Madhya Pradesh High Court
Dashrath Singh Chauhan vs The State Of Madhya Pradesh on 10 November, 2021
Author: Satyendra Kumar Singh
Bench: Satyendra Kumar Singh
{1}
IN THE HIGH COURT OF JUDICATURE FOR MADHYA
PRADESH : JABALPUR
Present :- Hon'ble Shri Justice Satyendra Kumar Singh
M.Cr.C. No. 49326/2021
Dashrath Singh Chauhan
Versus
State of Madhya Pradesh & another
Shri Anil Khare, learned senior counsel assisted by Shri Abhinav
Shrivastava, learned counsel for the petitioner.
Ms. Vineeta Agrawal, learned Panel Lawyer for the respondent/State
__________________________________________________________
ORDER
( 10.11.2021) This petition under Section 482 of Cr.P.C. has been filed for quashing of the order dated 16/09/2021 passed by the Court of Special Judge, POCSO Act, Mauganj, District Rewa in Special Case No.47/2020 whereby the application filed by the Special Public Prosecutor under Section 319 of Cr.P.C. for impleading the petitioner as an accused for the offences punishable under Section 109 of Indian Penal Code and Section 17 of POCSO Act has been allowed and it was directed that the petitioner shall also be tried along with the accused Aakash Bangali.
2. The factual matrix of the case for just and proper adjudication of this petition is that the complainant vide letter dated 02/10/2019 informed Police Station, Naigarhi, Distt. Rewa (MP) that his minor daughter prosecutrix aged about 17 years was missing since 01/10/2019. On {2} receipt of the said information, missing report bearing registration No.0065/2019 and subsequently FIR bearing Crime No.302/2019 for the offence punishable under Section 363 of IPC was registered against the unknown persons. During investigation, on 05/102/2019 at about 21.00 hours petitioner-Dashrath Singh Chauhan, Assistant Sub Inspector of Police at the instance of accused-Aakash Bangali recovered the prosecutrix from Panch Jyoti Shakti Teerth Aashram, Beohari. She was taken from the said Aashram to Police Station, Naigarhi in the presence of a lady Nirmala, member of Raksha Samitee of Police Station, Naigarhi along with other Police officials and independent witnesses by Bolero car (Taxi) driven by Anil Kumar Patel. Her statement under Section 161 of Cr.P.C. were recorded on the same day wherein she stated that she went to the Aashram on her own will. On 06/10/2019 at about 4.55 a.m. she was handed over to her mother in the presence of her father and uncle. Thereafter on 07/10/2019 she made a complaint to I.G., Police, that she was kidnapped and raped by the accused-Aakash Bangali. Her statement under Section 161 of Cr.P.C. were again recorded on 07/10/2019 wherein she made some allegations against the petitioner also and stated that when she was being brought from Aashram to the Police Station, Naigarhi, Distt. Rewa and was in the custody of Police, accused committed rape upon her in the vehicle.
3. After completion of investigation, charge sheet was filed against the accused for the offences punishable under Sections 363, 366, 376 of {3} IPC and also under Section 3 & 4 of POCSO Act, in which during trial statement of prosecutrix and other prosecution witnesses were recorded. After recording of the statement of the prosecutrix, Special Public Prosecutor filed an application under Section 319 of Cr.P.C. for impleading petitioner as an accused for the offences punishable under Section 109 of Indian Penal Code and Section 17 of POCSO Act, which was allowed vide order dated 16/09/2021 as mentioned in para-1 of the order and bailable warrant has been issued to him.
4. Learned senior counsel for the petitioner submits that learned Special Court erred in law as well as facts while allowing the application preferred by the Special Public Prosecutor under Section 319 of Cr.P.C. to proceed against the petitioner and to implead him as an accused in this case. Prosecutrix, in her first statement recorded on 05/10/2019 under Section 161 of Cr.P.C. at Police Station, Naigarhi by lady constable Sushila whose video recording was also done in accordance with proviso to Sub-section (3) of Section 161 of Cr.P.C., did not state anything against the petitioner. Prosecutrix, on being tutored by her parents in order to falsely implicate accused-Aakash Bangali in a rape case, made allegations against the petitioner also, so as to circumvent the statement given by her on 05/10/2019. There are various contradictions in the statement of prosecutrix recorded under Sections 161 and 164 of Cr.P.C. The driver of Bolero Car (Taxi) Anil Kumar Patel and lady Nirmala, member of Raksha Samitee, who were admittedly went with the {4} petitioner, have specifically stated that prosecutrix was with them from the time when she was found in the Aashram. Anil Kumar Patel has stated that he was present all the time near his Taxi while Nirmala has stated that she did not leave the prosecutrix at all and was with her till the time she was handed over to her mother.
5. Learned senior counsel for the petitioner further submits that it is settled position of law that while invoking the powers under Section 319 of Cr.P.C., the decree of satisfaction should be more than a prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that evidence, if not rebutted, may lead to conviction of a person sought to be added as an accused. Prosecutrix merely stated that she tried to inform the petitioner about the incident but she was not allowed to speak by him. Thus, in the above circumstances, no case is made out under Section 109 of IPC and also under Section 17 of POCSO Act against the petitioner. The trial is at its fag end and all the key witnesses have already been examined by the prosecution, thus, at this stage, the Special Public Prosecutor could not have filed an application under Section 319 of Cr.P.C. as the same could have filed at the initial stage of the trial. Learned senior counsel for the petitioner has placed heavy reliance upon the judgments of Hon'ble Apex Court in the cases of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 & Ramesh Chandra Srivastava, Criminal Appeal No.990/2021. Hence, it is prayed that by allowing this petition, the impugned order dated {5} 16/09/2021 passed by learned Special Court, Mauganj, Distt. Rewa may be set aside.
6. On the other hand, learned counsel for the respondent/State supports the impugned order dated 16/09/2021 and submits that looking to the act of the present petitioner, offences under Section 109 of IPC and Section 17 of the POCSO Act are made out against the present petitioner as being a Police Officer, he extended assistance to the accused in committing heinous offence of rape upon the prosecutrix who was minor at the time of incident. Hence, it is prayed that the petition may be dismissed.
7. Having considered the rival submissions specially the law laid down by Hon'ble Apex Court in the case of Hardeep Singh (supra) on the point of degree of satisfaction for invoking the powers under Section 319 of Cr.P.C. Paras-105 and 106 of the said judgment read as follows:-
"105 Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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.
{6}
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 Section 319 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C. to form any opinion as to the guilt of the accused."
8. In the present case, the petitioner has been impleaded as an accused merely on the basis of the statement of prosecutrix (PW-1) recorded during trial and also the statement recorded during investigation under Sections 161 and 164 of Cr.P.C.. Prosecutrix (PW-1) has stated in her statement that when she was being brought from the Aashram to Police Station, Naigarhi, the petitioner stopped at his house and all the persons went into his house for tea and she was alone in the vehicle i.e. Bolero Car. During that period accused-Aakash Bangali along with one Patel {7} came there and committed rape upon her in the said vehicle. She further stated that when she tried to inform, the petitioner about the act of the accused, the petitioner interrupted her and directed her to sit silent and told everyone that she went to Aashram on her own will.
9. It is true that above assertion of the prosecutrix finds corroboration of the statement recorded under Sections 161 and 164 of Cr.P.C., but it is also true that she did not say anything against the petitioner in her first statement recorded on 05/10/2019 under Section 161 of Cr.P.C. whose video recording was also done. For the sake of arguments, if the entire assertions made by the prosecutrix is accepted in toto, even then the same cannot be said to be sufficient to lead conviction of the petitioner under Section 109 of IPC or Section 17 of POCSO Act as perosecutrix (PW-1) no where stated that the petitioner intentionally assisted or abetted the accused for committing rape upon her. As argued by learned senior counsel for the petitioner, it is settled position of law that while invoking the power under Section 319 of Cr.P.C., the decree of satisfaction should be more than a prima facie case as exercised at the time of framing of charge. On the basis of allegations made by prosecutrix, it cannot be said that any such type of case is made out against the petitioner, therefore, considering the standard fixed by Hon'ble Apex Court for invoking the powers under Section 319 of Cr.P.C. and also considering other facts and circumstances of the case specifically the statement of driver of Bolero Car (Taxi) Anil Kumar Patel, lady Nirmala, member of Raksha Samitee {8} who were admittedly went with the petitioner and were present at the time of incident, prima facie, complicity of the petitioner has not been proved.
14. In view of aforesaid discussions, this petition is allowed. The impugned order dated 16/09/2021 passed by Special Judge, POCSO Act, Mauganj, Distt. Rewa is hereby quashed.
(Satyendra Kumar Singh) Judge ts.
TULSA SINGH 2021.11.10 18:15:59 +05'30'