Jharkhand High Court
Md. Aziz vs The State Of Jharkhand ......Opp. Party on 21 August, 2023
Author: Sanjay Prasad
Bench: Sanjay Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 699 of 2021
....
Md. Aziz ...... Petitioner
Versus
The State of Jharkhand ......Opp. Party
With
Cr. M.P. No. 2003 of 2021
....
1. Ruhul Aman Ahmad @ Laddan @ Rahul @ Aman Ahmed
2. Ruhul Aqueel Ahmad @ Munnain ...... Petitioners
Versus
The State of Jharkhand ......Opp. Party
With
Cr. Rev. No. 414 of 2021
....
Guddu Gupta @ Brij Mohan Gupta ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhni Bhakat ......Opp. Parties
With
Cr. M.P. No. 1778 of 2021
....
Shambhu Trivedi @ Nitin Chandra Trivedi ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhni Bhakat ......Opp. Parties
With
Cr. M.P. No. 2033 of 2021
....
Imdad Ansari ...... Petitioner
Versus
The State of Jharkhand ......Opp. Party
with
Cr. Rev. No. 427 of 2021
....
Dinesh Agarwal ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhni Devi ......Opp. Parties
with
Cr. Rev. No. 429 of 2021
....
Ajay Kerketta ...... Petitioner
Versus
The State of Jharkhand ......Opp. Party
2
with
Cr. Rev. No. 567 of 2021
....
Abhishek Mishra ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhani Bhakat ......Opp. Parties
With
Cr. Rev. No. 576 of 2021
....
Md. Kareem @ Kareem Cable @ Karim Cable Wala
...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhni Bhagat @ Bhagat @ Bhakt ......Opp. Parties
with
Cr. Rev. No. 579 of 2021
....
Tashbib Ahmed @ Tassu @ Tashmish Ahmed ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhni Bhagat ......Opp. Parties
With
Cr. Rev. No. 589 of 2021
....
Rajesh Kumar Singh @ R. K. Singh ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhni Bhakat ......Opp. Parties
With
Cr. M.P. No. 1683 of 2021
....
Md. Mushabir Alam @ Shahid ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhani Bhakat ......Opp. Parties
With
Cr. M.P. No. 1774 of 2021
....
Manoj Sahay ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhani Bhakat ......Opp. Parties
With
Cr. M.P. No. 1831 of 2021
3
....
Amit Kumar Singh ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhani Bhakat ......Opp. Parties
With
Cr. Rev. No. 59 of 2022
....
Gurpreet Singh ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhni Bhakat ......Opp. Parties
With
Cr. Rev. No. 431 of 2022
....
Munna Dhobi @ Sonu Kumar Rajak ...... Petitioner
Versus
1. The State of Jharkhand
2. Dukhni Bhakat ......Opp. Parties
-----
CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
-----
For the Petitioners : Mr. A.K. Kashyap, Sr. Advocate
(Cr. Revision No. 699 of 2021)
(Cr. M. P. No. 2003 of 2021)
: Mr. Indrajit Sinha, Advocate
Mr. Akhouri Awinash Kumar, Advocate
Mr. Vaibhav Modi, Advocate
Mr. Anupam Shandilya, Advocate
(Cr. Revision No. 414 of 2021)
(Cr. M. P. No. 1778 of 2021)
: Mr. Jitendra Shankar Singh, Advocate
Mr. Randhir Kumar, Advocate
(Cr. M. P. No. 2033 of 2021)
: Mr.Prambir Singh Bajaj, Advocate
Mr. Vikash Kumar, Advocate
(Cr. Revision No. 427 of 2021)
(Cr. Revision No. 431 of 2021)
: Mr. Navin Kumar, Advocate
(Cr. Revision No. 429 of 2021)
: Mr. Arvind Kumar Choudhary, Advocate
(Cr. Revision No. 567 of 2021)
: Md. Haider Ali, Advocate
Md. Hamid Raja, Advocate
4
(Cr. Revision No. 576 of 2021)
(Cr. Revision No. 579 of 2021)
: Mr. Jitendra Nath Upadhyay, Adv
(Cr. Revision No. 589 of 2021)
: Mr. Amit Kr. Das, Advocate
:Mr. Saurav Kumar , Advocate
: Mr. Sahay Gaurav Piyush, Advocate
(Cr. M. P. No. 1683 of 2021)
(Cr. M. P. No. 1774 of 2021)
(Cr. M. P. No. 1831 of 2021)
Mr. R. P. Gupta, Advocate
(Cr. Revision No. 59 of 2022)
For the State : Mr. Manoj Kumar, GA-III
(Cr. Revision No. 414 of 2021)
(Cr. M. P. No. 1774 of 2021)
(Cr. M. P. No. 1778 of 2021)
Mrs. Vandana Bharti, A. P. P.
( Cr. Revision No. 699 of 2021)
(Cr. Revision No. 567 of 2021)
(Cr. M. P. No. 2033 of 2021)
Mr. Vishwanath Roy, Spl. P. P.
(Cr. Revision No. 431 of 2022)
Mr. Shailendra Kr. Tiwari, Spl. P. P.
( Cr. Revision No. 427 of 2021)
Mrs. Nehala Sharmin, A. P. P.
(Cr. Revision No. 429 of 2021)
(Cr. Revision No. 579 of 2021)
(Cr. Revision No. 589 of 2021)
Mr. P. D. Agarwal, Spl. P. P.
( Cr. Revision No. 576 of 2021)
(Cr. M. P. No. 1683 of 2021)
( Cr. M. P. No. 1831 of 2021)
Mrs. Priya Shrestha, Spl. P. P.
( Cr. M. P. No. 2003 of 2021)
Mr. Santosh Kumar Shukla, A.P. P.
(Cr. Revision No. 59 of 2022)
For the Informant : Mr. Devesh Ajmani, Advocate (In All Cases)
....
JUDGMENT
C. A. V. on 12.07.2023 Pronounced on 21/08/2023 The above these Criminal Revision Applications and Cr. M. Ps. i.e. Cr. Rev. No. 699 of 2021 and Cr. M.P. No. 2003 of 2021 and Cr. Rev. No. 414 of 2021 and Cr. M.P. No. 1778 of 5 2021 and Cr. M.P. No. 2033 of 2021 and Cr. Revision No. 59 of 2022 and Cr. Revision No. 567 of 2021 and Cr. M.P. No. 1683 of 2021 and Cr. M.P. No. 1774 of 2021 and Cr. M.P. No. 1831 of 2021 are arising out of the same FIR and common order dated 08.07.2021 and as such, all the cases are being heard together and being disposed of together by this common order/judgment.
2. All these above Criminal Revisions and the above Cr.M.Ps. have been filed on behalf of the petitioners as named above by challenging the order dated 08.07.2021 passed by Sri Subhash, learned Sessions Judge-V-cum-Special Judge (POCSO), Jamshedpur in connection with Mango P. S. Case No. 13 of 2018 corresponding to G. R. No. 174 of 2018 [Special Case No. 174 of 2018] whereby the learned Court below has allowed the petition under Section 319 of the Cr. P. C. filed on behalf of the informant for adding the petitioners as accused and further summoned the petitioners to face trial.
3. In Cr. Rev. No. 699 of 2021 and Cr. M.P. No. 2003 of 2021:-
Mr. A. K. Kashyap, learned Senior Counsel for the petitioner has submitted that the impugned order passed by the learned Court below is illegal and arbitrary and as such, the same is not sustainable in the eye of law. It is submitted that without going through the provisions of relevant law, the impugned order has been passed against the petitioner by issuing summon under Section 319 of the Cr. P. C. It is submitted that FIR was lodged on 18.01.2018 for the offence taking place 2-3 years ago and even the petitioner is not named in the FIR and only three persons namely Shiv Kumar Mahato, Indrapal Saini and Shrikant, have been named in the FIR.
It is submitted that the petitioner has filed supplementary affidavit and has enclosed the order sheet dated 14.12.2021 by 6 which it reveals that final report has been submitted in favour of the petitioners and the other petitioners by the C.I.D. and however, the Court below has issued summon. It is submitted that merely on the basis of statement of the victim girl examined as P.W.-3 and P.W.1 namely Nanak Chand Seth, summon has been issued under Section 319 of the Cr. P. C., which is completely illegal. It is further submitted that trial of the petitioner could not have been separated and the petitioner ought to have tried together with the other petitioners as named in the FIR in view of Section 319 (1) of the Cr. P. C. However, the learned Court below has committed grave illegality by separating the trial of 22 accused persons including this petitioners by passing a composite order in violation of Provisions of Section 319 of the Cr. P.C. It is submitted that on mere presumption and assumption of the Court that there will be delay in appearance and attendance of the accused persons, trial has been separated and as such, serious illegality is committed by the learned Court below.
It is further submitted that after submission of the charge sheet on 06.05.2018 as the accused persons as named in the FIR, the CID took up the investigation in August, 2018 and even during pendency of C.I.D. investigation, the Court has issued summon, which is against the Provision of Law. It is submitted that quality of evidence is not sufficient to invoke the provisions of Section 319 of the Cr. P. C. against the petitioner and in absence of cross- examination of the victim girl, it cannot be concluded that the petitioner can be convicted by the evidence of P.W.-3, the victim girl. It is submitted that P.W.-1, Nanakchand Seth, P.W.-2, Anita Ganotra and P.W.-4, Mamtha Seth, wife of Nanak Seth and P.W.-5 namely Dukhni Bhagat have merely stated that they have learnt the occurrence from P.W.-3, i.e. the victim girl and there is no eye witness of the occurrence and hence merely on the basis of 7 statement of P.W.-3, the victim girl, no summon can be issued under Section 319 of the Cr. P. C. against the petitioner. It is submitted that except P.W.-3, victim girl, there is no eye witness to the occurrence.
4. It is submitted that even the victim girl has not named these petitioners during her statement recorded under Section 164 of the Cr. P. C. on 19.01.2018 after institution of the FIR on 18.01.2018. It is further submitted that even the victim girl has not named the petitioner before the Mahila Samittee or before the District Police for committing rape upon her. It is further submitted that no T. I. Parade has been conducted and it is peculiar as to how the victim girl has taken the name of so many persons including these petitioner after gap of two years for committing rape upon her.
It is further submitted that age of the victim girl has not been proved by the prosecution. It is submitted that neither the certificate of date of birth issued by the Municipality or Matriculation certificate or Panchayat or School Leaving Certificate or any relevant document have been produced to show the age of the victim girl as below 19 years. It is submitted that the Doctor has assessed the age of the victim girl as 19 years. It is submitted that in view of the judgment rendered in the case of Michael Machado and Another reported in 2000 (3) SCC 262, no separate trial could have been registered against the petitioner.
In support of his contention, learned Senior Counsel for the petitioner has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Meenu Prakash Bhantu Versus State of Uttar Pradesh and Another reported in 2023 (5) SCC 386 and in the case of Sukhpal Singh Khaira Versus State of Punjab reported in (2023) 1 SCC 289.
It is submitted that power under Section 319 of the Cr.P.C.
8should be exercised sparingly and rarely by the trial court but not in view of the emotion of victim girl. It is submitted that in view of above, the impugned order may be set aside and the Cr. Revision No. 699 of 2021 and Cr. M. P. No. 2003 of 2021 may be allowed.
5. In Cr. Rev. No. 414 of 2021 and Cr. M.P. No. 1778 of 2021:-
Mr. Indrajit Sinha, learned counsel for the petitioners, after adopting the submission advanced by Mr. A. K. Kashyap, learned Senior Counsel, has further submitted that the impugned order passed by the learned Court below is illegal and arbitrary and as such, the same is not sustainable in the eye of law. It is submitted that the petitioners are innocent and have committed no offence. It is submitted that the victim girl has not given any date, month and time and place of occurrence during her evidence for the occurrence against the petitioners taking place. It is submitted that separate FIR should have been lodged against the petitioners, but the petitioners cannot be put on trial for action not committed by them and which is not the spirit of the FIR.
6. It is submitted that the persons named in the FIR may have been committed certain offences, but so far as these petitioners are concerned, there are merely alleged to have established physical relationship with the victim girl by way of prostitution and prostitution work is given colour of rape and as such, the impugned order passed by the learned Court below is not sustainable in the eye of law. It is submitted that no charges can be framed under provisions of Sections 212, 213, 215 and 219 of Cr.P.C. in view of the vague allegation made by P.W.-3, the victim girl, in her statement made at para-31 and 44 of her evidence. It is difficult to say as to which distinct offence was committed by the petitioners and at which place and at which particular time and in which year 9 and mere simple statement of committing rape by the petitioner on the victim girl would not amount to an offence of rape. It is submitted that in view of Sections 218, 220 and 221 of the Cr. P. C. rejoinder of trial in the same transaction cannot be possible in this case.
7. Leaned counsel for the petitioners has placed reliance upon the case of R. Dinesh Kumar @ Deena Versus State represented by Inspector of Police and Ors. reported in 2015 (7) SCC 497 and in the case of Jogendra Yadav and Ors. Versus State of Bihar and Another reported in 2015 (9) SCC 244.
It is submitted that in view of the above, this Cr. Revision No. 414 of 2021 and Cr. M. P. No. 1778 of 2021 may be allowed and the impugned order passed by the learned Court below may be set aside.
8. In Cr. M.P. No. 2033 of 2021:-
Mr. Jitendra Shankar Singh, learned counsel for the petitioner, after adopting the submission advanced by Mr. A. K. Kashyap, learned Senior Advocate and Mr. Indrajit Sinha, Advocate, has further submitted that the impugned order passed by the learned Court below is illegal and arbitrary and as such, the same is not sustainable in the eye of law. It is submitted that the petitioner is innocent and has committed no offence. It is submitted that even the charge sheet has been submitted against three accused persons as named in the FIR on 06.05.2018 and even the charges were framed against the said accused persons and thereafter, the CID had taken over the investigation on 06.08.2018 and had submitted final report in favour of the petitioner on 14.12.2021 and in which, the learned Court below has issued notice upon the informant. However, in the midst of the proceeding, the learned Court below has committed grave illegality by issuing summon 10 against the petitioner under Section 319 of the Cr. P. C. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment rendered in the case of Sartaj Singh Versus the State of Haryana and Another reported in 2021 (5) SCC
337.
It is submitted that even the supplementary record bearing supplementary case no. Spl. Case No. 179/17 is shown pending before the same Court where the original record was pending before the learned Court below. However, the Court has issued summon against the petitioner and hence, grave illegality has been committed by the learned Court below while passing the impugned order and as such, the impugned order passed by the learned Court below may be set aside and this Cr. M. P. No. 2033 of 2021 may be allowed.
Learned counsel for the petitioner has also relied upon the order dated 29.03.2023 passed by the Co-ordinate Bench of this Court in Criminal Revision No. 371 of 2007 and has submitted that once the case is pending for investigation, then the petitioner will not come in domain of accused persons.
9. In Cr. Revision No. 59 of 2022:-
Mr. R. P. Gupta, learned counsel for the petitioner after adopting the submission of Mr. A. K. Kashyap, learned Senior Counsel, Mr. Indrajit Sinha, learned counsel and Mr. Jitendra S. Singh, learned counsel, has further submitted that petitioner is not named in the FIR and the police has not submitted charge sheet against him and no charges were framed against him. It is submitted that the informant of this case had collected the information from one Nanak Chand Seth i.e. P.W.-1, five months ago. However, the said Nanak Chand Seth, i.e. P.W.-1 had not informed the police about the said matter. It is submitted that P.W.-11
3, i.e. the victim girl has named this petitioner in para-12 of her evidence and has submitted that she learnt the name of this petitioner -Gurpreet Singh when the CID people took her to his house. It is submitted that P.W.-3, the victim girl has further submitted that her uncle i.e. Nanak Chand Seth has taken her with several persons of the locality, who were threatening of dire consequences, but even then Nanak Chand Seth had not instituted any FIR. It is submitted that the petitioner has been falsely named by the victim girl with the other persons. It is submitted that in Para-44, she claimed to identify all the persons by face, is completely wrong. Therefore, it is evident that all the story has been concocted at the instance of the said P.W.-1, Nanak Chand Seth. It is submitted that from the evidence of P.W.-1, Nanak Chand Seth, it is evident that he was aware about the occurrence for the first time on 02.07.2017. However, he failed to lodge the F.I.R. or failed to inform the local police.
10. It is further submitted by the learned counsel for the petitioner that the name of the petitioner has transpired at para-16 of the evidence of P.W.-1, Nanak Chand Seth and so far as general and omnibus allegation for committing rape upon the victim girl. It is further submitted that P.W.-4, Mamta Seth, who has stated in para- 10 and 23 of her evidence that she learnt from the victim girl that this petitioner along with other persons have been named by the victim girl, had committed rape upon her and the victim girl was taken to the house of the petitioner. It is submitted that P.W.-4, Mamta Seth has stated at para-10 that the victim girl was taken to the house of the petitioner by the accused persons namely Indrapal Saini, Shiv Kumar Mahato, Laddan Khan, Srikant and Tanushree. It is submitted that P.W.-4, Mamta Seth has further named this petitioner in para-69 of her evidence by stating that during investigation made by the C. I. D., the victim girl was taken to the 12 house of this petitioner and other persons by C.I.D. Thus, it is evident that the petitioner has been merely named on suspicion by the victim girl after delay of around two year while she was alleged to be taken to the house of this petitioner. Learned counsel for the petitioner has further submitted that he is in agreement with the argument advanced by Mr. A. K. Kashyap, leanred Senior Counsel, Mr. Indrajit Sinha, learned counsel and Mr. Jitendra S. Singh, learned counsel and has submitted that neither the date nor time nor year nor any month has been mentioned by the victim girl for committing offence upon her by this petitioner and thus, the impugned order may be set aside and this Criminal Revision may be allowed.
11. In Cr. Revision No. 567 of 2021:-
Mr. Arvind Kumar Choudhary, learned counsel for the petitioner, after adopting the argument advanced by Mr. A. K. Kashyap, learned Senior Counsel, Mr. Indrajit Sinha, learned counsel and Mr. Jitendra S. Singh, learned counsel, has further submitted that the victim girl has falsely named the petitioner- Abhishek Mishra in para-11 and 44 of her evidence. It is submitted that the petitioner is neither named in the F.I.R. nor the police has submitted charge sheet against him. However, the victim girl has named the petitioner and other persons, who were summoned by the learned Court below, for committing rape upon her and no specific date, time and place have been mentioned, so far as this petitioner is concerned. It is submitted that neither any place nor time nor date nor year has been disclosed by the victim girl and on which date the petitioner has committed rape upon her. It is submitted that mere general and omnibus allegation for committing rape upon the victim girl is alleged in the evidence of P.W.-3, the victim girl.13
12. It is submitted that P.W.-3, the victim girl has herself admitted in para-62 of her evidence that she is not aware as to what has been written in the FIR by her mother and she had further not disclosed the name of this petitioner recorded in her statement under Section 164 of the Cr. P. C., rather she has named only three persons before the learned Judicial Magistrate. It is further submitted that P.W.-3, the victim girl, has submitted during her evidence at para-73 and 75 that she is not aware about her statement given before the Judicial Magistrate. However, he could not tell the name of accused-Srikant Mahto while her statement was being recorded by the Magistrate and hence the evidence of P.W.-3 is not reliable. It is submitted that as per the provision of Sections 212 and 213 of the Cr. P. C., form of charges contain ingredients of the possible place, time present and particular place and as such, no charges can be framed against the petitioner on vague and wild allegation without any specific date, time, year and place of committing offence by the petitioner. It is submitted that the informant ought to have lodged separate F.I.R. against the petitioner, if she was aware of the name of the petitioner, but she failed to do so. It is submitted that the victim girl has not named the petitioner for taking her to any particular place for committing rape upon her. Thus, the evidence of P.W.-3, the victim girl is also not reliable and no summon can be issued against this petitioner and hence, this Criminal Revision may be allowed and the impugned order may be set aside.
13. In Cr. M.P. No. 1683 of 2021 and Cr. M.P. No. 1774 of 2021 and Cr. M.P. No. 1831 of 2021:-
Mr. Amit Kumar Das, learned counsel for the petitioners has submitted that the petitioners are neither named in the FIR nor charge sheet has been submitted against them nor the victim girl 14 has taken the name of these petitioners namely Md. Mushabir Alam and Manoj Sahay and Amit Kumar Singh. It is submitted that these petitioners namely Md. Mushabir Alam @ Shahid is named in para-11 of the evidence by P.W.- Mamta Seth, who has stated that she was taken to his house whereas the petitioner -Manoj Sahay is named in para-14 by the victim girl and the victim girl has stated that she was taken to the house of Manoj Sahay by Indrapal Saini. It is submitted that the petitioner - Amit Kumar Singh is named in para-20 of her evidence by the victim girl for committing rape upon her. However, the victim girl has failed to disclose on which place, date, area and month, the petitioner namely Md. Mushabir Alam @ Shahid, Manoj Sahay and Amit Kumar Singh have committed rape upon her. It is submitted that the victim girl has again named all these three persons in para-44 of her evidence. It is submitted that except making bald allegation against these petitioners, there is no concreate evidence to implicate them in the present case.
14. It is submitted that even the informant has filed counter affidavit in this case and Para-377 of the diary has been enclosed in page-160 of the counter affidavit filed on behalf of the petitioner and in which it has come on record that CDR and location of mobile phone of the victim girl and other persons granted by the learned Court below has not been found by the CID during investigation or even by the local police. It is submitted that even the mobile location of the victim girl has not been found, which is mentioned at page-162 of this Criminal Revision Application, which is part of the case diary. It is further submitted that they have filed supplementary affidavit and has enclosed the final report submitted in favour of these petitioners as Annexure-3. It is submitted that Section 319 of the Cr. P. C. speaks "of an offence"
and before issuance of summon against Section 319 of the Cr. P.C., 15 the learned Court below ought to have ensured the compliance of provisions of Section 319 (1) and (2) of the Cr. P. C. It is submitted that even one Manager of Motel Highway has not identified these petitioners namely Md. Mushabir Alam and Manoj Sahay and Amit Kumar Singh and he has not identified even the victim girl, when she was shown on production. It is submitted that in view of the law laid down in the case of Michael Machado and Another Versus Central Bureau of Investigation and Another reported in 2000 (3) SCC 262, no prosecution can be launched against the petitioners by summoning under Section 319 of the Cr. P. C.
15. Learned counsel for the petitioners has also submitted that he is in agreement with the argument advanced by Mr. A. K. Kashyap, learned Senior Counsel, Mr. Indrajit Sinha, learned counsel and Mr. Jitendra S. Singh, learned counsel and all other counsels. It is further submitted that even in view of the statement of the victim girl against these petitioners, no charges can be framed in light of Section 212 and 213 of the Cr. P. C. and as such power under Section 319 of the Cr. P. C. could not be exercised by the learned Court below and hence the impugned order passed by the learned Court below is illegal and may be set aside and Cr. M. P. No. 1683 of 2021 and Cr. M.P. No. 1774 of 2021 and Cr. M.P. No. 1831 of 2021 may be allowed.
16. In Cr. Revision No. 576 of 2021 and Cr. Revision No. 579 of 2021:-
At the outset, Mr. Haider Ali, learned counsel for the petitioners has submitted that he is adopting the arguments advanced by Mr. A. K. Kashyap, learned Senior Counsel, Mr. Indrajit Sinha, learned counsel and Mr. Jitendra S. Singh, learned counsel.
It is submitted that the petitioners namely Md. Kareem @ Kareem Cable and Tashbib Ahmed have been named in para-11 of 16 her evidence by the P.W.-3 i.e. the victim girl. It is submitted that no specific allegation has been levelled against these petitioner as to the date, year, time and place where the rape was committed by these petitioners. It is submitted that petitioner Md. Kareem @ Kareem Cable has been named in para-44 of the evidence of P.W.- 3 by making general and vague allegation against several persons including these petitioners. It is submitted that in absence of any place, time, date and year, no charges can be framed against these petitioners namely Md. Kareem @ Kareem Cable and Tashbib Ahmed and as such, the impugned order passed by the learned Court below is illegal and may be set aside and Cr. Revision No. 576 of 2021 and Cr. Revision No. 579 of 2021 may be allowed.
17. In Cr. Revision No. 589 of 2021:-
At the outset, Mr. Jitendra Nath Upadhyay, learned counsel for the petitioner has submitted that he is adopting the arguments advanced by Mr. A. K. Kashyap, learned Senior Counsel, Mr. Indrajit Sinha, learned counsel and Mr. Jitendra S. Singh, learned counsel and Mr. R. P. Gupta, learned counsel. It is submitted that the petitioner-Rajesh Kumar Singh has been named by P.W.-3, the victim girl during her evidence in para-11 and para- 44 for the first time before the learned Court below. However, no specific place, date, time and year has been mentioned by the victim girl for committing rape by the petitioner upon her. It is submitted that in view of the above, no charges can be framed against him and summon should not have been issued against him under section 319, Cr.P.C. and as such, the impugned order passed by the learned Court below is illegal and may be set aside and this Criminal Revision Application may be allowed.
18. In Cr. Revision No. 429 of 2021:-
At the outset, Mr. Navin Kumar, learned counsel for the petitioner has submitted that he is adopting the arguments 17 advanced by Mr. A. K. Kashyap, learned Senior Counsel, Mr. Indrajit Sinha, learned counsel and Mr. Jitendra S. Singh, learned counsel and Mr. R. P. Gupta, learned counsel.
19. It is submitted that the petitioner is innocent and has committed no offence. It is submitted that the petitioner is Dy. S. P. and has not participated in any offence. It is further submitted that the petitioner -Ajay Kerketta is neither named in the FIR nor charge sheet has been submitted against him and the victim girl has not named this petitioner during her statement recorded under Section 164 of the Cr. P. C. before the learned Judicial Magistrate.
It is submitted that the petitioner was working as Dy. S. P. at the relevant point of time and is not concerned with the victim girl or with this case. It is submitted that victim girl i.e. P.W.-3 has named this petitioner in para-15, 33 and 35 during her evidence. It is submitted that P.W.-3, the victim girl has falsely stated in her evidence at para-15 that the petitioner has committed rape upon her in a room at M.G.M. police station at the time of 'Demonetisation of Money' and which took place in the year 2016-17. It is further submitted that the victim girl has falsely stated in para-33 and para-35 in her evidence that Officer In-charge of M.G.M. police station was calling the petitioner as 'Sir' and as the petitioner was not present at the said police station and his complicity has even neither been found by the police and also nor by the CID. It is submitted that the victim girl has not disclosed as to how, she learnt about the name of this petitioner-Ajay Kerketta, who was working as Dy.S.P. at the relevant point of time.
20. It is submitted that no charges can be framed on the basis of bald and baseless allegation and no specific date, time and year has been mentioned by the victim girl against the petitioner for committing rape upon her and for giving her any threatening. It is submitted that CID has submitted final report in favour of the 18 petitioner-Ajay Kerketta on 14.12.2021 and the learned Court below has issued notice upon the informant i.e. mother of the victim girl on 14.12.2021. However, the mother of the victim girl has not appeared before the trial Court below till date.
21. It is further submitted that CID started investigation in this case pursuant to the order dated 10.02.2021 passed in W.P. (Cr.) No. 74 of 2018, which has been enclosed as Annexure-2 of this Criminal Revision Application No. 429 of 2021. It is submitted that the said W.P. (Cr.) No. 74 of 2018 was heard along with W.P. (Cr.) No. 286 of 2018, which was filed by the another petitioner of Criminal Revision No. 414 of 2021 before this Court. Learned counsel for the petitioner has pointed out that on 10.02.2021, Additional Director General (CID), Jharkhand had appeared before the Co-ordinate Bench of this Court by way of Video Conferencing and has assured that CID will conclude the investigation at the earliest and Additional Director General (CID), Jharkhand had assured the Co-ordinate Bench of this Court to inform regarding the investigation and has submitted that he is monitoring the investigation personally and has issued several directions, which are being followed by the Investigating Officer (s).
22. It is further submitted that vide order dated 06.08.2019 passed in W. P. (Cr.) No. 286 of 2018, it was also informed before the Co-ordinate Bench of this Court that considering the seriousness and gravity of the allegation, further investigation of the case was handed over to the CID by the State Government, but till date CID had not submitted charge sheet and the Co-ordinate Bench of this Court had directed the State to file supplementary counter affidavit on or before 17.09.2019 and therefore, the investigation of this case was carried out by the CID under the direction of the High Court. It is submitted that CID has submitted final report in favour of the petitioner and has exonerated the 19 petitioner from all the charges levelled against him by the victim girl. It is submitted that no charges can be framed against the petitioner in light of the provisions of Sections 211, 212 and 213 of the Cr. P. C. and as such, the impugned order passed by the learned Court below is illegal and may be set aside and this Criminal Revision Application may be allowed.
23. In Cr. Revision No. 427 of 2021 and Cr. Revision No. 431 of 2021:-
At the outset, Mr. Parambir Singh Bajaj, learned counsel for the petitioners has submitted that he is adopting the arguments advanced by Mr. A. K. Kashyap, learned Senior Counsel, Mr. Indrajit Sinha, learned counsel and Mr. Jitendra S. Singh, learned counsel and Mr. R. P. Gupta, learned counsel.
It is further submitted so far as the petitioner-Dinesh Agarwal is concerned that P.W.-3, the victim girl has named this petitioner in para-19 of her evidence for committing rape upon her. It is submitted that except making bald allegation against this petitioner, there is no concrete evidence to implicate him in the present case.
It is further submitted that the petitioner - Munna Dobi @ Sonu Kumar Rajak in Cr. Revision No. 431 of 2021 has been named in para-11 of her evidence by the victim girl.
24. It is submitted that neither the date, time, month and year have been mentioned by the victim girl against the petitioners for committing rape upon her. It is submitted that the victim girl again named both these petitioners namely Dinesh Agarwal and Munna Dobi @ Sonu Kumar Rajak. It is further submitted that so far as the petitioner -Dinesh Agarwal is concerned, the P.W.-3, the victim girl has named him in para-19 of her evidence for committing rape upon and only bald allegation has been made in illegal manner, whereas the petitioner - Munna Dobi @ Sonu Kumar Rajak has been named in 20 para-11 of her evidence by the victim girl. It is submitted that neither the date, time, month, year have been mentioned by the victim girl against the petitioner for committing rape upon her. It is submitted that the victim girl again named both these petitioners namely Dinesh Agarwal and Munna Dobi @ Sonu Kumar Rajak in para-44 of her evidence by making general and vague allegation for committing rape upon her.
25. It is submitted that before activating the provisions of Section 319 of the Cr. P. C., compliance of Sections 212 and 213 of the Cr. P. C. is mandatory and in absence of any specific date, time, month and year, the provisions of Section 319 of the Cr. P.C. could not have been activated due to non-compliance of Sections 212 and 213 of the Cr. P. C. In support of his contention, learned counsel for the petitioner has relied upon the judgment rendered in the case of Brijendra Singh & Ors Versus State Of Rajasthan reported in 2017 (7) SCC 706 and in the case of Hardeep Singh vs State Of Punjab & Ors reported in 2014 (3) SCC 92.
It is further submitted that it is well settled from the case of Hardeep Singh vs State Of Punjab & Ors reported in 2014 (3) SCC 92 that no criminal proceeding can be initiated before framing of charges. It is submitted that it is evident from para- 4.3, 4.4 of the impugned order passed by the learned Court below on 08.07.2021 that neither any date nor place nor year have been mentioned by the victim girl and she has not stated about specific place and date for committing rape upon her by the accused persons during her evidence and hence, the Court has committed illegality by misinterpreting her evidence. So far as the finding of stronger evidence is concerned, which is more than prima facie against this petitioner, is not correct and as a matter of fact, there is no such, stronger evidence or even the prima facie case against 21 these petitioners. It is submitted that exercise of revisional jurisdiction of the High Court is very limited in nature though the High Court can cure the illegality committed by the learned Court below. It is submitted that learned Court below has proceeded mechanically against the petitioner and other persons by issuing summons against them under Section 319 of the Cr. P. C., which is in complete in violation of the guidelines as decided in the case of Hardeep Singh vs State Of Punjab & Ors reported in 2014 (3) SCC
92. Learned counsel for the petitioner has placed reliance upon the case of Labhuji Amratji Thakor and Ors. Versus The State of Gujarat and Another reported in 2019 (12) SCC 644.
26. It is submitted that separating the trial from the trial of three accused persons is also illegal and in violation of the Section 319 of the Cr. P. C. and as such, the impugned order passed by the learned Court below is illegal and may be set aside and this Criminal Revision Application may be allowed.
[State Argument]:-
27. On the other hand, Mr. Manoj Kumar, learned GA-
III has submitted that though the CID has submitted final report in favour of the petitioners, but he is assisting this Court on the point of legality and propriety of the impugned order dated 08.07.201 passed by the learned Court below. It is further submitted that in all the above cases mentioned above so far as the petitioners are concerned, the impugned order passed by the learned Court below is fit and proper and no interference is required from this Court. It is submitted that though the FIR was lodged only against three persons namely Shiv Kumar Mahato, Indrapal Saini and Shrikant and charge sheet has been submitted only against three persons, however, the victim girl, during her evidence, while examined as P.W.-3, has named all these above petitioners for committing rape upon her. It is submitted that the victim girl was not only subjected 22 to rape, but also her video of physical relationship was prepared by some of the accused persons and she was compelled to enter into sexual relationship in view of video prepared by the three prime accused persons.
It is submitted that there is provisions under Section 319 (1) of the Cr. P. C. for issuing summon against any persons, whose name has come during trial in course of evidence of the prosecution witness. It is submitted that P.W.-3, the victim girl has named all these petitioners and which is corroborated also from the evidence of the P.W.-1, Nanak Chand Seth, P.W.-2, Anita Ganotra and P.W.-4, Mamta Seth, wife of Nanak Seth and P.W.-5, Dukhni Bhagat. It is submitted that the learned Court below has also observed that the victim girl is the sole eye witness and has rightly discussed her evidence in para-3.3, 3.4, 3.5, 4.4 and 4.5 in its impugned order dated 08.07.2021. Learned counsel for the State has submitted that in view of the direct evidence found against above these petitioners, the learned Court below has committed no illegality.
28. Learned GA-III has placed reliance upon the judgment rendered in the case of Sukhpal Singh Khaira Versus State of Punjab reported in 2023 (1) SCC 289.
It is submitted that in view of the above, all the above cases i.e. Criminal Revisions and Cr. M.Ps. Petitions are devoid of merit and all the above cases may be dismissed.
29. Cr. Revision No. 699 of 2021 and Cr. Revision No. 567 of 2021 and Cr. M. P. No. 2033 of 2021:-
Mrs. Vandana Bharti, learned A. P. P. has also submitted that the impugned order dated 08.07.2021 suffers from no illegality and the learned Court below has rightly issued summon against all these petitioners of Cr. Revision No. 699 of 2021 and Cr. Revision No. 567 of 2021 and Cr. M. P. No. 2033 of 2021. Learned A. P. P. has also 23 adopted the argument advanced by Mr. Manoj Kumar, learned GA-III and has submitted that Cr. Revision No. 699 of 2021 and Cr. Revision No. 567 of 2021 and Cr. M. P. No. 2033 of 2021 may be dismissed.
30. Cr. Revision No. 429 of 2021 and Cr. Revision No. 579 of 2021 and Cr. Revision No. 589 of 2021:-
Ms. Nehala Sharmin, learned Spl. P. P. has also submitted that the impugned order dated 08.07.2021 suffers from no illegality and the learned Court below has rightly issued summon against all these petitioners of Cr. Revision No. 429 of 2021 and Cr. Revision No. 579 of 2021 and Cr. Revision No. 589 of 2021. Learned A. P. P. has adopted the argument advanced by Mr. Manoj Kumar, learned GA-III and has submitted that Cr. Revision No. 429 of 2021 and Cr. Revision No. 579 of 2021 and Cr. Revision No. 589 of 2021 may be dismissed.
Argument advanced by the Informant:-
31. Mr. Devesh Ajmani, learned counsel for the informant has submitted that all these above Criminal Revisions and Cr.M.Ps. Petitions are devoid of merit. It is submitted that this is a rare of rarest cases in which the learned Court below has issued summons against the petitioners. It is submitted that as a matter of fact, the informant-Dukhni Bhagat has filed written application before the Shikayat Koshang (i.e. Grievance Cell) in the office of Senior Superintendent of Police, Jamshedpur on 25.11.2017 itself by taking the names of against three persons namely Shiv Kumar Mahato, Indrapal Saini and Shrikant and all others and several other persons, who have filed Criminal Revisions and Cr. M. Ps. Petitions for committing rape upon her and it has also stated and alleged in that application that the daughter of the informant was administered drugs by injection and she was sent to prostitution and thereafter rape was committed by the accused persons and others and who have 24 challenged the impugned order. It is submitted that it is a matter of surprise that Senior Superintendent of Police has directed the subordinate concerned police station to lodge the FIR and thereafter two months, ultimately FIR was lodged on 18.01.2018, but only against three persons and investigation remained pending in the garb of investigation for saving prime persons including the police officials and these petitioners, who were named by the informant i.e. the mother of the victim girl for committing rape upon her daughter.
32. It is submitted that even after lodging of the FIR, the statement of the victim girl was recorded under Section 161 of the Cr. P. C. by the police on 18.01.2018 itself, which is mentioned at para- 10 of the case diary and the victim girl has named several persons namely Shiv Kumar Mahto @ Shiv Kumar, Indra Kumar Saini @ Liku Uncle, Md. Aziz, Ruhul Aman Ahmad, Ruhul Aqueel Ahmad @ Munnain, Guddu Gupta, Shambhu Trivedi, Imdad Ansari, Dinesh Agarwal, Ajay Kerketta, Abhishek Mishra, Karem Cable Wala, Tashmish Ahmed, Rajesh Kumar Singh, Shahid, Manoj Sahay, Amit Kumar Singh, Gurpreet Singh and Munna Dhobi and several other persons namely Tanushrehree, Upendra Singh, Sonu Nair and Maksud She has also stated that on the one hand that Tanushree had administered her injection and then one boy had committed rape upon her. She has also stated that Saini and Shiv Kumar took her to Motel Highway, where 4-5 persons used to commit rape upon her and the said lady administered injection upon her. She has also stated that Indrapal Saini and Shiv Kumar took the victim girl to Hotel Four Line several time, Dimna Resort, house of Rajesh, outside Sahara City respectively and also in the house of one Munnain and where 4- 5 persons were present and she was subjected to rape. Thereafter she was again taken in the house of one person by Indrapal Saini and she was subjected to rape. She has also named one Sonu Nair for committing upon her. She has also stated that 8-9 boys near Dimna 25 Lake committed rape upon her and then she was caught by two police personnels and she was taken to M.G.M. Police Station along with 8-9 boys by Indrapal Saini and where Bada Babu (i.e. Officer In-charge) was alone and she was confined with the boys in the same Hazat and thereafter she was taken to the room of Bada Babu i.e. Officer In-charge and Bada Babu (i.e. Officer In-charge) has committed rape upon her and thereafter one another police personnel, who was being addressed as 'Sir' (i.e. Ajay Kerketta, Dy. S.P.) by Bada Babu (i.e. Officer In-charge) had also committed rape upon her in the police station and she was taken to M.G.M. Police Station several times. She has also stated that she was subjected to rape by Srikant and who used to chase her Uncle and Aunty and Saini was using a car of Munna Khan for this purpose. She has also stated that she was aborted four times in a hospital situated near the MGM Police Station and she claimed to identify the accused person.
The learned counsel for the informant has further submitted that it is not a case where the victim girl has named the accused persons-petitioners after two years, rather it is a case of the informant that even the victim girl has named the several persons during her statement before the police recorded under Section 161 of the Cr.P.C. at para-10 of the case diary, but the police failed to take any action.
33. It is submitted that the victim girl was examined as P.W.-3 has vividly described the names of the petitioners in para- 5, 6, 9, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 26, 27, 29, 30, 31, 32, 33, 35, 38, 43, 44, 45, 46 and 49 of her evidence before the Trial Court and she has also stated in para-42 that one Tanushree used to administer drug by injection upon her prior to the occurrence of rape. It is further submitted that the victim girl has fairly stated during her cross-examination in para-56 that she disclosed the name of three persons namely Shiv Kumar Mahto @ Shiv Kumar, Indra Kumar Saini and Shrikant before the learned Judicial Magistrate because 26 she was threatened by the police officials to send her to jail and the victim girl being a poor tribal and helpless girl, has to abide by the direction of the police officials and the accused persons.
It is submitted that even during investigation, the I.O. has moved before the School where the Victim girl was studying in Class-I and the Principal of said School has informed the police that the date of birth of the victim girl is '29.03.2000', which has been disclosed at para-12 of the counter affidavit and which is also mentioned at para-108 of the case diary. It is submitted that even from the Medical Report of the victim girl, it has clearly come on record that she was habitual to intercourse and thus this is a clear case of the evidence of rape upon the victim girl. It is further submitted that investigation has been completely manipulated by the police as well as by the CID by not naming the other persons including these petitioners and, who have been summoned by the learned Trial Court below. It is further submitted that though the mother of the victim girl has filed a W.P.(Crl.) No. 74 of 2018 for CBI investigation, but during hearing of the said case being W.P.(Crl.) No. 74 of 2018, it was informed by the learned counsel for the State that investigation has been handed over to the CID on 08.08.2018 and the CID started investigation on 26.08.2018. It is further submitted that the victim girl has clearly stated about the place of occurrence where she was subjected to rape and rape was committed upon the victim girl and as such, charges can be framed against the petitioners by the learned Trial Court below. It is submitted that the veracity of statement of the victim girl will be seen and tested at the time of trial and as such, in view of Section 223 of the Cr.P.C., all the persons can be charged and tried together jointly, if the occurrence has taken place in one transaction and hence, separate trial is also not required. It is further submitted that the prosecution cannot institute 22 F.I.Rs. for causing rape upon the 27 victim girl as the victim girl was initially subjected to rape by the aforesaid three accused persons namely Shiv Kumar Mahto @ Shiv Kumar, Indra Kumar Saini and Shrikant and thereafter these petitioners have committed rape upon her and as such, there was no requirement to institute 22 separate F.I.Rs. and for instituting 22 SC/ST Cases against the accused persons, rather it is convenient to try all the accused persons in common trial. It is submitted that there is nothing on record to show that P.W.-1, Nanak Chand Seth is mastermind of the occurrence In support of his contention learned counsel for the informant has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of Manjeet Singh Versus State of Haryana and Ors. reported in 2021 SCC Online SC 632.
It is submitted that in view of the above, the impugned order passed by the learned Court below suffers from no illegality and hence, all the Criminal Revision Applications and all the Cr. M. Ps. are devoid of merit and as such, these all the cases mentioned above may be dismissed.
34. Perused the Lower Court Records, case diary and considered the submission of both the sides.
35. It appears that F.I.R. was lodged on 18.01.2018 by the informant-Dukhni Bhagat against three accused persons namely Shiv Kumar Mahto @ Shiv Kumar, Indra Kumar Saini and Shrikant by submitting written application to the Officer In-charge Mango Police Station for committing rape upon her daughter ( i.e. the Victim-X) and has stated that she has handed over her daughter to one Nanak Chand Seth 5-6 years ago, but she has been raped continuously by the said three accused persons namely Shiv Kumar Mahto @ Shiv Kumar, Indra Kumar Saini and Shrikant and they had prepared video and they had sent her daughter for prostitution in several Hotels outside the house of Nanak Chand Seth and also compelled her 28 daughter to establish physical relationship by way of prostitution with several other persons and they had prepared her several videos of these physical relationship by threatening and also threating by the said video and they had sexually and physically exploited her.
36. It transpires that the police has earlier submitted charge sheet under Sections 376 (2) (i) and 376-(C) (D) of the Indian Penal Code and Section 6 of the POCSO Act against the said three persons.
37. It also transpires that the victim girl was examined under Section 164 of the Cr. P. C. on 19.01.2018, but she has taken the name of only three accused persons namely Shiv Kumar Mahto @ Shiv Kumar, Indrapal Saini and Shrikant.
38. It transpires that that charges against the said persons were framed and the prosecution had examined twelve (12) witnesses.
39. Thereafter vide impugned order dated 08.07.2021, the learned Court below has taken cognizance under Sections 376 (2) (i) and 376-(D) of the Indian Penal Code and Section 6 of the POCSO Act and the issued summon under Section 319 of the Cr. P. C. against all the above petitioners and some other persons and thus the petitioners above have challenged the impugned order.
40. At this stage, it is relevant to mention here that before issuing summon under Section 319 of the Cr. P.C. against all these petitioners named above, one Dukhni Dei i.e. the mother of the victim girl-X, had filed W. P. (Crl.) No. 74 of 2018 for C.B.I. investigation against these petitioners and others because the police was not taking any action against the petitioners and the State Government had filed affidavit before the Co-ordinate Bench of this Court in the said W. P. (Cr.) No. 74 of 2018 and had informed that the investigation was handed over to the CID on 06.08.2018 and the C. I. D. had started investigation in this case from 26.08.2018.
41. It further transpires that after filing of these Criminal Revision before this Court, the Co-ordinate Bench of this Court vide 29 order dated 26.08.2021 had directed that no coercive steps shall be taken against the petitioners in Criminal Revision No. 429 of 2021 and which was extended on 14.09.2021, 8.10.2021, 3011.2021 and 05.12.2021 in other Criminal Revision Applications and Criminal Miscellaneous Petitions and thereafter the case was placed before this Court.
42. It transpires that during pendency of C. I. D. investigation, the learned Court below had issued summons under Section 319 of the Cr. P. C vide order dated 08.07.2021 against all these petitioners though C. I.D. had taken over the investigation on 26.08.2018. There is nothing on record to suggest that any protest was made by the Informant before the learned Court below for handing over the investigation to the C.I.D.
43. Thereafter, the CID has submitted a final report against all these petitioners on 14.12.2021 and has stated that no allegation is proved against these petitioners and the CID has exonerated all the petitioners for the offences under Sections 376 (2) (i) and 376-(D) of the Indian Penal Code and Section 6 of the POCSO Act.
44. It appears that the learned Court below while issuing summons vide order dated 08.07.2021, has relied upon the evidence of P.W.-1 namely Nanak Chand Seth, P.W.-2 namely Anita Ganotra, Sister of P.W.-1, P.W.-3 i.e. the victim girl and P.W.-4 namely Mamta Seth, wife of P.W.-1 and P.W.-5 namely Dukhni Devi i.e. the mother of the victim girl.
45. It further appears that the learned Court has issued summon by relying upon the judgments rendered by the Hon'ble Supreme Court in the case of Sartaj Singh Versus the State of Haryana and Another reported in 2021 (5) SCC 337 and in the case of Dharampal Versus State of Haryana and Others reported in 2014 (3) SCC 306 and in the case of Michael Machado and Another reported in 2000 (3) SCC 262 and in the case of Rajendra Singh Versus State of U. P. 30 and Another reported in AIR 2007 SC 2786 and several other cases. The learned Court below has further observed that in view of the order passed in B. A. No. 7774 of 2020 on 13.01.2021 by the High Court of Jharkhand has directed to conclude the trial within six months and further observed that as six months has been completed on 17.07.2021 and the aforesaid twenty two (22) new persons have been summoned as accused through petition under Section 319 of the Cr. P. C. and there is also possibility that some time will be consumed for securing the attendance of aforesaid newly added twenty (22) accused persons and hence, trial has been separated for the said twenty (22) person, who are the petitioners before this Court and the trial of three accused persons namely Shiv Kumar Mahto @ Shiv Kumar, Indrapal Saini and Shrikant had been separated accordingly from these cases.
46. It transpires that the learned Court below has observed that mainly that the victim girl has named these petitioners in paragraph
-11, 12, 14, 15, 16, 20, 21, 24, 26, 27, 29, 30, 31, 32, 33, 35, 38, 44, 45, 46 and 49 of her evidence and she has named the petitioners namely Shambhu Trivedi, Tassu, Abhishek Mishra, Ajit Mistry, Shahid, Karim Keblewala, Munna Dhobi, Rajesh Kumar, one Langra Masud, Munain, Gurpreet Singh, Manoj Sahay, Ajay Kerketta, Imtiyaj Ansari (i.e. Imdad Ansari), Amit Singh, one Sonu Nair and one Upendra Singh, Guddu Gupta, Dinesh Agarwal and one Imtiyaj Ansari i.e. Imdad Ansari ( O/C of MGM Police Stataion) and whose names have been discussed in preceding paragraphs. It appears that the victim girl has named one lady also as well as 21 accused persons including one Dy. S. P. and one Officer In-charge and other several persons of different localities of Jamshedpur.
47. At this stage it will be relevant to quote Sections 212(1), 213, 214, 215, 219, 220, 221, 222, 223 (a) to (d) and 319 of the Cr.P.C., which read as follows:-
31"Section-212 Cr. P. C.:- Particulars as to time, place and person.--
(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in 108 respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) .........................................................................
Section-213 Cr. P. C.:- When manner of committing offence must be stated.--When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose. Section-214 Cr. P. C.:- Words in charge taken in sense of law under which offence is punishable.--In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.
Section-215 Cr. P. C.:- Effect of errors.-- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
Section-219 Cr. P. C.:- Three offences of same kind within year may be charged together.--(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law:
Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be 32 deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence. Section-220 Cr. P. C.:- Trial for more than one offence.--(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of section 212 or in sub-section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. (3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860).
Section-221 Cr. P. C.:- Where it is doubtful what offence has been committed.--(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such 33 charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. Section-222 Cr. P. C.:- When offence proved included in offence charged.--(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
Section-223 Cr. P. C.:- 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 of the same transaction; (b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (c) persons 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).............................................................................
(f)..............................................................................
(g) .............................................................................
34Section-319 Cr. P. C.:- 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."
48. Learned Sessions Judge-V-cum-Special Judge (POCSO), Jamshedpur has mainly replied upon the evidence of the victim girl examined as P.W.-3 while issuing summon, but the learned Court below has referred the evidence of P.W.-1- Nanak Chand Seth, P.W.- 2, Anita Ganotra, sister of P.W.-1, and P.W.-4, Mamta Seth, wife of P.W.-1 and P.W.-5, Dukhni Devi at the time of passing of the impugned order dated 08.07.2021, hence it will be appropriate to look into to refer the evidence of the witnesses particularly upon which much reliance has been placed upon the learned Court below.
49. It transpires that the victim girl named the co-accused (now convict) namely Shiv Kumar Mahto @ Shiv Kumar and Indrapal Saini for committing rape upon her and for preparing her video after 35 completely undressing her clothes in para- 3, 4, 5, and 6 by putting under fear and coercion and by blackmailing her. It also appears that the victim girl has further named Srikant and one Laddan @ Ruhul Aman Ahmad in the FIR for committing rape upon her and for making her video viral under threat and coercion and also for preparing her video.
However, the learned Court below has separated the trial of three persons namely Shiv Kumar Mahto @ Shiv Kumar and Indrapal Saini and Srikant as discussed earlier.
50. It has been informed that the said three persons have been convicted in Special Case No. 174 of 2018 and as such, for the present, the said evidence is not necessary, but the said convicts are in background for initially molesting and for committing rape upon the victim girl-X upon 3-4 years before lodging the FIR. Therefore the victim girl has named the petitioner- Shambhu Trivedi (Cr. M. P. 1778 of 2021) and the petitioner- Tashbib Ahmed in Cr. Revision No. 579 of 2021 and the petitioner- Abhishek Mishra in Cr. Revision No. 567 of 2021 and the petitioner- Md. Aziz in Cr. Revision No. 699 of 2021 and the petitioner- Md. Mushabir Alam @ Shahid in Cr. M. P. No. 1683 of 2021 and one another Shahid living in Sahara City, Kareem @ Kareem Cablewala in Cr. Revision No. 576 of 2021 and the petitioner- Munna Dhobi @ Sonu Kumar in Cr. Revision No. 431 of 2022 and Thereafter she has named Munnain in Cr. M. P. No. 2003 of 2021 and the petitioner- Gurpreet Singh in Cr. Revision No. 59 of 2022 and the petitioner - Manoj Sahay in Cr. M. P. No. 1774 of 2021 In Para-12 of her evidence she has taken names of the above petitioners for committing rape upon her. Thereafter the victim girl has further named Ajay Kerketta (i.e. Dy. S. P.) in Cr. Revision No. 429 of 2021 and Imtiaz (i.e. Imdad Ansari) in Cr. M. P. No. 2033 of 2021 and in para- 15 of her evidence for committing rape upon in the 36 premises of MGM police station. She has further named one woman Tanushree in para-16, 17, 18 for her evidence. However, it appears that the said Tanushree has challenged the impugned order and the case of the said Tanushree has not been brought before this Court. Thereafter she has also named the petitioner namely Amit Kumar Singh in Cr. M. P. No. 1831 of 2021 in para-20 for committing rape upon her. She has also named Dinesh Agarwal in Cr. Revision No. 427 of 2021. She has also named Sonu Nair and Ajit Mistri for committing rape upon her in para- 21, 26 and 27 of her evidence, though she has also named the other co-accused and one Upendra Singh, who had committed rape in Maintenance Office of Sahara City, Jamshedpur for committing rape upon her.
However, it would also appear that that Tanushree, Sonu Nair and Ajit Mistri and Upendra Singh have not challenged the said order.
It further appears that the victim girl-X has named Guddu Gupta @ Brij Mohan in Cr. Revision No. 414 of 2021 in para- 33 and 44 of the case diary.
51. From the conjoint reading of entire examination in-chef of the 'victim girl-X, it would appear that the victim girl was subjected to rape by the above petitioners and other co-accused persons (not appeared before this Court) and she was also administered injection before such a heinous act by one lady Tanushree.
53. It would appear from the evidence of victim girl that all the petitioners had committed rape upon her and they used to prepare video of such act/offence and it was shown to other people and thereafter all the petitioners are said to have been acquainted with the matter and they had also committed rape upon the victim girl one by one and even her naked photographs were obtained in mobile and she was threatened by the accused persons for making it viral and even she was raped in the Car and even she is said to have been raped 37 several time in MGM police station at Jamshedpur and at Hotel Four Line and Motel Highway Hotel and also in the vacant flat situated behind the maintenance office of Sahara City, Jahsmedpur and even at para- 18, 32 and 43 reveals that she was subjected to gang rape by the various accused persons and even sperm was poured in her mouth by some of the accused persons.
54. From going through the evidence of P.W.-3, the victim girl- X, it would appear that the petitioner namely Laddan @ Ruhul Aman Ahmad was acquainted with the prime accused, Shiv Kumar Mahto @ Shiv Kumar and Indrapal Saini and Srikant. She has described that Laddan @ Ruhul Aman Ahmad has committed rape upon her in the house of her uncle i.e. P.W.-1, Nanak Chand Seth on several occasions and the said other three accused used to commit rape upon her and made her video and despite her weeping, they continued to make her video.
So far as the petitioners namely Shambhu Trivedi, Tashmish Ahmed, Abhishek Mishra, Md. Aziz, Md. Mushabir Alam @ Shahid, Kareem Cablewala, Munna Dhobi, Gurpreet Singh and Manoj Sahay, who are named in para- 11 of her evidence of P.W.-3, the victim girl, it would appear that they had committed rape on the instruction of Indrapal Saini and during her cross-examination, she has stated at para-111 that Laddan @ Ruhul Aman Ahmad lives in Marina City. She has further stated that accused i.e. the petitioner- Gurpreet Singh and Manoj Sahay named in para-12 of her evidence. She has further stated in para-12 of her evidence that she learnt and identified the name of Gurpreet Singh and Manoj Sahay, when the CID people too her to their respective houses and she was taken to the house of Manoj Sahay also by the accused Indrapal Saini. During Para-15, 32 and 33 of her evidence, it further reveals that the petitioner- Ajay Kerketta and Imdad Ansari had committed rape upon her in the premises of MGM police station at time of Note-bandi i.e. 38 Demonetization, which took place in the year 2016-17.
Even during her cross-examination, although she has stated that she has named only three persons in the FIR and also before the learned Judicial Magistrate on the direction of police as the police officials had threatened her to send her to jail, if she named other people i.e. the petitioners.
She has further stated that the co-accused, Srikant used to take information of her Uncle and Aunty and he used to chase them. She has also stated in para-168 of her evidence that she learnt the name of Dimna Lake, Hotel Forlane, Motel Highway because Indrapal Saini used to tell her to come to this place and hence she learnt the respective names. She has further stated in para- 38 and 77 that she became pregnant and she has also stated that her operation was done in their presence in a Hospital after crossing Mango Bridge in para-39 and 40 of her evidence.
55. From perusal of the evidence of P.W.1, Nanak Chand Seth, it would appear that he has supported the FIR and he has also supported the evidence of the victim girl, although, he was examined as P.W.-1, but he has stated that the victim girl was administered injection with the direction that four-five persons would make physical relationship with her during his absence by the accused persons named in the FIR and one woman Tanushree. He further stated that he suspected the occurrence for the first time on 02.07.2017 and after taking the victim girl in confidence, he learnt the entire occurrence from the victim girl and when the matter was informed to the accused-Shiv Kumar, then he along with 100-150 people came at the maintenance office and P.W.-1, Nanak Chand Seth was also called at maintenance office and the matter was pacified by the society of the Sahara City and who advised him to not disclose the matter to anyone and they had threatened them. It appears that P.W.-1 has disclosed the name of the petitioners and 39 other co-accused in para-15, 16, 17, 19, 24, 26, 28, 29, 30, 33, 35, 36 and 37 of his evidence. He has further stated during his examination in-chief at para- 35, 36 and 37 that he has informed the matter by filing an application before the Senior Superintendent of Police, Jamshedpur and then even the Officer In-charge of Mango Police Station namely Arun Mehta. However, he awaited for the certain period, thereafter he enquired the matter from the victim girl.
56. He i.e. P.W.-1, Nanak Chand Seth further stated that though the FIR was lodged on 18.01.2018 at Mango Police Station, but at the time of recording the statement of the victim girl under Section 164 of the Cr. P. C., she was made to understand by the Officer In-charge to take name of only those persons named in the FIR and due to fear of the police, she only named three persons. He further stated that they had started putting pressure by several delegates for not instituting the case and even the accused Indrapal Saini instituted a complaint against him showing non-payment of Rs. 2, 80,000/- and more than 100-150 people raised slogans against him in Sahara City. Thereafter he had reported the matter to Senior Superintendent of Police for his security. Thereafter, the City Superintendent of Police has called him at his residence and P.W.-1 narrated the incident before him, then, the City Superintendent of Police along with Arun Mehta, Officer In-Charge, Mango Police Station has provided private car following him in Sahara City to his house and learnt the occurrence from the victim girl and the victim girl had also shown him three place of occurrence and where she was subjected to rape and she had also shown them MGM Police Station, Motel Highway and Four Line Hotel. He has also stated that the City S. P. has taken care of the case, but he had not instituted any case against the other accused person. He has also stated in para-55, 56 and 57 of his evidence that after institution of the FIR, after some days he was called at the police station and where the victim girl had identified 40 the Dy. S. P., Ajay Kerketta, who was addressed as "Sir" by the Officer In-charge of MGM Police Station and even Dy. S. P. has threatened his wife also. He also stated in para- 59, 60 and 61 of his evidence that one Arvind Singh of Special Branch came to his house and enquired the matter and in the meantime, one Mishra Ji called him that he is coming to his house with Imdad Ansari and Ajay Kerketta and then Dy. S. P. asked him to manage the case. He has also stated in para-71, 72, 73 and 74 of his evidence that he along with the victim, the informant had shown Sakchi Nursing Home to the Media people where the pregnancy of the victim girl was terminated and the victim girl has identified the hospital, doctor and nurse and operation theatre and video recording of the said aspect has also been done by the P.W.-1, even he has further stated that S. P. has shown anger against them for implicating the innocent people and for which, he has also prepared mobile recording in para-82 and 83 of his evidence.
He has also stated that he filed a written application of around 19 pages before Sri Navin Kumar Singh in Police Headquarter and then, they filed W. P. (Criminal) before the High Court of Jharkhand, Ranchi for making investigation by CBI as police was not investigating the case properly. He has further stated in para-87 that he has shown the entire place of occurrence to the CID, when the CID took over the investigation.
57. During cross-examination, he i.e. P.W.-1, Nanak Chand Seth has stated in para- 127 that information regarding occurrence was also taken from him by IG Saket Kumar and DIG, Kuldeep Dwivedi. He has also stated in para- 156 that even the society people were against him for instituting the case. He has also asserted in para-170 that apart from Shiv Kumar Mahto, Indrapal Saini and Srikant, other persons namely Laddan @ Ruhul, Shambhu Trivedi, Sonu Nair, Tassu @ Tashmish Ahmad, Ajij Mistri, Upender Singh, Sahid, 41 Kareem Kevalwala, Munna Dhobi, Rajesh, Amit Singh, Munnain, Dinesh Agarwal, Guddu Gupta, Maksud and Officer In-charge of MGM Police Station and one police officer addressed as 'Sir' by the Officer In-charge of MGM Police Station for committing rape upon the victim girl.
Evidence of P.W.-1, Nanak Chand Seth is approx.-308 paragraphs and as such, the same is not being discussed elaborately and the same is not required for the present as it may cause prejudice to the case of the either side.
He has further stated, during his evidence in para- 297-298 that initially Shiv Kumar Mahato had established physical relationship with the victim girl for 2- 4 months, then the matter started spreading and the Shiv Kumar Mahato was followed by Indrapal Saini.
Thus, from scrutinizing the evidence of P.W.-1, Nanak Chand Seth, it would appear that although he is not the eyewitness of the occurrence, but he appears to the witness of the case circumstances at the police station and society and the evidence of the P.W.-3, the victim girl is also corroborated by the evidence of P.W.-1, Nanak Chand Seth for the purpose of issuing summon under Section 319 of the Cr. P.C. against the petitioner.
58. P.W.-2 is Anita Ganotra, who is sister of P.W.-1, Nanak Chand Seth. She has supported the case of the victim girl and the F.I.R. by stating during her evidence that Shiv Kumar, Srikant, Indrapal Saini had committed rape upon the victim girl and they used to prepare video and threatened the Victim Girl to show her viral video and rape sexual on TV screen. She has also stated that the victim girl had been administered injection by one Tanushree. She has also named the some petitioners Officer In-charge of MGM P.S. ( i.e. Imdad Ahmad and Ajay Kerketta and Shambhu Trivedi, Laddan, Dinesh Agrawal, Guddu Gupta, Abhibhsek Mishra, Amit, 42 Rajesh, Munna Dhobi, Ajij Mishtry, Karim Cablewala, Munnain, Tasssu, Sahid, Manoj Sahay, Gurpreet Singh, Ajay Kerketta and Imdad Ahmad against from Shiv Kumar, Indrapal Saini, Srikant at para-15, 16 of her evidence. She has also informed about the matter to the City Superintendent of Police in para-29, 30, 31, 34 and 54. She has stated in para-31 and 32 that the victim girl has identified places of crime when the City S. P. had shown her while moving in the Car.
59. During her cross-examination, she has taken the name of all the petitioners filed Criminal Revision Application and Criminal Miscellaneous Petitions and one Tanushree and one Upendra Singh and Sonu Nair and two others in para-47 and 51. She has stated at para- 63 to 66 regarding hospital of doctor. She has further stated about the name of accused persons at para- 131 and 133 of her evidence.
Thus, it would appear that she has also supported the evidence of P.W.-3 i.e. the victim girl.
60. P.W.-4 is Mamta Seth, wife of P.W.-1, Nanak Chand Seth and she has supported the evidence of P.W.-3 (i.e. victim girl) and P.W.-1, Nanak Chand Seth and has taken the name of the main accused persons in para-4 of her evidence. Thereafter she has taken the name of the petitioners namely Manoj Sahay, Munnain, Rajesh, Gurpreet Singh, Sonu Nair, Ajij Mistry, Tasmis Ahmed, Imdad Ansari, Ajay Kerketta, Guddu Gupta, Dinesh Agrawal, Shahid and Amit Singh in para- 11 to 20, and 37, 38, 39 and 47 and 49. However, her evidence of Para-53 to 54 relates to Place of Occurrence.
61. It transpires from the impugned order that P.W.-5, Dukhni Bhakat has also taken the name of these petitioners of the Criminal Revisions and Cr. M. Ps. and the learned Court below has also relied upon the evidence of P.W.-5, Dukhni Bhagat while 43 issuing summons against the petitioners.
62. It appears from perusal of the para-256 of the case diary that the accused Shiv Kumar Mahto (now convicted) has used 18 mobile sets and 147 SIMS and for which a direction was given by the I.G. (Human Rights) through Senior Superintendent of Police, Jamshedpur to the I. O. of this case and 42 points were formulated for making investigation i.e. for proper identification of all the petitioners, for videography of the TIP of the doctor in question and for identification of the accused persons and photographs and for verification of Hotel i.e. Motel Highway, Hotel Highway and Dimna Resort and also to enquire about the arrears of Rs. 2,80,000/- claimed by the accused Indrapal Saini against the P.W.-1, Nanak Chand Seth by verifying his bank account. Even the I.G. has directed for Lie Detector and Narco Analysis Test and Brain Mapping Test of the named accused persons in F.I.R. and also verifying the mobile of Tanushree etc., but except Tower location of the mobile numbers, the other directions have not been followed by the I.O. of this case and this shows that the police was not making proper investigation.
63. It further appears from the para-10 of the case diary, which is the statement of the victim girl recorded under Section 161 of the Cr. P. C. by the police that she has supported the allegation as made out in the FIR and during her statement under Section 164 of the Cr. P. C. for committing rape upon her by the four prime accused persons namely Shiv Kumar Mahato, Indrapal Saini and Shrikant and Laddan. Thereafter during her evidence, she has also made allegation against these petitioners i.e. Shahid, Shambhu Trivedi, Abhishek Mishra, Upendra Singh, Ajij Mishra, Laddan, Sonu Nair, the Officer In-charge of MGM P.S., the police Officer which was being addressed 'Sir' by the Officer In-charge and she claimed to have identified all the accused persons for committing rape upon her.
64. Although on the one hand, the victim girl has named so 44 many persons including these petitioners during her statement recorded under Section 161 of the Cr. P. C. by the police and on the other hand, while being examined under Section 164 of the Cr. P. C. on 19.01.2018, she has named only three persons, who are named in the FIR and one Laddan, who is petitioner in Cr. M. P. No. 2003 of 2021 .
65. Learned counsel for the petitioners have mainly asserted that in view of the vague allegations without having specific date, time, month and year of commission of rape upon the victim girl by any particular accused -petitioners and delay in lodging the FIR, no charges can be framed and as such, no conviction can be secured against these petitioners and it will be futile to exercise power under Section 319 of the Cr. P. C. and to hold trial in absence of prime accused persons.
66. The learned Court below has discussed the law in page- 3 to 13 and 15 of its impugned order dated 08.07.2021 as follows:-
"In the recent judgment of Sartaj Singh vs The State Of Haryana on 15 March, 2021 reported in 2021 (5) SCC 337 the Hon'ble Apex Court considered the scope and ambit of section-319 of Cr.P.C. as follows-
"6.1 :-While considering the rival submissions, the law on the scope and ambit of Section 319 CrPC is required to be considered and for that few decisions of this Court are required to be referred to.
6.1.1 In Hardeep Singh (supra), this Court had an occasion to consider in detail the scope and ambit of the powers of the Magistrate under Section 319 CrPC, the object and purpose of Section 319 CrPC etc. It is observed in the said decision that the entire effort is not to allow the real perpetrator of an offence to get away unpunished. It is observed that this is also a part of fair trial and in order to 45 achieve this very end that the legislature thought of incorporating the provisions of Section 319 CrPC. It is further observed that for the empowerment of the courts to ensure that the criminal administration of justice works properly, the law has been appropriately codified and modified by the legislature under the Cr.P.C. indicating as to how the Courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law. It is also observed that it is the duty of the court to find out the real truth and to ensure that the guilty does not go unpunished. In Paragraphs 8 and 9, this Court observed and held as under:
"8:- The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the used does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the Clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out 46 the real truth and to ensure that the guilty does not go unpunished.
9:- The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 CrPC. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject-matter of trial."
6.1.2:- In the said case, the following five questions fell for consideration before this Court.
(i) What is the stage at which power under Section 319 CrPC can be exercised?
(ii) Whether the word "evidence" used in Section 319(1) CrPC could only mean evidence tested by cross-
examination or the court can exercise the power under the 47 said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can exercised only if the court is satisfied that the accused summoned will in all likelihood convicted?
(v) Does the power under Section 319 CrPC extend to persons not named in the FIR named in the FIR but not charged or who have been discharged?"
6.1.3:- While considering the aforesaid questions, this Court in Hardeep Singh (supra) observed and held as under:
12:- Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C. 13:- It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.?
14:- The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us 48 through various provisions of Cr.P.C. and the judgments that have been relied on for the said purpose. The controversy centres around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised.
Xxx xxx xxx 17:- Section 319 Cr. P .C. allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the charge-sheet filed under Section 173 Cr.P.C. or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.
18:- The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot-free by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution.
19:- The court is the sole repository of justice and a duty is cast upon it to uphold the rule of Law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by 49 manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.
xxx xxx xxx 22:-In our opinion, Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial. It is this part which is under reference before this Court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt with by this Court in Dharam Pal (CB) [Dharam Pal v. State of Haryana. (2014) 3 SCC 306:
AIR 2013 SC 3018).
xxx xxx xxx 47:- Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319 of CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 Cr.P.C., committal, etc. which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it 50 is exclusively triable by the Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session.
xxx xxx xxx 53:- It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 CrPC cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal (CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC 306: AIR 2013 SC 3018]. The dispute therein was resolved visualising a situation wherein the court was concerned with procedural delay and was of the opinion that the Sessions Court should not necessarily wait till the stage of Section 319 CrPC is reached to direct a person, not facing trial, to appear and face trial as an accused. We are in full agreement with the interpretation given by the Constitution Bench that Section 193 CrPC confers power of original jurisdiction upon the Sessions Court to add an accused once the case has been committed to it.
54:- In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an 51 accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 CrPC. 55:- Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove. 56:- There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 CrPC i.e. provisions of Sections, 200, 201, 202, etc. Cr.PC applicable in the case of complaint cases. As has been discussed herein, evidence means evidence adduced before the Court. Complaint case is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872 (hereinafter referred to as "the Evidence Act") comes before the court. There does not seem to be any restriction in the provisions of Section 319 CrPC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the 52 trial (sic or) for the purpose of Section 319 CrPC, if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 CPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 CrPC at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses are being recorded.
6.1.4:- While answering Questions (iii), namely, whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial, this Court, in the aforesaid decision has observed and held as under:
58:- To answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers under Section 319 CrPC, the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts and material that come up before 53 the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence. The words as used in Section 319 CrPC indicate that the material has to be "where ... it appears from the evidence" before the court. 59:- Before we answer this issue, let us examine the meaning of the word "evidence" means and includes:
"(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence:
(2) all documents including electronic records produced for the inspection of the court;
such documents are called documentary evidence." xxx xxx xxx 78:- It is, therefore, clear that the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation.
xxx xxx xxx 82:- This pre-trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material along with the charge-sheet has been brought before the court, the same can be inquired into 54 in order to effectively with framing of charges. After the charges are framed, the prosecution is asked to led evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the charge-sheet. In such situation, the court only has the material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges.
83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a Court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word "evidence" as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court. 84:- The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 55 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 85:- In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The "evidence" is thus, limited to the evidence recorded during trial.
6.1.5:- While answering Question (ii) namely, whether the word "evidence" used in Section 319(1) CrPC means as arising in examination-in-chief or also together with cross- examination, in the aforesaid decision, this Court has observed and held as under:
Para-86:- The second question referred to herein is in relation to the word "evidence" as used under Section 319 CrPC, which leaves no room for doubt that the evidence as understood der Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examination- in-chief. In Rakesh [(2001) 6 SCC 248: 2001 SCC (Cri) 56 1090: AIR 2001 SC 2521], it was held that: (SCC p. 252, para 10) "10... It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under Section 319 CrPC. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 319 should be exercised or not."
87. In Ranjit Singh Ranjit Singh v. State of Punjab. (1998)
7 SCC 149: 1998 SCC (Cr) 1554: AIR 1998 SC 3148], this Court held that: (SCC p. 156, para 20) "20. it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."
88:- In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544: (2009) 1 SCC (Cri) 889: AIR 2007 SC 1899], it was held that the prerequisite for exercise of power under Section 319 CrPC is the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the cross- examination is over and that there would be no illegality in doing so. A similar view has been taken by a two-Judge Bench in Harbhajan Singh v. State of Punjab (2009) 13 SCC 608 (2010) 1 SCC (Cri) 1135]. This Court in Hardeep Singh Hardeep Singh v. State of Punjab. (2009) 16 SCC 785: (2010) 2 SCC (Cri) 355] seems to have misread the judgment in Mohd. Shafi Mohd. Shafi v. Mohd. Rafiq. (2007) 14 SCC 544: (2009) 1 SCC (Cri) 889 AIR 2007 SC 1899], as it construed that the said judgment laid down that for the exercise of power under Section 319 57 CrPC, the court has to necessarily wait till the witness is cross- examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 CrPC.
89:- We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.
90:- As held in Mohd. Shafi Mohd. Shafi v Mohd. Rafiq. (2007) 14 SCC 544: (2009) 1 SCC (Cri) 889: AIR 2007 SC 1899) and Harbhajan Singh [(2009) 13 SCC 608: (2010) 1 SCC (Cri) 1135), all that is required for the exercise of the power under Section 319 Cr. P. C. is that, it must appear to the court that some other person also who is not facing the trial may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s), It is essential to note that the section 58 also uses the words "such person could be tried instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross- examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross- examination at all, for in light of sub-section (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross- examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person face trial. In fact, examination-in- chief untested by cross-examination, undoubtedly in itself, is an evidence.
91:- Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 CrPC, the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross-examine the witness(es) prior to passing of an order under Section 319 CrPC, as such a procedure is not contemplated by CrPC. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only 59 help the prosecution in completing the chain of evidence, unless the witness(es) is obliterating the role of persons already facing trial. More so, Section 299 CrPC enables the court to record evidence in absence of the accused in the circumstances mentioned therein.
92:- Thus, in view of the above, we hold that power under Section 319 CrPC can be at the stage of completion of examination-in-chief and the court does not need to till the said evidence is tested on cross-examination for it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court, in respect of complicity of some other person(s), not facing the trial in the offence. 6.1.6:- While answering Question (iv), namely, what is the degree of satisfaction required for invoking the power under Section 319 CrPC, this Court after considering various earlier decisions on this point, has observed and held as under:
105:- Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106:- Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which 60 is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.
6.1.7:- While answering Question (v), namely, in what situations can the power under Section 319 CrPC be exercised: named in the FIR, but not charge-sheeted or has been discharged, this Court has observed and held as under:
112:- However, there is a great difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or subjected to, but not charge-sheeted. Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation, the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. Therefore, there must exist compelling circumstances to exercise such power. The court should 61 keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 CrPC without resorting to the provision of Section 319 CrPC directly.
xxx xxx xxx 116:- Thus, it is evident that power under Section 319 CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge- sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300(5) read with Section 398 CrPC.
6.2:- Considering the law laid down by this Court in Hardeep Singh (supra) and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-
in-chief of the witness concerned and the Court need not wait till the cross-examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-
examination; and (ii) a person not named in the FIR or a 62 person though named in the FIR but has not been charge sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial. 6.3:- In S. Mohammed Ispahani v. Yogendra Chandak (2017) 16 SCC 226, this Court has and held as under: (SCC p. 243) "35. It needs to be highlighted that when a named in the FIR by the complainant, but police, after investigation, finds no role particular person and files the charge sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused." 6.4 In the case of Rajesh v. State of Haryana (2019) 6 SCC 368, after considering the observations made by this Court in Hardeep Singh (supra) referred to hereinahove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge- sheet has gone, in that case also, 63 the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.
7:- Applying the law laid down by this Court in the aforesaid decisions to the case of the accused on hand, We are of the opinion that learned Trial Court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant- injured eye witness. As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination-in-chief of the witness and the Court need not wait till his cross- examination. If on the basis of the examination-in-chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial."
........................
Para-3.5.- During course of investigation victim "X" shown the flat no.-290 of Delta-B, flat no.-219 of Mega, flat no.- 1090 of Alfa and flat no.-920 of New beta as place of occurrence to 1.O. A statement of victim was also recorded by enquiry team (Para- 51 of C.D.), in which victim has also disclosed that said offence was also committed in the back side of maintenance office, Motel Highway, Dimna resort and inside bushes and M.G.M. P.S. The victim "X" has also shown the place of occurrence of M.G.M. P.S., Room no.-104 of Motel Highway, 2nd room from North of 64 Hotel 4- lane, Chabutara of Dimna lake, first room from East situated in Park of Dimna Resort to I.O."
67. It has also been held in the case of Sartaj Singh Versus the State of Haryana and Another reported in 2021 (5) SCC 337 at para-6.1.2 and 6.1.3 as follows:-
" Para-6.1.2:- In the said case, the following five questions fell for consideration before this Court.
(i) What is the stage at which power under Section 319 CrPC can be exercised?
(ii) Whether the word "evidence" used in Section 319(1) CrPC could only mean evidence tested by cross examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"
Para- 6.1.3:- While considering the aforesaid questions, this Court in Hardeep Singh (supra) observed and held as under:
.............................................................................. ..............................................................................
17. Section 319 Cr. P. C. allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, 65 has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.
68. It has been held in the case of Michael Machado and Another Versus Central Bureau of Investigation and Another reported in 2000 (3) SCC 262 at para-11 to 14 as follows:-
" Para-11:- The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.
Para-12:- But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no 66 compelling duty on the court to proceed against other persons. Para-13:- In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi this Court has struck a note of caution, while considering whether prosecution can produce evidence to satisfy the court that other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the court to take cognizance against them and try them along with the other accused. This was how learned Judges then cautioned:(SCC p. 8, para 19) But we would hasten to add that 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"
Para-14:- The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub- section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re- examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the court should refrain from adopting such a course of action."
69. It has been held in the case of Ajmal Hussain @ Ajmal Sheikh and Anr. Versus The State of Jharkhand and Another passed in Cr. Revision No. 371 of 2007 vide order dated 29.03.2023 as follows:-
"Mr. Jitendra Shankar Singh, learned counsel appearing on 67 behalf of the petitioners submitted that the order arraigning the petitioners under Section 319 of the Cr.P.C. is blatantly illegal, as the investigation against the petitioners was still pending and the split up record was also pending before the Judicial Magistrate, when the impugned order was passed. It was further submitted that subsequent to the impugned order police had submitted final form against the petitioners and remedy which was open to the opposite party No.2 was to file a protest petition. Which would have been converted into a complaint case. Reliance has been placed upon (2021) 5 SCC 337 in the case of Sartaj Singh Vs. State of Haryana and Another, in which the Hon'ble Supreme Court has laid down a guideline as to, at what stage power under Section 319 of the Cr.P.C. can be exercised.
The Hon'ble Court has held that Section 319 Cr.P.C. allows the court to proceed against any person who is not an accused in the case before it. Thus, the person against whom the summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 Cr.P.C. or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated.
In view of the direction laid by the Hon'ble Supreme Court in aforesaid case, it is evident that the case of the petitioners was pending for investigation and they will not come within the domain of persons, who were not accused in case facing trial.
Considering the aforesaid facts and circumstance, I am of the opinion that the learned trial court has erred in directing the petitioners, to appear in S.T. No.105/2006 to face trial. Accordingly, impugned order dated 26.04.2007 is set aside.
This Criminal Revision Application is allowed. Pending I.A., if any, also stands disposed of."
However, the above order is not applicable on the facts and in the circumstances of this case as the order of the Co-
68ordinate Bench of this Court is in two pages only and this Court is not in respectful agreement with the view of the Co-ordinate Bench of this Court. However, in the above cases, final form was submitted and though no proper petition was filed, yet summon was issued under Section 319 Cr. P. C. and even the law laid down in the case of Dharampal Versus State of Haryana and Others reported in 2014 (3) SCC 306 was not brought to the notice of the Co-ordinate Bench of this Court.
70. It has been held in the case of Meenu Prakash Bhantu Versus State of Uttar Pradesh and Another Reported in 2023 (5) SCC 386, para-12 and 13 as follows:-
"Para-12:-The parameters on which additional accused could be summoned in an application filed under Section 319 CrPC are well settled in the case of Hardeep Singh and Ors.'s case (supra) which are as under:
"105:- Power u/s 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the magistrate or the sessions judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence laid before the court that such power should be exercised and not in a casual and cavalier manner. 106:- Thus we hold that though only a prima facie case is to be established from the evidence laid before the court, not necessarily tested on the anvil of cross examination, it requires much strong evidence that near probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain 69 from exercising power u/S 319 CrPC." (emphasis supplied) Para-13:-In Sagar vs. State of U.P., it is stated as under: (SCC p. 393, para 9) "9. The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as notice above has to be applied is one which is more that prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction...."
71. It has been held in the case of Sukhpal Singh Khaira Versus State of Punjab reported in 2023 (1) SCC 289 at 39, 40 and 41 (III), which read as follows:-
Para-39 (I):- Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other co- accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?
The power under Section 319 of CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.
Para-40 (II):- Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is 70 subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
The trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial till its conclusion. Para- 41 (III):- What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?"
Para-41.1:- If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. Para-41.2:- The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.
Para-41.3:- If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.
Para-41.4:- If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately. Para-41.5:- If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused. Para-41.6:- If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.
Para-41.7:- If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the 71 decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.
Para-41.8:- If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial. Para-41.9:- If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re-hearing.
Para-41.10:- On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly. Para-41.11:- Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held. Para-41.12:- If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier;
(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused."
72. It has been held in the case of Labhuji Amratji Thakor and Ors. Versus The State of Gujarat and Another reported in 2019 (12) SCC 644 at para-12 to 15 as follows:-
" Para-12:- Now, we come back to the reasons given by the High Court in allowing the Criminal Revision and setting aside the order of the POCSO Judge. The judgment of the High Court runs into four paragraphs and the only reason given by the High Court for allowing the revision is contained in paragraph No.3, which is 72 to the following effect:-
"3. On going through the depositions of the victim as well as her mother, some overt act and participation on the part of the respondent nos. 3 to 5 are clearly revealing. But, this Court is not inclined to opine either way as the said fact was not stated before the police at the time of recording of their statements. But, taking into consideration the provision of Section 319 of the Criminal Procedure Code, this Court deems it appropriate to summon them and put them to trial..."
Para-13:- The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that Court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the F.I.R. or in the Charge Sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh (supra) has to apply the test, i.e., "more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction." Para-14:- Although, the High Court has not adverted to test laid down by the Constitution Bench nor has given any cogent reasons for exercise of power under Section 319 Cr.P.C., but for our satisfaction, we have looked into the evidence, which has come on record before the trial court as statements of PW3 and PW4. PW3 is mother of the victim, who has clearly stated that her daughter has informed that she was abducted by appellants and Natuji, who had taken her to the Morbi in the vehicle of Labhuji. The statement of mother of the victim was an hearsay statement and could not have been relied for proceeding against the appellants. Now, coming to the statement of victim, PW4, she 73 has only stated that Natuji, the accused had come along with his three friends, i.e. appellants and she was taken in the jeep to Morbi. She does not even alleged complicity of the appellants in the offence. Her further statement was that she was taken to Morbi in the jeep driven by Labhuji and subsequently was taken to Modasa from Morbi in the jeep of Labhuji which also could not furnish any basis to proceed against the appellants. The mere fact that the jeep, in which she was taken to Modasa, the appellants were also present cannot be treated to be any allegation of complicity of the appellants in the offence. The observations of the trial court while rejecting the application having that the application appears to be filed with mala fide intention, has not even been adverted by the High Court. Para-15:- We are, thus, of the considered opinion that High Court committed error in setting aside the order of the trial court rejecting the application under Section 319 Cr.P.C. The High Court has not given sufficient reasons for allowing the application under Section 319 Cr.P.C. filed by prosecution. The impugned judgment of the High Court is unsustainable and is hereby set aside. The appeal is allowed."
However, in the above judgment cited by the learned defence counsel, is not applicable on the facts and in the circumstances of this case as in the above case as the order of Hon'ble Gujrat High Court was passed in only four (4) paragraph even satisfactions and prima facie case was not recorded by the High Court.
73. It has been held in the case of Hardeep Singh Versus State of Punjab and Ors. reported in 2014 (3) SCC 92 at para-98 and 99 as follows:-
"Para-98:- In Sarabjit Singh V. State of Punjab, while explaining the scope of Section 319 Cr.P.C., a two-Judge Bench of this Court observed:(pp. 54-55, para 21-23) "21....For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being 74 whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned......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. 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." (Emphasis added) Para-99:- In Brindaban Das & Ors. v. State of West Bengal, a two-Judge Bench of this Court took a similar view observing that (SCC p. 335, para 25) "25. ... the court is required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.
(emphasis supplied)
74. It has been held in the case of Birendra Singh and Ors. Reported in State of Rajasthan reported in 2017 (7) SCC 706 at para-13, 14 and 15 as follows:-
" Para-13:-In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated:
Power under Section 319 Cr.P.C. can be exercised by the 75 trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
Para-14:-When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements 76 under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct. Para-15:- This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in- chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."
However, the above judgment, cited by the learned defence counsel, is not applicable as the I.O. had found the plea of 77 alibi against the accused persons of that case as valid one and the statement of witnesses recorded by the police and evidence were same and it was also not brought to the notice of the High Court, but this case is different as the police in this case appears to have suppressed the material before submitting the charge sheet.
75. It has been held in the case of Jogendra Yadav and Ors. Versus State of Bihar and Another reported in (2015) 9 SCC 244 at para-13, 15 and 16 as follows:-
Para-13:- We are not unmindful of the fact that the interpretation placed by us on the scheme of Sections 319 and 227 makes Section 227 unavailable to an accused who has been added under Section 319 of the Cr.P.C. We are of the view, for the reasons given above that this must necessarily be so since a view to the contrary would render the exercise undertaken by a Court under Section 319 of the Cr.P.C., for summoning an accused, on the basis of a higher standard of proof totally infructuous and futile if the same court were to subsequently discharge the same accused by exercise of the power under Section 227 of the Cr.P.C., on the basis of a mere prima facie view. The exercise of the power under Section 319 of the Cr.P.C., must be placed on a higher pedestal. Needless to say the accused summoned under Section 319 of the Cr.P.C., are entitled to invoke remedy under law against an illegal or improper exercise of the power under Section 319, but cannot have the effect of the order undone by seeking a discharge under Section 227 of the Cr.P.C. If allowed to, such an action of discharge would not be in accordance with the purpose of the Cr.P.C in enacting Section 319 which empowers the Court to summon a person for being tried along with the other accused where it appears from the evidence that he has committed an offence.
Para-15:- Ms. Prerna Singh, learned counsel for the State also submitted that a person who is an accused under Section 319 ought not to be given an opportunity to avail of the remedy of 78 discharge under Section 227 since it would be contrary to the scheme and intent of the Cr.P.C.
Para-16:- We have no difficulty in accepting this submission for the reasons stated above. We are also satisfied that it would not result in any undue hardships to the accused since the remedy before a superior court is available."
76 So far as the judgment decided in the case of Jogendra Yadav and Ors. Versus State of Bihar and Another reported in (2015) 9 SCC 244 is concerned, the same is not applicable on the facts and in the circumstances of the case. In the above cases, the accused persons were summoned under Section 319 of the Cr.P.C. and the accused -appellants had challenged the same by filing the application under Section 482 of the Cr. P. C. before the High Court and in the meantime, the learned Court below i.e. the learned Additional Sessions Judge had discharge the accused- appellants in view of the petitions filed under Section 227 of the Cr. P. C. Thereafter the High Court has set aside the order of discharge passed by the learned Court below and the accused- appellants had challenged the said order of the Hon'ble High Court before the Hon'ble Supreme Court and the Hon'ble Supreme Court has dismissed the appeal filed by the accused- appellants.
Thus, the above judgment is not applicable in the facts and circumstances of the case.
77. It has been held in the case of Manjeet Singh Versus State of Haryana and Ors. reported in 2021 SCC Online SC 632 at para 34 (i) to 34 (xvii) which read as follows:-
"Para-34:- The ratio of the aforesaid decisions on the scope and ambit of the powers of the Court under Section 319 CrPC can be summarized as under:
(i) That while exercising the powers under Section 319 CrPC 79 and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished;
(ii) for the empowerment of the courts to ensure that the criminal administration of justice works properly;
(iii) the law has been properly codified and modified by the legislature under the CrPC indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law;
(iv) to discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished;
(v) where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial;
(vi) Section 319 Cr. P. C. allows the court to proceed against any person who is not an accused in a case before it;
(vii) the court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency;
(viii) Section 319 Cr. P. C. is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial;
(ix) the power under Section 319(1) Cr. P. C. can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 Cr. P. C., committal, etc. which is only a pre-trial stage intended to put the process into motion;
(x) the court can exercise the power under Section 319 Cr. P. C. only after the trial proceeds and commences with the recording of the evidence;80
(xi) the word "evidence" in Section 319 Cr. P. C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents;
(xii) it is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 Cr. P. C. is to be exercised and not on the basis of material collected during the investigation;
(xiii) if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 Cr. P. C. and can proceed against such other person(s);
(xiv) that the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 Cr. P. C. can be exercised;
(xv) that power under Section 319 Cr. P. C. can be exercised even at the stage of completion of examination-in-chief and the court need not has to wait till the said evidence is tested on cross- examination;
(xvi) even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 Cr. P. C. and even those persons named in FIR but not implicated in the chargesheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses);
(xvii) while exercising the powers under Section 319 Cr. P. C. the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial."
78. It is further evident from the impugned order passed by 81 the learned Court below that evidence of P.W.-9, Sushil Kumar Singh, P.W.-10, Anjani Kumar Sinha and P.W.-11, Ramesh Prasad Jha were not found relevant for the purpose of issuing summon against the petitioners under Sections 319 of the Cr. P. C. However, learned Court below has observed that P.W.-6, Shikha Rani Tigga and P.W.-7, Manish Manikant Pradhan are the learned Judicial Magistrate, who have proved the statement of the victim girl-x and surprisingly Tanushree Nayak (who has been made an accused also by the impugned order) recorded under Section 164 of the Cr. P.C. and whereas P.W.-8, Dr. Neeru Jha and P.W.-12, Dr. Manu Kumar Choudhary, who have proved the medical examination report of the victim girl and have stated that the victim girl is habitual to sexual intercourse.
79. It further transpires that evidence of P.W.-1, Nanak Chand Seth was recorded on 31.01.2019, 18.02.2019, 16.03.2019, 03.04.2019 and he was cross-examined on 03.04.2019, 10.04.2019, 25.04.2019, 09.05.2019, 23.05.2019, 30.05.2019 and 21.06.2019 and was discharged on 21.06.2019 and thereafter the evidence of P.W.-2, Anita Ganotra was recorded on 18.07.2019, 02.08.2019 and 19.08.2019 respectively and she was cross- examined on 19.08.2019 and discharged on 19.08.2019 itself. Thereafter evidence of P.W.-3 i.e. the victim girl was recorded on 14.11.2019, 16.12.2019 in Camera before the learned Court below and she was cross-examined on 16.12.2019 and 17.12.2019 and she was discharged on 17.12.2019 itself.
80. It transpires that P.W.-4 was examined in-chief on 13.01.2020, 14.01.2020 and 23.01.2020 respectively and she was cross-examined on 23.01.2020 and 03.02.2020 and discharged on 03.02.2020.
81. It further transpires that P.W.-5, Dukhni Bhakat was examined in-chief on 04.03.2020 and she was cross-examined on 82 28.01.2021 and discharged on 28.01.2021 itself.
82. It reveals from the evidence of P.W.- 1, Nanak Chand Seth, P.W.-2, Anita Ganotra , P.W.-3 i.e. the victim girl- x and P.W.-4, Mamta Seth that they were aware of the CID investigation and even P.W.-4, Mamta Seth during her cross-examination, she had stated that CID people has shown her the houses of some of the petitioners namely Munnain Khan, Manoj Sahay and Gurpreet Singh.
Therefore it was in the notice of the Court regarding the pendency of the CID investigation. However, trial was not stayed by any order from any corner and the learned Court below continued to examine the prosecution witnesses and also recorded the evidence of Eleven (11) defence witnesses during the period of CID investigation.
However, learned Court below had not discussed the materials and found during the pendency of CID investigation as the CID had not submitted any report before passing of the impugned order.
83. This Court refrains itself from giving any finding on the aspect of FIR by CID as the report of CID, was pending and the impugned order was passed on 08.07.2021 whereas the CID had submitted its report on 14.12.2021.
84. For the purpose of issuing summon under Section 319 of the Cr. P. C., it is imperative that the learned Court below must satisfy itself before issuing summon under Section 319 of the Cr. P. C. The veracity of the evidence of P.W. 1, Nanak Chand Seth, P.W.-2, Anita Ganotra, P.W.-3, the Victim Girl, P.W.-4, Mamta Seth and P.W.-5, Dukhni Bhakat i.e. the informant can only be tested during the Trial only although the CID has not found complicity of these petitioners.
8385. It further transpires that the learned counsel for the informant has enclosed in the case diary in its counter affidavit filed on 31.03.2023, which is not permissible in law and ought not to have enclosed the case diary submitted by the police and during course of submission of the learned counsel for the informant has admitted his mistake for filing extract/copies of the case diary in the counter affidavit dated 31.03.2023.
86. Para-12 and 108 of the case diary reveals that the Date of Birth/age of the victim girl is 29.03.2000 and thus, the victim girl was minor on the date of occurrence. Even the police has submitted charge sheet under Sections 376 (2) (i) and 376 (D) of the Indian Penal Code and Section 6 of the POCSO Act against three prime accused persons and which reveals that even the police as well as the prosecution had treated the victim girl minor at the time of occurrence.
87. P.W.-1, Nanak Chand Seth has clearly stated in para- 6 of his evidence that he learnt about the occurrence on 2/3 July, 2017 and has also stated in para-8 that he tried to lodge the FIR/complaint but it was not considered.
88. An unethical action on the part of the police as evident as they tried to suppress the case by not lodging the FIR instead of booking the culprit for the crime.
89. No doubt, C. I. D. has submitted final report on 14.12.2021 in favour of all the petitioners, who have filed the Criminal Revision Applications and Cr. M. Ps., but that cannot be considered at this stage as the same was not the subject matter before the learned Court below at the time of passing of the impugned order.
However, the CID investigation learned Court below has committed no illegality while passing the impugned has not been 84 stayed from any corner or from any Court and order.
90. It is well settled that even a women of every virtue cannot be subjected to rape against her wishes. But in the present case, the victim girl was administered injection by the accused Tanusree on several occasions for making her available without any protest.
91. As it appears that evidence of P.W.-3, the victim girl, several videos were prepared by the accused persons and even the camera was used by one photographers by preparing such video of the victim girl and there was instances of audio taping and video recording of the statement of some persons.
92. The allegation of committing rape upon the victim girl or forcing the victim girl for the purpose of prostitution are different, nonetheless the victim girl has been made the victim of the circumstances also. It was also is the duty of P.W.-1, Nanak Chand Seth and P.W.-4, Mamta Seth, wife of the P.W.-1 to protect the victim girl from her exploitation from anti-social element of the society as P.W.-1, Nanak Chand Seth was aware of the occurrence on 02/03.07.2017 The role of the P.W.-1, Nanak Chand Seth is limited to a certain extent, but it is surprising that he remained in dark about the incident for the last 3-4 years.
93. It transpires that P.W.-3, the victim girl has fully supported her case during her evidence and her evidence is also corroborated from the evidence of P.W.-1, Nanak Chand Seth, P.W.-2, Anita Ganotra and P.W.-4, Mamta Seth and P.W.-5, Dukhni Bhakat respectively.
94. It further transpires from the statement of the victim girl recorded under Section 164 of the Cr. P. C. on 19.01.2018 that she has taken the name of three prime accused persons namely Shiv Kumar Mahato, Indrapal Saini and Srikant. The victim girl has further stated during her statement under Section 164 of the Cr. P. C. that she was taken to the Hotel and was being administered 85 injection and she was forced to prostitution by the accused Indrapal Saini. She has also stated that several persons had established physical relationship with her and she was even raped in a car and was assaulted. Therefore, it would appear that had victim girl being taken in confidence by the learned Judicial Magistrate, she would have stated further, but it appears she was not taken into confidence properly by the learned Judicial Magistrate while recording her statement under Section 164 of the Cr. P. C.
95. It further appears that statement of the victim girl in para- 10 of the case diary by the I.O. on 18.01.2018 itself under Section 161 of the Cr. P. C. that the victim girl has stated that firstly that electrician Shiv Kumar Mahato and Indrapal Saini as an employee of Nanak Chand Seth and co-accused Shiv Kumar Mahato had committed rape upon her several times and she has mainly stated that Shiv Kumar Mahato for committing rape for the first time upon her when he came to the Flat for repairing of electricity. She has named these petitioners namely Shahid in Cr. M. P. No. 1683 of 2021 and Shambhu Trivedi in Cr. M. P. No. 1778 of 2021 and Abhishek Mishra in Cr. Revision No. 567 of 2021 and Gurpreet Singh in Cr. Revision No. 59 of 2022 and one other accused Ajit Mistry as she has learnt their names from the accused Indrapal Saini. She has also stated that at that time the lady Tanushree used to administer injection upon her and took away with a boy, who had raped her. She has further stated that Indrapal Saini and Shiv Kumar Mahato took her to "Motel Highway" Hotel, where 4-5 persons committed rape upon her and thereafter she was taken to Ulidih and another place and 4-5 persons again committed rape upon her. She has further stated that Indrapal Saini and Shiv Kumar Mahato took the victim girl to Hotel Four Line several time, Dimna Resort, house of petitioner- Rajesh Kumar Singh 86 (Cr. Revision No. 589 of 2021) outside Sahara City respectively and also in the house of one Munain (Cr. M. P. No. 2003 of 2021) and where 4-5 persons had committed rape upon her. She has also stated that the accused Indrapal Saini and Shiv Kumar Mahato used to take her to Telco and Gobindpur Gate where 3-4 persons and one Sonu Nair (not petitioner) had committed rape upon her. She has further stated that she was taken near the Dimna Lake during the period of Demonetization (i.e. Note-Bandi) and where 8-9 persons had committed rape upon her,but they were apprehended by two police personals in having white dress and they took her and other persons to MGM, Police Station and where Office In-charge of MGM Police Station (i.e. Imdad Ansari) (Cr. M. P. No. 2033 of 2021) had committed rape upon her in the MGM Police Station and even one Senior Officer, who was addressed as "Sir" (i.e. Ajay Kerketta in Cr. Revision No. 429 of 2021) by the Officer In-charge had also committed rape upon her, but she was freed by Tanushree as her fake guardian. She also stated that she has taken several times to MGM, Police Station where rape was committed upon her by the Officer In-charge i.e. Imdad Ansari. She has also alleged that videography was also prepared by Indrapal Saini and also in the house of her uncle by Camera.
Thus, it would appear from the statement of the victim girl recorded under Section 161 of the Cr. P.C. on 18.01.2018 in para- 10 of the case diary that the victim girl has named almost all the petitioners for committing rape upon her.
96. Therefore it is not a case that the victim girl was taken the name of the petitioner for the first time during her evidence, rather the victim girl has named several petitioners, who have filed the above Criminal Revision Applications and Cr. M. Ps. before this Court challenging the impugned order dated 08.07.2021 passed by 87 the learned Court below.
97. She has also asserted in para-68 of her evidence that she had got seen the place of occurrence at Dimna Lake and Dimna Resort and Hotel Forline and Motel Highway and MGM Police Station and various houses of Sahara City where she was subjected rape/prostitution. It further appears that from her evidence recorded in para-181 that she has disclosed the name of the accused persons before the City S. P., C. I. D., Media and Senior Police Officers of Jamshedpur.
Therefore, from the evidence of the victim girl, it is evident that she has named all the petitioners for committing rape upon her and they asserted that she was compelled to prostitution by the said Indrapal Saini and Shiv Kumar Mahato and Srikant.
98. It also transpires that the P.W.-1-Nanak Chand Seth has even asserted that he has got all the Audio Tape and Video Recording from his mobile phone relating to suppression of the instant case by the police. If that be so, thus it will be open to the Court below to further proceed but the learned Court below should also furnish these Audio and Video evidence to the petitioners for their defence in rebuttal.
Even after instituting the complaint before the Sr. S. P. Jamshedpur, it took around two months to lodge the FIR which is also showing the inefficient approach of the police.
99. From the evidence of P.W.-1-Nanak Chand Seth, it appears that he has also named the petitioners namely Laddan, Shambhu Trivedi, Tasmis Ahmad, Shahid, Kareem Kevalwala, Munna Dhobi, Rajesh Kumar, Amit Singh, Maksud, Munain, Dinesh Agarwal, Guddu Gupta, Mukesh and Officer In-charge of MGM Police Station (i.e. Imdad Ahmad) and one 'Sir' (i.e. Ajay Kerketta) also addressed by the Office In-charge MGM Police Station and also one Upendra, Sonu Nair and Ajit Mistry and 88 Maksud for committing rape and establishing physical relationship with the victim girl. P.W. -1, Nanak Chand Seth has further mentioned the name of Laddan and Shambhu Trivedi, who had threatened him. He has further stated in para-26 and 29 and 33 that Officer In-charge (i.e. Imdad Ahmad) and Dy. S. P. ' Sir' (i.e. Ajay Kerketta) had tried to influence him for not instituting a case against them. He has further stated at para- 51, 55, 56, 57 and 60 that the petitioner Ajay Kerketta, Dy. S. P. had tried to convince him.
He had also shown is agony in para-82 and 83 of his evidence, S. P. had threatened him for implicating innocent persons. During his cross-examination, though he admitted in para-133 that he learnt about the occurrence on 03.07.2017 from the victim girl. However, he again asserted the name of the petitioners as has been mentioned in para-15 of his evidence again and he has asserted the above named of the petitioners while defence was trying to take contradiction from his statement recorded under Section 161 of the Cr. P. C. by the I. O.
100. The institution of FIRs i.e. 22 FIRs for all the incident is not required in their case as it reveals from her evidence of the victim girl-x i.e. P.W.-3 and corroborated by P.W.-1, Nanak Chand Seth, P.W.-2, Anita Ganotra, P.W.-4, Mamta Seth and P.W.-5, Dukhni Devi that the victim girl was subjected to rape by several accused persons including Dy. S. P. Ajay Kerketta and the Officer In-charge MGM Police Station on several occasions and as such, it will not be practically possible to lodge FIR against all the accused persons for such approach and distinct offence, rather it may lead to failure of justice and the prosecution and the informant had to run in all their cases and hence it is not required to institute separate FIR against all 22 accused-petitioners, who have been summoned by the learned Court below under Section 319 of the 89 Cr. P. C.
101. This is a case of merciless sexual exploitation of a victim minor girl by the petitioners and it is surprising that even the crime is said to have been committed even in the premises of M.G.M. Police Station by the other accused namely Tashbib Ahmed in Cr. Revision No. 579 of 2021 and Ajay Kerketta (Dy. S. P. in Cr. Revision No. 429 of 2021 and it has also come in the evidence of P.W.-1-Nanak Chand Seth and evidence of P.W.-4, Mamta Seth that they were threatened by Dy. S. P. in the premises of police station. Apart from this, it would also appear from para-8 of evidence of P.W.-1, Nanak Chand Seth that they had come to forbade the P.W.-1, Nanak Chand Seth and the victim for instituting the case against them.
102. This case is not like case of single instance, but this is one of the rare of the rarest case in which the informant had to run from pillar to post to lodge the FIR even he guardian/compliant of the victim girl was not allowed to institute the case and delay was done to weaken her case.
103. It further appears from the evidence of the P.W.-2, Anita Ganotra that apart from name of three prime accused persons named in the FIR, she has also taken the name of the Officer In- charge of MGM Police Station (i.e. Imdad Ahmad) and "Sir" i.e. Dy. S. P. Ajay Kerketta.
She has further named the Senior Police Personnel during her evidence recorded at para-54 by stating that the victim girl has disclosed the name of the several petitioners before the Senior Police Officials of the State of Jharkhand. She has further stated in para- 66 that the victim girl has identified the Doctor before the police i.e. Saneti Nursing Home, who had aborted her.
104. It also appears from the evidence of P.W.-4, Mamta Seth at para-14, 16, 192 and 196, the victim girl-x was released from 90 the police station by the Officer In-charge of Mango P.S., Imdad Ansari due to influence of the petitioner- Guddu Gupta, when the victim girl-x along with Indrapal Saini and 8-9 boys were caught by two police personnel during the time of Demonetization.
105. It appears from the evidence of P.W.-7, Manish Manikant Pradhan, learned Judicial Magistrate, 1st Class, Jamshedpur, he has recorded the statement of one Tanushree Nayak under Section 164 of the Cr. P. C. and the statement of the said Tanushree Nayak @ Tanushree has been marked as 03/02.
This reveals that the prosecution wanted also to suppress the truth by setting up the said accused Tanusree to weaken the case of the informant and the victim girl.
106. It also transpires from the Lower Court Records that 11 defence witnesses were also examined before the learned Court below.
107. Thus, it is evident that the learned Court below has appreciated the evidence of the prosecution witnesses i.e. P.W.-3, the Victim Girl as well as P.W.-1, Nanak Chand Seth, P.W.-2, Anita Ganotra, sister of P.W.-1, P.W.-4, Mamta Seth, wife of the P.W.-1 and P.W.-5, Dukhni Devi i.e. the mother of the victim girl.
108. It further appears that the learned Court below has noticed that P.W.-8, Dr. Niru Jha and P.W.-12, Dr. Manu Kumar Choudhary have also stated in their evidence that the victim girl was habitual to sexual intercourse.
109. It is evident from para-6.1.3 of the case of Hardeep Singh (Supra) that power under Section 319 of the Cr. P. C. can be exercised by the Trial Court only after trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove.
110. The word "evidence has been answered in question no. (iii) and the Apex Court has observed at Para-6.1.4 in Para 58, 59- and 91 78 and has observed that the work "evidence" in Section 319 Cr. P. C. means only such evidence as is made before the Court, in relation to statements, and as produced before the Court, in relation to documents. Then such evidence can be taken into account by the Magistrate or the Court to decide whether the power under Section 319 Cr. P. C. is to be exercised and not on the basis of material collected during the investigation.
The Court can come to a prima facie opinion as to complicity of come other person who may be connected with the offence.
111. The Apex Court has further held in the case of Hardeep Singh (Supra) while answering the question no. (iv) at para- 6.1.6 at para-106 and has held that " prima facie case is to be established from the evidence led before the Court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity.
112. Thus, in view of the discussion made above, this Court is of the view that the learned Court below has properly appreciated the evidence of the entire all the prosecution witnesses examined as P.W.-1 to P.W.-12 respectively before issuing summons under Section 319 of the Cr. P. C. against the petitioners and the learned Court below has given specific reasons for reliance upon the evidence of the P.W.-3 i.e. the victim girl and who is the sole eye witness before issuing summon against the petitioners. The learned Court below has held that the victim girl has named these petitioners during his examination in-chief at para- 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 24, 26, 27, 30, 31, 32, 33, 35, 43, 44 and 45 during his examination in-chief and she has again taken the name of the petitioners during her cross- examination at para- 168 and 174.
113. The learned Court below has also relied upon the 92 judgments reported in the case of Sartaj Singh Versus the State of Haryana and Another reported in 2021 (5) SCC 337 and in the case of Hardeep Singh vs State of Punjab & Ors reported in 2014 (3) SCC 92 and in the case of Dharampal Versus State of Haryana and Others reported in 2014 (3) SCC 306 and also judgment reported in the case of Rakesh and Another Versus State of Haryana reported in 2001 (6) SCC 248 and in the case of Ranjeet Singh Versus State of Punjab reported in 1998(7) SCC 149 and in the case of Md. Shafi Versus Md. Rafiq reported in 2007 (14) SCC 544 for issuing summon against the petitioner, who have filed these Criminal Revision Applications and Cr. M. Ps. and the learned Court below has vividly discussed the evidence of the prosecution evidence relied by him.
114. It should be left to the discretion of the learned Court below to frame charges against the accused persons including these petitioners as per provisions of law and in accordance with law as there appears to be enough and sufficient materials available against the petitioners.
115. Apart from this in view of the law laid down by the Hon'ble Supreme Court in 2023 (1) SCC 289 of Para-41.4 and Para-41.12, this Court is of the view that the no error has been committed by the learned Court below to separate the trial of the present petitioners from the three main accused persons.
116. This is one of the rare of the rarest case in which the victim girl has been subjected to rape and prostitution by several persons at the instance of three named prime accused persons in the F.I.R. and the mother of the victim girl tried to inform the evidence of the prosecution witnesses, but nothing was done at all before the passing of the impugned order dated 08.07.2021 by the learned Court below.
93It appears that the P.W.-1, Nanak Chand Seth, P.W.-3, the Victim Girl-X and P.W.-4-Mamta Seth and P.W.-5, Dukhni Bhakat i.e. the informant had to fight not only against the petitioners but also against the police administration for lodging the F.I.R.
117. It is thus, evident that order passed by the learned Court below is well reasoned and speaking one and this Court appreciates the approach of the learned Court below for fully discussing the case properly.
118. Thus, no illegality has been committed by the learned Court below while passing the impugned order dated 08.07.2021 by which summon has been issued against the above petitioner under Section 319 of the Cr. P. C.
119. In view of the law land down in the judgments reported in 2014 (3) SCC 92, 2014 (3) SCC 306, 2007 (14) SCC 544, 1998 (7) SCC 149, 2019 (6) SCC 368, 2021 (5) SCC 337, 2023 (1) SCC 289 and 2021 SCC Online SC 632 and therefore, in view of the above discussion made, Cr. Revision No. 699 of 2021, Cr.M.P.No. 2003 of 2021, Cr. Revision No. 414 of 2021, Cr. M. P. No. 1778 of 2021, Cr. M. P. No. 2033 of 2021, Cr. Revision No. 427 of 2021, Cr. Revision No. 429 of 2021, Cr. Revision No. 567 of 2021, Cr. Revision No. 576 of 2021, Cr. Revision No. 579 of 2021, Cr. Revision No. 589 of 2021, Cr. M. P. No. 1683 of 2021, Cr. M. P. No. 1774 of 2021, Cr. M. P. No. 1831 of 2021, Cr. Revision No. 59 of 2022 and Cr. Revision No. 431 of 2022 are hereby dismissed.
Interim orders passed earlier by the Co-ordinate Bench of this Court and by this Court in above mentioned Criminal Revision Applications and Criminal Miscellaneous Petitions stand vacated.
120. However, the learned Court below may also exercise 94 discretionary power conferred under Section 165 of the Indian Evidence Act, if it feels necessary and essential at an appropriate stage to discover the facts and truth.
Even then, Senior Superintendent of Police, Jamshedpur and City Superintendent of Police, Jamshedpur may also be called in evidence as a witness by the Learned Trial Court below in its discretion, if it feels necessary and essential to do so.
121. Let a copy of this judgment be also sent to the learned Member Secretary, JHALSA for rehabilitation and further education of the victim girl.
(Sanjay Prasad, J.) Kamlesh/ A. F. R.