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Protection of children from sexual offences act-The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. Subsection 4 of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that subsection cannot stand in the way of the High Court exercising revisional jurisdiction suo motu.
[See the full post at: Kumar Ghimirey Vs. State of Sikkim-22/04/2019] -
LABHUJI AMRATJI THAKOR & ORS. Vs THE STATE OF GUJARAT & ANR. – [2018] 13 S.C.R. 822
Power under Section 319 Cr.P.C. is a discretionary and extraordinary power
Judge Name: A.K. SIKRI, ASHOK BHUSHAN, AJAY RASTOGI
U/ss. 3 and 4 of the Protection of Children from Sexual Offences Act, 2012
(Criminal Appeal No. 1349 of 2018)
NOVEMBER 13, 2018
s. 319 – Power under – Scope of – Application under s. 319, 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 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 is not made out – Application u/s. 319 was rightly rejected by trial court.
SC HELD: 1-Under Section 319 Cr.P.C. Court can proceed
against any person, who is not an accused in a case before it. The
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 circumstances of the case so warrant. [Paras 7 and 9][826-D-E; 827-D]1-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 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.” 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 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 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]
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]
Hardeep Singh v. State of Punjab & Others (2014) 3 SCC 92 : [2014] 2 SCR 1 – referred to.
The above case has been referred by ↓
RAMESH CHANDRA SRIVASTAVA Vs THE STATE OF U. P. & ANR. – [2021] 6 S.C.R. 219
MANI PUSHPAK JOSHI Vs STATE OF UTTARAKHAND & ANR. – [2019] 13 S.C.R. 819
PERIYASAMI AND ORS. Vs S. NALLASAMY – [2019] 2 S.C.R. 1005
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