Criminal Revision No. 1173 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Revision No. 1173 of 2008
Date of decision:- 4.12.2008
Santro ...petitioner
Versus
State of Haryana and another ...respondents.
CORAM: HON’BLE MR. JUSTICE RANJIT SINGH
Present: Mr. Rakesh Gupta, Advocate,
for the petitioner.
Mr. Yashwinder Singh, AAG, Haryana
for the State.
Mr. Gorakh Nath, Advocate
for respondent No.2
RANJIT SINGH J.
Prosecutrix, Santro has filed this revision petition impugning
order passed by Additional Sessions Judge-III, Jind. FIR No. 123 dated
19.9.2001 was lodged by the petitioner at police station Pillu Khera
alleging that on 18.9.2001 at about 9.30 a.m. when she was present in her
house, accused Tribuwan and Jagdishanad entered into her house and
caught hold of the petitioner and started misbehaving with her. They
allegedly removed salwar of the prosecutrix and tried to commit rape on her.
She raised an alarm which attracted Ramesh and Satbir to the spot. On the
basis of a statement made by the prosecutrix-petitioner FIR under Sections
354, 452, 376/511 IPC was registered. After investigation, the prosecution
found that there was lack of evidence against Jagdishanad and challan was
presented only against Tribhuwan under the said sections. Sessions Judge,
Jind, however, found that no offence under Sections 376/511 IPC was made
Criminal Revision No. 1173 of 2008 2
out and accordingly sent the case back for trial to Judicial Magistrate,
Safidon. Petitioner appeared before the Court and gave her evidence and
thereafter the prosecution moved an application under Section 319 Cr.P.C.
to summon Jagdishanad. This application was allowed by the Magistrate on
16.11.2007. Jagdishanad challenged this order by way of revision and the
Additional Sessions Judge-III, Jind has now set aside the order vide which
the Jagdishanad was summoned. Prosecutrix has accordingly challenged
the said order by filing the revision petition.
Learned counsel for the petitioner has referred to the evidence
given by the petitioner-prosecutrix, copy of which is placed on record as
Annexure P-1. The relevant evidence so far as Jagdishanad is concerned
reads as under:
“In between Tribhuvan s/o Jagdish r/o Fatehpur and Baba
Jagdishanand r/o Chuhar Majra forcibly entered my house and
finding me alone, they bolted the door and both caught hold of
me forcibly and tried to rape me. Jagdishnand caught hold of
me from my arms and pushed me on the earth and Tribhuvan
forcibly opened my salwar and tried to rape me. I tried to save
myself and made a noise and on hearing my noise my brother-
in-law Ramesh s/o Ratna and Satbir s/o Lakha r/o Morkhi came
there. On seeing them Tribhuvan accused, who is present in
the court, immediately put on his paint and succeed in running
away. “
Learned counsel for the petitioner contends that the evidence as
noted above satisfied the test and standard laid down by the Hon’ble
Supreme Court for adding any additional accused. Mr. Gorakhnath,
Criminal Revision No. 1173 of 2008 3Advocate, however, very vehemently contends that the Court was justified
in interfering with the order summoning Jagdishanad, as evidence of
prosecutrix did not receive any support from her brother-in-law (husband’s
brother). He further says that one of the eyewitnesses name Satbir was
given up.
The Court has taken into consideration the evidence of
witnesses who have not supported the case of prosecution to interfere in the
impugned order summoning the respondent Jagdishanad . The Court has
not attached the requisite importance to the evidence given by Smt. Santro
Devi, petitioner which is reproduced above. The Court could be expected to
take notice that for an offence of this nature the Supreme Court has gone to
the extent of holding that the evidence of prosecutrix alone in such cases
would be enough if it can be implicitly relied upon. There is no indication
from the order which would create doubt on the version of the prosecutrix.
The version of the prosecutrix more appropriately could not have been
doubted as other witnesses have turned hostile.
The Court was bound to see and appreciate if the evidence
given by the prosecutrix-petitioner would satisfy the test as laid down by
the Supreme Court or not. In support of his submission, learned counsel for
the petitioner has drawn my attention to the case of Rajendra Singh Versus
State of U.P. and anr. 2007 (3) RCR (Criminal) 1021. It has been held in
this case that the court need not be satisfied that the accused has committed
an offence and even if it appears that he has committed an offence, that
would be sufficient to summon the person as an additional accused. It
would be of advantage to notice to the observation of the Hon’ble Supreme
Court in this regard, which are as under:-
Criminal Revision No. 1173 of 2008 4
“15. Section 319 (1), which is relevant for our purpose reads:
“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 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.”
As I see it, the words are plain and the meaning clear.
When in the course of the enquiry or trial, it appears to the
court from the evidence that a person, not arrayed as an
accused, appears to have committed any offence for which that
person could be tried together with the accused, the court may
proceed against that person. Surely, it must appear to the Court
from the evidence that someone not arrayed as an accused,
appears to have committed an offence. Be it noted, the Court
need not be satisfied that he has committed an offence. It need
only appear to it that he has committed an offence. In other
words, from the evidence it need only appear to it that someone
else has committed an offence, to exercise jurisdiction under
Section 319 of the Code. Even then, it has a discretion not to
proceed, since the expression used is ‘may’ and not ‘shall’. The
legislature apparently wanted to leave that discretion to the trial
court so as to enable it to exercise its jurisdiction under this
section. The expression ‘appears’ indicates an application of
Criminal Revision No. 1173 of 2008 5mind by the court to the evidence that has come before it and
then taking a decision to proceed under Section 319 of the
Code or not. With great respect, I see no reason to describe the
power as an extraordinary power or to confine the exercise of it
only if compelling reasons exist for taking cognizance against
any other person against whom action has not been taken. After
all, the section only gives power to the court to ensure that all
those apparently involved in the commission of an offence are
tried together and none left out. I see no reason to curtail this
power of the court to do justice to the victim and to the society.
It appears to me that it is left to the judicial discretion of the
court, judicially trained, to decide to proceed or not to proceed
against a person in terms of Section 319 of the Code.”
As has been observed by the Supreme Court the legislature
apparently has left discretion to the trial Court to summon or not to summon
additional accused while exercising power under Section 319 Cr.P.C. This
power, has observed by the Supreme Court, cannot be termed as
extraordinary power which is to be exercised only under the compelling
reasons or the circumstances. The Court is given a judicial discretion which
is to be exercised by the judicially trained mind and accordingly it would
basically be for a Court deciding such an application which has to take a
decision on the basis of law and the evidence.
Mr. Gorakh Nath, on the other hand has referred to the case of
Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr.,
2000 (2) RCR (Criminal) 75 to say that only suspicion is not sufficient and
person can be joined as an additional accused if there is a reasonable
Criminal Revision No. 1173 of 2008 6
prospect of convicting him of the offence charged. In fact number of
judgment passed by the Hon’ble Supreme Court has been referred to in the
case of Rajendra Singh (supra) ultimately to hold that exercise of power
under Section 319 Cr.P.C. is to be left to the Court trying offence based on
the evidence that comes before it. It is also observed that the Court must be
satisfied about a condition precedent for the exercise of power under
Section 319 of the Code, since what are available under Section 319 is
basically to be exercised by the Court trying the case. It is better to leave
the exercise on this discretion to the Court concerned by pointing out the
relevant consideration which must weigh with the Court and taken into
consideration while exercising such power. In Michael Machado’s case
(supra) the Hon’ble Supreme Court has laid down well noticed and
frequently observed test about hope of prospect of conviction on the basis
of evidence which has generally been followed by various Courts. The
view is now fairly settled that this is not an extraordinary power and is
meant to be exercised. The observation in this regard in the case of
Municipal Corporation of Delhi versus Ram Kishan Rastogi and others
1983 (1) RCR Criminal 73 and in the case of Rajender Singh (supra) can
be noticed with advantage. It is for the trial Court now to see whether the
evidence given by the prosecutrix and as noticed would satisfy the test of
‘hope of prospect of a conviction’. Upon that would depend whether the
Court would exercise the power to summon respondent Jagdishanad as an
additional accused. This exercise apparently has not been done by the Court
while passing the impugned order. The order is thus set aside. The case
would go back to the revisional Court to redo the exercise in the light of the
law laid down by the Supreme Court as noticed above. Parties would be at
Criminal Revision No. 1173 of 2008 7
liberty to make their submissions on the basis of fact as well as law and
thereupon the Court would pass an order afresh.
The present petition is accordingly disposed of.
December 04, 2008 ( RANJIT SINGH ) rts JUDGE