Full Text
CRL.REV.P. 656/2014
PJIEETI SEL\RMA
Through
Date ofDecision: 4"" May, 2016 Petitioner Mr.Krishan Kumar and Ms. Vidushi, Advocates
. rt M I a fi'wilh,j'Sub Inspector Ajay Singh, CORAM. //
HON'BLE INfS. Jj^STICE SUNITA GUPJA
•• X l^|f'g]^olice Statioh-Daitya Ganj c > -'.v; '• r oRDiiRiMaiy
: SUNITA GtJPTA. J. Ifl J
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MAY 04, 2016 rs Crl.Rev.Pet601/14 (SUNITA GUPTA)
JUDGE
2016:DHC:9165 HIGH COURT OF DELHI
Date ofDecision: 4"'May,2016
PREETI SHARMA Petitioner
Through Mr.Krishan Kumar and Ms. Vidushi, Advocates
,,rJr-hfSughs-;:Mr.„Asfi"ok.^ K. Garg, APP along
'"witik^SSb Inspector Ajay Singh, //
•Police StatioiiiD&ya Ganj
V: + CRL.ReV;^56/2014 . ' 'I, PREETI SI^ARMA » f •Petitioner
"if
Through Mi'.Krishan Kumar I'.and Ms. ,jVidushi, Advocates
,.1^ ( „ ,1 J, a
\\ .'ir STATE ^ ",;;5:?;^;:;jafespondent APP along
Ajay Singh, "'" "'-Tofice Station Darya Ganj
: SUNITA GUPTA, J.
ORDER
1. Feeling aggrieved by the summoning order dated 8"^ July, 2014 and consequential framing of charge dated 13"^ October, 2014 by learned Additional Sessions Judge, Special Fast Track Court-II Crl.Rev.Pet. 601/14 (Central), Tis Hazari Courts, Delhi in Sessions Case No.83/2013 arising out ofFIR 248/09 u/s 376 IPC, present Revision Petitions NO. 601/2014 and 656/2014 have been filed by the petitioner.
2. Facts gemiane to the filing ofthe present petition liein a nanw compass. FIR in the instant case was registered on the basis of the statement of the prosecutrix wherein she alleged that herhusband had suffered heart attack, as such, she was in financial difficulty. She met one Daya Nand Khatri at3ME^Iio^'it'ar'^4appris him about her >5. problems. He offep^'hjer aj^laciy bfRs?50pO/- besides transportation 4^ ^ ''' charE About 5-' fftnet Preeti and cariie to know..:5 of Oriflame,/Cohn'aught Places;^ about her because Preeti was ail^riiirl^cpaintance ofKhatrfjuncle and Khatri uncle^old her not to t^lkloi^riyyrj'e;.without his permission. On 26"' Novemb^, 2009vShe, feacib,l|..CHo^ Metro Station at •A ' y c -. - V. i;- /•;' about 11:00 AMRh%|^ev9i>v^atri uncle wasmot^i^eS^^^^^ and told her that he would rlMfrafleS^bdUtT^:^^^^^^ her to sit in Palika. Meanwhile, Preeti"camec0u|vO.fc©nflame office and took her upstairs and started talking to another lady about making her a member. After that she brought her outside the office. One person namely, Naresh Dahiya came and started talkingto Preeti. Preetitold her that she will come within 10-15 minutes and asked her not to go anywhere. She tiied to talk to Preeti on telephone several times but the call was on waiting for more than 10 minutes. Naresh Dahiya told her that Preeti had gone from back door and asked her to accompany him. CrLRev.Pet. 601/14 \ Naresh Dahiya took her in his car to Priya Guest House, Darya Ganj, Delhi where he committed rape upon her. Thereafter, she came out of the guest house in anger. She and Naresh Dahiya ate golgappa near Sablok Clinic. She infomed Preeti that because of her, wrong thing had happened with her. Preeti came and inforaied the police. Ambulance came and tookher to JPN Hospital. She prayed for action against Naresh Dahiya. During the course ofher deposition before the Court, she stated that she also want action to be taken against Preeti and Dava Nand Khatii'via^'theyt.were hand'^m.-glove with accused Naresh Dahiya. Thereupotfvide impugned birdefxdate.d 8 July, 2014, Preeti and Da¥a Kh^rMwfere^S&Hiered to=>>fe summoned as "-If ' •)- 'iVi. accused. /
3. Learned counsel for tl;ie appellmt has challenged the i': j)' summoning Order on the grQipiE^haM^ither in her mitiaF statement v\ |?/\... /J made before tile police^MA^tedli^^^^is'lSaiaon ofFIR nor in her subsequent stat^efets^s,''t41 Cr.P.C. or l^^O^prrecorded by the Metropolitan Magilfe^>^jl^^feufe^ any allegations against the petitioner. It w^-f^&ilS&rst#^^ in her examinationin-chief before the Court, she merely stated that the petitioner was hand ingloves withNaresh Dahiya and prayedfor actionagainst her.
4. Learned counsel for the petitioner submits that the evidence/documents available on record do not constitute commission of any offence much less prima facie evidence against the petitioner which warrants summoning under Section 319 Cr.P.C. Counsel \"\ further submits that even the cross-examination of the prosecutrix was not recorded, therefore, there was no occasion forinvoking the powers u/s 319 Cr.P.C. Rehance in this regard is placed on Mohd. Shaft vs. Mohd. Rafiq, AIR 2007 SC 1899.
5. By placing reliance on Anil Singh andAnr. vs. State ofBihar, Crl. Appeal No. 1082/2006; Hardeep Singh & Ors. vs. State of Punjab and Ors,MANU/SC/0025/2014; Prabhdayal Singh vs. State ofPunjab &Ors., Crl.A.3;8487f012t;j^^^ Yadav and Anr. vs. State ofBihar and;dr^^0pMdi^^l^, it'was submitted that Standard of proof'employed forr.slimiiomng a person'as accused u/s 319 Cr.P.C. i^hig%r than tfi^^^^|i|froof eniplo|ed^r framing a charge against m accused. is required to bHarrived at before passing a surnmoning^#(|ieg ftlkt the evidence adduced on ij I behalf of prosecution, if nol^llfeftte^^j^ay lead to convittion of a person soughtXto be addeli-pMh^iccu^ed^in the^cjase. In the in instant case, absolutely'%i6\%puM,,has been given^'by:^^]!^'leairied Sessions '-•h 'V,, ' Judge for sunimonidgj^ffiei^^tt^^js^fw^'s^jrffactcited as awitness by the prosecution, as siTchfisSfe^^iiipughe'd order summoning the petitioner and subsequentframing of charge are liable to be set aside.
6. Per contra, learned Additional Public Prosecutor for the State submitted that the impugned order does not call for any interference, as such, the revisions are liable to be dismissed. CrLRev.Pet.601/14
7. I have given my considerable thoughts to the respective submissions of the learned counsel for the parties and have pemsed the record.
8. Section 319 Cr.P.C. as it existstoday, is quoted hereunder; "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 miy person not being the accused has committed any offenceJpr'whihh'TuflTper^on^^cpuld be tried together with the accused, the cdciii mqy^Pj;S,c^ed'agf^^^ the offence which he appears toiha^'etcommitted. (2) Where''such'/p^rson is^^not:;afff0^jhgr0^ arrested or. summon^fd, fnr th^ aforesaid. oned, a^fhe circuimp0^iMl^^^ may requit(e,.fqr the purpose "if'C ifflmSiliM t\;7 -tf 'fi (3) An^person attending t/7^ |Jp.urt; bltjiough not under arrest or upon a summojis, may be detainedlt^^^i^Qburtfor the purpose ofjthe inquiry into, or'trial of the offence0$^he^^gears to have committed. (4) Wherehthe Cdui^pi^^^i^mri^i^yi^f^ iub-section (1), then- (a) the proceidif^m'r^ect^gfj^^ shvibBe:.6bmmenced afresh, andthewitnessis-:re^heafS;^^rp;r vosii 5. " (b) subject to the provisim^^Glause-fdji^f^ may proceed as ifsuch person had been an accused peri^oW when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
9. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitiir (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. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not amy one of 5^ 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 poweras contemplated in Section 319 Cr.P.C.?
10. There were divergent views having been expressed by the Supreme Court and several High Courts of the countiy on the scope and extent of the powers of the courts under the criminal justice system to aiTaign any persorts; an^a^^^ the course of inquiry or trial as Hihcier •Sefgf«5n^3-19._of the Code of Criminal Procedlire^-il'973 (heEeinafelUrefen-ed"^^^^^^^^^^ ^Cr.P.C.'). Therefore, re|p^G&''was rna|^^|^^|^i?itution Be^ph^in Hardeep Singh (suprafii. The doubts a§Seg;^0in paragraphs TS^and 78 of |-i H the reference,order led to the framing! oYifollowing two questions Hfll ifVS, "(1) Wh'en the power undeip^h^eiQ0M:^l) ofSection 319 ofjthe Code of additioii^pf accused^can Whethfr application under Section 319'%'^ngty^^iht'mtldhi^^^ ofthe witness is cornp}eik?/-€'^. (2) Whatis the power under sub-section (1) of '
11. After refening to various earlier decisions rendered by the Supreme Court as well as different High Courts, as regards the question whether the word 'evidence' in Section 319 Cr.P.C. means as arising in Examination-in-Chief or also together with Cross- Examination, it was held that 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 Crl..Rev.Pet.601/14 V 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 aprimafacie opinion as to complicity of some other person who may be connected with the offence. 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 primafacie necessitates bringing such person to face triak'ln factr^Exaniinafion-in untested by Cross Examinationfundbubtediy in. itself;'lC'Weyidence. While so /y tsiiv observing, the/^o]^ had;?tal^feiil|,'|i?0nsidef^io^ '^he decision rendered in Mohd^hafi v. •^nr., aA^20^.[7] SC 1899 on which reliance has been%M^%b|ilhe learned counsel for the;;:i petitioner. Under the circums^n^Us-.^ submission that ofnly on the •1, ^ /? basis of exdmnation-in-chi^'frlM^'V^tiXioner could not/•have been, V,, -6' sunimoned cannpt be?sustaMedv.ii^M:-,!-;;:.#H;'-',•/
12. While dealin^^t^5|t^-7j|gf^^^'0j|^atil^^efion required for invoking the power under^S^cti^-xlrl^^^'P'.C., it was observed as under:-
^ 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.
99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court notnecessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability ofhis complicity. The testthathasto beapplied is one v\/hich is more than prima facie caseas exercised at the time offraming ofcharge, but short of satisfaction to an extent that the evidence, if goes unrebutted, w/ould lead to conviction. In the absence of such satisfaction, the court should refrainfrom 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 clearfrom 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'^^Jheje-^Jherefore, no scope for the Court acting under SectionJl&'CnP,C,,.tpfprm 'm^^^^ as to the guilt ofthe accused." cy"' 0 ^,•
13. It was ^ Cr.P.C., the accused subsequetolly as ifjhe ftad been an accused wheh the"Court inititiM#Awl£#mzance of the oifence, the ii degree ofsatisfaction that will Keif^equfred for summoning a person i under Section 319 Cr.P.C. as for framirtg a charge. H // The differencain the.de^ee^s^4sTaclip&fQr'kiJnmoning''the original accused and a subsdqSenf'accused is on ac6'6unt!'of the fact that the trial may have aheaSy^fpi^^^lp^ag^sf^e''^•gihal accused and it is in the course of such trial^hat-materiSi^'" 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.
14. As regards the question whether power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged, it was obseived that 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 Cr.P.C. 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 Cr.P.C. has to be complied with before he can be summoned afresh.
15. Again while.^eahngn^ith^'the power? qf'iEhe Court u/s 319.v pSi'l'-vA 'C ^ Cr.P.C., in Anil/Sin§/i^(supi-a^'^\W^ thaithe^^urisdiction of j|;he Courtto is^^ue^^ocesses^^i^l^^^l^iEfwho has-^^tbeen sentup for trial is i#t Hfeputed. Pr^|^^^^^lso be issued against such persons who', although were namfedfihltMe first information;report but Ij were not sent up for trial upoibfa^vestigM The jurisdiction of the 1/ Court undispiitedly isrlliMite^U^^ile. itifeaii e^i'cise an extraordinary power, it is reqM^dfeovjQe'^i.dpne cautiously.while issuing the processes sho&d'.--arriv$!>7a:iV'xeasonaBle-'-satisfaction that the prosecution would be abi'^^^^prom.iiie'-'cfiarges against whom the processes are sought to be issued. Reference was made to the Municipal Corporation ofDelhi V[5]. Ram Kishan Rohtagi and Ors., 1983(1) see 1 where the law in this regard was laid down in following terms:- "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. CrLRev.Pet.601/14.
16. Reliance was also placed on Michael Machado and Anr. v. Central Bureau ofInvestigation and Am., 2000 Cri LJ 1706, where the Court opined: "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.Jriother words, the court must have that for suchSffejjce'-^ the alreadv/arr.atgified chi'offence'ithat other/>perspn could asjfl/ell be. tried along with ?arr^ned occ^^^
17. Yet again1ft Krishnappa v State of Karnatakaf 20,04 Cri LJ I'l 'lA t ' u 4185, Court [observed: \ \r< <] 'If i'i jt i|;i "9. In I^Jchael Machado v. C^pj^lj^pr^u ofInvestigation cqijistruing the words "the court may person" in Section 319 CrPC, this Court, held th^fhe ^'Q)^Ljs^^dls^;0ipnai%^^lf^ shouldbe exercised only to ach1i^v^<^r^h0/justi6Mnd^at'th&i^ui^^hdM,'flbt turn against anotherper^^^il^J^vihit:$Qmes acigss-fvid'eMefcorinecting that other person also with:?Jfre^,^^^^hisr^ff^^<^i%eF>ifeld that a judicial exercise is calledfor, 'k^pr^g^^ons^^jLof^ case, including the stage at which the trial has already proceeded and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. The court, while examining an application under Section 319 CrPC, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, it means that for exercise of discretion under Section 319 CrPC, all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused." V
18. In Prabhdayal 5'w^/x(supra), after referring to various judgments, Punjab and Haryana High Court also took the view that power u/s 319 Cr.P.C. should be used only when sufficient and cogent reasons are there to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of extraordinary jurisdiction. A very high standard is required to invoke jurisdiction under Section 319 Cr.P.C. and unless, a higher standard for the purpose of forming an,,0p1mon |Q--suirm as an additional accsued is laid extraordinary case and also spara^^'^^is^^jurisiiGtionvwouldnotbe ^kisfied. Otherwise also, sumMth^glot'an additional dccused is a serious matter. li I; ' '.!< 'i r? !'•. '' •7)1. H-h'4
19. Recently in Jogendra following Hardeep Singh (supra), it was: held thafoxQWrSln^axyV^ of^/lhe Code of Criminal Proceaurd^^pan>,.be::,exercised only,4f''ye?^^;;str0ng and cogent evidence occurs asaM'stf,-a%^^s0h~j&ojii-|hei.eV^^^ led before the Court.
20. Testing on the anvil of the aforesaid legal proposition, it is to be seen whether there was strong and cogent evidence against the petitioner for invoking the power u/s 319 Cr.P.C. In her initial complaint made by the prosecutrix on 26^'' November, 2009, she leveled allegation of commission of rape by one Naresh Dahiya at Priya Guest House, Daryaganj, Delhi. In this complaint, it was stated CrL.Rev.Pet. 601/14 that the petitioner who was working with Oriflame Office, Cannaught Place met her and told her that she was coming within 10-15 minutes but she did not return, thereupon Naresh Dahiya told her that Preeti has asked her to accompany him and thereupon she went with him where she was subjected to rape. The prosecutrix informed the petitioner ontelephone about the commission of illegal act by Naresh Dahiya whereupon the petitioner reached the spot and infonned the police. Ambulance came and took the prosecutrix to hospital. 21, On the "conducted at LNJP hospital, New Delhi;|^^.She >yasi;fef^3;ed'x^^^ g^e|c);lpgist for further % \r ^ ^valuation an#mm&emen¥i|M // by.tM% ^necologist. As per the report"of doctor, tthe|pWen^{QSvas changing heF; statement continuouslyi It was stated thHti'.thbbpMient has come out of home to I' / lii h j! meet her all'eged aunt Mrs. J^refeE worMng in Oriflame,.Connaught \i t ( ' / Place where she met wiffi^twoim^-pe'rSons abMfrJ.S years'of age who took herfirst to the%jesi^OTe,e at SafdarjungEncl|ye;wh,e^ hegave her cold drink to drink lftef=w|irehtfh|-p^ti^^^^ dizziness and she was taken to DaryagMjj^awKeife--'she''^^ sexually assaulted. According to the patient, the names of the persons were Naresh Dahiya and Chetan.
22. On 27"^ November, 2009, the statement of the prosecutrix was recorded u/s 161 Cr.P.C. wherein similar allegations were narrated as in the FIR. - > X
23. Onthesame day, herstatement ii/s 164 Cr.P.C. was recorded by learned Metropolitan Magistrate wherein she stated that the petitioner had only told the prosecutrix to bring the file and not to talk toNaresh Dahiya on the way. In this statement, the prosecutix wanted legal action only against Naresh Dahiya.
24. Learned counsel for the petitioner refeiTed to the statement u/s 161 Cr.P.C. of one Manjeet Singh @ Bablu to show that the prosecutrix was involved,in_-ffost|p^iofl^^ Reference was also made to the order p^le^-«b0li'e^(So\ift of-S^lio^f^Wle granting bail to Naresh Dahi^y; w - been taking regarding ofience? It was also^b||p|dphat in 26.11.2009, the prosecutrix nclivli6re| Mted that she accornpanied accused on aiiy direction give^J|^>m^|||l^tioner to the effett that the prosexutrix Was to cdll^fet prosecutrix was asked by accuse'^,!^^sfr^%hiya to represMt;h#^^^^^^ be Rita and wife ofaccused, there.^as^0^]30ifem^ to do so and not to enter into the guestT^tse^^SllShWaffted to enter into the guest house. Even after commission of alleged heinous crime, the prosecutrix had golgappa with the accused near Sablok Clinic instead ofraising any hue and cry. In the Medical Report, there was no injury available on any part of the prosecutrix. Counsel further submits that after completion of investigation, the police filed report u/s 173 Cr.P.C. The investigation revealed allegation against Naresh Dahiya only. The petitioner was cited as prosecution witness and was placed.r i-r"- '• her "stateinent dated »--Mhe CiLRev.Pet. 601/14 VI V at SI. No. 2. Prosecutrix was examined on 1?"' April, 2014 and 8"^ July, 2014. In her deposition dated 17"^ April, 2014, she stated that she was inti'oduced to accused Naresh Dahiya by the petitioner, however, when the accused was shown to her she stated that she was not sure if he is the same man or not. She further deposed that it was Khatri uncle who asked her to go with Naresh Dahiya and bring the file. In her deposition, she further stated that Naresh threatened her several times after registration of^the case and because of this reason, she shifted to NOIDA. ^AftHat time,'^shestaledf:'-'/ also want action to " ci/Srbe taken against ^/eetKartd; Dava„.I)lgnd Khatri"fs %_ey are hand in gloves with acctised^aresh" Merelyj'oMii.e basis-of'this^statement of.•the prosecurtix,^fc|he petitiojnei •^a||;c|fdered to°,?^e •summoned. M ^ V;. However, as'seen above, as eibseived by Hon'ble Supreme Court in j;. -flp)!]/:: Hardeep.SY^/i(supra), poweri^j|3'jl^Er.P.C. is adiscretipnary and extraordinary\power which ^'l^^e'^p^jsed sparingly #id only in those cases where theMi"eufflstanees^^^^^ cas'©-'Sb-\warrant. It is only where strong andkcdgSiife. evidejtice occ|jrs'^gaiilftvf^./P®rson from the evidence led before thSCoui^;W^^^ be exercised and not in casual and cavalier rnaiihe'r." "Except for the fact that the prosecutrix stated that she wanted action againstPreeti and Daya Nand Khatri as they were hand in gloves with accused Naresh, there was no other clinching and cogent evidence against the petitioner which ^ waiTanted summoning the petitioner. In Section 319 Cr.P.C. the puipose of providing "if it appears from the evidence that any person not being the accused had committed any offence is clear from the words "for which such person could be tried together with the Crl.Rev.Pet. 601/14 accused". The words used are not "for which such person could be convicted". Under the circumstances, there was no sufficient ground for summoning the petitioner who was kept as a witness in the report u/s 173 Cr.P.C.
25. That being so, the impugned or4ers cannot be sustained and both the revision petitions are accordingly allowed and the impugned orders dated g1h July, 2014 and 13th October; 2014 are set aside. (UN1TA GUPTA)
JUDGE MAY 04, 2O[1] rs CrL.Rev.Pet.601/14