While leaving not even a single layer of doubt to hover over the provisions of criminal law and orders to be passed based on it, the Lucknow Bench of Allahabad High Court in a most learned, laudable, landmark and latest judgment titled Vinod Kumar Gupta vs State of UP in Application u/s 482 No. – 58 of 2009 and cited in Neutral Citation No. – 2023:AHC-LKO:59795 that was reserved on September 11 and then finally pronounced on September 18, 2023 has minced just no words absolutely to state in most certain terms that the provisions of criminal law are stringent and no order can be passed on hypothesis unless there is prima facie satisfaction of being much stronger evidence. This was held so while setting aside the Trial Court judgment dated 11.12.2008 passed by Additional Sessions Judge FTC(III), Lucknow in this leading case law. It must be noted that the Single Judge Bench of Hon’ble Mr Justice Shree Prakash Singh was dealing with the application that was filed by Vinod Kumar Gupta under Section 482 of CrPC to quash the order passed by the Additional Sessions Judge arising out of a case that had been registered under Sections 376, 120B IPC in Police Station of Naka in Lucknow district. The order passed was thus quashed by the Lucknow Bench of Allahabad High Court.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Shree Prakash Singh of Lucknow Bench of Allahabad High Court sets the ball in motion by first and foremost putting forth in para 2 that, “Instant application has been filed with prayer to quash the order dated 11.12.2008 passed by Additional Sessions Judge FTC(III), Lucknow, in S.T. Case No. 119 of 2008 (State Versus Smt. Asha Alias Sanjana and others), arising out of Case Crime No. 271 of 2007, under section 376, 120 B IPC, Police Station Naka, district Lucknow and further prayed that the operation, implementation and effect of the order dated 11.12.2008 passed by the Additional Sessions Judge/FTC-III, Lucknow may be stayed.”
To put things in perspective, the Bench envisages in para 3 that, “Factual matrix of the case is that first information report was lodged bearing case crime no. 271 of 2007, by the victim/prosecutrix at police station-Naka, District-Lucknow under section 376 of IPC, wherein, Asha @Sanjana and two unknown persons were implicated. It has been alleged in the first information report that the prosecutrix was traveling with one Asha @ Sanjana on 27.07.2007 and while reaching at Charbagh Railway Station, she met with two other unknown persons, though were known to Asha @ Sanjana and they took away the prosecutrix along with Asha to nearby hotel and thereafter, they committed rape with her.”
As we see, the Bench then discloses in para 4 that, “From perusal of the order sheet, it is evident that on 20.10.2022, this Court has passed the order and noted that from perusal of the report dated 22.01.2020 submitted by the Chief Metropolitan Magistrate, Kanpur Nagar reveals that the victim in this case has changed her place of residence and shifted to some other un-known place, which is not known to anyone and under the aforesaid circumstances, the notice could not be served. Now this Court is proceeding in the matter.”
As it turned out, the Bench then points out in para 5 that, “After thorough investigation in the matter, the chargesheet was filed on 08.10.2007, under section 376 and 120B of IPC, against Asha @ Sanjana and Sagar Sinha and during course of the trial, which was numbered as Sessions Trial No. 119 of 2008 (State Vs Smt Asha @ Sanjana and others), an application was instituted by the prosecutrix under section 319 of Cr.P.C., on 29.08.2008, with prayer to summon Manish Dubey and Rajesh Yadav, as accused persons, who basically said to have committed rape upon prosecutrix, on the date of the incident. The application moved by the prosecutrix was allowed by the Sessions court, vide order dated 11.12.2008, whereby, the applicant as well as one other accused, has been summoned. Therefore, the order dated 11.12.2008, which was passed in application under section 319 of Cr.P.C., is under challenge, in the present matter.”
Do note, the Bench then notes in para 20 that, “Having heard learned counsels for the parties and after perusal of material placed on record, it transpires that initially the FIR was lodged on 01.08.2007, wherein, Asha @ Sanjana and two other accused persons were named, though, the Police filed the chargesheet against Sagar Sinha, under section 376 of Cr.P.C. Thereafter, the trial was concluded and the accused persons, named in the FIR, namely Asha @ Sanjana and Sagar Sinha, were acquitted vide the judgment and order dated 12.05.2014.”
Truth be told, the Bench points out in para 21 that, “Fact remains that the application under section 319 of Cr.P.C. was moved on 29.03.2008 before the trial court by the victim herself and thereafter, the impugned order was passed on 11.12.2008. The order dated 11.12.2008 was challenged by the applicant by way of the present application, wherein, the interim order was passed on 16.04.2009 and since then, the matter is pending before this Court, whereas, the matter against other accused persons were concluded on 12.05.2014, whereby, those co-accused persons were acquitted.”
It would be germane to note that the Bench notes in para 22 that, “From bare reading of the impugned order, it emerges that the trial court made some internal correspondence to the department of railways, wherein, it was intimated by the Railways Department that the present applicant including one other accused person, were posted at Charbagh Railway station during the period of alleged occurrence. It seems that the trial court on the presumption that since the present applicant was also posted at Charbagh Railway Station, therefore, he would have involved in committing the said offence, proceeded in the matter and invoked the jurisdiction under section 319 of Cr.P.C., and summoned the applicant.”
Adding more to it, the Bench then specifies succinctly in para 23 stating that, “Secondly, the ground of considering the victim’s application under section 319 of Cr.P.C., is that, if the applicant including the other accused persons shall be brought before the prosecutrix, she would identify them, which in fact based on conjecture and surmises. The trial court has based its finding on hypothesis as the evidence which is expected to come into light in future, was considered as one of the strongest ground for summoning the present applicant.”
Most forthrightly, the Bench observed in para 24 that, “When this Court examines the findings recorded by the trial court, in the impugned order dated 11.12.2008, it emerges that a letter which was sent to the department of Railways, seeking information with respect to posting of the applicant at Charbagh Railway Station and further the response received thereof, are unlawful as there is no such procedure prescribed in Cr.P.C. or any other law for the time being in force, which could empower the trial court to exchange any internal correspondence to any of the agency or institution for reaching upon any conclusion and therefore, so far as the present matter is concerned, the trial court has wrongly proceeded, while referring the matter, vide it’s letter to the department of Railways thereby seeking certain informations. Further such information could not have been treated as an evidence, at any stage of the trial.”
Most significantly, what constitutes the backbone of this notable judgment is then laid bare in para 25 wherein it is mandated that, “This Court is also of considered opinion that the provisions of criminal law are stringent and that affects and curtails the right to life and personal liberty of a person and therefore, no order can be passed on the basis of hypothesis unless there is prima facie satisfaction of being much stronger evidence. In the present matter it has categorically been recorded in the impugned order that ‘if the applicant shall be brought before the prosecutrix/victim, she would identify the accused who were involved in the offence.’ This clearly indicates that there is no probability that the present applicant was involved in committing offence.”
Quite forthrightly, the Bench propounds in para 26 that, “It is trite law that nature of satisfaction which is required for invoking the power under section 319 of Cr.P.C. is analogous to the degree of satisfaction as is required for ‘framing of charges’ and therefore, there requires much stronger evidence than mere probability of the complicity, but so far as the present case is concerned, the trial court has failed to follow the above-said test.”
Be it noted, the Bench notes in para 27 that, “Further, there is un-rebutted contention of counsel for the applicant that the applicant is 57 years of age and he is suffering with Carcinoma of advanced stage. Though, the same do not have any legal consequence, but it prima facie corroborates the arguments.”
While mentioning the most relevant case laws, the Bench then hastens to add in para 28 that, “This Court is also not unmindful to the judgment of Apex Court rendered in Hardeep Singh Versus State of Punjab and Others and Labhuji Amratji Thakor and others Versus State of Gujarat and another (Supra), which also supports the version of the applicant.”
Resultantly, the Bench then directs aptly in para 29 holding that, “Consequently, the impugned order dated 11.12.2008 is hereby set aside and the criminal proceedings of Sessions Trial No. Case No. 119 of 2008 (State Versus Smt. Asha Alias Sanjana and others) arising out of Case Crime No. 271 of 2007 under section 376, 120 B IPC, Police Station Naka, District Lucknow, are hereby quashed.”
In sum, we thus see that the Lucknow Bench of Allahabad High Court has made it indubitably clear that the provisions of criminal law are stringent and so no order can be based on hypothesis. The bottom-line of this learned judgment is that there has to be much stronger evidence to convict a person than mere conjectures, hypothesis and surmises! No denying it!
Sanjeev Sirohi