Rajasthan High Court - Jodhpur
Kuldeep Kaur vs State Of Rajasthan (2023:Rj-Jd:42216) on 5 December, 2023
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2023:RJ-JD:42216]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 509/2022
1. Kuldeep Kaur W/o Sh. Gurdas Singh, Aged About 48
Years, 1-C, Chhoti, Mathlirathan, Sri Ganganagar, Dist. Sri
Ganganagar.
2. Kum. Jasandeep Kaur D/o Sh. Gurdas Singh, Aged About
24 Years, R/o 1-C, Chhoti, Mathlirathan, Sri Ganganagar,
Dist. Sri Ganganagar.
----Petitioners
Versus
1. State Of Rajasthan, Through Pp
2. Ritu Rani D/o Sh. Svaroop Singh, Permanent R/o
Kabulshah, Fajilka, Punjab And Presently Add- 1-C,
Chhoti, Sriganganagar, Dist. Sri Ganganagar.
----Respondents
For Petitioner(s) : Mr. Jitendra Singh Bhaleria
For Respondent(s) : Mr. Javed Gauri, PP
Mr. N.K. Sharma, for respondent No.2
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 05/12/2023 The instant criminal revision petition has been filed by the petitioners against the order dated 14.03.2022 passed by the learned Special Court POCSO Act & Commission for Protection of Child Rights Act, 2005 No.1, Srigangangar in Case No.45/2019 whereby the learned Court below has allowed the application under Section 319 Cr.P.C. and has taken the cognizance of the offence under Section 16/17 of POCSO Act against the petitioners and has called them by way of bailable warrant.
Learned counsel for the petitioners submits a specific allegation has been made against Gurpreet Singh for committing rape with the victim and no specific allegation has been levelled against the present petitioners and both the petitioners are women. Counsel further submits that after thorough investigation, (Downloaded on 07/12/2023 at 08:41:31 PM) [2023:RJ-JD:42216] (2 of 7) [CRLR-509/2022] Police submitted Final Report in this case, that no case is made out against the petitioners but later on after recording the statement of victim (PW-1), complainant filed an application under Section 319 Cr.P.C., which was allowed by the trial Court and took cognizance against the petitioners. Counsel has placed reliance on a decision of the Hon'ble Supreme Court in the case of Ramesh Chandra Srivastava Vs. The State of U.P. & Anr. [AIR (2021) SC 5107]. The order of the trial Court is per-se illegal and without assigning any reason and cognizance has been taken against the petitioners, so the order may be quashed and set aside.
Per contra, the learned Public Prosecutor and counsel for the complainant have vehemently opposed the prayer made by the counsel for the petitioners and submitted that the specific averment has been made by the victim in the FIR as well as statement under Section 164 Cr.P.C. so also in the Court statement as PW-1, against the present petitioners, therefore, the order passed by the learned Court below does not suffer from any infirmity. Hence, no interference is called for from this Court.
I have thoughtfully considered the arguments advanced on behalf of the parties and perused the impugned order as also the material available on record.
According to the FIR, the victim specifically made allegation against the present petitioners with regard to their complicity in the crime. Likewise, in her statement recorded under Section 164 Cr.P.C. also, the victim has specifically stated that petitioner Jasanpreet administered her sedative tea and petitioner Kuldeep (Downloaded on 07/12/2023 at 08:41:31 PM) [2023:RJ-JD:42216] (3 of 7) [CRLR-509/2022] Kaur supported the accused Gurpreet. At the relevant time of incident, the age of victim was merely 17 years. Therefore, on finding prima facie evidence against the petitioners, the learned court below added the present petitioners as accused in exercise of powers under Section 319 Cr.P.C., which cannot be said to be erroneous.
The power under Section 319 Cr.P.C. is discretionary power of the trial court, therefore, the discretion exercised by the trial court cannot be lightly interfered with unless it is shown that the order refusing to implead the persons as accused has been made mechanically or it is arbitrary or perverse. The trial court, while taking into consideration the entire material placed before it has taken cognizance against the petitioners.
The constitutional Bench of Hon'ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab reported in (2014) 1 Crl.L.R (SC) 310 while discussing the powers of the Court concurred with the view taken in the case of Dharam Pal Vs. State of Haryana reported in (2014) 3 SCC 306 concluded as under:
"110. We accordingly sum up our conclusions as follows:
Question Nos. 1 & III Q.1 What is the stage at which power under Section 319 Code of Criminal Procedure can be exercised?
AND Q. III Whether the word "evidence" used in Section 319(1) Code of Criminal Procedure 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?
(Downloaded on 07/12/2023 at 08:41:31 PM)[2023:RJ-JD:42216] (4 of 7) [CRLR-509/2022] A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Code of Criminal Procedure and the Sessions Judge need not wait till 'evidence' under Section 319 Code of Criminal Procedure becomes available for summoning an additional accused.
Section 319 Code of Criminal Procedure, significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Code of Criminal Procedure; and under Section 398 Code of Criminal Procedure are species of the inquiry contemplated by Section 319 Code of Criminal Procedure Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Code of Criminal Procedure, and also to add an accused whose name has been shown in Column 2 of the chargesheet. In view of the above position the word 'evidence' in Section 319 Code of Criminal Procedure has to be broadly understood and not literally i.e. as evidence brought during a trial.
uestion No. II Q. II Whether the word "evidence" used in Section 319(1) Code of Criminal Procedure 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?
(Downloaded on 07/12/2023 at 08:41:31 PM)[2023:RJ-JD:42216] (5 of 7) [CRLR-509/2022] A. Considering the fact that under Section 319 Code of Criminal Procedure a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Code of Criminal Procedure the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question No. IV Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Code of Criminal Procedure to arraign an accused? Whether the power under Section 319(1) Code of Criminal Procedure can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? A. Though under Section 319(4)(b) Code of Criminal Procedure the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Code of Criminal Procedure would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial-therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No. V (Downloaded on 07/12/2023 at 08:41:31 PM) [2023:RJ-JD:42216] (6 of 7) [CRLR-509/2022] Q. V Does the power under Section 319 Code of Criminal Procedure extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?
A. A person not named in the FIR or a person
though named in the FIR but has not been
chargesheeted or a person who has been discharged can be summoned under Section 319 Code of Criminal Procedure provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Code of Criminal Procedure has to be complied with before he can be summoned afresh."
Recently, Hon'ble Supreme Court in the case of Rajesh & Ors Vs. State of Haryana reported in AIR 2019 SC 2168 while considering various decisions including the decision in the case of Hardeep Singh (supra) has held as under :-
"Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that, in the facts and circumstances of the case, neither the learned Trial Court nor the High Court have committed any error in summoning the Appellants herein to face the trial along with other co-Accused. As observed hereinabove, the Appellants herein were also named in the FIR. However, they were not shown as Accused in the challan/charge-sheet. As observed hereinabove, nothing is on record whether at any point of time the complainant was given an opportunity to submit the protest application against non-filing of the charge-sheet against the Appellants.(Downloaded on 07/12/2023 at 08:41:31 PM)
[2023:RJ-JD:42216] (7 of 7) [CRLR-509/2022] In the deposition before the Court, P.W. 1 and P.W. 2 have specifically stated against the Appellants herein and the specific role is attributed to the Accused- Appellants herein. Thus, the statement of P.W. 1 and P.W. 2 before the Court can be said to be "evidence"
during the trial and, therefore, on the basis of the same and as held by this Court in the case of Hardeep Singh (supra), the persons against whom no charge-sheet is filed can be summoned to face the trial. Therefore, we are of the opinion that no error has been committed by the Courts below to summon the Appellants herein to face the trial in exercise of power Under Section 319 of the Code of Criminal Procedure."
So far as the judgment cited by the counsel for the petitioners in the case of Ramesh (Supra) is concerned, the same has been passed by the Hon'ble Apex Court in its particular facts and circumstances. In the present case, the victim has made specific allegations against the present petitioners in her statement recorded under Section 164 Cr.P.C. so also in her Court statements, therefore, it cannot be said that an error has been committed by the trial Court in summoning the petitioners to face trial.
In the light of aforesaid discussion, no case is made out for interference in the impugned order dated 14.03.2022. The revision petition is hereby dismissed. Stay petition also stands dismissed.
(MANOJ KUMAR GARG),J 188-Ishan/-
(Downloaded on 07/12/2023 at 08:41:31 PM)Powered by TCPDF (www.tcpdf.org)