Madhya Pradesh High Court
Sweeti Vishwakarma vs The State Of Madhya Pradesh on 25 February, 2021
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
S. B. : Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C.No.50126/2020
Sweeti Vishwakarma
Vs
The State of M.P.
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Shri Manas Mani Verma, learned counsel for the
petitioner.
Shri Prashant Mishra, learned P.L. for the
respondents/State.
ORDER
(25.02.2021) This petition under Section 482 of Cr.P.C. has been filed by the petitioner being aggrieved by the order dated 24/11/2020 in Session Trial No.434/2020 passed by Special Judge (POCSO Act) Bhopal, District-Bhopal by which application under Section 319 of Cr.P.C. has been dismissed.
2. According to case, the petitioner is facing trial of aforesaid Session Trial case in pursuant to Crime No.444/2020, 2 M.Cr.C.No.50126/2020 registered at Police Station-Kohe Fiza, District-Bhopal, for the offences punishable under Sections 376, 376(2)(n), 376(2)
(i), 376(2)(p), 366-A, 342 and 506 of the IPC as well as Section 5/6 of POCSO Act. The petitioner has preferred an application under Section 319 of Cr.P.C. dated 19.11.2020 before the trial Court with the prayer of impleadment of Dr. Sonal Saraf and Director of Unique Hospital Indore, District- Indore as an additional accused of the case on the ground stating therein that Dr. Sonal Saraf has advised to perform sonography test of the prosecutrix and according thereof, the prosecutrix was brought to Unique Hospital Indore by the petitioner herself for the said test wherein the prosecutrix was found to be pregnant and her D & C was performed at Kamla Devi hospital by the co-accused, therefore, they committed the offence under PC and PNDT Act, 1994 (hereinafter referred as 'Act 1994') as well as IPC. By the impugned order, the trial Court has refused the said prayer and dismissed her application.
3. Learned counsel for the petitioner submits that the trial Court has erred in dismissing the said application whereas the prosecutrix has clearly stated before the trial Court that the proposed accused, namely, Dr. Sonal Saraf had 3 M.Cr.C.No.50126/2020 examined first the prosecutrix and advised for sonography test and thereafter, the prosecutrix was taken to Unique Hospital for the said test by the petitioner herself and thereafter D & C of prosecutrix was performed at Kamla Devi Hospital. Dr. Hemant Mittal who performed the D & C at Kamla Devi Hospital is facing trial and prima faice, there is sufficient evidence against the proposed accused persons that they are also involved in criminal conspiracy and deserve to be prosecuted. The statement of prosecutrix is sufficient to implead Dr. Sonal Saraf and Director of Unique Hospital Indore as an additional accused in the case as they have not followed the rules and provisions of 'Act 1994'. He submits that the provision of Section 319 of Cr.P.C. clearly provides the aid to implead the person not being the accused, has committed offence. In support, he has filed the copy of statement of the prosecutrix given before the trial Court.
4. On the other hand, learned counsel for the respondent/State opposes the submission made by the petitioner's counsel submitting that during investigation, in the FIR, the name of proposed accused persons were not mentioned. The trial Court did not commit any error in rejecting the said application. Dr. Sonal Saraf had only 4 M.Cr.C.No.50126/2020 advised the prosecutrix who came to her with accused Piyare Miyan and petitioner herself showing the prosecutrix as an adopted child of accused-Piyare Miyan. The statement of prosecutrix clearly reflected that Dr. Sonal Saraf had not performed her D & C test and who performed the same, has already been impleaded as an accused in the case. As far as, matter relating to Director of Unique Hospital is concerned, the petitioner failed to disclose the particular details and act in relation thereof. Dr. Sonal Saraf is a key witness of the case and only to affect the prosecution case, all these exercise are being carried out by the petitioner. With the aforesaid, he prays for dismissal of the petition.
5. Heard both the parties.
6. Since, matter pertains to rejection of application of under Section 319 Cr.P.C., therefore, it would be appropriate to read first the aforesaid provision. Section 319 Cr.P.C. reads as under :-
"Power to proceed against other persons appearing to be guilty of offence.
319. (1). Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.5 M.Cr.C.No.50126/2020
(2) Where such person is not attending the court, he may be arrested or summoned as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inqury into, or trial, of the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then -
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-
heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
7. In the case of Hardeep Singh Vs. State of Punjab reported in (2014)3 SCC 92, the Hon'ble Apex Court laid down the principle in relation to exercising of power under Section 319 of Cr.P.C. by the Court. The relevant paras are quoted as under:-
"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 6 M.Cr.C.No.50126/2020 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 Cr.P.C. 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 " [Ed.: The words between two asterisks have been emphasised in original.] for which such person could be tried together with the accused [Ed.: The words between two asterisks have been emphasised in original.]". 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."
8. In the light of aforesaid principle, the facts of the matter are being examined by this Court. On the case in hand, it appears that present petitioner is herself accused of the case. The name of proposed accused persons were not mentioned either in the FIR or charge-sheet. The petitioner wants to implead them as an additional accused of the case, mainly on the ground that the proposed accused involved in the alleged conspiracy as the prosecutrix has stated their name in her Court statement. The learned trial Court rejected the prayer of petitioner on the ground that merely on the basis of physical examination of prosecutrix by the proposed accused Dr. Sonal Saraf and on her advise, sonography test was performed by 7 M.Cr.C.No.50126/2020 the hospital, are not sufficient to implead them as an accused of the case. The Court noted that the person who performed D & C, is one of the accused of the case. The relevant portions of the Court statement given by the prosecutrix are reproduced herein under :-
"5- bankSj esa vkjksih I;kjs fe;ka ds ?kj ds ihNs gh MkW- lksuy JkWQ jgrh Fkh] tgka vkjksih I;kjs fe;kaa eq>s ysdj x;s FksA MkW- lksuy us gesa muds Dyhfud cqyk;k Fkk rc vkjksih I;kjs fe;ka vkSj LohVh eq>s MkW- lksuy JkWQ ds Dyhfud ysdj x;s FksA mlds ckn vkjksih I;kjs fe;ka us MkW- lksuy ls ckr dh rks MkW- lksuy us lksuksxzkQh djus dh lykg nhA fQj LohVh fo'odekZ eq>s ;wfud gkWfLiVy esa ysdj x;h Fkh tgka esjh lksuksxzkQh gq;h ftlesa eSa nks ekg dh xHkZorh ik;h x;h Fkh vkSj LohVh fo'odekZ us fjiksVZ ys yh FkhA blds ckn vkjksih I;kjsa fe;ka eq>s esjh fjiksVZ ds lkFk MkW- lksuy ds ikl ysdj x;sA MkW- lksuy us lksuksxzkQh fjiksVZ ns[kdj Mh,ulh djus ds fy, euk dj fn;kA 6- fQj vkjksih I;kjs fe;ka vkSj LohVh fo'odekZ eq>s fo".kq gkbZVsd Hkksiky okil ysdj vk x;sA vkjksih I;kjs fe;ka us Qksu ij MkW- ls ckr dh rc vkjksih LohVh eq>s ysdj deyk nsoh gkWfLiVy 'kkgtgkaukckn ysdj x;h FkhA ogka ij 'kke dks 4 cts vkjksih MkW- gsear feRry vk;s Fks vkSj eq>ls esjk uke iwNk FkkA fQj MkW- gsear feRry us eq>s bUtsd'ku fn;k vkSj esjh Mh,ulh dj nhA Mh,ulh ds ckn eSusa vkjksih LohVh ls fjiksVZ ds ckjs esa iwNk rks mlus dgk fd gkWfLiVy esa fjiksVZ ugha nsrsA blds ckn jkr 11 cts LohVh eq>s okil fo".kq gkbZVsd ys x;hA "
9. The learned counsel for the petitioner submitted that the prosecutrix has clearly stated the name of proposed accused saying that on the instruction of proposed accused No.1 Dr. Sonal Saraf, the prosecutrix had been taken to Unique Hospital where her sonography test was performed 8 M.Cr.C.No.50126/2020 and subsequently, at another hospital i.e. Kamla Devi Hospital, her D & C was performed by co-accused. The learned counsel for the respondent confront the allegation made against the proposed accused persons saying that the proposed accused No.1 Dr. Sonal Saraf has only advised the prosecutrix to perform sonography test to diagnose her ailment but as and when, she came to knowledge about the pregnancy of prosecutrix, she refused to perform her D & C. The proposed accused Dr. Sonal Saraf has made physical examination of prosecutrix because she was on impression that the prosecutrix was adopted child of accused Piyare Miyan. As far as proposed accused No.2 is concerned, the counsel for the respondent submitted that nothing has been done by him and the petitioner has failed to specify his part of performance in the alleged crime. The hospital under the Directorship of proposed accused No.2 has not conducted any diagnosis of sex selection or pre-natal, against the spirit of Act 1994.
10. On perusal of statements of prosecutrix, it is an admitted position that at the time of incident she was below 18 years of age and has stated the name of proposed accused No.1 Dr. Sonal Saraf and hospitals where her sonography and 9 M.Cr.C.No.50126/2020 D & C were performed. But, this Court has to see whether the version of prosecutrix is sufficient to implead the proposed accused persons as an additional accused of the case.
11. On further perusal of statement of prosecutrix, it appears that she has been adopted by accused-Piyare Miyan from the custody of her grandmother but since thereafter, co- accused-Piyare Miyan was being performed sexual intercourse with the prosecutrix continuously which resulted into her pregnancy. It is also shows that the proposed accused No.1 Dr. Sonal Saraf has only given her advise of performing sonography test of the prosecutrix. She herself neither performed sonography test nor D & C of prosecutrix, rather, it is clearly stated by the prosecutrix that she refused to perform D & C after seeing her sonography report. There is no such allegation that the proposed accused No.1 Dr. Sonal Saraf has sent the prosecutrix to the Hospital where her D & C was performed. As far as proposed accused No.2 is concerned, the petitioner has not mentioned the name and other specific details of him/her and wants to implead the post as an additional accused of the case even then if the submission of petitioner's counsel are taken into consideration, prima facie, it is found that the hospital of under directorship of proposed 10 M.Cr.C.No.50126/2020 accused No.2 has only performed sonography test and identified the pregnancy of prosecutrix, there is no such allegation that the test was conducted for sex selection or against the provision of Act 1994. It is also pertinant to mention that Section 28 of Act 1994 speaks about the cognizance of offences under the said Act and according thereof no Court shall take cognizance of an offence under the Act 1994 except on a complaint made by the appropriate authority concerned or any officer authorized in this behalf by the Central Government or State Government, as the case may be or a person who has given notice of not less than 15 days in the manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a complaint to the Court.
12. It has been settled by the Hon'ble Apex Court that the power under Section 319 of Cr.P.C. should be exercised sparingly. The higher Court of law also observed in various cases that the standard of proof employed for summoning a person as an accused person under Section 319 of Cr.P.C. is higher then the standard of proof employed for framing a charge against the accused persons. 11 M.Cr.C.No.50126/2020
13. On perusal of the statement of prosecutrix as well as other material annexed with the charge-sheet, this Court does not find any error in the order passed by the learned trial Court.
14. Accordingly, this petition is devoid of merits and it is hereby dismissed.
(Rajendra Kumar Srivastava) Judge sp Digitally signed by SAVITRI PATEL Date: 2021.02.25 17:58:28 +05'30'