LABHUJI AMRATJI THAKOR & ORS. versus THE STATE OF GUJARAT & ANR.

Citation: [2018] 13 S.C.R. 822 · Decided: 13-11-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 13  S.C.R.
LABHUJI AMRATJI THAKOR & ORS.
v.
THE STATE OF GUJARAT & ANR.
(Criminal Appeal No. 1349 of 2018)
          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,
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.
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
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]
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
against the appellants.  The mere fact that Court has power under
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[2018] 13  S.C.R. 822
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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.
Case Law Reference
[2014] 2 SCR 1
referred to
Para 3
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.
LABHUJI AMRATJI THAKOR v. THE STATE OF GUJARAT
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SUPREME COURT REPORTS
[2018] 13  S.C.R.
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
ASHOK BHUSHAN, J. 1. This appeal has been filed by the
appellants challenging the judgment dated 30.04.2

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