Punjab-Haryana High Court
Rohtash And Others vs The State Of Haryana And Another on 29 August, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRR Nos.19 and 658 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: August 29, 2012
CRR No. 19 of 2010 (O&M)
Rohtash and others ... Petitioners
Versus
The State of Haryana and another. ... Respondents
CRR No. 658 of 2010 (O&M)
ASI Vijay Anand ... Petitioner
Versus
State of Haryana and another ... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. Sunil Panwar, Advocate,
for the petitioners (in CRR No.19 of 2010)
Mr. A.P.S. Deol, Sr. Advocate with
Mr. Vishal Lamba, Advocate,
for the petitioner (in CRR No. 658 of 2010)
Mr. Amit Goyal, AAG, Haryana.
Mr. S.K. Sud, Advocate,
for respondent No.2.
Paramjeet Singh, J.
Petitioners, in both the criminal revisions viz. CRR No.19 of CRR Nos.19 and 658 of 2010 -2- 2010 and CRR No.658 of 2010, have questioned the legality of the order dated 01.12.2009 passed by learned Additional Sessions Judge, Nuh, whereby the petitioners have been summoned as accused to face trial on an application of the prosecution under Section 319 of the Cr.P.C. in case FIR No. 233, dated 10.08.2008, under Sections 363,366A, 376 IPC , registered at Police Station Punhana.
The relevant contents of the FIR are as under: -
"........Sir, it is submitted that I, Babudin son of Sh. Budhi Luhar, am resident of Ward No. Ten, Pinangwa. I have 10 Children. Out of which 8 are girls and 2 boys. Out of these, my daughter at number four is named Sammo, aged 14 years. In front of my h ouse, where I live alongwith my children, the work of Dharamshala is under progress. The work of fixing and grinding the stone is in progress. The construction is being got done by Rohtash, Phool and Nanak, residents of Pinangwa. In this Dharamshala, contractors are working on contract. Raj Kumar, Madan Mohan and Dinesh are engaged in the work of grinding and polishing stone and on account of my house being in front, all three boys keep coming to my house. On 3rd August, at about 10 a.m., my daughter Sammo disappeared from the house without informing me. I have suspicion that my daughter has been allured and taken away by Madan Mohan, Raj Kumar and Dinesh. Legal action be taken against them and my daughter be searched out. Till now, we had been searching for our daughter."
Learned counsel for the petitioners vehemently argued that no material is available on record on the basis of which petitioners could be summoned and ordered to face trial. Learned counsel for the petitioners further argued that power under Section 319 Cr.P.C. is to be used very CRR Nos.19 and 658 of 2010 -3- sparingly for summoning additional accused. Learned counsel for the petitioners submitted that alleged occurrence took place on 3.8.2008. FIR was registered under Section 363/366-A IPC after seven days of the alleged occurrence. No allegation or suspicion was raised against the petitioners. The prosecutrix was recovered and her statement was recorded under Section 164 Cr.P.C. by the learned SDJM Ferozepur Jhirka on 25.9.2008, wherein she had stated that she was in love with co-accused Raju and had married him out of her sweet will and consent without any pressure. She further stated that she wanted to reside with Raju and expressed fear from her parents. The statement has been placed on record as Annexure P-3. Raju co-accused was arrested and the prosecutrix was sent to Nari Niketan as is borne out from order dated 30.9.2008 passed by the learned SDJM Ferozepur Jhirka vide which she was directed to be produced before medical board for examination and opine age of the prosecutrix. The medical board opined her age to be between 17 to 18 years vide report dated 16.10.2008 (Annexure P-5). Prosecutrix made a statement before the SDJM on 4.11.2008 (Annexure P-6) that she did not want to stay in Nari Niketan and wanted to go to Delhi and also expressed apprehension that she might be maltreated the moment she leaves the Court and ASI and lady constables were deputed to leave wherever she wanted to go. The prosecutrix had been expressing her desire to reside with Raju at New Delhi. Thereafter, somehow the parents of the prosecutrix persuaded her and pressurized to cook a wholly new case during trial of Raju in the statement recorded by the prosecutrix before the Court. The learned counsel for the petitioners further submitted that one CRR Nos.19 and 658 of 2010 -4- of the petitioners Phool Chand has instituted a civil suit on behalf of the Mandir Baba Lal Dass Ji Maharaj against Hanif, Nawab, Ishaq and Saddiq sons of Budhi real brothers of Babudin father of the prosecutrix. To put undue pressure to withdraw the civil suit and settle personal score with malicious intention, petitioners have been implicated with ulteriour motives and malafide intention. The learned counsel for the petitioners further submitted that Babudin father of the prosecutrix had filed a petition in this Court in pursuance to which an inquiry was conducted by the DSP. During the inquiry, it was found that the petitioners have been falsely implicated on account of illwill resulting from property dispute with the brothers of the father of the prosecutrix. The statement of the prosecutrix was recorded as PW3 on 11.4.2009 (Annexure P-9). It is further submitted by the learned counsel for the petitioners that even Raju accused has already been acquitted by the learned Sessions Judge vide judgment dated 10.12.2011, which is placed on record in CRR No.658 of 2010 as Annexure P-8. During investigation, petitioners have been found to be innocent and were not sent for trial.
The learned State counsel vehemently opposed the contentions of the learned counsel for the petitioners and contended that FIR is not to be the encyclopaedia of all facts. Every minute details are not expected in a FIR. The statement before the Court during trial is sufficient to summon the petitioners as additional accused as the prosecutrix has levelled allegations in her statement against the petitioners. The learned Additional Sessions Judge, Nuh, has rightly summoned the petitioners vide impugned order dated 1.12.2009 and their summoning is CRR Nos.19 and 658 of 2010 -5- based on the evidence of the prosecutrix.
Learned State counsel vehemently opposed the arguments of the learned counsel for the petitioners and submitted that there are sufficient grounds to show that petitioners have abducted the prosecutrix. Learned State counsel has further vehemently argued that the names of the petitioners though do not figure in the FIR but their presence is very much there as stated in the statement of the prosecutrix before the learned Additional Sessions Judge. As such, the petitioners along with Raju, who was already facing trial, have been rightly summoned to face trial.
I have considered the rival contentions of the learned counsel for the parties and perused the record.
Learned Additional Sessions Judge, Nuh vide order dated 1.12.2009, summoned the petitioners under Section 319 Cr.P.C. and the relevant portion of the order reads as under:-
"6. The prosecutrix PW3 (her name inadvertently appears to have been mentioned in the order of ADJ but it is being withheld from reproduction here) in her statement before the court has levelled specific allegations of abduction and rape against Billu Sarpanch son of Girraj, Bed son of Lala Ram, Rohtash son of Babu and Phool son of Lala Ram. She also levelled specific allegations of outraging her modesty, giving threat and preparing wrong record against ASI Vijay Anand. So in my opinion prima facie it appears that Billu Sarpanch son of Girraj, Bed son of Lala Ram, Rohtash son of Babu and Phool son of Lala Ram raped prosecutrix PW3 (xxx), aged 14 years against her wishes and took her from the custody of her father Babuddin against her wishes and without consent of her father so they have committed offences punishable under CRR Nos.19 and 658 of 2010 -6- Sections 363A, 376(2)(g) and 506 IPC and ASI Vijay Anand committed offence punishable under Section 354, 506 IPC. Accordingly, the application succeeds and is hereby allowed. Accused Billu Sarpanch son of Girraj, Bed son of Lala Ram, Rohtash son of Babu and Phool son of Lala Ram, all residents of village Pinangwan be summoned to stand trial under Section 363A, 376(2)(g) and 506 IPC through non- bailable warrants and accused ASI Vijay Anand be summoned to stand trial under Sections 354, 506 IPC as co- accused through notice for 16.12.2009 in criminal case NO.66 of 11.4.2009 titled as State Vs. Raju, arisen out of FIR No.233 of 2008, under Sections 363, 366, 376 IPC, P.S. Punhana."
It would be appropriate to reproduce Section 319 of the Code, which reads as under :
319. Power to proceed against other persons appearing to be guilty of offence. - (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.
(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 inquiry 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 -
CRR Nos.19 and 658 of 2010 -7-
(a) the proceedings in respect of such person shall be commenced afresh, and 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."
This Court passed the following order in CRR No.19 of 2010 on 08.01.2010: -
"The revision is directed against order Annexure P-1, whereby the petitioners have been summoned to stand trial as additional accused under Section 319 Cr.P.C.
Learned counsel for the petitioners has drawn the attention of the Court towards the statement of the prosecutrix recorded under Section 164 Cr.P.C. placed on record as Annexure P-3 wherein, she admits that she got married to Raju and lived with him for about one and a half months. In the statement, she totally absolves Raju of the crime. The prosecutrix has further clearly stated that she did not want to live at the house of the parents. Learned counsel contends that subsequently she was withdrawn from the company of Raju by the parents. In a turnaround, all the petitiones have been implicated. In such circumstances, it would be wholly unjust to ask the petitioners to face trial.
Notice of motion for 11.03.2010.
Further proceedings qua the petitioners shall remain stayed."
In CRR No.658 of 2010, this Court on 04.03.2010 passed the following order: -
"Notice of motion for 11.3.2010.
To be heard with Criminal Revision No.19 of 2010.CRR Nos.19 and 658 of 2010 -8-
Interim order in the same terms."
In pursuance of the above orders, proceedings against the petitioners remained stayed. However, proceedings went on against Raju main accused in the said FIR who has been acquitted vide judgment dated 10.12.2011 (Annexure P-8).
The extent of the power of the Court to summon persons other than the accused to stand trial in a pending case has been considered by the Hon'ble Apex Court in case of Ram Singh and others vs. Ram Niwas and and another, 2009(3) RCR (Criminal) 501. In the said case, various authorities of the Hon'ble Apex Court have been considered by the Hon'ble Apex Court with reference to extent of power under Section 319 Cr.P.C. The relevant part from the above said judgment is extracted below:
"12. Indisputably, the court must satisfy itself about the existence of an extraordinary situation enabling it to exercise an extraordinary jurisdiction. It is true that the court is not denuded of its power to exercise the said jurisdiction only because a person named as an accused in the FIR was not charge-sheeted as a result whereof no cognizance has been taken against him. What is necessary for the said purpose is that the person concerned was not being tried as an accused before the Court at that stage.
13. This Court in the case of Kailash v. State of Rajasthan, 2008(2) RCR(Criminal) 200 : 2008(2) RAJ 323 : [2008(3) SCALE 338], has held that a glance of the provision would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. This Court has laid emphasis on the words, 'it appears from the evidence', CRR Nos.19 and 658 of 2010 -9- 'any person', and 'has committed any offence'. It was further held that the power under Section 319 has to be essentially exercised only on the basis of the evidence brought on record of the case. The discretionary jurisdiction could, therefore, be exercised only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence.
14. In the case of Raj Kishore Prasad v. State of Bihar & Anr., 1996(2) RCR(Criminal) 804 : [(1996)4 SCC 495], this Court opined :
"14. Learned counsel differ however on the other question posed in Kishun Singh case [Kishun Singh v. State of Bihar, 1993(1) RCR(Criminal) 647 : (1993)2 SCC 16]. It was whether a Court of Session, to which a case is committed for trial by a Magistrate, could, without itself recording evidence, summon a person not named in the police report presented under Section 173 of the Code of Criminal Procedure, 1973, to stand trial along with those named therein; if not in exercise of power conferred by Section 319 of the Code, then under any other provision ? The answer given was in the affirmative, on the basis of Section 193 of the Code, as it presently stands, providing that once the case is committed to the Court of Session by a Magistrate, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of Original Jurisdiction gets lifted, thereby investing the Court of Session unfettered jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the crime can prima facie be gathered from the material available on the record. It is on this reasoning that this Court CRR Nos.19 and 658 of 2010 -10- sustained the order of the Court of Session (though it ostensibly was under Section 319 CrPC terming material of investigation before it as 'evidence') summoning the unnamed accused to stand trial with the named accused. A stage has thus been discovered, before the reaching of the stage for exercise of power under Section 319 CrPC, on the supposition and premise that it is pre-trial when the question of charge was being examined. Such power of summoning the new accused has been culled out from the power exercisable by the Court of Session under Sections 227 and 228 of the Code, enabling it to discharge under Section 227 or charge under Section 228 the accused persons before it and while so to summon another accused involved in the commission of the crime, prima facie appearing from the material available on record of the case. Thus at a stage posterior to the stage envisaged under Section 319, the Court of Session has been held empowered to summon an accused if a prima facie case is made out from the material available on the record."
15. In the case of Rakesh & Anr. v. State of Haryana, 2001 (3) RCR(Criminal) 681 : [(2001)6 SCC 248], it was held :
"11. In support of his contention, learned Senior Counsel Mr. Ranjit Kumar referred to the decision of this Court in Joginder Singh v. State of Punjab, (1979) 1 SCC 345. In our view, this decision nowhere lays down that before a person is added as accused in a sessions trial case, he should be permitted to cross-
examine the witnesses whose evidence is recorded. On the contrary, it lays down that once the Sessions Court is seized of the matter as a result of the committal CRR Nos.19 and 658 of 2010 -11- order against some accused the power under Section 319(1) can come into play and the court can add any person, not an accused before it, as an accused and direct him to be tried along with other accused. The Court has further observed that the very purpose of enacting Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the expression 'any person not being the accused'."
16. We must, however, at this stage also place on record that this Court, in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., 1983(1) RCR(Criminal) 73 :
[(1983)1 SCC 1], opined that the power under the said provision must be exercised very sparingly and not as a matter of course. In the case of Joginder Singh & Anr. v. State of Punjab & Anr. [(1979) 1 SCC 345], this Court even opined that such a power can be exercised even without there being a committal order passed against a person. [see also Lok Ram v. Nihal Singh & Anr., 2006(2) RCR(Criminal) 707 : 2006(2) Apex Criminal 71 : [(2006)10 SCC 192];
Shashikant Singh v. Tarkeshwar Singh & Anr., 2002(3) RCR(Criminal) 191 : [(2002)5 SCC 738]; Michael Machado & Anr. v. Central Bureau of Investigation & Anr., 2000(2) RCR(Criminal) 75 : [(2000)3 SCC 262]; Palanisamy Gounder & Anr. v. State represented by Inspector of Police, 2006(2) RCR(Criminal) 235 : 2006(2) Apex Criminal 244 :
[(2005)12 SCC 327]; Kailash Dwivedi v. State of M.P. & Anr. [(2005)11 SCC 182] and Mohd. Shafi v. Mohd. Rafiq & Anr., 2007(2) RCR(Criminal) 762 : 2007(2) RAJ 534 : [2007 (5) SCALE 611].CRR Nos.19 and 658 of 2010 -12-
After considering the various judgments, the Hon'ble Apex Court in Ram Singh's case (supra) held as under:-
17. The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court's jurisdiction under Section 319 of the Code. We have noticed hereinbefore the importance of the word 'appears'. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case.
18. The High Court furthermore committed a serious error insofar as it failed to take into consideration that when the order dated 29th May 2003 was passed, the learned Judge was in a position to consider the evidence brought on record including the cross-examination of the prosecution witnesses. The High Court did not arrive at any finding that a case has been made out for exercise of such an extraordinary jurisdiction which, in terms of the judgments of this Court, is required to be exercised very sparingly."
In the present case also, in my opinion, learned Additional Sessions Judge has not recorded any finding that a prima facie case is made out against the petitioners and there is a cogent evidence on record on the basis of which it could reasonably be made out that such evidence will lead to conviction of the person sought to be summoned.
There is sufficient evidence on record that investigation agency has found the petitioners innocent during the investigation based on the statement dated 25.9.2008 under Section 164 Cr.P.C. (Annexure P-3), made before the learned SDJM and order dated 4.11.2008 (Annexure P-6) CRR Nos.19 and 658 of 2010 -13- passed by the learned SDJM, from which it is clear that she being in love with Raju had married him and stayed with him. She has not implicated the petitioners in her statement which was volunteer and without any pressure. Further it is proved by the medical board report (Annexure P-5) that she was 17/18 years old. The date of birth of Phool Chand is 15.04.1946, Ved Parkash is 18.01.1952 and of Rohtash Kumar is 04.03.1951. They are quite old. Even in the statement before DSP dated 15.12.2008 (Annexure P-8), no allegations have been levelled against the petitioners. In addition to the above, the civil litigation with the brothers of the father of the prosecutrix also indicates the motive for implicating the petitioners. The names of the petitioners do not figure in the FIR though there is a delay of more seven days in lodging the FIR that too against the persons other than the petitioners.
The application under Section 319 Cr.P.C. in view of the above facts and circumstances appears to have been filed with a motive to settle persons scores against the petitioners and the ASI Vijay Anand, who has been summoned under Section 354/506 IPC. Even during the investigation, prosecution case was found to be false and cancellation report was submitted against Raju and was accepted by the Court on 22.10.2008. But the statement of prosecutrix was recorded on 11.04.2009 after she returned to her parents home and was pressurized to concoct the story. The statements made are contradictory and the statements before the Court prior to 11.04.2009 indicate that no offence had been committed by any of the persons rather she being in love with Raju had married to him. There is a strong motive to implicate the petitioners as they had filed civil CRR Nos.19 and 658 of 2010 -14- suit against the brothers of the father of the prosecutrix. From the totality of the facts and circumstances of the case and evidence on record it is abundantly clear that prosecution case is a subsequent concoction and an marked improvement over the original version. In such circumstances there are no reasonable grounds that petitioners can be convicted specifically when even the main accused Raju has been acquitted by the Court.
In my opinion, the summoning of the petitioners is contrary to the ratio of law settled by the Hon'ble Apex Court in the case of Michael Machado vs. Central Bureau of Investigation, 2000(2) RCR (Criminal) 75 (SC) and the various judgments referred herein above. In the case of Sarabjit Singh and another vs. State of Punjab and another, 2009(3) RCR(Criminal) 388 (SC) in para No.12, 16 and 17 of the judgment, it has been held as under: -
"12. The extent of the power of a Sessions Judge to summon persons other than the accused to stand trial in a pending case came up for consideration before this Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi [(1983) 1 SCC 1]. Therein, this Court while holding that the provision confers a discretionary jurisdiction on the court added "this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken"
16. We have noticed hereinbefore that Mohd. Shafi (supra) has been explained in Lal Suraj (supra) holding that a power under Section 319 of the Code can be exercised only on the basis of fresh evidence brought before it and not on the basis CRR Nos.19 and 658 of 2010 -15- of the materials which had been collected during investigation particularly when a final form was submitted and the same had been accepted by the Magistrate concerned. There is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Court in Municipal Corporation of Delhi (supra) is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken.
17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly.
We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined:
"...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court..."
An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as CRR Nos.19 and 658 of 2010 -16- to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction.
For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned."
I, therefore, am of the opinion that in view of the law laid down by the Hon'ble Supreme Court, impugned order dated 01.12.2009 passed by the learned Additional Sessions Judge, Nuh, cannot be sustained. Accordingly, for the reasons aforementioned, the impugned order is set aside. Petitions are allowed.
(Paramjeet Singh)
August 29, 2012 Judge
R.S.