MANI PUSHPAK JOSHIversusSTATE OF UTTARAKHAND & ANR.

                          [2019] 13 S.C.R. 819                            819


                     MANI PUSHPAK JOSHI                                   A
                                  v.
              STATE OF UTTARAKHAND & ANR.
                 (Criminal Appeal No. 1517 of 2019)
                        OCTOBER 17, 2019                                  B
     [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
       Code of Criminal Procedure, 1973 - s.319 and ss.161, 164
- FIR lodged by the father of prosecutrix (aged about 6 years)
about sexual assault on her - Prosecutrix in her statement inter
                                                                          C
alia stated that after she returned to her classroom, two men came;
one of them wore spectacles and the other did not, and took her
out from there- She deposed that two men had touched her before
also and assaulted her five times earlier secretly in the garden -
Appellant is said to be the person who was wearing spectacles, as
identified by the victim - Application filed to summon the appellant      D
- On appeal, held: Prosecutrix is a small child - Initial version of
the father of the prosecutrix and the prosecutrix herself, as
disclosed by her father in the FIR, is assault by one person - It is
parents of the child who took the photographs either from the
website of the School or from the Facebook to introduce a person
with spectacles as an accused- Obviously, the father of the child         E
must have anger against the management of the School as his child
was violated when she was studying in the School managed by the
appellant - But, the anger of the father against the management
of the School including the appellant is not sufficient to make him
to stand trial for the offences punishable u/s.376(2), IPC r/w ss.        F
5/6 of the POCSO Act - No prima facie case of any active part on
the part of the appellant is made out in violating the small child -
It is suggestive role of the family which influences the mind of the
child to indirectly implicate the appellant - Fact that the prosecution
after investigations has found no material to charge the present
appellant also cannot be ignored - Heinous crime committed should         G
not be led into prosecuting a person only because he was part of
the management of the School - Order passed by the Trial Court
to summon the appellant u/s.319 of the Code is set aside - Penal
Code, 1860 - s.376(2) - Protection of Children from Sexual
Offences Act, 2012 - ss. 5, 6.
                                                                          H
                                 819
820           SUPREME COURT REPORTS                    [2019] 13 S.C.R.


A          Allowing the appeal, the Court

            HELD: 1.1 The order summoning the appellant for the
      offences under Section 376(2) of the Indian Penal Code, 1860
      read with Sections 5/6 of the Protection of Children from Sexual
      Offences Act, 2012 is not sustainable in law. The prosecutrix is
B     a small child. It is parents of the child who have taken the
      photographs either from the website of the School or from the
      Facebook to introduce a person with spectacles as an accused.
      The initial version of the father of the prosecutrix and of the
      prosecutrix herself, as disclosed by her father in the FIR, is
C     assault by one person. But in view of statement of PW-11, the
      anger was directed against the Management of the School of
      which the appellant is a part. Even if the father of the child has
      basis to be angry with the Management of the School but, no
      prima facie case of any active part on the part of the appellant
D     is made out in violating the small child. The involvement of other
      persons on the statement of the child of impressionable age
      does not inspire confidence that the appellant is liable to be
      proceeded under Section 319 of the Code. In fact, it is
      suggestive role of the family which influences the mind of the
      child to indirectly implicate the appellant. Obviously, the father
E
      of the child must have anger against the Management of the
      School as his child was violated when she was studying in the
      School managed by the appellant but, the anger of the father
      against the Management of the School including the appellant
      is not sufficient to make him to stand trial for the offences
F     punishable under Section 376(2) of the IPC read with Sections
      5/6 of the POCSO Act. [Paras 9, 13-15] [827-F-G; 828-A-D]
            1.2 The statement of the child so as to involve a person
      wearing spectacles as an accused does not inspire confidence
      disclosing more than prima facie to make him to stand trial of
G     the offences. Therefore, the order of summoning the appellant
      under Section 319 of the Code is not legal. The fact, that the
      prosecution after investigations has found no material to charge
      the present appellant is also cannot be ignored. The heinous
      crime committed should not be led into prosecuting a person
H     only because he was part of the Management of the School.
                   MANI PUSHPAK JOSHI v. STATE OF                            821
                      UTTARAKHAND & ANR.

There is no prima facie case against the appellant, which warrants           A
his trial for the offences pending before the Court. The order
passed by the Trial Court to summon the appellant under Section
319 of the Code is set aside and the application is dismissed.
[Paras 16-17] [828-E-G]
         Hardeep Singh v. State of Punjab & Ors. (2014) 3 SCC                B
         92 – followed.
         Labhuji Amratji Thakor and Others v. State of Gujarat
         and Others AIR 2019 SC 734 – relied on.
                         Case Law Reference
                                                                             C
(2014) 3 SCC 92                      followed              Para 11
AIR 2019 SC 734                      relied on             Para 12
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1517 of 2019.
      From the Judgment and Order dated 03.04.2019 of the High               D
Court of Uttarakhand at Nainital in Criminal Revision No. 89 of 2019.
      Naresh Kaushik, Manoj Joshi, Mrs. Lalita Kaushik, Sandeep
Tiwari, Girish Chandra Joshi and Vardhman Kaushik, Advs. for the
Appellant.
                                                                             E
       Kuldeep Parihar, Dy. A.G., Ms. Aishwarya Bhati, Sr. Adv.,
Jaswant Singh Rawat, Ms. Rachna Gandhi, Ajeet Pandey, Sanpreet
Singh Ajmani, Varun Mishra, Ms. Chitrangada Rastravara, Manohar
Pratap, Jugal Kishore Gupta, Kuldeep Rai and Ms. Manju Jetley, Advs.
for the Respondents.
         The Judgment of the Court was delivered by                          F

         HEMANT GUPTA, J.
       1. The challenge in the present appeal is to an order passed by
the High Court of Uttarakhand at Nainital on April 3, 2019 whereby,
revision against an order of summoning of appellant under Section 319
                                                                             G
of the Code of Criminal Procedure, 19731 remained unsuccessful.
      2. An FIR was lodged by Harpreet Singh, father of prosecutrix
(aged about 6 years), on April 19, 2017 at 1:23 p.m., about sexual assault
on her daughter. The FIR reads as under:
1
    for short, ‘Code’                                                        H
822            SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A           “My daughter xxxx who is 6 years old has been mentally and
            physically harassed for 4-5 months in her school Aurum the Global
            School Haldwani. My daughter was very upset mentally for
            several days and would cry bitterly when asked to go to School.
            On my asking several times, she told me and my wife that in
            her School a teacher touched her private parts deliberately. He
B
            would take her to the bathroom, close her eyes and then would
            insert a stick like object in her vagina. This teacher had frightened
            her and he had instigated her not to talk about this matter to
            anyone. My daughter even told me that, whenever she went to
            the bathroom, he would follow her, and molest her there. Today,
C           we showed the picture of this teacher to our daughter by the
            medium of facebook, she recognized him, and as a result we came
            to know that the name of this teacher is Bablu Bisht. Sir, the
            owner of the School Ankit Joshi, Principal Gauri Vohra and Class
            Teacher Nameeta Joshi are equally guilty (at fault) in this case.
            It is there pleaded of you, to kindly take stern action against the
D
            culprits.”
            3. After FIR was lodged, the statement of the victim was
      recorded by the Investigating Officer under Section 161 of the Code
      on April 19, 2017. Some of the relevant extracts from the statement
      read as under:
E
            “When father enquired so I told my father about Bablu Uncle's
            incident, my mother was also there. Bablu Uncle did these things
            earlier also - 3 days earlier he did the same thing. Ever since, I
            came to class first, he has done the same thing thrice.
F           Question: Do you recall any earlier instance when Bablu Uncle
            or somebody from house or school did something like this with
            you?
            Answer: Aunty when I study in lkg and ukg then also sometimes
            Bablu Uncle did these things with me, apart from this nobody
G           else has ever done anything with me.”
             4. Later, another statement of the prosecutrix was recorded
      under Section 161 of the Code on April 22, 2017 wherein, she stated
      that after she returned from washroom, two Uncles came and picked
      her away. In response to another question, the child responded that
H     these two persons work outside school. In respect of a question whether
            MANI PUSHPAK JOSHI v. STATE OF                                  823
        UTTARAKHAND & ANR. [HEMANT GUPTA, J.]

she has seen these persons earlier, the answer was that they used to        A
roam in the School. Relevant extract of the statement read as under:
      “On showing print photographs, which were taken from school
      website by the parents of the kid, the girl said yes to the photo
      of Bablu Bisht and pointed towards one more photograph of
      another person. When we asked her whether she has told to her         B
      madam about this incident, she replied that she has told four
      times.”
       5. It is thereafter, statement of the prosecutrix was recorded
under Section 164 of the Code on April 24, 2017 where she deposed,
for the first time, that after she returned to her classroom, two men       C
came; one of them wore spectacles and other did not. They took her
out from there. She deposed that two men had touched her before also.
She also deposed that she has told her parents about the incident and
that two persons assaulted her five times earlier secretly in the garden.
The appellant is said to be the person who was wearing spectacles.
On the basis of the evidence collected by the investigating team, charge    D
sheet was filed against Bablu Bisht alias Balwant Singh. The prosecution
has examined Harpreet Singh, father of the prosecutrix as PW-1 who
has deposed as under:
      "When I asked her what had happened, she did not tell anything.
      After I took her in confidence and asked her what had happened,       E
      she asked me to promise that I would not take her to the school
      and on this she told me that in school one teacher uncle harassed
      her and touched her in her private parts (place of urination) and
      inserts and exerts a rod like object in my place of urination.
      Saying this, the witness said that I had nothing left to console      F
      her. I assured her that we would not be sending her to that
      school now. After this, I and my family wept for a long time.
      (stating the above matter, the witness wept in the court as well).
      After this, my wife took my daughter to a separate place, while
      I searched the profile of the male members of the school. Four        G
      male members were found. I enlarged these photos individually
      and showed it to my child; three of these people she refused and
      when the photo of Bablu Bisht was shown to her, she would not
      speak and become silent (quite). When I asked her again, she
      again insisted that she will not go to school, only then with fear
      she said that he harassed her.                                        H
824            SUPREME COURT REPORTS                        [2019] 13 S.C.R.


A           After this I did not speak further to my daughter on this matter.
            I talked to her about other things to assure her that we would
            not send her to that school. After this I went to my brother
            Manpreet Singh's house and told him everything about the
            incident that had happened with Harleen. Then I registered a
            complaint report about the incident in Haldwani police station on
B           19.04.2017.
            The witness on seeing the document no. 3A/2, a printed complaint,
            said that this report was prepared by me and I had submitted it
            in the police station after putting my signatures on this. The
            witness endorsed his signature on this document. This document
C           was marked as exhibit A-1. After this, keeping her security in
            consideration we sent her to another school for her studies.
            The witness himself stated today that the invigilator had asked
            him to bring the print out of the photographs taken out from the
            face book. On this, we extracted the picture of the teacher,
D           owner and the principal, and showed them to the child, she said
            that the man wearing spectacles also held her hands and harassed
            her. The man in spectacles was the owner of the school."
            6. The prosecutrix appeared as PW-2. The witness identified two
      persons, one with spectacles when the photographs were shown to her.
E           7. Supreet Kaur (PW-10), mother of the prosecutrix, stated that
      her daughter told her that two persons troubled her, one of them was
      wearing spectacles.
             8. Gauri Vohra (PW-11) is the Principal of the School in which
      the prosecutrix was the student. The extract from her statement relevant
      for the present controversy reads as under:
F
            "I called the Grievance cell members, which is comprised of
            myself, Vice Principal Mrs. Ashu Pant and Priyanka. The
            Victim's family members asked us to call Balwant and other staff
            members. When I asked Pandeyji about Balwant then he replied
            that he was on leave that day. After this, I informed Mani Sir,
G           who is the Manager of our School, about the entire incident over
            phone.
            Just then, the victim's father entered the office and started
            shouting at us. Although I assured them that I would be the first
            person to file a report against Balwant. In response, the family
H           members of the victim got furious alleging that we had helped
               MANI PUSHPAK JOSHI v. STATE OF                                   825
           UTTARAKHAND & ANR. [HEMANT GUPTA, J.]

         Balwant Singh to escape from there and wanted to speak to Mani         A
         Sir.
         I told them that Mani Sir was in Dehradun at that moment and
         was returning back from there. Meanwhile several people
         gathered in the School. Many of whom had come to take their
         children back home. The family members of the victim now               B
         started inciting these people. We requested them to let the children
         go back home safely. But the victim's family started shouting that
         we won't let the children go back home. Very soon, Deepak
         Balutia and Sumit Tikku came to the School. Soon after this, the
         victim's family members and the mob started breaking and
         vandalizing the school property."                                      C
       9. The father of the prosecutrix filed an application to summon
the person who wears spectacles, as identified by the victim. Such
application was allowed by the learned Trial Court on February 20, 2019
which order was not interfered with by the High Court in a revision
petition.                                                                       D
       10. Learned counsel for the appellant argued that the prosecutrix
has improved her statement time and again. The appellant is identified
by the Spectacles from the photograph taken from the website of the
School or from the Facebook though the appellant is not a member of
the teaching faculty but part of the Management. The FIR has been
                                                                                E
lodged after the details of occurrence have been shared by the
prosecutrix with her father. The allegations in the first version are
against only one person. In the first statement recorded under Section
161 of the Code, again the allegations are against one person. In fact,
the prosecutrix has stated categorically that except Bablu, nobody else
has ever done anything to her. In the second statement under Section            F
161 of the Code, recorded after three days, the assailants became two
and that both work outside the School. She identifies the photo of Bablu
taken from the website of the School and points out one photograph of
another person. It is thereafter in her statement under Section 164 of
the Code recorded on April 24, 2017, the other person is said to be
wearing spectacles.                                                             G
      11. A Constitution Bench of this Court in Hardeep Singh v. State
of Punjab & Ors.2 while examining the scope of Section 319 of the
Code, held as under:
2
    (2014) 3 SCC 92                                                             H
826        SUPREME COURT REPORTS                       [2019] 13 S.C.R.


A     “100. However, there is a series of cases wherein this Court while
      dealing with the provisions of Sections 227, 228, 239, 240, 241,
      242 and 245 CrPC, has consistently held that the court at the
      stage of framing of the charge has to apply its mind to the
      question whether or not there is any ground for presuming the
      commission of an offence by the accused. The court has to see
B     as to whether the material brought on record reasonably connect
      the accused with the offence. Nothing more is required to be
      enquired into. While dealing with the aforesaid provisions, the test
      of prima facie case is to be applied. The court has to find out
      whether the materials offered by the prosecution to be adduced
C     as evidence are sufficient for the court to proceed against the
      accused further. ………
      xx                     xx                      xx
      105. Power under Section 319 CrPC is a discretionary and an
      extraordinary power. It is to be exercised sparingly and only in
D     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 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
E
      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
      tested on the anvil of cross-examination, it requires much stronger
      evidence than mere probability of his complicity. The test that
F     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 refrain from exercising power under Section 319
G     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 for the court acting under Section 319 CrPC
H     to form any opinion as to the guilt of the accused.”
            MANI PUSHPAK JOSHI v. STATE OF                                   827
        UTTARAKHAND & ANR. [HEMANT GUPTA, J.]

       12. In Labhuji Amratji Thakor and Others v. State of Gujarat          A
and Others3, this Court held that 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. It was held as under:-
                                                                             B
       “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         C
       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          D
       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              E
       satisfaction, we have looked into the evidence, which has come
       on record before the trial court …………………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.”             F
      13. Having heard the learned counsel for the parties at some
length, we find that the order summoning the appellant for the offences
under Section 376(2) of the Indian Penal Code, 18604 read with Sections
5/6 of the Protection of Children from Sexual Offences Act, 20125 is
not sustainable in law.                                                      G
      14. The prosecutrix is a small child. It is parents of the child who
have taken the photographs either from the website of the School or
3
  AIR 2019 SC 734
4
  for short, ‘IPC’
5
  for short, ‘POCSO Act’                                                     H
828            SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A     from the Facebook to introduce a person with spectacles as an accused.
      The initial version of the father of the prosecutrix and of the prosecutrix
      herself, as disclosed by her father in the FIR, is assault by one person.
      But in view of statement of Gauri Vohra (PW-11), the anger was
      directed against the Management of the School of which the appellant
      is a part. Even if the father of the child has basis to be angry with the
B
      Management of the School but, we find that no prima facie case of
      any active part on the part of the appellant is made out in violating the
      small child. The involvement of other persons on the statement of the
      child of impressionable age does not inspire confidence that the appellant
      is liable to be proceeded under Section 319 of the Code. In fact, it is
C     suggestive role of the family which influences the mind of the child to
      indirectly implicate the appellant.
            15. Obviously, the father of the child must have anger against
      the Management of the School as his child was violated when she was
      studying in the School managed by the appellant but, we find that the
D     anger of the father against the Management of the School including
      the appellant is not sufficient to make him to stand trial for the offences
      punishable under Section 376(2) of the IPC read with Sections 5/6 of
      the POCSO Act.
             16. The statement of the child so as to involve a person wearing
E     spectacles as an accused does not inspire confidence disclosing more
      than prima facie to make him to stand trial of the offences. Therefore,
      we hold that the order of summoning the appellant under Section 319
      of the Code is not legal. The fact, that the prosecution after
      investigations has found no material to charge the present appellant is
      also cannot be ignored. The heinous crime committed should not be
F     led into prosecuting a person only because he was part of the
      Management of the School. We have extracted the evidence led by
      the prosecution only to find out if there is any prima facie case against
      the appellant. We are satisfied that there is no prima facie case against
      the appellant, which warrants his trial for the offences pending before
      the Court.
G
             17. Consequently, the appeal is allowed. The order passed by
      the Trial Court to summon the appellant under Section 319 of the Code
      is set aside and the application is dismissed.


H     Divya Pandey                                                 Appeal allowed.