The Lucknow Bench of the Allahabad High Court while allowing an application observed that the provisions of criminal law are stringent and that affects and curtails the right to life and personal liberty of a person and therefore, no order can be passed on the basis of hypothesis unless there is prima facie satisfaction of being much stronger evidence.
A Single Bench of Justice Shree Prakash Singh passed this order while hearing an application under section 482 filed by Vinod Kumar Gupta.
The application has been filed with prayer to quash the order dated 11.12.2008 passed by Additional Sessions Judge FTC(III), Lucknow, arising out of Case under section 376, 120 B IPC, Police Station Naka, district Lucknow and further prayed that the operation, implementation and effect of the order dated 11.12.2008 passed by the Additional Sessions Judge / FTC-III, Lucknow may be stayed.
The facts of the case are that a first information report was lodged by the victim/prosecutrix at police station-Naka, District- Lucknow under section 376 of IPC, wherein, Asha @Sanjana and two unknown persons were implicated.
It has been alleged in the first information report that the prosecutrix was traveling with one Asha @ Sanjana on 27.07.2007 and while reaching at Charbagh Railway Station, she met with two other unknown persons, though were known to Asha @ Sanjana and they took away the prosecutrix along with Asha to nearby hotel and thereafter, they committed rape with her.
From perusal of the order sheet, it is evident that on 20.10.2022, the Court has passed the order and noted that from perusal of the report dated 22.01.2020 submitted by the Chief Metropolitan Magistrate, Kanpur Nagar reveals that the victim in the case has changed her place of residence and shifted to some other unknown place, which is not known to anyone and under the aforesaid circumstances, the notice could not be served.
After thorough investigation in the matter, the chargesheet was filed on 08.10.2007, under section 376 and 120B of IPC, against Asha @ Sanjana and Sagar Sinha and during course of the trial, which was numbered as Sessions Trial (State Vs Smt Asha @ Sanjana and others), an application was instituted by the prosecutrix under section 319 of Cr.P.C, on 29.08.2008, with prayer to summon Manish Dubey and Rajesh Yadav, as accused persons, who basically said to have committed rape upon prosecutrix, on the date of the incident.
The application moved by the prosecutrix was allowed by the Sessions court, vide order dated 11.12.2008, whereby, the applicant as well as one other accused, has been summoned. Therefore, the order dated 11.12.2008, which was passed in application under section 319 of Cr.P.C, is under challenge, in the matter.
Contention of the counsel for the applicant is that the trial court summoned the applicant, without there being any evidence against him, as from bare perusal of order dated 11.12.2008, it reveals that Sessions Judge, after the application, moved by the prosecutrix under section 319 of Cr.PC, conducted an inquiry of his own by seeking internal report from some officer of the department of the Indian Railways and on the basis of said internal communication between the trial court and the Railways, the applicant has been summoned.
He submitted that the trial court travelled beyond its jurisdiction and on the basis of presumption, has given its finding that since the applicant was working as Travelling Ticket Examiner (T.T.E), on the date of Incident and therefore, he must be the person, who committed rape with the prosecutrix and not actually the person who are named in the first information report. Further, has also been assumed by the trial court that once the applicant would be produced before the prosecutrix, she could identify the applicant as being involved in the offence.
He furthr submitted that so far as the statement of the prosecutrix is concerned, she initially named some other accused namely, Sagar Sinha and thus, there was no reason to believe that the applicant has committed rape, as there was no evidence except apart the statement of the prosecutrix, before the trial court, for invoking its jurisdiction under section 319 of CrPC. So far as two unknown accused persons said to be involved in offence are concerned, the Investigating Officer, found two persons, other than the applicant, for committing rape with prosecutrix, though the prosecution, ultimately failed to prove its case beyond the reasonable doubt against them.
He said that the trial court has exceeded to its powers vested under section 319 of Cr.P.C and has erroneously passed the impugned order, on the basis of personal opinion regarding involvement of the applicant, in the matter.
The Court observed that,
Having heard counsels for the parties and after perusal of material placed on record, it transpires that initially the FIR was lodged on 01.08.2007, wherein, Asha @ Sanjana and two other accused persons were named, though, the Police filed the chargesheet against Sagar Sinha, under section 376 of CrPC. Thereafter, the trial was concluded and the accused persons, named in the FIR, namely Asha @ Sanjana and Sagar Sinha, were acquitted vide the judgment and order dated 12.05.2014.
Fact remains that the application under section 319 of Cr.P.C was moved on 29.03.2008 before the trial court by the victim herself and thereafter, the impugned order was passed on 11.12.2008. The order dated 11.12.2008 was challenged by the applicant by way of the application, wherein, the interim order was passed on 16.04.2009 and since then, the matter is pending before the Court, whereas, the matter against other accused persons were concluded on 12.05.2014, whereby, those co-accused persons were acquitted.
From bare reading of the impugned order, it emerges that the trial court made some internal correspondence to the department of railways, wherein, it was intimated by the Railways Department that the applicant, including one other accused person, were posted at Charbagh Railway station during the period of alleged occurrence.
It seems that the trial court held on the presumption that since the applicant was also posted at Charbagh Railway Station,therefore, he would have been involved in committing the said offence, proceeded in the matter and invoked the jurisdiction under section 319 of CrPC, and summoned the applicant.
Secondly, the ground of considering the victim’s application under section 319 of CrPC, is that, if the applicant including the other accused persons shall be brought before the prosecutrix, she would identify them, which in fact based on conjecture and surmises. The trial court has based its finding on hypothesis as the evidence which is expected to come into light in future, was considered as one of the strongest grounds for summoning the applicant.
When the Court examines the findings recorded by the trial court, in the impugned order dated 11.12.2008, it emerges that a letter which was sent to the department of Railways, seeking information with respect to posting of the applicant at Charbagh Railway Station and further the response received thereof, are unlawful as there is no such procedure prescribed in Cr.P.C or any other law for the time being inforce, which could empower the trial court to exchange any internal correspondence to any of the agency or institution for reaching upon any conclusion and therefore, so far as the matter is concerned, the trial court has wrongly proceeded, while referring the matter, vide its letter to the department of Railways thereby seeking certain informations. Further such information could not have been treated as evidence, at any stage of the trial.
“The Court is also of considered opinion that the provisions of criminal law are stringent and that affects and curtails the right to life and personal liberty of a person and therefore, no order can be passed on the basis of hypothesis unless there is prima facie satisfaction of being much stronger evidence. In the matter it has categorically been recorded in the impugned order that ‘if the applicant shall be brought before the prosecutrix/victim, she would identify the accused who were involved in the offence.’ This clearly indicates that there is no probability that the applicant was involved in committing an offence.
It is trite law that nature of satisfaction which is required for invoking the power under section 319 of Cr.P.C is analogous to the degree of satisfaction as is required for ‘framing of charges’ and therefore, there requires much stronger evidence than mere probability of the complicity, but so far as the case is concerned, the trial court has failed to follow the above-said test”, the Court further observed while allowing the application.
“Consequently, the order dated 11.12.2008 is hereby set aside and the criminal proceedings of Sessions Trial arising out of Case under section 376, 120 B IPC, Police Station Naka, District Lucknow, are hereby quashed”, the Court ordered.