Sanjay Kumar vs State of Madhya Pradesh

S.K. Palo, J.—Heard.

The petitioner has filed this revision under Section 397 read with Section 401 of Cr.P.C. for setting aside the impugned order dated 27.10.2013 passed by II Additional Sessions Judge, Sabalgarh district Morena in Sessions Trial No. 116/2009, whereby cognizance under Section 377 of IPC has been taken against the petitioner invoking the provision of Section 319 of Cr.P.C.

Briefly stated the prosecution story is that on 17.10.2007 Padmnabh Sharma lodged a report that 11 accused persons committed sodomy (unnatural sexual intercourse) with his son Pradeep Sharma during the period of last six months. FIR was lodged and Crime No. 75/2007 under Sections 377 and 506 read with Section 34 of IPC was registered against 11 accused persons. During the investigation, Station House Office, Police Station Rampurkalan and Sub-Divisional Officer (Police) Sabalgarh submitted their reports that the present petitioner Sanjay Kumar and Ashok Kumar Goswami have been falsely implicated in the case. These reports are Annexures P-1 and P-2.

However during the trial after recording the statement of victim Pradeep Sharma (Annexure P-3), complainant Padmnabh Sharma filed an application under Section 319 of Cr.P.C. for arraying the petitioner and Ashok Kumar Goswami as accused persons in the case, which was allowed by the learned Trial Court by the impugned order.

Aggrieved by the same, the petitioner has filed this present revision on the ground that the complainant while lodging the report did not name the applicant nor he named the applicant in his statement recorded under Section 161 Cr.P.C.. In the evidence collected during the investigation also the name of the petitioner is not reflected. But in his statement during the trial the statements of complainant and his son were recorded. In the statements, the name of the petitioner is reflected for the first time. In this flimsy ground, no conviction can be based. Therefore, the impugned order is not sustainable in the eyes of law. Learned Trial Court erred in taking cognizance against the petitioner and Ashok Kumar Goswami. The FIR was also lodged six months after the alleged incident. Therefore, prayed that the impugned order be set aside.

Learned counsel for the petitioner has travelled us through the statement of Pradeep Sharma (PW-5) and strenuously argued that when the petitioner has not been named in the FIR nor in the Police Statement under Section 161 of Cr.P.C.. In the reports of SHO (Annexure P-1) and report of SDO(P) (Annexure P-2), the petitioner and Ashok Kumar Goswami are held to be falsely implicated. On the basis of deposition of the complainant, taking cognizance against the petitioner is unsustainable.

Learned counsel for the petitioner placed reliance on Palanisamy Gounder and Another Vs. State Represented by Inspector of Police, , in which it is held that:-

"Criminal Procedure Code, 1973 - S. 319 - Addition of additional accused under - When warranted - Held, only when there is a reasonable prospect of case against such accused ending in their conviction -A fishing inquiry is not contemplated - It is not enough that it might be necessary to implead such accused to find out the real truth, even though there is no solid foundation of a case against them - Hence appellant - accused struck off from record."

The name of the petitioner appeared in the report lodged by the father of the complainant. Subsequently, the victim named in the deposition. Therefore, the above citation is of no avail to the petitioner.

Reliance has also been placed in Brindaban Das and Others Vs. State of West Bengal, , in which it is held that:-

"The fulcrum on which the invocation of S. 319, Cr.P.C. rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned. Further, it is only logical that there must be substantive evidence against a person in order to summon him for trial, although, he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction."

The facts of the is different. The petitioner is named in the FIR, therefore, the case of Brindaban Das (supra) is not applicable in the present case.

It is also stated by the learned counsel for the petitioner that the provision of Section 319 of Cr.P.C. cannot be utilized only because first informant or one of the witness seeks to implicate other persons - sufficient and cogent reasons are to be assigned by the Court. Learned counsel for the petitioner further placed reliance on Sarabjit Singh and Another Vs. State of Punjab and Another, . Learned counsel for the petitioner also placed reliance on Harchand Singh and Another Vs. State of Haryana, , in which Hon''ble the Apex Court has opined that "if two sets of evidence, each one of which contradicts the other, it is difficult to found the conviction of the accused". Therefore, it is contended by the learned counsel that the view favourable to the accused should be adopted.

These citations are related to the final adjudication of the case. Therefore, the name are not applicable at this stage in the present case.

A perusal of the statement of the victim Pradeep Sharma (PW-5) at Para - 6 clearly shows that he has described the incident and the act of the applicant/implicated the present petitioner and given the details of the incident. It would not be out of context to mention here that in the FIR dated 17.10.2007 Crime No. 75/2007 registered at Police Station Rampurkalan the name of applicant Sanjay Kumar is reflected. In the report of SHO (Annexure P-1), it is opined that because of grudge, name of the petitioner Sanjay Kumar appeared in the FIR. In report (Annexure P-2), it is mentioned that the petitioner was called upon by the Enquiry Officer, Mr. S.S. Chahal, SDO(P). The petitioner himself stated that he is being implicated by the complainant. Therefore, he found that presence of constable Ashok Kumar and constable (SAF) Sanjay Kumar (present petitioner) were not found proved in the crime. The inquiry of SHO on 04.07.2008 and by the SDOP on 14.07.2008 itself creates suspicion, more so a roving inquiry is not warranted at this stage. The statement of the complainant who was a minor at the time of incident cannot be discarded lightly.

The petitioner has preferred this revision under Section 397 read with Section 401 of Cr.P.C.. In the revision, the scope is very limited. Learned Trial Court on the basis of the evidence of the complainant victim has passed the impugned order.

So far as Section 319 of Cr.P.C. is concerned, the exercise of this power is purely discretion of the Court and in order to exercise the power, the Court has objectively satisfied itself that the evidence warrant that a person not brought for trial, should be required to face the trial. At the outset, it can also be said that if the petitioner is not found guilty, he may get the benefit of acquittal but at this stage, when there is prima facie case, it is sufficient for the Court to implead him as an accused. At this stage, it is not required that the evidence should be sufficient for conviction. In this regard, Mohan Wahi Vs. State (Central Bureau of Investigation), New Delhi, and Radharani Panda Vs. Arnapurna Padhi alias Panda and Another, may be followed.

In the present case, the petitioner was named in the FIR and charge-sheet has not been filed by the Police against him. After the complainant''s statement, learned Trial Court summoned him under Section 319 of Cr.P.C. as an accused to stand trial for the offences punishable under Section 377 of IPC. Therefore, this Court finds no irregularity, illegality or impropriety in the impugned order. That being so, the revision sans merits and is dismissed.