Rajasthan High Court - Jodhpur
Sita vs State & Anr on 1 February, 2018
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 488 / 2017
Sita D/o Mani Ram, B/c Kumahar, R/o Chak 13 L.M, Tehsil
Anupgarh, District Sri Ganganagar.
----Petitioner
Versus
1. The State of Rajasthan
2. Kum Manju D/o Vijaypal, B/c Bishnoi, R/o Chak17 L.m Tehsil
Anuypgarh, District Sri Ganganagar.
----Respondents
Connected With
S.B. Criminal Revision No. 429 / 2017
Bhanwar Lal S/o Raja Ram, By Caste Kumhar, R/o Village
Nahranwali Tehsil Anupgarh, District Sri Ganganagar.
----Petitioner
Versus
1. State of Rajasthan Through Its P.P.
2. Kumari Manju D/o Vijaypal, B/c Vishnoi, R/o Chak 17 L.M.
Tehsil Anupgarh, District Sri Gangangar.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.B.S.Rathore.
Mr.H.S.Sandhu.
For Respondent(s) : Mr.O.P.Rathi, P.P.
Mr.Pradeep Shah.
Mr.Rajendra Choudhary.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order Date of Pronouncement : 01/02/2018 These two revisions are directed against the common order dated 27.2.2017 passed by the learned Special Judge, POCSO Act (2 of 16) [ CRLR-488/2017] Cases cum SC/ST (Prevention of Atrocities) Act Cases, Sriganganagar in Sessions Case No.111/2016 (107/2016) whereby the application filed by the respondent victim under Section 193 Cr.P.C. was accepted and the petitioners Sita and Bhanwar Lal were summoned as additional accused to face trial with the charge-sheeted accused to face trial for the offences under Sections 363, 366, 376D read with 34 I.P.C. and 5/6 of POCSO Act.
Facts in brief are that the respondent complainant Sushri 'M' aged 16 years lodged a complaint in the court of the learned Judicial Magistrate, Anoopgarh which was forwarded to the P.S. Anoopgarh under Section 156(3) Cr.P.C. where F.I.R. No.141/2015 came to be registered on 3.4.2015 for the offences under Sections 363, 366 and 376D I.P.C. and 5/6 of the POCSO Act. The victim alleged in the complaint that she had gone to attend a relative's marriage on 27.3.2015 at the Chak 2NSM. A Rati Joga (all night chanting) was being organised in the wedding celebrations and as such, she was awake till late. The accused Sita called on the complainant's brother's phone and requested her to come out of the house for meeting her. She asked Sita to come in and talk but Sita insisted that she should come out. Upon this, the complainant came out of the house. Shankar Lal, Radheyshyam, Sita and an unknown person were waiting outside on two motorcycles. Shankar Lal forcibly pulled her on to his motorcycle and gagged her mouth. She was threatened that if she raised a hue and cry, then she would be killed. She was taken into an abandoned Dhani (3 of 16) [ CRLR-488/2017] where some spray bottles and a cot were lying. At the Dhani, Sita administered some intoxicant mixed in water to the victim and told that she should satisfy her brother's lust and that he would marry her later. The victim protested but Sita insisted that she would have to marry Shankar Lal. She was also threatened that she would be defiled so badly that she would not be able to show her face in the society again and would have to beg to marry Shankar Lal. Saying so, Sita went out. Shankar Lal took the victim inside a room and subjected her to rape while Radheyshyam gagged her mouth. Thereafter, Shankar Lal held her down and Radheyshyam raped her. The third male accused and Sita kept vigil outside the Kotha. Thereafter, the victim was again boarded on to the motorcycle and was dropped outside her relative's house. She raised a hue and cry whereupon, her relatives came out and on seeing them, the accused abandoned one motorcycle outside the house and escaped. A Panchayat was convened. Fearing recrimination of the incident, Shankar Lal committed suicide. The matter was reported to the Police, but no action was forthcoming. Thus, a complaint was filed in the Court. Soon after filing the complaint, the victim submitted an application stating therein that she did not desire registration of the case under the POCSO Act. The Court accepted the said prayer and deleted these offences. The complaint was sent to the Police Station Anoopgarh under Section 156(3) Cr.P.C. where, an F.I.R. No.141/2015 was registered and investigation was commenced. Statements of the victim were recorded under Sections 161 and 164 Cr.P.C. In both (4 of 16) [ CRLR-488/2017] these statements, the victim improved upon her story as set out in the written complaint and named Bhanwar Lal as the fourth man, whose name, she did not mention as an accused in the written complaint. The allegation of rape was specifically levelled against Radheyshyam and Shankar Lal. The Investigating Agency, proceeded to file charge-sheet only against the accused Radheyshyam because Shankar Lal the second assailant had committed suicide in the intervening period. The petitioners Bhanwar Lal and Sita were not found involved in the alleged incident and accordingly, a negative Final Report was submitted qua them. The victim, upon being apprised of this partial charge- sheet filed only against the accused Radheyshyam, submitted an application under Section 193 Cr.P.C. before the learned Special Court and prayed that the accused Sita and Bhanwar Lal may also be summoned to face trial alongwith the charge-sheeted accused. The learned Special Judge proceeded to accept the application and directed summoning of the present petitioners as additional accused in the case for the above offences by the impugned order dated 27.2.2017, which is assailed in these two revisions.
Shri B.S.Rathore learned counsel representing the petitioners relied upon a Single Bench decision of this Court in the case of Bagh Singh & Anr. Vs. The State of Rajasthan reported in 1985 Cr.L.R. (Raj.) 417 and urged that the learned Special Judge had already taken cognizance against the accused Radheyshyam against whom, the Police had filed a charge-sheet. As per him, the learned trial court could not take cognizance (5 of 16) [ CRLR-488/2017] second time around in the same case. He thus craved acceptance of the revisions urging that the impugned order is bad in the eye of law and should be quashed.
Shri H.S.Sandhu learned counsel representing the accused Bhanwar Lal virtually adopted the same arguments as advance by Sh.Rathore and urged that the impugned order is grossly illegal and deserves to be quashed and set aside.
Per contra, Shri Pradeep Shah and Shri Rajendra Choudhary learned counsel representing the complainant and the learned Public Prosecutor vehemently opposed the submissions advanced by the petitioners' counsel and contended that the minor victim levelled clear allegations of sexual assault against Radheyshyam and Shankar Lal and of instigation and active participation against the petitioners Sita and Bhanwar Lal. They vehemently urged that the Investigating Officer, did not assign any reason whatsoever for giving a negative report qua these two accused and exonerating them. They thus implored the Court to affirm the impugned order and to reject the revisions.
I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
The first question which this Court is called upon to deliberate, is as to whether the learned Special Judge had the jurisdiction to entertain the application under Section 193 Cr.P.C. at the stage when the order under challenge came to be passed or whether he has taken second cognizance at the same stage of the (6 of 16) [ CRLR-488/2017] case. It is an admitted position as reflected from the record that the Investigating Agency filed a partial charge-sheet against the accused Radheyshyam and Shankar Lal who had passed away and thus, only one accused was presented before the Court. The basic thrust of arguments advanced by Sarva Shri Rathore and Shri Sandhu learned counsel representing the petitioners was based on the Single Bench Judgment rendered by this Court in the case of Bagh Singh (supra). The said judgment was based primarily on two earlier Division Bench decisions in the cases of Sheoram Singh Vs. State of Rajasthan reported in 1982 RLR 550 and Mahendra Kumar Vs. State of Rajasthan reported in 1984 RLW 172. Both these decisions were impliedly overruled by Hon'ble Full Bench of this Court in the judgment rendered in the case of Dalip Singh Vs. State of Rajasthan reported in 1988(2) WLN 366. Thus, the judgment rendered by the learned Single Bench in Bagh Singh's case is no longer good law and any argument based thereupon has to be repelled.
Sarva Shri Rathore and Sandhu, learned counsel, during the course of the arguments also urged that powers under Section 193 Cr.P.C. are not available to a Special Judge, acting under the POCSO Act Cases, as those powers are only available to the Court of Sessions upon committal of a case. They contended that the present case involves direct submission of charge-sheet in the Court which took cognizance and the case was not received on committal and pleaded that the learned Special Court is not vested with jurisdiction to exercise powers under Section 193 Cr.P.C. for (7 of 16) [ CRLR-488/2017] summoning the left out accused.
The said argument advanced by Shri Rathore and Shri Sandhu learned counsel representing the petitioners is correct if a hyper technical approach is adopted. However, there is an important aspect of the matter which cannot be overlooked. The learned Special Judge, who is empowered by law to accept a direct charge-sheet, acts as a Magistrate empowered to take cognizance on police reports as per Section 190 Cr.P.C. The powers under Section 193 Cr.P.C. are only available to a Sessions Judge receiving a case upon committal as held by the Supreme Court in the case of Dharam Pal Vs. State of Haryana reported in (2014)3 SCC 306. Thus, the insignificant error in the impugned order which refers to exercise of powers under Section 193 Cr.P.C. can be ignored and it can be inferred that while taking cognizance and summoning the petitioners as additional accused, the learned Special Judge acted as a Magistrate exercising powers of taking cognizance on a police report under Section 190(1)(b) I.P.C. Hon'ble the Supreme Court has clearly laid down in the case of Madhu Limaye Vs. The State of Maharashtra reported in AIR 1978 SC 47 that the label of a petition or application is immaterial. This Court has already turned down the argument advanced by Sarva Shri Rathore and Sandhu that the learned Special Judge had already taken cognizance against the charge- sheeted accused once and thus, could not have taken cognizance second time around in the same case. Ex-facie, the argument, though attractive on the face value, lacks merit in substance. The (8 of 16) [ CRLR-488/2017] powers to summon accused are provided to the Magistrate under Section 204 Cr.P.C. at the pre-charge stage and post framing charge under Section 319 Cr.P.C. after recording of evidence. Chapter XIV Cr.P.C. which deals with the powers of the Court to initiate the proceedings (loosely termed as taking cognizance), nowhere indicates existence of any power with the Court to summon the accused. Thus, the power of summoning an accused upon receiving a charge-sheet is conferred upon the Magistrate or the Special Judge by Section 190 Cr.P.C. by a deemed fiction of law. There may be a situation where, the Magistrate takes cognizance of a partial charge-sheet filed against a particular number of accused who are brought before him and thereafter, a subsequent charge-sheet is filed and the Magistrate once again takes cognizance against the subsequently charge-sheeted accused and puts them up for trial. If the above contention advanced by learned counsel representing the accused petitioners were to be accepted, then evidently, the Magistrate would be powerless to accept the subsequently charge-sheeted accused and take cognizance against them. The concept of active and passive cognizance propounded in the Constitution Bench Judgment of Dharampal (supra) would not come to the aid of the accused by any stretch of imagination keeping in view the ratio of the Supreme Court decision rendered in the cases of M/s.Swil Limited Vs. State of Delhi & Anr. Reported in (2001)6 SCC 670 followed in the case of R.N.Agrawal Vs. R.C.Bansal reported in (2015)1 SCC 48. The facts of R.N.Agrawal's case (9 of 16) [ CRLR-488/2017] (supra) are almost akin to the case at hand wherein, a partial charge-sheet was filed by the CBI in the court of Special Judge against six persons. The learned Special Judge took cognizance against those six accused on 23.7.2008. Thereafter, the accused R.N.Agrawal moved an application under Section 190 read with 193 Cr.P.C. for summoning three more persons as additional accused, who had been cited by the CBI as witnesses. The said application was allowed by order dated 10.7.2009 and the order passed by the learned Special Judge was upheld by the Hon'ble Supreme Court with the following observations:
"22. As noticed above, after completion of investigation, CBI filed charge-sheet in the Court of Special Judge to deal with the cases in the Prevention of Corruption Act, as also under the Indian Penal Code. The procedure and the powers of the Special Judge have been prescribed in Section 5 of the said Act. For better appreciation, Section 5 of the Act is reproduced here in below:
5. Procedure and powers of special Judge.-
(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrates.
(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of Sub-sections (1) to (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered Under Section 307 of that Code.
(3) Save as provided in Sub-section (1) or Sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for purposes of the said (10 of 16) [ CRLR-488/2017] provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.
(4) In particular and without prejudice to the generality of the provisions contained in Sub-section (3), the provisions of Sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.
(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Order 38 of 1944).
23. A bare reading of the provision would show that the special judge may take cognizance of the offence without the accused being committed to him for trial and the court of special judge shall be deemed to be a court of session. The special judge in trying the accused persons shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 for the trial of warrant cases by the Magistrate. Indisputably, a person holding the post of either a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge is appointed as Special Judge and shall follow the procedure prescribed in the Code for trial of warrant cases.
24. The constitution Bench in the case of A.R. Antulay (supra), was of the view that the special judge appointed under the Prevention of Corruption Act, enjoys all powers conferred on the Court of original jurisdiction functioning under the High Court except those specifically conferred under the Act. The Bench observed:
27...While setting up a Court of a Special Judge keeping in view the fact that the high dignitaries in public life are likely to be tried by such a court, the qualification prescribed was that the person to be appointed as Special Judge has to be either a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. These three dignitaries are above the level of a Magistrate. After prescribing the qualification, the Legislature proceeded to confer power upon a Special Judge to take cognizance of offences for the trial of which a special court with exclusive jurisdiction was being set up. If a Special Judge has to take cognizance of offences, ipso facto (11 of 16) [ CRLR-488/2017] the procedure for trial of such offences has to be prescribed. Now the Code prescribes different procedures for trial of cases by different courts.
Procedure for trial of a case before a Court of Session is set out in Chapter XVIII; trial of warrant cases by Magistrates is set out in Chapter XIX and the provisions therein included catered to both the types of cases coming before the Magistrate, namely, upon police report or otherwise than on a police report. Chapter XX prescribes the procedure for trial of summons cases by Magistrates and Chapter XXI prescribes the procedure for summary trial. Now that a new criminal court was being set up, the Legislature took the first step of providing its comparative position in the hierarchy of courts Under Section 6 Code of Criminal Procedure by bringing it on level more or less comparable to the Court of Session, but in order to avoid any confusion arising out of comparison by level, it was made explicit in Section 8(1) itself that it is not a Court of Session because it can take cognizance of offences without commitment as contemplated by Section 193 Code of Criminal Procedure. Undoubtedly in Section 8(3) it was clearly laid down that subject to the provisions of Sub-sections (1) and (2) of Section 8, the Court of Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors.
25. In the case of Harshad S. Mehta v. State of Maharashtra MANU/SC/0540/2001 : (2001) 8 SCC 257, the Bench while dealing with the case under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 observed that special court is a Court of exclusive jurisdiction in respect of offences Under Section 3(2) of the Act, like special court under Prevention of Corruption Act it has original criminal jurisdiction. The special court per se is not a Magistrate and also it is not a court to which the commitment of a case is made.
26. In the case of State of T.N. v. V. Krishnaswami Naidu MANU/SC/0259/1979 : (1979) 4 SCC 5, this Court while answering a question, as to whether the special judge under the Criminal Law (Amendment) Act, 1952 can exercise the power conferred on a Magistrate Under Section 167 Code of Criminal Procedure to authorise the detention of the accused in the custody of police, held that a special judge is empowered to take cognizance of the offence without the accused being committed to him for trial. Their Lordship observed:
5. It may be noted that the Special Judge is not a Sessions Judge, Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure though no person can be appointed as a (12 of 16) [ CRLR-488/2017] Special Judge unless he is or has been either a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge. The Special Judge is empowered to take cognizance of the offences without the accused being committed to him for trial. The jurisdiction to try the offence by a Sessions Judge is only after committal to him. Further the Sessions Judge does not follow the procedure for the trial of warrant cases by Magistrates. The Special Judge is deemed to be a Court of Session only for certain purposes as mentioned in Section 8(3) of the Act while the first part of Sub-section 3 provides that except as provided in Sub-sections (1) and (2) of Section 8 the provisions of the Code of Criminal Procedure, 1898 shall, so far as they are not inconsistent with this Act, apply to the proceedings before the Special Judge.
27. In the case of Raghubans Dubey v. State of Bihar MANU/SC/0074/1967 : AIR 1967 SC 1167, this Court while dealing with the similar matter held that once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders and once he comes to the conclusion that apart from the persons sent by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.
28. In the case of Kishun Singh v. State of Bihar (supra), the scope and power of a Court Under Sections 193, 209 and 319 observed as:
16. We have already indicated earlier from the ratio of this Court's decisions in the cases of Raghubans Dubey and Hareram that once the court takes cognizance of the offence (not the offender) it becomes the court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the court's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance. We have also pointed out the difference in the language of Section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a plain reading of Section 193, as it presently stands once the case is committed to the (13 of 16) [ CRLR-488/2017] Court of Session by a Magistrate under the Code, 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. On the Magistrate committing the case Under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record. The Full Bench of the High Court of Patna rightly appreciated the shift in Section 193 of the Code from that under the old Code in the case of Sk. Lutfur Rahman as under:
Therefore, what the law Under Section 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima facie guilty of the crime as well ....Once the case has been committed, the bar of Section 193 is removed or, to put it in other words, the condition. therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon any individual accused of the crime.
We are in respectful agreement with the distinction brought out between the old Section 193 and the provision as it now stands.
29. The order passed by the Special Judge would show that while issuing summons against the Respondents the Court has considered in detail the material brought on record during investigation. We would like to refer some of the paragraphs, which are quoted here in below:
14. During investigation. It was also revealed that Sh. Ram Narain Aggarwal got procured the various false documents in order to regularize the society fraudulently, which was submitted to the office of the RCS. The details of the documents are as follows:
Proceedings of general body meetings dated 15-11- 1998 and 23-01-2000.
Proceedings register having proceedings with effect from 22-11-1998.
Membership register having members numbers 101 onwards.
15. Proceedings of General Body Meeting (GBM) dated 15-11-1998 which shown to be held in the (14 of 16) [ CRLR-488/2017] office of the society at 303. 3rd Floor, C-50, Vasant Tower Community Centre, Janak Puri where the approval of resignation of 46 members and enrollment of 35 new members during the period of 1996-97 by the managing committee was falsely shown. Similarly, proceeding of GBM dated 23-01-
2000 falsely show approval of resignation of 10 promoter members by the managing committee. In that GBM, false election of managing committee was shown to be conducted, in which, Sh. OP Aggarwal- the President, Sh. Anil Kumar Sharma- Vice President and all other members of the managing committee of the society, whose name are Sh. R.N. Aggarwal, Ms. Sujata Chauhan, Sh. Sudhir Aggarwal, Sh. CL Bansal and Ms. Janak are shown to be elected by showing conducting false elections of the management committee. The signature of Sh. Sudhir Aggarwal is forged on these proceedings of GBM dated 15-11- 1998, 23-1-2000 which are written by Ms. Sujata on the instance of Sh. RN Aggarwal.
16. It was also revealed that Sh. Mishri Lal Lodhi and Sh. Bhupinder Kumar, the then president and secretary of the society respectively had never approved the resignation of the promoter members and enrollment of new members during the year 1996-97 as shown in GBM dated 15-11-1998.
17. After obtaining demand letter dated 21-9-1998 from DDA, a post letter dated 2-11-1998 under the signature of SH. Bhupinder Kumar, Secretary of the society was submitted fraudulently to the commissioner (Housing), DDA, New Delhi, whereby more time was sought for making payment.
18. Investigation further revealed that Sh. RN Aggarwal in pursuance of criminal conspiracy with Sh. Bhim Singh Mahur fraudulently obtained a letter dated 15-11-1998 signed by Sh. Mishri Lal (President), Sh. Bhupinder Kumar (Secretary) and Smt. Kela Devi (Treasurer) and sent the same to the Manager, Delhi State Cooperative Bank Ltd.., Dariya Ganj, New Delhi falsely stated therein that Sh. Anil Kumar Sharma, Sh. RN Aggarwal and Sh. Om Prakash Aggarwal have been elected as President, Secretary and Treasurer respectively in the new Managing Committee of the said society and the said office bearer have been authorized to operate the bank accounts of the said society and this way all the above named accused had fraudulently taken over control of the operation of the bank account of the said society.
xxx
20. Investigation further revealed that Sh. Ganesh (15 of 16) [ CRLR-488/2017] Jha, a promoter member of the society lodged complaints dated 26.6.2000 and 5.10.2000 to the office of RCS, New Delhi alleging therein that the society had not intimated him for allotment of land by DDA nor demanded his share of contribution towards costs of land and he suspected that the Secretary fraudulently manipulated the membership register. The society has secretly shifted the registered office without holding any meeting of the members, nor called him to attend any meeting of the society with some ulterior motive.
21. It is also revealed in the investigation that Sh. Leela Krishan Seth appointed Sh. Jafar Iqbal for conducting verification on the allotments made in the complaints who gave a false verification report at the behest of Sh. R.N. Aggarwal in which he fraudulently certified that election were satisfactorily held by society on 15.11.98 and facilitated dishonestly the accused persons by giving them clean chit to the society.
22. Investigation also disclosed that person to the aforesaid criminal conspiracy Leela Krishna Seth the then Assistant Registrar, Sh. Jafar Iqbal, the then Inspector Grade-III by abusing their official position by entering into criminal conspiracy with Sh. R.N. Aggarwal and Sh. O.P. Aggarwal with the intention to cheat DDA got allotment and possession of land from DDA in favour of the society.
30. The Special Judge considering all those materials brought on record during investigation and relying upon the decisions of this Court in the case of M/s. Swil Ltd. v. State of Delhi and Anr. MANU/SC/0450/2001 : (2001) 6 SCC 670; Nisar and Anr. v. State of U.P. MANU/SC/0594/1995 : (1995) 2 SCC 23 : 1995 Crl. LJ 2118; Kishan Singh v. State of Bihar (supra); Raghubans Dubey v. State of Bihar (1967) 2 SCR 423, came to the conclusion that the Respondents are involved in the commission of offence and consequently summons were issued against them."
In view of the law as laid down in the above judgment, evidently, the learned Special Judge committed no error either on facts or in law while summoning the petitioners to face trial as additional accused. Mere mention of the wrong provision of law viz. Section 193 Cr.P.C. in the impugned order in place of Section 190 Cr.P.C. can be ignored. Hon'ble the Supreme Court in the case (16 of 16) [ CRLR-488/2017] of Madhu Limaye (supra) has observed that label of a petition filed by the parties is immaterial. The Court can always correct the provision of law and rectify the technical irregularity whenever circumstances so warrant.
The learned Special Judge considered in detail, the tenor of the prosecution evidence and rightly held in the opinion of this Court that there is ample material available on record to summon the left out accused i.e. the petitioners, for facing trial alongwith the charge-sheeted accused. Manifestly, the impugned order dated 27.2.2017 does not suffer from any infirmity, illegality or irregularity warranting interference in exercise of this Court's revisional jurisdiction.
However, the Court feels that as the present petitioners are not specifically attributed having made any sexual assault upon the victim and as they were exonerated by the Investigating Officer, it is hereby directed that in case, they surrender before the trial court on or before 15.3.2018 and move a bail application, in such event, they shall be enlarged on bail upon furnishing bail and personal bonds to the satisfaction of that court.
With these observations, direction and modification, both the revisions are dismissed as being devoid of merit.
A copy of this order be placed in both the files.
(SANDEEP MEHTA)J. /tarun goyal/