Kavita vs State of Haryana and Another

Gurdev Singh, J.—Petitioner-Kavita has preferred this revision against the order dated 24.5.2010 passed by the Additional Session Judge (Fast Track Court), Narnaul, vide which he dismissed the application filed by the petitioner/complainant, u/s 319 of the Criminal Procedure Code (hereinafter referred to as ''the Code''), for summoning Sunita as an additional accused for trying her alongwith already arraigned accused.

The facts, in brief, are that the complainant got lodged FIR No. 146 dated 4.7.2009 in Police Station Knina, under Sections 363, 366, 376 and 120-B IPC. She averred therein that she had been residing with the wife of her brother in Kalwari who used to harass her. On 10.6.2009 at about 11 AM she was present in the house when Nitin @ Sonu came there and after forcibly tearing her salwar and jumper committed sexual intercourse with her 2-3 times. She kept on weeping and that accused fled from that place. He again came with Sunita after some time and by that time she had changed her clothes. One person on motor-cycle came there and Nitin and Sunita asked her to accompany him, who would drop her in the village of her maternal uncle. When they reached at the bus stand of Ateli, she was told by that person that the motor-cycle had developed some mechanical defect and that he would arrange some other vehicle for her. In the meanwhile, one motor vehicle stopped there. At that time there was only one driver in the said vehicle. She was made to sit on the rear seat. That driver asked from her the telephone number of her maternal uncle and the same was disclosed to him. He told her that he was not able to contact her maternal uncle on the telephone and that she should accompany him and he would send her to her maternal uncle on the next day. Then she was taken by the driver to some undisclosed place. The next day, she was left near the turning of Paniyal from where her maternal uncle took her to his house. After investigation, police report was submitted u/s 173(2) of the Code. During investigation, Sunita was found to be innocent and as such her name was placed in column No. 2 of that report. The other accused were charged for the offences under Sections 363, 366, 376 and 120-B IPC, to which they pleaded not guilty and claimed trial. During the trial, statements of the prosecutrix (PW-1) and one another prosecution witness were recorded. Thereafter, the said application was moved. After hearing the Public Prosecutor for the State and the Counsel for the accused, Additional Session Judge, dismissed the application.

On notice of motion having been issued, the learned State Counsel appeared on behalf of respondent No. 1 and Mr. Vipin Yadav, Advocate, appeared on behalf of respondent No. 2.

I have heard Learned Counsel for the parties.

It has been submitted by the Learned Counsel for the petitioner that the order passed by the Additional Sessions Judge, is not correct and suffers from illegality. A categorical statement has been made by the prosecutrix in the court and from that statement, it appears that Sunita also committed the offences as mentioned in the FIR, for which she is liable to be tried alongwith other accused. The application was dismissed by the Additional Sessions Judge on flimsy ground and that order cannot be sustained.

It has been submitted by the Learned Counsel for the respondents that from the evidence produced in the Court, it cannot be concluded that the same is sufficient to sustain the conviction of the accused and, as such, there is no ground to set aside the well reasoned order passed by the Additional Sessions Judge.

Copy of the statement of the prosecutrix, which was recorded during the trial, has been annexed with the present petition as Annexure P/3. While making that statement, she deposed that after Nitin committed the rape on her, he threatened her not to tell that fact to his mother or anybody else and that thereafter he came with his mother Sunita, who talked to Pinki and thereafter called a person who was having motor cycle and both the ladies made her to sit on the said motor cycle. That motor-cyclist told her that he would take her to village Bakhrana but that motor cycle developed a mechanical defect and when that person removed the helmet, she identified him as Pardeep, sister''s son of said Pinki. After some time, a vehicle make Scorpio came there, which was being driven by Rajbir. She was made to sit in that vehicle by Pardeep on the pretext that the driver of that vehicle will drop her at village Bakhrana. After covering distance of 5-6 killas, Mahender, Ashok and Laxman met them and they also boarded the vehicle. They told her that they will get her married to Laxman, brother of Pinki. However, instead of taking her to village Bakhrana, she was taken to village Khawaspur and was kept there for the night. She was confined by them forcibly in the house. It was on 4.7.2009 that her maternal uncle, alongwith 3-4 persons, came there and got her freed.

It is now well settled that power u/s 319 of the Code is to be exercised sparingly and with caution. Though it confers a power of wide amplitude, yet it is required to be exercised very sparingly. The same should be exercised only when the compelling reason exists for taking action against the person against whom action had not been taken earlier. There is no compelling duty on the Court to proceed against the other persons. If a person has not been charge sheeted, he may come within the purview of description of such a person, as contained in Section 319 of the Code. Mere existence of prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas a prima facie view may be sufficient for taking cognizance of offence. However, at the stage of framing of charge, the Court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227, the Court must consider the entire material on the record to form an opinion that the evidence, if unrebutted, would lead to a judgment of conviction. Still a higher standard is set up for the purpose of invoking jurisdiction u/s 319 of the Code. The ingredients thereof viz (i) an extraordinary case (ii) a case of sparingly exercise of jurisdiction, should be satisfied. There must be possibility of the accused being convicted on the basis of evidence brought on the record before he can be summoned as additional accused. It is not, therefore, that merely because some witnesses have mentioned the name of a such person or that there is some material against that person with description, u/s 319 of the Code, the inherent power would be used by the Court.

In the present case, a perusal of the statement of the prosecutrix and the version, as given by her in the FIR, shows that she has made material improvements, while making her statement in the court. Though that statement is not to be scrutinized minutely at this stage, while deciding this petition, but still it is to be seen whether the statement made by her in the court is sufficient for convicting Sunita, who is sought to be summoned as an additional accused. The story, as given by the prosecution, relating to that Sunita, appears to be unnatural and highly improbable. After Nitin had extended threat to her, for not disclosing anything to Sunita, he would have been the last person to come back with Sunita. As per the version given in the FIR, she had willingly accompanied the person on the motor cycle and then with the driver of the car, whereas while making statement in the court she has tried to depose that she was taken forcibly at the instance of Sunita. The possibility of false implication of Sunita, being mother of the main accused, cannot be ruled out.

From the above discussion, I conclude that the order passed by the Additional Sessions Judge, does not suffer from any illegality or infirmity; nor it can be said that the propriety required that such order should not have been passed. No interference is called for while exercising the revisional jurisdiction. The revision petition is dismissed accordingly.