinafter referred to as “POCSO ACT”) that her daughterParvati aged 14 years has been abducted by one Natuji BachujiEThakor between the night of 26.05.2015 and morning hour of27.05.2015. It was further alleged that Natuji Bachuji Thakorused to visit my daughter and has given a mobile phone to her,after coming to know of which fact, complainant had warnedNatuji. After receiving the First Information Report, Policeconducted investigation and submitted a Charge Sheet underFSections 363 and 366 of I.P.C. and Sections 3 and 4 of POCSOACT against Natuji Bachuji Thakor, the accused. The statementof victim was also recorded by the 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.GThe statement of PW3 Kanchanben, the mother of victim wasrecorded. The statement of victim was also recorded as PW4.

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2.2 An application under Section 319 of the Code of CriminalProcedure, 1973 (hereinafter referred to as “Cr.P.C.”) was filedby the Additional Public Prosecutor, where it was stated that in H

the statement of victim, Pw4, she has taken name of Labhuji,Shashikant and Jituji also, who had taken the victim to Morbi inthe jeep. Prayer was made to proceed against the appellants alsoby initiating appropriate legal proceedings. The application wasopposed by the appellants. It was stated in the objection that inthe statement, which was recorded by Police on 03.07.2015, i.e.immediately after the alleged incident, she nowhere in her longstatement has taken the name of the appellants and it was only inthe statement, which was recorded in the Court after more thanone year on 18.06.2016 that she has stated that the appellants, thefriends of accused were also alongwith accused Natuji.

2.3 The learned POCSO Judge after considering the submissionsof the learned counsel for the parties rejected the application.The POCSO Judge also observed that prima facie it appears thatwith mala fide intention, the names of the appellants have beendisclosed. The complainant filed a Criminal Revision against theorder dated 01.12.2016 rejecting the application, which has beenallowed by the High Court by impugned judgment dated13.04.2018. Aggrieved with the said judgment, the appellants havecome up in this appeal.

3. Learned counsel for the appellants submits that High Courtwithout there being any valid reason for exercising Jurisdiction underSection 319 Cr.P.C. has reversed the order of POCSO Judge rejectingthe application under Section 319 Cr.P.C. It is submitted that there wasno evidence on record on the basis of which it can even be prima faciefound that appellants had also committed the offence. Learned counselsubmits that judgment of High Court does not take into consideration theConstitution Bench judgment of this Court in Hardeep Singh Vs. Stateof Punjab & Others, (2014) 3 SCC 92.

4. Learned counsel appearing for the respondent refuting thesubmission of counsel for the appellants contends that the name of theappellants having been taken both by victim in her statement before theCourt as well as in the statement of the mother of the victim, no errorhas been committed by the High Court in reversing the order of POCSOJudge and directing the Court below to proceed against the appellants.

5. We have considered the submissions of the learned counsel forthe parties and have perused the records.

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A6. Section 319 Cr.P.C. provides that where, in the course of anyinquiry into, or trial of, an offence, it appears from the evidence that anyperson not being the accused has committed any offence for whichsuch person could be tried together with the accused, the Court mayproceed against such person for the offence which he appears to havecommitted. The Court, thus, during the trial on the basis of any evidenceBis fully empowered to proceed against any person, whose name was noteven included in the F.I.R. or the Charge Sheet. The parameters ofexercise of power under Section 319 Cr.P.C has been explained by thisCourt time and again. It is sufficient to refer to Constitution Benchjudgment in Hardeep Singh (supra), where this Court had consideredCthe following issue amongst others:- “6.4. (iv) What is the nature of the satisfaction required to invokethe power under Section 319 CrPC to arraign an accused? Whetherthe power under Section 319(1) CrPC can be exercised only ifthe court is satisfied that the accused summoned will in all likelihoodDbe convicted?”

7. The Constitution Bench judgment in the above judgment hasheld 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 toEproceed, “has to be a person whose complicity may be indicated andconnected with the commission of the offence”.

8. Answering the Issue No.(iv) as noticed above, in ParagraphNos. 105 and 106 of the judgment, following was laid down by theConstitution Bench:-F“105.

“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. It isnot to be exercised because the Magistrate or the Sessions Judgeis of the opinion that some other person may also be guilty ofGcommitting that offence. Only where strong and cogent evidenceoccurs against a person from the evidence led before the courtthat such power should be exercised and not in a casual and cavaliermanner.

106. Thus, we hold that though only a prima facie case is to beestablished from the evidence led before the court, not necessarily H

tested on the anvil of cross-examination, it requires much strongerevidence than mere probability of his complicity. The test that hasto be applied is one which is more than prima facie case asexercised at the time of framing of charge, but short of satisfactionto an extent that the evidence, if goes unrebutted, would lead toconviction. In the absence of such satisfaction, the court shouldrefrain from exercising power under Section 319 CrPC. In Section319 CrPC the purpose of providing if “it appears from the evidencethat any person not being the accused has committed any offence”is clear from the words “for which such person could be triedtogether with the accused”. The words used are not “for whichsuch person could be convicted”. There is, therefore, no scopefor the court acting under Section 319 CrPC to form any opinionas to the guilt of the accused.”

9. The Constitution Bench has given a caution that power underSection 319 Cr.P.C. is a discretionary and extraordinary power, whichshould be exercised sparingly and only in those cases where thecircumstances of the case so warrant. The crucial test, which has beenlaid down as noted above is “the test that has to be applied is one whichis more than prima facie case as exercised at the time of framing ofcharge, but short of satisfaction to an extent that the evidence, if goesunrebutted, would lead to conviction.” The present is a case, where thetrial court had rejected the application filed by the prosecution underSection 319 Cr.P.C. Further, in the present case, the complainant in theF.I.R. has not taken the names of the appellants and after investigationin which the statement of victim was also recorded, the names of theappellants did not figure. After carrying investigation, the Charge Sheetwas submitted in which the appellants names were also not mentionedas accused. In the statement recorded before the Police, the victim hasnamed only Natuji with whom she admitted having physical relationsand who took her and with whom she went out of the house in the nightand lived with him on several places. The mother of victim in herstatement before the Court herself has stated that victim girl returned tothe house after one and a half months. In the statement, before theCourt, victim has narrated the entire sequence of events. She has statedin her statement that accused Natuji used to visit her Uncle’s houseVishnuji, where she met Natuji. She, however, stated that it was Natuji,who had given her mobile phone. Her parents came to know about she AB

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Ahaving been given mobile phone by Natuji, then they went to the houseof Natuji and threatened Natuji. After one month, Natuji gave anothermobile phone to the victim, who had taken it. She stated that in the nightat 12 ‘o’ clock, Natuji alongwith his three friends had taken her to Morbiin a jeep. She further stated that she and Natuji stayed for three days atthe said place and Natuji had intercourse with her at the said place.BWhen Natuji came to know about lodging of complaint, he took her toModasa in the jeep. The jeep was given by Labhuji and other twoappellants were also in the jeep. She further stated that Labhuji, Shashikantand Jituji came in the jeep and took her and Natuji to the Police Station,where the police interrogated her and she recorded her statement. NatujiCwas charged with Sections 363 and 366 I.P.C. and Sections 3 and 4 ofthe POCSO Act.

10. In the present case, there are not even suggestion of any actdone by appellants amounting to an offence referred to in Sections 3 and4 of the POCSO Act. Thus, there was no occasion to proceed againstDthe appellants under POCSO Act.

11. Now, we come back to the reasons given by the High Court inallowing the Criminal Revision and setting aside the order of the POCSOJudge. The judgment of the High Court runs into four paragraphs andthe only reason given by the High Court for allowing the revision isEcontained in paragraph No.3, which is to the following effect:- “3. On going through the depositions of the victim as well as hermother, some overtact and participation on the part of therespondent nos. 3 to 5 are clearly revealing. But, this Court is notinclined to opine either way as the said fact was not stated beforeFthe police at the time of recording of their statements. But, takinginto consideration the provision of Section 319 of the CriminalProcedure Code, this Court deems it appropriate to summon themand put them to trial…………………………”

12. The High Court does not even record any satisfaction that theGevidence on record as revealed by the statement of victim and her mothereven 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 proceedagainst any person who is not named in the F.I.R. or in the Charge Sheetdoes not mean that whenever in a statement recorded before the Court,name of any person is taken, the Court has to mechanically issue processH

under Section 319 Cr.P.C. The Court has to consider substance of theevidence, which has come before it and as laid down by the ConstitutionBench in Hardeep Singh (supra) has to apply the test, i.e., “more thanprima facie case as exercised at the time of framing of charge, but shortof satisfaction to an extent that the evidence, if goes unrebutted, wouldlead to conviction.” Although, the High Court has not adverted to testlaid down by the Constitution Bench nor has given any cogent reasonsfor exercise of power under Section 319 Cr.P.C., but for our satisfaction,we have looked into the evidence, which has come on record before thetrial court as statements of PW3 and PW4. PW3 is mother of thevictim, who has clearly stated that her daughter has informed that shewas abducted by appellants and Natuji, who had taken her to the Morbiin the vehicle of Labhuji. The statement of mother of the victim was anhearsay statement and could not have been relied for proceeding againstthe appellants. Now, coming to the statement of victim, PW4, she hasonly 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 noteven allege complicity of the appellants in the offence. Her furtherstatement was that she was taken to Morbi in the jeep driven by Labhujiand subsequently was taken to Modasa from Morbi in the jeep of Labhujiwhich also could not furnish any basis to proceed against the appellants.The mere fact that the jeep, in which she was taken to Modasa, theappellants were also present cannot be treated to be any allegation ofcomplicity of the appellants in the offence. The observations of the trialcourt while rejecting the application holding that the application appearsto be filed with mala fide intention, has not even been adverted by theHigh Court.

13. We are, thus, of the considered opinion that High Courtcommitted error in setting aside the order of the trial court rejecting theapplication under Section 319 Cr.P.C. The High Court has not givensufficient reasons for allowing the application under Section 319 Cr.P.C.filed by prosecution. The impugned judgment of the High Court isunsustainable and is hereby set aside. The appeal is allowed.

Kalpana K. Tripathy

Appeal allowed.

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