Section 319 Cr.P.C – 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 circumstances of the case so warrant.
Section 319 Cr.P.C – 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 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 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 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 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 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 under Section 319 Cr.P.C. The Court has to consider substance of the 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 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 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 even alleged 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 complicity of the appellants in the offence. The observations of the trial court while rejecting the application having 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 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.
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