Kerala High Court
Sneha vs State Of Kerala on 12 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
CRL.MC NO. 5014 OF 2024
CRIME NO.743/2017 OF KATTOOR POLICE STATION, THRISSUR
AGAINST THE ORDER/JUDGMENT DATED 18.10.2023 IN SC NO.509 OF 2018
OF FAST TRACK SPECIAL COURT, (POCSO) IRINJALAKUDA
PETITIONER/ACCUSED NO.2:
SNEHA
AGED 38 YEARS
W/O. GOKULDAS, PUTHEZHATH HOUSE,
EDATHIRUTHY DESOM, MATHILAKAM P.O,
THRISSUR DISTRICT, PIN - 680685
BY ADV T.U.SUJITH KUMAR
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM DISTRICT, PIN - 682031
2 THE INSPECTOR OF POLICE
IRINJALAKUDA POLICE STATION,
IRINJALAKUDA P.O,
THRISSUR DISTRICT,
PIN - 680121
3 XXXXX
XXXXX
XXXXX
SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
12.06.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 5014 OF 2024
2
CR
ORDER
Dated this the 12th day of June, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, (hereinafter referred to as 'Cr.P.C' for short) and the prayers herein are as under:
"(i) Set aside the Annexure-A5 order dated 18.10.2023 in Crl.M.P.No.772/2023 in S.C.No.509/2018 of the Court of the Special Judge, Fast Track Special Court, Irinjalakuda.
(ii) Pass such other order or direction, which are deemed fit and proper on the facts and circumstances of the case and in the interest of justice."
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
3. The learned counsel for the petitioner argued at length to convince this Court that the trial court wrongly implicated the petitioner as second accused without sufficient materials, in a case where, at the time of initial investigation CRL.MC NO. 5014 OF 2024 3 and further investigation, the Police exonerated the 2 nd accused in this crime though her name was initially stated in the FIR. It is argued that the learned Special Judge, relying on the evidence of PW1 and her version in the First Information Statement, marked as Ext.P1, invoked the power under Section 319 of Cr.P.C. According to the learned counsel for the petitioner, the entire case generated on the basis of the rivalry, arose out of a lesbian relationship between the 2nd accused and the defacto complainant and when the relationship was strained, the 1st accused and the 2nd accused got arrayed as accused in this crime. However, on investigation, as already pointed out, the 2 nd accused was not found involved in this crime. According to the learned counsel for the petitioner, Annexure-A5 order is erroneous and illegal, warranting interference.
4. Whereas the learned Public Prosecutor opposed interference in Annexure-A5 order in Crl.M.P.No.772/2023 in S.C.No.509/2018, whereby the trial court arrayed the CRL.MC NO. 5014 OF 2024 4 petitioner herein also as the 2nd accused, on the allegation that she also committed offences punishable under Sections 120B, 377 and 506 read with Section 34 of IPC.
5. On perusal of the order impugned, in paragraph No.4, the learned Special Judge stated as under:
"4. It is seen that Ext.P1 FI Statement the allegations against has been clearly stated by PW1. She was also reiterated the allegations in the deposition before the court."
The said observations, relying on the evidence of PW1, is the basis on which the Special Judge had exercised his power under Section 319 of Cr.P.C.
6. Now the question arises for consideration is, what are the essentials to be satisfied by the court in order to apply Section 319 of Cr.P.C. In this connection, extraction of Section 319 of Cr.P.C is worthwhile and thus the same is extracted hereunder:
"319. Power to proceed against other persons appearing to be guilty of offence.--
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has CRL.MC NO. 5014 OF 2024 5 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."
7. The scope and ambit of Section 319 of Cr.P.C have been discussed and dealt with in detail in the Constitution Bench decision of the Apex Court in Hardeep Singh v. State of Punjab and Others, reported in 2014 (3) SCC 92 and held as under:
CRL.MC NO. 5014 OF 2024 6 "12. S.319 Cr.PC 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 S.319 Cr. PC.
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."
8. In Hardeep Singh's case (supra), the Apex Court further held that at the stage of S.319, the Court only has to see whether a prima facie case is made out although the degree of satisfaction has to be much higher.
"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.PC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two - Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned.', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons."
CRL.MC NO. 5014 OF 2024 7
9. In Hardeep Singh's case (supra), in Paragraph No.106, it stated as under:
"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 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 S.319 Cr.PC. In S.319 Cr.PC the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' it 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 S.319 Cr.PC to form any opinion as to the guilt of the accused."
10. This ratio was followed in a latest decision of the Apex Court in Sandeep Kumar v. State of Haryana, reported in 2023 KHC Online 6742 and held that at the stage of summoning an accused, there has to be a prima facie satisfaction of the Court.
CRL.MC NO. 5014 OF 2024 8
11. In another decision of the Apex Court in Yashodhan Singh v. Sate of Uttar Pradesh, reported in 2023 KHC Online 6745, the Apex Court considered the question as to whether an opportunity of being heard to be provided to a person added as an accused to face trial under Section 319 of Cr.P.C. and the Apex Court held that when a person who is not discharged but is to be summoned as per S.319 Cr.PC on the basis of satisfaction derived by the court on the evidence on record, no inquiry or hearing is contemplated. This would clearly indicate that principle of natural justice and an opportunity of hearing a person summoned under 319 Cr.PC are not at all contemplated. Such a right of inquiry would accrue only to a person who is already discharged in the very same proceeding prior to the commencement of the trial. This is different from holding that a person who has been summoned as per S.319 Cr.PC has a right of being heard in accordance with the principles of natural justice before being added as an accused to be tried CRL.MC NO. 5014 OF 2024 9 along with other accused. Merely because in certain proceedings the persons summoned had been provided an opportunity of being heard cannot be the same thing as stating that it is a mandatory requirement or a precondition that at the time of summoning a person under S.319 of the Cr.PC, he should be given an opportunity of being heard. That is not the mandate of law inasmuch as S.319 clearly uses the expression "to proceed" which means to proceed with the trial and not to jeopardise the trial at the instance of the person(s) summoned by conducting a mini trial or a trial within a trial thereby derailing the main trial of the case and particularly against the accused who are already facing trial and who may be in custody. A person who is summoned in exercise of the power under S.319 Cr.PC cannot hijack the trial so to say and deviate from its focus and take it to tangent in order to bolster his own case in a bid to escape trial. All that is contemplated when a person is summoned to appear is to ascertain that he is the very person who was CRL.MC NO. 5014 OF 2024 10 summoned and if any summoned person fails to appear on the given date. On the appearance of the summoned person, no procedure of an inquiry or opportunity of being heard is envisaged before been added as an accused to the list of accused already facing trial unless such a summoned person had already been discharged, in which event, an inquiry is contemplated as discussed above. Thus, the contention that a summoned person must be given an opportunity of being heard before being added as an accused to face the trial is clearly not contemplated under S.319 Cr.PC. It is also observed by this Court in Hardeep Singh that such a summoned person can assail a summoning order before a superior Court and will also have the right of cross examining the witnesses as well as can let in his defence evidence, if any.
12. It was further held in Yashodhan Singh's case (supra) that when a person is summoned as an accused under Section 319 of Cr.P.C. based on the satisfaction of the CRL.MC NO. 5014 OF 2024 11 trial court on the evidence that has emerged during the course of trial, so as to try the person summoned as an accused along with other accused, the summoned accused could not seek discharge since the discharge contemplated under Section 227 of Cr.P.C. is a stage prior to the commencement of trial and before framing of charge.
13. On reading Section 319 of Cr.P.C along with the decisions discussed above, it is emphatically clear that on prima facie satisfaction of the materials let in evidence, the Court has the power to invoke Section 319 of Cr.P.C and to add a person as an additional accused and in the absence of such satisfaction, the court should refrain from exercising power under Section 319 of Cr.P.C.
14. In the case at hand, the trial court, relied on Ext.P1 First Information Statement put in evidence and also the evidence given by PW1 stating that on 23.12.2014 while PW1 and Sneha were cleaning the house, Sneha asked A1 to bring food for them. After having food, PW1 drunk juice CRL.MC NO. 5014 OF 2024 12 and she became unconscious and then she was subjected to rape by the first accused and Sneha recorded the video of sexual assault and threatened her that she would circulate the same. Further PW1 given evidence that later, Sneha started blackmailing her and also sexually assaulted her.
15. Thus it appears that the trial court, on the basis of the materials let in evidence, decided to invoke power under Section 319 of Cr.P.C to add Sneha as additional 2 nd accused in this case and the said order is perfectly justifiable. In view of the matter, the order does not require any interference.
Accordingly, this petition fails and is dismissed.
Sd/-
A. BADHARUDEEN JUDGE nkr CRL.MC NO. 5014 OF 2024 13 APPENDIX OF CRL.MC 5014 OF 2024 PETITIONER EXHIBITS ANNEXURE A1 A TRUE COPY OF THE FIR & FIS DATED 02.09.2017 IN CRIME NO.743/2017 OF THE KATTOOR POLICE STATION, THRISSUR DISTRICT.
ANNEXURE A2 A TRUE COPY OF THE FINAL REPORT DATED 17.05.2018 IN CRIME NO.743/2017 OF THE KATTOOR POLICE STATION, THRISSUR DISTRICT ANNEXURE A3 A TRUE COPY OF THE JUDGMENT DATED 03.10.2018 IN W.P.(C).NO.38405/2017 OF THIS HON'BLE COURT ANNEXURE A4 A TRUE COPY OF THE FURTHER INVESTIGATION REPORT DATED 30.01.2019 IN CRIME NO.743/2017 OF THE KATTOOR POLICE STATION, THRISSUR DISTRICT ANNEXURE A5 A TRUE COPY OF THE ORDER DATED 18.10.2023 IN CRL.M.P.NO.772/2023 IN SC.NO.509/2018 OF THE COURT OF THE SPECIAL JUDGE, FAST TRACK SPECIAL COURT, IRINJALAKUDA ANNEXURE A6 A TRUE COPY OF THE DEPOSITION OF PW1 DATED 07.07.2023 IN S.C.NO.509/2018. RESPONDENTS EXHIBITS : NIL