REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1517 OF 2019

MANI PUSHPAK JOSHI .....APPELLANT(S)

VERSUS

STATE OF UTTARAKHAND & ANR. .....RESPONDENT(S)

J U D G M E N T

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  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:

“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 would take her

1  for short, ‘Code’

1

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, 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 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:

“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.

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 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  these  two  persons  work  outside  school.  In  respect  of  a

question whether she has seen these persons earlier, the answer

2

was that they used to 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 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

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 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, 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 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).

3

After this, my wife took my daughter to a separate place, while I searched the profile of the male members of the school.  Four 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.

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 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 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,  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.   

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.   

4

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:

“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, 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  members of  the victim got furious alleging that we had helped Balwant Singh to escape from there and wanted to speak to Mani 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  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.”

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.   

10) Learned counsel for the appellant argued that the prosecutrix has

improved her statement time and again.  The appellant is identified

5

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  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 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.   

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:  

“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 as to whether the material  brought  on  record  reasonably  connect  the accused with the offence. Nothing more is required to be

2  (2014) 3 SCC 92

6

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 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 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 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 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 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 to form any opinion as to the guilt of the accused.”

12) In  Labhuji Amratji Thakor and Others  v. State of Gujarat

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

3   AIR 2019 SC 734

7

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:-

“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  …………………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) 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.   

4  for short, ‘IPC’ 5  for short, ‘POCSO Act’

8

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

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 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 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  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.     

9

16) 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 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  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.

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.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; OCTOBER 17, 2019.

10