Rajasthan High Court - Jaipur
Rekha Sharma vs State Of Rajasthan Through P.P on 3 May, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. CRIMINAL REVISION PETITION NO. 1206/2012 REKHA SHARMA VS. STATE OF RAJASTHAN & OTHERS. DATE OF ORDER : 3.05.2013 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-II Mr. Sanjay Sharma, for the petitioner.
Mr. Laxman Meena, Public Prosecutor, for Respondent No. 1-State.
Mr. Hemraj Gaur, Mr. Govind Sharma and Mr. Anil Upman, for Respondents No. 2 and 3.
Heard learned counsel for the petitioner-complainant, learned Public prosecutor appearing on behalf of Respondent No. 1-State as well as learned Counsel for Respondents No. 2 and 3.
2. This revision petition under Section 397 read with Section 401 Cr.P.C. has been filed against the order dated 08.10.2012 passed by District Judge, Jaipur District, Jaipur (hereinafter referred to as 'the Trial Court') in Sessions Case No. 64/2011, whereby the Trial Court has dismissed the application under Section 319 Cr.P.C. moved by the petitioner-complainant.
3. The concise facts of the case are that on the basis of Parcha Bayan of the petitioner-complainant, Smt. Rekha Sharma, recorded at CHC, Chaksu, An F.I.R. bearing No. 254/2011 was registered at Police Station Jamwaramgarh, District Jaipur for offences under Sections 376, 365, 342 and 120B IPC. After registering the case, the police started investigation and got examined complainant-petitioner and other witnesses as well as prepared site plan. Statement of the complainant-petitioner has also been recorded under Section 164 Cr.P.C. before Additional Civil Judge(J.D.) & Judicial Magistrate No. 4, Jaipur District, Jaipur wherein she stated that Badri Sarpanch along with Pappu Sarpanch came on the room and threatened the complainant not to depose against them, otherwise she will face dire consequences and she will lose her image and dignity. After due investigation, the police filed charge sheet only against the accused Prahalad Meena and Doongar Singh for offences under Sections 376(2)(g), 366 and 342 IPC. Thereafter, the case was committed to the Court of Sessions. The prosecution has examined the complainant-petitioner as P.W.1. Thereafter, the complainant submitted an application under Section 319 Cr.P.C. before the Trial Court for summoning Badri Sarpanch(Respondent No. 3) and Pappu Sarpanch(Respondent No. 2) as additional accused-persons. Learned Trial Court after hearing the parties and considering the evidence available on record, vide order dated 08.10.2012 dismissed the application under Section 319 Cr.P.C. filed by the petitioner-complainant. Being aggrieved with the order dated 08.10.2012 passed by the Trial Court, the petitioner-complainant has filed present revision petition.
4. Learned counsel for the petitioner vehemently contended that the order passed by the Trial Court is illegal, improper, unjust and not sustainable being contrary to the facts and material available on record and the law. The impugned order suffers from non-application of judicious mind and non-exercise of powers envisaged under Section 319 Cr.P.C. Learned counsel for the petitioner submitted that learned Trial Court has ignored this aspect of the matter that P.W.1, prosecutrix is the star witness in the present case. The petitioner-prosecutrix has clearly stated in her statement that Badri Sarpanch and Pappu Sarpanch came on the room and threatened the prosecutrix not to depose against them, otherwise, she will face dire consequences and she will lose her image and dignity also. In her Parch Bayan and the statement recorded under Section 164 Cr.P.C., she has categorically levelled allegations against Badri Sarpanch and Pappu Sarpanch, but both are politically influenced persons and having gloved in hand with the higher police officials, got managed the investigating agency. So, the police has not filed charge sheet against Badri Sarpanch and Pappu Sarpanch. Learned Trial Court has recorded its findings purely on surmises and conjectures in not summoning Respondents No. 2 and 3 as accused, inasmuch as there was strong, reasonable and convincing evidence to establish a prima facie case against Respondents No. 2 and 3. Learned Trial Court has also seriously erred in overlooking the fact that in the instant case, the complainant-prosecutrix is the sole witness as the offence is committed upon her body and soul and there is no reason to disbelieve her statement, as held by the Honble Apex Court in catena of judgments. Learned counsel for the petitioner, in support of his arguments, placed reliance on the decision rendered by Co-ordinate Bench of this Court in the case of Devki Soni Vs. State of Rajasthan(S.B. Criminal Revision Petition No. 1256/2010) decided on 15.03.2011.
5. Learned counsel for the petitioner further submitted that while rejecting the application under Section 319 Cr.P.C., learned Trial Court has observed that the complainant-petitioner cannot file the application under Section 319 Cr.P.C.; only Public Prosecutor on behalf of the prosecution is competent to file said application. Learned counsel for the petitioner further submitted that for the offence, which was committed upon the body and soul of the petitioner, the petitioner alone is the victim and refusal by the prosecution to submit application cannot permit/stop the accused to remain far from the hands of law. As such, the order dated 08.10.2012 passed by the Trial Court is not sustainable and the same deserves to be quashed and set aside. Learned Tril Court, while rejecting the application of the complainant-petitioner, has acted in a mechanical manner by not considering the evidence of the complainant-petitioner available on record, as also the documents on the record of the trial court. It has only been observed by the Trial Court that other prosecution witnesses have not been examined till now. He has further submitted that in case the testimony of the prosecutrix is read as a whole, it is sufficient to make out a case against Respondents No. 2 and 3 under Sections 376 read with Section 120B IPC etc. Mere because the other witnesses have not been examined till now, petitioners testimony cannot be thrown out for the purpose of exercise of power under Section 319 Cr.P.C. Learned Trial Court is required to see whether prima facie case is made out or not. Testimony of the prosecutrix-petitioner is sufficient to make out a prima facie case against Respondent Nos. 2 and 3. So, learned counsel for the petitioner prayed that present revision petition may be allowed and the impugned order dated 08.10.2012 passed by the learned Trial Court be quashed and set aside.
6 . Learned counsel for Respondents No. 2 and 3 supported the order passed by the Trial Court and vehemently submitted that learned Trial Court has rightly passed the impugned order. Learned counsel for Respondents No. 2 and 3 submitted that evidence of the prosecutrix is not reliable and also not corroborated with the other prosecution witnesses, therefore, there is no illegality or error in the order passed by the Trial Court. Mere statement of the prosecutrix, without there being any other evidence on record, may not be sufficient to summon the accused persons. Power under Section 319 Cr.P.C. is the extra-ordinary power and required to be exercised sparingly. Sufficient and cogent reasons are required to be assigned by the Court and higher standard is required to be set up. In this case, no case is made out against the Respondents No. 2 and 3 for summoning them as additional accused. Power under Section 319 Cr.P.C. is discretionary and the Court is required to see that the evidence on record is sufficient for conviction or not. On strong suspicion, charge may be framed, but person as additional accused cannot be summoned under Section 319 Cr.P.C. Learned counsel for Respondents No. 2 and 3, in support of their arguments, have relied upon decisions in the cases of Ashok Kumar Vs. State of Haryana, 2008(2) Criminal Court Cases 136(P&H); Sarabjit Singh And Another Vs. State of Punjab And Another, 2009 Cr.L.R.(SC)573=(2009) 16 SCC 46; Brindaban Das & Ors. Vs. State of West Bengal, 2009 Cr.L.R.(SC) 124; Lal Suraj Alias Suraj Singh And Another Vs. State of Jharkhand, 2009 Cr.L.R.(SC) 1=(2009) 2 SCC 696.
7. The learned Public Prosecutor has left the matter to the discretion of the Court.
8. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and perused impugned order and scanned through the material available on record and also gone through the judgments cited by learned counsel for the parties.
9. Section 319 Cr.P.C. is a special provision 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-
(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.
10. The above provision seeks to meet an extraordinary situation. It although confers a power and wide amplitude, but is required to be exercised very sparingly before an order summoning an accused is passed. The Trial Court must form an opinion on the basis of the evidence brought before it that a case has been made out that such person could be tried with the other accused persons. There is no dispute with the legal position that even if a person had not been charge sheeted, he may come within the purview of the description of such a person as contained in Section 319 Cr.P.C.
11. In Sarabjit Singh And Another Vs. State of Punjab And Another[(2009) 16 SCC 46], Honble Supreme Court has observed in Para Nos. 15 to 19 as under:
15. Our attention, however, has been drawn to a two-Judge Bench decision of this Court in Hardeep Singh v. State of Punjab (2009) 16 SCC 785 wherein doubting the correctness of Mohd. Shafi (2007) 14 SCC 544 two questions have been referred to a larger Bench, which are as under:
"(1) When the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete?
(2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?"
16. Mr Mehta would also draw our attention to Bholu Ram v. State of Punjab (2008) 9 SCC 140. Whereas Hardeep Singh is not a judgment in that sense of the term, in Bholu Ram the principal question which arose for consideration of this Court was as to whether an order passed under Section 319 of the Code can be recalled which was answered in the negative.
17. For the purpose of this case, it is not necessary to proceed on the basis that the decision in Mohd. Shafi should be applied on all fours. We have noticed hereinbefore that Mohd. Shafi has been explained in Lal Suraj (2009) 2 SCC 696 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 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.
18. 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 MCD (1983) 1 SCC 1 is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken. 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 MCD been satisfied is the question?
19. 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.
12. In the aforesaid case of Sarabjit Singh & Another(supra), Honble Apex Court has also observed in Para No. 22 and 23 as under:
22. The observation of this Court in MCD and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.
23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly(sic sparing) exercise of jurisdiction, would not be satisfied.
13. In the case of Lal Suraj Alias Suraj Singh And Another Vs. State of Jharkhand, [(2009) 2 SCC 696], the Honble Apex Court has observed about nature, scope and applicability of Section 319 Cr.P.C. and trial of persons not already arraigned as accused and held that power under Section 319 Cr.P.C. is required to be exercised very sparingly. Before order summoning such persons is passed, trial court must form an opinion on the basis of evidence brought before it that a case has been made out that such person could be tried together with the other accused. If on the basis of evidence produced before the trial court there was possibility of recording a judgment of conviction against the accused, the order can be passed under Section 319 Cr.P.C.
14. In the case of Ram Singh & Ors. Vs. Ram Niwas & Anr., 2009 (Suppl.) Cr.L.R.(SC) 581, Honble Apex Court has observed that for summoning the appellant therein as an accused, extraordinary powers can only be exercised on the basis of evidence brought on the record and from that evidence it appears that the concerned person has committed an offence. Mere existing of a prima facie case would not be sufficient to exercise the jurisdiction under Section 319 Cr.P.C. Word appears is important.
15. The following broad principles as to under what circumstances power under Section 319 Cr.P.C. should be exercised can be safely summed up from the opinion expressed by Honble Apex Court in various judgments:
i) Power to summon an accused is discretionary and extra-ordinary power, which should be exercised sparingly and only if compelling reasons exist at any stage of case.
ii) The order passed under Section 319 of the Code of Criminal Procedure summoning an additional accused should not be a mechanical exercise. Court should record reasonable satisfaction and reasons in support of the order.
iii) Power cannot be exercised to conduct a fishing enquiry;
iv) There should be reasonable prospects of the case against the newly added accused ending in their conviction.
v) Step to summon an accused can be taken only on the basis of evidence adduced before the Court and not on the basis of materials available in the charge-sheet of the case-diary as such material does not constitute evidence,
vi) Power can be exercised suo moto or on an application by some one including accused already before the Court,
vii) An accused is not entitled to be heard before the Court exercises power under Section 319 of the Code of Criminal Procedure;
viii) Satisfaction of the Court is paramount before summoning an accused, which can be arrived at inter-alia upon completion of cross-examination of the witness,
ix) Mere statement of the complainant without there being any other evidence on record may not be sufficient to summon the accused. Each case on this aspect needs cautious examination on facts before passing order of summoning of additional accused,
x) Each case has to be considered on its own facts as there may be different stages of the case where the Court can reach to a conclusion that a prima facie case is made out against the accused sought to be summoned.
16. The important question before this Court is that whether in this case it appears from the evidence that any persons(Respondents No. 2 and 3), not being the accused, have committed any offence, for which such persons(Respondents No. 2 and 3) could be tried together with the other accused person.
17. From the evidence of the prosecutrix-complainant it is clear that the prosecutrix has clearly, consistently and categorically deposed about role of the Respondents No. 2 and 3 that they came on the room and threatened the complainant not to depose against them, otherwise she will face dire consequences and she will lose her image and dignity also. After the incident of rape, Respondents No. 2 and 3 have threatened the prosecutrix. Learned Trial Court was required to see that in case, the testimony of the prosecutrix is read as a whole, would it be sufficient to make out a case against the other persons(Respondents No. 2 and 3). Merely, because other witnesses are to be examined by the prosecution, testimony of the prosecutrix cannot be thrown out. In the present case, the prosecutrix is the star witness and for the purpose of exercise of power under Section 319 Cr.P.C., learned Trial Court is concerned to see whether a prima facie case is made out or not. If the testimony of the prosecutrix is sufficient to make out a prima facie case to proceed against the Respondents No. 2 and 3, then it is duty of the Trial Court to summon the Respondents No. 2 and 3 as additional accused in the case. The Trial Court has wrongly rejected the application on the ground that the application is not filed by the prosecution and only statement of the prosecutrix has been recorded and other witnesses have not been examined till now. In my considered opinion, learned Trial Court has not considered the evidence of prosecutrix properly.
18. Resultantly, for the reasons stated above, impugned order dated 08.10.2012 passed by District Judge, Jaipur District, Jaipur in Sessions Case No. 64/2011 is set aside and the case is remanded to the learned Trial Court to decide the application filed under Section 319 Cr.P.C. afresh after considering the statement of the prosecutrix and other material available on record afresh.
19. Revision petition stands allowed. Stay application stands disposed of.
(NARENDRA KUMAR JAIN-II),J.
Manoj All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
MANOJ NARWANI JUNIOR PERSONAL ASSISTANT.