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IN THE HIGH COURT OF ALLAHABAD
Vikas Budhwar, J.
Smt. Suman - Revisionist
Versus
State of U.P. and Another – Respondents
Criminal Revision No. - 2992 of 2021
Decided On : 13-12-2021
Constitution of India, 1950 - Articles 20 and 21 - Criminal Procedure Code,1973 - Sections 319, 6, 16, 9, 26, 173, 204, 258, 300(5) and 207/208 - Criminal Procedure Code, 1898 - Sections 351, 190(1) and 190 - Evidence Act - Section 3 - Indian Penal Code,1860 - Sections 363, 376(2)(I) and 120-B - Power to proceed against other persons appearing to be guilty of offence - Committing rape - FIR was lodged by opposite party no. 2 reporting that incident took place minor daughter being about 15 years had gone out of her house to bring sugar and when she did not return after lapsing of sufficient time then opposite party no. 2 being father of victim along with other relatives who remain present started searching victim and after a period of about two months - Victim and he took her in a house in where victim was kept in confinement committing rape with her and one day wife came and when victim requested her that she may be allow to go to her house as she wanted to live with her parents - Victim that she has to remain here and she cannot move from there - Left place and kept on committing rape against her wish opposite party no. 2, father of victim had lodged FIR.
Finding of the Court :
Carefully gone through records of present case find that name of revisionist has been specifically taken by opposite party no. 2 in statement recorded u/s 164 Cr.P.C - Magistrate has considered each and every aspect of matter and also analysed import and impact of statement recorded u/s 164 Cr.P.C. of opposite party - Pointed query being raised before learned counsel for revisionist to point out any perversity committed by court below or any jurisdictional error, the learned counsel for revisionist only argued this much that he has not committed any offence and he has been falsely implicated in present case - Counsel for revisionist has argued on factual score that too without any basis - This Court is of firm opinion that there exist sufficient material available with court below for invoking provisions contained - Law so culled out by Hon’ble Apex Court in relation to scope and the ambit of powers u/s 319 Cr.P.C - Learned counsel for revisionist has also not been able to place on record any material to show findings recorded by court below while summoning the revisionist suffers.
Result: Revision dismissed
JUDGMENT :
1. Heard Sri Manoj Kumar Tripathi, learned counsel for the revisionist and learned A.G.A. for the State.
2. The present criminal revision purported to be u/s 397/401 of Cr. P.C. has been instituted challenging the summoning order dated 21.11.2020 passed by learned Additional District and Sessions Judge/Special Judge, POCSO Act, Hapur in Application u/s 319 Cr.P.C. arising out of Special Sessions Trial No. 35 of 2016 as well as case crime no. 218 of 2016, u/s 363, 376 (2) (I) IPC and section 4 of POCSO Act and section 3(2)(5) SC/ST Act, P.S. Hapur Nagar, District Hapur (Sate Vs. Rahul and others) whereby the revisionist has been summoned by the court below in exercise of powers u/s 319 Cr.P.C. 1973.
3. Record reveals that the FIR was lodged by the opposite party no. 2 reporting that the incident took place on 17.01.2016 at 08:35 p.m. wherein the minor daughter being Ms. Chanchal aged about 15 years had gone out of her house to bring sugar and when she did not return after lapsing of sufficient time then the opposite party no. 2 being father of the victim along with other relatives who remain present started searching the victim and after a period of about two months i.e. on 17.03.2016 the victim being Ms. Chanchal herself came back and on making inquiry from her she informed that on 17.01.2016 when she had gone to buy sugar from the nearby shop then Rahul S/o Darshan,R/o Village Achchheja, Hapur Nagar, District Hapur was present there and exerted pressure and force upon the victim and he took her to Keshav Nagar in a house in the Footi Line where the victim was kept in confinement and Rahul S/o Darshan kept on committing rape with her and one day the wife of Rahul being Suman (the applicant) herein came and when the victim requested her that she may be allow to go to her house as she wanted to live with her parents but Suman W/o Rahul did not render any help and told the victim that she has to remain here and she cannot move from there. Thereafter, Suman left the place and Rahul thereafter, kept on committing rape against her wish. Accordingly, the opposite party no. 2, father of the victim had lodged the FIR on 17.03.2016 before the police station Hapur Nagar being case crime no. 218 of 2016 and on 17.03.2016 purported to be u/s 363, 376 (2) (I) , 120-B IPC and Section 3/4 POCSO Act.
4. The statement of the victim (Ms. Chanchal) purported to be under section 161 Cr.P.C. was recorded which was conformity and consonance with the allegation contained in the FIR dated 17.03.2016. Subsequently, on 18.03.2016 the statement of the victim was also recorded u/s 164 Cr. P.C. It has also come on record that the statement of opposite party no. 2 being father of the victim was also recorded. Further this Court finds that during investigation, the Investigating Officer also recorded statements of the witnesses being Satish, Smt. Pooja, Smt. Malti Devi and Shivbaran Singh u/s 161 Cr.P.C. and they have also supported the statement of the victim.
5. Thereafter, on 02.05.2016 a charge sheet was submitted by the Investigating Officer in case crime no. 218 of 2016 bearing no. 196 of 2016, u/s 363, 376 (2) (I) IPC and Section 3/4 POCSO Act and section 3(2)(5) SC/ST Act against the husband of the applicant, namely, Rahul only. However, subsequently, on 20.11.2020 an application was preferred by the opposite party no. 2 that the charge sheet has only been submitted against Rahul not against the applicant being Smt. Suman, Layak Ram and Raja Ram who were also named in the FIR dated 17.03.2016 and they have been exonerated despite the fact that they had also committed the offence as sought to be revealed in pursuance of lodging of the FIR.
6. The court of Additional District and Sessions Judge/ Special Judge, POCSO Act, Hapur has now exercised its power u/s 319 Cr.P.C. 1973 while summoning the applicants.
7. The applicant being aggrieved against the order dated 21.11.2020 passed by the court u/s 319 Cr.P.C. in the proceedings in Special Sessions T
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