Punjab-Haryana High Court
Arshida vs State Of Haryana And Others on 22 October, 2013
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRR-1600-2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR-1600-2013 (O&M)
Date of decision : 22.10.2013
Arshida
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Sarfraj Hussain, Advocate for the petitioner.
Mr. Ajay Gulati, DAG, Haryana.
Mr. Rajesh Lamba, Advocate for respondent Nos.2 and 3.
Mr. Salim Ahmed, Advocate for respondent No.4.
JITENDRA CHAUHAN, J.
The present revision petition is directed against the order dated 27.04.2013, passed by the learned Additional Sessions Judge, Nuh, whereby, the application filed by the prosecution under Section 319 Cr.P.C., for summoning respondent Nos.2 to 4, as additional accused has been dismissed.
The learned counsel for the petitioner contends that the accused-respondents have been specifically named in the FIR and specific allegations of rape have been levelled against them. The Sethi Atul 2013.11.19 16:42 I attest to the accuracy and integrity of this document Chandigarh CRR-1600-2013 -2- prosecutrix has also named them in her statement recorded under Section 164 Cr.P.C., as well as the statement recorded before the trial Court. The learned Court below erred in relying upon the report under Section 173 Cr.P.C., whereby the accused-respondents have been found innocent only on the ground that the call details of the accused did not show their location in Madhya Pradesh at the relevant time.
On the other hand, the learned counsel for accused- respondents, state that the case stands decided on 21.10.2013 and therefore, the present petition has been rendered infructuous as pendency of trial is a condition precedent for summoning the additional accused under Section 319 Cr.P.C. The learned counsel cites Harjinder Singh Vs. State of Haryana, 2013(1) R.C.R. (Criminal) 1038.
The learned State counsel cites Shashikant Singh Vs. Tarkeshwar Singh and another, AIR 2002 S.C. 2031, and argued that by the decision of the main case, the application under Section 319 Cr.P.C. will not become infructuous.
Heard.
It is admitted fact that the prosecutrix has levelled allegations of rape against the accused-respondents in the FIR, statement under Section 164 Cr.P.C. as well as in the statement recorded before the trial Court. The learned Court below, while dismissing the application under Section 319 Cr.P.C., observed that the Sethi Atul 2013.11.19 16:42 I attest to the accuracy and integrity of this document Chandigarh CRR-1600-2013 -3- call details of the accused-respondents do not suggest that they accompanied the prosecutrix in the State of Madhya Pradesh. It is also stated that in the MLR, no injury, either external or internal, was found on the person of the prosecutrix, in spite of the fact that she was raped several times by the accused. However, this Court feels that the above reasons cited by the learned Court below for dismissing application under Section 319 Cr.P.C., and are not sufficient to conclude without trial that the accused-respondents are innocent. The stand taken by the prosecutrix is constant throughout, as regards the commission of crime by the accused. From the reading of her statements, it is made out that the place of occurrence where the prosecutrix was firstly raped is Nuh Ghati and not in the State of Madhya Pradesh. She has also specifically stated that she was under threat, therefore, the absence of injuries is of no significance. The offence alleged is of gang rape which is a heinous offence. When the substantive statement of the prosecutrix in Court is available for appraisal, the reliance cannot be placed on report under Section 173 Cr.P.C. The observation of the trial Court regarding delay in reporting the matter are premature. At this stage, the Court has to see the prima facie commission of offence by the person to be summoned as an additional accused. This Court is of the opinion that there is sufficient material on record from which it can be inferred that respondent Nos.2 to 4 have committed the offence. Therefore, in the considered opinion of this Court, the finding recorded by the learned Sethi Atul 2013.11.19 16:42 I attest to the accuracy and integrity of this document Chandigarh CRR-1600-2013 -4- Court below that a prima facie case for conviction is not made out against the accused-respondents, is perverse and liable to be set aside and the application under Section 319 Cr.P.C., deserves to be allowed.
It is evident from the record that the application under Section 319 Cr.P.C. was moved during the pendency of the trial. Therefore, once this Court has reached to the conclusion that the application was wrongly dismissed and deserved to be allowed, it would be deemed to have been allowed during the pendency of the trial and not after its conclusion. Therefore, the argument raised by the learned counsel for the respondents is repelled.
The case law cited by the learned counsel for the respondents is distinguishable on facts. In Shashikant Singh's case (supra), similar question arose for consideration of Hon'ble the Supreme Court:-
"Can a person summoned pursuant to an order passed by a court in exercise of power conferred by Section 319 of the Code of Criminal Procedure, 1973 (the Code) be tried for the offence for which he is summoned after the conclusion of the trial wherein such an order of summoning was passed, is the question that falls for determination in this appeal. Such a question regarding the interpretation of Section 319 of the Code has arisen for the first time. The answer would depend upon the Sethi Atul 2013.11.19 16:42 I attest to the accuracy and integrity of this document Chandigarh CRR-1600-2013 -5- interpretation of the words 'could be tried together with the accused' in Section 319 of the Code."
Deciding the above question, the Apex Court set at rest the controversy, the observations of which are as under:-
"The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross- examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). Sethi Atul 2013.11.19 16:42 I attest to the accuracy and integrity of this document Chandigarh CRR-1600-2013 -6- The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."
In view of the above discussion, impugned order dated 27.04.2013, is set aside and the application under Section 319 Cr.P.C., for summoning accused-respondent Nos.2 to 4, to face trial, is allowed. The trial Court is directed to pass fresh order on the application under Section 319 Cr.P.C.
The present petition is allowed.
22.10.2013 (JITENDRA CHAUHAN) atulsethi JUDGE
Note : Whether to be referred to Reporter ? Yes/No Sethi Atul 2013.11.19 16:42 I attest to the accuracy and integrity of this document Chandigarh