LABHUJI AMRATJI THAKOR & ORS.versusTHE STATE OF GUJARAT & ANR.

822                     [2018] REPORTS
               SUPREME COURT   13 S.C.R. 822             [2018] 13 S.C.R.


A                  LABHUJI 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,
C     alleging 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 from
      Sexual Offences Act, 2012 – Application was rejected – In Revision
      High Court allowed the application – On appeal, held: Power u/s.
      319 is discretionary and extraordinary, which should be exercised
      sparingly – The test to be applied is one which is more than prima
D
      facie case as exercised at the time of framing of charge, but short of
      satisfaction to the extent that the evidence if rebutted would lead to
      conviction – High Court has not adverted to the above test nor has
      given any cogent reason for exercise of power u/s. 319 – From the
      evidence of the witnesses, complicity of the appellants in the offence
E     is not made out – Application u/s. 319 was rightly rejected by trial
      court.
            Allowing the appeal, the Court
            HELD: Under Section 319 Cr.P.C. Court can proceed
      against any person, who is not an accused in a case before it. The
F     person against whom the Court decides to proceed, “has to be a
      person whose complicity may be indicated and connected with
      the commission of the offence”. Power under Section 319 Cr.P.C.
      is a discretionary and extraordinary power, which should be
      exercised sparingly and only in those cases where the
G     circumstances of the case so warrant. [Paras 7 and 9][826-D-E;
      827-D]
            2. The High Court does not even record any satisfaction
      that the evidence on record as revealed by the statement of victim
      and her mother, even makes out a prima facie case of offence
H     against the appellants. The mere fact that Court has power under
                                      822
  LABHUJI AMRATJI THAKOR v. THE STATE OF GUJARAT                       823


Section 319 Cr.P.C. to proceed against any person who is not           A
named in the F.I.R. or in the Charge Sheet does not mean that
whenever in a statement recorded before the Court, name of any
person is taken, the Court has to mechanically issue process
under Section 319 Cr.P.C. The Court has to consider substance
of the evidence, which has come before it and has to apply the
                                                                       B
test, i.e., “more than prima facie case as exercised at the time of
framing of charge, but short of satisfaction to an extent that the
evidence, if goes unrebutted, would lead to conviction.” The High
Court has not adverted to the above test nor has given any cogent
reasons for exercise of power under Section 319 Cr.P.C. The
statement of mother of the victim (PW3)was an hearsay statement        C
and could not have been relied for proceeding against the
appellants. PW4, in her statement does not even allege complicity
of the appellants in the offence. The mere fact that the jeep, in
which she was taken, the appellants were also present, cannot
be treated to be any allegation of complicity of the appellants in
                                                                       D
the offence. The observations of the trial court while rejecting
the application holding that the application appears to be filed
with mala fide intention, has not even been adverted by the High
Court. The High Court committed error in setting aside the order
of the trial court rejecting the application under Section 319
Cr.P.C. [Paras 12 and 13][828-G-H; 829-A-F]                            E
      3. In the present case, there are not even suggestion of
any act done by appellants amounting to an offence referred to in
Sections 3 and 4 of the Protection of Children from Sexual
Offences Act, 2012. Thus, there was no occasion to proceed
against the appellants under the 2012 Act. [Para 10][828-D]            F
      Hardeep Singh v. State of Punjab & Others (2014) 3
      SCC 92 : [2014] 2 SCR 1 – referred to.
                      Case Law Reference
[2014] 2 SCR 1                 referred to            Para 3           G
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1349 of 2018.
      From the Judgment and Order dated 30.04.2018 of the High Court
of Gujarat at Ahmedabad in Criminal Revision Application No. 277 of
2017.                                                                  H
824            SUPREME COURT REPORTS                       [2018] 13 S.C.R.


A           D. N. Ray, Dillip Kumar Nayak, Ms. Disha Ray, Mrs. Sumita
      Ray, 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 the
      appellants challenging the judgment dated 30.04.2018 of High Court of
      Gujarat by which judgment Criminal Revision Application filed by
      complainant-respondent No.2 has been allowed by setting aside the order
      dated 01.12.2016 of Additional District & Sessions Judge, who had
C     rejected the application filed by the prosecution for proceeding against
      the appellants in Special POCSO Case No. 10/2016.
            2. The brief facts of the case as emerged from the material on
      record are as follows:-

D           2.1 The complainant-respondent No.2 lodged a First Information
            Report on 27.05.2015 under Sections 363 and 366 of Indian Penal
            Code (hereinafter referred to as “I.P.C.”) and under Sections 3
            and 4 of the Protection of Children from Sexual Offences Act,
            2012 (hereinafter referred to as “POCSO ACT”) that her daughter
            Parvati aged 14 years has been abducted by one Natuji Bachuji
E           Thakor between the night of 26.05.2015 and morning hour of
            27.05.2015. It was further alleged that Natuji Bachuji Thakor
            used to visit my daughter and has given a mobile phone to her,
            after coming to know of which fact, complainant had warned
            Natuji. After receiving the First Information Report, Police
F           conducted investigation and submitted a Charge Sheet under
            Sections 363 and 366 of I.P.C. and Sections 3 and 4 of POCSO
            ACT against Natuji Bachuji Thakor, the accused. The statement
            of 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.
G           The statement of PW3 Kanchanben, the mother of victim was
            recorded. The statement of victim was also recorded as PW4.
            2.2 An application under Section 319 of the Code of Criminal
            Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) was filed
            by the Additional Public Prosecutor, where it was stated that in
H
  LABHUJI AMRATJI THAKOR v. THE STATE OF GUJARAT                            825
               [ASHOK BHUSHAN, J.]

      the statement of victim, Pw4, she has taken name of Labhuji,          A
      Shashikant and Jituji also, who had taken the victim to Morbi in
      the jeep. Prayer was made to proceed against the appellants also
      by initiating appropriate legal proceedings. The application was
      opposed by the appellants. It was stated in the objection that in
      the statement, which was recorded by Police on 03.07.2015, i.e.
                                                                            B
      immediately after the alleged incident, she nowhere in her long
      statement has taken the name of the appellants and it was only in
      the statement, which was recorded in the Court after more than
      one year on 18.06.2016 that she has stated that the appellants, the
      friends of accused were also alongwith accused Natuji.
      2.3 The learned POCSO Judge after considering the submissions         C
      of the learned counsel for the parties rejected the application.
      The POCSO Judge also observed that prima facie it appears that
      with mala fide intention, the names of the appellants have been
      disclosed. The complainant filed a Criminal Revision against the
      order dated 01.12.2016 rejecting the application, which has been      D
      allowed by the High Court by impugned judgment dated
      13.04.2018. Aggrieved with the said judgment, the appellants have
      come up in this appeal.
      3. Learned counsel for the appellants submits that High Court
without there being any valid reason for exercising Jurisdiction under      E
Section 319 Cr.P.C. has reversed the order of POCSO Judge rejecting
the application under Section 319 Cr.P.C. It is submitted that there was
no evidence on record on the basis of which it can even be prima facie
found that appellants had also committed the offence. Learned counsel
submits that judgment of High Court does not take into consideration the
Constitution Bench judgment of this Court in Hardeep Singh Vs. State        F
of Punjab & Others, (2014) 3 SCC 92.
      4. Learned counsel appearing for the respondent refuting the
submission of counsel for the appellants contends that the name of the
appellants having been taken both by victim in her statement before the
Court as well as in the statement of the mother of the victim, no error     G
has been committed by the High Court in reversing the order of POCSO
Judge and directing the Court below to proceed against the appellants.
      5. We have considered the submissions of the learned counsel for
the parties and have perused the records.
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826             SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A             6. Section 319 Cr.P.C. provides that where, in the course of any
      inquiry into, or trial of, an offence, it appears from the evidence that any
      person not being the accused has committed any offence for which
      such person could be tried together with the accused, the Court may
      proceed against such person for the offence which he appears to have
      committed. The Court, thus, during the trial on the basis of any evidence
B
      is fully empowered to proceed against any person, whose name was not
      even included in the F.I.R. or the Charge Sheet. The parameters of
      exercise of power under Section 319 Cr.P.C has been explained by this
      Court time and again. It is sufficient to refer to Constitution Bench
      judgment in Hardeep Singh (supra), where this Court had considered
C     the following issue amongst others:-
            “6.4. (iv) What is the nature of the satisfaction required to invoke
            the power under Section 319 CrPC to arraign an accused? Whether
            the power under Section 319(1) CrPC can be exercised only if
            the court is satisfied that the accused summoned will in all likelihood
D           be convicted?”
             7. The Constitution Bench judgment in the above judgment has
      held 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 to
E     proceed, “has to be a person whose complicity may be indicated and
      connected with the commission of the offence”.
            8. Answering the Issue No.(iv) as noticed above, in Paragraph
      Nos. 105 and 106 of the judgment, following was laid down by the
      Constitution Bench:-
F           “105. Power under Section 319 CrPC is a discretionary and an
            extraordinary power. It is to be exercised sparingly and only in
            those cases where the circumstances of the case so warrant. It is
            not to be exercised because the Magistrate or the Sessions Judge
            is of the opinion that some other person may also be guilty of
G           committing that offence. Only where strong and cogent evidence
            occurs against a person from the evidence led before the court
            that such power should be exercised and not in a casual and cavalier
            manner.
            106. Thus, we hold that though only a prima facie case is to be
            established from the evidence led before the court, not necessarily
H
  LABHUJI AMRATJI THAKOR v. THE STATE OF GUJARAT                              827
               [ASHOK BHUSHAN, J.]

      tested on the anvil of cross-examination, it requires much stronger     A
      evidence than mere probability of his complicity. The test that has
      to be applied is one which is more than prima facie case as
      exercised at the time of framing of charge, but short of satisfaction
      to an extent that the evidence, if goes unrebutted, would lead to
      conviction. In the absence of such satisfaction, the court should
                                                                              B
      refrain from exercising power under Section 319 CrPC. In Section
      319 CrPC the purpose of providing if “it appears from the evidence
      that any person not being the accused has committed any offence”
      is clear from the words “for which such person could be tried
      together with the accused”. The words used are not “for which
      such person could be convicted”. There is, therefore, no scope          C
      for the court acting under Section 319 CrPC to form any opinion
      as to the guilt of the accused.”
       9. The Constitution Bench has given a caution that power under
Section 319 Cr.P.C. is a discretionary and extraordinary power, which
should be exercised sparingly and only in those cases where the               D
circumstances of the case so warrant. The crucial test, which has been
laid down as noted above is “the test that has to be applied is one which
is more than prima facie case as exercised at the time of framing of
charge, but short of satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction.” The present is a case, where the
trial court had rejected the application filed by the prosecution under       E
Section 319 Cr.P.C. Further, in the present case, the complainant in the
F.I.R. has not taken the names of the appellants and after investigation
in which the statement of victim was also recorded, the names of the
appellants did not figure. After carrying investigation, the Charge Sheet
was submitted in which the appellants names were also not mentioned           F
as accused. In the statement recorded before the Police, the victim has
named only Natuji with whom she admitted having physical relations
and who took her and with whom she went out of the house in the night
and lived with him on several places. The mother of victim in her
statement before the Court herself has stated that victim girl returned to
the house after one and a half months. In the statement, before the           G
Court, victim has narrated the entire sequence of events. She has stated
in her statement that accused Natuji used to visit her Uncle’s house
Vishnuji, where she met Natuji. She, however, stated that it was Natuji,
who had given her mobile phone. Her parents came to know about she
                                                                              H
828             SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A     having been given mobile phone by Natuji, then they went to the house
      of Natuji and threatened Natuji. After one month, Natuji gave another
      mobile phone to the victim, who had taken it. She stated that in the night
      at 12 ‘o’ clock, Natuji alongwith his three friends had taken her to Morbi
      in a jeep. She further stated that she and Natuji stayed for three days at
      the said place and Natuji had intercourse with her at the said place.
B
      When Natuji came to know about lodging of complaint, he took her to
      Modasa in the jeep. The jeep was given by Labhuji and other two
      appellants were also in the jeep. She further stated that Labhuji, Shashikant
      and Jituji came in the jeep and took her and Natuji to the Police Station,
      where the police interrogated her and she recorded her statement. Natuji
C     was charged with Sections 363 and 366 I.P.C. and Sections 3 and 4 of
      the POCSO Act.
             10. In the present case, there are not even suggestion of any act
      done by appellants amounting to an offence referred to in Sections 3 and
      4 of the POCSO Act. Thus, there was no occasion to proceed against
D     the appellants under POCSO Act.
            11. Now, we come back to the reasons given by the High Court in
      allowing the Criminal Revision and setting aside the order of the POCSO
      Judge. The judgment of the High Court runs into four paragraphs and
      the only reason given by the High Court for allowing the revision is
E     contained in paragraph No.3, which is to the following effect:-
            “3. On going through the depositions of the victim as well as her
            mother, some overtact and participation on the part of the
            respondent nos. 3 to 5 are clearly revealing. But, this Court is not
            inclined to opine either way as the said fact was not stated before
F           the police at the time of recording of their statements. But, taking
            into consideration the provision of Section 319 of the Criminal
            Procedure Code, this Court deems it appropriate to summon them
            and put them to trial…………………………”
            12. The High Court does not even record any satisfaction that the
G     evidence on record as revealed by the statement of victim and her mother
      even 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 proceed
      against any person who is not named in the F.I.R. or in the Charge Sheet
      does not mean that whenever in a statement recorded before the Court,
      name of any person is taken, the Court has to mechanically issue process
H
  LABHUJI AMRATJI THAKOR v. THE STATE OF GUJARAT                               829
               [ASHOK BHUSHAN, J.]

under Section 319 Cr.P.C. The Court has to consider substance of the           A
evidence, which has come before it and as laid down by the Constitution
Bench in Hardeep Singh (supra) has to apply the test, i.e., “more than
prima facie case as exercised at the time of framing of charge, but short
of satisfaction to an extent that the evidence, if goes unrebutted, would
lead to conviction.” Although, the High Court has not adverted to test
                                                                               B
laid down by the Constitution Bench nor has given any cogent reasons
for 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 the
trial court as statements of PW3 and PW4. PW3 is mother of the
victim, who has clearly stated that her daughter has informed that she
was abducted by appellants and Natuji, who had taken her to the Morbi          C
in the vehicle of Labhuji. The statement of mother of the victim was an
hearsay statement and could not have been relied for proceeding against
the appellants. Now, coming to the statement of victim, PW4, she has
only 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 not
                                                                               D
even allege complicity of the appellants in the offence. Her further
statement was that she was taken to Morbi in the jeep driven by Labhuji
and subsequently was taken to Modasa from Morbi in the jeep of Labhuji
which also could not furnish any basis to proceed against the appellants.
The mere fact that the jeep, in which she was taken to Modasa, the
appellants were also present cannot be treated to be any allegation of         E
complicity of the appellants in the offence. The observations of the trial
court while rejecting the application holding that the application appears
to be filed with mala fide intention, has not even been adverted by the
High Court.
       13. We are, thus, of the considered opinion that High Court             F
committed error in setting aside the order of the trial court rejecting the
application under Section 319 Cr.P.C. The High Court has not given
sufficient reasons for allowing the application under Section 319 Cr.P.C.
filed by prosecution. The impugned judgment of the High Court is
unsustainable and is hereby set aside. The appeal is allowed.
                                                                               G

Kalpana K. Tripathy                                          Appeal allowed.




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