# Suneeta Pandey v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 3 ILRA 780
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-13
- **Case number:** Application u/s 482 No. 39234 of 2022
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suneeta-pandey-v-state-of-u-p-anr-opp-parties-49835
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code -
Sections 375 & 376 - Code of Criminal
Procedure Code, 1973 - Section 319Applicant not named in the FIR-nor in
charge
sheet-but
victim
St.d
her
involvement in her St.ment u/s 164 Cr.P.C.-
Summoning as additional accused under
Section
319
CrPC-impugned
-additional
accused
under
Section
319
CrPC
be
summoned based only on the evidence
adduced before it during trial, and not
merely on the material collected during
investigation by the investigating agencyWoman
as
accused
for
gang
rapePermissibility after 2013 amendment-if a
woman facilitates the act of gang rape with
a group, she can be prosecuted for the
offence punishable under Section 376D IPC
as the term "person" used therein is not
gender specific and includes women.

Application dismissed. (E-9)

List of Cases cited:

## Text

780 INDIAN LAW REPORTS ALLAHABAD SERIES
Jagannath Verma (supra), I find that the
impugned order is revisable in nature. The
appropriate remedy against the impugned
order available to the applicant is to file a
revision under Section 397 Cr.P.C. instead
of
approaching
this
Court
in
its
extraordinary jurisdiction by commencing
an application under section 482 Cr.P.C.
The prospective accused in the case is
entitled to be heard.

17. In the wake of the preceding
narrative, I find that the law laid down by
the Full Bench in Jagannath Verma (supra)
is fully applicable to the facts of this case.
Judicial discipline prohibits me from
entering into the merits of the case made by
learned counsel for the applicant.

18. The application under section 482
Cr.P.C. is accordingly dismissed on the
ground of existence of alternative remedy
of filing a revision under section 397
Cr.P.C. available to the applicant."

10. On the basis of aforementioned
discussion, this Court is also in conformity
with the principles laid down by the learned
Single Judge and is of the opinion that a
proceeding under Section 482 CrPC against
the impugned order is not maintainable and
the applicant should have preferred a
revision before the revisional court.

11. Accordingly, this application is
dismissed
as
not
maintainable.
The
applicant is at liberty to institute a revision
in the concerned revisional court.

12. Office is directed to return the
certified copy of the impugned order to the
counsel for the applicant.
----------
(2023) 3 ILRA 780
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2023
BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Application u/s 482 No. 39234 of 2022

Suneeta Pandey ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Ravindra Prakash Srivastava

Counsel for the Opp. Parties:
G.A.

Criminal Law - Indian Penal Code -
Sections 375 & 376 - Code of Criminal
Procedure Code, 1973 - Section 319Applicant not named in the FIR-nor in
charge
sheet-but
victim
St.d
her
involvement in her St.ment u/s 164 Cr.P.C.-
Summoning as additional accused under
Section
319
CrPC-impugned
-additional
accused
under
Section
319
CrPC
be
summoned based only on the evidence
adduced before it during trial, and not
merely on the material collected during
investigation by the investigating agencyWoman
as
accused
for
gang
rapePermissibility after 2013 amendment-if a
woman facilitates the act of gang rape with
a group, she can be prosecuted for the
offence punishable under Section 376D IPC
as the term "person" used therein is not
gender specific and includes women.

Application dismissed. (E-9)

List of Cases cited:

1. Priya Patel Vs St. of M.P. & anr., (2006) 3
SCC (Cri.) 96

2. St. of Rajasthan Vs Hemraj & anr. reported in
2009 (12) SCC 402

3. Hardeep Singh Vs St. of Pun. & ors., (2014) 3
SCC 92

4. Manjeet Singh Vs St. of Har. & ors., (2021)
SCC Online SC 632
3 All. Suneeta Pandey Vs. State of U.P. & Anr.
781
(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. Heard Sri Ravindra Prakash
Srivastava,
learned
counsel
for
the
applicant and Sri R.P. Mishra, learned
A.G.A. for the State as well as perused the
record.

2. The present application has been
filed by the applicant- Suneeta Pandey for
quashing of the impugned order dated
03.12.2018, whereby the applicant has been
summoned to face the trial u/s 376-D, 212
IPC in exercise of power conferred under
Section 319 Cr.P.C. as well as entire
proceedings of Special Criminal (Sexual)
Case No.08 of 2016 (State Vs. Fanindra
Mani Ojha alias Dablu and others) arising
out of Case Crime No.874 of 2015, under
section 376-D & 212 I.P.C., Police Station-
Kotwali Bansi, District- Siddharth Nagar,
pending in the court of Additional District
and Sessions Judge- Ist, Siddharth Nagar
with a further prayer to stay the further
proceedings of the aforesaid case.

3. As per F.I.R., the incident took
place on 24.06.2015 and the F.I.R. was
lodged
against
unknown
persons
on
28.07.2015 bearing Case Crime No. 874 of
2015, under Sections 363 and 366 I.P.C.
alleging therein that someone has enticed
away the daughter of the informant aged
about 15 years and took her with him.

4. Statement of the victim has been
recorded under Section 161 and 164 Cr.P.C.
The victim in her statement recorded under
Section 164 Cr.P.C. has stated that
applicant was involved in the alleged
incident but the applicant was not named in
the charge sheet. Thereafter, opposite party
no.2 filed an application under Section 319
Cr.P.C. for summoning the applicant and
the
court
below
vide
order
dated
03.12.2018 has summoned the applicant to
face trial for the offence under Sections
376-D and 212 Cr.P.C. It is this order which
is subject matter of challenge before this
Court.

5. Learned counsel for the applicant
submitted that the applicant is a lady hence
no offence under Section 376-D I.P.C. is
made out against the applicant and she has
been wrongly summoned by the trial court.
It is further argued that the applicant has
been summoned in exercise of powers
conferred under Section 319 Cr.P.C. solely
relying upon the statement of Victim (P.W1) as well as some other extraneous
documents, which in fact is not sufficient.
He contends that in view of the aforesaid
facts and circumstances, the impugned
order under challenge is vitiated by
manifest error of law and amounts to
blatant
miscarriage
of
justice,
and,
therefore, is liable to be quashed.

6. Learned counsel for the applicant
has further argued that the trial court has
grossly erred in summoning the applicant
for the offence punishable under Sectin
376-D IPC and Section 212 IPC. It is
argued that a woman cannot commit rape
and therefore, she cannot be prosecuted for
gang rape because woman cannot be said to
have an intention to commit rape. In
support of his submission, he relied upon a
decision of Hon'ble Supreme Court in
Priya Patel Vs. State of M.P. and
another, (2006) 3 SCC (Cri.) 96. He has
further relied upon the judgment of the
Apex Court in the case of State of
Rajasthan
Vs.
Hemraj
& Another
reported in 2009 (12) SCC 402. It is also
submitted that the applicant cannot be held
guilty even in terms of the explanation to
Section 376(2)(g) of IPC.
782 INDIAN LAW REPORTS ALLAHABAD SERIES

The
extract
of
Section
375
&
376(2)(g) IPC prior to amendment is as
under:-

375. Rape :-A man is said to commit
"rape" who, except in the case hereinafter
excepted, has sexual intercourse with a
woman under circumstances falling under
any of the six following descriptions:--

First.Against her will.

Secondly.Without her consent.

Thirdly.--With her consent, when her
consent has been obtained by putting her or
any person in whom she is interested in
fear of death or of hurt.

Fourthly.--With her consent, when the
man knows that he is not her husband, and
that her consent is given because she
believes that he is another man to whom
she is or believes herself to be lawfully
married.

Fifthly.--With her consent, when, at
the time of giving such consent, by reason
of unsoundness of mind or intoxication or
the administration by him personally or
through another of any stupefying or
unwholesome substance, she is unable to
understand the nature and consequences of
that to which she gives consent.

Sixthly.--With or without her consent,
when she is under sixteen years of age.

Explanation.--Penetration is sufficient
to
constitute
the
sexual
intercourse
necessary to the offence of rape.

Exception.--Sexual intercourse by a
man with his own wife, the wife not being
under fifteen years of age, is not rape.]

376.
Punishment
for
rape
(1)
Whoever, except in the cases provided for by
sub-section (1), commits rape shall be
punished with imprisonment of either
description for a term which shall not be less
than seven years but which may be for life or
for a term which may extend to ten years and
shall also be liable to fine unless the women
raped is his own wife and is not under twelve
years of age, in which cases, he shall be
punished with imprisonment of either
description for a term which may extend to
two years or with fine or with both:

Provided that the court may, for
adequate and special reasons to be mentioned
in the judgment, impose a sentence of
imprisonment for a term of less than seven
years.

(2) Whoever,--

xx xx xx xx xx

(g) commits gang rape, shall be
punished with rigorous imprisonment for a
term which shall not be less than ten years
but which may be for life and shall also be
liable to fine:

Provided that the court may, for
adequate and special reasons to be mentioned
in the judgment, impose a sentence of
imprisonment of either description for a term
of less than ten years, Explanation I.--Where
a woman is raped by one or more in a group
of persons acting in furtherance of their
common intention, each of the persons shall
be deemed to have committed gang rape
within the meaning of this sub-section.

7. On the other hand, learned A.G.A.
has opposed the submission of learned
counsel for the applicant and submitted that
applicant has committed the alleged offence
and it cannot be said that being a lady the
applicant or a women cannot commit the
offence under Section 376-D I.P.C. The
judgements relied upon by the learned
cousnel for the appicant are of no help as the
same are realted to prior to the amendment in
the provisions of Sections 375 to 376E IPC.

8. I have considered the submission
made by learned counsel for the applicant
and the provisions of Section 319 Cr.P.C.
and have arrived at a conclusion that no
3 All. Suneeta Pandey Vs. State of U.P. & Anr.
783
interference is called for in the impugned
order. The scope and ambit of Section 319
of the Code have been elucidated in the
case of Hardeep Singh Vs. State of Punjab
and others, (2014) 3 SCC 92 by the
Hon'ble Apex Court. It has been held that,
all that is required by the Court for invoking
its powers under Section 319 Cr.P.C. is to be
satisfied that from the evidence adduced
before it, the person against whom no charge
had been framed, but whose complicity
appears to be clear, should be tried together
with the accused. The ratio laid down by the
Supreme Court in Hardeep Singh's case has
been explained by the Hon. Apex Court in
the case Manjeet Singh Vs State of
Haryana and others, (2021) SCC Online
SC 632. The Supreme Court after noticing
its subsequent judgements on the issue,
summarized the scope and ambit of the
powers of the Court under Section 319
Cr.P.C. and has held that it is only the
material collected by the court during the
course of inquiry or trial and not the material
collected by the investigating agency during
the investigation of the case which can be
used,
while
arraigning
an
additional
accused. The Supreme Court has made it
clear that the word "evidence" appearing in
Section 319 Cr.P.C. means only such
evidence as is made before the court in
relation to statements and in relation to the
documents which can be used by the court
for unveiling all facts, other than the
material collected during investigation. Of
course, the evidence would also include the
evidence led during the trial of the case after
framing of charges. It is also laid down that
besides the evidence recorded during trial,
any material that has been received by the
court after cognizance is taken and before
the trial commences, can be utilised only for
corroboration and to support the evidence
recorded by the court to invoke the power
under Section 319 of the Cr. P. C.

9. So far as the argument of learned
counsel for the aplicant that a woman
cannot commit rape and, therefore, she
cannot be prosecuted for gang rape is not
correct after going through the amended
provisions of Section 375 to 376E IPC by
Act 13 of 2013 of the Indint Penal Code,
1860.

10. The case of Priya Patel (Supra),
was a case of gang rape, where the wife of
the appellant facilitated commission of
gang rape within the meaning of Section
376(2)(g) IPC. After elaborate discussion
on the provisions under Sectin 375 and 376
IPC, it was held therein, amongst other, that
a woman cannot be prosecuted for alleged
commission of offence of gang rape.

11. However, going through the
amended provisions of Section 375 IPC &
376 IPC, the question, whether a female
can commit the offence of rape is itself
clear by the non-ambiguous language of
section 375 of IPC which specifically states
that the act of rape can only be done by a
''man' and not by "any woman". Therefore,
a woman cannot commit rape. But looking
through again the amended provision of
Section 376-D IPC, which is a distinct and
separate offence of Gang Rape-according
to which- "Where a woman is raped by
''one or more persons' constituting a group
or acting in furtherance of a common
intention, each of those persons shall be
deemed to have comitted the offence of
rape and shall be punished with rigorous
imprisonment for a term which shall not be
less than twenty years, but which may
extend
to
life
which
shall
mean
imprisonment for the remainder of that
persons's natural life, and with fine". Thus,
from the language used in Section 376-D
IPC, it is seen that in order to establish an
offence under Section 376-D IPC, the
784 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution has to adduce evidence to
indicate that one or more persons had acted
in concert and in such an event, if rape had
been committed by even one, all the
accused will be guilty irrespective of the
fact that victim had been raped by one or
more of them. In other words this provision
embodies a principle of joint liability and
the essence of that liability is the existence
of
common
intention
that
common
intention presupposes prior concert which
may be determined from the conduct of
offenders revealed during the course of
action. In such cases, there must be
criminal sharing, marking out a certain
measure of jointness in the commission
of offence. The term "person" used in the
Section should not be contrued in a
narrow sense. Section 11 I.P.C. defines
''person' as it includes any company or
association or body of persons whether
incorporated or not. The word "person" is
also defined in the Shorter Oxford
English Dictionary in two ways: firstly, it
is defined as "an individual human being"
or "a man, woman, or child"; and,
secondly, as "the living body of a human
being". As such, a women can not commit
the offense of rape but if she facilitated
the act of rape with a group of people
then she may be prosecuted for Gang
Rape in view of the amended provisions.
Unlike man, a woman can also be held
guilty of sexual offences. A woman can
also be held guilty of gang rape if she has
facilitated the act of rape with a group of
person.

12. Keeping in view of the aforesaid
facts and law laid down by the Apex Court,
I find no scope for interference in the
impugned order passed by the trial court at
this stage. The application has no force
and is accordingly dismissed.
----------
(2023) 3 ILRA 784
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application u/s 482 No. 41169 of 2022

Tadaknath & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Ms. Jigyasa Singh

Counsel for the Opp. Parties:
G.A.
Criminal Law - Criminal Procedure Code,
1973 - Sections 190,202,216, 218 &
228-Addition or subtraction of offencesPermissible only by trial court at time of
framing charge-Magistrate cannot add or
subtract offences at stage of summoning in
case based on police report-Proper stage is
framing of charge by trial court-In cases
based on private complaints, Magistrate has
power to add or subtract sections after
conducting inquiry under Sections 190/202
Cr.P.C.-Criminal Procedure Code, 1973-Case
based on police report vs complaint caseSeparate procedures prescribed-Cannot be
overlapped or clubbed together-Order of
Magistrate
summoning
accused
under
sections
not
included
in
chargesheetUnsustainable and liable to be set aside.
Application dismissed. (E-9)
List of Cases cited:

St. of Guj. Vs Girish Radhakrishnan Varde AIR
2014 Supreme Court 620.

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)