Himachal Pradesh High Court
Sakshi Sharma vs State Of H.P. & Others on 5 January, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 133 of 2015.
Reserved on : 21.12.2017.
.
Date of Decision: 5th January, 2018.
Sakshi Sharma .....Petitioner.
Versus
State of H.P. & others ....Respondents.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur,
Judge.
Whether approved for reporting? Yes.
For the Petitioner: Ms. Ambika Kotwal, Advocate.
For Respondent No.1: Mr. Vivek Singh Attri, Addl. A. G. Advocate.
For Respondents No.2 to 5: Mr. Satyen Vaidya, Sr. Advocate with Mr. Vivek Sharma, Advocate.
For Respondent No.6. Mr. B.C. Negi, Senior Advocate with Mr. Pranay Pratap Singh, Advocate.
Sureshwar Thakur, Judge.
The petitioner herein seeks quashing, of, the orders pronounced by the learned Sessions Judge ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 2 Forest Shimla on 30.04.2015, whereby, he dismissed the application moved before him, by the learned Public Prosecutor concerned, application whereof, is .
cast under the provisions of Section 319 of the Cr.P.C., containing therein a relief for arraying, of, one Nanak Chand Jindani, owner of Vatika Hotel, Shimla and Raju and Veeru, working in Vatika Hotel, Shimla, and his servants, as co-accused along with other accused, in respect whereof charge was framed by the learned trial Court concerned. Since, the learned Sessions Judge concerned, declined relief to the Public Prosecutor concerned, hence, being aggrieved, therefrom, the petitioner/complainant, has through instant petition, hence, concerted to beget reversal of the impugned orders pronounced, by the learned Sessions Judge concerned.
2. The victim one Rajesh Sharma, while stepping into the witness box, (i) had, in consonance with his previous statement recorded in writing, hence, testified vis-a-vis one Nanak Chand Jindani, the owner of Vatika Hotel, belabouring him along with his servants, (ii) in sequel whereof, he testified, of his ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 3 receiving injuries on his eyes. However, the learned Sessions Judge concerned, had not meted credence thereto, per se, for, merely specious and scanty .
reason, of, the name of the aforesaid not specifically occurring in the testification rendered by the victim, named, one Rajesh Sharma, (iii) whereas, the victim Rajesh Sharma in consonance with his previous statement recorded in writing, has, rather with graphic categoricality, r echoed in his testification, an incriminatory role vis-a-vis one Nanak Chand Jindani and his servants. In aftermath, reiteratedly besides reinforcingly, the inapt irreverence meted thereto, by the learned Sessions Judge concerned, is grossly improper. Even if, the aforesaid, during, the course of his rendering, his testification, reneged from his previous recorded statement in writing, yet upon his being cross-examined by the learned Public Prosecutor concerned, upon an apposite permission being accorded to him by the learned trial Judge concerned,
(iv) he conceded, of his making a previous statement comprised in Ex.PW21/F, (v) even thereafter, upon, his cross-examination, conducted, by the learned defence ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 4 counsel, yet in course thereof, no apposite suggestions were put to him, for belying his testification(s), occurring in his examination-in-chief, .
of his, being belaboured on 22.01.2008, by one Nanak Chand Jindani and his servants, (v) contrarily, during the course of his cross-examination, there occurs an affirmative response, to an apposite suggestion, of, his being belaboured on 22.01.2008, by one Nanak Chand and his servants, (vi) wherefrom, it is apt to conclude, of, the defence conceding, to the inculpatory role(s) ascribed by PW-24, especially vis-a-vis one Nanak Chand Jindani and his servants. Aggravated vigour, to the inference is galvanized, by the factum, of the learned defence counsel while holding PW-24 to cross-
examination, his meteing affirmative suggestion(s) to him qua ASI Tej Ram, effecting a compromise inter se him and Nanak Chand Jindani. The further severe effect thereof is of hence the defence acquiescing, to the factum, of, PW-24 in his examination-in chief rendering a truthful version qua the inculpatory role ascribed therein vis-a-vis one Nanak Chand Jindani and his servants. Consequently, it was inapt for the ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 5 learned Sessions Judge concerned, to decline relief as prayed for, in application cast under the provisions of Section 319 of the Cr.P.C.
.
3. Even though, the name of one Nanak Chand, is not borne in the FIR embodied in Ex.PW18/B, yet effect thereof is waned by (a) it being lodged by the petitioner, the wife of the victim Rajesh Sharma;
(b) the defence, for the reasons aforestated, acquiescing qua the incriminatory role of one Nanak Chand, in the relevant occurrence. Moreover, the mandate of Section 319 of the Cr.P.C., provisions whereof stand extracted hereinafter:-
"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.
::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 6 (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 a fresh, 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."
(i) purvey statutory leverage to the trial Court concerned, to upon incriminatory/inculpatory evidence, making its upsurgings, vis-a-vis certain person(s) not initially joined as accused, (ii) upsurging(s) whereof, occur, especially during the course of trial of the accused, who are initially charged for the offences, encapsulated in the report, furnished, under the provisions, of, Section 173 of the Cr.P.C., by the Investigating Officer concerned, (iii) to hence qua those person(s), who is/are not initially charge ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 7 sheeted, to thereupon proceed to array him/them, as co-accused along with the accused, who stand already charged, as accused. The mandate besides .
ingredients of sub section (1) of Section 319 of the Cr.P.C., for all the reasons aforestated, stand(s) satiated vis-a-vis Nanak Chand Jindani and his servants, (iv) thereupon, it is permissible for this Court, to, after quashing the impugned order, hence order, for theirs being arrayed as co-accused along with those accused, who already stand charge sheeted, by the learned Sessions Judge concerned.
4. The learned counsel appearing for respondents No.2 to 5 has placed reliance, upon, a judgment of the Hon'ble Apex Court, reported in (2013)9 SCC 500, rendered in a case titled as Babubhai Bhimabhai Bokhiria and another versus State of Gujarat and others, relevant paragraphs No. 13, 14, 18 and 19 whereof, are extracted hereinafter:
"13. In the light of the above two decision rendered by the co-ordinate Benches of this Court, we have no hesitation in holding that even if the addition of the petitioner Babubhai Bhimabhai ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 8 Bokhira is held to be justified by the Constitution Bench of this Court the mere fact that the trial of the remaining accused has already concluded, would not prevent the prosecution of the petitioner for the offences for which he has been summoned .
by the trial court.
14. There is another angle from which the matter can and must be examined. The prosecution has already examined as many as 134 witnesses at the trial. In terms of the ratio of the direction of this Court in Shashkant Singh case,[ (2002) 5 SCC 738] with the addition of the petitioner as accused all those witnesses shall have to be recalled for a fresh examination. If that be so, the trial would go on or a few more years having regard to the number of witnesses that have to be examined. This would in turn mean that the right of the accused to a speedy trial, that they have laboured to complete within six years or so, will be in serious jeopardy on account of the entire process being resumed de novo. Such a result is manifestly unjust and unfair and would be perilously close to being in violation of the fundamental rights guaranteed to the accused persons who cannot be subjected to the tyranny of a legal process, that goes on endlessly for no fault of theirs.
18. It is, in the light of the settled legal position, no longer possible to question the legitimacy of the right to speedy trial as a part of the right to life under Article 21 of the Constitution. The essence of Article 21 of the Constitution lies not only in ensuring that no citizen is deprived of his life or personal liberty to except according to procedure established by law, but also that such procedure ensures both fairness and an expeditious conclusion of the trial. It is in that backdrop not possible to countenance a situation where addition ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 9 of Babubhai Bhimabhai Bokhiria as an accused to the case at hand would lead to an indefinite suspension of the trial and eventual recall of 134 witnesses already examined against the applicant who has been in jail for over six years now. There .
is, therefore, no reason for a blanket stay against the progress of the trial before the courts below qua other accused persons.
19. In the totality of the above circumstances, therefore, we are inclined to modify our order dated 17.12.2008 by which further proceedings before the trial court were brought to a halt. We make it clear that while the stay of the trial against Babubhai Bhimabhai Bokhiria the petitioner in SLP No.9184 of 2008 shall continue qua the said petitioner, the trial court shall be free to proceed with the trial qua the other accused persons.
Criminal Miscellaneous Petitions Nos. 20502 of 2008 and 24292 of 2011 are allowed in part and to the above extent."
(pp.....506, 507 & 508)
(i) AND, therefrom, he contends with vigour, that, with alike therewith, the apposite trial against respondents No. 2 to 5, standing progressed upto the stage of arguments, (ii) thereupon, upon, adding, of, one Nanak Chand as accused along with accused, in respect whereof trial has progressed upto the stage of arguments, (iii) would rather entail consequence(s) of the entire set, of, prosecution witness(es) being ordered to be re-summoned, for their re-testifying, (iv) ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 10 with a further ill consequence(s) of the right, of, speedy trial of respondent No.2, being severely jeopardised, (v) hence, he contends that, rather in .
consonance with the verdict recorded by the Hon'ble Apex Court in Babubhai's case (supra), this Court, order, the learned Sessions Judge, to pronounce its judgment vis-a-vis the accused, in respect whereof, the apposite trial stand(s) already concluded, upto, the stage of arguments, whereas, it permit holding, of, fresh de novo trial only vis-a-vis one Nanak Chand Jindani. However, the aforesaid contention, is not acceptable to this Court, (vi) significantly when the succor which he intends, to draw from the verdict, of the Hon'ble Apex Court rendered in Babubai's case (supra), rather holding a factual matrix,hence, bearing a gross contradistinctivity vis-a-vis the prevalent herewith factual matrix, for the reason (a) in the verdict pronounced by the Hon'ble Apex Court, it had proceeded, to, vacate the orders pronounced earlier, whereby, it had stalled the further progress, of trial vis-a-vis the accused, in respect whereof trial, had progressed upto the stage of arguments AND had yet ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 11 ordered that the staying of trial vis-a-vis the petitioners therein, yet remaining in operation; (b) the effect thereof being, of, affirmative orders pronounced .
by the High Court concerned, upon, an application borne under Section 319 of the Cr.P.C., hence, remaining finally unadjudicated; (c) hence, merely for ensuring speedy trial, of the accused, in respect whereof, trial had progressed upto the stage of the arguments, it had vacated vis-a-vis only them, the order(s), hence, halting the further progress of the trial vis-a-vis them, (d), whereas, hereat, this Court has, not earlier vacated, the orders rendered, for, stalling the further progress of the trial vis-a-vis those accused, other than, one Nanak Chand Jindani; (e) contrarily this Court has, upon, the complainant's petition, hence proceeded, to make a final adjudication, upon, the legality of the impugned orders; (f) whereas, reiteratedly the Hon'ble Apex Court, in its verdict (supra), had not rendered any final adjudication, upon, the onslaught cast, by the petitioner(s) therein vis-a-vis the affirmative impugned orders pronounced, upon, an application, cast under ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 12 the provisions of Section 319 of the Cr.P.C., (g) rendering hence the espousal of the learned counsel, appearing for respondents No.2 to 5, to be not .
acceptable. Conspicuously, the mandate of sub clause(b) to sub section (4) of Section 319 of the Cr.P.C., would prima facie, be also infringed, in case the espousal of the counsel for the respondents No.2 is accepted, (h) especially with a specific mandate being borne therein, of a person, who is not initially arrayed as an accused, is, upon, upsurgings, of, incriminatory/inculpatory evidence vis-a-vis him, especially during course of trial, of, initially charge sheeted accused, hence, visited the statutory ill consequence(s) of his being also enjoined to be charged sheeted along with the already arrayed accused,(i) besides upon an order, for his being arrayed as an accused, enjoining the Court concerned, to regress the trial upto the stage, whereat, cogonizance is taken upon offences vis-a-vis hitherto earlier charge sheeted accused, (j) apparently, hence, a denovo trial is contemplated and mandated, by clause (b) of sub section (4) to Section 319 of the ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 13 Cr.P.C., upon, rendition(s), of, affirmative order(s), especially, within the domain of sub section (1) of Section 319 of the Cr.P.C.
.
5. Moreover, the mandate of Section 223 of the Cr.P.C, provisions whereof extracted hereinafter:-
"223. What persons may be charged jointly. The following persons may be charged and tried together, namely:-
(a) persons accused of the same offence committed in the course same transaction;
(b) person accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) person accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last- named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860 ). or either of those sections in respect of ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 14 stolen property the possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code relating to counterfeit coin and persons accused of any .
other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:"
would also be rendered infringed, if the espousal of the learned counsel, appearing for respondents No.2 to 5 is accepted, (I) conspicuously, upon, adding(s) of one Nanak Chand Jindani along with his servants, as co-accused alongwith earlier herewith charge sheeted accused, vis-a-vis the offences alleged against them,
(ii) ARE, also necessarily enjoined to be joined therewith as accused, (iii) with a concomitant ensuing sequel, of, trial against all statutorily proceedings simultaneously besides concurrently.
6. Be that as it may, for ensuring deference being meted to the principle of speedy trial, this Court deems it fit to order, (i) that the learned trial Court concerned shall, only, ensure the re-summoning besides re-recording, of, the testifications, of, only ::: Downloaded on - 10/01/2018 23:02:23 :::HCHP 15 those prosecution witnesses concerned, who, in their respectively rendered testifications, make, echoings vis-a-vis the incriminatory role, of, one Nanak Chand .
Jindani and his servants.
6. For the foregoing reasons, the instant petition is allowed and the order impugned hereat, is quashed and set aside. The learned trial Court is directed to array Nanak Chand Jindani, the owner of Vatika Hotel and his servants, namely, Raju and Veeru, as accused in Case No. 32-S/7 of 2013. The learned trial Court is also directed, to, within four months from today, conclude trial of the aforesaid case. The parties are directed to appear before the learned trial Court on 12th January, 2018. All pending applications also stand disposed of. However, it is made clear that the observations made hereinabove shall not be construed as any expression on the merit(s) of the case. Records be sent back forthwith.
(Sureshwar Thakur)
5 th
January, 2018 Judge.
(jai)
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